Nicholas Bruce Morse v. Commissioner of Public Safety

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0866

Nicholas Bruce Morse, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent

Filed May 11, 2015
Affirmed; motion denied
Ross, Judge

St. Louis County District Court
File No. 69DU-CV-12-3006

Samantha J. Schmidt, Bruno Law, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Jacob Fischmann, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Kirk, Presiding Judge; Ross, Judge; and Reilly, Judge.

UNPUBLISHED OPINION

ROSS, Judge

State trooper Nicholas Morse drove his patrol car to a training session and arrived

apparently intoxicated. A superior officer administered field sobriety tests and arrested

Morse for drunk driving. The commissioner of public safety revoked Morse’s driver’s

license and the district court affirmed over Morse’s argument that his breath test results
should be suppressed because the state patrol did not comply with the drug-and-alcohol

workplace-testing statute. We need not decide whether chemical testing to verify a

suspected workplace violation under that statute is subject to judicial review in an

implied-consent proceeding. We instead affirm because, regardless of that issue, the

record establishes that Morse’s supervisor validly tested him to investigate his suspected

drunk driving under the criminal and administrative impaired-driving statute.

FACTS

Trooper Nicholas Morse was scheduled to begin a law enforcement training

session at 8:00 on a September 2012 morning in Duluth. Morse arrived in his squad car

about ten minutes late. Lieutenant Quint Stainbrook asked Morse for his portable radio so

it could be reprogrammed. Morse left the building and the lieutenant waited several

minutes for him to return. Lieutenant Stainbrook gave up waiting and went to the training

room, where another trooper reported to the lieutenant that he smelled alcoholic

beverages on Morse.

Morse finally returned and entered the training room at 8:30. He chose a seat on

the far side of the room away from the lieutenant and the other troopers. Lieutenant

Stainbrook motioned Morse closer and again asked for his portable radio. Morse said that

he had locked his keys in his squad car. The lieutenant smelled the odor of an alcoholic

beverage on Morse’s breath. He asked Morse for his squad car number so he could find

the correct spare key. Morse had trouble remembering the number.

Lieutenant Stainbrook told Morse to retake his seat and informed others about the

odor on his breath. Lieutenant Jason Hanson, Captain Steven Stromback, and Sergeant

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John Magaard called Morse out of the meeting at 9:20. Hanson immediately noticed the

odor and Morse’s bloodshot, watery eyes. These troopers took Morse to an office.

Captain Stromback and Lieutenant Hanson left Morse with Sergeant Magaard, a union

representative, to discuss union matters.

Meanwhile, Lieutenant Stainbrook found the spare key to Morse’s squad car and

went outside. He noticed that Morse had “parallel” parked the car irregularly, with the

closest front tire near the curb and the rear tire angled out about six feet away. When the

lieutenant opened the car door he found the radio playing and the ignition lights still on

because Morse had failed to turn the key to the off position. He also smelled the odor of

an alcoholic beverage inside the car.

Captain Stromback and Lieutenant Hanson returned to the office where they had

left Morse with Sergeant Magaard. Lieutenant Hanson activated an audio recorder, and

Captain Stromback read Morse a portion of the union contract concerning alcohol testing.

Morse submitted to a preliminary breath test, which revealed an alcohol concentration of

.099.

Morse asked Lieutenant Hanson about his job status, and the lieutenant told him

that “that would be determined at a later date,” and he added, “We [are] only going to . . .

deal with the current situation at hand today.” He took Morse outside to administer field

sobriety testing. He administered the horizontal-gaze-nystagmus test, walk-and-turn test,

and one-leg-stand test. Although Morse performed the two physical tests well, the

nystagmus test corroborated the suspicion that he was intoxicated. Lieutenant Hanson

arrested Morse for impaired driving and took him to the St. Louis County Jail. There he

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read Morse the implied-consent advisory and offered him the opportunity to speak with

an attorney before deciding whether to submit to a breath test. Morse asked to speak to an

attorney, made one phone call, and then said he would take the test. The breath test

indicated an alcohol concentration of .08, and the commissioner of public safety

consequently revoked Morse’s driver’s license.

Morse petitioned for judicial review. He challenged the revocation on the theory

that the preliminary and final breath tests could not be admitted in his implied-consent

proceeding because those tests did not comply with the procedures authorized in the

Minnesota Drug and Alcohol Testing in the Workplace Act, Minnesota Statutes sections

181.950 through 181.957. The district court rejected Morse’s argument and affirmed the

revocation, concluding that Morse’s challenge under the workplace-testing statute was

“outside the limited scope of an implied consent judicial proceeding.” Morse appeals his

revocation.

