This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).

UNPUBLISHED OPINION

PETERSON, Judge.

In this appeal from convictions of criminal vehicular operation and third-degree driving while impaired when any amount of a controlled substance is in the body, appellant argues that police did not have probable cause or exigent circumstances to support a nonconsensual withdrawal of appellant's blood. Appellant also argues that the state failed to meet its burden of proving that the methamphetamine and amphetamine found in his blood have a stimulating effect on the central nervous system. We affirm.

FACTS

At about 4:00 p.m. on October 1, 2003, appellant Allan Earl Huffman was driving a pickup truck westbound on Interstate 94 when the truck sideswiped a Minnesota State Patrol squad car that was stopped on the left shoulder of the westbound lanes. The pickup truck then crossed the median and the eastbound lanes and stopped in the right ditch of the eastbound lanes. A trooper who was inside the squad car was injured. The injured trooper radioed for assistance, and troopers Rochelle Schrofer, Mark Kincade, and Denise Lien responded to the scene.

Schrofer was the first to approach appellant in his pickup truck. Appellant was seated in the driver's seat, and his girlfriend was in the passenger seat. Appellant told Schrofer that he thought that he had fallen asleep. Appellant said that he was coming from Missouri and had left the previous day, but his girlfriend corrected him and said that they were coming from Mississippi. Appellant could not recall when he left Mississippi and said that he had stopped at a casino in Wisconsin Dells, where he gambled and had one drink. Appellant was adamant that he had not hit anybody, and he did not recall hitting the squad car.

Schrofer saw that appellant's eyes were watery and red. Schrofer did not detect an odor of alcohol, and she characterized appellant's speech pattern as fine. She also noted that appellant spoke rapidly and repeated several times that he did not hit anybody. Schrofer ordered appellant out of the car to further investigate whether he was impaired. Schrofer attempted to administer a horizontal gaze nystagmus (HGN) test, but because appellant's eyes were irritated, Schrofer could not complete the test. Schrofer had noticed that the driver's side window in appellant's truck had been broken, and she thought that appellant's eye irritation could have been caused by the wind or by debris, glass, and dirt in the truck. Schrofer administered a preliminary breath test (PBT), and the result was zero. When she was administering the HGN test, Schrofer noticed that appellant was sweating profusely, and she asked him why he was sweating so profusely when it was cold. Appellant said that he was sweating because the testing and the questions made him nervous.

Schrofer concluded that appellant was not under the influence of alcohol, but she was not sure whether he was under the influence of a controlled substance. While administering the HGN test, she had asked appellant whether he had taken any prescription or over-the-counter medications or any illegal substances, and he said that he had not. Schrofer believed that appellant was under the influence of a stimulant, but she could not identify the stimulant.

Trooper Kincade arrived at the scene while Schrofer was asking appellant questions and performing field sobriety tests. Kincade noticed that appellant was sweating profusely and that he was verbally combative when answering Schrofer. Kincade also noticed that appellant appeared to be jittery and "very confused as to where he had been, where he came from." Kincade testified that he "asked [appellant] if he would voluntarily give a blood sample and he agreed to do so." The one-page report that Kincade prepared following the incident did not indicate that appellant voluntarily consented to have his blood drawn.

Trooper Lien arrived at the scene and placed appellant in her squad car to take a statement. The statement was tape recorded, and the questioning lasted ten minutes. Lien then transported appellant to the hospital for further examination and a blood draw. Lien believed that Kincade had obtained appellant's consent to have his blood drawn, and she did not discuss the blood draw with appellant. Lien also testified that appellant's blood would have been drawn even if he had not consented. Appellant's blood was drawn, and laboratory tests performed on appellant's blood by the Minnesota Bureau of Criminal Apprehension revealed the presence of a THC metabolite, amphetamine, and methamphetamine.

Appellant was charged with two counts of criminal vehicular operation in violation of Minn. Stat. § 609.21, subd. 2a(2) (operating motor vehicle in negligent manner while under the influence), (6) (operating motor vehicle in negligent manner while any amount of schedule I or II controlled substance is present in body) (2002), and two counts of second-degree driving while impaired in violation of Minn. Stat. §§ 169A.20, subd. 1(2) (under influence of controlled substance), (7) (body contains any amount of schedule I or II controlled substance), .25, subd. 1 (second-degree driving while impaired) (2002). Before trial, the second-degree driving-while-impaired charges were reduced to third-degree charges based on the number of qualified prior impaired-driving incidents that appellant had.

