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This opinion is nonprecedential except as provided by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
A22-0781

State of Minnesota,
Respondent,

vs.

Jeremiah Park Hess,
Appellant.

Filed April 17, 2023
Affirmed
Bryan, Judge

Cass County District Court
File No. 11-CR-19-931

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

Benjamin T. Lindstrom, Cass County Attorney, Chelsea Langton, Assistant County
Attorney, Walker, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rebecca Ireland, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Bratvold, Judge; and Bryan ,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
Appellant challenges his conviction for first-degree refusal to submit to a chemical
test, arguing that the state presented insufficient circumstantial evidence to establish his
guilt. We affirm.
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FACTS
Respondent State of Minnesota charged appellant Jer emiah Park Hess with one
count of first-degree refusal to submit to a chemical test in violation of Minnesota Statutes
section 169A.20, subdivision 2(1) (2018), and two other charges relating to events that
occurred on June 10, 2019. The following undisputed facts were established by the
evidence presented at trial.
On June 10, 2019, D.J. reported a motor vehicle theft and subsequent assault. Cass
County Deputy Sheriff Rasmus responded and met with D.J., who alleged that Hess took
D.J.’s vehicle, a 2002 Subaru Forester, without permission. D.J. also reported that Hess
was under the influence of alcohol. As Rasmus was speaking with D.J., she received a
phone call from Hess. Rasmus testified that he overheard the conversation and described
Hess’s voice and demeanor: “Slurred speech, sounded intoxicated to me, upset.” At some
point, Rasmus learned that Hess informed D.J. that he had driven the vehicle into a swamp.
Police Officer Simon Danielson and Minnesota State Trooper Dingman located a 2002
Subaru Forester in a sw ampy area and saw Hess between 300 and 350 meters away from
the vehicle. Hess ran from the officers and did not stop when instructed to do so, but
Dingman was able to apprehend Hess. Both Danielson and Dingman observed signs of
impairment during their encounter with Hess , including an odor of alcohol, bloodshot and
watery eyes, sway ing, stumbling, slurred speech, and confusion. Dingman also described
Hess as “pretty belligerent” and “kind of up and down.” Dingman felt it w ould be unsafe
to unhandcuff Hess for the purpose of conducting field sobriety tests. Dingman asked Hess
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to submit to a preliminary breath test instead, but Hess refused. Hess was transported to
jail for a chemical test.
Dingman read the breath test advisory to Hess , informing Hess that he had a right
to consult with an attorney before deciding whether to test ; a telephone and directories
would be provided ; and if Hess was unable to contact an attorney, he would have to make
the decision of whether to test on his own and within a reasonable period of time. After
reading the advisory to Hess , Dingman offered to read it a second time . Hess agreed ,
adding that this time he wanted Dingman to read it to him in Spanish —despite there
being no indication tha t Hess spoke Spanish or ha d any difficulty speaking English.
When D ingman began to reread it in English, Hess interrupted, to ask whether he was
“operating . . . [or] working on this vehicle or some sh -t.” After Dingman continued ,
Hess interrupted again, stating “Let’s get an attorney . . . I don’t understand none of it
until I have a f-cking attorney.” Dingman provided Hess with a telephone and a book
of telephone numbers. H ess claimed that he could not read or write, so he did not
know how to push the buttons on the telephone. D ingman said that he could help Hess
dial the phone, but he could not pick an attorney for Hess. Hess repeatedly asked
Dingman for advice, including asking Dingman to tell him w hich attorney to contact,
which attorneys were good, and which ones were in the area.
Hess also repeatedly complained to Dingman, stating at one point that “none of
these f -ckers are real,” and demanding that Dingman help locate an attorney in the
area. Hess used the telephone for approximately thirty minutes , and during this time,
Dingman took notes regarding the phone numbers Hess dialed and how many of his calls
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were answered. In total, nine phone numbers were dialed , and three of those calls were
answered, including, as Dingman informed Hess , “a couple in Cass [County].”
Dingman asked multiple times if Hess would take a breath tes t, but Hess did not answer
“yes” or “no .” At one point, Dingman explained that Hess had spent thirty-five
minutes t rying t o contact an attorney , and Dingman asked again if Hess would take a
test. Hess replied, “I’m waiting for a lawyer.” Dingman permitted Hess to continue
using the telephone for a few more minutes . Finally, Dingman explained, “Alright so
Jeremiah [this is] the last time I ’m go nna ask you, will you take a breath test?” Hess
responded by yelling and swearing at Dingman, complaining that Dingman gave him
“bullsh-t f-cking numbers to call.”
The breath test advisory process lasted approximately 40 minutes. A test was
never administered. Dingman’s notations on the breath test advisory form stated: “[w]ant
attorney present. [D]oesn’t give answer. ” A jury found Hess guilty of test refusal and
fleeing a police officer. Hess appeals the test-refusal conviction.
DECISION
Hess argues that the circumstantial evidence on which the state relied to convict him
failed to eliminate a rational hypothesis of innocence .1 We conclude that Hess has not
articulated an alternative hypothetical inference that is consistent with innocence .
Under Minnesota Statutes section 169A.20, subdivision 2(1), “[i]t is a crime for any
person to refuse to submit to a chemical test . . . of the person’ s breath.” To prove Hess

