State of Minnesota v. Daniel James Lewison

This opinion is nonprecedential except as provided by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
A22-1807

State of Minnesota,
Respondent,

vs.

Daniel James Lewison,
Appellant.

Filed December 11, 2023
Affirmed
Cochran, Judge

Dodge County District Court
File No. 20-CR-21-309

Keith Ellison, Attorney General, Lisa Lodin Peralta, Assistant Attorney General, St. Paul,
Minnesota; and

Paul Kiltinen, Dodge County Attorney, Mantorville, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Johnson, Judge; and

Ede, Judge.

NONPRECEDENTIAL OPINION

COCHRAN, Judge

On appeal from his conviction for driving while impaired (DWI)—test refusal,

appellant argues there was insufficient evidence to sustain his conviction because the state
failed to prove beyond a reasonable doubt that law enforcement had probable cause to

believe that he was under the influence of a controlled substance while driving. We affirm.

FACTS

After appellant Daniel James Lewison refused to comply with a traffic stop and led

three law enforcement officers on a lengthy pursuit, respondent State of Minnesota charged

Lewison with fleeing a peace officer in a motor vehicle, felony DWI for refusal to submit

to a chemical test (DWI—test refusal), first-degree DWI for operating a motor vehicle

under the influence of alcohol, driving after cancellation, obstructing legal process,

speeding, and littering. Prior to Lewison’s jury trial, the state dismissed three of the counts.

By the close of trial, the state had dismissed one more count. The jury found Lewison

guilty of the remaining three counts: fleeing a peace officer, DWI—test refusal, and driving

after cancellation.

At trial, the jury heard testimony from five law enforcement officers and Lewison.

The testimony at trial established the following. In April 2021, an officer observed a red

BMW drive past his squad car while the officer was performing traffic enforcement. The

officer ran its plates and discovered that the car was registered to Lewison, whose driver’s

license was cancelled as inimical to public safety. The officer attempted to initiate a traffic

stop, but Lewison continued driving and a 20-minute pursuit involving at least two

additional officers ensued.

During the pursuit, three officers observed Lewison commit traffic violations that

included failing to stop at stop signs, abruptly turning around on a highway, speeding, and

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driving in the middle of the road in a manner that forced oncoming traffic onto the shoulder.

The officers estimated that Lewison reached speeds of 80 to 100 miles per hour.

The pursuit ended shortly after Lewison led the officers down a rural road that

provided access to a wind turbine. There, Lewison collided with two squad cars before the

officers successfully contained his car. An officer then aimed his gun at Lewison’s car and

informed Lewison that he was under arrest. Lewison exited the car with his hands up, but

disobeyed orders to stop and walked away from the officer. In response, another officer

tackled Lewison to the ground. Lewison tensed up, preventing the officers from

handcuffing him. The officers eventually “muscle[d] [Lewison’s] hands behind his back”

and handcuffed him. The state introduced exhibits containing squad-car video recordings

of the pursuit and Lewison’s arrest.

The three pursuing officers testified about Lewison’s conduct during the arrest. The

first officer testified that Lewison was “screaming obscenities,” “saying nonsensical

things,” “unable to sit still,” and “switch[ing] between states of calm and . . . erratic.” The

second officer testified that Lewison was sweating profusely, “very upset,” yelling

obscenities and other “incoherent talk,” and had fluctuating moods. The third officer

testified that Lewison “was very erratic, . . . very high-strung, disruptive when guys were

trying to talk to him, [and] shouting obscenities.”

Officers were able to conduct a preliminary breath test on the scene, which showed

that Lewison had no alcohol in his system, but the officers could not conduct a field

sobriety test due to Lewison’s noncooperation. Still, each officer testified that they

suspected that Lewison was under the influence of a controlled substance based on his

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behavior. The officers testified that they could recognize when a driver was impaired by

controlled substances through their training and experience.

A state trooper arrived after Lewison was detained in a squad car. The trooper

observed that Lewison was “talking rapidly and loudly” and “very fidgety and constantly

moving.” The trooper also observed veins pulsating on Lewison’s head and neck. The

trooper attempted to take Lewison’s pulse and conduct a field sobriety test, but Lewison

again refused to comply. The trooper determined that “it was futile to continue to get

[Lewison’s] cooperation and examine him.”

