State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1641

State of Minnesota,
Respondent,

vs.

Roger Leroy Cloud,
Appellant.

Filed August 14, 2017
Affirmed
Kirk, Judge

Pennington County District Court
File No. 57-CR-15-915

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Alan G. Rogalla, Pennington County Attorney, Thief River Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Worke, Judge; and Smith, John,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges his conviction for second -degree test refusal . Because
reasonable and sufficient evidence supports the district court’s finding and conclusion that

2
appellant was placed under arrest for driving while impaired (DWI) prior to law
enforcement requesting chemical testing, we affirm.
FACTS
On November 5, 2015, an off-duty county sheriff reported a truck in a ditch off the
highway. The sheriff stopped to help and saw appellant Roger Leroy Cloud exit the
driver’s side door of the truck. The sheriff spoke to appellant and believed that he appeared
intoxicated or under the inf luence of alcohol due to the odor of alcohol coming from him
and his poor balance. The sheriff left the scene and did not know if appellant returned to
the driver’s seat of the truck. After leaving the scene, the sheriff saw the truck’s brake
lights come on, and it appeared that someone was trying to rock the truck out of the ditch.
The sheriff watched from a distance while directing law enforcement to the scene and
noticed later that there were two individuals in the truck. A n on-duty law enforcement
officer, who ultimately arrested appellant, responded.
The arresting officer observed appellant in the driver’s seat of the truck with the
engine running and a passenger in the other seat. The officer believed that appellant was
highly intoxicated and un der the influence of alcohol. In speaking with the officer,
appellant admitted that he was drunk and that he had been driving.1 The officer removed
appellant from the truck and placed him in the squad car. Due to inclement weather, t he
officer did not conduct field sobriety testing or a preliminary screening test (PBT) on
appellant at the scene.

1 Appellant’s driver’s license was canceled inimical to public safet y at the time, a fact
which is not disputed.

3
Appellant was placed under arrest for driving after cancellation (DAC) and DWI.
The arresting officer transported appellant to the law enforcement cente r for preliminary
testing, where appellant refused to perform field sobriety testing. The officer read appellant
the Minnesota implied-consent advisory, and appellant refused to take a chemical breath
test. Appellant was charged with and convicted of second -degree test refusal in violation
of Minn. Stat. § 169A.20, subd. 2 (2014). This appeal follows.
D E C I S I O N
Appellant asks this court to reverse his conviction for second-degree test refusal and
argues that: (1) the arresting officer lacked probable cause to arrest him for DAC, and (2) he
was never lawfully placed under arrest for DWI by the officer. On appeal, appellant does
not claim that the arresting officer lacked probable cause to arrest him for DWI. 2 Rather,
appellant contends that he was only placed under arrest for DAC (unlawfully), and that the
state failed to prove beyond a reasonable doubt that the officer also placed him under arrest
for DWI, which was required before law enforcement could request chemical testing under
Minn. Stat. § 169A.51 (2014), Minnesota’s implied-consent law.

2 At the district court, appellant argued that the arresting officer failed to conduct field
sobriety testing or to request a preliminary breath test at the scene (although he had reason
to do so) and that the officer did not have probable cause to arrest him for DWI. The district
court thoroughly considered and rejected this claim in its May 4, 2016 omnibus order and
again at appellant’s court trial. Appellant did not raise the issue on appeal.

