author: ANDERSON, RUSSELL A., Justice.

text:
    Dean P. VLAHOS, et al., Appellants, v. R&I CONSTRUCTION OF BLOOMINGTON, INC., f/k/a Robert Waade & Associates, Inc., et al., Respondents, John Doe, et al., Defendants, and R & I Construction Of Bloomington, Inc., f/k/a Robert Waade & Associates, Inc., et al., third-party plaintiffs, Respondents, v. Quality Insulation, Inc., third-party defendant, Respondent, Intex Insulating Co., Inc., Third-Party Defendant, Kleve Heating & Air Conditioning, Inc., third-party defendant, Respondent, Tappe Construction Co., third-party defendant, Respondent, Donnelly Brothers Construction Company, Inc., third-party defendant, Respondent, Collins Electrical Construction Co., third-party defendant, Respondent, Weather Shield Mfg., Inc., Third-Party Defendant.
    No. C7-02-1428.
    Supreme Court of Minnesota.
    April 1, 2004.

      Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, for Appellant.
    Anton van der Merwe, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, MN, for Respondents R & I Construction of Bloomington, Inc. F/k/a Robert Waade <& Associates, Inc., and Robert Waade.
    David S. Holman, Esq., Burnsville, MN; and Timothy W. Waldeck, Esq., Peter M. Waldeck, Esq., Waldeck & Lind, P.A., Minneapolis, MN, for Respondent Donnelly Brothers Construction Co.
    John E. Varpness, Esq., Gislason, Martin & Varpness, P.A., Minneapolis, MN, for Respondents Kleve Heating & Air Conditioning, Inc.
    Michael D. Carr, Esq., Fitch, Johnson, Larson, Walsh & Held, P.A., Minneapolis, MN; and Bruce A. Boeder, Esq., Lambert & Boeder, Wayzata, MN; and Michael D. Barrett, Esq., Cousineau, McGuire & Anderson, Minneapolis, MN, for Respondent Tappe Construction Co.
    Byron Peterson, Esq., Tomsche, Sonne-syn & Tomsche, P.A., Golden Valley, MN; and Michael R. Moline, Esq., Conley & Borgeson, St. Paul, MN, for Respondent Quality Insulation, Inc.
    Jocelyn L. Knoll, Esq., Fabyanske, Wes-tra & Hart, P.A., Minneapolis, MN, for Respondent Collins Electrical Construction Company.
    David D. Hammargren, Roberta A. Yard, Hammargren & Meyer, P.A., Edina, MN, for Amicus Curiae The Minnesota Homeowners’ Alliance.
   OPINION

ANDERSON, RUSSELL A., Justice.

In this case, we consider when the statute of limitations begins to run on a home owner’s claim that the builder breached the 10-year statutory new home warranty against “major construction defects” provided by Minn.Stat. § 327A.02, subd. 1(c) (1990). We hold that the applicable statute of limitations, MinmStat. § 541.051, subd. 4 (2002), begins to run when the homeowner discovers, or should have discovered, the builder’s refusal or inability to ensure the home is free from major construction defects. We also consider whether the definition of “major construction defect” in the statutory new home warranty extends to actual damage to load-bearing portions of the dwelling occurring after the completion of construction. We hold that it does, subject to the specifically enumerated exclusions and exceptions provided in Minn.Stat. § 327A.03 (2002). Concluding that the homeowner’s claim was barred by the statute of limitations and failed to allege major construction defects, the district court granted summary judgment to the builder and the court of appeals affirmed. We reverse and remand.

In 1999, Dean and Michelle Vlahos (Vla-hoses) purchased a home from Roger and Carol Rovick (Rovicks), which had been constructed in 1990 by respondent R&I Construction of Bloomington, Inc., f/k/a Robert Waade Associates, Inc. (R&I). When the Vlahoses subsequently discovered water damage to the home and R&I refused to repair any of the damage, the Vlahoses commenced suit against R&I.

R&I entered into a contract with the Rovicks in June 1990 to construct a luxury home on Lake Minnetonka. In 1991, the home was substantially completed and a certificate of occupancy was issued. The Rovicks moved in immediately and occupied the home continuously until 1999. Between 1992 and 1999, the Rovicks experienced repeated water and moisture-related problems with the home.

In August 1999, the Vlahoses entered into a purchase agreement with the Ro-vicks for the purchase of the home. The purchase agreement contained a “Complete House Inspection” contingency entitling the Vlahoses to inspect the property and cancel the transaction if the inspection revealed unsatisfactory conditions. The Rovicks provided the Vlahoses with a “Seller’s Property Disclosure Statement” which disclosed roof, wall and ceiling damage caused by water and identified areas of water seepage, leakage, corrosion, and mold. The Rovicks also informed potential buyers that “some windows may need replacement.”

Prior to closing, the Vlahoses hired a building inspector to inspect the home. The inspector prepared a report which detailed extensive water damage to the home, including areas of water seepage, leakage, corrosion, and mold. After negotiating a $20,000 credit to repair and replace some windows, the Vlahoses closed the transaction in January 2000, paying $5,175,000 for the home. During an extensive remodeling project undertaken in April 2000, the Vlahoses discovered significant water damage to the home. The Vlahoses claim that much of the water damage was discovered behind the walls and involved “decay of interior floor trusses, ceiling trusses and other load-bearing supports throughout the [residence.” The Vlahoses deny any awareness of the extent of the damage to the home prior to the remodeling. The Rovicks claim that the problems of which they were aware regarding water penetration were isolated, not significant, and had been fixed prior to the sale to the Vlahoses.

Beginning in May 2000, the Vlahoses provided both oral and written notice of the problems and their claim to R&I and afforded R&I the opportunity to repair and/or pay for the repair of the damage to the home. Thereafter, R&I and its insurers inspected the home as the damage was being discovered. R&I refused, however, to repair and/or pay for any of the damage. The Vlahoses subsequently spent $3,800,000 to remodel the home, of which $1,118,000 was attributed to the repair of the water damage.

The Vlahoses initiated this lawsuit against R&I in April 2001, asserting claims for breach of the residential 10-year statutory warranty provided by Minn.Stat. § 327A.02, subd. 1(c), negligence, and false and deceptive trade practices under Minn. Stat. § 325D.44 (2002). R&I denied liability to the Vlahoses and asserted third-party claims seeking contribution and indemnity against numerous subcontractors and suppliers who contributed labor and/or materials to the home’s construction (third-party defendants).

R&I and the Vlahoses filed cross motions for summary judgment. Both parties submitted numerous expert affidavits describing the water damage to the home. The district court granted summary judgment in favor of R&I and the third-party defendants, concluding that the 2-year statute of limitations for claims arising from improvements to real property, Minn. Stat. § 541.051, subd. 1(a) (2002), barred the suit because the Rovicks knew or should have known of the water damage many years prior to the commencement of Vlahoses’ action and thus discovery of the injury to the real property occurred more than two years prior to the Vlahoses’ suit. The district court further concluded that the 10-year statutory warranty against “major construction defects” under Minn. Stat. § 327A.02 failed as a matter of law because the construction defects leading to the water penetration and damage were not “major construction defects.” In reaching this conclusion, the district court relied on an unpublished opinion of the court of appeals, Fachman v. Kuechle, 1992 WL 166793 (Minn.App. July 21,1992), rev. denied (Minn. Sept. 30, 1992). In Fachman, the court of appeals held that damage to a load-bearing portion of a home occurring after the completion of construction is not included in the definition of a major construction defect. Id. at *3.

The Vlahoses appealed the grant of summary judgment to R&I. The court of appeals affirmed the district court’s decision. Vlahos v. R&I Constr. of Bloomington, 658 N.W.2d 917, 922 (Minn.App.2003). The court of appeals concluded that the 2-year statute of limitations provided by Minn. Stat. § 541.051, subd. 1, commenced at the time the defect in construction was known or should have been known to the Rovicks and that the statute required that the Ro-vieks’ notice of the defect be imputed to the Vlahoses. Vlahos, 658 N.W.2d at 921. The court further concluded that the alleged defects did not constitute “major construction defects” because the defects arose after water penetration damaged the original construction. Id. at 922. Given this holding, the court did not reach the issue of when notice of any such breach occurred for purposes of the statute of limitations under Minn.Stat. § 541.051. Vlahos, 658 N.W.2d at 922.

I.

Summary judgment is proper when there is no genuine issue as to any material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 345 (Minn.2003). On appeal from a district court’s order granting summary judgment, we review the record to determine whether there are any genuine issues of material fact and whether the court properly applied the law. Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn.2000). In doing so, we view the evidence in a light most favorable to the nonmoving party. State by Beaulieu, v. City of Mounds View, 518 N.W.2d 567, 571 (Minn.1994).

We must first determine whether the Vlahoses’ claim is barred by the statute of limitations. The statute of limitations found in Minn.Stat. § 541.051, subd. 4, requires home-warranty actions based on MinmStat. § 327A.02 to be “brought within two years of the discovery of the breach” of warranty. We note at the outset that both the district court and court of appeals erroneously relied on subdivision 1 of Minn.Stat. § 541.051 instead of subdivision 4. See Vlahos, 658 N.W.2d at 920-21. Likewise, in Hyland Hill North Condo. Ass’n v. Hyland Hill Co., 549 N.W.2d 617, 620-22 (Minn.1996), we failed to distinguish between warranties arising under Minn.Stat. § 515A.4-111 (2002), the Uniform Condominium Act (UCA), and the statutory new home warranty arising under Minn.Stat. § 327A.02, and applied Minn.Stat. § 541.051, subd. 1, to both warranty claims. In hindsight, we should have distinguished the two warranties and applied Minn.Stat. § 541.051, subd. 4, to the Minn.Stat. § 327A.02 statutory new home warranty. Therefore, to the extent Hyland Hill is inconsistent with our holding today, it is overruled. We note that in Koes v. Advanced Design, Inc., 636 N.W.2d 352 (Minn.App.), rev. denied (Minn. Feb. 19, 2002), the court of appeals accurately explained the interplay between MinmStat. §§ 327A.02 and 541.051:

[BJecause warranty claims under Minn. Stat. § 327A.02 are specifically exempted from the statutes of limitation and repose set forth in Minn.Stat. § 541.051, subd. 1(a), the only statutory limitation applying, by its terms, to a § 327A.02 claim is found in § 541.051, subd. 4. The limitation found in Minn.Stat. § 541.051, subd. 4, requires home-warranty actions based on MinmStat. § 327A.02 to be “brought within two years of the discovery of the breach” of warranty.

