Jesse M. Gregorich, 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This opinion is nonprecedential except as provided by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
A21-1200

Jesse M. Gregorich,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed October 31, 2022
Affirmed
Worke, Judge

St. Louis County District Court
File No. 69VI-CV-20-83

Jesse M. Gregorich, Eveleth, Minnesota (pro se appellant)

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

Considered and decided by Gaïtas, Presiding Judge; Worke, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges the district court’s order sustaining the revocation of his
driving privileges. We affirm.

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FACTS
During the early morning hours of December 4, 2019, appellant Jesse M. Gregorich
was arrested for suspected driving while impaired (DWI). Around 1:00 a.m., a concerned
citizen reported to a Minnesota State Patrol trooper that she had seen somebody slumped
over the steering wheel of a car parked across the street from a bar in an empty parking lot.
Based on this report, the trooper believed there was a possible DWI or a “medical episode.”
The trooper responded to the report and saw a car idling, facing a snowbank, with
its headlights on and the driver’s door open. The only occupant —later identified as
Gregorich—was asleep in the driver’s seat and “leaning over the driver’s . . . door, drooling
over himself.” The trooper woke Gregorich and asked how he arrived at the parking lot
that night. Gregorich answered, “I drove.” He also stated that he was drinking but did not
say how much. The trooper testified that he “could smell an overwhelming odor of alcohol
coming from the vehicle” that indicated impairment.
Gregorich performed several field sobriety tests. Based on the results of these tests,
the trooper administered a preliminary breath test which showed that Gregorich’s blood-
alcohol concentration was 0.16.
The trooper transported Gregorich to the St. Louis County jail and read him the
breath-test advisory. When asked if he understood the advisory, Gregorich responded,
“[N]o.” The trooper then provided Gregorich—who wanted to contact an attorney— with
a telephone and multiple telephone books. Gregorich began calling attorneys at 1:35 a.m.
Gregorich made two calls but did not reach an attorney or leave a voice message. The
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trooper testified that Gregorich “gave up, crossed his arms, sat in a chair and . . . stared at
[the trooper].” The trooper ended Gregorich’s attorney time at 1:58 a.m.
Gregorich refused to take a breath test without consulting an attorney. As a result,
Gregorich was charged with refusing to submit to testing. The trooper escorted Gregorich
to jail for an intake procedure and read him a Miranda warning.
The commissioner revoked Gregorich’s driver’s license. Gregorich petitioned the
district court to reinstate his driver’s license. In July 2021, the district court denied the
petition. This appeal followed.
DECISION
In reviewing a district court’s order sustaining an implied-consent revocation, we
will not set aside findings of fact unless they are clearly erroneous. 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). “Findings of fact are clearly erroneous if, on the entire evidence,
we are left with the definite and firm conviction that a mistake occurred.” State v.
Andersen, 784 N.W.2d 320, 334 (Minn. 2010) (citation omitted). We r eview the district
court’s application of law to fact de novo. State v. Dorn, 887 N.W.2d 826, 830
(Minn. 2016).
Stop and seizure
Gregorich argues that the trooper did not have the necessary reasonable, articulable
suspicion when approaching his vehicle to stop and seize him. This is a question of law
reviewed de novo. State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).
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The United States and Minnesota Constitutions prohibit unreasonable seizures by
the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10; see Knapp v. Comm’r
of Pub. Safety, 610 N.W.2d 625, 628 (Minn. 2000) (applying constitutional seizure
principles to a license- revocation proceeding). A seizure occurs “when [an] officer, by
means of physical force or show of authority, has in some way restrained the liberty of a
citizen.” Matter of Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quotation
omitted). “A person generally is not seized merely because a police officer approaches
him in a public place or in a parked car and begins to ask questions.” State v. Harris, 590
N.W.2d 90, 98 (Minn. 1999); see also State v. Klamar, 823 N.W.2d 687, 691
(Minn. App. 2012) (concluding “that the trooper’s approach to Klamar’s [parked] vehicle
to check on the welfare of its occupants was not a seizure”).
Police o fficers may initiate a limited, investigatory stop without a warrant if the
officer has a reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392
U.S. 1, 22 (1968); Harris, 590 N.W.2d at 998. Whether an officer has the necessary
suspicion to conduct a limited, investigatory stop depends on the totality of the
circumstances. Klamar, 823 N.W.2d at 691.
The district court determined that the trooper justifiably believed Gregorich was
having a medical episode and had reasonable, articulable suspicion that he was committing
a DWI1 under the totality of the circumstances, and that any seizure occurring when the

