Jesse Bruce Jensen, 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This opinion is nonprecedential except as provided by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
A23-1481

Jesse Bruce Jensen, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed July 22, 2024
Affirmed
Connolly, Judge

Cottonwood County District Court
File No. 17-CV-22-494

Jacob M. Birkholz, Michelle K. Olsen, Birkholz & Associates, LLC, Mankato, Minnesota
(for appellant)

Keith Ellison, Attorney General, Cory Marsolek, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Larson, Presiding Judge; Connolly, Judge; and Reilly,
Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant Jesse Bruce Jensen was arrested for driving while impaired and
subsequently had his license revoked by respondent commissioner of public safety.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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Appellant challenges his license revocation, arguing that the district court erred in
determining that the deputy (1) had reasonable articulable suspicion to expand the scope
of the traffic stop, (2) had probable cause to arrest him for driving while impaired by
alcohol, and (3) vindicated his right to counsel. We affirm.
FACTS
At approximately 10:50 p.m. on September 23, 2022, a Cottonwood County deputy
was on duty when he discovered appellant was driving with a suspended registration. The
deputy activated his emergency lights and, after approximately 45 seconds, appellant came
to a stop. When the deputy approached t he vehicle he smelled alcohol coming from
appellant. When he asked appellant if he had consumed alcohol, appellant admitted that
he had. Based on his training and experience dealing with impaired drivers, the deputy
believed that appellant was under the influence of alcohol.
The deputy performed three field sobriety tests. From those tests, he gathered
additional indicia of intoxication and requested that appellant submit to a preliminary -
breath test (PBT). When appellant twice failed to provide a sufficient breath sample, the
deputy concluded that appellant refused the PBT based on his failure to cooperate . The
deputy arrested appellant on suspicion of driving while impaired by alcohol and transported
him to jail.
At approximately 12:15 a.m., the d eputy read appellant the implied -consent
advisory and informed him of his right to contact an attorney. Appellant stated that he
understood his rights, including that, if he failed to reach an attorney, he would have to
decide on his own whether to submit to a chemical-breath test. Appellant elected to contact
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an attorney. The deputy gave appellant a telephone and two different attorney-telephone
books, and helped appellant make several calls. Appellant also watched the deputy use a
county computer to search for attorneys based on his precise requests.
After approximately 34 minutes of phone time, around the time when the two-hour
alcohol-testing period would expire, the deputy told appellant that his time to contact an
attorney was almost over. See Minn. Stat. § 169A.20, subd. 1(5) (2022) (providing that
blood-alcohol content is measured at the time the driver was operating a motor vehicle or
within two hours of the same). At approximately 12:50 a.m., the deputy helped appellant
make another phone call before ending phone time. Appellant failed to contact an attorney
and refused to take the chemical -breath test. Consequently, appellant’s license was
revoked. See Minn. Stat. § 169A.52, subd. 3(a) (2022) (authorizing license revocation for
test refusal).
Appellant petitioned the district court to rescind the revocation of his driver’s
license, arguing, in part , that the deputy (1) lacked reasonable articulable suspicion to
expand the scope of the traffic stop, (2) lacked probable cause to arrest him for dr iving
while impaired, and (3) did not vindicate his right to counsel. At the contested omnibus
hearing, the district court received six exhibits and heard testimony from two witnesses:
the deputy and respondent’s expert in standardized field sobriety testing. Based on the
expert’s testimony, the district court discounted the field sobriety tests because the deputy
failed to follow established protocol. Still, based on the remaining evidence presented, the
district court denied appellant’s petition and sustained the license revocation.
This appeal follows.
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DECISION
Under Minnesota’s implied -consent law, when a police officer certifies that there
was probable cause to believe a person was driving while impaired, and the person refused
to submit to a che mical test, the commissioner must revoke the person’s driver’s license.
