State of Minnesota, Respondent,

This opinion will be unpublished and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
A19-0021

State of Minnesota,
Respondent,

vs.

Timothy James Atkins,
Appellant.

Filed November 18, 2019
Affirmed
Smith, John, Judge*

Redwood County District Court
File No. 64-CR-18-127

Keith Ellison, Minnesota Attorney General, St. Paul, Minnesota; and

Jenna M. Peterson, Redwood County Attorney, Shannon Ness, Assistant County Attorney,
Redwood Falls, Minnesota (for respondent)

Barry Hogan, Minneapolis, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Cochran, Judge; and Smith,
John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We affirm appellant’s conviction for third -degree DWI (test refusal) because the
district court did not err by denying his motion to suppress evidence and dismiss the
charges.
FACTS
On the night of February 10, 2018, around 11 p.m., appellant Timothy James Atkins
was pulled over by an officer from the Lower Sioux Tribal Police Department. The officer
had observed Atkins’s vehicle driving 30-35 mph in a zone with a posted speed limit of 55
mph. He had also observed the vehicle cross the fog line, hitting the gravel shoulder of the
road, and later cross the center line of the road. The officer approached Atkins’s vehicle
after pulling him over . Atkins, who was seated in the driver’s seat, struggled to open his
window, apparently “fumbling” with the window switches. Af ter waiting approximately
eight seconds, the officer opened the door to the vehicle. As he asked Atkins questions, the
officer detected a strong odor of alcohol. After noting that Atkins’s eyes were bloodshot
and watery, that his speech was slurred, and that his movements were lethargic, the officer
arrested him for DWI.
Atkins was brought to the Redwood County Law Enforcement Center and placed in
a holding cell. Shortly before midnight, a district court judge signed a search warrant
authorizing law enforcement to procure a blood sample from Atkins to determine his blood
alcohol concentration. Notably, it did not authorize a urine test. The arresting officer then

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notified Atkins that he had a warrant and explained it to him. He also told Atkins “that
refusal would be a crime.” Atkins was given a copy of the warrant.
Atkins was taken from the holding cell and brought to a different room in order to
conduct a blood draw. A Minnesota State Patrol Trooper came to conduct the blood draw
and told Atkins that he is a phlebotomist. The trooper testified that he trained as a
phlebotomist through a program at Dakota Technical College, and that he had received his
completion certificate for the program in January 2017 and was recertified in 2018. The
trooper attempted to draw blood from Atkins, but stopped after noticing that Atkins’s arm
was tensed. Because he had been trained not to force a blood test from a tensed arm, the
trooper instructed Atkins to relax his arm multiple times. When the trooper again attempted
to draw blood, Atkins declined to participate. The trooper then asked Atkins to take a urine
test, and Atkins declined. At no point was Atkins allowed to speak with an attorney before
the attempts to perform a blood draw or offer to take a urine test.
Redwood County charged Atkins with one count of third -degree DWI in violation
of Minn. Stat. § 169A.20, subd. 2(2) (Supp. 2017), and one count of fourth-degree DWI in
violation of Minn. Stat. § 169A.20, subd. 1(1) (2016). Atkins moved to suppress evidence
and have the charges dismissed. The district court held a contested omnibus hearing and ,
on May 2 3, 2018, issued an order denying Atkins’s motions. The parties then agreed to
submit the case to the district court in a stipulated-facts trial pursuant to Minn. R. Crim. P.
26.01, subd. 4. Atkins stipulated to the prosecution’s evidence and the parties agreed that
the May 23 order denying Atkins’s motions was dispositive of the case. Minn. R. Crim. P.
26.01, subd. 4(a), (e). The district court dismissed the fourth-degree DWI charge pursuant

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to a motion by the state, and found Atkins guilty beyond a reasonable doubt of third-degree
DWI (test refusal). This appeal follows.
D E C I S I O N
Atkins appeals the district court’s denial of his motions to suppress evidence and
dismiss the charges against him. “When reviewing a district court’s pretrial order on a
motion to suppress evidence, we review the district court’s factual findings under a clearly
erroneous standard and the district court’s legal determinations de novo.” State v. Ortega,
770 N.W.2d 145, 149 (Minn. 2009) (quotation omitted). “Following a stipulated-evidence
trial, this court’s review is further limited to the pretrial order t hat denied [appellant’s]
motion to suppress.” State v. Marsh, 931 N.W.2d 825, 829 (Minn. App. 2019) (quotation
omitted). In light of the procedural posture of this case, and because Atkins does not dispute
any of the underlying findings of fact, this appeal presents purely legal questions.
I. Reasonableness of the blood draw
Atkins first argues that his refusal to submit to a blood draw should be suppressed
because the methods for the proposed blood draw were unreasonable. He bases his
argument on Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826 (1966). In Schmerber,
the Supreme Court examined the constitutional protection provided by the Fourth, Fifth,
Sixth, and Fourteenth Amendments to a defendant whose blood was drawn over his
objection. 384 U.S. at 758-59, 86 S. Ct. at 1829-30.
The Supreme Court’s Fourth Amendment analysis in Schmerber is relevant to the
present case. It explained that in the context of “compelled intrusions into the body for
blood to be analyzed for alcohol content, the Fourth Ame ndment’s proper function is to

