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This opinion will be unpublished and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
A19-0698

State of Minnesota,
Respondent,

vs.

Angela Lorraine Loose,
Appellant.

Filed May 4, 2020
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-18-12318

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

Erik Nilsson, Minneapolis City Attorney, Amy J. Tripp-Stei ner, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Smith, Tracy M., Judge;
and Slieter, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal from the judgment of conviction for two counts of driving while
under the influence of a controlled substanc e (DWI) and one count of careless driving,

2
appellant Lorraine Loose argues that she is entitled to a new trial because (1) her due-
process rights were violated when police officers informed her that she could be prosecuted
for refusing a blood test without offering her th e option of a urine test and (2) the district
court erred by failing to suppress an incrimin ating statement obtained in violation of
Loose’s Miranda rights. In the alternative, Loose ar gues that the district court erred in
entering judgments of conviction for two se parate counts of DWI. We reject Loose’s
arguments for a new trial but agree that the di strict court erred by entering more than one
conviction. We therefore affirm in part, reverse in part, and remand.
FACTS
Loose was driving eastbo und on 44th Avenue North in Minneapolis when she
drifted over to the opposite side of the str eet and struck a legally parked, unoccupied car
on the westbound side. The collision caused heavy front-end damage to both vehicles and
pushed the parked car up onto the curb. Minne apolis Police Officers Chorlton and Payne
responded to the scene. When the officers a rrived, a tow-truck driver greeted them and
informed them that he had noticed a syringe on the seat in Loose’s car and that he had taken
a picture of the syringe with his cell phone.
Officer Chorlton went to speak with Loos e, who was standing near the trunk of her
car, and asked her if she was hurt. The o fficer’s body-worn camera captured their
interaction. The footage shows that Loose was very excited, was moving a lot, appeared
nervous, and could not seem to calm down. Loose had placed her purse on the trunk of her
car and was rummaging through it while she spoke with Officer Chorlton. Officer Chorlton
asked her what was going on, asked about th e syringe in her car, and asked whether she

3
was high. Loose replied that she was not high at that moment but that she was “struggling.”
When Officer Chorlton asked what she meant, she replied that sh e suffered from heroin
addiction and was in treatment. She explained that she collided with the parked car because
she looked down at her phone while driving.
Officer Chorlton then began to put Loos e in handcuffs. He testified at the
Rasmussen hearing1 in this matter that he did so out of concern for safety, as Loose was
still rummaging through her purse at this point and he believed she was presently under the
influence of a controlled substance base d on her behavior, dilated pupils, and the
information from the tow-truck driver about a needle in her car. The following exchange
ensued, as captured on the body-camera footage:
OFFICER CHORLTON: Angela can you do me a favor and
just put your hands behind your back for a second?
LOOSE: Okay.
[Loose puts her hands behind her back]
2
OFFICER CHORLTON: Thank you. Just going to put you in
handcuffs for right now because I happen to believe . . .
LOOSE: Why? Can you please tell me why?
OFFICER CHORLTON: Just pu t your hands behind your
back.
LOOSE: Why? Why?
OFFICER CHORLTON: Just ba sed on what I’ve seen, it
seems like you are under the influence of something right now.
And if you’re not, then you’ll be released. But we’re going to
have some DREs
3 come and check you out.

1 See State ex rel. Rasmussen v. Tahash, 141 N.W.2d 3, 13-14 (Minn. 1965) (establishing
procedure to be followed when evidentiary i ssues arise in connection with searches and
seizures, including a fact hearing on the admissibility of the evidence).

2 Bracketed, italicized comments reflect our observations of the ac tions in the video
footage.

3 According to Officer Chorlton, “DRE” stands for drug recognition expert.

4
[Officer Chorlton finishes putting handcuffs on Loose]
Okay, is there anything on you that I need to be concerned
about? Needles?
LOOSE: Um, no. There is my purse, you can check.
OFFICER CHORLTON: There’s a needle in your purse?
LOOSE: Yes.
OFFICER CHORLTON: Nothing on you?
LOOSE: No.
OFFICER CHORLTON: No needles?
LOOSE: No.
OFFICER CHORLTON: Okay. I’m just going to pat you down
with the back of my hand.

