State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0027

State of Minnesota,
Respondent,

vs.

Sheldon Emory Noel,
Appellant.

Filed February 1, 2021
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-18-7642

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief App ellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Johnson, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his conviction for driving while impaired ( DWI) refusal to
submit to chemical testing, arguing that the district court err ed in instructing the jury on

2
the offense and committed reversible error by permitting testimony regarding how long he
consulted with an attorney before the breath test was administered. Because the jur y
instructions accurately state the law and the length of time a driver consults with an attorney
is relevant to the test-refusal offense, we affirm.
FACTS
In the early morning hours of October 13, 2017, appellant Sheldon Noel was
arrested for DWI after driving the wrong way down a Minneapolis street and turning left
on a red light. The arresting police officers transported Noel to a chemical-testing facility
where a specially trained officer (the officer) prepared to administer a breath test. During
the initial 15-minute observation period, the officer made sure Noel did not ingest anything
that would interfere with the test. But he noticed Noel leaning forward as if attempting “to
force himself to burp.” Because forced burping may cause vomiting, which would delay
the test, the officer told Noel to stop.
The officer next read Noel the breath-test advisory. Noel said he did not understand
the part about speaking to an attorney , requiring the officer to re-read that portion of t he
advisory. Noel again indicated he did not understand. The officer then gave Noel a phone
to contact an attorney. After speaking with an attorney for approximately 45 minutes, Noel
told the officer that he would take the test.
The officer handed Noel the m outhpiece to begin the first of two required breath
samples. He immediately noted that Noel “was not keeping [the] minimum flow rate” of
air into the machine necessary to record a sample. The officer advised Noel “several times”
that he needed to provide a “strong, steady breath.” But Noel failed to do so, and did not

3
provide a sufficient sample by the end of the three -minute testing period . The o fficer
determined Noel’s conduct amounted to test refusal.
Noel was charged with DWI -test refusal. At trial, the officer testified that Noel’s
behavior during the testing process and several other factors led him to conclude that Noel
refused the breath test. The other factors include t he length of time Noel talked to an
attorney,1 his stated inability to understand the advisory “even after multiple readings,” and
his attempts “to force himself to burp.” These factors also prompted the officer’s decision
not to attempt a second test—even though he had the discretion to do so. In addition to the
officer’s testimony, the jury watched a video recording of the breath-test procedure, which
largely corroborated the officer’s version of events.
Noel asked the district court to modify the model test-refusal jury instruction to
include a definition of “intent” and stat e that test refusal must be a “volitional act.” The
district court declined both requests, ultimately instructing the jury as follows:
Fifth, the Defendant refused to submit to the test. A
failure to complete the entire test is a refusal. A refusal to
submit to chemical testing includes any indication of actual
unwillingness to complete the testing process, as determined
from the driver’s words and actions in light of the totality of
the circumstances. In the case of a breath test, the entire test
must consist of one adequate breath sample analysis, one
calibration standard analysis, and a second adequate breath
sample analysis.

The jury found Noel guilty of test refusal. Noel appeals his conviction.

1 The district court sustained defense counsel’s o bjection to admission of the content of
Noel’s discussion with the attorney. But the court allowed evidence as to how long the
conversation lasted because it was a factor in the officer’s assessment that Noel refused to
take the breath test.

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DECISION
Noel argues that the district court abused its discretion by instructing the jury a nd
by admitting evidence that Noel consulted with an attorney for 45 minutes . We review
each argument in turn.
I. The district court’s instruction on test refusal was not an abuse of discretion.

A district court has discretion to fashion jury instructions. State v. Stay, 935 N.W.2d
428, 430 (Minn. 2019). We “review the instructions in their entirety to determine whether
they fairly and adequately explained the law of the case.” State v. Kuhnau, 622 N.W.2d
552, 555-56 (Minn. 2001). A district court abuses its “broad discretion” if its instructions
“confuse, mislead, or materially misstate the law, ” State v. Taylor, 869 N.W.2d 1, 14 -15
(Minn. 2015) (quotation omitted), or if the instructions omit an element of the charged
offense, Stay, 935 N.W.2d at 430.
“It is a crime for any person to refuse to submit to a chemical test . . . of the person’s
breath” once requested to do so by a police officer who has probable cause to believe the
person has been operating a motor vehicle while impaired. Minn. Stat. § 169A.20,
subd. 2(1) (Supp. 2017); see also Minn. Stat. § 169A.51, subd. 1(b) (2016); accord State
v. Koppi, 798 N.W.2d 358, 362 (Minn. 2011). If a driver’s conduct frustrates, delays, or
defeats the testing process, it constitutes a refusal. State v. Collins, 655 N.W.2d 652, 658
(Minn. App. 2003), review denied (Minn. Mar. 26, 2003); see also State v. Ferrier , 792
N.W.2d 98, 102 (Minn. App. 2010) (stating refusal may be done verbally or through
conduct), review denied (Minn. Mar. 15, 2011) . Test refusal may be direct or may be
inferred from the totality of the circumstances. Ferrier, 792 N.W.2d at 101. Accordingly,

