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This opinion will be unpublished and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
A17-1486

State of Minnesota,
Respondent,

vs.

Jason Owen Nelson,
Appellant.

Filed September 17, 2018
Affirmed
Reyes, Judge

Kandiyohi County District Court
File No. 34-CR-17-222

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

Thomas M. Anderson, Willmar City Prosecutor, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Lydia Mar ia Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from his conviction of refusing to submit to a chemi cal test, appellant
argues that insufficient evidence supports the jury’s guilty verdict. We affirm.

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FACTS
In the early morning of March 10, 2017, a peace officer on routine patrol saw a car
idling at a gas-station parking lot, ran its license plate, and discovered that the license plate
was revoked, and the registered owner of the vehicle had a revo ked driver status. When
the driver came back to the car a n d d r o v e a w a y , t h e o f f i c e r f o llowed him and further
observed the vehicle’s broken t aillights and the driver swervin g within his lane of travel.
The officer initiated a traffic stop, approached the vehicle, a nd identified the driver as
appellant Jason Owen Nelson. The officer noticed that appellan t’s eyes were bloodshot
and watery and smelled the odor of an alcoholic beverage coming from appellant’s breath.
Appellant initially denied consuming alcohol but later stated that he had had two beers.
The officer asked appellant to step out of the vehicle, checke d appellant’s eyes for
horizontal-gaze nystagmus, and observed signs of impairment. The officer then conducted
a preliminary breath test (PBT) on appellant, who registered an alcohol concentration of
0.14. The officer arrested appellant for driving while impaired (DWI).
The officer took appellant to the police station and read the implied-consent
advisory to appellant at 4:22 a.m. When appellant indicated that he did not understand the
advisory, the officer read it again. The officer then asked whether appellant would like to
speak to an attorney before deci ding to take a breath test. Ap pellant said he wanted to
contact his own attorney, and the officer gave appellant’s phon e back. During the phone
call, appellant’s attorney asked the officer about appellant’s PBT result, but the officer
declined to provide it as a matter of standard practice. Appellant ended the call after a few
minutes, and the officer asked him whether he wanted to contact another attorney, to which

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appellant answered affirmatively. The officer provided appellant with several phonebooks,
but appellant made no attempt to contact an attorney. The officer advised him a few more
times to contact an attorney, but appellant did not do so. The officer ended appellant’s
phone time at about 4:45 a.m. and asked him if he would take th e breath test. According
to the officer, appellant stated that he “would not without his attorney present.” The officer
told appellant that he had to make the decision on his own, but appellant reiterated his prior
response. The officer told appellant that he would consider appellant’s response as refusing
the test and wrote, “[h]e wants his attorney, even though he already spoke to his attorney”
on the implied-consent advisory form as the reason for refusal.
Respondent State of Minnesota charged appellant with one count of refusing to
submit to chemical testing under Minn. Stat. § 169A.20, subd. 2 (2016), along with several
other counts. After the trial, the jury found appellant guilty of refusing to submit to
chemical testing, but acquitted him of the other charges. This appeal follows.
D E C I S I O N
Appellant argues that the evidence was insufficient to support the jury’s guilty
verdict because he was exercising his right to have a reasonable opportunity to obtain legal
advice rather than refusing the test, and therefore did not dem onstrate an “actual
unwillingness” to submit to a chemical test. We are not persuaded.
When considering a claim of insu fficient evidence, this court c onducts “a
painstaking analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction,” is sufficient to allow the jurors to reach a verdict
of guilty. State v. Ortega , 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We

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must assume that “the jury believed the state’s witnesses and disbelieved any evidence to
the contrary.” State v. Nelson , 812 N.W.2d 184, 187 (Minn. App. 2012) (quotation
omitted). “We will not disturb the verdict if the jury, acting with due regard for the
presumption of innocence and for the necessity of overcoming it by proof beyond a
reasonable doubt, could reasonabl y conclude that a defendant wa s proven guilty of the
offense charged.” Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
A police officer may require a person to take a chemical test u nder Minn. Stat.
§ 169A.51, subd. 1(b) (2016), if the officer has probable cause to believe that a person is
driving while impaired and that person has been lawfully placed under arrest for violation
of the DWI law.1 Under Minn. Stat. § 169A.20, subd. 2, “[i]t is a crime for an y person to
refuse to submit to a chemical test of the person’s . . . breat h . . . under section 169A.51.”
“[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) (emphasis added), review denied (Minn. Mar. 15, 2011). W hether a driver refused
to submit to chemical testing is a question of fact, which we r eview under the clearly
erroneous standard. Lynch v. Comm’r of Pub. Safety, 498 N.W.2d 37, 38-39 (Minn. App.
1993).