Koes, 636 N.W.2d at 357-58. While Minn. Stat. § 541.051, subd. 1(b) (2002), provides that “a cause of action accrues upon discovery of the injury,” subdivision 4 of the statute provides that a cause of action “based on breach of the statutory warranties set forth in section 327Á.02” must be brought “within two years of the discovery of the ' breach. Compare Minn.Stat. § 541.051, subd. 1(b) vvith Minn.Stat. § 541.051, subd. 4 (emphasis added).

The Vlahoses contend that the statutory warranty claim did not commence until they discovered, or with reasonable diligence should have discovered, the alleged breach of the warranty. This contention represents an erroneous interpretation of the statute. The statute does not state that a cause of action accrues upon discovery of the breach by the vendee currently in possession of the home. Minnesota Statutes section 327A.01, subd. 6 (2002), defines “vendee” as “any purchaser of a dwelling and includes the initial vendee and any subsequent purchasers.” Because the definition of “vendee” contained in Minn.Stat. § 327A.01, subd. 6, includes both the initial homeowner and subsequent purchasers, any discovery of the breach or defect by any vendee triggers the 2-year statute of limitation contained in Minn. Stat. § 541.051, subd. 4.

A warranty of future performance provides a guarantee that the product will perform in the future as promised. Church of the Nativity of Our Lord v. WatPro, Inc., 491 N.W.2d 1, 6 (Minn.1992), overruled on other grounds by Ly v. Nystrom, 615 N.W.2d 302, 314 n. 25 (Minn. 2000). The statutory new home warranty at issue in this case functions much like the express warranty of future performance we addressed in WatPro. In that case, we addressed the question of whether a warranty promising to maintain a roof in a watertight condition for a period of 10 years was a warranty that explicitly extended to future performance under Minn. Stat. § 336.2-725 (1990). WatPro, 491 N.W.2d at 6. We held that the guarantees “extended to the future performance of the goods, expressly warranting that the roofs would remain watertight for ten years.” Id. Here, the statutory home warranty guarantees that “during the ten-year period from and after the warranty date, the dwelling shall be free from major construction defects.” Minn.Stat. § 327A.02, subd. 1(c). Like the warranty in WatPro, the statutory new home warranty explicitly extends to future performance.

R&I essentially contends that the Vlahoses’ claim is time-barred regardless of whether the statutory home warranty extends to future performance because the Vlahoses commenced this action more than 2 years after the breach was or should have been discovered. R&I contends that the Rovicks knew or should have known of the breach in 1992 when they first became aware of the existence of moisture-related problems. In WatPro, we concluded that where there is a warranty that explicitly extends to future performance,

the cause of action accrues and the statute of limitations begins to run when the plaintiff discovers or should have discovered the defendant’s refusal or inability to maintain the goods as warranted in the contract.

WatPro, 491 N.W.2d at 6 (quotation marks omitted). In WatPro, we held the breach occurred when the distributor advised the building owner that the manufacturer’s agent was unable or unwilling to honor its guaranty. Id. at 7. We hold today that the statute of limitations, Minn.Stat. § 541.051, subd. 4 (2002), applicable to the statutory new home warranty provided by Minn.Stat. § 327A.02, subd. 1(c) (1990), begins to run when the homeowner discovers, or should have discovered, the builder’s refusal or inability to ensure the home is free from major construction defects.

According to the Vlahoses, the Rovicks never requested in writing that R&I repair any defect to the load-bearing portions of the home, and the Vlahoses were the first to make such a demand. Therefore, according to the Vlahoses, R&I breached the warranty when it refused the Vlahoses’ demand in May 2000 to remedy or attempt to remedy the alleged major construction defects. R&I contends that the record shows that from 1992 until the Rovicks sold the home to the Vlahoses in 2000, they experienced consistent water intrusion and had to repair various water damaged areas of the home. R&I further contends that despite experiencing repeated water-related damage, the Rovieks did not pursue any legal action against R&I. As set forth above, however, the failure to pursue legal action does not trigger the running of the statute of limitations. Based on the information presented to the district court, the question of when either the Rovieks or the Vlahoses discovered or should have discovered R&I’s refusal or inability to ensure the home was free from major construction defects was a factual question, inappropriate for resolution on summary judgment. Leamington Co. v. Nonprofits’ Ins. Ass’n, 615 N.W.2d 349, 355 n. 4 (Minn.2000); DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997).

II.

Having concluded that genuine issues of material fact exist with regard to whether the Vlahoses’ claim is barred by operation of the statute of limitations, we now turn to the definition of “major construction defect.” The Vlahoses contend that the 10-year statutory new home warranty provided by Minn.Stat. § 327A.02, subd. 1(c), covers their claimed water damage loss because persistent water intrusion has, over 8 years, found its way to some interi- or wood components. The Vlahoses argue that because water infiltrated the home and that water infiltration eventually damaged some of the load-bearing portions of the home, the 10-year warranty applies. The Vlahoses point to damage to the walls, ceiling, and floor trusses as evidence of “major construction defects.” R&I contends that the plain language of Minn.Stat. § 327A.02, subd. 1(c), provides that the alleged construction defect must be created during and be present upon completion of construction.

Statutory construction is' a question of law subject ■ to de novo review. Andersom-Johanningmeier v. -Mid-Minnesota Women’s Ctr., Inc., 637 N.W.2d 270, 273 (Minn.2002). “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2002). When the language of a statute is plain and unambiguous, that plain language must be followed. Burkstrand v. Burkstrand, 632 N.W.2d 206, 210 (Minn. 2001). A statute is only ambiguous when its language is subject to more than one reasonable interpretation. Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). Under the basic canons of statutory construction, we construe words and phrases according to rules of grammar and according to their most natural and obvious usage unless it would be inconsistent with the manifest intent of the legislature. See Minn.Stat. § 645.08(1) (2002); Amaral, 598 N.W.2d at 384. “Every law shall be construed, if possible, to give effect to all its provisions.” Minn.Stat. § 645.16. Whenever possible, no word, phrase, or sentence should be deemed superfluous, void, or insignificant. Amaral, 598 N.W.2d at 384.

Enacted in 1977, Minnesota Statutes chapter 327A provides three home warranties to purchasers of new residential construction. Act of May 5, 1977, ch. 65, 1977 Minn. Laws 107, 108 (codified at Minn. Stat. §§ 327A.01-.07 (2002)). These warranties impose liability upon the builder for defects occurring during an applicable warranty period. Minn.Stat. § 327A.02, subd. 1. These statutory warranties begin to run from the time the initial vendee first occupies or takes title to the dwelling, whichever is earlier. Minn.Stat. § 327A.01, subd. 8 (2002). While the warranties run with the dwelling and extend to subsequent purchasers, the warranty period is not reset when a subsequent purchaser occupies or takes title to the property. Minn.Stat. § 327A.01, subds. 6, 8.

The warranty at issue in this case is the 10-year warranty, which provides:

In every sale of a completed dwelling, and in every contract for the sale of a dwelling to be completed, the vendor shall warrant to the vendee that during the 10-year period from and after the warranty date, the dwelling shall be free from major construction defects.

Minn.Stat. § 327A.02, subd 1(c) (1990). “Major construction defect” is defined as “actual damage to the load-bearing portion of the dwelling or the home improvement, including damage due to subsidence, expansion or lateral movement of the soil, which affects the load-bearing function and which vitally affects or is imminently likely to vitally affect use of the dwelling or the home improvement for residential purposes.” Minn.Stat. § 327A.01 subd. 5 (2002). The definition of “major construction defect” “does not include damage due to movement of the soil caused by flood, earthquake or other natural disaster.” Id.

The “warranty date” is defined as
the date from and after which the statutory warranties provided in section 327A.02 shall be effective, and is the earliest of
(a) The date of the initial vendee’s first occupancy of the dwelling; or
(b) The date on which the initial vendee takes legal or equitable title in the dwelling.

MinmStat. § 327A.01, subd. 8. Minn.Stat. § 327A.03 also sets forth 16 categories of damage to which § 327A.02 does not apply-

In support of its contention that MinmStat. § 327A.02, subd. 1(c), requires that the alleged construction defect must be created during and be present upon completion of construction, R&I points out that Minn.Stat. § 327A.02, subd. 1(c), provides that the 10-year warranty period runs “from and after the warranty date.” (Emphasis added.) According to R&I, this definition requires that the defect must exist both immediately after construction is completed and persist thereafter. We disagree. The phrase “from and after” is a phrase commonly used by the Minnesota Legislature to set out the computation of time. In computing a period of time “from and after” a specified event — in this case the warranty date — the date of the event is excluded and the computation of time is commenced the following day. Parkinson v. Brandenburgh, 35 Minn. 294, 296, 28 N.W. 919, 920 (1886). By employing the phrase “from and after,” the legislature was merely indicating that the warranty period commences on the day following the warranty date.

R&I contends that Minn.Stat. § 327A.02, subd 1(c), “contemplates a defect, created during and present upon completion of construction, that causes damage to load-bearing portions of the dwelling within the warranty period.” In support of this contention, R&I urges us to read additional words into the definition of major construction defect, changing the definition to read “actual damage to [and caused by a defect m] the load-bearing portion of the dwelling.” We will not supply words that the legislature either purposely omitted or inadvertently left out. Genin v. 1996 Memory Marquis, 622 N.W.2d 114, 117 (Minn.2001). Instead, we apply the plain meaning of the words of the statute and hold that subject to the specifically enumerated exclusions and exceptions provided in Minn.Stat. § 327A.03, the definition of “major construction defect” in the statutory new home warranty extends to actual damage to load-bearing portions of the dwelling occurring after the completion of construction.