At trial, the trooper testified about his background in detecting drug impairment,

which included state-patrol-academy training, a Drug Recognition Evaluator (DRE)

certification, and more than twenty years of instructing other officers in DRE courses. The

trooper also stated that he had arrested 221 drivers impaired by drugs over the course of

his career. The district court then certified the trooper as an expert in drug recognition

evaluation without objection from Lewison. The trooper testified that Lewison was

“definitely showing some signs of stimulant use or impairment.” The trooper did not

believe that Lewison’s behavior could have been caused solely by adrenaline because

Lewison’s agitation lingered for a “long time” and adrenaline rushes tend to subside after

the inciting event ends.

After his arrest, Lewison was transported to a holding cell at the Dodge County

Sherriff’s Office. The trooper informed Lewison that he had a signed warrant authorizing

collection of Lewison’s blood or urine for controlled substance testing and attempted to

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obtain a sample. The trooper instructed Lewison that failure to comply with the search

warrant was a crime. Lewison refused to provide a sample.

Lewison testified that he did not drink alcohol or use controlled substances on the

day of the pursuit, claiming that his actions were instead caused by adrenaline. Lewison

also asserted that he did not stop because he “was scared of Minnesota law enforcement.”

Lewison testified that he was angry after he was tackled to the ground and handcuffed.

Finally, Lewison testified that he did not submit to the warrant for a blood or urine test

because he thought that passing the preliminary breath test was “good enough.”

The jury found Lewison guilty of fleeing a peace officer, felony DWI—test refusal,

and driving after cancellation. The district court sentenced Lewison to an executed

sentence of 66 months.

Lewison appeals.

DECISION

In his primary brief, Lewison challenges only his DWI—test refusal conviction. He

bases his challenge on the sufficiency of the evidence. In a pro se supplemental brief,

Lewison raises several other issues. We address his arguments in turn.

I. The evidence was sufficient to support the jury’s verdict.

Lewison argues that the state presented insufficient evidence to sustain his

conviction of DWI—test refusal under Minnesota Statutes section 169A.20,

subdivision 2 (2020), because the state failed to prove beyond a reasonable doubt that there

was probable cause to believe he drove while under the influence of a controlled substance.

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 Clarification of the DWI—Test Refusal Charge and Conviction

Before analyzing Lewison’s challenge to the sufficiency of the evidence on probable

cause, we begin by clarifying the DWI—test refusal offense at issue in this case, as

reflected by the record. Under section 169A.20, subdivision 2:

It is a crime for any person to refuse to submit to a chemical
test:
(1) of the person’s breath under section 169A.51
(chemical tests for intoxication), or 169A.52 (test refusal or
failure; revocation of license); or
(2) of the person’s blood or urine as required by a search
warrant under sections 171.177 and 626.04 to 626.18.

Minn. Stat. § 169A.20, subd. 2. The complaint in this case charged Lewison with violating

clause (1) of subdivision 2, which makes it a crime to refuse a breath test, but the record

reflects that the parties proceeded at trial under the assumption that Lewison was being

prosecuted under clause (2) for refusing to submit to a blood or urine test. From the record,

it is also clear that Lewison was convicted under clause (2). Indeed, the jury instructions

on Lewison’s DWI—test refusal count required the jury to find, among other facts, that

(1) there was a warrant to test Lewison’s blood or urine, (2) Lewison was instructed that

refusing to comply with the warrant was a crime, and (3) Lewison refused to comply with

the warrant. The instructions also required the jury to find beyond a reasonable doubt that

law enforcement had probable cause to believe that Lewison was driving while under the

influence of a controlled substance.

