Eduardo Rubio-Galarza, petitioner, Appellant,

This opinion will be unpublished and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
A17-0159

Eduardo Rubio-Galarza, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed November 27, 2017
Affirmed
Smith, Tracy M., Judge

Scott County District Court
File No. 70-CV-16-16153

Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)

Lori Swanson, Attorney General, Saraswati Singh, Assistant Attorney General, Cory Beth
Monnens, Assistant Attorney General, St. Paul, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Jesson, Judge; and
Smith, John, Judge.

U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Eduardo Rubio-Galarza challenges the district court’s order sustaining
the revocation of his driver’s license, arguing that he did not refuse to submit to chemical

 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

2
testing. Because Rubio-Galarza’s uncoopera tive conduct frustrated the implied consent
process, the court did not clearly err in finding that his behavior constituted a refusal. We
affirm.
FACTS
On August 14, 2016, Prior Lake Police Officer Benjamin Erickson arrested Rubio-
Galarza for driving while impaired. He also issued a citation to Rubio-Galarza’s girlfriend,
a passenger in the car, for underage consumpti on. The officer brou ght Rubio-Galarza to
the police station. According to the officer, Rubio-Galarza was “very agitated” that his
girlfriend had been cited for an offense and continued to question the officer as to why she
was being charged.
The officer read aloud the Minnesota Motor Vehicle Implied Consent Advisory, and
Rubio-Galarza said he understood it. The officer then repe atedly asked Rubio-Galarza if
he would submit to a breath test. The officer described Rubio-Galarza as “uncooperative”
during this sequence of questioni ng because he would “try[] to talk over” the officer and
did not provide a straight yes-or-no answer to the officer’s repeated question of whether he
would submit to a test. At one point, Rubio-Galarza said, “[ Y]es,” he would submit to a
breath test, “if” the officer e xplained why his girlfriend was be ing charged. In total, the
officer asked Rubio-Galarza whether he would take a breath test approximately 11 times.
The officer explained that he deemed Ru bio-Galarza’s behavior to be a refusal
“[b]ecause he would not give me a straight answer. I tried to offer him the breath test
multiple times, asking him if he would take it, and he repeatedly de layed.” The officer
agreed that Rubio-Galarza never “specifically sa[id] no, I will not take it.” When the

3
officer eventually asked Rubio-Galarza why he was “refusing,” Rubio-Galarza answered,
“I don’t have a reason, I just want you to answ er me a question. I just want to know why
my girlfriend got a ticket.”
The officer never initiated the process to st art the breath-test machine, nor did he
present Rubio-Galarza with the mouthpiece to blow into the machine. About 15 minutes
into the exchange with Rubio-Galarza, the officer handed him a notice and order of license
revocation. Upon receiving the order, Rubio-Galarza asserted that he had never refused to
take the test.
Rubio-Galarza sought review of the revo cation of his driving privileges, and an
implied-consent hearing was held. The issu e at the hearing was limited to whether he
refused testing. The district court found that Rubio-Gala rza refused and sustained the
revocation of his license.
Rubio-Galarza appeals.
D E C I S I O N
If a law-enforcement officer has “probable cause to believe [a] person was driving,
operating, or in physical control of a motor vehicle” while impaired, the officer may request
that the driver submit to a chemical test of the person’s blood, breath, or urine. Minn. Stat.
§ 169A.51, subd. 1(a)-(b) (2016). If a driver refu ses to permit a test, “a test must not be
given,” Minn. Stat. § 169A.52, subd. 1 (2016), but the commissioner of public safety will
revoke the person’s driver’s license for one year or more. Id. at subd. 3(a).
Rubio-Galarza argues that the district court erred by finding that he refused to take
a breath test. Whether a driver has refused to submit to chemical testing presents a question

