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This opinion will be unpublished and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
A19-0119

State of Minnesota,
Respondent,

vs.

Adrian Thomas Howell,
Appellant.

Filed August 26, 2019
Affirmed
Larkin, Judge

Chippewa County District Court
File No. 12-CR-18-442

Keith Ellison, Attorney General, Peter D. Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Matthew Haugen, Chippewa County Attorney, Montevideo, Minnesota (for respondent)

Joel A. Novak, John E. Mack, New London Law, P.A., New London, Minnesota (for
appellant)

Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and Larkin,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his judgments of conviction for first-degree test refusal and
driving after cancellation, arguing that his constitutional right to counsel was violated. He
also argues that the evidence was insufficient to establish his guilt on an unadjudicated
conviction of first-degree driving while impaired (DWI). We affirm.
FACTS
On July 28, 2018, Granite Falls Police Officer Kyler Jelen was on routine patrol and
pulled a vehicle over after it failed to stop at a stop sign. Appellant Adrian Thomas Howell
was the driver. Howell’s eyes were “bloodshot, glossy, and watery,” he avoided making
eye contact, and his speech was slow.
Officer Jelen learned that Howell’s driver’s license was cancelled as inimical to
public safety and arrested Howell for driving after cancellation. The officer handcuffed
Howell and placed him in the back seat of a squad car. Officer Jelen then spoke wit h
Howell’s passenger, H.W., who admitted that she had a bag of hypodermic needles in the
vehicle. Officer Jelen searched the bag and found four hypodermic needles, a tourniquet,
a substance that appeared to be marijuana, and a few loose prescription drug pills. H.W.
told Officer Jelen that one of the syringes recently contained methamphetamine. H.W. also
told Officer Jelen that she and Howell had last used methamphetamine that morning.
Officer Jelen advised Howell of his rights pursuant to Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602 (1966). Howell agreed to speak with the officer. Officer Jelen removed
Howell from the squad car, removed his handcuffs, administered field sobriety tests, and

3
observed signs of impairment. The officer transported Howell to Yellow Medicine County
Jail.
While at the jail, the officer obtained a search warrant for Howell’s blood. The
officer advised Howell that refusal to submit to blood-alcohol testing is a crime and asked
Howell if he would submit to a blood or urine test. See Minn. Stat. § 171.177, subd. 1
(Supp. 2017) (“At the time a blood or urine test is directed pursuant to a search warrant
under sections 626.04 to 626.18, the person must be informed th at refusal to submit to a
blood or urine test is a crime.”). Howell asked for a lawyer, but was not allowed to contact
one. Howell refused to provide a sample for testing.
Respondent State of Minnesota charged Howell with first-degree DWI, first-degree
test refusal, and driving after cancellation. The district court held an omnibus hearing in
November 2018, and Howell raised three issues: (1) whether there was probable cause to
support the first -degree DWI charge, (2) whether a defendant has a right u nder the
Minnesota Constitution or the Fifth Amendment to consult an attorney before deciding
whether to submit to a blood test pursuant to a search warrant, and (3) whether the
expansion of the underlying traffic stop was supported by reasonable suspicion.
Neither the state nor Howell presented testimony at the omnibus hearing. Instead,
the state offered eight exhibits: Officer Jelen’s police report, two reports regarding
Howell’s criminal history, squad video from Officer Jelen’s squad car, two videos f rom
the jail, a report from Officer Jelen indicating that Howell refused to provide a blood
sample, and a report indicating that Officer Jelen did not read Howell Minnesota’s statutory
breath-test advisory. See Minn. Stat. § 169A.51, subd. 2 (Supp. 2017) (stating that when