Our conclusion that the legislature intended to define “major construction defect” broadly is supported by statutory provisions found elsewhere in chapter 327Á. Statutory provisions must be interpreted in light of each other. In re Condemnation by City of Minneapolis, 632 N.W.2d 586, 591 (Minn.2001). First, Minn. Stat. § 327A.01, subd. 5, itself provides that actual damage to the load-bearing portion of the dwelling includes damage “due to subsidence, expansion or lateral movement of the soil.” By definition, such damage occurs after construction is completed. This statutory provision would be unnecessary were we to adopt R&I’s interpretation of the definition of “major construction defect.”

Second, Minn.Stat. § 327A.03 provides a list of 16 exclusions to vendor liability, several of which may apply to the facts of this ease. For example, the vendor is not liable for loss or damage caused by negligence on the part of the dwelling owner or failure of the owner to properly maintain the dwelling in good repair. Minn.Stat. § 327A.03(g), (j). Likewise, the vendor is not responsible for damage which the owner has not taken timely action to minimize. Minn.Stat. § 327A.03(k). Furthermore, the owner cannot recover if the owner fails to report the loss or damage to the vendor in writing within 6 months of discovery. Minn.Stat. § 327A.03(a). If the legislature had intended “major construction defect” to have a narrow meaning such as the one advocated by R&I, there would have been no need for the legislature to have provided for so many exclusions.

The Vlahoses offered an affidavit of a licensed professional engineer which detailed

numerous and serious construction defects with the house including, without limitation, the existence of severe structural damage to the house, substantial water infiltration, substantial wall and wood decay and rot, extensive mold growth, substantial moisture and active water infiltration from improper and defective construction of patio decks and decay of interior floor trusses, ceiling trusses and other load-bearing supports throughout the house, all of which posed serious hazards and vitally affected [the Vlahoses’] use and enjoyment of the house for residential purposes.

(Emphasis added.) Viewing this evidence in a light most favorable to the Vlahoses, we conclude that the Vlahoses have presented evidence which precludes an entry of summary judgment against them.

Reversed and remanded.

GILBERT, J., took no part in the consideration or decision- of this case.

      . Throughout this opinion, the terms builder, homeowner and home will be used interchangeably with the terms vendor, vend-ee/purchaser and dwelling/residence, respectively.

      . The Vlahoses also made a claim against the Rovicks which was arbitrated under the purchase agreement.

      . This reliance was misplaced, both as a matter of law and as a matter of practice. While we detail our disagreement with this rule announced in Fachman in the following pages, we pause here to stress that unpublished opinions of the court of appeals are not precedential. See Minn.Stat. § 480A.08, subd 3(c) (2002); Powell v. Anderson, 660 N.W.2d 107, 123 (Minn.2003). The danger of miscitation is great because unpublished decisions rarely contain a full recitation of the facts. See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn.App.1993). Unpublished decisions should not be cited by the district courts as binding precedent.

      , Third-party defendanprespondent Collins Electrical Construction Co. contends that the phrase "discovery of the injury” contained in Minn.Stat. § 541.051, subd. 1, is synonymous with the phrase "discovery of the breach” contained in § 541.051, subd. 4. We disagree. Collins’ contention violates the statutory presumption that the legislature intends an entire statute to be effective and certain. Minn.Stat. § 645.17(2) (2002); State v. Loge, 608 N.W.2d 152, 158 (Minn.2000). The legislature would not have employed different terms in different subdivisions of the statute if it had intended those subdivisions to have the- same effect.

      . We recognize that under the present statutory scheme, it is entirely conceivable that the statute of limitations could run before the expiration of the applicable warranty period.

      . In this case, we are called on to apply the statutory new home warranty as it existed in 1990, the year in which the home at issue was built. In 2001, Minn.Stat. § 327A.02, subd. 1(c), was amended to read:
      In every sale of a completed dwelling, and in every contract for the sale of a dwelling to be completed, the vendor shall warrant to the vendee that during the 10-year period from and after the warranty date, the dwelling shall be free from major construction defects due to noncompliance with building standards.

      Act of May 29, 2001, ch. 207, § 9, 2001 Minn. Laws 849, 853 (emphasis added). The qualifier "due to noncompliance with building standards” in Minn.Stat. § 327A.02, subd. 1(c), was not part of the statute as it existed in 1990, and is therefore not a basis for the decision we announce today.


source: Caselaw Access Project

author: HUSPENI, Judge.

license: Public Domain

text:
    Yvonne H. WHITE, Appellant, v. Gerald WHITE, et al., Respondents.
    No. A03-1315.
    Court of Appeals of Minnesota.
    March 30, 2004.
    James S. Ballentine, Laurie J. Sieff, Schwebel, Goetz & Sieben, P.A., Minneapolis, MN, for appellant.
    Thomas S. McEachron, Votel, Anderson & McEachron, St. Paul, MN, for respondents.
    Considered and decided by HALBROOKS, Presiding Judge, WILLIS, Judge, and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

In challenging the district court’s grant of summary judgment, appellant argues that Minn.Stat. § 170.54 (2002), the Safety Responsibility Act, provides coverage to respondent granddaughter as operator of the vehicle in which appellant was injured, notwithstanding the fact that at the time of the injury respondent son, owner of the vehicle, was himself operating the vehicle. Because we conclude that respondent son was the sole operator of the vehicle at the time of the injury, Minn.Stat. § 170.54 is inapplicable under the facts of this case, and we affirm.

FACTS

Respondent Gerald White drove his mother, appellant Yvonne White, and his daughter, respondent Gina White, along with other family members, to purchase take-out food. Gerald parked his vehicle, and grandmother and granddaughter crossed the street to the restaurant. When the two returned to the vehicle, Gina, carrying the take-out food, entered the vehicle through the right rear passenger door. Yvonne opened the front passenger door and, in an attempt to avoid stepping into slush at the curb, placed her left-hand on the top part of the rear passenger door to brace herself. As she stepped on the running board of the vehicle in order to enter the front passenger seat, Gina closed the rear door on Yvonne’s finger. The ring finger on Yvonne’s left hand was severed.

Yvonne brought suit against Gerald and Gina, alleging that Gina was negligent in closing the rear passenger door and that Gerald, the owner of the vehicle, was vicariously liable under Minn.Stat. § 170.54 (2002), the Safety Responsibility Act, because Gina was operating the vehicle door with Gerald’s express or implied consent. In granting respondents’ motion for summary judgment, the district court concluded: (1) that Gina was not actively or inactively involved in loading or unloading Gerald’s car of anything besides herself; (2) Gina was not in control of Gerald’s vehicle at any time and therefore could not have been acting as Gerald’s agent when she closed the rear door on Yvonne’s finger; and (3) that Gina was not operating the vehicle under the Safety Responsibility Act. This appeal followed.

ISSUES

Did the district court err in concluding that Gina was not operating Gerald’s motor vehicle under Minn.Stat. § 170.54 (2002), the Safety Responsibility Act?

ANALYSIS

When summary judgment is granted based on the application of a statute to undisputed facts, it is a legal determination that we review de novo. Wiegel v. City of St. Paul, 639 N.W.2d 378, 381 (Minn.2002). To determine whether a statute has been correctly applied, this court focuses on the words of the statute to “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2002). If the statute’s meaning is plain and unambiguous, that meaning is applied as a manifestation of legislative intent. Kersten v. Minn. Mut. Life Ins. Co., 608 N.W.2d 869, 874-75 (Minn.2000). Plain meaning is the use of ordinary language in the context of whole-act structure, applying the usual conventions of grammar and syntax. Occhino v. Grover, 640 N.W.2d 357, 359 (Minn.App. 2002), revieu> denied (Minn. May 28, 2002). If the meaning of statutory language is not plain, ambiguities are resolved by looking to other factors that evince legislative intent. Id. at 360; see also Minn.Stat. § 645.16 (2002) (listing factors for ascertaining legislative intent).

The Safety Responsibility Act provides that a person who operates a motor vehicle with the express or implied consent of its owner is deemed to be the owner’s agent in case of an accident. “Whenever any motor vehicle shall be operated within this state, by any person other than the owner, with consent of the owner, express or implied, the operator thereof shall in case of [an] accident, be deemed the agent of the owner of such motor vehicle in the operation thereof.” Minn.Stat. § 170.54 (2002). The Safety Responsibility Act “was adopted to effectuate a legislative policy determining that as between an -innocent third party injured by the negligent operation of an automobile and the owner of that automobile who permitted another person to drive it, the owner should bear the cost of the injuries.” Schwalich v. Guenther, 282 Minn. 504, 507, 166 N.W.2d 74, 78 (1969). Courts should construe the statute liberally to effectuate its purpose. Jones v. Fleischhacker, 325 N.W.2d 633, 636 (Minn.1982).

There is no statutory definition of “operate.” In W. Bend Mut. Ins. Co. v. Milwaukee Mut. Ins. Co., 384 N.W.2d 877, 879 (Minn.1986), the Minnesota Supreme Court concluded that “[a] person sitting in the driver’s seat, hands on the wheel and foot on the pedal, controlling both speed and directions, is undoubtedly ‘operating’ the vehicle.”

Appellant argues that W. Bend is factually distinguishable from the circumstances here, and therefore the district court erred in relying on that case in granting summary judgment. ' Instead, alleges appellant, it is Melchert v. Melchert, 519 N.W.2d 223 (Minn.App.1994), review denied (Minn. Sept. 16, 1994), that is not only persuasive, but fully applicable to the facts of this case. Both W. Bend and Melchert inform our analysis and we examine each of those cases in turn.

In W. Bend, the supreme court was required to determine in the context of homeowner’s insurance coverage whether defendant passenger, who grabbed the steering wheel from plaintiff driver, was “operating” the vehicle at the time an accident occurred. 384 N.W.2d at 879. The supreme court concluded that she was not, and that her actions were “more realistically characterized as a disruption or interference with someone else’s operation of the vehicle.” Id. at 880. It is against this factual backdrop that the W. Bend court observed:

We think it is generally understood and accepted that a motor vehicle is operated by one person, namely, the person in the driver’s seat and at the controls.... [A] vehicle has only one operator, and, unless a passenger is invited to share in that operation, or circumstances create a plausible justification for the passenger’s assisting in the vehicle’s operation, the vehicle is not considered to be operated by the passenger.

