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This opinion is nonprecedential except as provided by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
A23-1905

State of Minnesota,
Respondent,

vs.

Jamie Sara Schmeichel,
Appellant.

Filed September 23, 2024
Affirmed
Schmidt, Judge

Anoka County District Court
File No. 02-CR-21-5956

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

Robb L. Olson, Lino Lakes City Prosecutor, Andrew D. Tiede, Assistant City Prosecutor,
GDO Law, White Bear Lake, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ede, Presiding Judge; Ross, Judge; and Schmidt, Judge.
NONPRECEDENTIAL OPINION
SCHMIDT, Judge
In this direct appeal from the judgment of conviction for second-degree driving
while impaired (DWI)—refusal to submit to testing, appellant Jamie Sara Schmeichel asks
this court to reverse and remand for a new trial, arguing that it was plain error for the
prosecutor to elicit expert opinion testimony from the state trooper. Alternatively,
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Schmeichel demands a new trial based on her assertion that the district court abused its
discretion when it denied her requested jury instruction on the element of refusal. Because
Schmeichel is not entitled to a new trial under either of her theories, we affirm.
FACTS
After a vehicle drove into a ditch at the intersection of I-35 and Main Street in Lino
Lakes, a police officer arrived and observed a female outside the car, crying and looking
“shook up” and “nervous.” The officer smelled the odor of alcohol “emitting from
[Schmeichel’s] breath or the vehicle” and noticed that her speech was “slightly slurred.”
A state trooper arrived and observed Schmeichel’s eyes were bloodshot and watery.
The trooper attempted to administer a preliminary breath test, but it registered “No-Go,”
meaning she was not providing a sample or that she sucked, rather than blew, into the straw.
The trooper asked Schmeichel to blow a second time, but again, she provided an inadequate
sample. The trooper used a “manual capture” function to test the small sample provide d,
which indicated a 0.076 alcohol concentration. Schmeichel was transported to the hospital.
The trooper secured a search warrant to obtain Schmeichel’s blood or urine and he
informed Schmeichel at the hospital that refusal to take a test and comply with the warrant
is a crime. Schmeichel claimed she feared needles and did not have to, or want to, urinate.
Schmeichel did not provide a blood or urine sample.
Respondent State of Minnesota charged Schmeichel with second-degree refusal to
submit to testing and third-degree DWI. The district court held a two-day trial at which
two law enforcement officers testified for the state and Schmeichel testified in her own
defense.
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The police officer and trooper testified about their observations at the scene and the
trooper testified about the events at the hospital. At the end of the trooper’s direct
examination, the prosecutor asked, “And you determined that this was a refusal to
comply?” The trooper answered, “Yes, I did.”
Schmeichel testified that she had been “hanging out with a friend” and “stayed up
all night,” but that she had not been drinking. She also testified that she was “fully willing
to cooperate with whatever [law enforcement] wanted.” When asked on cross-examination
why a preliminary breath test captured alcohol on her breath, Schmeichel testified that it
could have been from her inhaler or the gum she had been chewing.
At the close of trial, Schmeichel requested that the jury be instructed that the state
had to prove that Schmeichel demonstrated an objective “actual unwillingness” to submit
to testing. The district court denied the request, which would have deviated from the
standard jury instructions, noting that the instructions were “the most updated.”
The jury found Schmeichel guilty of the second-degree test refusal offense and
acquitted her of the third-degree DWI offense. The district court sentenced Schmeichel to
364 days in jail, with 334 days stayed for three years while Schmeichel was placed on
supervised probation.
Schmeichel appeals.
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DECISION
I. It was not misconduct for the prosecutor to elicit testimony from the trooper
that he had determined refusal to comply with testing occurred.

Schmeichel argues that the prosecutor plainly erred by eliciting opinion testimony
from the trooper that Schmeichel refused to comply with chemical testing. We disagree.
We review unobjected-to alleged prosecutorial misconduct under a modified
plain-error test. State v. McDaniel, 777 N.W.2d 739, 749 (Minn. 2010). Schmeichel has
the burden to “demonstrate both that error occurred and that the error was plain.”
State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Prosecutors may not attempt to elicit or actually elicit “clearly inadmissible
evidence.” See State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007). A prosecutor also may
not elicit “ultimate issue” testimony that intrudes upon the jury’s role as the fact-finder.
See State v. Patzold, 917 N.W.2d 798 (Minn. App. 2018) (noting that ultimate issue
testimony that “embraces legal conclusions or terms of art is not considered helpful to the
jury” and that a district court “may also exclude testimony on the ultimate issue when the
testimony would merely tell the jury what result to reach. ” (quotations omitted)), rev.
denied (Minn. Nov. 27, 2018).
Here, the prosecutor asked the trooper, “And you determined that this was a refusal
to comply?” The trooper answered, “Yes, I did.” The prosecutor’s question and trooper’s
answer did not constitute testimony on the “ultimate issue” because it did not tell “the jury
what result to reach.” Id.1

