Brian Matthew Nash, petitioner, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1238

Brian Matthew Nash, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed May 1, 2023
Reversed and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CV-19-19132

Rodd Tschida, Minneapolis, Minnesota (for appellant)

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

Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Frisch,
Judge.
SYLLABUS
A search-warrant advisory that deviates from the exact wording in Minn. Stat.
§ 171.177, subd. 1 (2022), is insufficient to sustain the revocation of a person’s driving
privileges if it is an inaccurate statement of law, misleading, or confusing when considered
in its context as a whole.

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OPINION
LARKIN, Judge
Appellant challenges the district court’ s order sustaining the revocation of his
driving privileges, arguing that revocation was improper because the advisory requirement
of Minn. Stat. § 171.177, subd. 1, was not satisfied. Because the advisory given was an
inaccurate statement of law and misleading, we reverse and remand.
FACTS
Respondent Commissioner of Public Safety revoked the driving privileges of
appellant Brian Matthew Nash after he was arrested for driving while impaired and
submitted to a blood test pursuant to a search warrant, which revealed the presence of
methadone. Nash petitioned the district court for judicial review of the license revocation.
The circumstances surrounding the revocation, which were established at an evidentiary
hearing, are as follows.
On July 28, 2019, around 1:30 a.m., Trooper Megan Gerhard conducted a traffic
stop and identified Nash as the driver. Nash appeared lethargic, his skin was sweaty, he
had a “thick tongue” when speaking, and his pupils did not react to light. Gerhard believed
that Nash was under the influence, but she was not sure whether the cause was alcohol or
a different substance. Gerhard had Nash exit the vehicle and perform a horizontal-gaze-
nystagmus (HGN) test, which is generally used to test for depressants. Nash also
completed a one-leg balance test and a walk-and-turn test. Gerhard thought that all three
tests indicated that Nash was under the influence. Gerhard asked Nash if he was on any
medications, and Nash replied that he was not.
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Nash provided a preliminary breath test, which produced a 0.000 result. Nash then
completed a fourth test, which did not reveal any signs of impairment. Gerhard nonetheless
told Nash that she believed he was under the influence and placed him under arrest.
Gerhard applied for and obtained a search warrant for a blood or urine test. Next,
while seated in her squad car with Nash in the back seat, Gerhard told Nash, “I applied for
a search warrant for a blood draw, and refusal to take a test is a crime.” Gerhard showed
Nash the warrant, but she did not “let him hold it and look through it.”
Nash agreed to submit to a blood test. Nash testified that he “was only offered the
blood test” and that when he agreed to take the test, he had not read the search warrant.
Nash explained that he “wasn’t super clear on what test [Gerhard] was referring to[]” when
she said that refusal to take a test is a crime, but that he agreed to the blood test because he
“didn’t want to be accused of another crime, so [he] sort of just complied.” The resulting
toxicology report revealed the presence of methadone in Nash’s blood sample. Nash had
a prescription for methadone, and he testified that he took his prescribed methadone the
day before he was arrested.
Nash asked the district court to rescind the revocation of his driving privileges,
arguing that (1) there was no probable cause for his arrest, (2) the trooper failed to provide
the search-warrant advisory required under Minn. Stat. § 171.177, subd. 1, (3) the blood
test results were unreliable and inaccurate, and (4) he qualified for a prescription-drug
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affirmative defense.1 The district court rejected all four arguments and affirmed the
revocation of Nash’s driving privileges.
Nash appeals.
ISSUE
Did the district court err in sustaining the revocation of Nash’s driving privileges?
ANALYSIS
Nash contends that the district court erred by sustaining the revocation of his driving
privileges. He raises the following issues: (1) whether the trooper provided the search-
warrant advisory required under Minn. Stat. § 171.177, subd. 1; (2) whether the
commissioner established adequate foundation for the trooper’s testimony regarding signs
of drug impairment; and (3) whether the commissioner rebutted Nash’s prescription-drug
defense. We address only the first issue, because it is dispositive.
Minn. Stat. § 171.177 (2022) governs the revocation of driving privileges based on
a search warrant for the collection of a blood or urine sample from a person suspected of
driving while impaired. If such test results indicate “the presence of a controlled substance
listed in Schedule I or II or its metabolite, other than marijuana or tetrahydrocannabinols,
the commissioner shall revoke the person’s license or permit to drive.” Minn. Stat.
§ 171.177, subd. 5. If a person refuses to submit to a blood or urine test as requested by a