4
It is a crime in Minnesota “to refuse to submit to a chemical test of . . . blood, breath,
or urine under section 169A.51 (chemical tests for intoxication).”3 Minn. Stat. § 169A.20,
subd. 2. A chemical test may be required when an officer has “probable cause to believe
[a] person was driving, operating, or in physical control of a motor vehicle” while impaired
in violation of Minn. Stat. § 169A.20 (2014), and one of th e statutory enumerated
conditions exist. Minn. Stat. § 169A.51, subd. 1(b). Here, the only condition presented
was that appellant was lawfully placed under arrest for DWI. Id. at subd. 1(b)(1).
Appellant was n ot charged with DAC , but was charged with second-degree test
refusal. And the district court never ruled that appellant was arrested for DAC or that there
was probable cause to arrest him for DAC , nor was the court required to do so . The only
element of test refusal that appellant challenges on appeal is that the state failed to prove
beyond a reasonable doubt that he was lawfully placed under arrest for DWI.
“On appeal, this court will accept the district court ’s findings of fact unless those
findings are clearly erroneous . Findings of fact are not clearly erroneous if there is
reasonable evidence to support them.” State v. Colvin, 645 N.W.2d 449, 453 (Minn. 2002)
(citations omitted). In considering the sufficiency of the evidence for a criminal conviction,
the reviewing court will not disturb the verdict if the court, acting with due regard for the
presumption of innocence and the requirement of proof beyond a reasonable doubt, could

3 Minn. Stat. § 169A.51, subd. 1(a) (2014) provides that, “Any person who drives, operates,
or is in physical control of a motor vehicle within this state . . . consents, subject to the
provisions of” the implied-consent law and DWI statute, “to a chemical test of that person’s
blood, breath, or urine for the purpose of determ ining the presence of alcohol . . . at the
direction of a peace officer.”

5
reasonably conclude that the defendant was guilty of the charged offense. State v. Palmer,
803 N.W.2d 727, 733 (Minn. 2011).
The transcripts from the omnibus hearing and court trial show some inconsistency
in the arresting officer’s testimony about why he arrested appellant. At the omnibus
hearing, the officer testified that he placed appellant under arrest for DAC. However, the
officer also testified that he developed probable cause to arrest appellant for DWI because
he smelled strongly of alcohol, had watery eyes, could not communicate clearly or maintain
his train of thought, and had slurred speech and poor balance. The officer further testified
that he read appellant the implied -consent advisory and followed the implied -consent
procedure with appellant, as he does “[f]or a driving issue such as DWI . . . .” In its May
4, 2016 order issued following the hearing, the district court concluded, in connection with
appellant’s DWI arrest, that the arresting officer “had probable cause to believe that [ he]
was operating a motor vehicle while under the infl uence of alcohol,” and that the officer
lawfully arrested appellant for DWI.
At the court trial, the arresting officer testified that he transported appellant to the
law enforcement center to process him for DWI d ue to his level of intoxication, and to
place him under arrest for DAC. The officer said that he generated an implied-consent
certificate for appellant and that one is generated in every DWI case. The officer described
it as “a written record of what I read to [appellant] or any DWI su spect . . . .” He also
acknowledged that in his squad video he may have said he was arresting appellant for DWI.
In the squad video, the arresting officer is heard asking appellant, “Do you
understand how intoxicated you are?” After placing appellant in his squad car, the officer

6
returns to the passenger still in the truck and tells him that appellant is “going to jail for
DWI.” The arresting officer was questioned at trial about the discrepancy in his statements.
After additional questioning, he affirmed that he placed appellant under arrest for both
DAC and DWI.
Q. Deputy . . . you stated that you arrested [appellant] at the
scene for the driving after cancelation inimical to public safety
and you also arrested him for suspicion of DWI at that time?
A. Correct.

The district court specifically a cknowledged and a ddressed the discrepancy in the
arresting officer’s testimony at the conclusion of the trial, but nonetheless found and
concluded that appellant was lawfully placed under arrest for DWI, as required to convict
appellant of second-degree test refusal. Minn. Stat. §§ 169A.20, subd. 2, 169A.51, subd.
1(a), (b)(1). Based on our review of the record, there was reasonable support for the district
court’s determination, and it was not clearly erroneous. There was sufficient evidence in
the record for t he district court to reasonably conclude, beyond a reasonable doubt, that
appellant was lawfully placed under arrest for DWI in order to convict appellant of second-
degree test refusal.
Affirmed.