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an officer requests a breath test, a “[b] reath test advisory” must be given that informs the
driver of his right to consult a lawyer prior to testing). The district court took the matter
under advisement and later rejected all of Howell’s arguments for relief.
The parties agreed to proceed under Minn. R. Crim. P. 26.01, subd. 4, which allows
a defendant to stipulate to the prosecution’s case to obtain review of a ruling on a specified
pretrial issue. The parties executed, and the district court received, Howell’s Waiver of
Rights Before Trial on Stipulated Evidence Pursuant to Minn. R. Crim. P. 26.01, subd. 4.
Pursuant to the parties’ agreement, the district court received 14 exhibits . Based on those
exhibits, the district court found Howell guilty of first-degree DWI, first-degree test refusal,
and driving after cancellation. The district court entered judgments of conviction for first-
degree test refusal and driving after cancellation and sentenced Howell to serve 60 months
in prison.
Howell appeals.
D E C I S I O N
I.
Howell contends that the police violated his limited right to counsel under the
Minnesota Constitution because he requested counsel before the police asked him to submit
to chemical testing and the police did not accommodate that request. Whether an officer
has vindicated a driver’s right to counsel presents a mixed question of law and fact. Mell

5
v. Comm’r of Pub. Safety , 757 N.W.2d 7 02, 712 (Minn. App. 2008). If the facts are
undisputed, we review de novo whether an individual’s right to counsel was violated. Id.
Howell relies on Friedman v. Comm’r of Pub. Safety, in which the Minnesota
Supreme Court held that “[t]he Minnesota Const itution, article I, section 6 gives [an
individual] a limited right to consult an attorney before deciding whether or not to submit
to chemical testing for blood alcohol.” 473 N.W.2d 828, 829 (Minn. 1991); see Minn.
Const. art. I, § 6 (“The accused shall enjoy the right to . . . have the assistance of counsel
in his defense.”).
After oral argument in this case, the supreme court decided State v. Rosenbush ,
which squarely addresses the issue presented in this case: whether a driver arrested on
suspicion of DWI and presented with a search warrant authorizing a search of his blood
has a limited right to counsel under a rticle I, section 6 of the Minnesota Constitution , as
recognized in Friedman, before deciding whethe r to submit to chemical testing . ___
N.W.2d ___, ___, 2019 WL 3000809, at *2 (Minn. July 10, 2019).
The facts of Rosenbush are similar to those in this case. A sheriff’s deputy arrested
Rosenbush for DWI and obtained a search warrant to take a sample of her blood for
alcohol-concentration testing. Id. at *1. When the deputy presented Rosenbush with t he
search warrant, he read her Minnesota’s statutory advisory regarding blood and urine tests,
telling her that “refusal to submit to a blood or urine test is a crime.” Id.; see Minn. Stat.
§ 171.177, subd. 1. Rosenbush allowed her blood to be drawn, and tests showed that she
had an alcohol concentration over the legal limit. Rosenbush, 2019 WL 3000809, at *1.

6
The state charged Rosenbush with DWI, and she moved to suppress the results of
her blood test, arguing that under Friedman, she had a limited constitutional right to consult
with an attorney before submitting to the test and that the deputy failed to vindicate that
right. Id. at *2. Rosenbush argued that regardless of the presence of a warrant, the
consequences of her decision to submit to a blood test were identical to those that the driver
in Friedman faced and that she therefore should have the same limited right to counsel as
the driver in Friedman. Id. at *5. The s tate countered that the presence of a warrant
fundamentally changed Rosenbush’s encounter from the one at issue in Friedman. Id.
The supreme court agreed with the s tate and held that the limited right to counsel
established in Friedman does not apply when an individual is asked to submit to a blood
test pursuant to a warrant. Id. at *1, *5-6. The supreme court reasoned that “the existence
of a search warrant eliminates many of the co ncerns that led [it] to expand the right to
counsel in Friedman,” explaining that when a suspected impaired driver is presented with
a search warrant for a blood or urine test, “the driver is not meeting his adversary in the
same manner as the driver in Friedman because a neutral judicial officer has determined
that the police may lawfully obtain a sample of the driver’s blood. ” Id. at *5 (quotation
omitted).
Rosenbush was pending when this court heard oral arguments in this case. Howell
addressed Rosenbush in this appeal , arguing that “[i]f Rosenbush prevails, [he] must
prevail” and that “[e]ven if Rosenbush does not prevail, [he] s hould prevail.” As support
for the latter proposition, Howell argues that unlike Rosenbush, he requested an attorney
and “[a]rticle I , section 6 of the Minnesota Constitution must c over when an arrested

