This opinion is nonprecedential except as provided by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
                                     A23-1367

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Isabella Anne Gendron,
                                         Appellant.

                                   Filed June 17, 2024
                                        Reversed
                                   Smith, John, Judge *

                              Olmsted County District Court
                                File No. 55-CR-21-7219

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

Michael J. Spindler-Krage, Rochester City Attorney, Samuel T. Shabel, Assistant City
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Cochran, Presiding Judge; Ede, Judge; and Smith, John,

Judge.




* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to

Minn. Const. art. VI, § 10.
                            NONPRECEDENTIAL OPINION

SMITH, JOHN, Judge

       We reverse appellant Isabella Anne Gendron’s conviction for third-degree driving

while impaired (DWI)-refusal to submit to chemical testing, pursuant to Minn. Stat.

§§ 169A.20, subd. 2(2), .26, subd. 1(b) (2020) because the trooper’s statement to appellant

that he had a warrant for blood or urine, followed by repeated requests for a blood sample,

did not constitute an offer to take a urine test as required by the statute.

                                           FACTS

       Shortly after midnight on November 24, 2021, a trooper observed a car driving 77

mph in a 35-mph zone and followed the car as it sped to over 100 mph in a 60-mph zone.

The trooper initiated a stop and approached the car, which had only one occupant—

appellant Isabella Anne Gendron. The trooper observed that Gendron’s pupils were dilated

and that she was talking quickly, grinding her teeth, and had heat bumps 1 on her tongue.

Gendron disclosed that she was on probation for a controlled-substance offense and that

she had been sober for a few days after using cocaine. The trooper conducted field testing

and based on the results and his observations, he believed that Gendron was under the

influence of a controlled substance and placed her under arrest for driving while impaired .

       When they arrived at the jail, the trooper applied for and obtained a search warrant

for a blood or urine sample and then presented the search warrant to Gendron. Throughout



1 The trooper testified that “heat bumps” are red or white bumps that appear on the back of

a person’s tongue after inhaling or smoking something very hot, such as controlled
substances.

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most of the 90-second exchange, the trooper and Gendron spoke simultaneously.           The

trooper eventually managed to tell Gendron that he had a signed search warrant for a

sample of her blood or urine. Gendron responded, saying, “I’m not doing sh-t. You can

suck my d-ck with all that.” The trooper then asked Gendron to go into another room

“because we’re gonna do a blood draw,” to which Gendron replied, “No, we’re not.” The

trooper again asked Gendron to come with him for a blood draw and she repeatedly stated,

“I’m not doing nothing for you.” The trooper advised her that failure to comply with a

search warrant is a crime. Gendron continued to refuse the blood test, and the trooper noted

that she refused all testing.

       Respondent State of Minnesota charged Gendron with third-degree driving while

impaired (DWI)-refusal to submit to chemical testing, pursuant to Minn. Stat. §§ 169A.20,

subd. 2(2), .26, subd. 1(b) (2020). Gendron moved to dismiss the charge because the

trooper did not offer a urine test when Gendron refused the blood test.

       At the contested omnibus hearing, the trooper testified that he called a phlebotomist

to the jail for a blood sample and that the phlebotomist was present when the trooper asked

Gendron for the blood sample. Additionally, he testified that “[Gendron] said several times

she wasn’t going to give me anything I was asking for. She didn’t use those terms, but she

said several times she wasn’t going to comply with the warrant or she wasn’t going to give

me anything. She said she’d sit in jail.” He testified that Gendron did not provide any

reason for him to believe that she would refuse only a blood test; “she didn’t say she was

scared of needles or didn’t want to provide a blood sample because of the needle or

anything, she just said she wasn’t going to give me anything because I didn’t have the right


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to arrest her.” However, the trooper acknowledged that he never specifically offered

Gendron a urine test.

       Gendron testified that she refused the blood test because she does not like needles

and did not “feel like there was a need for it.” Gendron testified that she saw the search

warrant and that it authorized a blood test or a urine test, but that at the time she “didn’t

think once [the trooper] chose which test they wanted that you could pick” and that she

“thought it was up to the [trooper] to decide which [test to provide].”

