This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0010

                             Rufus Cornelius Loyd, petitioner,
                                       Appellant,

                                            vs.

                              Commissioner of Public Safety,
                                     Respondent.

                                Filed September 29, 2014
                                        Affirmed
                                      Reilly, Judge

                              Hennepin County District Court
                                 File No. 27-CV-13-7446

Rufus Cornelius Loyd, Minneapolis, Minnesota (pro se appellant)

Lori Swanson, Attorney General, Jacob Fischmann, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

         Considered and decided by Peterson, Presiding Judge; Reilly, Judge; and Reyes,

Judge.

                         UNPUBLISHED OPINION

REILLY, Judge

         Appellant challenges the district court’s order sustaining the revocation of his

driver’s license, contending that his refusal to take a blood or urine test was reasonable

because he already passed a breath test. Because appellant’s refusal was unreasonable,

we affirm.
                                         FACTS

       On April 13, 2013, at approximately 3:50 a.m., Brooklyn Park Police Officer

Jamie Angerhofer arrived at a townhome complex to investigate a noise complaint. After

arriving at the townhome complex, he saw a car idling in the parking lot. The car was not

in a parking spot and had its headlights on. Appellant Rufus Loyd was sitting in the

driver’s seat.   Officer Angerhofer stopped the squad car alongside Loyd’s car and

attempted to make contact with him. Loyd’s window was partially down, but Loyd did

not respond.

       Officer Angerhofer then parked the squad car behind Loyd’s car and activated the

emergency lights. Loyd exited his car and placed his hands over his face. Officer

Angerhofer approached Loyd’s car and attempted to talk to him. Loyd placed one of his

hands in his pocket and Officer Angerhofer asked him to remove his hand from his

pocket. Loyd did not respond to the officer nor did he follow the officer’s directions.

Eventually, Officer Angerhofer and his partner physically removed Loyd’s hand from his

pocket. While patting Loyd down, Officer Angerhofer smelled the odor of an alcoholic

beverage coming from Loyd and observed an empty beer can in the car. During this

time, Loyd kept pulling away from the officers and attempted to lean against his car.

       Based on his observations, Officer Angerhofer suspected that Loyd may be

impaired and asked Loyd to perform field sobriety tests. The first test administered was

the horizontal gaze nystagmus (HGN) test. Officer Angerhofer explained the HGN test

to Loyd. While administering the test, Officer Angerhofer noticed that Loyd’s eyes were

watery and that he had pinpointed pupils. The pinpointed pupils seemed unusual to


                                            2
Officer Angerhofer because it was dark outside. During the HGN test, Loyd continued to

stare straight forward and did not follow the tip of Officer Angerhofer’s pen as instructed.

       Next, Officer Angerhofer asked Loyd to complete the walk-and-turn test. Officer

Angerhofer explained and demonstrated the test to Loyd, but it appeared that Loyd did

not understand the instructions. After asking him to place his right foot in front of his left

foot, Loyd did not move his feet.         Because Loyd would not respond to Officer

Angerhofer’s questions or demonstrations, he was arrested for driving while impaired.

Officer Angerhofer searched Loyd’s person and performed a property inventory search of

the car before taking Loyd to the police department. The search revealed no drugs or

drug paraphernalia.

       Officer Angerhofer drove Loyd to the Brooklyn Park Police Department and read

him the motor vehicle implied-consent advisory. Loyd agreed to a breath test, and the

first breath-test sample reported an alcohol concentration of .03. Officer Angerhofer

testified that, based on his training and experience, he believed Loyd was under the

influence of other substances due to him falling into his vehicle, his unsteadiness, his

inability to comprehend and answer simple instructions, and his pinpointed pupils.

Officer Angerhofer opined that pinpointed pupils can be indicative of illegal substances

and that the breath test cannot detect illegal substances. Officer Angerhofer testified that

he is not a trained drug-recognition expert and that he did not attempt to have a drug-

recognition expert evaluate Loyd.

       Officer Angerhofer read a second implied-consent advisory for hazardous or

controlled substances to Loyd, and offered Loyd the choice of taking a blood or urine


                                              3
test. Loyd requested to speak with an attorney, and a telephone was made available to

him. Loyd acknowledged that he understood the advisory, and Loyd declined to take

either test. Officer Angerhofer asked Loyd what his reason for refusing was and Loyd

did not respond but, instead, shrugged his shoulders. Respondent commissioner of public

safety subsequently revoked Loyd’s driver’s license and impounded his license plates.

       At the October 29, 2013 implied-consent hearing, Loyd argued that based on the

circumstances and the .03 breath test, probable cause did not exist to believe that Loyd

was under the influence of a controlled substance, thus rendering the second chemical test

illegal. In determining whether probable cause existed for the second chemical test, the

district court found:

              The facts in the present case reflect that the officer observed
              that Mr. Loyd was falling into his vehicle, he was unsteady on
              his feet, there was an odor of alcohol, he observed an open
              beer can on the passenger front seat. Mr. Loyd, the officer
              testified, didn’t follow instructions, including keeping his
              hands out of his pocket when instructed to do so, and that he
              appeared unable to respond to questions. . . . The officer
              testified that he believed that Mr. Loyd was impaired for all
              of the reasons stated, plus the fact that his pupils were
              pinpointed. . . .
                      It was therefore reasonable that he had probable cause
              to believe that that was the case and that justified the second
              test under 169A.51, subdivision 4. The Court therefore
              denies the motion to rescind.

       Loyd appeals the district court’s order sustaining the revocation of his driving

privileges.




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                                     DECISION

       A law-enforcement officer may request that a driver submit to a chemical test of

the person’s blood, breath, or urine, if the officer has “probable cause to believe the

person was driving, operating, or in physical control of a motor vehicle” while impaired.