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constrain, not against all intrusions as such, but against intrusions which are not justified
in the circumstances, or which are made in an improper manner.” Id. at 768, 86 S. Ct. at
1834 (emphasis added). The Supreme Court t asked itself with determining “whether the
means and procedures employed in taking [the defendant’s] blood respected relevant
Fourth Amendment standards of reasonableness.” Id. As an initial matter, the Supreme
Court held that drawing blood for testing is a reasonable test to conduct. Id. at 771, 86 S.
Ct. at 1836. It then held that under the facts of that case , the test was performed in a
reasonable manner. Id. In support of its holding, the Supreme Court noted that the
defendant’s blood was drawn “by a ph ysician in a hospital environment according to
accepted medical practices.” Id. But it noted that it was
not presented with the serious questions which would arise if a
search involving use of a medical technique, even of the most
rudimentary sort, were ma de by other than medical personnel
or in other than a medical environment—for example, if it were
administered by police in the privacy of the stationhouse. To
tolerate searches under these conditions might be to invite an
unjustified element of personal risk of infection and pain.
Id. at 771-72, 86 S. Ct. at 1836.
Atkins argues that the facts of his case are very similar to the hypothetical described
by the Supreme Court and that as a result the proposed method of drawing his blood was
unreasonable and his refusal should be suppressed. We note that there are indeed some
similarities between the hypothetical postulated by the Supreme Court and the
circumstances here, given that the blood draw, if consented to by Atkins, would have been
administered by law enforcement in a jail. But the above -quoted language from the
Supreme Court that Atkins uses as the legal foundation for his argument is dicta because it

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was not the basis for the Supreme Court’s decision and describe d a hypothetical not at
issue. See Carlton v. State , 816 N.W.2d 590, 614 (Minn. 2012) (saying that a statement
was dicta “because the resolution of that question [was] not necessary to our ultimate
holding”). Atkins also does not cite to any cases applying or expanding this dicta, so
adopting his position would require us to break new legal ground in Minnesota.
We decline to do so because the facts of this case are meaningfully distinguishable
from the hypothetical described in Schmerber. The trooper who would have performed the
blood draw in this case was certified to draw blood, so this was not a random officer being
asked to take Atkins’s blood without any prior training or certification. Law enforcement
in Schmerber did not have a warrant, instead relying on exigent circumstances to justify
the blood draw, but there was a search warrant for a blood draw in this case. And most
importantly, no blood sample was obtained, unlike in Schmerber, where blood was drawn
despite the defendant’s objections. We conclude that Atkins’s first argument is unavailing.
II. Urine-test refusal
Atkins next argues that, as a matter of law, he cannot be convicted of test refusal
under Minn. Stat. § 169A.20, subd. 2(2), because the warrant did not authorize a urine test.
His argument relies on the reading of multiple st atutes and how they interact with one
another, so it involves statutory interpretation, which presents a question of law that is
reviewed de novo. State v. Riggs , 865 N.W.2d 679, 682 (Minn. 2015). The first step of
statutory interpretation is to determine whether the statutory language at issue is plain and
unambiguous. Id. “A statute is ambiguous when its language is subject to more than one

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reasonable interpretation.” Id. If a statute is unambiguous, then its plain meaning is applied.
State v. Pakhnyuk, 926 N.W.2d 914, 920 (Minn. 2019).
Atkins was convicted of test refusal under section 169A.20, subd. 2(2), which says,
“It is a crime for any person to refuse to submit to a chemical test: . . . (2) of the person’s
blood or urine as required by a search warrant under section 171.177 and 626.04 to 626.18.”
Atkins argues that section 171.177, subdivision 2 (2016), supports his position that, in order
to be convicted of test refusal, the warrant must authorize both blood and urine testing. But
the plain language of the statute does not require a search warrant for both a blood test and
a urine test. The statute only requires that when a search warrant authorizes a blood or urine
test, that an alternative test be offered to the person before it can be deemed a test refusal.
Minn. Stat. § 171.177, subd. 2. Because the alternative urine test was offered to Atkins
after he refused to give a blood test, the statute is satisfied here.
III. Limited right to counsel
Atkins next argues that the test-refusal charge should have been dismissed because
he was not given the opportunity to consult with an attorney before refusing testing. In his
brief, he acknowledged that , at the time of filing , this issue was being reviewed by the
Minnesota Supreme Court and that he was preserving the issue while that decision was
pending. After Atkins filed his brief, the supreme court released State v. Rosenbush, 931
N.W.2d 91 (Minn. 2019). It held “that the li mited right to counsel under the Minnesota
Constitution recognized in Friedman does not apply when a driver is presented with the
choice to submit —or not to submit —to a blood test pursuant to a search warrant.” Id. at