       The district court denied Gendron’s motion to dismiss the test-refusal charge

because (1) a jury could reasonably find that the trooper’s statement, “I have a signed

search warrant for your blood or urine,” informed Gendron that the test could be for blood

or urine and (2) a jury could reasonably determine that Gendron’s statement—“I’m not

doing sh-t. You can suck my d-ck with all that”—was a refusal of all testing, and so the

trooper did not need to offer anything more.

       The case proceeded to a stipulated-evidence trial, and the district court found

Gendron guilty of third-degree DWI-test refusal, entered the judgment of conviction, and

sentenced her pursuant to the stipulation.

                                        DECISION

       Gendron argues that the district court erred when it denied her motion to dismiss the

DWI-test-refusal charge because (1) the trooper was required to offer both blood and urine

tests so that she might refuse each before she could be charged and convicted of test refusal

under Minn. Stat. § 169A.20, subd. 2(2), and (2) her general noncompliance with the

trooper’s orders does not constitute refusal of both a blood and a urine test and that the


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trooper’s single mention of the word “urine” when he presented her with the search warrant

does not constitute an offer for a urine test instead of a blood test. We resolve this case on

Gendron’s first argument, so we need not reach her second.

       Due process requires that the state prove beyond a reasonable doubt every fact and

element necessary to convict the defendant of the crime charged.              State v. Hage,

 (Minn. 1999). The state charged Gendron with violating Minnesota

Statutes section 169A.20, subdivision 2(2). The statute says, “[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 under sections 171.177 and 626.04 to 626.18.” Minn. Stat. § 169A.20,

subd. 2(2). Section 171.177 requires an officer to inform the person that test refusal is a

crime, and explicitly states that “[a]ction may be taken against a person who refuses to take

a blood test only if a urine test was offered and action may be taken against a person who

refuses to take a urine test only if a blood test was offered.” 

,

subds. 1-2 (2020). Therefore, to prove the crime of test refusal, the state must prove that

(1) the person refused to submit, (2) to a chemical test of their blood or urine, (3) as

required by a valid search warrant, (4) an officer informed the person that refusal is a crime,

and (5) an officer offered a blood or urine test and, if refused, offered the other. Minn.

Stat. §§ 169A.20, subd. 2(2), 171.177, subds. 1-2.

       Whether a defendant’s conduct meets the definition of a particular offense presents

a question of statutory interpretation that we review de novo. State v. Hayes, 

 (Minn. 2013).




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       Although the parties’ briefs present this issue as a review of the district court’s

probable-cause determination, this court conducts a sufficiency-of-the-evidence review

because the district court already entered a judgment of conviction. See State v. Holmberg,

 (Minn. App. 1995) (explaining that although the defendant

challenged probable cause, this was an irrelevant argument because the district court

entered a conviction), rev. denied (Minn. Mar. 21, 1995).

       “[Appellate courts] use the same standard of review in bench trials and in jury trials

in evaluating the sufficiency of the evidence.” State v. Palmer, 

(Minn. 2011). When performing a sufficiency-of-the-evidence review, we conduct “a

painstaking analysis of the record to determine whether the evidence, when viewed in a

light most favorable to the conviction, was sufficient to permit the jurors to reach the

verdict which they did.” State v. Webb, 

 (Minn. 1989). A conviction

will not be reversed “if [a] 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 a defendant was proven guilty of the offense charged.” Bernhardt

v. State, 

 (Minn. 2004) (quotation omitted).

       The standard of review applied to the evidence depends on whether direct or

circumstantial evidence supports the element challenged on appeal.           State v. Stein,

 (Minn. 2010) (“A conviction based on circumstantial evidence

receives stricter scrutiny than a conviction based on direct evidence.”). “[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, 

 (Minn.


                                             6
2017) (quotation omitted). Here, we need only review direct evidence—the search warrant

and the recorded conversation.

       Pursuant to our de novo review, we determine that the state did not prove that the

trooper offered Gendron a urine test, and therefore the final element of the charge is not

met. Minnesota Statutes section 171.177, subdivision 2, incorporated into the charging

statute, clearly states that a test refusal has not occurred unless an officer offers the person

both a blood test and a urine test.

                      The peace officer who directs a test pursuant to a search
              warrant shall direct a blood or urine test as provided in the
              warrant. If the warrant authorizes either a blood or urine test,
              the officer may direct whether the test is of blood or urine. If
              the person to whom the test is directed objects to the test, the
              officer shall offer the person an alternative test of either blood
              or urine. Action may be taken against a person who refuses to
              take a blood test only if a urine test was offered and action may
              be taken against a person who refuses to take a urine test only
              if a blood test was offered.