Id.

In Melchert, plaintiff borrowed a pickup truck from its owner, and attached a trailer owned by plaintiff to the truck. 519 N.W.2d at 224. As plaintiff knelt down on the trailer to wind up a jack on which the trailer tongue had been resting prior to attachment, a hay bale thrown by plaintiffs son from a hay wagon hit and injured plaintiff. Id. at 225. The owner of the pickup truck was nowhere near the scene of the accident. Id. This court concluded that for purposes of the Safety Responsibility Act, which applied to the circumstances in that case, “[ojperation includes participation in loading and unloading activities,” and that the pickup truck was being “operated” at the time the injury occurred. Id. at 226. The court also noted that “[ojperation of a motor vehicle implies physical control over the vehicle.” Id. at 225 (citing W. Bend, 384 N.W.2d at 879).

Appellant urges that the facts here compel a result similar to that reached in Melchert and, therefore, that this court must conclude that Gina was operating the vehicle under the Safety Responsibility Act at the time of appellant’s injury. Appellant argues that because Gina was entering the vehicle with take-out food when she closed the door on appellant’s finger, she was participating in loading activities which constitute operating the vehicle, just as plaintiffs activities in Melchert were brought within the definition of “operate.”

' We cannot justify extending Melchert to reach the facts here. First, Melchert’s facts are clearly distinguishable from those in this case. The owner in Melchert was not in the driver’s seat of the pickup truck; she was not even present during the loading activities. Gerald, the owner of the vehicle involved in this case, was in the driver’s seat. His position was not even remotely analogous to that of the owner in Melchert. Gerald had driven the vehicle to the restaurant and remained in the driver’s seat as passengers left to pick up food. Clearly, he was operating the vehicle. With regard to appellant’s claim that, just as in Melchert, “loading” activities were occurring here, we disagree. There was nothing being loaded or unloaded in this ease except passengers and take-out food.

Second, to the extent that Melchert, by including loading and unloading activities within the definition of “operate,” was arguably itself an extension of the public policy behind the Safety Responsibility Act, Melchert did not reach so far as to embrace the concept of two concurrent operators. We conclude that any further extension of Minn.Stat. § 170.54 to apply to the facts here would be both unwise and unwarranted. The purpose of that statute is to provide coverage to an innocent third party involved in an accident with the vehicle “even if the owner or named insured was not the driver.” Progressive Specialty Ins. Co. v. Widness, 635 N.W.2d 516, 521 (Minn.2001). Although reasonable minds might reach different conclusions on the question of how expansively “operate” should have been defined in Melchert, that case is at least arguably consistent with the legislative intent behind the statute, because the owner was not the operator.

The Melchert court was not called upon to determine whether, in addressing the applicability of section 170.54, more than one person could “operate” a vehicle simultaneously. This court has been required to factor that analysis into our decision. Finding section 170.54 to be applicable here would require that we declare that both Gina and Gerald were operating the vehicle in question at the time of appellant’s injury. That we are unable to do. There was one operator in Melchert■ — ’the person who had borrowed the vehicle from the owner. There is one operator in this case — Gerald, the owner himself. Extending the reach of Melchert to this situation would, we believe, contradict both the plain meaning of the statute and the public policy behind it.

DECISION

The district court properly determined that respondents were not liable under Minn.Stat. § 170.54 (2002), the Safety Responsibility Act and, therefore, summary judgment was appropriate.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.


author: STONEBURNER, Judge.

text:
    David SCHUMACHER, Appellant, v. Harold SCHUMACHER, Respondent.
    No. A03-1064.
    Court of Appeals of Minnesota.
    March 30, 2004.

      Douglas A. Boese, Kari C. Stonelake-Hopkins, Dunlap & Seeger, P.A., Rochester, MN, for appellant.
    Michael B. Goodman, Goodman & Guzin-ski, P.A., Rochester, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, ANDERSON, Judge, and HUDSON, Judge.
   OPINION

STONEBURNER, Judge.

Appellant David Schumacher challenges the district court’s grant of summary judgment to respondent Harold Schumacher, claiming that the district court erred in ruling that the Iowa Domesticated Animal Activities Immunity Statute applies to this negligence action to relieve respondent from liability for injuries appellant sustained when respondent’s horse kicked him in the face. Appellant argues that Minnesota law applies and, alternatively, that even if the Iowa law applies, there is a genuine issue of material fact regarding whether respondent’s conduct was reckless, in which case the Iowa immunity statute would no longer apply. Because we conclude that the Iowa immunity statute applies and there is no genuine issue of material fact regarding whether respondent acted recklessly, we affirm.

FACTS

Appellant David Schumacher sued his father, respondent Harold Schumacher, for damages due to injuries he sustained when he was kicked in the face by respondent’s horse at a horse show in Iowa, while appellant was helping respondent with the horses.

Respondent owns, breeds, raises, and shows Percheron draft horses on his farm near Plainview, in Wabasha County, Minnesota. Percherons are generally known as strong, high-strung animals possessing great speed and agility. An adult Percheron weighs approximately 2,000 pounds and stands 18 hands high.

Appellant was 20 years old at the time of the accident. He grew up helping respondent with the horses. He currently lives in a house owned by respondent and performs work for respondent, including help with showing the Percherons, in lieu of cash rent.

The parties took six geldings and a one-year old stallion to a horse show in Iowa. When they arrived, respondent learned that he had been assigned double-tie stalls, designed to hold two horses. This concerned respondent because his horses are not used to being stalled with another horse. Respondent had never before stabled a stallion with a gelding because stallions generally try to dominate geldings. Nonetheless, while respondent prepared a separate stall for the stallion, he placed the stallion and one of the geldings in the same stall, separated by a 4x8 piece of plywood. When respondent moved the stallion about ten minutes later, the gelding was upset and agitated because the stallion had bitten and otherwise aggravated him.

Shortly after respondent had moved the stallion, appellant, who knew that the stallion had just been removed from the stall and that the gelding was upset, approached the gelding and was kicked in the face. The manner in which appellant approached the gelding is disputed by witnesses. It is undisputed, however, that appellant suffered severe injuries to the head and has undergone eleven surgeries to reconstruct his face. The costs of appellant’s care, to date, exceed $200,000.

Following discovery, respondent moved for summary judgment arguing that Iowa law controls this case and provides him with immunity for negligence, the only cause of action alleged in appellant’s complaint. Appellant opposed the motion, arguing that Minnesota law applies and that even if Iowa law applies, respondent’s act of placing the gelding and stallion together constitutes recklessness, for which the Iowa statute does not provide immunity. The district court granted summary judgment to respondent, concluding that the Iowa law applies under a choice-of-law analysis, there is no evidence that respondent engaged in reckless conduct, and therefore Iowa’s statutory immunity for domesticated animal activities precludes appellant’s negligence suit against respondent. This appeal followed, and respondent filed a notice of review on the district court’s failure to alternatively dismiss the case under a primary assumption of the risk theory.

ANALYSIS

On an appeal from summary judgment, reviewing courts ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). This court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (alteration in original). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. at 71. Therefore, a genuine issue for trial must be established by substantial evidence. Id. at 69-70.

I. Choice of law

A conflict of law exists if choosing the law of one state over the law of another state would be “outcome determinative.” Nodak Mut. Ins. Co. v. American Family Mut. Ins. Co., 590 N.W.2d 670, 672 (Minn.App.1999) (quoting Myers v. Gov’t Employees Ins. Co., 302 Minn. 359, 363, 225 N.W.2d 238, 241 (1974)). Iowa Code § 673.2 (2001), provides that “the owner of [a] domesticated animal ... is not liable for the damages, injury, or death suffered by a participant ... resulting from the inherent risks of a domesticated animal activity.” The parties agree that, under Iowa law, respondent would not be liable in negligence for appellant’s injuries because the immunity statute applies to the facts of this case. The definition of “domesticated animal” includes a horse. Iowa Code § 673.1 (2001). The meaning of “domesticated animal activity” includes participation in an activity sponsored by a “domesticated animal activity sponsor”, which in turn includes a “show.” Iowa Code § 673.1.

Minnesota has not enacted a similar immunity statute for owners of domesticated animals. Therefore, choosing to apply Iowa law over Minnesota law is outcome determinative because under the Iowa statute respondent is immune from liability for negligence.

Choice-of-law questions are questions of law and are reviewed de novo. See Reed v. Univ. of N.D., 543 N.W.2d 106, 107-08 (Minn.App.1996) (framing issue as whether district court erred in its choice-of-law analysis), review denied (Minn. Mar. 28, 1996). Traditionally, when a conflict-of-law issue arises, a court must decide whether the question involves substantive or procedural law by applying the law of Minnesota. Gate City Fed. Sav. & Loan Ass’n v. O’Connor, 410 N.W.2d 448, 450 (Minn.App.1987), review denied (Minn. Oct. 21, 1987). “[Substantive law is that part of the law which creates, defines, and regulates rights.” Meagher v. Kavli, 251 Minn. 477, 488, 88 N.W.2d 871, 879-80 (1958). The conflict in this case is substantive because the Iowa law defines and regulates the right of an injured person to seek compensation from the owner of a domesticated animal under the circumstances of this case.

Minnesota applies a five-factor choice-of-law analysis to determine which state’s law applies. Jepson v. Gen. Cas. Co. of Wis., 513 N.W.2d 467, 469-70 (Minn.1994). The five choice-influencing considerations are: (1) predictability of result; (2) maintenance of interstate order; (3) simplification of judicial task; (4) advancement of the forum’s governmental interests; and (5) application of the better rule of law. Id.

a. Predictability of result

“This factor addresses whether the choice of law was predictable before the time of the transaction or event giving rise to the cause of action.” Danielson v. Nat’l Supply Co., 670 N.W.2d 1, 7 (Minn.App.2003) (emphasis in original), review denied (Dec. 16, 2003). Traditionally, in a tort case, this factor is not of great importance because most accidents are unplanned. Jepson, 513 N.W.2d at 470.

