Melissa Ann Lorsung, 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This opinion is nonprecedential except as provided by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
A24-0540

Melissa Ann Lorsung, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed December 30, 2024
Reversed
Ross, Judge

Ramsey County District Court
File No. 62-CV-23-6197

Ryan J. Grove, Rogosheske, Rogosheske & Atkins, PLLC, South St. Paul, Minnesota (for
appellant)

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

Considered and decided by Ross, Presiding Judge; Cochran, Judge; and Harris,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
A police officer investigating a minor car-pedestrian collision in a bar parking lot
saw driver Melissa Lorsung successfully perform one field sobriety test and observed no
physical indicia of her impairment and, believing that she was sober, directed her to
perform a preliminary breath test “just [to] make sure.” That test revealed an alcohol
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concentration indicating that Lorsung was per se intoxicated under the impaired-driving
statute. The commissioner of public safety later revoked Lorsung’s driving privileges, and
she unsuccessfully petitioned the district court to rescind the revocation. We reverse,
because the officer directed Lorsung to perform the breath test after he no longer had
reasonable suspicion that she was impaired.
FACTS
Officer Austin Sonterre went to the parking lot of a New Brighton bar in October
2023 shortly after it closed at 2:00 a.m., responding to a reported automobile collision.
Officer Sonterre learned that Melissa Lorsung had been backing out of her parking spot
when her car bumped an apparently intoxicated pedestrian. The officer also learned that
Lorsung had been drinking inside the bar and had left the bar around closing time. Lorsung
was smoking a cigarette when Officer Sonterre first approached her. He did not smell
alcohol on her breath or observe any of the typical tell-tale signs of alcohol impairment,
like bloodshot and watery eyes, unstable balance, or slurred speech.
But under the circumstances—Lorsung had been drinking and backed into a
pedestrian at bar-closing time—Officer Sonterre still suspected that Lorsung might be
impaired. So he directed her to perform the horizontal gaze nystagmus test. Officer
Sonterre noticed no indication of impairment during the test. Satisfied, he then told
Lorsung, “I’m gonna have you hang on for just two more minutes until I make sure we’re
all good in there and then we’ll get you out of here.” He told other officers who had arrived
that he planned to wait until the ambulance personnel finished assisting the struck
pedestrian before letting everyone leave.
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Officer Paul Yang then spoke with Lorsung. Officer Yang, who waited with
Lorsung and spent more time near her than Officer Sont erre spent, also did not observe
bloodshot or watery eyes, slurred speech, or the odor of alcoholic beverages. Lorsung said,
“[W]e’re free to leave, I guess.” He watched Lorsung move her car about three feet out of
the way and into a parking spot, which he later said he would not have allowed had he
believed she was impaired. Officer Yang told Lorsung that he didn’t want to keep her and
asked if she had any questions before she left.
Meanwhile, Officer Sonterre spoke with his supervising sergeant. Officer Sonterre
told the sergeant that Lorsung was not drunk, and he agreed that it appeared that an
impaired pedestrian had walked into the car of a sober driver. But the pedestrian and her
family were still present, and Officer Sonterre said that he would administer another
sobriety test before allowing Lorsung to leave, reasoning, “[S]o they can’t say I didn’t do
my job.”
Officer Sonterre reapproached Lorsung and asked her to take a preliminary breath
test (PBT), explaining, “[J]ust [to] make sure you’re good to go, actually drive.” Officer
Sonterre then first smelled the odor of an alcoholic beverage on Lorsung’s breath. The
breath test indicated that Lorsung’s alcohol concentration was 0.145.
The commissioner of public safety revoked Lorsung’s driving privileges for
impaired driving under Minnesota implied-consent law after receiving the corroborating
results of a later chemical test. Lorsung unsuccessfully challenged her license revocation
in district court, arguing that the officer lacked reasonable suspicion to expand the scope
