Mohamed Abdikadir Ahmed, 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This opinion is nonprecedential except as provided by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
A21-0292

Mohamed Abdikadir Ahmed, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed September 13, 2021
Affirmed
Reyes, Judge

Dakota County District Court
File No. 19HA-CV-20-1848

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

Keith Ellison, Attorney General, Nicholas Moen, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In this appeal from a district court’s order denying reinstatement of appellant’s
driving privileges, appellant argues that (1) his license cannot be revoked because he did
not refuse both a urine and a blood test and (2) even if he did refuse testing, he had an
“immediate change of mind.” We affirm.
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FACTS
In April 2020, a Minnesota state patrol officer stopped appellant Mohamed
Abdikadir Ahmed on suspicion of driving while impaired. The officer obtained a search
warrant to test appellant’s blood or urine. The officer told appellant that he had a warrant
and asked if he would take a blood test. Appellant said he does not like blood and asked
to do a urine test instead. The officer a greed. Appellant drank several glasses of water
over the course of approximately an hour and a half . However, he was unable to provide
a urine sample.
The officer told appellant that he would be considered to have refused testing.
Appellant then asked to provide a blood sample instead, but the officer rejected his request,
and marked appellant as a refusal. Respondent commissioner of public safety (the
commissioner) revoked appellant’s driving privileges.
Appellant petitioned for judicial review, seeking to reinstate his driving privileges.
The district court held a remote hearing in September 2020, at which appellant ’s attorney
appeared but he did not. The c ommissioner called the officer as its sole witness, and
appellant’s attorney submitted a recording of the officer’s interactions with appellant as its
sole exhibit. In addition to testifying about the above facts, t he officer testified that he
thought appellant had a reasonable time to provide a urine sample and tried to
“manipulat[e] the time. ” The district court denied appellant’s petition for reinstatement.
This appeal follows.

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DECISION
Following denial of a petition to reinstate driving privileges, we review the district
court’s findings of fact and credibility determinations for clear error . Frost v. Comm’r of
Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984); see also Becker v. Comm’r of Pub.
Safety, 374 N.W.2d 313, 306 (Minn. App. 1985). We review the district court’s
conclusions of law de novo. Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn.
1985).1 Whether a driver refused to submit to testing is a question of fac t that we review
for clear error. Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717, 722 (Minn. App. 1988).
I. A driver need not refuse both a blood test and urine test for the commissioner
to revoke the driver’s driving privileges.

Appellant concedes that his inability to produce a urine sample constitutes refusal
of a urine test by conduct but argues that his license cannot be revoked unless he refused
both a urine and a blood test. We disagree.
The commissioner must revoke the license of a driver who refuses to submit to
chemical testing. Minn. Stat. 171.177, subd. 4. “Action may be take n against a person
who refuses to take a blood test only if a urine test was offered and action may be taken
against a person who refuses to take a urine test only if a blood test was offered .” Minn.
Stat. § 171.177, subd. 2 (emphasis added). This statute requires that an alternative test be
offered to a driver . Id.; State v. Hagen , 529 N.W.2d 71 2, 714 (Minn. App. 1995)
(interpreting same language in Minn. Stat. § 169.123, subd. 2(c) (1992), which is