1 “It is an affirmative defense to the presence of a Schedule I or II controlled substance” if
a person “used the controlled substance according to the terms of a prescription issued for
the person according to sections 152.11 and 152.12, unless the court finds by a
preponderance of the evidence that the use of the controlled substance impaired the
person’s ability to operate a motor vehicle.” Minn. Stat. § 171.177, subd. 12(h) (2022).
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peace officer pursuant to a search warrant, then a test must not be given. Id., subd. 13.
However, it is a crime for a person to refuse to submit to a chemical test of the person’s
blood or urine pursuant to a search warrant under section 171.177. Minn. Stat. § 169A.20,
subd. 2(2) (2022).
Section 171.177, subdivision 1, requires that “[a]t the time a blood or urine test is
directed pursuant to a search warrant . . . the person must be informed that refusal to submit
to a blood or urine test is a crime.” Nash argues that he is entitled to rescission of his
license revocation because the officer did not advise him that refusal to submit to a blood
or urine test is a crime and instead merely advised him that she had applied for a search
warrant for a blood draw and that refusal to take a test was a crime. See Minn. Stat.
§ 171.177, subd. 12(b)(7) (stating that judicial review of a license revocation includes
whether the peace officer informed the person that “refusing the test was a crime as
required by subdivision 1”). His argument raises an issue of statutory interpretation, which
we review de novo. Barrow v. State, 862 N.W.2d 686, 689 (Minn. 2015).
The purpose of statutory interpretation is to “ascertain and effectuate” the
legislature’s intent. Minn. Stat. § 645.16 (2022). When interpreting a statute, the threshold
question is whether the statute’s language is ambiguous. State v. Gibson, 945 N.W.2d 855,
857 (Minn. 2020). “If the [l]egislature’s intent is clear from the statute’s plain language,
then we interpret the statute according to its plain meaning . . . .” State v. Alarcon, 932
N.W.2d 641, 645 (Minn. 2019) (quotation omitted).
This court has held that the advisory requirement in Minn. Stat. § 171.177, subd. 1,
is unambiguous, has no exceptions, and requires an officer to inform an individual of the
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criminal consequences of test refusal. State v. Mike, 919 N.W.2d 103, 110 (Minn. App.
2018), rev. denied (Minn. Aug. 20, 2019). We therefore apply the statute’s plain meaning,
with guidance from caselaw.
In Jensen v. Comm issioner of Public Safety, this court considered whether
compliance with section 171.177, subdivision 1, is necessary for the commissioner to
revoke driving privileges. 932 N.W.2d 844, 846 (Minn. App. 2019). In resolving that
issue, this court noted that section 171.177, subdivision 1, is related to Minnesota’s
implied-consent law. Id. at 846-47; see Minn. Stat. § 169A.50 (2022) (identifying Minn.
Stat. §§ 169A.50-.53 (2022) as Minnesota’s “Implied Consent Law”). This court explained
the interplay between Minn. Stat. § 171.177, subd. 1, and Minnesota’s implied-consent law
as follows:
The legislature included [Minn. Stat. § 171.177, subd.
1] to replace the implied-consent statutes covering blood and
urine tests after the Minnesota Supreme Court and the United
States Supreme Court held that testing of a person’s blood or
urine without a warrant is unconstitutional. The procedures in
section 171.177 largely mirror those stated in the implied-
consent statutes, requiring a warning of criminal consequences
at the time a test is directed or requested.