Minn. Stat. § 169A.51, subd. 1(b) (2012). But if a person refuses to submit to chemical

testing, “a test must not be given.” Minn. Stat. § 169A.52, subd. 1 (2012); see also State

v. Brooks, 

 (Minn. 2013) (“If a driver refuses the test, the police are

required to honor that refusal and not perform the test.”), cert. denied, 

(2014). A consequence of such a refusal, however, is that the commissioner of public

safety will revoke the person’s driver’s license. Minn. Stat. § 169A.52, subd. 3(a). “It is

an affirmative defense for the petitioner to prove that, at the time of the refusal, the

petitioner’s refusal to permit the test was based upon reasonable grounds.” Minn. Stat.

§ 169A.53, subd. 3(c).

       “Probable cause to arrest a person for DWI exists when the facts and

circumstances available at the time of arrest reasonably warrant a prudent and cautious

officer to believe that an individual was driving under the influence.” Reeves v. Comm’r

of Pub. Safety, 

 (Minn. App. 2008). A determination of probable

cause is a mixed question of law and fact. Groe v. Comm’r of Pub. Safety, 

 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000). Once the facts have

been found we must apply the law to determine if probable cause exists.            

   In

reviewing a probable-cause determination, we consider whether the police officer had a

substantial basis for concluding that probable cause existed at the time he or she invoked


                                            5
the implied-consent law.      

   In doing so, this court examines the totality of the

circumstances. Eggersgluss v. Comm’r of Pub. Safety, 

 (Minn.

1986). We give deference to the officer’s experience and judgment. Delong v. Comm’r

of Pub. Safety, 

 (Minn. App. 1986), review denied (Minn. June 13,

1986).

         Minnesota law allows a peace officer to administer a blood or urine test

               even after a breath test has been administered if there is
               probable cause to believe that:
               (1) there is impairment by a controlled substance or a
               hazardous substance that is not subject to testing by a breath
               test; or
               (2) a controlled substance listed in Schedule I or II or its
               metabolite, other than marijuana or tetrahydrocannabinols, is
               present in the person’s body.

Minn. Stat. § 169A.51, subd. 4 (2012).            The district court found that the officer

reasonably believed that Loyd was under the influence of drugs. We agree.

         In State v. Prax, we held that probable cause existed to arrest the appellant for

driving while impaired even after he blew a .00 on the preliminary breath test. 

 (Minn. App. 2004), review denied (Minn. Dec. 14, 2004). In upholding

the probable-cause determination, we concluded that the appellant’s sweating, dilated

pupils, anxious and fidgety behavior, body tremors, elevated pulse, and swaying during

one of the field sobriety tests supplied the officer with probable cause for an additional

chemical test. Id.; see State v. Hegstrom, 

 (Minn. App. 1996)

(holding that probable cause existed for arresting a driver for driving while under the

influence of a controlled substance when the driver appeared distracted and “out of it,”



                                              6
had severely constricted pupils, and demonstrated inattentive driving), review denied

(Minn. Apr. 16, 1996); see also State v. Kier, 

 (Minn. App. 2004)

(“An officer needs only one objective indication of intoxication to constitute probable

cause to believe a person is under the influence.”).

       Here, the record shows that Loyd exhibited multiple indications of impairment.

Officer Angerhofer testified that Loyd did not respond to his initial questions, covered his

face with his hands when he exited his car, would not respond to additional questioning,

was unsteady on his feet and fell back into his car, had watery eyes and pinpointed pupils,

was unable to follow instructions during the HGN test, and was unable to follow

instructions and complete the walk-and-turn test.       On these facts, the district court

properly found that the officer had a substantial basis for finding probable cause to

believe that appellant was driving while under the influence of a controlled substance,

justifying the officer’s request that he take an additional chemical test. Accordingly,

under the implied-consent law, Loyd’s refusal to submit to a second test was

unreasonable.

       Loyd also argues that the officer’s failure to tell him the results of the breath test

and his failure to explain why he had to take an additional test provided sufficient reasons

for refusal.    The record refutes these arguments.       The record shows that Officer

Angerhofer read a second implied-consent advisory to Loyd regarding the second test.

This advisory stated that Loyd was required to take a test to determine whether he was

“under the influence of hazardous or controlled substances.”            Officer Angerhofer

supplied a telephone to Loyd after he requested to consult with an attorney. Moreover,


                                             7
we have held that a police officer is not obligated to disclose the results of an initial

breath test sample before requesting a second sample. See O’Brian v. Comm’r of Pub.

Safety, 

 (Minn. App. 1996) (affirming the district court’s finding

that appellant’s refusal was unreasonable when he refused to give a second breath sample

on the ground that he was not told the result of the first sample).

       Lastly, Loyd challenges the initial stop, withholding of evidence, his Miranda

rights, and the 911 call. At the hearing, however, the only issue presented to the district

court was whether probable cause existed for the second chemical test. Generally, we

will not consider matters not argued to and considered by the district court. Thiele v.

Stitch, 

 (Minn. 1988).            Although appellate courts can make

exceptions for pro se criminal appellants, Dale v. State, 

 (Minn.

1995), Loyd provides no legal analysis for his argument and cites to evidence not in the

record. See State v. Modern Recycling, Inc., 

 (Minn. App. 1997)

(“An assignment of error based on mere assertion and not supported by any argument or

authorities in appellant’s brief is waived and will not be considered on appeal unless

prejudicial error is obvious on mere inspection.”).       Because we cannot discern any

obvious prejudicial error, we decline to consider Loyd’s additional arguments on appeal.

       Affirmed.




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