Kelly Jenko Triebwasser, 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This opinion will be unpublished and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
A19-1796

Kelly Jenko Triebwasser, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed May 26, 2020
Affirmed
Hooten, Judge

St. Louis County District Court
File No. 69HI-CV-19-521

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, PLLC, Roseville, Minnesota
(for appellant)

Keith Ellison, Attorney General, Leah M. P. Hedman, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Hooten, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this appeal from the district court’s order denying her motion to rescind the
revocation of her driver’s license, appellant argues that she should not be deemed to have
refused breath testing when —after initially refusing the test, being arrested, and being

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transported to jail —she retracted her refusal and agreed to submit to a breath test. We
affirm.
FACTS
On March 24, 2019, a trooper with the Minnesota State Patrol pulled over appellant
Kelly Jenko Triebwasser on suspicion of driving while impaired. After Triebwasser failed
field sobriety testing, the trooper arrested Triebwasser and transported her to the Chisholm
Police Department.
The trooper indicated that Triebwasser was “very upset” and “very uncontrolled”
while in route to the police department. Triebwasser slipped out of her handcuffs and threw
them at the glass partition immediately behind the trooper, attempted to open the rear doors
of the squad car, and called the trooper “provocative names throughout the transport.”
Once they arrived at the station, the trooper attempted to read Triebwasser the
Implied Consent Advisory. Triebwasser was “outraged,” refused to listen, attempted to
talk over the trooper, and swore at her. An audio recording from the record reveals that,
while the trooper attempted to give Triebwasser the advisory, Triebwasser threatened to
kill the trooper with a knife. After the trooper read the advisory multiple times,
Triebwasser indicated that she understood.
The trooper asked Triebwasser if she wanted to speak to an attorney, and
Triebwasser indicated that she did. While speaking with her attorney, the trooper stated
that Triebwasser was “emotional” and had “mood swings wherein one moment
[Triebwasser] was crying and th e next would become upset.” After she spoke with her
attorney, Triebwasser agreed to take a breath test.

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Prior to administering a breath test, the trooper was required to conduct a 15-minute
observation period. After the 15 minutes, the trooper attempted to administer the breath
test, but Triebwasser told her that she “would not blow into anything.” The trooper asked
Triebwasser again if she would blow into the machine. Triebwasser responded, “No, I’m
not,” and “I already told you no like an hour ago.” Based on this, the trooper concluded
that Triebwasser refused the test.
The trooper placed Triebwasser in handcuffs, put her in a squad car, and transported
her to the St. L ouis County j ail for booking. On the way to the jail , Triebwa sser
“threaten[ed] to take [the trooper] to a land where nobody would find [her] ” and pledged
to make it “her life mission to find [the trooper] off-duty to stab [her].”
Once they arrived at the jail, Triebwasser stated that she wanted to tak e the breath
test but remained uncooperative with jail staff.
Based on Triebwasser’s refusa l to submit to a breath test at the Chisholm Police
Department, the Commissioner of Public Safety revoked Triebwasser’s driver’s license.
Triebwasser filed a petition for judicial review of the revocation of her driver’s license.
Following a motion hearing, the district court denied Triebwasser’s motion to rescind the
revocation of her driving privileges and driver’s license. Triebwasser appeals.
D E C I S I O N
Triebwasser argues that law enforcement should have honored her decision to
submit to a breath test after she initially refused and that this court should reverse the
district court’s denial of her motion to rescind the revocation of her driving privileges. The
district court held that Triebwasser’s “conduct, along with her direct refusal to submit to

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testing after two separate requests, constitutes refusal to submit to a lawful request for a
chemical test,” and Triebwasser’s “refusal to submit to testing was not cured by her demand
for testing at the St. Louis County Jail.”
Findings of fact “shall not be set aside unless clearly erroneous.” Minn. R. Civ. P.
52.01. But this court may overturn conclusions of law if the district court “erroneously
construed and applied the law to the facts.” O’Brian v. Comm’r of Pub. Safety, 552 N.W.2d
760, 761 (Minn. App. 1996). A district court’s ruling on whether a person refused to submit
to testing is a question of fact, which this court reviews for clear error. Maietta v. Comm’r
of Pub. Safety, 663 N.W.2d 595, 598 (Minn. App. 2003), review denied (Minn. Aug. 19,
2003). “But where there is no dispute as to facts, the legal significance of the facts may be
a question of law.” Id.
Any person who drives a motor v ehicle in Minnesota consents to a chemical test
“for the purpose of determining the presence of alcohol. ” Minn. Stat. § 169A.51, subd.
1(a) (2018). However, a driver may refuse a chemical test. Schultz v. Comm’r of Pub.
Safety, 447 N.W.2d 17, 18 (Minn. App. 1989). If a driver refuses a lawfully requested test,
that person’s driving privileges will be revoked. Minn. Stat. § 169A.52, subd. 3(a) (2018).
A driver who initially refuses testing does not have an absolute right to retract her
refusal. Palme v. Comm’r of Pub. Safety, 541 N.W.2d 340, 344 (Minn. App. 1995), review
denied (Minn. Feb. 27, 1996); Mossak v. Comm’r of Pub. Safety , 435 N.W.2d 578, 579 –
80 (Minn. App. 1989), review denied (Minn. Apr. 10, 1989). While law enforcement is
encouraged to be flexible when a driver retracts a refusal almost immediately, Minnesota