Officer Chorlton then placed Loose in the back of a squad car to wait for paramedics to
arrive to assess her injuries and possible subs tance use and to see if she needed to be
hospitalized. When the paramedics arrive d, they examined Loose, who was still
handcuffed, in the ambulance with Officer Chorlton observing. The paramedics determined
that Loose did not require hospitalization.
Officers Chorlton and Payne radioed for assistance from a drug-recognition expert,
and, though no one with that certification wa s available, Officer Schmidt and his partner
arrived to assist. Officer Schm idt had more experience than Officers Chorlton and Payne
with impaired driving cases, since he had been involved with approximately 150 arrests of
impaired drivers. After Officer Schmidt questioned Loose, he applied for a search warrant
to take a blood or urine sample from her. Officers Chorlton and Payne then drove Loose to
a nearby hospital.
Officer Schmidt met them at the hospital after obtaining the search warrant to take
a blood or urine sample. He gave the warrant to a lab technician and told Loose:
I have a search warrant here to draw the blood or urine from
you. I do . . . I can advise you that you can refuse the blood test,

5
however, you will be charged w ith DWI refusal if you do so.
So, are you willing to submit to the blood test?

Officer Schmidt did not offer Loose a urine te st. Loose asked several questions about the
criminal consequences of refusing to submit to the blood test as opposed to submitting to
it and facing DWI charges. Officer Schmidt expl ained that test refusal would result in a
gross-misdemeanor charge, whereas a four th-degree DWI is a misdemeanor. Loose
expressed confusion over whether a DWI offe nse can be a felony, and Officer Schmidt
answered that a first-time DWI offense is not a felony; it is a misdemeanor. After some
additional back and forth about the levels of the potential offenses, and after Officer
Schmidt again asked Loose whether she would take the blood test, Loose exclaimed, “Of
course I’m going to do it, I’m just asking qu estions!” Officer Schmidt then told the lab
technician to go ahead with the blood draw. About a minute later, Loose stated, “Wait, I’d
rather get a gross misdemeanor than a DWI.” She again expressed concern about a felony
charge, and Officer Schmidt told her he had never suggested that as a possibility, and the
technician proceeded with the blood draw. Loose asked a few more questions throughout
the blood draw, which was completed and the sample sent to the Bureau of Criminal
Apprehension (BCA) for analysis.
The blood sample tested positive for morphine at 0. 033 mg/L. Morphine is a
metabolite of heroin and is a schedule II co ntrolled substance. Th e state charged Loose
with three misdemeanors: (I) fourth-degree driving while under the influence of a
controlled substance in violation of Minn. Stat. § 169A.20, subd. 1(2) (2016); (II) fourth-
degree driving while under the influence of any amount of a schedule I or II controlled

6
substance in violation of Minn. Stat. § 16 9A.20, subd. 1(7) (2016); and (III) careless
driving in violation of Minn. Stat. § 169.13, subd. 2 (2016).
Before trial, Loose moved to suppress any statements that she made as a result of a
non-Mirandized custodial interrogation, any physical evidence resulting from the Miranda
violation, and the results of the blood draw. As to the blood draw, she specifically argued
that Officer Schmidt violated her right to counsel by failing to inform her that she had the
right to speak with an attorney before deciding whether submit to the blood test. The district
court held a Rasmussen hearing on October 10, 2018, where the officers involved with the
case testified and the state entered the vide o footage from their body-worn cameras as
evidence. On January 3, 2019 , the district court granted Loose’s motion to suppress her
statements “made during the course of her po lice interview” and to suppress the physical
evidence located in her purse, but denied her motion to supp ress the results of the blood
test. The parties filed a joint request for clarification of the order, asking the district court
“whether statements are suppressed where Ms. Loose tells Officer Chorlton that there are
two syringes in her purse shortly after she is handcuffed by Officer Chorlton.” The district
court filed another order on March 12 stating that Loose’s affirmative response to Officer
Chorlton that she had needles in her purse was not suppressed because it was made before
she was in custody for the purposes of Miranda.4

4 As we explain in section II, the parties agree, and the record demonstrates, that the district
court’s finding regarding timing of the statement in relation to the handcuffing was clearly
erroneous. Loose made the statement after she was handcuffed.

7
On March 13, 2019, Loose waived her right to a jury trial and had a bench trial on
stipulated facts and evidence pursuant to Minn. R. Crim. P. 26.01, subd. 3. The parties
entered two exhibits: (1) the stipulated facts and (2) a redacted transcript of the Rasmussen
hearing. On April 5, 2019, the district court issued its findings of fact, conclusions of law,
and order, finding Loose guilty of all three c ounts. The district court sentenced Loose to
30 days in jail, with execution of 28 days stayed, and ordered that the remaining two days
be served within 180 days via the Sentencing to Serve work program.
This appeal follows.
D E C I S I O N
I. Loose forfeited her due-process challenge by failing to raise it in the district
court.