The district court denied appellant's motion to suppress his recorded statements to Lien and his blood sample seized on October 1. The district court determined that appellant did not consent to have his blood drawn but that the blood draw was valid based on probable cause and exigent circumstances.

A jury found appellant not guilty of criminal vehicular operation (under the influence) and third-degree driving while impaired (under the influence), and guilty of criminal vehicular operation and third-degree driving while impaired (any amount of a schedule I or II controlled substance is present in the body). The district court stayed imposition of sentence and placed appellant on probation for three years. This appeal follows.

DECISION I.

Appellant argues that because there was not probable cause to believe that he was under the influence and no exigent circumstances were present, the district court erred by failing to suppress the blood-test results. Whether to suppress evidence is a question of law, and an appellate court independently reviews the facts to determine whether the district court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

"[T]he general rule is that police, absent consent, may not subject a detained person to the forced removal of blood for scientific testing in the absence of probable cause and either a search warrant authorizing the intrusion or exigent circumstances excusing the need for a search warrant." In re Welfare of J.W.K., 583 N.W.2d 752, 755 (Minn. 1998); see State v. Aguirre, 295 N.W.2d 79, 81 (Minn. 1980) (stating that constitutional prerequisites to warrantless nonconsensual removal of blood are probable cause and exigent circumstances).

The determination whether there is probable cause is not made by examining "bits and pieces of a probable cause showing in isolation" but by considering the totality of the circumstances. State v. Lieberg, 553 N.W.2d 51, 55 (Minn.App. 1996) (quotation omitted). Probable cause to search exists when, given the totality of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted).

Causing bodily harm to another as a result of operating a motor vehicle in a negligent manner while any amount of a schedule I or II controlled substance is present in the operator's body is a crime. Minn. Stat. § 609.21, subd. 2b(6) (2002). When appellant's blood was drawn, appellant had been driving a pickup truck that sideswiped a stopped squad car during daylight hours and injured the trooper inside the car. Appellant's eyes were watery and red and he spoke rapidly, repeated himself, and was sweating profusely even though it was cold and windy. There was also evidence that appellant was verbally combative and somewhat jittery and that he was confused about where he had come from and where he had been. Under the totality of these circumstances, there was a fair probability that appellant was under the influence of a controlled substance and that evidence of a crime would, therefore, be found in appellant's blood.

Appellant contends that there is an explanation for each of these circumstances that does not involve the presence of mood-altering substances. However, an explanation of the circumstances that is consistent with innocent behavior does not demonstrate that there was not a fair probability that evidence of a crime would be found in appellant's blood.

Appellant argues that the state failed to show that exigent circumstances existed that would excuse the need to obtain a warrant before drawing his blood. Appellant contends that the district court's conclusion that "evidence dissipates from the blood stream over a period of time" stems from cases involving alcohol and that because the troopers conceded at the omnibus hearing that they did not suspect that appellant was under the influence of alcohol, those cases do not apply here. See State v. Condon, 497 N.W.2d 272, 275 (Minn.App. 1993) (stating that necessity of immediate action to avoid loss of evidence of intoxication is an exigent circumstance justifying warrantless removal of blood); State v. Nielsen, 530 N.W.2d 212, 214 (Minn.App. 1995) (stating that evidence of intoxication dissipates rapidly and police officer who has probable cause to believe that driver has committed offense of driving under influence may order a blood sample taken without a warrant), review denied (Minn. June 14, 1995).

Appellant argues that because the troopers believed that appellant was under the influence of a stimulant, rather than alcohol, the state needed to prove that the unknown stimulant can dissipate quickly in order to demonstrate that immediate blood removal without a warrant was necessary and that because the state did not present evidence that controlled substances dissipate from the blood in a manner similar to alcohol, the state failed to establish exigent circumstances. Appellant's argument ignores the obvious fact that the state could not prove that an unknown stimulant can dissipate quickly because, the stimulant is, by definition, unknown. Also, appellant does not dispute that stimulants dissipate in the blood. Therefore, during any delay to obtain a warrant, the final traces of a stimulant could dissipate, and evidence of a crime would be lost. We reject appellant's argument that the cases involving alcohol that the district court relied on do not apply to other substances that dissipate in the blood.

II.