of the accident investigation to require any sobriety testing.
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Lorsung appeals.
DECISION
Lorsung argues that the district court erroneously refused to reverse the
commissioner’s decision to revoke her driving privileges. We will not reverse unless the
district court erroneously construed or misapplied the law or based its decision on clearly
erroneous fact findings. Johnson v. Comm’r of Pub. Safety , 889 N.W.2d 36, 38 (Minn.
App. 2016); Minn. R. Civ. P. 52.01. Applying that standard here, we agree that the district
court erroneously failed to rescind Lorsung’s revocation.
We focus on the officer’s decision to ask Lorsung to perform the PBT. An officer
may require a person to submit to a chemical test when the officer has probable cause to
believe that the person was in physical control of a motor vehicle and a PBT indicated an
alcohol concentration of 0.08 or more. Minn. Stat. § 169A.51, subd. 1(b)(4) (Supp. 2023).
But before an officer may ask a driver to submit to a PBT, he must have a reasonable
suspicion to believe that the driver is impaired. Minn. Stat. § 169A.41, subd. 1 (Supp.
2023); see Sarber v. Comm’r of Pub. Safety, 819 N.W.2d 465 (Minn. App. 2012) (reversing
an implied-consent license revocation where the officer lacked reasonable suspicion for the
investigation). Because the exclusionary rule require s the district court to suppress the
results of a PBT administered without reasonable suspicion, see State v. Diede, 795 N.W.2d
836, 842 (Minn. 2011), we must consider whether the district court properly concluded that
the officer had reasonable suspicion to ask Lorsung to perform the PBT.
Our review leads us to disagree with the district court’s determination. We review
“a district court’s determination of reasonable suspicion de novo” and “accept[] the district
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court’s factual findings unless they are clearly erroneous.” Kruse v. Comm’r of Pub. Safety,
906 N.W.2d 554, 557 (Minn. App. 2018). Reasonable suspicion requires a particularized
and objective basis to suspect a driver of criminal activity considering the totality of the
circumstances. State v. Anderson, 683 N.W.2d 818, 822–23 (Minn. 2004); State v. Taylor,
965 N.W.2d 747, 752 (Minn. 2021). We understand that, after Officer Sonterre began his
investigation, he had reason to suspect that Lorsung had been driving while impaired. He
knew that she had been drinking and that she had backed into a pedestrian in the parking
lot of a bar at closing time. Even with no other indicia of impairment, a reasonable officer
would suspect—as the officer here initially suspected—that Lorsung was impaired. But
Officer Sonterre did not ask Lorsung to perform a PBT when he first suspected her
impairment. He used other means to test his suspicion. He looked for signs of impairment
in her balance, in the condition of her eyes, and in her speech. He testified at the implied-
consent hearing that none of his observations of those things supported the idea that she
was impaired. He then directed Lorsung to perform the horizontal gaze nystagmus test.
And his observation of her performance on that test combined with the accident
investigation and his ongoing observations of Lorsung led him to believe, contrary to his
initial suspicion, that he had apparently encountered a case of a drunk pedestrian walking
into the car of a sober driver. Corroborating Officer Sonterre’s belief, Officer Yang, who
observed Lorsung the longest, also thought that she was not impaired.
The commissioner emphasizes the circumstances preceding the officer’s no longer
reasonably suspecting Lorsung’s impairment. But the totality of circumstances includes an
officer’s consideration of new information that tends to dispel previous reasonable
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suspicion. This is because police intrusions after their reasonable suspicion has been
dispelled are unconstitutional. State v. Pleas, 329 N.W.2d 329, 332 (Minn. 1983); State v.
Hickman, 491 N.W.2d 673, 675 (Minn. App. 1992), rev. denied (Minn. Dec. 15, 1992).
The commissioner does not identify, and the district court did not find, any indicia of
Lorsung’s intoxication that any officer observed between the time of the horizontal gaze
nystagmus test and the time Officer Sonterre reapproached to ask her to perform the PBT.