Loose first argues that the district court erroneously denied her motion to suppress
the results of the blood test be cause the officers advised her in a manner that violated her
due-process rights. Loose concedes that sh e did not specifically raise a due-process
challenge to the blood test in the district court but argues that the issue is not forfeited and
that, even if it is, this court should consider it in the interests of justice. The state argues
that Loose forfeited the due-process challenge and that this court should not consider it.
We begin by examining the challenge that Loose did raise to the blood test in the
district court. Loose moved to suppress the results of the blood test but did so on the ground
that Officer Schmidt violated her right to counsel by failing to inform her that she had the
right to speak with an attorney before deci ding whether to submit to the blood test. She
argued that the Minnesota Supreme Court’s decision in Friedman v. Comm’r of Pub. Safety

8
controlled. 473 N.W.2d 828, 831 (Minn. 1991). In Friedman, the supreme court held that
suspected-impaired drivers have a limited right to counsel when deciding whether to
submit to implied-consent testing. See id. at 835. Minnesota’s implied-consent law
“mandates—as a condition of the privilege to drive in Minnesota—that any person who is
in physical control of a motor vehicle within th e state ‘consents . . . to a chemical test of
that person’s blood, breath, or urine for the purpose of determining the presence of . . . an
intoxicating substance.’” State v. Rosenbush , 931 N.W.2d 91, 95 (Minn. 2019) (quoting
Minn. Stat. § 169A.51, subd. 1(a) (2018)). When officers request a chemical test under this
law, they must give the pers on an implied-consent advisory consistent with Minn. Stat.
§ 169A.51, subd. 2 (2018).
Though Loose was asked to submit to a bl ood test pursuant to a search warrant—
not pursuant to the implied-consent law—she argued that the Friedman holding extended
to her and accordingly afforded her a limited right to counsel. The district court disagreed,
holding that the limited right to counsel is specific to the implied-consent advisory context.
After Loose filed her notice of appeal in this case, the supreme court issued its decision in
Rosenbush that a suspected-impaired driver does not have a limited right to counsel when
the driver is asked to submit to a blood test pursuant to a search warrant. 931 N.W.2d at
98. It reasoned, in part, that “the presence of a warrant fundamentally changes [a driver’s]
encounter from the one at issue in Friedman.” Id. at 97.
Presumably in light of the intervening Rosenbush decision, Loose does not argue on
appeal that the district court erred by declining to suppress her blood test results based on
a violation of the right to counsel. Instead, she challenges the blood test on the ground that

9
the officers who took the blood sample violat ed her due-process rights by misinforming
her about the consequences of refusal to subm it to the test. Her argument is based on the
principle that “[d]ue process does not permit those who are perceived to speak for the state
to mislead individuals as to e ither their legal obligations or the penalties they might face
should they fail to sati sfy those obligations.” McDonnell v. Comm’r of Pub. Safety , 473
N.W.2d 848, 854 (Minn. 1991 ). Minnesota courts have fou nd due-process violations in
connection with implied-consent advisories when:
(1) the person whose license was revoked submitted to a
breath, blood, or urine test; (2 ) the person prejudicially relied
on the implied consent advisory in deciding to undergo testing;
and (3) the implied consent advisory did not accurately inform
the person of the legal conseque nces of refusing to submit to
the testing.

Morehouse v. Comm’r of Pub. Safety , 911 N.W.2d 503, 505 (Minn. 2018) (quotation
omitted).5
Appellate courts “generally will not decide issues which were not raised before the
district court.” Roby v. State , 547 N.W.2d 354, 357 (Mi nn. 1996). This includes
constitutional questions of criminal procedure. Id.; State v. Sorenson, 441 N.W.2d 455, 457
(Minn. 1989). This rule exists both “to enco urage the development of a factual basis for
claims at the district court level,” Johnson v. State , 673 N.W.2d 144, 147 (Minn. 2004),
and to “allow the [district] court to correct any alleged errors before a . . . verdict,” State v.