1 Under the Minnesota Impaired Driving Code, a person is guilty of DWI if he or she is
driving, operating, or in physical control of a motor vehicle while under the influence of
alcohol. Minn. Stat. § 169A.20, subd. 1(1) (2020).
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trooper approached Gregorich’s vehicle was therefore lawful. The circumstances here
included a passerby reporting a person slumped over the steering wheel of a car in an empty
parking lot across the street from a bar. 2 When the trooper arrived on scene, he saw a car
parked in an otherwise empty parking lot, idling with its headlights on, and facing into a
snowbank. The trooper also observed that the car’s driver’s side doo r was open and that
Gregorich was slumped over the driver’s side door asleep and drooling. Based on the
trooper’s training and experience, he reasonably believed Gregorich was having a medical
episode or was committing or had committed a DWI. See Klamar, 823 N.W.2d at 691
(stating that district courts “may consider the officer’s experience, general knowledge, and
observations; background information, including the nature of the offense suspected and
the time and location of the seizure; and anything else that is relevant”).
We agree that the initial seizure was lawful and did not violate Gregorich’s
constitutional rights.
Right to counsel
Gregorich argues that the trooper did not give him sufficient time to vindicate his
right to counsel. Whether this right was vindicated is a mixed question of law and fact.
Hartung v. Comm’r of Pub. Safety, 634 N.W.2d 735, 737 (Minn. App. 2001), rev. denied
(Minn. Dec. 11, 2001).