4
of fact, which we review for clear error. Stevens v. Comm’r of Pub. Safety , 850 N.W.2d
717, 722 (Minn. App. 2014). “[R]efusal to submit to chemical testing includes any
indication of actual unwillingness to participate in the testing process, as determined from
the driver’s words and actions in light of the totality of the circumstances.” State v. Ferrier,
792 N.W.2d 98, 102 (Minn. App. 2010), review denied (Minn. Mar. 15, 2011). Thus,
circumstantial evidence can es tablish unwillingness to take a test even without a direct
statement of unwillingness. Id. at 101. If a driver commits actions that frustrate the test,
the driver is considered to have refused testing. Busch v. Comm’r of Pub. Safety , 614
N.W.2d 256, 259-60 (Minn. App. 2000).
The district court found that Rubio-Gala rza refused testing “when he would not
answer whether or not he would take a test af ter being asked eleven times.” The district
court also pointed to the fact that, during their exchange, Rubio-Galarza did not dispute the
officer’s assertion that he was “refusing” the breath test. Instead, when asked why he was
refusing, Rubio-Galarza responded, “I don’t have a reason, I just want you to answer me a
question. I just want to know why my girlfriend got a ticket.”
Rubio-Galarza argues that he did not refuse , but rather at most withheld consent,
and, he asserts, withholding consent is different from refusing under our decision in State
v. Netland. 742 N.W.2d 207, 214 (Minn. App. 2007), aff’d in part, rev’d in part on other
grounds, 762 N.W.2d 202 (Minn. 2009). We do not read Netland, which examined the
constitutionality of Minnesota’s criminal-refusal statute, as altering the standard for
determining whether a driver refused to submit to testing. The appropriate inquiry remains
whether, under the totality of the circumstan ces, a driver refused testing by words or

5
actions. Ferrier, 792 N.W.2d at 102. Even the words “I withhold consent” in response to
a request to submit to testing may be ev idence of refusal under the totality-of-the-
circumstances test.
Rubio-Galarza further argues, though, that the totality of the circumstances does not
demonstrate refusal because he did not say, “No,” and he was not physically given the
opportunity to blow into the machine. He contends that “the only way a law enforcement
officer can know if a person is refusing when they have not specifica lly stated so is by
starting the test sequence, presenting the mout h piece to the test s ubject and giving them
the opportunity to provide an acceptable sample within the three-minute window permitted
by the testing machine.” We disagree. Refu sal may be determined by words and actions
before the machine is started. See, e.g., State v. Collins, 655 N.W.2d 652, 658 (Minn. App.
2003) (upholding refusal when driver was unc ooperative during the advisory reading),
review denied (Minn. Mar. 26, 2003).
Sufficient evidence supports the district court’s finding that Rubio-Galarza refused
to submit to testing. The officer read Rubio-Galarza the implied-consent advisory,
including the portion stating that an unreas onable delay or refusal to make a decision
amounts to a refusal of the test, and Rubio-Ga larza indicated that he understood what the
officer explained. When the officer asked R ubio-Galarza if he would submit to a breath
test, Rubio-Galarza would not pr ovide “straight answers.” Instead, “trying to talk over”
the officer, he continued to ask about his gi rlfriend. The only “yes” answer that Rubio-
Galarza ever gave was conditio ned on his receiving satisfact ory answers as to why his

6
girlfriend was cited. Rubio-Galarza refused to give an unconditional “yes” answer despite
being asked approximately 11 times whether he would submit to testing.
“An officer is not required to wait for the driver to decide at his convenience whether
or not he will submit to testing.” Gabrick v. Comm’r of Pub. Safety , 393 N.W.2d 23, 25
(Minn. App. 1986). “A reasonably prompt decision whether the driver will take the test is
in keeping with the purpose of the statute to protec t the public from the hazards of
intoxicated drivers.” Id. Here, the officer was not require d to wait for R ubio-Galarza to
make a decision at his conven ience on whether to submit to testing, nor was the officer
required to answer Rubio-Galarza’s questi ons about his girlfriend’s citation before
determining Rubio-Galarza’s answer as to wh ether he would submit. By asking Rubio-
Galarza 11 times whether he would submit to testing, the officer gave him sufficient
opportunity to decide whether or not to participate in testing. Rubio-Galarza’s words and
actions demonstrated unwillingness to submit to testing, see Ferrier, 792 N.W.2d at 101,
and frustrated the testing process, see Busch, 614 N.W.2d at 259-60. The district court did
not clearly err in finding that Rubio-Galarza refused to submit to chemical testing.
Affirmed.