5 We note that Morehouse involved a challenge to a driv er’s license revocation, not a
suppression motion in a criminal case. See Morehouse, 911 N.W.2d at 506. Furthermore,
it involved an implied-consent advisory, not a search warrant for blood or urine testing. Id.
For the limited purposes of this opinion, we assume without deci ding that the above
standard would indeed apply in the context of this case.

10
Grunig, 660 N.W.2d 134, 136 (Minn. 2003). The rule is not absolu te, though, and an
appellate court may choose to examine a newly raised issue “when the interests of justice
require consideration of such issues and doing so would not unfairly surprise a party to the
appeal.” Roby, 547 N.W.2d at 357. Factors for determining whether the interests of justice
weigh in favor of consideration include the opportunity of the party to raise the issue in the
district court, whether the issue was implicit in the issues actually considered by the district
court, and whether the factual record is sufficiently developed as to the issue. See Johnson,
673 N.W.2d at 148.
Loose argues that she did not forfeit the du e-process challenge to the blood test
because it “falls within the general challenge of the legality of her blood draw as obtained
in violation of her right to refuse.” 6 The state responds that the due-process issue was
certainly forfeited and that an issue is not preserved merely because it relates to another
issue that was raised—rather, the specif ic argument must have been raised. See Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988) (expl aining that a party may not “rais[e] the
same general issue litigated below but under a different theory”).
We conclude that the due-process challe nge was forfeited. The proper inquiry is
whether the issue was raised in the district court, not whether it relates to an issue raised in
the district court. Id. Whether the newly raised issue relate s to an issue actu ally raised in

6 She cites only State v. Trahan , 870 N.W.2d 396, 404 (Minn. App. 2015), aff’d, 886
N.W.2d 216 (Minn. 2016), in support of this proposition. Trahan does not discuss waiver,
though, and at most shows that the due-process issue and th e counsel issue regarding the
blood test are related.

11
the district court may instead be relevant in the context of the interests-of-justice exception,
which we turn to next.
Loose argues that this c ourt should consider the due- process challenge in the
interests of justice because it is legally related to the issue ra ised in the district court and
the factual record is sufficiently developed for this court to consider it. The state responds
that the interests of justice do not support consideration because, first, the right-to-counsel
challenge and the due-process challenge are lega lly distinct, implicating different bodies
of caselaw and divergent factual bases. The right-to-counsel argument was primarily a legal
one and turned on th e analysis in the Friedman line of cases. The due-process argument,
by contrast, implicates another line of cases and a different standard, which asks whether
the defendant “prejudicially relied” on statements by the officers. See Johnson v. Comm’r
of Pub. Safety, 911 N.W.2d 506, 508-09 (Minn. 2018); Morehouse, 911 N.W.2d at 505. 7
Further, the state argues, the factual record is insufficient to allow th is court to consider
Loose’s new legal theory. Loose would have had to have made a claim in the district court
that she prejudicially relied on the officer’s advisory, and she did not do so. The state
submits that the record contains no evidence regarding prejudicial reliance, such as “how
[Loose] felt about the search warrant, concerns about her options, or that she would have

7 The state notes in its brief that it “questions whether Morehouse is even applicable in this
case because [Loose] was subject to a search warrant and not an implied consent advisory.”
It uses the Morehouse framework, though, for the purpose of showing that the legal and
factual inquiries are different under the newly raised due-process issue than under the right-
to-counsel issue argued in the di strict court. Again, this op inion does the same, as we do
not reach the issue of Morehouse’s applicability in this context because it was not raised in
the district court.

12
elected to take a urine test if offered.” And finally, the state argues that Loose had “every
opportunity” to raise the due-process argument before the district court. The primary cases
that Loose’s arguments rely on, Morehouse and Johnson, were decided by the Minnesota
Supreme Court on May 2, 2018, and the Rasmussen hearing in this case occurred
October 10, 2018. See Johnson, 911 N.W.2d 506; Morehouse, 911 N.W.2d 503.
We conclude that the interests-of-jus tice factors do not weigh in favor of
considering the newly raised issue here. Loose had the opportunity to raise the due-process
theory below. There were no procedural hurdles to her doing so, and she does not rely on
any novel legal authority. See Johnson, 673 N.W.2d at 148 (determining, by contrast, that
“[t]he procedural posture of this case provided little opportunity to raise the issue” earlier).
The alleged due-process violation was not im plicitly addressed by the district court’s
decision on whether Loose had a limited right to counsel when confronted with a blood
test. And the standard that Loose urges the co urt to apply asks whether she “prejudicially
relied on the . . . advisory in deciding to undergo testing,” Morehouse, 911 N.W.2d at 505,
but the record does not contai n facts regarding prejudicial reliance, much less a factual
finding on the issue. We accordingly decline to depart from the general rule that appellate
courts will not decide issues that were not raised before the district court. See Roby, 547
N.W.2d at 357.
II. The district court did not commit prej udicial error by declining to suppress
Loose’s statement about needles in her purse.