Minn. Stat. § 169A.52, subd. 3(a). But the person may petition for judicial review of their
license revocation. Minn. Stat. § 169A.53, subd. 2(a) (2022). Appellant challenges his
license revocation, arguing that the district court erred by determining that the deputy
(1) had reasonable articulable suspicion to expand the scope of the traffic stop, (2) had
probable cause to arrest him for driving while impaired, and (3) vindicated hi s right to
counsel. We address each argument in turn.
I. The district court did not err in determining that the deputy had reasonable
articulable suspicion to expand the scope of the traffic stop.

The United States and Minnesota Constitutions prohibit “unreasonable searches and
seizures” by the government. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. The
legality of a traffic stop is subject to a two -prong analysis: whether (1) “the stop was
justified at its inception[,]” and (2) “the actions of the police during the stop were
reasonably related to and justified by the circumstances that gave rise to the stop in the first
place.” State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (applying Terry v. Ohio, 392 U.S. 1, 19 -20 (1968) ). Under the fi rst prong, an officer must have a reasonable
articulable suspicion of criminal activity based on specific, particularized, and objective
facts. State v. Diede, 795 N.W.2d 836, 842-43 (Minn. 2011). While this is a “low hurdle,”
an officer’s suspicion must be based on more than a hunch. State v. Taylor, 965 N.W.2d
5
747, 757 (Minn. 2021). Under the second prong, “each incremental intrusion during a stop
must be strictly tied to and justified by the circumstances which rendered the initiation of
the stop permissible.” Askerooth, 681 N.W.2d at 364 (quotations omitted). Consequently,
an initially justified stop may become invalid if an officer lacks independent probable cause
or reasonableness to expand the scope of the stop. Id.
In Minnesota, indicia of i ntoxication can give rise to reasonable articulable
suspicion to justify a field sobriety test. Minn. Stat. § 169A.41, subd. 1 (2022); Mesenburg
v. Comm’r of Pub. Safety , 969 N.W.2d 642 , 648 (Minn. App. 2021) , rev. denied (Minn.
Mar. 15, 2022). An office r needs only one objective indicia of intoxication to constitute
reasonable suspicion. Holtz v. Comm’r of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App.
1983). In forming reasonable suspicion, an officer may rely on their experience and
training to make deductions that might elude an untrained person. State v. Richardson, 622
N.W.2d 823, 825 (Minn. 2001).
The district court determined that the deputy had reasonable articulable suspicion to
suspect appellant was impaired based on multiple accepted indicia of intoxication. First,
the district court considered that appellant took 45 seconds to stop —after turning onto a
side road—after 10:00 p.m. on a Friday night, when drinking is more prevalent. See Otto
v. Comm’r of Pub. Safety , 924 N.W.2d 658, 661 (Minn. App. 2019) (explaining that a
traffic violation committed at 1:20 a.m. on a Saturday morning, “a time of day when
drinking is often found to be involved [,] can provide an objective basis ” to suspect driver
intoxication). Second, the deputy smelled the odor of alcohol coming from appellant, the
vehicle’s only occupant. State v. Klamar , 823 N.W.2d 687, 696 (Minn. App. 2012)
6
(recognizing odor of alcohol as an objective fact that indicates intoxication); Mesenburg,
969 N.W.2d at 648 (holding that odor of alcohol justified field sobriety tests).
Third, appellant admitted consuming alcohol. See Klamar, 823 N.W.2d at 694
(identifying driver’s admission to consuming “‘one drink’” as supportive of reasonable
suspicion to suspect impairment). Fourth, the deputy testified that he relied on his training
and experience when he determined that the foregoing created reasonable suspicion that
appellant was driving while intoxicated. See Richardson, 622 N.W.2d at 825 (explaining
that officers may rely on their experience and training to draw inferences not obvious to an
untrained person). Under the totality of the circumstances, the deputy relied on multiple
specific and objective facts that created reasonable articulable suspicion of intoxic ation—
which permitted him to request the field sobriety tests and the PBT. See Holtz, 340 N.W.2d
at 365 (requiring only one objective indicia of intoxication to form reasonable suspicion).