But this case is distinguishable from a random, unpredictable accident, such as an automobile accident. Here, respondent, who is in the business of raising and showing horses, traveled to Iowa to participate in a horse show for which he paid an entry fee. Appellant came along to assist with handling and showing the horses. The business-related nature of the activity makes this case somewhat more like a contract case, in which predictability of result is recognized to be significant. In choosing to participate in such an activity, it is reasonable that the participants would like to be able to predict their exposure to risk of liability. Application of Iowa law to out-of-state domestic animal owners engaged in a domesticated animal activity in Iowa could affect participation. We conclude this factor weighs in favor of applying the Iowa immunity statute.

b. Maintenance of interstate order

This factor addresses whether applying Minnesota law would manifest disrespect for Iowa or impede the interstate movement of people and goods. Jepson, 513 N.W.2d at 471. Evidence of forum shopping or evidence that application of one state’s law would promote forum shopping, would be an attempt to evade, and would indicate disrespect for, Iowa law. See id. Minnesota does not encourage forum shopping “because it frustrates the maintenance of interstate order.” Reed, 543 N.W.2d at 109.

The application of Minnesota law in this case would promote forum shopping. An Iowa citizen injured while participating in a domesticated animal activity would be quick to ascertain the state residence of the animal owner and to sue in any state that does not grant immunity to such owners for domesticated animal activities.

By passing the immunity statute, Iowa has stated its public policy interest in encouraging participation in agricultural activities, like this horse show, because such participation benefits Iowa’s economy. Applying Minnesota’s law in the face of such an economic and public policy would indicate disrespect for Iowa law. Therefore, we conclude that this factor weighs in favor of the application of Iowa’s immunity statute.

c. Simplification of judicial task

This factor is not particularly relevant where the competing laws are straightforward and “the law of either state could be applied without difficulty.” Jepson, 513 N.W.2d at 472. Of course, Minnesota courts are fully capable of applying Minnesota law. And, in this case, the application of Iowa law also simplifies the judicial task because, absent evidence of recklessness, application of the immunity statute results in the dismissal of the case. Therefore, we conclude that this factor is neutral.

d. Advancement of the forum’s governmental interest

This factor goes to which law would “most effectively advance a ‘significant interest of the forum’ state.” Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 455 (Minn.App.2001). This factor is designed to ensure that Minnesota courts do not have to apply rules of law that are “inconsistent with Minnesota’s concept of fairness and equity.” Id. In considering which law will advance the governmental interest of Minnesota, this court considers the public policy of both forums. Lommen v. City of East Grand Forks, 522 N.W.2d 148, 152 (Minn.App. 1994), review granted (Minn. Dec. 2, 1994), review vacated and appeal dismissed (Minn. Aug. 9, 1995).

“Minnesota places great value in compensating tort victims.” Jepson, 513 N.W.2d at 472. Minnesota also places an interest in “permitting its citizens access to [its] courts....” Myers v. Gov’t Employees Ins. Co., 302 Minn. 359, 364, 225 N.W.2d 238, 243 (1974). But Iowa also has a substantial governmental interest, that of encouraging participation in agricultural activities. By encouraging participation in agricultural activities such as horse shows, Iowa brings people and money to the state. We cannot ignore Iowa’s interest in granting immunity from liability for some injuries sustained by participants in domesticated animal activities. Given the competing valid interest of both states, we conclude that this factor is either neutral, or slightly favors application of Iowa law.

e.Better rule of law

The better rule of law is “the rule that made ‘good socio-economic sense for the time when the court speaks.’ ” Jepson, 513 N.W.2d at 473 (quoting Robert A. Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Calif. L.Rev. 1584, 1588 (1966)). Generally, this factor is addressed only when the other four factors are not dispositive as to which state’s law should be applied. Medtronic, 630 N.W.2d at 455-56. Here, the other factors lead us to conclude that Iowa law applies, and therefore, we need not determine which state has the better rule of law in this case. Accordingly, we affirm the district court’s determination that Iowa law applies to this matter.

II. Recklessness

The protection provided by chapter 673 of the Iowa Code does not apply if the injury is caused by an act committed recklessly. Iowa Code § 673.2(1). The district court determined that “there simply are no facts presented which would support a finding by . a jury that [respondent’s] conduct or behavior in this case rose to the level of recklessness.” We agree.

The Iowa Supreme Court recently applied the recklessness standard found in the Restatement (Second) of Torts. See Leonard v. Behrens, 601 N.W.2d 76, 80 (Iowa 1999). The Restatement (Second) of Torts defines recklessness as follows:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500, at 587. Additionally, the Iowa Supreme Court has held that to prove recklessness as the basis for a duty, “a plaintiff must show that the actor has intentionally done an act of an unreasonable character in disregard .of a risk known to or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” Morris v. Leaf, 534 N.W.2d 388, 391 (Iowa 1995).

When respondent realized that he had been assigned double-tie stalls, he immediately took action to rectify the situation by preparing' another stall for the stallion. Respondent did not ask appellant to approach the gelding and told appellant that he had just moved the stallion, and that the horses were “getting after one anoth-ér.” There was no evidence that this gelding had ever kicked anyone before or had a tendency to be a “kicky” horse. We conclude that the district court did not err by determining that there is no evidence raising a genuine issue of material fact regarding whether respondent acted recklessly.

III. Notice of review

Respondent filed notice of review on the issue of whether appellant assumed the risk of injury. But because we affirm the district court’s grant of summary judgment to respondent on the basis of choice of law, we do not reach the assumption of risk argument.

DECISION

Because we conclude that Iowa law applies to this matter and that there is no genuine- issue -of material fact regarding whether respondent acted recklessly, the district court did not err in granting summary judgment to respondent.

Affirmed.

      . There is some evidence that appellant may have been poking the gelding with a pitchfork just prior to the kick.


author: FORSBERG, Judge.

text:
    STATE of Minnesota, Appellant, v. Loren Lee LADUCER, Respondent.
    No. A03-1533.
    Court of Appeals of Minnesota.
    March 30, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Kathleen A. Heaney, Sherburne County Attorney, Sean C. Dillon, Assistant County Attorney, Elk River, MN, for appellant.
    Janice L. Mansell, Anoka, MN; and Mark D. Nyvold, St. Paul, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; PETERSON, Judge; and FORSBERG, Judge.
   OPINION

FORSBERG, Judge.

This is an appeal from a pretrial order of the Sherburne County District Court suppressing evidence of intoxication and dismissing, for lack of probable cause, two counts of first-degree driving while under the influence of alcohol. The state appeals from the dismissal of count one for violation of Minn.Stat. § 169A.20, subd. 1(1) (2002). Because the arresting officer had probable cause to arrest appellant for driving while under the influence of alcohol and to invoke the implied consent law, we reverse.

FACTS

At approximately 5:00 p.m. on May 12, 2003, State Trooper John Hodnefield received information through Sherburne County dispatch regarding a reckless driver in a blue van with out-of-state license plates passing vehicles on the shoulder and tailgating on Highway 10 near the City of Big Lake. At approximately the same time, Officer Dave Hurd of the Elk River Police Department received a call from Sher-burne County dispatch regarding a possible road-rage incident on Highway 10 involving the same van.

Hurd then observed the van in a Har-dee’s parking lot and detained it. Hodne-field arrived at the scene, and Hurd informed him that the driver had backed up almost hitting Hurd’s squad before stopping. There were two people in the van who looked substantially alike. While speaking with Hodnefield about the complaints of reckless driving, the person in the driver’s seat stated that he had not been driving but then said “that he was passing these other vehicles and that the only reason that they were turning him in was that the girlfriend of the one smiled at them.”

The driver did not produce a driver’s license but identified himself as “Matt Bal-simo” and stated his date of birth as February 13, 1967. Hurd entered the name given into his on-board computers and obtained a readout stating the name and birth date given were not on file. Hurd then demanded the driver reveal his identity, and he identified himself as Loren Laducer. Hurd discovered- Laducer’s driving privileges were revoked.

Laducer was arrested for providing false information to a police officer, driving after revocation, and careless driving. Since Laducer and the passenger traveling with him looked substantially alike, Laducer was transported to the Sherburne County Jail for booking, positive identification, and subsequent release after assigning a court date.

Laducer was not cooperative at the jail and was placed in a holding cell alone. At approximately 8:00 p.m., Sherburne County Correctional Officer Jeff Bednarek opened the door of the cell and detected a strong smell of alcohol coming from La-ducer. Bednarek asked Laducer if he had been drinking that day, and Laducer responded that he had consumed some beer. Laducer was told that he could not be released from jail if he was under the influence of alcohol and did not have a sober driver to pick him up. Laducer said he had no one that would pick him up. Bednarek told Laducer that he would be released with a court date if he blew into a portable breath tester and it registered .000 blood alcohol content. Laducer agreed to take the test and it registered a reading of .168 blood alcohol content.

At approximately 8:50 p.m., Hodnefield called the jail to determine if Laducer had been positively identified. He was informed that Laducer had “[blown] a .16 on the PBT.” Hodnefield commented that he had not smelled alcohol during his interactions with Laducer but he returned to the jail and detected an odor of alcohol within Laducer’s cell. Hodnefield told Laducer that he knew “[Laducer] had failed the PBT or that he had been drinking.” La-ducer responded by saying he had been drinking but again denied that he had been driving. Hodnefield then arrested Laducer for driving under the influence and invoked the implied consent law. Hodne-field made a telephone available to Laducer and, after .talking with an attorney, Laducer agreed to take a breath test. The Intoxilyzer 5000 breath test, administered by Hodnefield, produced a .11 blood alcohol content reading.

Laducer was charged with one count each of violating (1) Minn.Stat. § 169A.20, subd. 1(1) (2002) (first-degree driving while under the influence of alcohol); (2) Minn. Stat. § 169A.20, subd. 1(5) (2002) (first-degree driving under the influence of alcohol where the person’s alcohol concentration is measured at 0.10 or greater within two hours of driving); (3) Minn.Stat. § 171.22, subd. 1(4) (2002) (providing fictitious name or date of birth to a police officer); (4) Minn.Stat. § 169.13, subd. 2 (2002) (careless driving); and (5) Minn. Stat. § 171.24, subd. 2 (2002) (driving after revocation).