Loose next argues that the district court erred by declining to suppress her statement
to Officer Chorlton that she had a needle in her purse because that statement was the

13
product of a custodial interrogation an d the officers had not provided her a Miranda
warning. “The issue of whether a suspect is in custody and therefore entitled to a Miranda
warning presents a mixed ques tion of law and fact qualifyi ng for independent review.”
State v. Sterling, 834 N.W.2d 162, 167 (M inn. 2013) (quotations omitted). “An appellate
court reviews a [district] court’s findings of historical fact relating to the circumstances of
the interrogation pursuant to the clearly erroneous test but makes an independent review of
the [district] court’s determination regarding custody and the need for a Miranda warning.”
Id. at 167-68 (Minn. 2013) (quotations omitted); see also State v. Horst , 880 N.W.2d 24,
31 (Minn. 2016). An appellant whose st atement was admitted in violation of Miranda is
not entitled to relief if the st ate can show beyond a reasona ble doubt that the error was
harmless. State v. Farrah, 735 N.W.2d 336, 343 (Minn. 2007).
The Fifth Amendment to the United Stat es Constitution provi des that no person
“shall be compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V. To protect this right, “the United States Supreme Court has held that statements
made by a suspect during a ‘custodial inte rrogation’ are admissibl e only if the police
provided a Miranda warning before the statements were made.” Sterling, 834 N.W.2d at
168; see Miranda v. Arizona , 384 U.S. 436, 444-45, 86 S. Ct. 1602 (1966)). “Thus, a
Miranda warning is required if a suspect is both in custody and subject to interrogation.”
State v. Thompson , 788 N.W.2d 485, 491 (Minn. 2010). It is undisputed that Loose was
not given a Miranda warning before making the statement at issue. We begin by examining
whether the statement was the product of a custodial interrogation before turning to
whether any error in admitting the statement was harmless beyond a reasonable doubt.

14
A. Custodial interrogation
An interrogation is custodial if, based on all the surroundin g circumstances, “a
reasonable person under the circ umstances would believe that he or she was in police
custody of the degree associat ed with formal arrest.” Id. (quotation omitted). In State v.
Vue, the supreme court provided a non-exhaustive list of factors for determining custody:
Factors indicative of cust ody include (1) the police
interviewing the suspect[] at the police station; (2) the suspect
being told he or she is a prime suspect in a crime; (3) the police
restraining the suspect’s freedom of movement; (4) the suspect
making a significantly incriminating statement; (5) the
presence of multiple officers; and (6) a gun pointing at the
suspect. . . .

Alternatively, factors that may indicate the suspect is not in
custody include (1) questioning the suspect in his or her home;
(2) law enforcement expressly informing the suspect that he or
she is not under arrest; (3) th e suspect’s leaving the police
station without hindrance; (4 ) the brevity of questioning;
(5) the suspect’s ability to leave at any time; (6) the existence
of a nonthreatening environment; and (7) the suspect’s ability
to make phone calls.

797 N.W.2d 5, 11 (2011) (quotations and citations omitted). “‘On-the-scene’ questioning,
where the officers are simply trying to get a prelimin ary explanation of a confusing
situation, does not require a Miranda warning.” State v. Walsh, 495 N.W.2d 602, 604-05
(Minn. 1993). And the use of handcuffs as a restraint, by itself, does not necessarily mean
that the person is in custody for the purposes of Miranda. Id. at 605.
Here, the district court’s initial suppressi on order indicated that Loose’s “custody
began when she was placed in handcuffs and placed in the back of the squad car” and that
any statements made after that point were suppressed. The parties jointly filed a motion

15
requesting clarification of that order, specifically asking wh ether Loose’s statement that
she had a needle in her purse was suppressed. In its order clarifying the ruling, the district
court stated that it had previously made the following finding of fact:
Off. Chorlton testified he proceeded to ask [Loose] if she had
any needles in her purse and [Loose] responded she [did]. Off.
Chorlton testified that [L oose’s] response made him
uncomfortable and he then decided to put [Loose] in handcuffs
and place her in the back of his squad car based on his safety
concerns.