Appellant argues that the district court erred in determining that the deputy had
reasonable suspicion to expand the scope of the traffic stop by challenging each indicia of
intoxication in isolation, rather than view each as part of the totality of the ci rcumstances.
We disagree with appellant’s approach . Instead, we agree with respondent that the facts
here are similar to those in Mesenburg, in which we affirmed the revocation of appellant’s
driver’s license, and compel the same result.
In Mesenburg, the district court denied Mesenburg’s petition to reinstate his license
because reasonable suspicion supported the officer’s request for a PBT. 969 N.W.2d at
645. The district court explained that the officer had reason to believe Mesenburg was
impaired because he was speeding, smelled of alcohol, and denied drinking —which the
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officer interpreted to be a lie meant to hide his intoxication. Id. Without reaching whether
administering a PBT constitutes an additional intrusion beyond administering field sobriety
tests, we held that the officer “maintained reasonable suspicion that Mesenburg was under
the influence [even] after he successfully completed the field sobriety tests and,
accordingly, had the proper basis for requesting Mesenburg take the PBT.” Id. at 650.
Similar to Mesenburg, appellant smelled of alcohol and engaged in conduct that,
paired with the odor of alcohol, created reasonable suspicion of intoxication. Although
appellant was not stopped for speeding, unlike Mesenburg, but because his registration was
suspended, appellant admitted having consumed alcohol. Those facts, along with the fact
that appellant was slow to stop his vehicle—after turning onto a side road—and was driving
at a time when drinking is more prevalent, support the district court’s determination that
the deputy had reasonable suspicion that appellant was impaired. The deputy was therefore
entitled to request the field sobriety tests and the PBT. Again, like in Mesenburg, the
deputy’s reasonable suspicion remained intact even without considering the results of the
field sobriety tests. See Mesenburg , 969 N.W.2d at 649 -50 (explaining that al though
Mesenburg successfully completed field sobriety tests , the officer’s suspicion was not
diminished).
Even assuming that the only indicia of intoxication here was the odor of alcohol
coming from appellant, this court has held that fact to be enough to provide an officer with
reasonable suspicion of criminal activity to expand a traffic investigation. State v. Lopez,
631 N.W.2d 810, 814 (Minn. App. 2001), rev. denied (Minn. Sept. 25, 2001). Appellant
seeks to distinguish Lopez by pointing out that Lopez involved the search of a vehicle for
8
alcohol containers, not impaired driving. See id. We are not persuaded, a s we drew on
Lopez in Mesenburg to explain that, within the context of driver impairment, a traffic stop
may be expanded based on the odor of alcohol alone. See Mesenburg, 969 N.W.2d at 648.
Finally, appellant argues that the deputy’s observations show only that he consumed
alcohol, not that he was impaired. He relies on the expert’s testimony that the odor of
alcohol does not correlate with a person’s impairment. We have previously rejected this
argument. See State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (determining
that an “officer need only possess ‘articulable facts’ to support [a PBT] request,” and that
those facts accomplish more than just showing that the driver had consumed alcohol).1
In sum, the district court did not err in determining that the deputy had reasonable
articulable suspicion to believe that appellant was driving while impaired by alcohol, which
justified expanding the traffic stop to include the field sobriety tests and the PBT.
II. The district court did not err in determining that the deputy had probable
cause to arrest appellant for driving while impaired.

“Probable cause to arrest exists [when] the objective facts are such that under the
[totality of the] circumstances a person of ordinary care and prudence would entertain an
honest and strong suspicion that a crime has been committed.” State v. Laducer , 676
N.W.2d 693, 697 (Minn. App. 2004) (quotation omitted). The totality of the circumstances
is a “common -sense, nontechnical concept that inv olves the factual and practical
considerations of everyday life on which reasonable and prudent people, not legal

1 Appellant challenges the district court’s reasonable suspicion and probable cause
determinations, in part, by asserting that the court discredited the deputy’s testimony. But
the district court only did so as to the field sobriety tests.