DECISION

Morse contends that the Minnesota State Patrol violated the workplace-testing

statute by conducting alcohol tests on Morse as its employee outside the authority

afforded to employers by that statute. The district court appears correct that a challenge

under the workplace-testing statute falls outside the ten enumerated issues eligible for

judicial review in an implied-consent hearing. See Minn. Stat. § 169A.53, subd. 3(b)

(2014); Axelberg v. Comm’r of Pub. Safety, 848 N.W.2d 206, 208–09 (Minn. 2014). But

we need not resolve that legal issue here. This is because, even if Morse were correct that

penalized drivers generally can raise the challenge in an implied-consent revocation

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proceeding, the challenge could not stand on the facts of this case because the alcohol

testing is authorized independently by the criminal and civil provisions allowing

chemical testing of suspected drunk drivers.

The legislature authorizes at least two chemical testing processes. One can occur

in the impaired-driving setting. Minn. Stat. § 169A.51 (2014). The other occurs in

specified employment settings. Minn. Stat. § 181.951 (2014). The two laws stand

independently. Each satisfies a different public policy and ends with a different result. As

for public policy, the workplace-testing statute promotes reliability and fairness to

employees when employers seek chemical testing. See Law Enforcement Labor Servs.,

Inc. v. Sherburne Cnty., 695 N.W.2d 630, 639–40 (Minn. App. 2005). By contrast, the

impaired-driving law promotes roadway safety. See Goldworthy v. State, Dep’t of Pub.

Safety, 268 N.W.2d 46, 49 (Minn. 1978). Regarding results, one of these statutes

establishes a process that may lead to workplace discipline (without regard to the

privilege to drive), while the other details a process that may lead to criminal penalties

and license revocation (without regard to employment).

Morse does not dispute that a person tested under the impaired-driving law is

subject to license revocation. He argues instead that, because he spoke to a union

representative and was read a portion of the union contract before testing, the test was

conducted for employment purposes. And because the test did not satisfy the formalities

of the workplace-testing statute, the result must be suppressed. We observe that Morse

points to nothing in the workplace-testing statute that directs courts to suppress evidence

collected in violation of that statute, and suppression is not a remedy identified in the law.

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See Minn. Stat. § 181.956 (2014). But again, we can reject Morse’s arguments based on

the facts regardless of any legal deficiencies. Morse’s cited facts do support his view that

the investigation had at least some flavor of a workplace inquiry. But they also plainly

indicate the investigation had a markedly criminal nature: a law enforcement officer

subjected Morse to the same field sobriety tests that officers regularly administer to

investigate suspected drunk driving; he told Morse that the status of his employment was

a different matter; he placed Morse under arrest for drunk driving after the field tests

established his intoxication; he took Morse to jail; he read Morse the implied-consent

advisory; he gave Morse the opportunity to contact an attorney; and he administered to

Morse the same final breath test that law enforcement officers routinely administer to

suspected drunk drivers. The testing process completed a criminal investigation under the

impaired-driving statute. That the arresting officer might be considered a supervisory

agent of Morse’s employer does not defeat the fact that he was also a policing agent of

the state. And Morse points us to nothing in either the impaired-driving statute or the

workplace-testing statute that hints any support for the idea that the two laws are

mutually exclusive. Perhaps if Morse were challenging a resulting employment

suspension or discharge, his arguments about the workplace-testing law might carry some

weight. But not here.

We add that Morse’s statutory argument has an absurd ending. As a matter of

public policy, the supreme court has concluded that the impaired-driving law must be

“liberally interpreted in favor of the public interest and against the private interests of the

drivers involved.” State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn.

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1981). Despite this safety concern, Morse would have us suppose that the legislature

intends the state’s impaired-driving law to penalize every conceivable drunk driver

operating any kind of motor vehicle except for drunk law enforcement officers operating

police cars. Preposterous.

Morse cannot save his unconvincing argument by his assertion that the troopers

should have called on some other policing agency to investigate his suspected impaired

driving to avoid triggering the workplace-testing statute. Again, even if the workplace-

testing statute was triggered, the impaired-driving statute was also triggered with no

apparent operational conflict between the two.

Morse’s addendum to his appeal brief includes the part of the state troopers’ union

contract that contains the drug-and-alcohol-testing policy. The commissioner has moved

to strike this document along with references to it in Morse’s brief. We depend only on

facts in the record, and parties do not effectively enhance the record by merely including

extraneous material in their appeal submissions. See Minn. R. Civ. App. P. 110.01 (“The

documents filed in the trial court, the exhibits, and the transcript of the proceedings, if

any, shall constitute the record on appeal in all cases.”). Although we have occasionally

entertained motions to strike noncomplying submissions, we more commonly simply

disregard attachments and references that are beyond the record. We therefore deny the

commissioner’s motion to strike but reiterate that we base our opinion only on the record.

Affirmed; motion denied.

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