The distinction between clause (1) and clause (2) is important regarding the

probable-cause element. Clause (1) specifically includes a probable-cause element by

providing that it is a crime to refuse a breath test under sections 169A.51 or 169A.52, both

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of which make probable cause of impaired driving a prerequisite for an officer to request a

driver to submit to a breath test. See Minn. Stat. §§ 169A.20, subd. 2(1), 169A.51,

subd. 1(b), 169A.52, subd. 1 (2020). But there is no similar reference to sections 169A.51

or 169A.52 in clause (2). See Minn. Stat. § 169A.20, subd. 2(2). Instead, under clause (2),

it is a crime to refuse to submit to a blood or urine test “as required by a search warrant

under sections 171.177 and 626.04 to 626.18.” Id. Because a search warrant requires a

finding of probable cause by a judge to support its issuance, the warrant requirement of the

clause-(2) offense reasonably takes the place of the probable-cause element of the clause-

(1) offense. See Minn. Stat. §§ 626.08 (“A search warrant cannot be issued but upon

probable cause . . . .”), 169A.20, subd. 2(2) (incorporating section 626.08) (2020). 1

Therefore, it is not entirely clear that probable cause is an element of the test-refusal offense

under clause (2), notwithstanding the jury instruction on probable cause in this case.

Nonetheless, the parties appear to agree in their respective briefs that probable cause

is an element of the offense defined in clause (2). Given their agreement, we assume

without deciding that probable cause is an element of the offense of refusing to submit to

a blood or urine test under section 169A.20, subdivision 2(2). And for the reasons set forth

1
Prior versions of section 169A.20 did not include a warrant requirement for blood or urine
tests. See e.g., Minn. Stat. § 169A.20, subd. 2 (2016). But in Birchfield v. North Dakota,
the United States Supreme Court held that the Fourth Amendment does not permit
warrantless blood tests incident to an arrest for drunk driving. 579 U.S. 438, 474-75
(2016). In response, the Minnesota Legislature amended the test-refusal statute to include
clause (2), which incorporates the warrant requirement outlined in Birchfield. See 2017
Minn. Laws ch. 83, art. 2, § 2, at 351, 355 (codified at Minn. Stat. § 169A.20, subd. 2
(Supp. 2017)).

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below, we conclude that the evidence is sufficient on this element to support Lewison’s

conviction.

Sufficiency of the Evidence

We begin our analysis of the sufficiency of the evidence by addressing the

applicable standard of review. When considering a challenge to the sufficiency of the

evidence, this court conducts “a painstaking review of the record to determine whether the

evidence and reasonable inferences drawn therefrom, viewed in a light most favorable to

the verdict, were sufficient to allow the jury to reach its verdict.” Lapenotiere v. State,

916 N.W.2d 351, 360-61 (Minn. 2018) (quotation omitted). We must assume that the jury

“believed the state’s witnesses and disbelieved any contradictory

evidence.” State v. Webster, 894 N.W.2d 782, 785 (Minn. 2017) (quotation omitted). A

reviewing court “will not disturb a verdict if the jury, acting with due regard for the

presumption of innocence and for the necessity of overcoming it by proof beyond a

reasonable doubt, could reasonably conclude that the defendant was proven guilty of the

offense charged.” State v. Flowers, 788 N.W.2d 120, 133 (Minn. 2010) (quotation

omitted).

We apply this standard of review so long as a conviction is adequately supported by

direct evidence. State v. Horst, 880 N.W.2d 24, 39-40 (Minn. 2016). “[D]irect evidence

is evidence that is based on personal knowledge or observation and that, if true, proves a

fact without inference or presumption.” State v. Harris, 895 N.W.2d 592, 599

(Minn. 2017) (quotation omitted). Conversely, circumstantial evidence is “evidence from

which the factfinder can infer whether the facts in dispute existed or did not exist.” Id. at

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599 (quotation omitted). If proof of an offense, or a single element of an offense, is based

on circumstantial evidence alone, the reviewing court applies a heightened standard of

review. See State v. Fairbanks, 842 N.W.2d 297, 307 (Minn. 2014).

Lewison argues that the state’s evidence on the probable-cause element consisted

of circumstantial evidence and therefore the heightened standard of review applies. We

are not persuaded.

Determining the existence of probable cause is an objective inquiry. State v. Koppi,

798 N.W.2d 358, 363 (Minn. 2011). “[T]he probable cause standard asks whether the

totality of the facts and circumstances known would lead a reasonable officer to entertain

an honest and strong suspicion that the suspect has committed a crime.” Id. (quotation

omitted). To prove that the officers here had probable cause to believe that Lewison was

driving while impaired, the state presented evidence of the officers’ direct observations of

Lewison’s erratic driving and behavior. The state also introduced squad-car videos

supporting the testimony about Lewison. And the officers testified that, based on their

training and experience, Lewison’s behavior was indicative of stimulant impairment. All

of this evidence is direct evidence of the totality of the facts and circumstances known to

the officers, and, if true, proves without inference that there was probable cause to believe

Lewison was driving while impaired. See State v. Olson, 887 N.W.2d 692, 700 (Minn.