7
Defendant asks for an attorney, when that Defendant is facing possible prosecution based
on his answer to a question posed by State actors.”
As support for that argument, Howell refers both to the state constitutional right to
counsel under Friedman and the right to counsel that arises when an arrestee is read his
Miranda rights. As to Howell’s reliance on Friedman and his attempt to distinguish
Rosenbush factually, t he supreme court’s reasoning in Rosenbush does not suggest a
different outcome in this case based on Howell’s request for counsel. See id. (“[W]e have
never held that the Minnesota Constitution provides the subject of a search warrant with
the right to consult counsel before a warrant can be executed.”) . We therefore follow
Rosenbush and hold that because the police obtained a warrant for H owell’s blood, he did
not have a limited right to counsel under Friedman. We address Howell’s arguments
regarding the Miranda right to counsel in section II of this opinion.
II.
Howell contends that the police violated his Fifth Amendment right to counse l as
set forth in Miranda, 384 U.S. at 444-45, 86 S. Ct. at 1612. Under Miranda,
[T]he prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privil ege against
self-incrimination. By custodial interrogation, we mean
questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his
freedom of action in any significant way. . . . Prior to any
questioning, the person must be warned that he has a right to
remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed. The defendant may
waive effectuation of these rights, provided the waiver is made

8
voluntarily, knowingly and intelligently. If, however, he
indicates in any manner and at any stage of the process that he
wishes to consult with an attorney before speaking there can be
no questioning.

384 U.S. at 444-45, 86 S. Ct. at 1612 (footnote omitted).
The Fifth Amendment provides that no person “shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V; see Minn. Const. art. I, § 7
(“No person shall . . . be compelled in any criminal case to be a witness against him self . .
. .”). “A right to counsel arises under the Fifth Amendment when a suspect is in custody
in order to protect the suspect’ s constitutional privilege against self-incrimination.” State
v. Borg, 806 N.W.2d 535, 545-46 (Minn. 2011) (citing Miranda, 384 U.S. at 469, 86 S. Ct.
at 1625). “[T]he right to have counsel present at the interrogation is indispensable to the
protection of the Fifth Amendment privilege . . . .” Miranda, 384 U.S. at 469, 86 S. Ct. at
1625.
Howell argues that his Fifth Amendment right to counsel was violated because he
was read his Miranda rights, he invoked his right to counsel, and the officers did not give
him an opportunity to contact counsel, but instead “made him orally choose between
allowing them to take blood, or refusing to allow them to take blood.” 1 For the reasons
that follow, we are not persuaded.

1 Howell also asserts that he is entitled to relief on “Due Process grounds” and that his
Sixth Amendment right to counsel was violated. And he alludes to “First Amendment
problems.” Such claims were not raised and decided in the district court and therefore are
not among the issues addressed in the district court’s dispositive pretrial ruling. Moreover,
Howell does not provide adequate legal authority or legal argument regarding the purported
due-process, Sixth Amendment , and First Amendment violations . We therefore do not
consider those issues. See State v. Ortega , 770 N.W.2d 145, 147 n.1, 149 (Minn. 2009)