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99. Atkins was presented with the choi ce to submit, or not, to a blood test pursuant to a
search warrant, so under Rosenbush he had no limited right to counsel. His argument fails.
IV. Expansion of the scope of the stop
Finally, Atkins argues that the evidence against him should be suppressed bec ause
the arresting officer improperly expanded the scope of the stop when he opened Atkins’s
door. The Fourth Amendment to the United States Constitution and Article I, Section 10
of the Minnesota Constitution protect the “right of the people to be secure in their persons,
houses, papers, and effects” from “unreasonable searches and seizures.” U.S. Const.
amend. IV; Minn. Const. art. I, § 10. “The touchstone of the Fourth Amendment is
reasonableness.” United States v. Knights, 534 U.S. 112, 118, 122 S. Ct. 587, 591 (2001).
The Fourth Amendment is implicated when law enforcement stops a person driving
a motor vehicle. See State v. Anderson, 683 N.W.2d 818, 822-23 (Minn. 2004). Warrantless
searches are generally per se unreasonable. State v. Gauster, 752 N.W.2d 496, 502 (Minn.
2008). But an officer may “conduct a limited investigatory stop of a motorist if the state
can show that the officer had a ‘particularized and objective basis for suspecting the
particular person stopped of criminal activity.’” Anderson, 683 N.W.2d at 822-23 (quoting
United States v. Cortez, 449 U.S. 411, 414-18, 101 S. Ct. 690, 695 (1981)). In other words,
the officer must have reasonable, articulable suspicion of criminal activity to justify the
investigatory stop. State v. Munson , 594 N.W.2d 128, 136 (Minn. 1999). If an officer
observes the motorist violating a traffic law, then this is generally sufficient to form the
“requisite particularized and objective basis for conducting a traffic stop.” Anderson, 683
N.W.2d at 823.

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Minnesota courts have interpreted the Minnesota Constitution’s article I, section 10
protections more broadly than the United States Constitution’s Fourth Amendment
protections. State v. Askerooth , 681 N.W.2d 353, 361 -63 (Minn. 2004). Relevant to this
case, the Minnesota Supreme Court has held that, unlike the Fourth Amendment, article I,
section 10 of the Minnesota Constitution “requires application of Terry principles to traffic
stops.” Id. at 363 -64; see also Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868 (1968). This
involves a two-step inquiry. Askerooth, 681 N.W.2d at 364. First, courts must determine
“whether the stop was justified at its inception.” Id. Second, courts then determine
“whether the actions of the police during the stop were reasonably related to and justified
by the circumstances that gave rise to the stop in the first place.” Id. Atkins does not dispute
that the initial stop was justified.
The question presented is whether the arresting officer’s actions —specifically
opening Atkins’s door—“were reasonably related to and justified by the circumstances that
gave rise to the stop in the first place.” Id. Put another way, we must decide “whether the
officer[] expanded the duration or scope of the stop beyond the stop’s original
justification.” State v. Smith, 814 N.W.2d 346, 351 (Minn. 2012). If we determine that the
arresting officer expanded the scope of the traffic stop, then we must “consider whether the
officer[] had reasonable, articulable suspicion to support that expansion.” Id. If the officer
did have reasonable, articulable suspicion, then the expansion of the scope of the stop does
not violate article I, section 10. Id.
Atkins asserts that the arresting officer expanded the scope of the traffic stop when
he opened the car door. We disagree. The officer observed the vehicle travel well below

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the speed limit, drive onto the fog line, and drive over the center line. This gave the officer
reasonable, articulable suspicion that Atkins had violated traffic laws and was driving while
impaired. Opening the vehicle’s door in order to communicate with Atkins, as opposed to
doing something like opening the trunk of the vehicle, was within t he scope of the stop—
investigating traffic violations and a possible DWI crime. Furthermore, the officer did not
simply walk up to the vehicle and immediately open the door. He waited approximately
eight seconds while Atkins struggled to roll down his window before opening the door. We
conclude that this was reasonable under the Fourth Amendment.
Even if we were to conclude that the officer had expanded the scope of the stop by
opening Atkins’s door, we would hold that such an expansion was supported by reasonable,
articulable suspicion. Specifically, Atkins’s inability to execute the simple task of opening
his window was indicative of intoxication and would support an investigation into such
intoxication by opening the door.
Therefore, Atkins’s argument that the arresting officer impermissibly expanded the
scope of the stop is without merit.
Affirmed.