Appellant was convicted under Minn. Stat. §§ 609.21, subd. 2a(6), 169A.20, subd. 1(7) (2002). One element of both of the offenses defined by these statutes is that when a person commits the offense, there is present in the person's body a controlled substance listed in schedule I or II. Blood-test results showed that appellant's blood contained amphetamine and methamphetamine, which are both controlled substances listed in schedule II. The statute that defines schedule II states:

The following items are listed in Schedule II: . . .

(3) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:

(a) Amphetamine, its salts, optical isomers, and salts of its optical isomers;

(b) Methamphetamine, its salts, isomers, and salts of its isomers[.]

Minn. Stat. § 152.02, subd. 3(3)(a)-(b) (2002) (emphasis added).

Appellant argues that because the statute refers to substances "having a stimulant effect on the central nervous system," the state needed to show that the amphetamine and methamphetamine in his blood had a stimulant effect on his central nervous system and that because the state failed to prove this element of the offenses, his convictions must be reversed. But in State v. Ali, 613 N.W.2d 796 (Minn.App. 2000), review denied (Minn. Sept. 13, 2000), this court rejected this argument with respect to a controlled substance listed in schedule I. In Ali, six defendants were charged with fifth-degree possession of khat, which is a plant that contains cathinone. 613 N.W.2d at 797. Cathinone was listed as a schedule-I controlled substance under Minn. Stat. § 152.02, subd. 2(6) (1998), which referred to "substances having a stimulant effect on the central nervous system." Id. at 798. Citing this phrase in the statute, the defendants argued that in order to support a charge for possession of cathinone, the state must prove that the khat they possessed contained an amount of cathinone sufficient to produce a stimulant effect. Id. at 797. This court rejected this argument and concluded that "the statute prohibits the possession of cathinone regardless of whether the amount present is sufficient to produce a stimulant effect." Id. at 800. We conclude that this court's reasoning in Ali with respect to a schedule-I controlled substance also applies to a schedule-II controlled substance. The applicable statutes defining a schedule-I controlled substance and a schedule-II controlled substance are virtually identical, and we see no basis for not applying the same interpretation of the phrase "having a stimulant effect on the central nervous system" to both statutes.

Appellant argues that Ali can be distinguished from this case because Ali dealt with cathinone and not with amphetamine and methamphetamine. Appellant contends that this difference is significant because, unlike cathinone, the controlled-substance schedules list two types of amphetamine and methamphetamine, one type that has a stimulant effect on the central nervous system and one type that does not. We disagree.

We have already explained that under Minn. Stat. § 152.02, subd. 3(3)(a)-(b), amphetamine and methamphetamine are among the items listed in schedule II. Appellant correctly notes that Minn. Stat. § 152.02, subd. 4(1) (2002), also refers to amphetamine and methamphetamine as items listed in schedule III. But there is an additional requirement that these two substances must meet in order to be listed in schedule III. The statute states:

The following items are listed in Schedule III:

(1) Any material, compound, mixture, or preparation which contains any quantity of Amphetamine, its salts, optical isomers, and salts of its optical isomers; . . . Methamphetamine, its salts, isomers, and salts of isomers; . . . and which is required by federal law to be labeled with the symbol prescribed by 21 Code of Federal Regulations Section 1302.03 and in effect on February 1, 1976 designating that the drug is listed as a Schedule III controlled substance under federal law.

Minn. Stat. § 152.02, subd. 4(1) (emphasis added).

The language in Minn. Stat. § 152.02, subd. 4(1), was added to the statute in 1976 when the legislature transferred amphetamine and some forms of methamphetamine from schedule III to schedule II. 1976 Minn. Laws ch. 338, §§ 2-3. The language appears to have been added to the statute to preserve the status of existing amphetamine and methamphetamine that had been listed in schedule III and, without the language, would have been listed in schedule II because of the amendment.

Consequently, what distinguishes amphetamine and methamphetamine listed in schedule II from amphetamine and methamphetamine listed in schedule III is not, as appellant suggests, that the schedule-II substances have a stimulant effect on the central nervous system and the schedule-III substances do not; it is that the schedule-III substances were required in 1976 to be labeled under federal law as a schedule-III

controlled substance. We, therefore, conclude that under Ali, the state was not required to show that the amphetamine and methamphetamine in appellant's blood had a stimulant effect on his central nervous system.

Affirmed.