The district court then explained that it would not suppress the statement about the needle
because “[t]his admission was made prior to [Loose] being placed in police custody.”
Both parties agree that th e district court’s finding that Loose made the statement
about the needle before she was handcuffed is clearly erroneous.
8 The record supports this
agreement. The body-camera footage shows that Loose was handcuffed before she made
the statement. The state argues, though, that the district court nonetheless properly ruled
that the statement about the needle was not made as part of a custodial interrogation.
The record, specifically Officer Chorlton’ s body-camera footage, shows that when
the officers arrived on the scene of the crash, they immediately learned from the tow-truck
driver that there was a syringe in Loose’s car. Officer Chorlton immediately went to speak
with Loose, who appeared very nervous and was digging through her purse. Loose admitted
to struggling with heroin addiction, and Offi cer Chorlton stepped away from her briefly
and asked the tow-truck driver where he had seen the needle and whether Loose had moved

8 We note that, while the parties jointly reque sted clarification of the suppression order,
neither explicitly drew the district court’s atte ntion to the fact that this finding conflicts
with the body-camera footage.

16
it. The tow-truck driver indicated it had been on the seat and he thought that she moved it.
Officer Chorlton returned to Loose, who gave an account of how th e crash occurred, and
that is when Officer Chorlton asked her to put her hands behind her back. When Loose
repeatedly asked why she was being handcuffed, he explained that she seemed to be under
the influence of something and that he was going to have DREs check her out. He then
asked her if there was anything on her that he needed to be concerned with, and Loose
responded, “No,” but that there was a needle in her purse.
We apply the factors from Vue to determine whether Loose was in custody for the
purposes of a Miranda warning when she made the statement at issue. See Vue, 797 N.W.2d
at 11. The following factors suggest that sh e was not in custody: Officer Chorlton’s
questioning leading up to the statements about the needle was brief, and Loose was never
expressly told that she was under arrest.
Other factors, however, do suggest cust ody. Loose’s freedom of movement was
restrained because her hands we re handcuffed be hind her back. See id. Loose made a
“significantly incriminating” statement by revealing that there was a needle in her purse,
given Officer Chorlton’s previous questioning about the needle in her car and whether she
was “high.” See id. While Loose was not specifically told that she was the “prime suspect
in a crime,” she had revealed that she was driving and had hit a car parked on the opposite
side of the street, nearly head-on, and it wa s against this backdrop that Officer Chorlton
told her that he believed “she was under the influence of something.” Officer Chorlton also
told Loose that the “DREs” were going to co me check her out—without explaining that
acronym—and said that if she was not under th e influence, she would be released. The

17
officer’s statements, under the circumstances, would lead a reasonable person in Loose’s
position to believe that she was suspected of the crime of driving while under the influence
of a controlled substance. See Thompson, 788 N.W.2d at 491 (exp laining that the inquiry
for whether an interrogation is “custodial” tu rns on what a reasonable person under the
circumstances would understand as to th eir custody status). The totality of the
circumstances leads us to conclude that Loose was in custody for the purposes of a Miranda
warning.
The supreme court’s decision in Walsh does not change our custody determination.
See Walsh, 495 N.W.2d at 604-05. The state argues that Loose’s case is like Walsh in that
the paramount interest at the time of the handcuffing was officer safety. See id. In Walsh,
two officers were dispatched to a home after two 911 callers simultaneously reported that
a murder had occurred there. Id. at 603. The officers found the garage door “busted out”
and Walsh in the house, still on the phone with the 911 operator. Id. One of the deputies
handcuffed Walsh, explicitly telling him that he was not under arrest but was being
handcuffed for officer safety and to determine what had happened. Id. While one officer
went upstairs, the other asked Walsh about what had happened. When the upstairs officer
found the victim’s body and yelled down to the questioning officer, the questioning officer
moved Walsh and handcuffed him to a railing. Id. The Minnesota Supreme Court held that
Walsh was not in custody for the purposes of Miranda until he was moved to the railing.
Id. at 605. The initial questions and correspondi ng answers were admissible as part of a
preliminary investigation, where the “the deputies had just arrived on a confusing and gory
crime scene in response to two nearly simultaneous 911 calls from different callers” and it

