Kari A. Patnode, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1074

Kari A. Patnode, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed April 1, 2019
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CV-17-19383

Peter J. Timmons, Mendota Heights, Minnesota (for appellant)

Keith Ellison, Attorney General, William Young, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Rodenberg, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this appeal from the district court’s order sustaining revocation of appellant’s
driving privileges, appellant argues that she was not properly advised of her rights under
the implied-consent statute. We affirm.

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FACTS
Appellant Kari A. Patnode was placed under arrest in November 2017 for impaired
driving and was transported to the Hennepin County jail. At the jail, the arresting police
officer informed appellant that she was under arrest fo r a suspected violation of the
impaired-driving laws and read her the breath-test advisory as it appeared on the e-charging
website.1 The officer told appellant that refusal to take a test was a crime and advised her
of her right to contact an attorney. Appellant stated that she understood the advisory and
did not want to consult with an attorney. Appellant agreed to submit to a breath test, which
revealed an alcohol concentration above the legal limit. Appellant’s driving privileges
were revoked as a result of the breath test. Appellant challenged the revocation of her
driving privileges under Minnesota’s implied -consent law, argui ng that the breath -test
advisory did not comply with the statutory requirements of Minnesota law. The district
court rejected appellant’s argument and sustained the revocation of her driving privileges.
This appeal follows.
D E C I S I O N
Appellant chal lenges the district court’s order sustaining the revocation of her
driver’s license on the ground that the breath -test advisory did not comport with the
requirements of the implied -consent statute. We review questions of statutory
interpretation de novo. Gray v. Comm’r of Pub. Safety, 918 N.W.2d 220, 223 (Minn. App.
2018). Whether an advisory violates a driver’s due-process rights also presents a question

1 The implied -consent advisory is now called a “breath test advisory.” Minn. Stat.
§ 169A.51, subd. 2 (2018).

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of law that we review de novo. Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 344
(Minn. 2005).
Anyone who drives a motor vehicle in the State of Minnesota consents to a chemical
test of that person’s breath for the purpose of determining the presence of alcohol when
certain conditions are met. Minn. Stat. § 169A.51, subd. 1(a) (2018); State v. Brooks, 838
N.W.2d 563, 569 (Minn. 2013). The breath-test advisory provides that:
At the time a breath test is requested, the person must be
informed:
(1) that Minnesota law requires the person to take a test:
(i) to determine if the person is under the influence of alcohol;
and
(ii) if the motor vehicle was a commercial motor vehicle, to
determine the presence of alcohol;
(2) that refusal to submit to a breath test is a crime; and
(3) that the person has the right to consult with an attorney, but
that this right is limited to the extent that it cannot unreasonably
delay administration of the test.
Minn. Stat. § 169A.51, subd. 2. At a judicial review hearing of a license revocation , the
court may consider whether the police officer, a t the ti me of the request for the test,
“inform[ed] the person of the person ’s rights and the consequences of taking or refusing
the test as required by section 169A.51, subdivision 2.” Minn. Stat. § 169A.53 , subd.
3(b)(6) (2018).
Appellant argues that the breath-test advisory she received violated her due process
rights because the police officer read an improper advisory. The police officer advised
appellant that he was testing for the “presence of alcohol,” rather than to determine whether

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she was “under the influence of alcohol.” The breath-test advisory requires a police officer
to inform a driver that the officer is testing to see if “the person is under the influence of
alcohol” and, if the person is driving a commercial motor vehicle, to “determine the
presence of alcohol.” Minn. Stat. § 169A.51, subd. 2(1)(i)-(ii). Appellant was not driving
a commercial motor vehicle when she was arrested for impaired driving.
“[D]ue process does not permit those who are perceived to speak for the state to
mislead individuals as to eithe r their legal obligations or the penalties they might face
should they fail to satisfy those obligations.” McDonnell v. Comm ’r of Pub. Safety, 473
N.W.2d 848, 854 (Minn. 1991). As such, “[u]niformity in giving the implied consent
advisory is highly encouraged,” and caselaw recommends that “police officers read the
exact words of the statute in order to avoid any possibility of confusion or imp roper
deviation from the statute.” Hallock v. Comm’r of Pub. Safety, 372 N.W.2d 82, 83 (Minn.
App. 1985). Nevertheless, we will affirm a license revocation if the officer’s deviation
from the statutory language does not contain “an incorrect statement of the Minnesota law”
and is not “so confusing as to render the advisory illegal.” Id. (finding no prejudice where
officer added an extra statement to advisory) (citing Holtz v. Comm’r of Pub. Safety, 340
N.W.2d 363, 365 -66 (Minn. App. 1983) (“While the pre ferred practice would be to read
the form in its entirety, failure to [read the form in full] . . . did not violate appellant’s
statutory rights.”)).
Here, appellant does not contend that she was confused or otherwise misled by
referring to testing for the presence of alcohol. And “[d]ue process does not require that
the advisory explain every potentially unclear application of the law.” Catlin v. Comm’r

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of Pub. Safety, 490 N.W.2d 445, 447 (Minn. App. 1992). Here, the officer read the breath-
test advisor y to appellant as it appeared on the e -charging website and the breath -test-
advisory form. The officer informed appellant that Minnesota law required her to take a
test to determine the presence of alcohol, that refusal to take a test is a crime, and that she
had the right to consult an attorney before testing. The police officer’s instructions did not
confuse or mislead the driver, did not misstate the law or misrepres ent her rights and
obligations.
For these reasons, w e conclude that the police office r did not provide an incorrect
statement of the law to appellant or impart information so confusing as to render the
advisory illegal. Under the breath -test advisory, an officer must inform a driver that
Minnesota law requires the person to take a test, t hat refusal to submit to a breath test is a
crime, and that the person has the right to consult with an attorney. Minn. Stat. § 169A.51,
subd. 2. The record reflects that the officer informed appellant of each of these rights and
consequences. As such, the district court did not err in determining that the advisory read
to appellant complied with the statute.
Appellant also argues that the officer misstated the law by advising her that “refusal
to take a test” is a crime under Minnesota law, without spec ifying that he meant a breath
test, as opposed to any test. This argument is not persuasive. The officer only offered
appellant the option of taking a breath test, and his statement that “refusal to take a test”
was accurate, given the context of the instructions as a whole.

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In sum, because the officer accurately informed the driver of her rights and the legal
consequences of refusing to submit to a breath test, she is not entitled to rescission of her
driver’s license revocation.
Affirmed.