Chad Henry Lee Jackson, 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This opinion is nonprecedential except as provided by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
A21-0716

Chad Henry Lee Jackson,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed March 14, 2022
Affirmed
Gaïtas, Judge

Ramsey County District Court
File No. 62-CV-20-4656

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for appellant)

Keith Ellison, Attorney General, Sarah A. Me zera, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Florey, Pres iding Judge; Slieter, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Chad Henry Lee Jackson appeals the district court’s order sustaining the
revocation of his driving privileges. We affirm.
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FACTS
Jackson was arrested for suspected driving while impaired (DWI). After his arrest,
an officer attempted to administer a breath te st at the police station, but Jackson did not
provide a sufficient breath sample. His inability to complete the test was deemed a refusal
to submit to chemical testing. Based on hi s refusal, the commissioner of public safety
revoked his driving privileges.
Jackson challenged the commissioner’s order of revocation in the district court,
alleging that he was physica lly incapable of performing th e breathalyzer test, and the
district court held an evidentiary hearing. The evidence introduced at that hearing was as
follows.
On September 4, 2020, Jackson drove to pi ck up his children in Shoreview. After
having brief contact with Jackson, the childr en refused to go w ith him because they
believed he was drunk. The children’s moth er reported to the police that Jackson was
possibly driving while impaired. Jackson dr ove to his own home in New Brighton, and
when he arrived, he contacted police to report that the children’s mother had infringed on
his parenting time.
Officers went to Jackson’s home in response to the calls. They noted that the hood
of his car was still warm. After speaking with Jackson, they suspec ted that he had been
driving under the influence of alcohol. Thei r suspicions were further confirmed by his
poor performance on field sobriety tests and his 0.21 reading on a portable breath test
(PBT). Notably, Jackson did not have difficulty providing a breath sample for the PBT.
The officers arrested Jackson for suspected DWI.
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Following his arrest, Jackson agreed to take the Datamaster (DMT) breath test. An
officer who is a certified DMT operator attempted to administer the test three times in the
presence of another officer. During the first attempt, Jackson started and then stopped
blowing into the machine, broke a mouthpiece, coughed into the mouthpiece, removed the
mouthpiece from his mouth and stared at the officers, dropped the mouthpiece, and chatted
with the officers. On the s econd attempt, Jackson stoppe d the breath sample to talk,
coughed, ignored instructions, puffed his cheeks, and starte d and stopped blowing. And
during the third attempt, Jackson repeated his earlier behaviors. Despite three attempts,
Jackson did not provide a sufficient breath sample for testing.
The three attempts occurred over a nine -minute period. According to the DMT
operator, Jackson was “deliberately attempting to beat the test” by “doing as little as he
possib[ly could] to try and do the test without actually doing the test.” The second officer
present did not believe that Jackson was “delib erately trying to not take the test,” but he
saw no indication that Jackson was having difficulty breathing into the machine. Both
officers recalled that Jackson remarked about smoking cigars. But Jackson never claimed
to the officers that he was physically unable to complete the tests.
During the district court hearing, Jacks on provided numerous explanations for his
failure to provide a sufficient breath sample, including seasonal allergies, nervousness and
anxiety around law enforcement, cigar smoki ng, and inadequate instructions from the
officers. He testified that he did not know what would happen if the test showed he was
above the legal limit for alcohol. Following the attorneys’ direct and cross-examination of
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Jackson, the district court asked him about his prior DWI offenses. Jackson acknowledged
that he had two prior DWIs, including a refusal.
The district court found that Jackson’s testimony was not cred ible and was “self-
serving.” And the district court rejected his claim that he was physically unable to provide
a breath sample because he failed to present any evidence supporting it. The district court
sustained the revocation of Jackson’s driving privileges.
Jackson appeals.
DECISION
I. The district court did not commit reve rsible error by inquiring about Jackson’s
prior DWI charges during the implied-consent hearing.