18
was “reasonable the officers should be allowed to ask the relatively general questions they
asked without a Miranda warning.” Id.
The state argues that the road-side situa tion with Loose was similarly dangerous
because Officer Chorlton did not know where the needle that the tow-truck driver reported
was located, and the needle’s unknown wher eabouts created a “confusing situation.”
Officer Chorlton had been speak ing with Loose for several minutes before deciding to
handcuff her, though, and she had not exhibited any threatening behaviors. And the
suspected crime was driving while under the influence of a controlled substance, not
murder. Further, the court must consider the totality of the circumstances in deciding
whether an individual is in custody for the purposes of Miranda, and the Vue factors, as
explained above, weigh in favor of custody. See Vue, 797 N.W.2d at 11.
The custody determination does not end th e inquiry though. As the state points out,
Loose was only entitled to the protections of Miranda if she was subject to custodial
interrogation. The test for whether a person was subj ected to interrogation is “whether it
was first, questioning initiated by law enforcement officers, and second, whether under a
totality of circumstances it would be reasonably likely to elicit an incriminating response.”
State v. Tibiatowski , 590 N.W.2d 305, 310- 11 (Minn. 1999) (quota tions omitted). It is
uncontested that the question about whether Loose had needles on her person was initiated
by a law enforcement officer. The state cont ends, though, that the question was intended
to protect officer safety, and not to elicit an incriminating response.
After handcuffing Loose, Offi cer Chorlton asked, “Okay, is there anything on you
that I need to be concerned about? Needles?” Whether he thereby subjected Loose to an

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interrogation within the meaning of Miranda is a close question. On the one hand, it could
be construed as an “appropr iate on-site general question under the circumstances
presented.” State v. Werner, 725 N.W.2d 767, 771 (Minn. App. 2007). On the other, Loose
had just caused a car accident, and Officer Sc hmidt was trying to determine whether she
did so because she was under the influence of a controlled substance. We need not decide,
though, whether Loose was subject to an interrogation within the meaning of Miranda if
any erroneous admission of evidence was harmless, which we turn to next.
B. Harmless error
Even if the district court erroneously admitted Loose’s statement that she had
needles in her purse, “reversal is not warra nted if the error wa s harmless beyond a
reasonable doubt.” State. v. Bustos , 861 N.W.2d 655, 666 (Minn. 2015) (quotation
omitted). “We determine whether an error is harmless beyond a reasonable doubt by
analyzing whether the error reasonably could have impacted upon the . . . decision.” See
id. (quotation omitted).
Because Loose opted for a bench trial rather than a jury trial, the district court made
explicit statements about the bases for its d ecisions. As to the first count, driving while
under the influence of a controlled substance, the district court found:
The record shows there were several indications [that]
Ms. Loose was impaired. First, Ms. Loose hit a legally parked
vehicle located on the opposite side of the street she was
driving on, causing heavy damage to both vehicles. Second,
Officer Chorlton was shown a pi cture of a syringe located on
the seat in Ms. Loose’s vehicle by the tow truck driver on the
scene. Third, Officer Chorlton noted Defendant’s pupils were
constricted, she continuously moved in an anxious excited
manner and was unable to calm down. Fourth, Ms. Loose

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admitted to having two syringes in her purse, informed Officer
Chorlton that she does have an addiction to heroin which she
is struggling with and in treatment for.

As to the second count, driving while under the influence of any amount of a schedule I or
II controlled substance, the district court found:
[T]he BCA report shows a finding of .033mg/L of morphine in
Ms. Loose’s blood. . . . Further, a consideration of the totality
of the circumstances lead the Court to conclude Ms. Loose was
driving under the influence of a schedule I or II controlled
substance or its metabolite in her body. Those circumstances
include: (1) the BCA report; (2 ) the syringe seen in the
photograph and those located in her purse; 9 (3) Officer
Chorlton’s observations of Ms. Loose’s mannerisms,
behaviors and constricted pupils ; (4) the extent of damage
sustained by both vehicles and; (5) Ms. Loose’s statement that
she was struggling with an addiction to heroin.