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technicians, act.” State v. Lester, 874 N.W.2d 768, 771 (Minn. 2016) (quotations omitted).
Probable cause to arrest requires evidence greate r than mere suspicion but less than that
required to secure a conviction. Id. Generally, a driver’s admission to consuming alcohol,
along with other indicia of intoxication, is enough to establish probable cause to arrest for
driving while impaired. Laducer, 676 N.W.2d at 697-98.
Whether probable cause exists is a mixed question of law and fact. Clow v. Comm’r.
of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), rev. denied (Minn. Apr. 26, 1985).
Factual determinations are reviewed for clear error while the ultimate probable cause
determination is reviewed de novo. State v. Wiernasz, 584 N.W.2d 1, 3 n.1 (Minn. 1998).
The district court found that multiple indicia of intoxication supported the deputy’s
probable cause determination to arrest appellant for driving while impaired by alcohol .
First, as described above, appellant was driving after 10:00 p.m. on a Friday night, he was
slow to stop his vehicle, smelled of alcohol, was the vehicle’s sole occupant, admitted
consuming alcohol, and refused a PBT. See State v. Kier, 678 N.W.2d 672, 678 (Minn.
App. 2004) (explaining that refusing a PBT —uncooperative behavior—serves as indicia
of criminal activity).
Appellant challenges the district court’s finding that he refused the PBT by failing
to properly blow into the device because, on his first attempt, the device likely registered a
sample. We are not persuaded. The district court found, based on the deputy’s testimony—
which is corroborated by the squad -camera footage—that the first PBT reflected an error
message, likely because of radio interference. In making this finding, the court impliedly
rejected expert testimony that, because the PBT device can be heard beeping three times
10
after appellant blew into it, the device had registered a result. And the district court credited
the deputy’s testimony that appellant’s second and third PBTs were useless be cause
appellant “failed to provide a sample by barely blowing into the device and at one point,
suck[ed] his breath inward.” It was within the district court’s discretion to credit the
deputy’s testimony that appellant failed to blow into the device—which is also supported
by the squad-camera footage —and consequently, determine that appellant refused the
PBT. See Klamar, 823 N.W.2d at 691 (giving deference to the district court’s credibility
determinations).
Appellant next relies on State, City of Eagan v. Elmourabit , 373 N.W.2d 290 , 293
(Minn. 1985), for the proposition that, while the odor of alcohol might indicate impairment,
it does not resolve whether a person was drinking alcohol to establish probable cause. We
disagree. Not only does appellant concede that the odor of alcohol is indicia of impairment,
but Elmourabit concerned whether the state had presented evidence sufficient to sustain a
driving-while-impaired conviction, a standard of certainty much higher than that required
for probable cause. See id. at 292; see also Lester, 874 N.W.2d at 771.
Under the totality of the circumstances, the district court did not err in determining
that the deputy had probable cause to arrest appellant for driving while impaired by alcohol.
III. The district court did not err in determinin g that the deputy vindicated
appellant’s right to counsel.

Persons arrested for driving while impaired have a limited right to counsel wh en
deciding whether to submit to a chemical-breath test so long as the consultation does not
unreasonably delay testing. Friedman v. Comm’r of Pub. Safety , 473 N.W.2d 828, 835
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(Minn. 1991). In determining whether this limited right to counsel has been vindicated,
courts consider the totality of the circumstances. Kuhn v. Comm’r Pub. Safety, 488 N.W.2d
838, 840-42 (Minn. App. 1992), rev. denied (Minn. Oct. 20, 1992). Generally, this right is
vindicated when a driver is given a telephone and a reasonable amount of time to contact
and speak with counsel. Groe v. Comm’r of Pub. Safety , 615 N.W.2d 837, 841 (Minn.