After the attorneys had comple ted their questioning of Ja ckson, the district court
followed up with several questions:
Q: All right. I have a couple questions for you,
Mr. Jackson, since you opened the door to these
questions, that you’re not sure what the outcome would
be and that you have limited experience.
Sir, isn’t this the thir d time you’ve been charged
with a DWI?
A: Yes, sir.
Q: And in your previous—and this is public record—your
previous one was in 2011—your first one; is that
correct?
A: Yes, sir.
Q: And did you have to blow into the DMT at that time?
A: I did not in 2011, no, sir.
Q: All right. Well, your sec ond one then was what? 2017?
A: Yes, sir.
Q: Did you have to blow into the DMT at that time?
A: No, sir, I did not.
Q: And can you tell me why you didn’t?
A: In 2017, I did refuse.
Q: All right.
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A: I don’t—I wanted to speak to a lawyer. And I chose to
refuse, yes, sir.
Q: All right. So you are actua lly very familiar with what
the consequences are of testing on a DMT, aren’t you?
A: I’ve never—not—yes, sir. But never tested on a DMT.
I’ve never tested on a DMT.

Jackson argues that the district court e rred by asking questions. And he contends
that the questions were improper because th ey concerned evidence outside of the record
created by the parties. The commissioner resp onds that Jackson failed to object to the
district court’s questioning and therefore waived the issue for the purpose of this appeal.
Additionally, the commissioner argues that the questions were not improper and did not
influence the district court’s ultimate decision.
As an initial matter, we note that a district court has authority to question witnesses.
Minn. R. Evid. 614(b) (allowing a district court to question witnesses called by a party);
see also Olson v. Blue Cross & Blue Shield , 269 N.W.2d 697, 702 (M inn. 1978) (“It is
within the discretion of the trial court to question a witness called by a party.”).
Questioning a witness to clarify testimony is “a proper exercise of the power granted by
Rule 614.” Teachout v. Wilson , 376 N.W.2d 460, 465 (Minn. App. 1985), rev. denied
(Minn. Dec. 30, 1985). A district court al so has a duty to “search for justice,” and
questioning a witness may assist the district court in performing this function. Olson, 296
N.W.2d at 702. But in certain circumstances, a district court’s que stioning of a witness
can amount to reversible error. See, e.g., State ex rel. Hastings v. Denny, 296 N.W.2d 378,
379 (Minn. 1980) (holding that a district court’s questioning of a witness in front of the
6
jury was reversible error when resolution of the case depended largely on witness
credibility).
Jackson argues that the district court’ s questions improperly introduced evidence
that was outside of the record, which suggested that the district court had performed outside
research and was not impartial. But Jackson did not object to the district court’s questions.
Generally, a party must object to the district court’s questioning to preserve the issue for
appeal. State v. Olisa, 290 N.W.2d 439, 440 (Minn. 1980 ) (“[W]e do not reach the issue
of whether the trial court erred in interrogating defendant, because defendant, by his failure
to object, must be deemed to have forfeited hi s right to have this court consider the issue
on appeal and because plain error is not apparent.”); Minn. R. Evid. 614(c) (“Objections to
the calling of witnesses by the court or to interrogation by it may be made at the time or at
the next available opportunity when the jury is not present.”); Minn. R. Evid. 614 1977
comm. cmt. (“A specific objection is required to preserve the issue for appeal.”); see also
Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (stating that the reviewing court
generally only considers issues that were presented and considered by the lower court).
Notwithstanding Jackson’s failure to object, based on our review of the record, we
are satisfied that the district court’s questions did not constitute reversible error. This was
a court hearing and not a jury trial. See Hastings, 296 N.W.2d at 379 (admonishing district
courts to exercise caution in qu estioning witnesses in a jury trial to avoid influencing the
jury’s decision). Alth ough neither party had formally pr esented evidence of Jackson’s
prior convictions, during the same proceeding, the district court was asked to rule on the
impoundment of Jackson’s license plates, which required consideration of his prior record
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of DWIs. See Minn. Stat. § 169A.60, subds. 1(d)(1), 2(a)(1) (2020) (providing that plate
impoundment is required for a DWI violation that results in revocation of driving privileges
“within ten years of a qualified prior impaired driving incident”). The district court used
the information to impeach Jack son’s credibility after he “ope ned the door” by testifying
that he did not understand the purpose of the DMT breath test. See Olson, 296 N.W.2d at
702 (holding that district c ourt did not abuse its discretion by questioning a witness, and
noting that counsel’s questioning had “partia lly covered the same ground”). And the
district court’s findings show that it relied on other aspects of Jackson’s testimony to
conclude that he was not a credible witness. See id. (noting that the district court’s findings
were independently supported by other evidence). We therefore reject Jackson’s argument
that the district court committed reversible error by questioning him about his prior DWI
charges.
II. The district court did not clearly err in finding that Jackson failed to sustain
his burden of proving the affirmative defense of physical inability.