9
Not every incriminating response to police questioning is protected by the Fifth
Amendment. “[T]he special procedural safeguards outlined in Miranda are required not
where a suspect is simply taken into custody, but rather where a suspect in custody is
subjected to interrogation. ” Rhode Island v. Innis , 446 U.S. 291, 300, 100 S. Ct. 1682,
1689 (1980). “ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a
measure of compulsion above and beyond that inherent in custody itself.” Id.
Focusing on the “compulsion” requirement, the United States Supreme Court has
held that “the admissi on into evidence of a defendant’ s refusal to submit to [a blood -
alcohol] test . . . does not offend the right against self -incrimination.” South Dakota v.
Neville, 459 U.S. 553, 554, 559 -64, 103 S. Ct. 916, 917 -18, 920-23 (1983). In doing so,
the Supreme Court reasoned that “no impermissible coercion is involved when the suspect
refuses to submit to take the test.” Id. at 562 , 103 S. Ct. at 921. The Supreme Court
explained:
In the context of an arrest for driving while intoxicated,
a police inquiry of whether the suspect will take a blood -
alcohol test is not an interrogation within the meaning of
Miranda. As we stated in Rhode Island v. Innis, police words
or actions “normally attendant to arrest and custody” do not
constitute interrogation. The police inquiry here is highly
regulated by state law, and is presented in virtually the same
words to all suspects. It is similar to a police request to submit
to fingerprinting or photography. [A suspect’ s] choice of
refusal thus enjoys no prophylactic Miranda protection outside
the basic Fifth Amendment protection.

(stating that review of a rul e 26.01, subdivision 4, proceeding is limited to the dispositive
pretrial ruling); Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate
courts “generally will not decide issues which were not raised before the district court);
State v. B utcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating that issues not
adequately briefed are waived), review denied (Minn. Aug. 5, 1997).

10

Id. at 564 n.15, 103. S. Ct. at 923 n.15 (citation omitted). In sum, “a refusal to take a blood-
alcohol test, after a police officer has lawfully requested it, is not an act coerced by the
officer, and thus is not protected by the privilege against self -incrimination.” Id. at 564,
103 S. Ct. at 923.
In Nyflot v. Comm’r of Pub. Safety, the Minnesota Supreme Court relied on Neville
and held that a “[d]river who is arrested for driving while under the influence of alcohol
has no right, statutory or constitutional, to consult with counsel before deciding whether to
submit to chemical testing under the implied consent law.” 369 N.W.2d 512, 513, 517
(Minn. 1985), overruled in part by Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828
(Minn. 1991). As to the Fifth Amendment right to counsel, the supreme court explained:
It is also clear that the right to counsel recognized in
Miranda does not apply to the limited questioning of a driver
to determine if he will consent to a chemical test. The Miranda
right to counsel applies only to “interrogation,” which the
Court has defined as express questioning or other words or
actions by police rea sonably likely to evoke an incriminating
response. In South Dakota v. Neville , the Court made it clear
that “in the context of an arrest for driving while intoxicated, a
police inquiry of whether the suspect will take a blood-alcohol
test is not an interrogation within the meaning of Miranda.”

Id. at 516 (citations omitted).
Although the Minnesota Supreme C ourt later overruled Nyflot in Friedman, it did
so only to the extent that it recognized —under article I, s ection 6 of the Minnesota
Constitution—a driver’s limited right to consult an attorney before deciding whether to
submit to chemical testing for blood alcohol. Friedman, 473 N.W.2d at 829-32; see Minn.
Const. art. I, § 6 (“The accused shall enjoy the right to . . . have the assistance of counsel

11
in his defense.”). In doing so, the supreme court noted that although “[s]tate courts must
follow the United States Supreme Court in matters of federal constitutional law,” “[t]hey
are free to interpret their own law . . . so as to provide greater protec tion for individual
rights than that which the federal Constitution minimally mandates.” Friedman, 473
N.W.2d at 830. The supreme court emphasized: “We decide [ Friedman] solely on the
basis of article I, section 6 of [the] Minnesota Constitution, and not on any provision of
either federal law or the United States Constitution.” Id. at 837.
The supreme court’s decision based on article I, section 6 of the Minnesota
Constitution in Friedman does not impact its previous conclusion , in Nyflot, that under
United States Supreme Court precedent, the Fifth Amendment right to counsel does not
apply when a person is asked to submit to a blood-alcohol test after an arrest for DWI.
Moreover, the Minnesota Supreme Court has not interpreted article I, s ection 7 of the
Minnesota Constitution to provide greater protection against compelled self-incrimination
than the corresponding provisions of the Fifth and Fourteenth Amendments to the federal
constitution. See McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 856 (Minn. 1991)
(rejecting argument that “the privilege against compelled self -incrimination protected by
article 1, section 7 of the Minnesota Constitution has been interpreted by [the supreme]
court to provide greater protection than does the privilege protected by the fifth and
fourteenth amendments to the federal constitution”).
Howell focuses on the fact that his oral refusal to submit to testing was an
“incriminating testimonial communication,” which resulted from express questioning. See
Innis, 446 U.S. at 300-01, 100 S. Ct. at 1689 (“[T]he Miranda safeguards come into play