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courts have not abandoned the “absolute rule” that law enforcement need not honor a
subsequent consent to testing after an initial refusal. Palme, 541 N.W.2d at 344.
A seminal case regarding the retraction of a refusal to submit to testing is Mossak,
435 N.W.2d at 578 . In that case, Mossak initially refused to submit to testing. Mossak,
435 N.W.2d at 579. Within ten minutes, and after speaking to a friend, Mossak asked to
take the test but an officer denied her request. Id. Her driver’s license was revoked by the
commissioner of public safety. Id. We applied the absolute rule and s ustained the
commissioner’s revocation. Id. at 580.
Later, in Schultz, we held that the absolute rule would not be followed when the
driver “almost immediately” changed his mind and consented to testing. 447 N.W.2d at
19. We held that the driver’s change of mind “was not separated from his initial response
by any substantial time, place, or a telephone call to counsel or a friend.” Id. Instead,
“[t]he only action the officer took was to mark a refusal on the implied consent form.” Id.
Therefore, we ruled that the breath test should have been administered. Id.
In Parsons v. Comm'r of Pub. Safety , we held subsequently that the driver’s
retraction of her refusal to submit to testing, nine minutes after the refusal and after
speaking with an attorney, did not cure her initial refusal. 488 N.W.2d 500, 50203 (Minn.
App. 1992). “This court has consistently held that a subsequent change of heart does not
revoke an initial refusal, even when a relatively short period of time has elapsed between
the ini tial refusal and the reconsideration except for an ‘almost immediate’ change of
mind.” Lewis v. Comm’r of Pub. Safety, 737 N.W.2d 591, 593 (Minn. App. 2007).

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In this case, Triebwasser spoke to her attorney and then indicated that she woul d
take a breath test. During the 15-minute observation period, Triebwasser told the trooper,
“Then I’ll refuse the test, f --- it. Let’s just skip it.” The trooper asked Triebwasser again
if she would take the test, and Triebwasser replied, “No, I’m not,” and “I already told you
no like an hour ago.” As the district court noted, the trooper gave Triebwasser several
opportunities to take the breath test but Triebwasser “continued to be argumentative and
combative toward the Trooper, failing to prov ide a clear answer.” The audio recording
indicates that the trooper gave Triebwasser several opportunities to take the breath test, but
Triebwasser refused to respond to those requests. The district court found that
Triebwasser’s “conduct, along with her direct refusal to submit to testing after two separate
requests, constitutes refusal to submit to a lawful request for a chemical test”.
After Triebwasser was transported to the jail, she indicated that she woul d submit
to testing. But at the jail, the trooper indicated that Triebwasser remained uncooperative
and was “still very upset.” The audio recording reveals that Triebwasser continued to yell
and swear at the trooper. Because she “remained combative and belligerent not only during
her transport but once she reached the St. Louis County Jail,” the district court found that
her conduct “belied” her subsequent consent. The district court stated that her subsequent
consent “did not immediately follow her initial refusal, nor come within a reasonable time
following the request for testing,” and the trooper was therefore not required to offer
Triebwasser another opportunity to take the breath test.
Based upon this record, the district court did not err in its conclusion that
Triebwasser’s purported c onsent to testing was too far removed from her initial (and

7
continued) refusal to test. At least ten minutes elapsed between her final refusal and arrival
at the St. Louis County jail, as the drive from the Chisholm Police Depa rtment to the St.
Louis County jail takes ten minutes. The district court reasoned that her uncooperative and
belligerent behavior at the jail also indicates that her subsequent consent was not credible.
See Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008) (providing that reviewing
courts defer to the credibility det erminations of district court s); Minn. R. Civ. P. 52.01
(noting that appellate courts give due regard to the credibility determinations of the district
court).
There is no dispute that Triebwasser repeatedly and unequivocally r efused to take
the breath test offered by the trooper, that she did not ask to take the test until she arrived
at the jail more than ten minutes after her last refusal, and that she continued to act in an
uncooperative and belligerent manner once she arrived at the jail. B ecause we conclude
that the district court did not err by concluding that her test refusal was not cured by her
request to submit to testing upon arrival at the jail, we therefore affirm the district court’s
denial of Triebwasser’s motion to rescind revocation of her driving privileges.
Affirmed.