On Laducer’s pretrial motion, the district court found a correctional officer is not a “peace officer” and as such cannot administer a preliminary breath test under Minn.Stat. § 169A.41 (2002). The court further determined that without the results of the correctional officer’s breath test there was no probable cause to arrest Laducer for driving under the influence of alcohol or to invoke the implied consent law. The district court suppressed the evidence of intoxication and dismissed the two charges of first-degree driving while under the influence of alcohol, counts one and two of the complaint. This appeal, as to the charge under Minn.Stat. § 169A.20, subd. 1(1), followed.

ISSUE

1. Does Minn.Stat. § 169A.41 prohibit the results of a breath test administered by a non-peace officer from being considered by a peace officer in forming probable cause to arrest for violation of Minn.Stat. § 169A.20?

2. Did the arresting officer have probable cause to arrest appellant for driving while under the influence of alcohol and invoke the implied consent law?

ANALYSIS

1. If the state appeals pretrial suppression orders, it “ ‘must clearly and unequivocally’ show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (quoting State v. Zanter, 535 N.W.2d 624, 630 (Minn.1995)). Critical impact exists where the lack of the suppressed evidence reduces the likelihood of a successful prosecution. State v. Kim, 398 N.W.2d 544, 551 (Minn.1987). Here, the district court dismissed the charge of first-degree DWI, count one of the complaint. Thus, the critical-impact requirement is met.

To decide whether the district court clearly and unequivocally erred in issuing the order appealed, we must first determine whether the results of the breath test administered to Laducer by Correctional Officer Bednarek may be relied on by State Trooper Hodnefield in forming probable cause to arrest for violation of section 169A.20 and invoke the implied consent law under Minn.Stat. § 169A.51 (2002). This inquiry requires consideration of Minn.Stat. § 169A.41 (2002), which controls the use and procedure of a preliminary screening breath test. Section 169A.41 provides, “When a peace officer has reason to believe from the manner in which a person is driving, operating, controlling, or acting upon departure from a motor vehicle ... the officer may require the driver to provide a sample of the driver’s breath for a preliminary screening test.” Minn.Stat. § 169.41, subd. 1. The results of the preliminary screening test “must be used for the purpose of deciding whether an arrest should be made and whether to require the tests authorized in section 169A.51 (chemical tests for intoxication), but must not be used in any court action” unless one of seven exceptions applies. Minn.Stat. § 169.41, subd 2.

Here, the state recognizes that Correctional Officer Bednarek is not a peace officer and therefore is not authorized to administer a preliminary breath test under section 169A.41. The state contends, however, that the result of the breath test administered by Bednarek may be relied on by a licensed peace officer in forming probable cause to arrest for driving while under the influence of alcohol and invoke the implied consent law. We agree.

A preliminary breath test, administered pursuant to section 169A.41, is not used for the ultimate determination of a driver’s alcohol concentration. See Windschitl v. Comm’r of Pub. Safety, 355 N.W.2d 146, 149 (Minn.1984) (discussing the predecessor statute Minn.Stat. § 169.121 (1982)). And, generally, the result of a preliminary breath test is prohibited from being used as evidence of intoxication in any court action. Minn.Stat. § 169A.41, subd. 2. Nevertheless, section 169A.41 does not prohibit a correctional facility from testing for intoxication prior to releasing an individual from custody and does not prohibit the results of such a test from being communicated to a peace officer. In this context, State Trooper Hodnefield’s reliance on the preliminary-breath-test result is no different from relying on information from a private citizen. See Johnson v. Comm’r of Pub. Safety, 394 N.W.2d 614, 616 (Minn. App.1986) (stating officer may rely on information provided by private citizen to form probable cause that driver was driving while under the influence of alcohol); Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980) (stating information from a private citizen may be presumed reliable).

We note that this case is distinguishable from the holding in State, Lake Minnetonka Conservation Dist. v. Horner, in which the supreme court was concerned with the problem of non-peace officers enforcing boating safety laws. 617 N.W.2d 789, 794-95 (Minn.2000). The court found this “directly contravenes the statutory provisions regarding breath testing and arguably undermines the legislative scheme for gathering evidence of intoxication and the training, certification, and licensure of peace officers.” Id. at 794. But, here, the correctional officer was not investigating intoxication for the purpose of enforcing driving safety laws. Rather, Bednarek administered the breath test under Sher-burne County’s jail policy and procedures for releasing intoxicated individuals from custody. This policy is for the stated purpose of protecting “the safety of the inmate and the liability of the county.”

2. “Probable cause to arrest exists where the objective facts are such that under the circumstances a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.” Horner, 617 N.W.2d at 795 (quotations omitted). The inquiry is objective, not subjective. State v. Riley, 568 N.W.2d 518, 523 (Minn.1997). In evaluating probable cause, a reviewing court must consider the totality of the circumstances. Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 840 (Minn.App.2000), revieto denied (Minn. Sept. 13, 2000). While probable cause to arrest requires more than mere suspicion, it requires less than the evidence necessary for conviction. State v. Camp, 590 N.W.2d 115, 119 n. 9 (Minn.1999).

Here, Laducer was first arrested at a Hardee’s parking lot for providing false information to a peace officer, driving after revocation, and careless driving. At this time, Hodnefield witnessed Laducer sitting in the driver’s seat of the van reported by private citizens to have been driving recklessly. See State v. Harris, 295 Minn. 38, 42, 202 N.W.2d 878, 880-81 (1972) (stating an officer is not required to see the person actually driving to believe that the person was driving a motor vehicle while under the influence). At the time Hodnefield arrested Laducer for driving while under the influence of alcohol, Hodnefield also knew a preliminary breath test had shown Laducer’s blood alcohol content to be .168, Hodnefield had detected the odor of alcohol, and Laducer had admitted to Hodnefield that he had been drinking that day. See Holtz v. Comm’r of Pub. Safety, 340 N.W.2d 363, 365 (Minn.App.1983) (stating an officer need only have one objective indication of intoxication to constitute probable cause to believe a person is under the influence). Moreover, there was no evidence suggesting Laducer drank between the time of being arrested at the Hardee’s parking lot and the time Hodnefield detected the odor of alcohol and Laducer admitted to drinking. See, e.g., Hedstrom v. Comm’r of Pub. Safety, 410 N.W.2d 47, 49 (Minn.App.1987) (finding probable cause where driver exhibited indicia of intoxication and there was no indication that the driver had consumed alcohol after the time of the accident but before police arrived at the scene). Thus, given the totality of the circumstances, Hodnefield had sufficient, objective facts to form probable cause for arrest for first-degree driving while under the influence of alcohol under section 169A.20.

Moreover, we note that even without the results of the preliminary breath test administered by Bednarek, Hodne-field had probable cause to believe Laducer was intoxicated. An admission of drinking, coupled with other indicators of intoxication, is sufficient for probable cause to arrest. State v. Grohoski, 390 N.W.2d 348, 351 (Minn.App.1986), review denied (Minn. Aug. 27, 1986). Here, Hod-nefield detected an odor of alcohol, and Laducer told Hodnefield he had been drinking. Thus, Hodnefield had probable cause to arrest regardless of the preliminary-breath-test result.

Finally, because Hodnefield had probable cause to make the arrest for driving while under the influence, the arrest was lawful and the subsequent Intoxilyzer test, administered by Hodnefield, is admissible evidence of intoxication pursuant to the implied consent law. See Minn.Stat. § 169A.51, subd. 1 (stating “test must be administered at the direction of a peace officer” and “may be required of a person when an officer has probable cause to believe the person was driving ... in violation of section 169A.20 ... and ... the person has been lawfully placed under arrest for violation of section 169A.20”).

DECISION

The district court’s pretrial order suppressing evidence of intoxication and dismissing the charge for violation of Minn. Stat. § 169A.20, subd. 1(1), is reversed.

Reversed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.


text:
    STATE of Minnesota, Appellant, v. Joseph Steven HEANEY, Respondent.
    No. A03-1401.
    Court of Appeals of Minnesota.
    March 30, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Richard W. Jackson, Jr., Houston County Attorney, Caledonia, MN, for appellant.
    Gregory B. Schultz, Caledonia, MN, for respondent.
    Considered and decided by ANDERSON, Presiding Judge, STONEBURNER, Judge, and HUDSON, Judge.
   OPINION

STONEBURNER, Judge.

Respondent Joseph Steven Heaney is charged with four counts of criminal vehicular operation resulting in death, and four counts of criminal vehicular operation resulting in substantial bodily harm, as a result of a one-car accident that occurred in Houston County. One passenger died at the scene of the accident and another passenger was seriously injured. The state appeals a district court order suppressing Heaney’s blood plasma sample and test results on the sample subpoenaed from a Wisconsin hospital where Heaney was treated following the accident. We conclude that the district court erred by suppressing the sample for violation of due process because Heaney’s due process rights were not violated when the Wisconsin court ordered production of the sample by subpoena .rather than search warrant. But because the district court correctly concluded that the evidence is inadmissible under the Minnesota physician-patient privilege, we affirm the district court’s exclusion of the evidence.

FACTS

Respondent Heaney rolled his vehicle in Houston County causing the immediate death of one passenger and critical injuries to another passenger. A police officer arrived at the scene minutes after the accident and told Heaney that he detected the odor of an alcoholic beverage on Heaney’s breath. Heaney told the officer that he had been driving, that it was his friend’s birthday, and that they had consumed alcohol earlier in the evening. Heaney tested .101 on a PBT.

Heaney was transported by ambulance to the nearest appropriate medical center, which was in La Crosse, Wisconsin. Houston County police chief investigator Gary Eddy arrived at the hospital approximately an hour and forty-nine minutes after the estimated time of the accident. Ambulance personnel who had transported Heaney to the hospital told Eddy that they had noted the odor of alcohol on Heaney’s breath, and that Heaney had told them he was the driver of the car.