12
whenever a person in custody is subjected to either express questioning or its functional
equivalent.”). Howell relies on State v. Heinonen, in which the Minnesota Supreme Court
stated that “a defendant’s communication is only testimonial under the Fifth Amendment”
if it “speaks his guilt.” 909 N.W.2d 584, 593 (Minn. 2018) (quotation omitted). Howell
argues that his “ refusal to consent to [the] search itself was an incriminating testimonial
communication” because it “spoke [his] guilt.”
Howell’s reliance on Heinonen is unavailing because that case involved a request
for a DNA sample, and not a request for a blood-alcohol test after a DWI arrest , and the
supreme court therefore did not address the United States Supreme Court’s holding in
Neville. See id. at 587 (“This case requires us to decide whether police officers violated an
arrestee’s Fifth Amendment right when, after the arrestee invoked his privilege against
self-incrimination, the officers later asked him if he was willing to sign a written conse nt
to the taking of a DNA sample . . . .”).
In sum, caselaw regarding the Fifth Amendment right to counsel in the context of
blood-alcohol testing after a DWI arrest establishes that Howell’s refusal to submit to
testing is not protected by the Fifth Amend ment. Thus, the state’s failure to honor his
request for counsel did not violate the Fifth Amendment.
III.
Howell contends that the evidence was insufficient to sustain the district court’s
finding of guilt on his first-degree DWI charge, arguing that the state did not prove beyond
a reasonable doubt that he was “under the influence of a controlled substance.” The state
counters that because Howell stipulated to the prosecution’s case to obtain review of the

13
district court’s pretrial ruling under Minn. R . Crim. P. 26.01, subd. 4, he “is foreclosed
from challenging his guilt on appeal.”
Minn. R. Crim. P. 26.01, subd. 4(a) provides: “When the parties agree that the
[district] court’s ruling on a specified pretrial issue is dispositive of the case, or that the
ruling makes a contested trial unnecessary, the following procedure must be used to
preserve the issue for appellate review.” The defendant must maintain a not-guilty plea;
acknowledge that the pretrial issue is dispositive ; waive the right to a jury trial; waive the
right to testify at trial, call witnesses, and question the prosecution’s witnesses; stipulate to
the prosecution’s evidence; and “acknowledge that appellate review will be of the pretrial
issue, but not of the defendant’s guilt, or of other issues that could arise at a contested trial.”
Minn. R. Crim. P. 26.01, subd. 4(b) -(f) (emphasis added) (stating that a defendant “must
personally waive the rights specified in Rule 26.01, subdivision 3(b)(1)-(4)”); see id., subd.
3(b)(1)-(4) (requiring waiver of right to testify at trial, call witnesses, and question the
prosecution’s witnesses).
Howell argues that it is unclear whether the parties proceeded under subdivision 4
of rule 26.01, as opposed to subdivision 3, which provides for a trial on stipulated facts or
on stipulated evidence and allows the defendant to appeal “from the judgment of conviction
and raise issues on appeal as from any trial to the court.” Minn. R. Crim. P. 26.01, subd.
3(f). The record refutes that argument. The waiver that Howell signed is captioned as a
“Waiver of Rights Before Trial on Stipulated Evidence Pursuant to Minn . R. Crim. P.
26.01, subd. 4.” The language in that waiver specifically tracks the requirements of rule
26.01, subdivision 4, as set forth above. Moreover, the court and the parties referred to the

