Robert Herman Larsen, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A20-1639

Robert Herman Larsen, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed September 7, 2021
Affirmed
Worke, Judge

Lincoln County District Court
File No. 41-CV-20-6

Gregg L. Solomon, Diebold Law Firm, LLC, Marshall, Minnesota (for appellant)

Keith Ellison, Attorney General, Ryan Pesc h, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Slieter, Judge; and Rodenberg,
Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges the district court’s decision to sustain the revocation of his
driver’s license, arguing that officers did not have reasonable articulable suspicion to stop
him and denied him his right to an additional chemical test. We affirm.
FACTS
In the afternoon of November 11, 2019, Officer Vatsaas was on routine patrol. The
officer typically looks at drivers to see if th ey are using their cellphones or not wearing a
seatbelt. Appellant Robert Herman Larsen drove by the officer, traveling in the opposite
direction. Looking through the driver’s side window, Officer Vatsaas noticed that Larsen
was not wearing a seatbelt or was wearing it improperly. The officer stopped Larsen.
The officer told Larsen why he stopped him and asked if the seatbelt was tucked
under his arm. Larsen replied, “I think it just . . . yeah, I got all th ese clothes on today.”
The officer asked Larsen if he put the seatbelt over his shoulder when the officer was about
to stop him. Larsen replied, “I guess, I don’t know . . . I’m just not sure.”
The officer ultimately arre sted Larsen for suspicion of driving while impaired
(DWI) and transported him to the jail. The o fficer read Larsen the breath-test advisory,
and Larsen contacted an attorn ey before agreeing to submit to the breath test. Larsen’s
alcohol concentration tested over the lega l limit, and he was charged with DWI.
Respondent Commissioner of Public Safety re voked Larsen’s driver’s license. Larsen
petitioned for judicial review of the revocation, challenging the basis for the stop and
claiming that he was denied his right to a second chemical test.
3
The district court held a hearing. Office r Vatsaas testified that he stopped Larsen
for a seatbelt violation. When he approached the vehicle, Larsen had his seatbelt on. He
testified that it is not uncommon for a person to put their seatbelt on after they are stopped.
When Officer Vatsaas asked Larsen about his seatbelt use, Larsen did not offer a clear
answer and stated that he did not know when he had put his seatbelt on.
Officer Vatsaas testified that he offered Larsen a breath test. When asked if Larsen
asked about another test, Officer Vatsaas testified that “[e]ither directly before [or during]
the Breath Test Advisory, [Larsen] requested to provide a blood sample as his evidentiary
test.” Officer Vatsaas told La rsen that he was only offering a breath test because he did
not want to get a search warrant for a different chemical test. Officer Vatsaas testified that
Larsen never requested an additional test. If he had, the officer’s pr actice is to provide a
phone book, phone, and an opportunity to arrange a test. Officer Vatsaas testified that if
Larsen had requested an additional test it w ould have been documented in his report, but
nothing related to a request for an additional test was in his report.
Officer Szerlip testified that he was work ing at the jail on November 11, 2019. He
testified, “Every time that I recall being aske d for additional tests, I’ve always provided
phone books and phone.” He noted requests for additional tests in the jail log. There was
nothing in the jail log related to Larsen requesting an additional test.
Larsen testified that his vehicle’s window s are tinted, implying that the officer could
not have seen into his vehicle to observe an alleged seatbelt vi olation. When asked if he
requested an additional test, Larsen testified:
4
I wanted to take a different type of test. I wanted to take, like,
a chemical test -- like a urine or blood test. And, uh, and I just,
uh, yeah, you know, Vatsaas said that, you know, you can’t.
You know, I -- I can’t get a search warrant for that so -- so I
need to have a search warrant. So I took the test. And then,
uh, immediately after I took that test, then I -- I realized that I
was just over the legal limit. So , I’ve always been told that --
that tests can come out differently, so I immediately requested
a different type of test. But I was told at that point and time
that, Larsen, you have -- we ’re putting you in a twelve-hour
hold. You can make one call and, from that point, you can go
on -- you know, you can make one call and your call is -- is for
your pick-up in the morning because we’re -- we’re taking your
cell phone, we’re taking everything -- all your rights away at
this point in time and we’re throwing you in a cell.