2 Included in the trooper’s report was the first and last names of the person who reported
Gregorich’s parked car. See S tate v. Davis, 393 N.W.2d 179, 181 (Minn. 1986) (stating
that face-to-face tips are more reliable than those called in because the informant can be
held accountable for giving false information).
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The United States and Minnesota Constitutions guarantee criminal defendants the
right to counsel. U.S. Const. amend VI; Minn. Const. art. I, § 6. In Minnesota, “A driver
who has been stopped for a possible DWI violation and has been asked to submit to a
chemical test” has a limited right to counsel under the Minnesota Constitution. Friedman
v. Comm’r of Pub. Safety, 473 N.W.2d 828, 833, 837 (Minn. 1991). Generally, this limited
right is vindicated if the driver “is provided with a telephone prior to testing and given a
reasonable time to contact and talk with counsel.” Id. at 835 (quotation omitted).
Law enforcement may require a person to take a breath test when law enforcement
has arrested the person upon probable cause to believe that the person committed a DWI.
Minn. Stat. § 169A.51, subd. 1(b), (1) (2020). At the time of a breath test, the driver must
be informed that (1) they are required by Minnesota law to submit to the test, (2) refusing
to submit to testing is a crime, and (3) they have “the right to consult with an attorney, but
that this right is limited to the extent that it cannot unreasonably delay administration of
the [breath] test.” Id., subd. 2; Mell v. Comm’r of Pub. Safety, 757 N.W.2d 702, 712 (Minn.
App. 2008). “A reasonable time is not a fixed amount of time, and it cannot be based on
elapsed minutes alone.” Mell, 757 N.W.2d at 713. When considering this issue, the court
“must balance the efforts made by the driver against the efforts made by the officer.” Id.
Other factors to consider may include, but are not limited to, the time of day and the length
of the delay since the driver’s arrest. Id.
The district court determined that, based on the totality of the circumstances, the
trooper “vindicated [Gregorich]’s limited right to counsel.” The district court noted that
the trooper “facilitated [Gregorich]’s right to counsel” by providing Gregorich a telephone,
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telephone books, and a reasonable amount of time to attempt to contact an attorney. The
trooper testified that he ended Gregorich’s attorney time 23 minutes after it began because
Gregorich was not “actively consulting with an attorney, [Gregorich] was just asking
questions not relevant to the DWI,” and he “was not actively trying to reach an attorney.”
When a driver does not make a “good-faith and sincere effort” to contact an attorney, police
may end the driver’s attorney time. Id. The record shows that Gregorich was not making
a good-faith and sincere effort to contact an attorney. We conclude that the trooper gave
Gregorich a reasonable amount of time to contact an attorney and that his limited right to
counsel was vindicated.
Test refusal
Gregorich argues that the trooper “coerced” him into “test refusal without counsel”
by forcing him to decide whether to take the breath test when he was confused and had not
spoken to an attorney. “Whether an implied-consent advisory violates a driver’s
due-process rights is a question of law, which this court reviews de novo.” Magnuson v.
Comm’r of Pub. Safety, 703 N.W.2d 557, 561 (Minn. App. 2005) (quotation omitted).
Whether a driver has refused to submit to testing is a question of fact reviewed for clear
error. Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717, 722 (Minn. App. 2014).
If a person refuses a breath test when police have probable cause to believe the
person committed a DWI, the commissioner must revoke the person’s driver’s license. See
Minn. Stat. § 169A.52, subd. 3 (2020). But the person may prove as an affirmative defense
that the refusal “was based on reasonable grounds.” Minn. Stat. § 169A.53, subd. 3(c)
(2020). “[C]onfusion regarding the testing obligation” can only satisfy the affirmative
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defense if police misled the driver into believing that refusing was acceptable or did not
attempt to explain the confused driver’s obligations. Linde v. Comm’r of Pub. Safety, 586
N.W.2d 807, 810 (Minn. App. 1998), rev. denied (Minn. Dec. 15, 1998).
Additionally, the supreme court has recognized a three-part test for determining
whether an inaccurate implied-consent advisory violated a driver’s due-process rights.
Johnson v. Comm’r of Pub. Safety, 911 N.W.2d 506, 508-09 (Minn. 2018).
A license revocation violates due process when: (1) the person
whose license was revoked submitted to a breath, blood, or
urine test; (2) the person prejudicially relied on the implied
consent advisory in deciding to undergo testing; and (3) the
implied consent advisory did not accurately inform the person
of the legal consequences of refusing to submit to the testing.