We have no difficulty concluding that a reasonable officer in Officer Sonterre’s shoes
would have reasonably suspected, just as the officers here reasonably suspected, that
Lorsung was not impaired when Officer Sonterre asked her to perform the PBT. Because
the information available to the officers in the developing investigation would have
dispelled (and did dispel) their objective reasonable suspicion that Lorsung was impaired,
Officer Sonterre lacked reasonable suspicion to request the test.
We are also unpersuaded by the commissioner’s argument that Officer Sonterre’s
decision not to dismiss Lorsung shows that his reasonable suspicion had not been dispelled.
The argument glosses over three important facts. The first is that Officer Sonterre is trained
to notice signs of intoxication. The second is that he was satisfied that Lorsung was not
impaired. And the third and most important is that the reason he did not dismiss Lorsung
before he requested the PBT was not because he suspected that she was impaired but
because he sought to confirm his contrary suspicion for the sake of demonstrating a
thorough review for the struck pedestrian and her family. It is true that the supreme court
has recognized that “the successful passing of dexterity tests” does not prove that an
individual is not impaired. State v. Elmourabit, 373 N.W.2d 290, 292–93 (Minn. 1985);
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Mesenburg v. Comm’r of Pub. Safety, 969 N.W.2d 642, 649 (Minn. App. 2021), rev. denied
(Minn. Mar. 15, 2022) . But while the typical walk-and-turn and one-leg-stand tests are
perhaps rightly called “dexterity tests,” the same cannot be said of the horizontal gaze
nystagmus test, which has nothing to do with dexterity and instead measures “the rapid
involuntary horizontal oscillation of the eyes” typically resulting from one’s alcohol
concentration. See State v. Klawitter , 518 N.W.2d 577, 579 (Minn. 1994). So although a
skillful, practiced drunk might mask her intoxication by outperforming her impaired peers
in a dexterity test, she cannot control the involuntary eye oscillation the officers are
watching for during the nystagmus test. The commissioner’s dexterity argument is
unavailing here.
The other authorities the commissioner relies on are also plainly distinguished. In
the precedential and even the nonprecedential cases the commissioner cites where we or
the supreme court held that an officer’s reasonable suspicion of intoxication was not
dispelled, the officer observed additional or continuing physical indicia of intoxication or
the driver had performed field sobriety tests poorly. Mesenburg, 969 N.W.2d at 644
(“[Officer] detected the odor of alcohol coming from Mesenburg . . . .”); Swapinski v.
Comm’r of Pub. Safety, 368 N.W.2d 322, 324 (Minn. App. 1985) (“Swapinski had a
balance problem alighting from his truck, and a fairly strong odor of alcohol.”), rev. denied
(Minn. July 26, 1985); State v. Murphy, No. A17-1689, 2018 WL 1997190, at *4–5 (Minn.
App. Apr. 30, 2018) ( reversing district court decision to suppress post-PBT evidence
where, before administering the PBT, the officer noted a “lack of smooth pursuit in both
eyes” during the horizontal gaze nystagmus test and an odor of consumed alcoholic
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beverages); State v. Folkert, No. A12-0854, 2013 WL 499764, at *6 (Minn. App. Feb. 11,
2013) (holding that successful completion of field sobriety tests did not dispel a trooper’s
reasonable suspicion of broader drug -related activity based on many physical indicia);
State v. Krinke, No. A08-1670, 2009 WL 2447821, at *3 (Minn. App. Aug. 11, 2009)
(“Krinke’s performance on one of the field sobriety tests . . . tended to indicate that he was
intoxicated.”); Mack v. Comm’r of Pub. Safety, No. A14-1595, 2015 WL 2457012, at *4
(Minn. App. May 26, 2015) (upholding a PBT request when the officer had learned that
the suspect had a n impaired-driving conviction after his reasonable suspicion had
purportedly been dispelled). None of these cases resemble this one. Officer Sonterre ended
his impaired -driving investigation after Lorsung successfully completed the nystagmus
test, and his reason for asking for the PBT was not based on his reasonable suspicion of
her impairment but instead on his reasoned suspicion of her nonimpairment. The officer
had no basis to request a subsequent chemical test. We reverse the commissioner’s decision
to revoke Lorsung’s driving privileges.
Reversed.