Jensen, 932 N.W.2d at 846-47 (citations omitted). This court explained that “[t]he history
of section 171.177 and its obvious relationship to the implied-consent statutes leads us to
apply to section 171.177 the caselaw relied on to interpret the related implied-consent
statutes.” Id. at 847.
Thus, the Jensen court relied on t he supreme court’s implied-consent decision in
Tyler v. Commissioner of Public Safety, 368 N.W.2d 275 (Minn. 1985). Id. In Tyler, the
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Minnesota Supreme Court stated that “[c]ompliance with the procedures of the implied
consent law is a prerequisite to revocation pursuant to the implied consent law.” 368
N.W.2d at 280. The supreme court reasoned that “the legislature intended that a driver ’s
license be revoked pursuant to the implied consent law . . . only if the provisions of the law
were complied with by the police.” Id. at 281 (emphasis added). Because the police did
not provide a statutorily required implied-consent advisory, the test results in Tyler “could
not properly serve as the basis for a revocation of [Tyler’s] license pursuant to the implied
consent law.” Id
The Jensen court applied the supreme court’s reasoning from Tyler and concluded
that the commissioner may not revoke a driver’s license based on blood-test results under
section 171.177, subdivision 5, unless the officer directing the test gives the driver the
advisory required under subdivision 1 of the statute. 932 N.W.2d at 847. This court held
that, because the peace officer in Jensen never warned the driver that refusing to submit to
a blood test is a crime, the commissioner could not revoke her license based on her test
results. Id. at 848 (reversing and remanding for the district court to rescind the license
revocation).
Under Jensen, it is clear that a license revocation cannot be sustained based on the
results of a chemical test if the driver was not provided an advisory regarding the criminal
consequences of failing to submit to a test. Id. at 846 (stating it was undisputed that law
enforcement did not advise Jensen that refusal to submit to a blood test is a crime). But,
as the commissioner notes, Jensen does not address the issue presented here: whether an
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advisory that deviates from the language of Minn. Stat. § 171.177, subd. 1, is nonetheless
adequate to sustain a revocation.
The commissioner argues that “there is no specific form the advisory must take,”
and that Nash “was accurately informed of the legal consequences of refusing to submit to
the blood test that was requested.” The commissioner relies on McCormick v.
Commissioner of Public Safety, in which this court announced the rule that whether an
implied-consent advisory complies with statutory requirements “depends on whether the
given advisory, considered in its context as a whole, is misleading or confusing.” 945
N.W.2d 55, 60 (Minn. App. 2020). The statute at issue in McCormick required that “[a]t
the time a breath test is requested, the person must be informed . . . that refusal to submit
to a breath test is a crime.” Minn. Stat. § 169A.51, subd. 2(2) (2018) (emphasis added).
The officer in McCormick informed the driver that “refusal to take a test is a crime,” and
not that “refusal to submit to a breath test is a crime.” 945 N.W.2d at 57 (emphasis added).
McCormick argued that the statute required officers to read its language verbatim
and that the officer’s failure to state “breath” directly before “test” misstated the law. Id.
at 58. This court rejected that argument, noting that the plain language of the statute did
not require officers to “read” or “recite” the statute’s language verbatim. Id. at 59. This
court also noted that it had upheld advisories that deviated from the language of the
implied-consent statute “so long as the information the officer provide[d] [was] not
misleading or confusing.” Id . This court reasoned that, because the officer informed
McCormick that “this is the breath test advisory” and that “refusal to take a test is a crime,”
without mentioning any other test and offering only a breath test, the context of the advisory
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adequately informed McCormick that refusal to take a breath test is a crime. Id. at 60
(emphasis added). The advisory was therefore sufficient to sustain the revocation of
McCormick’s driving privileges. Id.
The McCormick rule is consistent with an earlier decision of this court in which it
said that “[u]niformity in giving the implied consent advisory is highly encouraged” and
recommended “that police officers read the exact words of the statute in order to avoid any
possibility of confusion or improper deviation from the statute.” Hallock v. Comm’r of
Pub. Safety, 372 N.W.2d 82, 83 (Minn. App. 1985). But this court also stated that if an
officer deviates from the exact words of a statutory advisory, a revocation may nonetheless
be based on that advisory so long as the advisory was not “an incorrect statement of the
Minnesota law, or so confusing as to render the advisory illegal.” Id. (affirming district
court’s order sustaining a driver’s license revocation).
We agree with the commissioner that the McCormick rule applies here. But for the
reasons that follow, we disagree that the advisory in this case was adequate under that rule.
See Jensen, 932 N.W.2d at 847 (applying to section 171.177 caselaw relied on to interpret
the related implied-consent statutes). Minn. Stat. § 171.177, subd. 2, provides that:
The peace officer who directs a test pursuant to a search
warrant shall direct a blood or urine test as provided in the
warrant. If the warrant authorizes either a blood or urine test,
the officer may direct whether the test is of blood or urine. If
the person to whom the test is directed objects to the test, the
officer shall offer the person an alternative test of either blood
or urine. Action may be taken 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.