App. 2016) (concluding that an officer’s direct observations of indicia of impairment and

testimony based on those observations are direct evidence of impairment). Accordingly,

we conclude that the direct-evidence, not the circumstantial-evidence, standard of review

applies to Lewison’s challenge.

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 Applying the direct-evidence standard and viewing the evidence in the light most

favorable to the verdict, we conclude the evidence at trial was sufficient to prove beyond a

reasonable doubt that law enforcement had probable cause to believe that Lewison was

driving while impaired. The record reflects that officers observed Lewison drive in the

middle of a highway, abruptly turn around on a highway, and reach speeds between 80 and

100 miles per hour. Once Lewison was arrested, the officers observed him in a sweaty,

agitated state, talking incoherently, and unable to sit still. They also observed Lewison

fluctuating in his moods and unwilling to cooperate. 2 The state introduced squad-car

videos that support these observations.

We have held that driving conduct and physical indicia similar to those exhibited

by Lewison can support probable cause of impairment by a controlled substance. See

State v. Prax, 686 N.W.2d 45, 48-49 (Minn. App. 2004) (affirming the district court’s

finding of probable cause where officers observed the defendant make illegal turns, drift

over lane dividers, and exhibit indicia of intoxication including sweating and “anxious,

fidgety behavior”), rev. denied (Minn. Dec. 14, 2004). Moreover, “[a]n officer needs only

one objective indication of intoxication to constitute probable cause to believe a person is

under the influence.” State v. Kier, 678 N.W.2d 672, 678 (Minn. App. 2004) (quotation

omitted).

2
An officer also testified that Lewison sang, “I’m high, I’m high, I’m high.” Lewison
testified that he merely said, “Hands held high, hands held high.” Under the
direct-evidence standard of review, we assume that the jury believed the state’s witnesses
and disbelieved any contrary evidence. Webster, 894 N.W.2d at 785. We therefore accept
the officer’s testimony, but we need not rely on this disputed piece of evidence to reach
our conclusion given the strength of the other evidence of Lewison’s impairment.

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 Here, the officers observed multiple indicia of impairment, including sweating

along with anxious, fidgety behavior. And the officers testified that, based on their training

and experience, the multitude of erratic behaviors exhibited by Lewison indicated that he

was impaired by a stimulant. Accordingly, the direct evidence was sufficient for the jury

to conclude, beyond a reasonable doubt, that officers had probable cause to believe that

Lewison was driving while under the influence of a controlled substance. Therefore,

Lewison’s sufficiency-of-the-evidence challenge to his DWI—test refusal conviction does

not warrant reversal.

II. Lewison’s Supplemental Arguments

Lewison raises four arguments in a supplemental brief: (1) there was no probable

cause to initiate a traffic stop; (2) his initial appearance was held virtually from the wrong

jurisdiction; (3) the prosecutor did not appear in person at the “rule 8 hearing” and instead

was allowed “to speak from a loud speaker with no face recognition;” and (4) the district

court signed “a fraudulent warrant” authorizing Lewison’s extradition from Mitchell

County, Iowa. Lewison provides no citations to legal authority or the record to support

any of his supplemental arguments. “Claims in a . . . supplemental brief that are

unsupported by either arguments or citation to legal authority are forfeited,” and “will not

[be] considered unless prejudicial error is obvious on mere inspection.” State v. Montano,

956 N.W.2d 643, 650-51 (Minn. 2021) (quotation omitted); see also Brooks v. State,

897 N.W.2d 811, 818-19 (Minn. App. 2017) (declining to consider arguments “based on

mere assertion and not supported by legal authority or argument”). On mere inspection,

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we discern no obvious prejudicial error. Therefore, Lewison’s supplemental claims are

forfeited, and we decline to review them.

Affirmed.

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