1 Hess does not argue, and therefore we need not address, whether Hess’s limited right to
counsel was vindicated.
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guilty of first-degree refusal to submit to a chemical test, the state had to prove, among
other elements, “[a]ctual unwillingness to submit to testing.” State v. Ferrier, 792 N.W.2d
98, 101 (Minn. App. 2010), rev. denied (Minn. Mar. 15, 2011). It is not necessary that an
individual expressly refuse to take a test to be found guilty of test refusal. Id. Rather,
“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. If a driver’s actions “frustrate the testing
process,” then “it will amount to refusal to test.” State v. Collins, 655 N.W.2d 652, 658
(Minn. App. 2003) (determining that a driver’s swearing, threats, and belligerent shouts
frustrated the testing process and concluding that conduct that frustrates the testing process
amounts to a refusal to test), rev. denied (Minn. Mar. 26, 2003).
When the state relies solely on circumstantial evidence to prove an element of the
offense, we apply the rational hypothesis test to determine whether the evidence was
sufficient. State v. Griffin, 887 N.W.2d 257, 264 (Minn. 2016). This requires a “review
[of] the sufficiency of the evidence using a two- step analysis.” State v. Barshaw , 879
N.W.2d 356, 363 (Minn. 2016). The first step is to “identify the circumstances proved,
deferring to the fact -finder’s acceptance of the proof of these circumstances and rejection
of evidence in the record that conflicted with the circumstances proved by the State.” Id.
(quotations omitted). Under the second step of the circumstantial evidence test, the
reviewing court must “independently examine the reasonableness of all inferences that
might be drawn from the circumstances proved to determine whether the circumstances
proved are consistent with guilt and inconsistent with any rational hypothesis except that
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of guilt.” Id. (quotation omitted). “Circumstantial evidence must form a complete chain
that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to
exclude beyond a reasonable doubt any reasonable inference other than guilt.” State v.
Taylor, 650 N.W.2d 190, 206 (Minn. 2002). In the second step, no deference is given to
the verdict, and appellate courts will reverse a conviction based on circumstantial evidence
if the appellant identifies a rational inference consistent with innocence that is supported
by the circumstances proved. Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017).
In this case, Hess acknowledges that the evidence established that Hess insisted on
having an attorney present during his chemical test . Hess also concedes that this fact is
consistent with an inference that he intended to frustrate the testing process. However,
Hess contends that this fact is also consistent with an alternative inference: that he intended
to and was willing to t ake the chemical test, but he conditioned his submission to the test
on having an attorney present. We are not persuaded to reverse because th is identified
alternative inference is not consistent with innocence.
We observe that Hess’s circumstantial evidence argument presumes th at law
enforcement officers are required by law to consider a driver’s conditions , requests, or
counteroffers when administering a chemical test. As a legal matter, this assumption is not
correct. Generally, refusal occurs when a driver’s conduct indicates unwillingness to
submit to the chemical testing process. Ferrier, 792 N.W.2d at 101-02 (concluding refusal
occurs when there is “any indication of actual unwillingness to participate in the testing
process”); Collins, 655 N.W.2d at 658 (concluding that refusal occurs when a driver’s
actions frustrate the testing process). More specifically, while law enforcement officers
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are obligated to provide drivers with “a reasonable opportunity to obtain legal advice before
deciding whether to submit to [warrantless] chemical testing,” Friedman v. Comm’r of Pub.
Safety, 473 N.W.2d 828, 835 (Minn. 1991) , a driver “has no right to have counsel present
during the test itself ,” Sturgeon v. Comm ’r of Pub. Safety , 350 N.W.2d 487, 489 (Minn.
App. 1984). Hess does not cite any contrary authority or any authority requiring testing
officers to satisfy conditions that a driver may seek to place on their willing submission to
a chemical test . We also discern no basis in the applicable statutes to support the
proposition that a driver may negotiate with testing officers regarding the administration
of the test or may otherwise insist that testing officers meet a driver’s preconditions. In the
absence of such legal authority and given the holdings in Friedman and Sturgeon, Hess’s
identified inference that he would have taken the chemical test only if a lawyer had been
present, even if true, is not consistent with innocence. Dingman requested that Hess take
the chemical test without a lawyer present, and Hess refused.
The state also argues that Hess’s words and actions —apart from his insistence that
an attorney be present —indicate actual unwillingness to test. For example, Hess was
belligerent, yelling and swearing at Dingman throughout the advisory process. Because
the stated alternative inference is not consistent with innocence, we need not determine
whether Hess’s other conduct indicated an actual unwillingness to test . In addition, given
our determination that the identified alternative inference is not consisten t with innocence,
we need not consider whether the circumstances proved rule out that inference.
Affirmed.