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(Emphasis added.)
“A driver is given the option of an alternative when offered either a blood or urine
test because a person may have a reasonable aversion to giving a blood or urine sample. ”
State v. Hagen, 529 N.W.2d 712, 714 (Minn. App. 1995).2 If the driver refuses an officer’s
direction to take one test, the officer then needs to offer an alternative test. Id.; see Minn.
Stat. § 171.177, subd. 2. Importantly, under the statute “the state may not prosecute unless
an alternative test was offered.” Hagen, 529 N.W.2d at 714; see Minn. Stat. § 171.177,
subd. 2. Indeed, at oral argument to this court, the commissioner agreed that a driver cannot
be charged with a crime for refusing to submit to a warranted blood test unless the driver
was offered a urine test as an alternative.
In this case, the trooper told Nash, “I applied for a search warrant for a blood draw,
and refusal to take a test is a crime.” As the commissioner concedes, if Nash had refused
the blood test, the circumstances would not have supported a test-refusal charge because
the trooper did not offer him a urine test. See Minn. Stat. § 171.177, subd. 2 (“Action may

2 Although the Hagen court analyzed a prior version of the statute, the court’s analysis is
applicable here because the relevant language did not change. Compare Minn. Stat.
§ 169.123, subd. 2(c) (1992) (“The peace officer who requires a test pursuant to this
subdivision may direct whether the test shall be of blood, breath, or urine. Action may be
taken against a person who refuses to take a blood test only if an alternative test was offered
and action may be taken against a person who refuses to take a urine test only if an
alternative test was offered.”) with Minn. Stat. § 171.177, subd. 2 (“The peace officer who
directs a test pursuant to a search warrant shall direct a blood or urine test as provided in
the warrant. If the warrant authorizes either a blood or urine test, the officer may direct
whether the test is of blood or urine. If the person to whom the test is directed objects to
the test, the officer shall offer the person an alternative test of either blood or urine. Action
may be taken 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.”).
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be taken against a person who refuses to take a blood test only if a urine test was offered
. . . .”). Thus, the advisory was an inaccurate statement of Minnesota law and misleading.
Nothing about the context of the trooper’s advisory changes our view. Although the search
warrant authorized a blood or urine test, the trooper did not mention the urine test. And
although the trooper “show[ed]” Nash the warrant, the commissioner does not claim, and
the record does not suggest, that Nash had an opportunity to read the warrant before
agreeing to submit to the test.
In sum, the advisory informed Nash that he could be charged with a crime if he
refused the blood test, even though the trooper had not offered Nash an alternative urine
test. That was an inaccurate statement of law and misleading. The advisory therefore
cannot serve as the basis for revocation of Nash’s driving privileges, and the revocation
cannot be sustained. See Tyler , 368 N.W.2d at 280 (“Compliance with the procedures of
the implied consent law is a prerequisite to revocation pursuant to the implied consent
law.”); Jensen, 93 2 N.W.2d at 847 (applying to section 171.177 caselaw relied on to
interpret the related implied-consent statutes).
DECISION
When considering application of Minn. Stat. § 171.177, subd. 1, we apply caselaw
regarding Minnesota’s related implied-consent law. Under that caselaw, an advisory that
deviates from the exact wording set forth in the statute is insufficient to sustain the
revocation of a person’s driving privileges if it is an inaccurate statement of law,
misleading, or confusing when considered in its context as a whole. Because the advisory
in this case deviated from the language of Minn. Stat. § 171.177, subd. 1, misstated the
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law, and was misleading, it cannot be the basis for Nash’s license revocation. We therefore
reverse the district court’s order sustaining the revocation of Nash ’s driving privileges
without addressing Nash’s other arguments for relief, and we remand for the district court
to rescind the revocation.
Reversed and remanded.