Minnesota DUI Case: refusal suspension upheld
In a Minnesota DUI case, the Court of Appeals affirmed the implied consent license revocation of a person who did not provide an adequate breath sample. The officer deemed it a refusal when the Intoxilyzer timed out, and that was it.
The Cite: Londo v. Commissioner of Public Safety, Court of Appeals of Minnesota, Decided December 9, 2008 (currently designated as unpublished).
The relevant facts from the opinion:
After four attempts to get appellant to blow into the Intoxilyzer, the device timed out without an adequate breath sample. Deputy Sturm, who was present during the Intoxilyzer test, informed appellant that because she did not blow into the machine, she was deemed to have refused the test. Appellant was then taken to booking. After a couple of minutes, Deputy Sturm initiated the revocation of appellant's driver's license and again told appellant that she was being deemed to have refused the breath test.
The holding that shows that in civil DUI license proceedings, there is a very low level of protection of drivers’ rights:
Appellant also argues that due process requires Deputy Sturm to have given her a chance to cure her refusal. In support of her assertion, appellant directs this court to State v. Netland, 742 N.W.2d 207 (Minn.App.2007), review granted (Minn. Feb. 27, 2008). In Netland, we held that in the criminal context, due process requires a testing officer to provide an alternative method of chemical testing where a driver is deemed to refuse a chemical test because of an inadequate breath sample but seeks additional time to provide an adequate sample and an alternate mode of chemical testing. Id. at 223.
The district court found Netland similarly unavailing to appellant's argument. We agree with the district court. Appellant's license revocation is a civil matter, whereas Netland was a criminal case. As we stated in Netland, "[t]he minimum level of fairness that our system of law requires to deprive a driver of driving privileges is not the same as that required to impose a criminal sanction." Id. at 219. We have previously held that "[i]n the civil implied-consent context, '[i]f a person fails to provide an adequate breath sample, the officer, absent a determination of physical inability, is not required to offer the driver an additional test.' " Id. (citing Smith v. Comm'r of Pub. Safety, 401 N.W.2d 414, 416 (Minn.App.1987), review denied (Minn. Apr. 29, 1987)). Therefore, Deputy Sturm was not required to provide appellant with an alternative test after appellant was deemed to have refused the breath test.
My rant… er, comments: From a defendant’s perspective, prepared to get *&$#@ed at the DMV. Because the civil standard provides so little Constitutional protection, as long as the administrative law judge crafts the findings of fact to support their conclusion, there is often little even a very skilled DUI lawyer can do to stave off the refusal suspension.
DMV Hearings - Claims that they are rigged in California
In a post today, Lawrence Taylor of duiblog.com made the assertion that DMV hearings in California May be rigged. The basics are that the head hearing officer issued a scathing memo berating judges for bad decisions allowing people to keep their licenses.
The judges or hearing officers who listen to these cases are supposed to be neutral. It is a basic premise of due process. Typically, administrative law judges decisions are reviewable by an appeals court, not the supervisor in the office.
The memo quoted in Mr. Taylor's post makes it sound like the lower ALJ's jobs may be in danger if the boss doesn't agree with their rulings. However, there is no hint that the boss would be reviewing cases where the ALJ suspended the driver's license, only those where no suspension was issued.
The conclusion to be drawn, if the memo is authentic, is that any ALJ in that office that wants to keep his or her job secure would be best served by issuing suspensions, since non-suspensions would be reviewed.
If this is true it is a shameful slap in the face of lawyers and judges who work hard to maintain our justice system, along with due process. No matter which side you are aligned with in the great drunk driving divide, nobody with any legal training who cares about our system could, with clear conscience, condone this memo.