In reviewing a district court’s order su staining an implied- consent revocation,
findings of fact will not be set aside unless they are clearly errone ous, and “due regard”
must be given to credibility determinations. Minn. R. Civ. P. 52.01; Ellingson v. Comm’r
of Pub. Safety , 800 N.W.2d 805, 806 (Minn. App. 2011), rev. denied (Minn. Aug. 24,
2011). Under clear-error review, an appellate court’s duty is not to reweigh the evidence
or to reengage in fact-finding, but rather to “fairly consider[] all the evidence and . . .
determine[] that the evidence reasonably supports the decision.” In re Civ. Commitment of
Kenney, 963 N.W.2d 214, 222 (Minn. 2021).
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Failure to provide two ad equate breath samples c onstitutes a refusal under
Minnesota’s implied-consent law. Minn. Stat . § 169A.51, subd. 5(a), (c) (2020). But a
driver may prove as an affirmative defense th at the refusal to subm it to a chemical test
“was based on reasonable grounds.” Minn. Stat. § 169A.53, subd. 3(c) (2020). A driver’s
inability to provide a br eath sample is one such ground th at may be raised at an implied-
consent hearing. Wolle v. Comm’r of Pub. Safety , 413 N.W.2d 258, 260 (Minn. App.
1987). To rely on this affirmative defense, a driver must prove by a preponderance of the
evidence that he was unable to provide adequate breath samples due to physical inability.
Bale v. Comm’r of Pub. Safety, 385 N.W.2d 870, 873 (Minn. App. 1986). Whether a person
is physically unable to provide a breath sample is a question of fact for the district court
that we review for clear error. Burke v. Comm’r of Pub. Safety , 381 N.W.2d 903, 904
(Minn. App. 1986).
Jackson contends that he satisfied hi s burden of proof by presenting sufficient
evidence of his physical inability to test. Because the district court did not clearly err in
finding otherwise, we disagree.
Although Jackson testified that he was unable to provide a sufficient breath sample
for various reasons—including allergies, anxi ety, and cigar smoking—the district court
found that his testimony was not credible. Moreover, the district court noted that Jackson
failed to introduce any independent evidence to support his claim that he was unable to
take the DMT breath test. These findings are not clearly erroneous. Jackson’s testimony
was the sole evidence provided in support of his affirmative defense. And we defer to the
district court’s credibility determinations. See Engebretson v. Comm’r of Pub. Safety, 395
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N.W.2d 98, 100 (Minn. App. 1986) (declining to “substitute our ju dgment of credibility
for the [district] court’s” when the record reasonably su pported the district court’s
credibility determinations); see also Minn. R. Civ. P. 52.01 (“[D]ue regard shall be given
to the opportunity of the trial court to judge the credibility of the witnesses.”). Because the
record supports the district court’s finding that Jackson did not have a physical inability to
take the DMT breath test, it did not err in sustaining the revocation of his driving privileges.
Affirmed.