Id. A driver must satisfy all three elements to establish a due-process violation. Id. The
prong at issue here requires that Gregorich show that the implied-consent advisory did not
accurately inform him of the legal consequences for refusing to submit to testing. Id. at
909.
The district court determined that the trooper did not violate Gregorich’s due-
process rights and that Gregorich’s test refusal was unreasonable. The record supports
these conclusions. Gregorich was arrested on probable cause to believe he was in physical
control of a motor vehicle while impaired. See Minn. Stat. § 169A.51, subd. 1 (b)(4).
Gregorich testified that the trooper read him the breath-test advisory. See i d., subd. 2
(2020). As the statute requires, the trooper informed Gregorich that state law required him
to take the test, that refusing was a crime, that he had a limited right to consult an attorney,
and that he would be deemed to have refused if he unreasonably delayed or refused to
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decide whether he would submit to testing. See i d. The trooper followed the correct
procedure and correctly informed Gregorich of the consequences for refusing the breath
test. Thus, the trooper did not violate Gregorich’s due-process rights.
Miranda warning
Gregorich argues that the trooper violated his Miranda rights by failing to issue a
Miranda warning before reading him the breath-test advisory. A district court’s
determination regarding custody and necessity of a Miranda warning are issues of law that
we review de novo. State v. Mellett, 642 N.W.2d 779, 787-88 (Minn. App. 2002), rev.
denied (Minn. July 16, 2020).
“In the context of an arrest for [DWI], a police inquiry of whether the suspect will
take a blood-alcohol test in not an interrogation within the meaning of Miranda.” South
Dakota v. Neville, 459 U.S. 553, 564 n. 15, 103 S. Ct. 916, 923 n. 15 (1983); McDonnell
v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855-56 (Minn. 1991). This court has
previously stated that “giving a Miranda warning in an implied consent situation can be
confusing to the driver” because the warning implies that there are no penalties for refusing
to cooperate when there are “substantial penalties.” State v. Kline, 351 N.W.2d 388, 390
(Minn. App. 1984); Butler v. Comm’r of Pub. Safety, 348 N.W.2d 827, 828 (Minn. App.
1984).
The record shows that the trooper issued Gregorich a Miranda warning after reading
the breath-test advisory and after Gregorich refused the test. The trooper did not violate
Gregorich’s Miranda rights.
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Notice and hearing
Gregorich claims that he was (1) not properly served a notice and order of
revocation, and (2) denied procedural due process based on the delay before the implied-
consent hearing.
Notice and order of revocation
Under Minn. Stat. § 169A.52, subd. 7(a) (2020), “a peace officer requiring a test or
directing the administration of a chemical test shall serve immediate notice of intention to
revoke and of revocation on a person who refuses to permit a test.” Here, the district court
determined that Gregorich received the notice and order of revocation “on the date of his
arrest for DWI.” The trooper testified that he followed the breath-test-advisory procedure
the morning of Gregorich’s arrest. And during Gregorich’s processing at the jail, his
personal belongings were inventoried in accordance with jail procedure. Listed on this
inventory was an item described as “police paperwork.” Also, the trooper marked the box
“[s]ubject refused to sign” in lieu of Gregorich’s signature on the notice and order of
revocation. The record shows that Gregorich received the notice and order of revocation.
Procedural due process
Gregorich argues that the 394-day delay before the implied consent hearing violated
his procedural due-process rights. This presents a question of law reviewed de novo.
Riehm v. Comm’r of Pub. Safety, 745 N.W.2d 869, 877 (Minn. App. 2008), rev. denied
(Minn. May 20, 2008).
A person has a protected property interest in their driver’s license that the state may
not deprive without procedural due process. Heddan v. Dirkswager, 336 N.W.2d 54, 58-
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59 (Minn. 1983). Generally, procedural due process requires adequate notice and a
meaningful opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 348 (1976);
Staeheli v. City of St. Paul, 732 N.W.2d 298, 304 (Minn. App. 2007).
A person whose driver’s license is revoked under the Minnesota Implied Consent
Law may petition for judicial review of the revocation. Minn. Stat. § 169A.53, subd. 2(a)
(2020). The judicial review hearing “must be held at the earliest practicable date, and in
any event no later than 60 days” after the petition is filed. Id., subd. 3(a). But the statute
recognizes that a hearing may not be held within 60 days. See i d., subd. 2(c). Delaying
the hearing past 60 days from filing may violate due process based on the following factors:
(1) the private interest affected, (2) the risk of erroneous ly depriving the interest through
the procedures used, and (3) the government’s interests. Bendorf v. Comm’r of Pub. Safety,
727 N.W.2d 410, 41 5-16 (Minn. 2007) . Under these factors, the party asserting the
violation must show prejudice from the delay. Riehm, 745 N.W.2d at 877.
The district court determined that Gregorich “failed to demonstrate that his
procedural due process rights were violated when the [district court] failed to hold the
implied consent hearing within 60 days.” The district court noted that “while the hearing
was continued beyond the 60 days due to the pandemic, [Gregorich] requested
continuances . . . due to discovery issues, as well as one subsequent continuance request
. . . due to illness.”
Here, Gregorich experienced a delay over 60 days from filing an implied consent
petition. The district court determined that Gregorich “failed to show that he suffered any
prejudice as a result of any delay in the implied consent hearing.” We agree. Even if the
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delay were unreasonable, Gregorich has not shown that the delay caused him prejudice.
The delay did not violate Gregorich’s right to procedural due process.
Affirmed.