, subd. 2; see also Nash v. Comm’r of Pub. Safety, 4 N.W.3d 812,

816 (Minn. 2024) (recognizing that Minnesota Statutes section 171.122, subdivision 2

“says that if the person refuses the type of test the officer initially offers (blood or urine),

action may not be taken against the person for test refusal unless the person is also offered

and refuses to take the other type of test”).

       The evidence here demonstrates that the trooper informed Gendron that he had a

search warrant for her blood or urine and that a phlebotomist stood nearby. There is no

indication in the recording of the conversation that the trooper ever told Gendron that she

could choose to provide a urine sample instead of a blood sample or that a urine test could



                                                7
be made available. Rather, he continued to ask her to go to the room next door so that the

phlebotomist could obtain a blood sample. The only meaningful engagement Gendron had

with the trooper was when she refused his request to go next door for the blood draw. The

facts do not indicate that the trooper ever offered Gendron an alternate test (urine test) or

gave her the choice between a urine or a blood test.

       A review of the caselaw also demonstrates that an officer stating that they obtained

a warrant for blood or urine is not an offer under the statute. 2 Gendron points us to a

previous opinion from our court, State v. Hammann, No. A11-1322, 

(Minn. App. July 23, 2012), rev. denied (Minn. Oct. 16, 2012). 3 In Hammann, we reversed

a DWI-test-refusal conviction because, although the officer said the sample could be blood

or urine and the defendant proceeded to ask questions of the officer, ultimately the officer

said, “If you won’t do urine, we’re gonna ask you do blood and that’s it,” and we

determined that this statement did not create “an offer for alternative testing.” 

.

Gendron’s case presents facts that are even less supportive of a determination that the

trooper provided Gendron with an offer for alternative testing. Like Hammann, the trooper


2 The cases relied on in this opinion predate the substantive changes to Minn. Stat.
§ 169A.20, subd. 2(2), that happened in 2017, which added a warrant requirement for a
blood or urine test. See State v. Rosenbush, 

 (Minn. 2019)
(explaining the legislative change that now requires blood and urine samples be obtained
only pursuant to a search warrant); Johnson v. State, 

 (Minn. 2018)
(holding that the warrant requirement is a substantive change to the law for the purpose of
retroactive application). Cases predating this change are instructive to our analysis of the
offer element because that requirement remains unchanged but should not be cited with
respect to the warrant requirement.

3 “Nonprecedential opinions . . . may be cited as persuasive authority.”   Minn. R. Civ. App.
P. 136.01, subd. 1(c).

                                              8
only mentioned the alternative test once, which occurred at the beginning of the interaction;

but unlike Hammann, the trooper here only stated that he had a warrant for blood or urine,

not that Gendron could choose a urine test. Furthermore, he spoke with Gendron while a

phlebotomist stood behind him and never indicated that he had the supplies for a urine test.

We determine that the facts of this case are so dissimilar from Hammann that it is even less

reasonable to conclude that the trooper offered Gendron a urine test or a choice between

the two tests.

       The state and the district court relied on reasoning from two other cases from this

court, State v. Urban, No. A08-1316, 

 (Minn. App. July 21, 2009), rev.

denied (Minn. Oct. 20, 2009), and State v. Hagen, 

 (Minn. App. 1995). In

Urban, we affirmed a test-refusal conviction because the officer’s reading of the

implied-consent advisory, which the defendant acknowledged that he understood, satisfied

the offer element. 

, at *3. The facts of Gendron’s case are similar to

the extent that there was only one mention of the blood or urine test at the beginning of her

interaction with the trooper—but this is where the similarities end. In Hagen, we affirmed

the defendant’s DWI-test-refusal conviction “because the deputy initially offered Hagen a

choice of either test,” and the defendant’s continued silence amounted to a refusal.

. The defendant continued to remain silent while the officer repeated

the offer two more times. 

. The facts in Gendron’s case are drastically different—

because the trooper never offered a urine test in the first place, Gendron had no opportunity

to refuse.




                                             9
      Thus, because the trooper did not offer Gendron a test of her urine rather than her

blood as required by the statute, the evidence is insufficient to support Gendron’s

DWI-test-refusal conviction.

      Reversed.




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