1 The state argues that the evidence did not constitute plain error because the trooper
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The prosecutor did not offer the trooper’s testimony as an expert opinion. The
prosecutor simply asked the trooper about his observations and whether he determined that
Schmeichel’s behavior constituted refusal to comply with testing. When the prosecutor
elicited the challenged testimony, the trooper had already testified about his interactions
with Schmeichel at the scene, his conversation with her while at the hospital, the tests he
offered, and Schmeichel’s responses and conduct. The jury heard and saw the same
evidence. The prosecutor elicited only lay testimony from the trooper, which was based
on the trooper’s own perceptions. The prosecutor did not commit plain error misconduct
by asking a single question and eliciting a three-word response. Thus, Schmeichel is not
entitled to a new trial based on plain error prosecutorial misconduct.
II. The jury instructions fairly and adequately explained the law to the jury.
Schmeichel argues that this court should order a new trial because the district court
abused its discretion when it rejected her request to instruct the jury that, as to the element
of refusal, the state must prove an “actual unwillingness to test.” We disagree.
Jury instructions are reviewed “in their entirety to determine whether they fairly and
adequately explained the law of the case. ” State v. Kuhnau, 622 N.W.2d 552, 555-56

properly offered an expert opinion given his “specialized knowledge.” But the state did
not offer the trooper’s testimony as that of an expert under Minn. R. Crim. P. 9.01,
subd. 1(4)(c). Instead, the state solicited admissible lay opinion testimony from the
trooper. State v. Ards, 816 N.W.2d 679, 683-84 (Minn. App. 2012) (stating that an officer’s
testimony was not expert testimony where the court did not characterize the testimony as
expert testimony, the state made no proffer for expert testimony, neither party referred to
the officer as an expert witness, and neither party requested an instruction about expert
testimony). Thus, we need not address the state’s argument that we should, on appeal,
qualify the trooper as an expert witness.
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(Minn. 2001) (citation omitted). “An instruction is in error if it materially misstates the
law.” Id. at 556. We review a district court’s jury instructions for an abuse of discretion.
State v. Segura, 2 N.W.3d 142, 166 (Minn. 2024).
The state charged Schmeichel with second-degree DWI refusal. The relevant statute
provides that “[a] person who violates section 169A.20, subdivision 2 (refusal to submit to
a chemical test crime), is guilty of second-degree driving while impaired . . . .” Minn. Stat.
§ 169A.25, subd. 1(b) (2020). Under the referenced statute, Minnesota Statutes section
169A.20 (2020), “[i]t is a crime for any person to refuse to submit to a chemical test . . . of
the person’s blood or urine as required by a search warrant.” Minn. Stat. § 169A.20, subd.
2(2). The district court instructed the jury:
[F]irst, a peace officer had probable cause to believe that the
defendant drove, operated, or was in physical control of a
motor vehicle while under the influence of alcohol.

. . . .
Second, the defendant was involved in a motor vehicle
accident resulting in property damage.

Third, the peace officer requested that the defendant submit to
a chemical test of the person’s blood or urine as required by a
search warrant and then informed the defendant that refusal to
submit to a blood or urine test is a crime.

Fourth, the defendant refused to submit to the test.

Schmeichel argues that this court’s opinion in State v. Ferrier, 792 N.W.2d 98
(Minn. App. 2010), rev. denied (Minn. Mar. 15, 2011), necessitated the district court to
instruct that, as to the fourth element, the state was required to prove beyond a reasonable
doubt that Schmeichel had an “actual unwillingness to submit to testing.” But Ferrier is
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distinguishable. In that case, we reviewed a challenge to the sufficiency of the
circumstantial evidence. Id. at 100-01. After reviewing the totality of the circumstances
that evidenced appellant’s repeated conduct refusing to submit to a test, we noted that a
person’s refusal “includes any indication of actual unwillingness to participate in the
testing process.” Id. at 102. The decision did not, as Schmeichel contends, adopt an “actual
unwillingness” standard as part of the refusal element.
The district court’s instructions, “when read as a whole, correctly state[d] the law.”
State v. Matthews, 779 N.W.2d 543, 549 (Minn. 2010) (quotation omitted). Consistent
with the law, the jury was required to determine whether the state had proved beyond a
reasonable doubt that Schmeichel had refused to submit to blood or urine chemical testing.
Because the district court’s instructions correctly stated the law in language that could be
understood by the jury, “there is no reversible error.” Id.
In addition, we agree with the state that any instructional error had no significant
impact on the verdict . As noted, the state produced significant direct evidence of
Schmeichel’s test refusal. She twice refused to provide a sufficient breath sample for the
trooper to conduct an on-scene preliminary breath test. The trooper was, however, able to
determine that the minimal sample that Schmeichel did provide showed she had alcohol in
her system. The state also provided evidence that at the hospital the trooper had a warrant
to collect a blood or urine sample, but Schmeichel repeatedly refused. Thus, even if we
assumed an error with regard to the instruction, we conclude the district court did not abuse
its discretion because any possible error had no significant impact on the verdict.
Affirmed.