Eddy spoke with Heaney a few minutes later. Heaney said he did not want to speak with the police about the accident at that time. Eddy read him the Minnesota Implied Consent Advisory form, including paragraph 3, which states, “Because I also have reason to believe you have violated the Criminal Vehicular Homicide or Injury Laws, a test will be taken with or without your consent.” Eddy also read paragraphs 4 and 5 of the Advisory, advising Heaney of his right to speak to an attorney and that if a test is unreasonably delayed or refused, Heaney would be considered to have refused the test.

Heaney then asked to speak with an attorney. Because Heaney was being treated at the medical center, he was not able to speak with his attorney until two hours and nineteen minutes after the time of the accident. After speaking to his attorney, Heaney initially agreed to submit to Eddy’s request for a blood test.

While Eddy was waiting for a laboratory technician to arrive to take the blood test, the attending physician told Eddy that a medical blood test had been obtained and that records of that test could be subpoenaed. The parties stipulated that Hea-ney’s blood plasma tested by the medical center was collected an hour and twenty-five minutes after the accident. Prior to leaving the hospital, Eddy was shown documentation that testing of the sample taken from Heaney by hospital staff showed an alcohol concentration of .144.

When the laboratory technician arrived, Heaney refused to submit to a blood test and stated that he would take a urine test instead. The officer did not demand that Heaney give a blood sample. Heaney gave a urine sample about three hours after the time of the accident.

The Minnesota Bureau of Criminal Apprehension subsequently tested the urine sample and reported an alcohol concentration of .08. The state contends that the type of extrapolation that can be made from a blood sample cannot be made from a urine sample to prove what Heaney’s alcohol concentration would have been at the time of the accident.

Eddy subsequently gave the La Crosse County District Attorney’s office a request for production of documents and a supporting affidavit, requesting an order requiring the medical center to produce Heaney’s medical records, quality control documents for equipment used in treatment and testing related to the records, and the original blood plasma sample obtained from Heaney. A La Crosse County Deputy District Attorney obtained a “Subpoena for Documents, Sections 968.13 and 968.135,” signed by the judge of La Crosse County Wisconsin Circuit Court, and an order, requiring production of the requested items. Eddy received the requested medical records by mail, including results of the alcohol concentration test, showing a “blood plasma alcohol concentration of .144.” Eddy picked up the blood plasma sample from the medical center and delivered it to the BCA lab in St. Paul. The BCA test of the sample showed an alcohol concentration of .14.

The state charged Heaney with four counts of criminal vehicular operation resulting in death under Minn.Stat. § 609.21, subd. 1(1), subd. 1(2), subd. 1(3), and subd. 1(4) (2002), and four counts of criminal vehicular operation resulting in substantial bodily harm under Minn.Stat. § 609.21, subds. 2a(l), 2a(2)(i), 2a(3) and 2a(4) (2002). Several of the counts require the state to prove that Heaney had an alcohol concentration of .10 or more at the time of the accident, or that he had an alcohol concentration of .10 or more as measured within two hours of the time of the accident.

Heaney moved to suppress the sample and records obtained from the hospital, and the urine test, and for dismissal of the charges for lack of probable cause. Among other arguments not involved in this appeal, he argued that the blood plasma sample and test results obtained by the hospital are privileged information, that he did not authorize their disclosure, and that the information was obtained in violation of the physician-patient privilege under Minn.Stat. § 595 .02, subd. 1(d). He also argued that the blood plasma sample was obtained in violation of the subpoena provisions of Rule 22 of the Minnesota Rules of Criminal Procedure, and that his due process rights were violated because Wisconsin does not permit seizure of a blood plasma sample from a medical facility by subpoena, but only by search warrant. Although the district court denied Heaney’s motion to dismiss the charges, it granted Heaney’s motion to exclude the blood plasma sample and the results of tests conducted on the sample because the evidence was obtained in violation of Minn.Stat. § 595.02, subd. 1(d), the physician-patient privilege. In an amended order, the district court also based suppression of the blood plasma on a violation of due process and a violation of Rule 22 of the Minnesota Rules of Criminal Procedure because a subpoena, rather than a warrant, was used to obtain the sample. This appeal followed.

ISSUES

1. Did the district court clearly err by suppressing the blood plasma sample on the basis that Heaney’s due process rights and Minn. R.Crim. P. 22 were violated by use of a subpoena rather than a search warrant?

2. Did the district court err by applying the Minnesota physician-patient privilege to exclude Heaney’s blood plasma sample and alcohol-concentration test results?

ANALYSIS

I. Critical impact

In order to appeal a pre-trial order under Minnesota Rule of Criminal Procedure 28.04, subd. 2(1), the state “must clearly and unequivocally” show that the district court’s order will have a “critical impact” on the state’s ability to successfully prosecute, and that the order constituted error. State v. Zanter, 535 N.W.2d 624, 630 (Minn.1995). The state is not required to show that the remaining evidence is so weak that all possibility of conviction has been destroyed or that ab: sence of the evidence will result in dismissal; critical impact may be shown where lack of suppressed evidence significantly reduces the likelihood of conviction, or “where the effect is to seriously impede, although not to completely foreclose, continuation of the prosecution.” State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn.1987) (citation omitted).

In this case, the medical center’s testing of Heaney’s blood plasma is the only measure of his alcohol concentration made within two hours of the time of the accident, and several of the charges against Heaney require the state to prove that his alcohol concentration was over .10 at the time of, or as measured within two hours of, the accident. The state contends that the urine sample obtained almost three hours after the accident cannot be used, as a blood sample taken at that time could have been, to extrapolate what Hea-ney’s alcohol concentration would have been earlier.

We have held that suppressing a chemical test has a “critical impact” on prosecution in driving-while-impaired cases, even where non-test-related evidence of intoxication exists. State v. Ault, 478 N.W.2d 797, 798-99 (Minn.App.1991). And Hea-ney does not dispute that suppression has a critical impact on the prosecution. We conclude that the state has met its burden to show critical impact in this case.

II. Due process

The district court agreed with Hea-ney’s argument that the blood plasma sample was obtained in violation of Wisconsin due process requirements because the sample was obtained by a subpoena for documents under Wis. Stat. § 968.135 (2002), rather than by a search warrant under Wis. Stat. § 968.13 (2002). The Wisconsin statute under which the subpoena was issued states in part, “Upon the request of the attorney general or a district attorney and upon a showing of probable cause, under [statute] 968.12, a court shall issue a Subpoena Requiring the Production of Documents, as specified in section 968.13(2).” Wis. Stat. § 968.135 (2002).

Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). “When reviewing pretrial'orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing ... the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

Wisconsin Statutes section 968.13(2) defines “documents” as including, but not limited to “books, papers, records, recordings, tapes, photographs, films, or computer or electronic data.” The state argues that the broad definition of “documents” could encompass a blood plasma sample. We agree with the district court that a blood plasma sample does not fit the definition of documents under the Wisconsin statute, because a sample is not documentary in nature.

The state argues that even if the sample does not qualify as a document, use of the subpoena under Wis. Stat. § 968.135 did not result in a due process violation because the showing of probable cause required for a subpoena and a search warrant is the same. We agree. The subpoena issued refers both to Wis. Stat. § 968.135, the provision for obtaining subpoenas, and Wis. Stat. § 968.13, the provisions for obtaining search warrants. The procedures for obtaining a search warrant and a subpoena are identical. An attorney general or district attorney is required to request a subpoena or a search warrant and only if the request is supported by evidence of probable cause will the subpoena or search warrant be issued. In each case, the standard for probable cause is the same. In this case, a judge reviewed the county attorney’s request for a subpoena describing the evidence sought, and, based on the supporting affidavit, found sufficient probable cause to require production of the requested items. Respondent’s due process rights were vindicated when a neutral, detached judge reviewed the request and found probable cause to order production of the sample.

“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Brooks v. Comm’r of Pub. Safety, 584 N.W.2d 15, 19 (Minn.App.1998) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)), review denied (Minn. Nov. 24, 1998); State v. Hardwick, 144 Wis.2d 54, 422 N.W.2d 922, 924 (App.1988). Both Minnesota and Wisconsin have adopted the approach for analyzing a procedural due process claim set out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), that involves balancing three factors:

(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Brooks, 584 N.W.2d at 19; In the Matter of W.J.C., 124 Wis.2d 238, 369 N.W.2d 162, 163-64 (Ct.App.1985).

In this ease, Heaney’s interest in preventing ah illegal seizure of evidence was vindicated because the evidence was produced pursuant to an order based on a judge’s finding of probable cause that is not challenged by Heaney. There was no risk of an erroneous deprivation of his interest through the procedure used, and no “additional” procedural requirements were necessary to obtain a search warrant. We conclude that the district court erred by holding that Heaney’s due process rights were violated merely because the sample was obtained by subpoena rather than search warrant.

We further conclude that, insofar as the use of a subpoena rather than a-search warrant violates the Wisconsin statutes and Minn. R.Crim. P. 22, such violation does not require application of the exclusionary rule. The Minnesota Supreme Court recently held that the exclusionary rule should not be applied to a DNA sample seized pursuant to a court order that was later determined to be erroneous. Johnson v. State, 673 N.W.2d 144 (Minn.2004). The supreme court held that neither the purpose of the DNA statute nor the goal of preventing police misconduct would be served by suppression of the evidence, and declined to apply the exclusionary rule. Id at 150. The supreme court reviewed previous cases declining to apply the exclusionary rule in situations in which evidence was obtained in violation of state statutes, where civil servants or judicial officers, rather than law enforcement, committed the errors, and the admission of the evidence did not frustrate the purpose of the statute. Id. (reviewing State v. Lien, 265 N.W.2d 833 (Minn.1978) and State v. Smith, 367 N.W.2d 497 (Minn.1985)). Under those circumstances, the exclusionary rule does not apply.

The rationale set forth in Johnson applies to the case before us. Any violation of Wisconsin statutes or the Minnesota criminal rule in obtaining the sample did not rise to the level of a due process violation, was not induced by any actions of law enforcement, and does not frustrate the purposes of the involved statutes or the rule. There is no deterrent value in the use of the exclusionary rule to sanction these violations.

