Alcohol Testing Law Does Not Shield Trooper From License Revocation

Nicholas Morse is a Minnesota State Trooper. Morse arrived in his squad car at a training assignment about ten minutes late. Lieutenant Quint Stainbrook asked Morse for his portable radio so it could be reprogrammed. Morse left the building and the lieutenant waited several minutes for him to return. Stainbrook gave up waiting and went to the training room, where another trooper reported to the lieutenant that he smelled alcoholic beverages on Morse.

Morse finally returned and entered the training room at 8:30. He chose a seat on the far side of the room away from the Stainbrook and the other troopers. Stainbrook asked Morse for his squad car number so he could find the correct spare key. Morse had trouble remembering the number.

A sergeant and a captain called Morse out of the meeting at 9:20. Meanwhile, Stainbrook found the spare key to Morse’s squad car and went outside. He noticed that Morse had “parallel” parked the car irregularly, with the closest front tire near the curb and the rear tire angled out about six feet away. When the lieutenant opened the car door he found the radio playing and the ignition lights still on because Morse had failed to turn the key to the off position. He also smelled the odor of an alcoholic beverage inside the car.

The captain then read Morse a portion of the union contract concerning alcohol testing. Morse submitted to a preliminary breath test, which revealed an alcohol concentration of .099. Morse asked another lieutenant about his job status, and the lieutenant told him that “that would be determined at a later date,” and he added, “We are only going to deal with the current situation at hand today.” The lieutenant administered a horizontal-gaze-nystagmus test, which corroborated the suspicion that Morse was intoxicated.

Based upon the breath test, the Commissioner of Public Safety revoked Morse’s driver’s license. Morse challenged the revocation in court on the theory that the preliminary and final breath tests could not be admitted in his implied-consent proceeding because those tests did not comply with the procedures authorized in the Minnesota Drug and Alcohol Testing in the Workplace Act.

The Minnesota Court of Appeals rejected Morse’s arguments. The Court found that the Act did not even apply to Morse’s situation. The Court observed that “the legislature authorizes at least two chemical testing processes. One can occur in the impaired-driving setting. The other occurs in specified employment settings. The two laws stand independently. Each satisfies a different public policy and ends with a different result.

“As for public policy, the workplace-testing statute promotes reliability and fairness to employees when employers seek chemical testing. By contrast, the impaired-driving law promotes roadway safety. Regarding results, one of these statutes establishes a process that may lead to workplace discipline (without regard to the privilege to drive), while the other details a process that may lead to criminal penalties and license revocation (without regard to employment).

“Morse argues that, because he spoke to a union representative and was read a portion of the union contract before testing, the test was conducted for employment purposes. And because the test did not satisfy the formalities of the workplace-testing statute, the result must be suppressed. We observe that Morse points to nothing in the workplace-testing statute that directs courts to suppress evidence collected in violation of that statute, and suppression is not a remedy identified in the law.

“But again, we can reject Morse’s arguments based on the facts regardless of any legal deficiencies. Morse’s cited facts do support his view that the investigation had at least some flavor of a workplace inquiry. But they also plainly indicate the investigation had a markedly criminal nature: A law enforcement officer subjected Morse to the same field sobriety tests that officers regularly administer to investigate suspected drunk driving; he told Morse that the status of his employment was a different matter; he placed Morse under arrest for drunk driving after the field tests established his intoxication; he took Morse to jail; he read Morse the implied-consent advisory; he gave Morse the opportunity to contact an attorney; and he administered to Morse the same final breath test that law enforcement officers routinely administer to suspected drunk drivers.

“The testing process completed a criminal investigation under the impaired-driving statute. That the arresting officer might be considered a supervisory agent of Morse’s employer does not defeat the fact that he was also a policing agent of the state. And Morse points us to nothing in either the impaired-driving statute or the workplace-testing statute that hints any support for the idea that the two laws are mutually exclusive. Perhaps if Morse were challenging a resulting employment suspension or discharge, his arguments about the workplace-testing law might carry some weight. But not here.”

Morse v. Commissioner of Public Safety, 2015 WL 2184956 (Minn. App. 2015).