The district court did not reference needles in its findings on careless driving.
As to the first count, there is substantia l evidence, without Loose’s statement about
the needles, to support the conviction for driving while under the influence of a controlled
substance. In addition to Loose’s driving conduct and behavior suggesting intoxication, the
district court also relied on the picture of th e syringe taken by the tow-truck driver and
Loose’s statement that she is addicted to heroin. Ultimately, that Loose had needles not
only in her car, but also in he r purse, has little practical import under these circumstances
where Loose was the sole person in the vehicle at the time of the collision and admitted to
struggling with heroin addiction. As to count two, driving while under the influence of any
amount of a schedule I or II controlled substance, the district court’s decision indicates that

9 As the parties point out, this finding ought to have been exclud ed because the actual
needles found in Loose’s purse were suppressed.

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it rests primarily on the BCA results, which showed that Loose had 0.033 mg/L of
morphine, a metabolite of heroin, in her blood. The statement about the syringes located in
her purse appears as part of an additional “t otality of the circumstances” analysis and is
made in reference to the “syringe seen in the photograph.” Again, the fact of consequence
to the district court appears to be that Loose—who admittedly suffered from heroin
addiction—had a syring e or needle accessible, and the statement that she made about
needles in her purse is not particularly significant when a needle was also photographed on
her car seat. We accordingly conclude that any error in the admission of Loose’s statement
about the needles in her purse was harmless beyond a reasonable doubt.
III. The district court erred by entering judgments of conviction and sentences for
two counts of DWI and by sentencing Loose for all three counts.

Loose also argues that the district cour t committed reversible error by convicting
her of two counts of DWI because those counts were part of a single behavioral incident.
“[I]f a person’s conduct constitutes more than one offense under the laws of this state, the
person may be punished for onl y one of the offenses.” Minn. Stat. § 609.035, subd. 1
(2016); see also Minn. Stat. § 609.04, subd. 1(2016). “The test for determining if violations
of two or more traffic statutes result from a single behavioral incident [is whether] they
occur at substantially the same time and place and arise out of a continuous and
uninterrupted course of conduc t, manifesting an indivisible state of mind or coincident
errors of judgment.” State v. Reimer , 625 N.W.2d 175, 176-77 (Minn. App. 2001)
(quotation omitted). The state bears the burden to prove that the offenses were not part of
a single behavioral incident. Id. at 177. “When the facts are not in dispute, the question of

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whether multiple offenses are part of a singl e behavioral incident is one of law that
[appellate courts] review de novo.” State v. Fichtner, 867 N.W.2d 242, 253 (Minn. App.
2015), review denied (Minn. Sept. 29, 2015).
Here, both parties agree that Loose’s tw o driving-under-the-influence convictions
resulted from a single behavior al incident. Loose cites State v. Clark , 486 N.W.2d 166
(Minn. App. 1992), as controlling. In Clark, the district court co nvicted Clark of both
(1) driving with an alcohol concentration of 0.10 and (2) driving under the influence of
alcohol. 486 N.W.2d at 170. This court vacated Clark’s conviction for driving with an
alcohol concentration of 0.10, noting that, while “[d]riving under the influence of alcohol
and driving with a blood alcohol concentration of .10 do not necessarily rest upon the same
proof and are not lesser-incl uded offenses of each other,” section 609.04 nonetheless
forbids “multiple convictions under different sections of a criminal statute for acts
committed during a single be havioral incident.” Id. at 170-71 (quotati on omitted). Here,
Loose was similarly convicted of both (I) fourth-degree driving while under the influence
of a controlled substance in violation of Minn. Stat. § 169A.20, subd. 1(2), and (II) fourth-
degree driving under the influence of any amount of a schedule I or II controlled substance
in violation of Minn. Stat. § 169A.20, subd. 1(7). Accordingly, one of her convictions must
be vacated.
The state also correctly notes th at the district court erred by sentencing Loose on all
three counts. If careless driving is charged as a lesser-included offens e or is part of the
same behavioral incident as a DWI offense, Minn. Stat. § 609.035, subd. 1, prohibits
imposing multiple sentences. State v. Gladden, 144 N.W.2d 779, 783 (Minn. 1966). Here,

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like in Gladden, Loose’s “careless driving and driving while under the influence occurred
during a continuous and uninte rrupted operation of [her] car,” and “[b]oth offenses
manifest the requisite i ndivisible state of mind.” Id. at 783. Accordingly, Loose should
have been sentenced on only one count, and no sentences should have been pronounced on
the other two. We accordingly remand to the district court to (1) vacate one of the DWI
convictions and (2) resentence Loose on only one of the remaining convictions.
Affirmed in part, reversed in part, and remanded.