III. Physician-patient privilege

The district court also excluded evidence of the sample and medical records, including alcohol-concentration test results on the sample, because the evidence was obtained in violation of Minnesota’s physician-patient privilege:

A licensed physician ... shall not, without the consent of the patient, be allowed to disclose any information or any opinion based thereon which the professional acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity....

Minn.Stat. § 595.02, subd. 1(d) (2002).

The statute has been applied in criminal cases by judicial assumption.... It is only where a medical examination is conducted solely for the purpose of obtaining evidence to be used in a criminal proceeding that we have held that the privilege does not apply because the physician-patient relationship does not exist.

State v. Gore, 451 N.W.2d 313, 318 (Minn.1990) (citations omitted).

We agree with the state’s assertion that if Heaney had been treated in a Minnesota hospital, the Minnesota physician-patient privilege would never have been implicated because Minnesota law gives a police investigator the right to demand a blood test, whether or not the driver consents to the test, in the course of investigating a suspected criminal vehicular homicide. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Condon, 497 N.W.2d 272, 275 (Minn.App.1993) (stating that when officer has probable cause to believe a driver is intoxicated and has committed criminal vehicular operation, the officer may order blood sample taken without obtaining driver’s consent). We also agree with the state’s assertion that, when an officer suspects a driver of criminal vehicular homicide, the officer is not bound by his decision to read the implied consent advisory, and can order a driver suspected of criminal vehicular operation to submit to a blood test despite the driver’s refusal. State v. Lee, 577 N.W.2d 730, 734 (Minn.App.1998), rev’d on other grounds, 585 N.W.2d 378 (Minn.1998). But the officer in this case did not demand a blood test. Therefore, cases based on the long-standing authority of a peace officer to require blood testing of a driver suspected of criminal-vehicular operation are not relevant to the state’s attempt to admit evidence of this sample and testing, which were obtained purely for medical reasons.

The parties agree that the sample taken from Heaney and alcohol-concentration test results on the sample are not privileged under Wisconsin’s physician-patient privilege statute, which provides “no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration as defined in Section 340.01(lv).” Wis. Stat. § 905.04(4)(f). “There is no privilege in trials for homicide when the disclosure relates directly to the facts or immediate circumstances of the homicide.” Wis. Stat. § 905.04(4)(d). The parties agree that if the Wisconsin physician-patient privilege statute applies, evidence of the sample and test results would be admissible. But Minnesota’s physician-patient privilege statute does not contain similar exceptions.

To resolve this conflicts-of-law problem, the state first argues that because Heaney was treated in Wisconsin, and the entire physician-patient relationship occurred in Wisconsin, the Wisconsin physician-patient privilege and exceptions should be applied to this case. We disagree. Physician-patient privilege statutes are evidentiary rules that are not given extraterritorial effect.

It is a general rule that the admission of evidence and the rules of evidence are rather matters of procedure, than matters attaching to the rights of parties. Therefore they are governed by the laws of the country where the court sits.... The law of evidence is the lex fori ... to be determined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it.

Jones v. Chicago, St. P.M. & 0. Ry. Co., 80 Minn. 488, 491, 83 N.W. 446, 447 (1900).

We note that the doctrine of “lex loci,” under which the substantive law of the place of an accident was mechanically applied, has been replaced by a “better rule of law” analysis. Milkovich v. Saari, 295 Minn. 155, 164, 203 N.W.2d 408, 413 (1973). Although there has not been a similar case specifically replacing the doctrine of “lex fori,” applying the procedural law of the forum, with a “better rule of law” analysis, we conclude that even under a “better rule of law” analysis, the Minnesota physician-patient privilege is the better rule of law. The Minnesota legislature has set out a comprehensive method of obtaining blood-alcohol testing through the implied consent law that does not implicate the physician-patient privilege, because the tests required are at the direction of law enforcement for the purpose of obtaining evidence, which does not create a physician-patient relationship. The Minnesota legislature has not followed the example of Wisconsin in eliminating the medical privilege for the type of information involved in this case. Because a method exists for obtaining the required blood-alcohol testing evidence, we conclude that importing the Wisconsin exceptions to the physician-patient privilege to meet the rare fact situation presented by this case would unnecessarily dilute the protection afforded by the Minnesota legislature to treatment-related information disclosed in the physician-patient relationship.

The state argues that where there is a conflicts-of-law situation in the context of a criminal prosecution, Minnesota courts prefer to apply an “exclusionary rule analysis rather than a traditional conflicts of law approach to determine the admissibility of evidence obtained in another state.” State v. Lucas, 372 N.W.2d 731, 737 (Minn.1985).

The district court distinguished Lucas on the basis that much of the criminal activity in that case occurred in Wisconsin, but here, no portion of the criminal activity alleged occurred in Wisconsin. Although we reject this distinction as an insignificant factor in Lucas, we conclude that the district court correctly rejected an analysis under the exclusionary rule because the exclusionary rule is not relevant to Hea-ney’s argument, which is based on the statutory physician-client privilege rule of evidence and not on a violation of a constitutional right by law enforcement.

“The medical privilege is a statutory privilege and not a constitutional right.” In re D.M.C., 331 N.W.2d 236, 238 (Minn.1983) (citations omitted). Johnson rejected application of the exclusionary rule to non-law-enforcement violations of statutory, rather than constitutional rights. Johnson, 673 N.W.2d at 150. One of the considerations discussed in Johnson is whether admission of evidence obtained in violation of a statute directly frustrates the purpose of the statute. “The theory of all physician-patient privilege statutes is that patient’s fear of revelation in court of information given to his doctor deter and discourage him from freely disclosing his symptoms to the detriment of his health.” Snyker v. Snyker, 245 Minn. 405, 408, 72 N.W.2d 357, 359 (1955). We conclude that admission of the sample and test results on the sample would frustrate the purpose of the physician-patient privilege.

As noted above, the state correctly asserts that because Heaney was suspected of criminal vehicular operation, he had no right to refuse testing. Condon, 497 N.W.2d at 275 (stating that because officer had grounds to believe Condon had committed criminal vehicular operation, he had no right to refuse testing). The state relies on two unpublished opinions of this court to argue that because Heaney could not refuse testing, he could not revoke his implied consent to testing, and his implied consent waived any medical privilege regarding testing. In the unpublished cases relied on by the state, we held that blood samples drawn from unconscious drivers for medical treatment were admissible because an unconscious driver cannot waive implied consent to testing and any medical privilege was “defeated by [driver’s] implied consent to chemical testing.” Lunderbreck v. Commissioner of Public Safety, 2001 WL 1117675 at *2 (Minn.App. Sept.25, 2001) (permitting admission of the medically obtained blood sample and test in a license revocation hearing); State v. Haugen, 2000 WL 821554 (Minn.App. June 27, 2000) (permitting admission of medically obtained sample and test in prosecution of driver for misdemeanor and gross misdemeanor DWI). Lundebreck and Hau-gen are distinguishable to the extent that the drivers in those cases were unconscious, but we accept the state’s argument that Heaney’s legal incapacity to revoke his implied consent to chemical testing places him in a similar situation to drivers who physically cannot revoke implied consent because they are unconscious.

The conclusion reached in these unpublished opinions is appealing and undoubtedly serves the state’s interest in dealing with drunk drivers. But we conclude that the assertion that a driver’s implied consent to chemical testing at the request of law enforcement waives the physician-patient privilege for physician-ordered, medically necessary tests is not correct. The unambiguous language of the implied-consent statute establishes that the only testing impliedly consented to by a driver is testing administered at the direction of a peace officer. “Any person who drives ... a motor vehicle within the state ... consents to ... a chemical test of that person’s blood, breath, or urine for the purpose of determining the presence of alcohol ... The test must be administered at the direction of a peace officer.” Minn. Stat. § 169A.51, subd. 1(a) (emphasis added).

In this case, a test ordered by the police officer, even after Heaney purported to refuse blood testing, would have been admissible, and the physician-patient privilege would not have been implicated. We conclude, however, that implied consent does not automatically waive the physician-patient privilege that applies to information gathered by medical personnel exclusively for medical purposes. The Minnesota legislature has not exempted alcohol-concentration testing of a driver suspected of criminal vehicular operation done at the direction of medical personnel for medical reasons from the physician-patient privilege either directly, as the Wisconsin legislature has done, or through the implied consent statute. The district court did not err by excluding Heaney’s medical records, including the blood plasma sample and alcohol-concentration testing on the sample, under the physician-patient privilege.

DECISION

A Wisconsin court’s use of a subpoena, rather than a search warrant, to obtain respondent-driver’s blood plasma sample from a medical center, based on probable cause to suspect respondent committed criminal vehicular operation, did not violate respondent’s due process rights. The district court erred by applying the exclusionary rule to suppress evidence obtained in violation of a statute or rule where the violation was not caused by law enforcement and did not frustrate the purpose of the statute or rule.

Although respondent was legally incapable of withdrawing his implied consent to chemical testing administered at the direction of a peace officer, implied consent to such testing did not waive his right to assert a medical privilege for blood sampling and testing performed by medical personnel in the course of his medical treatment.

Affirmed.

      . The officer has made a statement that, in his past experience, this medical center would not take a blood test at his request when the patient refused to give a blood test.

      . The district court agreed with Heaney that Minn. R.Crim. P. 22 limits the use of a subpoena to obtaining witnesses or documentary evidence and not objects such as the sample.

      . The state did not challenge whether the blood plasma sample and alcohol-concentration testing on the sample were necessary to enable medical treatment for Heaney.

      . In Gore, the supreme court held that Gore's testimony at trial about the amount of drugs he ingested and his attempt to slash his wrist in a suicide attempt after he murdered his ex-girlfriend, waived any privilege with respect to information obtained in a medical examination after the suicide attempt about the number of pills he had taken and the superficial nature of his wounds. 451 N.W.2d at 319.

      . We do not mean to imply that the Minnesota legislature is not free to adopt exclusions to the physician-patient privilege for blood-alcohol testing.