1 Appellant stipulated that he had been lawfully arrested for DWI two times in the past.

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Appellant told the officer that “he would not [take the test] w ithout his attorney
present.” Appellant’s statement is direct evidence indicating his refusal to take the test and
is sufficient evidence supporting the jury’s guilty verdict.2
Appellant argues that his statement is insufficient to support the jury’s guilty verdict
because his statement indicated that he was exercising his righ t to have a reasonable
opportunity to obtain legal advi ce, which includes having an at torney present during the
test. Appellant’s argument is unavailing. A driver has a stat e constitutional right, “upon
request, to a reasonable opportunity to obtain legal advice bef ore deciding whether to
submit to chemical testing.” Friedman v. Comm’r of Pub. Safety , 473 N.W.2d 828, 835
(Minn. 1991). However, such right is “limited” in DWI cases, and may be vindicated when
a police officer provides the driver with “a telephone and a re asonable amount of time to
contact and speak with an attorney.” Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307,
309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). In Sturgeon v. Comm’r. of
Pub. Safety, we held that this right does not include having counsel “present during the test
itself, even though counsel was already present at the station before the test was
administered and no delay would result,” as long as the driver is allowed to use a phone

2 Appellant contends that the ci rcumstantial-evidence standard s hould apply because he
“did not verbally refuse the test.” We disagree. Appellant’s response was a verbal refusal
and direct evidence. See Bernhardt, 684 N.W.2d at 477 n.11 (direct evidence is “evidence
that is based on personal knowledge or observation and that, if true, proves a fact without
inference or presumption.” ( quotation omitted)). As stated infra, because appellant’s
statement is sufficient evidence to support the jury’s guilty verdict, we decline to apply the
circumstantial-evidence standard. See State v. Salyers, 858 N.W.2d 156, 161 (Minn. 2015)
(declining to apply the circumstantial-evidence standard of review because direct evidence
sufficiently supported the guilty verdict).

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and have a private conversation with his attorney. 350 N.W.2d 487, 489 (Minn. App.
1984). Here, appellant spoke with an attorney over the phone, had access to a phone and
phonebooks, and was even given the opportunity to contact anoth er attorney. Therefore,
appellant’s right to have a reas onable opportunity to obtain le gal advice was vindicated,
and that right does not include having an attorney present during the test.
Appellant further challenges the vindication of his right to a reasonable opportunity
to obtain legal advice, arguing that he did not have a reasonable amount of time to contact
and speak with an attorney. However, “[a] reasonable time is not a fixed amount of time,
and it cannot be based on elapsed minutes alone.” Mell v. Comm’r. of Pub. Safety , 757
N.W.2d 702, 713 (Minn. App. 2008). In considering the reasonableness of the time given
to a driver to contact an attorney, we balance the driver’s eff ort to diligently exercise his
right to counsel within the given time and the officer’s effort in vindicating the right to
counsel. Id. (quotation omitted). In Mell, we held that the three minutes the appellant was
given was a reasonable amount of time because he did not make a n effort to contact an
attorney, walked away from the phone, and nodded when asked whether he was done. Id.
Appellant here was given approximately 25 minutes, during which he actually spoke with
an attorney and was given the opportunity to contact another at torney. On balance,
appellant had a reasonable amount of time.
Finally, appellant argues that he did not have a reasonable opp ortunity to obtain
legal advice because the officer refused to provide the attorne y with appellant’s PBT
results. Hartung v. Comm’r. of Pub. Safety clearly provides that the right to counsel is not
violated when an officer refuses t o provide the exact PBT resul t, as long as the driver’s

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limited right to counsel is vindicated, as it was here. 634 N.W.2d 735, 738-39 (Minn. App.
2001), review denied (Minn. Dec. 11, 2001).
Because appellant did not have a right to have his attorney pre sent during the test,
and because his right to have a reasonable opportunity to obtai n legal advice was fully
vindicated, his verbal refusal to submit to the test without hi s attorney present was
sufficient to allow the jurors to find that he refused to submit to chemical testing and reach
the guilty verdict.
Affirmed.