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Reasonable suspicion standard upheld in breath test case

A Minnesota man’s driver’s license remains suspended after a precedential Minnesota Court of Appeals decision. On Dec. 27, 2021, the Court of Appeals confirmed that an officer may request that a driver submit to a preliminary breath test (PBT) provided that the officer has reasonable suspicion that the driver was driving while impaired.

Robert Mesenburg was driving over the speed limit in November 2020 and was stopped by a Minnesota state trooper. When approaching the vehicle and interacting with Mesenburg, the trooper claimed that he detected the smell of alcohol from the driver. Additionally, Mesenburg’s eyes were allegedly watery, glassy, and bloodshot. The trooper asked Mesenburg whether he had been drinking alcohol, to which he replied that he had not. Subsequently, Mesenburg was asked to perform various field sobriety tests. Those tests revealed that Mesenburg was impaired.

The trooper then asked Mesenburg take a PBT, which the driver refused. Surmising that Mesenburg refused the test to obscure the fact that he was actually intoxicated, the trooper arrested Mesenburg. His driver’s license was revoked under Minn. Stat. § 169A.52, subd. 3 (2020). Mesenburg was charged with gross misdemeanor refusal to submit to a chemical test and misdemeanor third-degree DWI.

But the district court found much of what the trooper said about Mesenburg to not be credible. The trooper’s testimony about the bloodshot and watery eyes, and slurred speech, were not given weight. Additionally, the district court also found that there was a problem with the evidence from the field sobriety tests. Of the three tests administered, Mesenburg completed two of them perfectly or nearly perfectly. The other was administered improperly and yielded inconclusive results.

Nevertheless, the court concluded that the trooper had reason to believe Mesenburg was impaired for three reasons:

  • Mesenburg was speeding.
  • The officer smelled alcohol.
  • Mesenburg denied drinking.

This case turned on whether the U.S. Supreme Court’s decision in Birchfield v. North Dakota (2016) compelled reversal of the Minnesota case State, Dep’t of Pub. Safety v. Juncewski (1981). Under Juncewski, an officer need only have a reasonable, articulable suspicion — rather than probable cause — to request a PBT.

Mesenburg avowed that Birchfield should control, arguing that in the ruling the court held that a PBT is a search implicating the Fourth Amendment, meaning that PBT requests must be premised on a warrant supported by probable cause or else exception to the warrant requirement.

Ultimately, the court denied that Birchfield compelled reversal of Juncewski. “Nothing in Birchfield causes us to doubt our supreme court’s decision in Juncewski,” the court wrote. The holding of that case, this court declared citing Birchfield, was that “a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.”

Then, the court distinguished between, on the one hand, a chemical breath test, and, on the other, a preliminary screening test. The court declared that the purpose of the PBT was to determine whether an arrest should even be made, in incidents where an officer is unable to determine whether the driver is impaired. Refusal to submit to a PBT cannot be used to establish any element of a crime, and the refusal itself is not a crime.

The court, holding that the purposes of PBT and chemical breath tests serve distinct purposes and result in different consequences when not observed, provided evidence that PBTs and chemical breath tests are sufficiently distinct. Hence, Birchfield would not apply in this case.

No matter which standard was applied, Charles Ramsay, Mesenburg’s attorney maintained that the district court erred.

“Not only was there not probable cause to administer the preliminary breath test,” said Ramsay, “but under the very unique facts of this case there was not reasonable articulable suspicion to expand the scope of the stop to include the preliminary breath test.”

The court also agreed with the district court that the officer’s suspicion of impairment may have been diminished by his successful completion of the field sobriety tests, but stopped short of finding that the officer’s suspicion should have been completely removed. Mesenburg did not provide case law showing that excelling at field sobriety tests undermines an officer’s reasonable suspicion for believing an individual is intoxicated. Contrarily, the court cited case law supporting the opposite — that just because an individual excels at dexterity tests does not raise a reasonable doubt of guilt.

Ramsay argued that, looking to the totality of the circumstances, it did not support probable cause or reasonable articulable suspicion. First, Mesenburg was going just 12 miles over the speed limit in an area whether the speed limit was transitioning from 30 miles per hour to 40 miles per hour. Second, Ramsay presented himself to the officer in a way that would not typically be the case if a driver was intoxicated — complete coherence other than saying he lived by a “fire hydrant” but then quickly correcting himself and saying “fire station.” “We would have to ignore all the facts that Mr. Mesenburg was not impaired,” Ramsay said.

Citing jury instructions on the matter, Ramsay said, “It is not a crime to drink alcohol and then drive. The prohibition is against drinking so much alcohol that it impairs their ability to drive safely.” While Ramsay conceded that the district court found the officer’s testimony that there was a smell of alcohol to be credible, he maintained it was not evidence of impairment.

Assistant Attorney General William Young was asked which of the three facts was indicative of impairment. He argued that it was the strong smell of alcohol to the officer — combined with Mesenburg’s denial that he had been drinking — that provided the reasonable articulable suspicion of impairment.

“There is nothing illegal about consuming alcohol,” said Young, “but the fact that he’s denying despite the obvious strong odor — that should raise the radar of a typical law enforcement officer in which they should investigate further.”


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