1 We may rely on caselaw interpreting the driving-while-impaired statutes, Minn. Stat.
§ 169A.01-.78 (2018), in cases under Minn. Stat. § 171.177 (2018). Jensen v. Comm’r of
Pub. Safety, 932 N.W.2d 844, 846-47 (Minn. App. 2019).
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predecessor to current driving-while-impaired statute, Minn. Stat. § 169A.51, subd. 4
(2020)). The alternative -test requirement is satisfied if an officer initially offers a driver
both tests. Hagen, 529 N.W.2d at 714. If both tests are offered, a driver is bound by his
choice of test and, if the driver subsequently refuses his chosen test, the officer need not
reoffer the unchosen or declined test. Franko v. Comm’r of Pub. Safety, 432 N.W.2d 469,
472 (Minn. App. 1988). A driver’s refusal may be based on the driver’s conduct, including
inability to produce a sample, in light of the totality of the circumstances. State v. Ferrier,
792 N.W.2d 98, 102 (Minn. App. 2010); see also State, Dept. of Highways v. Lauseng, 183
N.W.2d 926, 927 (Minn. 1971) (noting that officers should not have to “ascertain whether
or not the driver is making a good -faith effort to produce a sample”) . We construe the
driving-while-impaired statutes liberally in favor of the public interest and against the
private interests of the drivers involved. Franko, 432 N.W.2d at 472.
Here, the officer offered appellant a blood test but appellant declined it. Appellant
asked to take a urine test, which the officer provided. Appellant then refused the urine test
by failing to produce a sample, even after having an hour and a half to do so, during which
appellant drank several glasses of water. Section 171.177, subdivision 2, requires only that
appellant be offered both tests, not that he must refuse both tests. On these particular facts,
we conclude that the officer offered appellant both tests and appellant refused the urine
test, which is sufficient to revoke his driving privileges.
Appellant argues that , under Lauseng, the officer must reoffer an alternative test
after a driver is unable to produc e an adequate sample for his chosen test . The supreme
court stated in Lauseng that “officers acted properly when, upon defendant’s apparent
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inability to produce a urine sample, they then offered him the alternative of a blood or
breath test.” 183 N.W.2d at 927 (emphasis added). Appellant argues that only after a
driver refuses the reoffered test may the driver’s license be revoked. This argument is not
persuasive for three reasons.
First, this passage in Lauseng is dicta. Dicta are expressions by the court that do
not squarely address the facts and issues before it. Wheeler v. State, 909 N.W.2d 558, 562-
63 n.1 (Minn. 2018). As such, dicta are not binding in subsequent cases. Id. Lauseng
addressed whether the driver refused testing by failing to produce a urine sample and then
refusing to take subsequently offered alternative tests . 183 N.W.2d at 926 -27. The
Lauseng court’s comment that the officers “acted properly” by reoffering the alternative
tests does not squarely address that issue and is therefore not binding on this court.
Second, this passage in Lauseng does not stand for the proposition that officers must
reoffer a previously declined or unchosen alternative test before a license can be revoked.
It states that officers acted properly by reoffering a test but does not require them to do so.
Id. at 927.
Third, subsequent caselaw confirms that officers ar e not required to reoffer , or
acquiesce to requests to take, previously declined or unchosen tests. In Franko, this court
considered whether a driver who initially agreed to a blood test, then refused the blood test
and requested a urine test, refused testing. 432 N.W.2d at 471. In holding that the driver
refused testing under those circumstances , this court stated that, after a driver has chosen
between tests, the testing officer need not reoffer an alternative test if the driver later refuses
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the chosen test.2 Franko, 432 N.W.2d at 473 . Like Lauseng, Franko recognizes that the
officer may reoffer a test and even that it may be the better procedure to do so. But neither
case requires it. Appellant’s reliance on Lauseng therefore is not persuasive.
II. Appellant did not have an immediate change of mind.
Appellant argues that , even if he refused testing, he had an immediate change of
mind. We are not persuaded.
As an initial matter, the district court did not address this argument , even though
appellant raised it in his briefing to the district court. We treat the district court’s failure
to address an argument as an implicit rejection of that argument. See Palladium Holdings,
LLC v. Zuni Mortg. Loan Trust 2006 -OA1, 775 N.W.2d 168, 177 -78 (Minn. App. 2009)
(noting that failure to address a motion is an implicit denial of that motion), review denied
(Minn. Jan. 27, 2010) ; see also Gunderson v. Comm’r of Pub. Safety , 351 N.W.2d 6, 7
(Minn. 1984) (reversing on issue district court did not address).
A driver’s withdrawal of his refusal to submit to a test cannot cure the refusal unless
the withdrawal is “almost immediate.” Schultz v. Comm’r of Pub. Safety, 447 N.W.2d 17,
19 (Minn. App. 1989). Withdrawal is immediate if it is “not separated from [the] initial
response by any substantial time, place, or a telephone call to counsel or a friend.” Id. We
have consistently rejected adopting a more flexible rule allowing drivers to withdraw

2 This statement squarely addresses the facts and issue in Franko, including that the driver
requested an alternative test which the officer did not allow her to take, and is therefore not
dicta. Wheeler, 909 N.W.2d at 562-63 n.1.
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refusal in more circumstances. See Lewis v. Comm’r of Pub. Safety, 737 N.W.2d 591, 593
(Minn. App. 2007) (citing cases).
The facts of this case are similar to those in Franko, which was decided after Schultz,
in which an officer offered the driver a choice between tests and the driver chose a blood
test, thereby declining a urine test. 432 N.W.2d. at 471. She then refused to take the blood
test for fear of contracting AIDS and requested to take a urine test. Id. The officer did not
allow the urine test, and this court affirmed revocation of the driver’s licens e. Id. at 473.
Here, appellant declined a blood test and instead chose a urine test. He then changed his
mind about wanting to take a blood test an hour and a half later. We therefore conclude
that appellant did not have an immediate change of mind.
Appellant appears to argue that we should determine immediacy from when the
officer marked him as a refusal rather than from when he declined the blood test and chose
a urine test. But by making his choice to take the urine test, appellant declined the bloo d
test from the outset, and that is the relevant time from which to determine immediacy. See
Franko, 432 N.W.2d at 473 . Other cases likewise have measured immediacy from the
driver’s response to the offer of testing rather than from the officer’s actions based on that
response. See, e.g., Mossak v. Comm’r of Pub. Safety, 435 N.W.2d 578, 579 (Minn. App.
1989) (affirming revocation despite attempted withdrawal five to ten minutes after driver’s
expression of refusal) , review denied (Minn. Apr. 10, 1989) ; Schultz, 447 N.W.2d at 19
(stating that change of mind “not separated from [driver’s] initial response by any
substantial time”); Parsons v. Comm’r of Pub. Safety , 488 N.W.2d 500, 502 -03 (Minn.
App. 1992) (affirming revocation , without reference to officer’s actions, when driver
8
changed her mind nine minutes after expressing refusal). Appellant’s argument is therefore
unavailing.
Affirmed.