The district court sustained the revocation of Larsen’s driver’s license. The district
court found both officers’ testim onies to be credible and co ncluded that Officer Vatsaas
had a reasonable articulable suspicion of crim inal activity to stop Larsen for a seatbelt
violation, and that the officers did not deny Larsen an additional test because he requested
an alternative test, not an additional test. This appeal followed.
DECISION
Investigatory stop
Larsen first argues that the district cour t erred by concluding that Officer Vatsaas
had reasonable articulable suspicion to stop his vehicle. This court reviews a district
court’s determination that an officer had re asonable articulable suspicion to justify an
investigatory stop de novo. Hoekstra v. Comm’r of Pub. Safety , 839 N.W.2d 536, 539
(Minn. App. 2013). In conducting this de no vo review, this court reviews the findings of
fact supporting the district court’s decision for clear error and will not reverse unless “left
with a definite and firm conviction that a mistake has been committed.” Jasper v. Comm’r
5
of Pub. Safety, 642 N.W.2d 435, 440 (Minn. 2002) (quotation omitted). A factual finding
“is not clearly erroneous if it is reasonably supported by the evidence as a whole.” State v.
Barshaw, 879 N.W.2d 356, 366 (Minn. 2016). This court defers to the district court’s
credibility determinations. State v. Klamar, 823 N.W.2d 687, 691 (Minn. App. 2012).
While warrantless searches ar e generally unreasonable, State v. Gauster , 752
N.W.2d 496, 502 (Minn. 2008), an officer may conduct a warrantless limited investigatory
stop when the officer has reasonable artic ulable suspicion of criminal activity. State v.
Wiegand, 645 N.W.2d 125, 135 (Minn. 2002). The reasonable-suspicion standard is “not
high.” State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011) (quotation omitted). But while
an officer “need not be absolutely certain of the possibility of criminal activity,” he cannot
rely on “an inchoate and unpartic ularized suspicion or hunch.” State v. Schrupp , 625
N.W.2d 844, 847 (Minn. App. 2001) (quotation omitted), review denied (Minn. July 24,
2001). An officer’s reasonable suspicion is based on the totality of the circumstances while
“appropriately relying on inferences and de ductions that might elude someone without
similar training.” Wilkes v. Comm’r of Pub. Safety , 777 N.W.2d 239, 244 (Minn. App.
2010). “Generally, if an officer observes a violation of a traffic law, no matter how
insignificant the traffic law, that observati on forms the requisite particularized and
objective basis for conducting a traffic stop.” State v. Anderson , 683 N.W.2d 818, 823
(Minn. 2004).
Here, Officer Vatsaas stoppe d Larsen for a seatbelt viol ation. Under Minn. Stat.
§ 169.686, subd. 1(a) (2018), “a properly adjusted and fastened seat belt, including both
the shoulder and lap belt when the vehicle is so equipped, shall be worn by the driver.”
6
“Driving without a seat belt is a crime. . . . When an officer observes a driver not wearing
a seat belt, he has a reasonable suspicion to stop that person for criminal activity.” State v.
Poehler, 935 N.W.2d 729, 733 (Minn. 2019). But th e officer must articulate facts that
support the conclusion that the driver was not wearing a seatbelt. Id. at 733-34.
Officer Vatsaas articulated facts that supp orted his conclusion that Larsen was not
wearing a seatbelt. The officer testified that he observed that Lars en was not wearing a
seatbelt or not wearing it properly. Lars en responded evasivel y when the officer
questioned him about the seatbelt. The officer asked Larsen if he put his seatbelt on when
he noticed the officer preparing to stop him, and Larsen replied “I guess, I don’t know.”
Additionally, the recording of the stop from the officer’s dash camera shows Larsen turning
to his right and looking down , as someone would if they were affixing a seatbelt.
Moreover, the district court fo und that the officer credibly testified that he did not see
Larsen wearing a seatbelt. Thus, the record supports the conclusion that the officer had
reasonable articulable suspicion to stop Larsen for a seatbelt violation.
Additional chemical test
Larsen also argues that the district court erred by concluding that the officers did
not violate his right to an additional chemical test. Whether an officer unlawfully denied
an additional test involves questions of law and fact. Schulz v. Comm’r of Pub. Safety, 760
N.W.2d 331, 333 (Minn. App. 2009). “The di strict court’s findings of fact must be
sustained unless clearly erroneous, but this c ourt reviews de novo whether, as a matter of
law, the driver’s right to an independent test was [violated].” Id.
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A person given a chemical test has the ri ght to have someone of their choosing
administer a chemical test in addition to any administered by an officer. Minn. Stat.
§ 169A.51, subd. 7(b) (2018). If an officer prevents or denies a person an additional test,
evidence of the test administered by the officer is not admissible. Id. The person given a
chemical test has the responsibility to assert his intent to have an additional test. See Davis
v. Comm’r of Pub. Safety , 509 N.W.2d 380, 390 (Minn. App. 1993), aff’d, 517 N.W.2d
901 (Minn. 1994). And it is th e duty of an attorney, not a police officer “to explain the
extent and scope of the right to an additional test.” Schulz, 760 N.W.2d at 335 n.1
(quotation omitted).
Larsen argues that “Trooper Vatsaas asked [him] . . . [to] take a breath test. [Larsen]
. . . ask[ed] the trooper whether he has any ‘other options,’ to which Trooper Vatsaas then
replies, ‘No,’ This evidence is enough to conclude that Trooper Vatsaas prevented or
denied [Larsen] from obtaining an additional test.” But as the district court concluded, the
record shows that Larsen requested a different test, not an additional test.
First, Officer Vatsaas testified that Larsen did not request an additional test. Second,
both officers testified that they routinely pr ovide individuals requesting additional tests a
phone and phone books, and they indicate th e request in police reports and jail logs.
Neither officer found any documentation in the police report or the jail log indicating that
Larsen requested a second test. The district court found the officers to be credible.
Larsen relies on the implied-consent recording to support his claim that he asserted
his right. In the recording, after Larsen spoke with an attorney, Officer Vatsaas asked him
to take a breath test. Larsen asked if he ha d other options, and the officer replied, “No.”
8
Larsen asked if he could take a urine or a blood test, again the officer replied, “No.” This
shows that Larsen requested a test other than a breath test, not an additional test. Although
Larsen argues that he requested an addition al test after the imp lied-consent recording
ended, he offers nothing to su pport this argument. The dist rict court found that Larsen
testified that he “believe[d]” he requested “a n additional” test afte r the recording ended,
but that he also admitted that his memory of the incident is “not good.” Based on the
record, the district court did not err in concluding that the officers did not violate Larsen’s
right to an additional chemical test.
Affirmed.