App. 2000), rev. denied (Minn. Sept. 13, 2000). A reasonable amount of time “is not a
fixed amount of time, and it cannot be based on elapsed minutes alone.” Mell v. Comm’r
of Pub. Safety, 757 N.W.2d 702, 713 (Minn. App. 2008).
Whether a driver’s right to counsel was vindicated presents a mixed question of law
and fact. Groe, 615 N.W.2d at 841. Findings of fact are reviewed for clear error. Mell,
757 N.W.2d at 708. When the facts are undisputed, we review de novo whether an
individual was afforded a reasonable opportunity to consult an attorney. Id. at 712.
Appellant argues that he was not given (1) enough time to contact and receive a
return call from counsel at 12:33 a.m., (2) personal internet access, (3) a cellphone, and
(4) adequate assistance by law enforcement. To support his argument, appellant first seeks
to distinguish this case from two cases that affirmed the determination that the drivers’
right to counsel was vindicated when the drivers received even less phone time than he did.
See Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992); Umphlett
v. Comm’r of Pub. Safety , 533 N.W.2d 636, 639 (Minn. App. 1995), rev. denied (Minn.
Aug. 30, 1995). We are not persuaded, as b oth cases undermine, rather than support,
appellant’s argument.
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Appellant was given a telephone, two different attor ney-telephone books, and
34 minutes to contact an attorney. The deputy used a computer to search for specific
attorneys at appellant’s request, and appellant knew his time was limited. Finally, the
deputy waited until the two -hour-testing limit was about to expire before ending phone
time after giving appellant several warnings. Although here , phone time began at
approximately 12:30 a.m., the Parsons court determined that 40 minutes was reasonable at
1:33 a.m. when the driver was (1) provided a telephone and directories, (2) allowed to call
anyone she wanted, (3) able to speak with a non-lawyer friend, and (4) aware that her phone
time was limited. See Parsons , 488 N.W.2d at 501 -02. The facts here are not
fundamentally different from those in Parsons, despite appellant’s inability to contact
anyone. And appellant points to no binding authority that requires officers to wait until a
driver contacts an attorney before ending phone time.
Second, appellant implies that the facts here are unlike those in Umphlett, in which
this court determined that the driver’s right to counsel was vindicated when he was given
a telephone and a phone book, understood his time was limited, and chose to make only
two phone calls at 9:00 p.m. See Umphlett, 533 N.W.2d at 639. He argues that, unlike
Umphlett, he never chose to stop calling attorneys and that his efforts were frustrated by
the deputy’s undue concern for obtai ning a chemical-breath test. We are not persuaded.
The deputy was allowed to balance the need for an accurate sample with the time he had
given appellant to contact an attorney , and determine that , because the two -hour testing
window was about to expire, he had provided appellant with reasonable time and resources.
See Minn. Stat. § 169A.51, subd. 2(3) (2022) (stating that driver’s right to consult counsel
13
“is limited to the extent that it cannot unreasonably delay administration of the test”); see
also Kuhn, 488 N.W.2d at 842 (recognizing that time under arrest bears on probative value
of test).
Appellant also argues that , because the deputy did not read the implied -consent
advisory until an hour and twenty -seven minutes after stopping him, he shoul d have been
afforded extra time to contact an attorney. We disagree . We have previously stated that
there is no “absolute timeline during which the implied -consent statute may be invoked”
because doing so would be “impractical.” State v. Padilla , No. A0 7-689, 2008 WL
1868064, at *2-3 (Minn. App. Apr. 29, 2008) (quotations omitted), rev. denied (Minn. June
18, 2008); see Minn. R. Civ. App. P. 136.01, subd. 1(c) ( stating that nonprecedential
authority may be cited for its persuasive value).
Under the totality of the circumstances, the district court did not err in determining
that the deputy vindicated appellant’s limited right to counsel.
Affirmed.