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this court held in Ferrier that “refusal to submit to chemical testing includes any indication
of actual unwillingness to participate in the testing process, as determined from the driver’s
words and actions in light of the totality of the circumstances.” Id. at 102.
Noel first argues that the district court’s instruction misstated the law because it
turned test refusal into a strict liability crime . This argument is unavailing. Although the
first substantive sentence of the instruction makes no reference to intent —“[a] failure to
complete the entire test is a refusal”—the remainder of the instruction accurately states the
law. The second sentence states, “A refusal to submit to chemical testing includes any
indication of actual unwillingness to complete the testing process , as determined from the
driver’s words and actions in light of th e totality of the circumstances .” Th is language
accurately states the law on test refusal—it recites Ferrier almost verbatim. That Noel may
disagree with our decision in Ferrier does not mean that the district court abused its
discretion by instructing the jury accordingly.
Noel next argues the instruction is erroneous because the words “intent” or
“volitional act” are necessary to properly instruct the jury on the mens rea component of
test refusal. This argument is also unpersuasive. In Ferrier, we analyzed the language of
the test-refusal statute, concluding that the statute does require a volitional act because the
phrase “to refuse” plainly means “to indicate unwillingnes s to do, accept, give, or
allow something.” Id. at 101 (quotation omitted). We articulated the requisite mens rea as
“[a]ctual unwillingness to submit to testing .” Id. Because the district court’s instruction
required proof of “actual unwillingness to complete the testing process,” it accurately states
the law and does not constitute abuse of discretion.

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II. Admission of evidence that Noel consulted an attorney for 45 minutes does not
constitute reversible error.

The admission of evidence is “within the sound discretion of the district court,” and
we “will not reverse an evidentiary ruling absent a clear abuse of discretion.” State v. Ali,
855 N.W.2d 235, 249 (Minn. 2014). A district court abuses its discretion if the decision is
“based on an erroneous view of the law or is against logic and the facts in the record.”
State v. Flah, 933 N.W.2d 807, 810 (Minn. App. 2019) (quotation omitted), review denied
(Minn. Nov. 27, 2019). But where the appellant did not object to the admission of evidence
at trial, we review for plain error that affects substantial rights. State v. Griller, 583 N.W.2d
736, 740 (Minn. 1998). Because at trial Noel only objected to one instance of the officer’s
testimony regarding Noel consulting with an attorney —while leaving prior testimony on
the point unchallenged —we must consider both whether the distri ct court abused its
discretion by permitting the challenged testimony and whether the district court committed
plain error by permitting the unchallenged testimony.
Persons arrested for D WI have a limited right to consult with an attorney before
taking a requested chemical test. This right exists under the Minnesota Constitution , and
affords the person a “reasonable opportunity to obtain legal advice” before submitting to
testing. Friedman v. Comm’r of Pub. Safety , 473 N.W.2d 828, 835 (Minn. 1991 ). But
“this right is limited to the extent that it cannot unreasonably delay administration of the
test.” Minn. Stat. § 169A.51, subd. 2(3) (Supp. 2017). Noel contends that the district court
committed reversible error by allowing testimony that he chose to exe rcise this right and

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that his exercise was a factor in the officer’s assessment that he refused the breath test.
This contention is unavailing for two reasons.
First, the constitutional protections Noel invokes do not apply in the context of
chemical testing following a DWI arrest . Noel asserts his choice to avail himself of the
right to counsel cannot be held against him at trial, citing State v. Roberts, 208 N.W.2d 744
(Minn. 1973). But the right described in Roberts is derived from the Fifth Amend ment
protection from self -incrimination. See 208 N.W.2d at 74 6 (citing Miranda v. Arizona ,
384 U.S. 436, 468 n.37, 86 S. Ct. 1602, 162 5 n.37 (1966)); see generally Miranda , 384
U.S. at 465-66, 86 S. Ct. at 1623 (discussing U.S. Const. amend V). The limited right to
counsel following a DWI arrest does not fall under the umbrella of protections afforded by
the Fifth Amendment. See Friedman, 473 N.W.2d at 835, 837 (citing Minn. Const. art I,
§ 6). Accordingly, “[c]hemical testing in a DWI proceeding, pursu ant to the implied
consent law, is not self -incrimination and does not trigger Fifth Amendment protection
against self-incrimination.” Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 259 (Minn.
App. 2000).
Second, conduct that unreasonably delays or otherwise frustrates the testing
process—even conduct involving the limited right to counsel—may constitute test refusal.
See Collins, 655 N.W.2d at 658 (driver’s belligerent speech and behavior, during which
she invoked her limited right to counsel, frustrated the testing process and amounted to test
refusal); Busch, 614 N.W.2d at 2 59-60 (driver’s silence during reading of breath -test
advisory and conduct constituted retraction of his request for counsel and test refusal).
Thus, evidence of the manner in which a person exercised his limited right to counsel may

8
be relevant to whether he frustrated the testing process to such an extent that he refused the
test.
That is the situation here. Noel’s conduct before and during the administration of
the breath test are relevant to whether his conduct frustrated the testing process. The fact
that he spoke to an attorney for 45 minutes is one of several circumstances that tended to
show he sought to unreasonably delay or otherwise obstruct the testing process. He initially
attempted to burp up stomach contents, which could delay the process; he made the officer
re-read portions of the breath-test advisory; and he did not follow repeated instruction s to
provide sufficient airflow, causing the test to restart several times over the course of three
minutes, and resulting in a deficient sample.
In sum, this record persuades us that the district court did not abuse its discretion or
otherwise err by admitting the officer’s testimony that Noel spoke with an attorney for 45
minutes before the officer administered the breath test.
Affirmed.