14
trial as a proceeding under subdivision 4. And the district court’s order finding Howell
guilty states that the trial “was conducted under Rule 26.01, subd. 4.”
Howell notes that in district court, the parties referred to both “stipulated facts” and
“stipulated evidence” when discussing the procedure on the record. Howell also notes that
his written waiver refers to both a “Trial on Stipulated Evidence” and a “Stipulated Facts
Trial.” Those discre pancies are inconsequential for three reasons: (1) Howell’s written
waiver cites subdivision 4 and complies with all of the requirements of subdivision 4,
(2) the parties expressly referred to the proceeding as one under subdivision 4, and (3) the
district court identified and treated the proceeding as one under subdivision 4.
Howell also argues that his pretrial challenge to probable cause for the first -degree
DWI charge raised “[s]ufficiency of the evidence” as a pretrial issue and therefore
preserved i t for appeal. Howell asserts that his probable -cause challenge required the
district court to determine whether “there would be enough evidence to convict” him.
Howell’s attempt to equate a probable-cause challenge with a sufficiency challenge
is unavailing. When assessing whether there is probable cause for a criminal charge, a
court asks “whether the evidence worthy of consideration brings the charge against the
prisoner within reasonable probability.” State v. Gayles, 915 N.W.2d 6, 11-12 (Minn. App.
2018) (quotation omitted). However, when assessing whether there is sufficient evidence
to sustain a guilty verdict, a court asks whether the evidence, when viewed in a light most
favorable to the conviction, was sufficient to permit the fact-finder to reach the verdict that
it did, consistent with the presumption of innocence and the beyond-a-reasonable-doubt
standard of proof . Bernhardt v. State , 684 N.W.2d 465, 476 -77 (Minn. 2004) ; State v.

15
Webb, 440 N.W.2d 426, 430 (Minn. 1989). 2 Thus, although a probable-cause challenge
and a sufficiency challenge both require assessment of the supporting evidence, they are
distinct challenges go verned by different standards. See, e.g. , State ex rel. Hastings v.
Bailey, 116 N.W.2d 548, 551 (Minn. 1962) (noting that at a preliminary hearing, the state
need not prove guilt beyond a reasonable doubt).
Moreover, once a defendant has been found guilty, a pretrial probable -cause
challenge is immaterial because “[t]he standard for the sufficiency of the evidence to
support a conviction is much higher than probable cause.” State v. Holmberg, 527 N.W.2d
100, 103 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995). And Minnesota
caselaw establishes that a proceeding under rule 26.01, subdivision 4, is meant to preserve
pretrial issues for appeal ; it is not “a means for obtaining an appellate sufficiency of the
evidence review.” State v. Busse, 644 N.W.2d 79, 88-89 (Minn. 2002); see State v. Mahr,
701 N.W.2d 286 , 292 (Minn. App. 2005) (stating that a subdivision 4 proceeding is “a
concession that the state’s facts are accurate, with the primary purpose of permitting the
defendant to appeal a pretrial ruling, while avoiding a trial for reasons of judicial
economy”), review denied (Minn. Oct. 26, 2005).
In sum, Howell’s sufficiency challenge to the guilty verdict is barred under the clear
language of Minn. R. Crim. P. 26.01, subd. 4, as well as caselaw applying that rule. Howell

2 If the state relies on circumstantial evidence to prove an element of an offense, an
appellate court applies a heightened standard of review. See State v. Harris, 895 N.W.2d
592, 601 -03 (Minn. 2017) (applying circumstantial -evidence standard to individual
element of criminal offense that was proved by circumstantial evidence).

16
therefore cannot challenge the sufficie ncy of the evidence to sustain the district court’s
finding of guilt on his first-degree DWI charge.
Lastly, we note that because the district court did not enter judgment of conviction
or sentence Howell on the first-degree DWI charge, his sufficiency challenge is moot. See
State v. Martin , 773 N.W.2d 89, 108 (Minn. 2009) ( stating that because j udgment of
conviction was not entered for a crime committed for the benefit of a gang and defendant
was not sentenced for that offense, “the issue of whether the re was sufficient evidence to
convict him on that count is moot.”).
Affirmed.