author: HANSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Kenneth Louis BAUER, Appellant.
    No. C9-01-1601.
    Court of Appeals of Minnesota.
    April 30, 2002.

      Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, St. Paul, Michael J. Thompson, Meeker County Attorney, Litchfield, for respondent.
    John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, Minneapolis, for appellant.
    Considered and decided by HANSON, Presiding Judge, SCHUMACHER, Judge, and FOLEY, Judge.

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

   OPINION

HANSON, Judge.

On appeal from a conviction of second-degree controlled substance crime, appellant argues that the evidence of the quantity of LSD he possessed was insufficient to support the conviction because the LSD was not packaged in dosage units and the state presented no evidence on the weight of the substance. We reverse.

FACTS

When appellant Kenneth Louis Bauer was stopped by Sergeant Jim Nielson of the Minnesota State Patrol, Sergeant Niel-son detected the odor of marijuana coming from the vehicle and observed a large water “bong” on the front seat of Bauer’s vehicle. Bauer admitted that he had marijuana in the car. After Bauer performed poorly on field-sobriety tests, and after Sergeant Nielson discovered both that Bauer’s driving privileges were suspended and there was an active warrant for Bauer’s arrest, he arrested Bauer. Sergeant Nielson’s partner, Trooper Dale Prokosch, did an inventory search of Bauer’s vehicle and discovered four one-inch by two-inch rectangular cards, with no markings or perforations, stored in a zippered compact disc case.

The next day, Nielson field-tested one of the cards for LSD and it tested positive. Because the cards were without markings, Nielson called the BCA to inquire as to how many dosage units the four cards represented. After being advised that a typical LSD dosage unit was approximately the size of a pencil eraser, Nielson estimated that the cards contained 160 dosage units. Bauer was then charged with second-degree controlled substance crime, under Minn.Stat. § 152.022, subd. 2(3) (2000), based on his possession of 100 or more dosage units.

The cards were then sent to the BCA where they were tested by James Koch and confirmed positive for LSD. Koch estimated that the four cards constituted roughly 195 dosage units, based on the opinion that a dosage unit would be one-quarter inch square.

At trial, Nielson, Prokosch and Koch each testified. Koch described the quarter-inch square as the BCA’s “standard” for counting the number of dosage units when the medium used was not demarcated with perforations or a repeating pattern. He furthermore testified that measuring dosage units in this way was the “established procedure” in the forensic science community nationwide. No evidence was offered as to the weight of the cards.

Bauer argued that the state did not have adequate evidence to show that the quantity of LSD present on the cards was enough for second-degree controlled substance crime for possession. Bauer was convicted as charged and sentenced to 48 months incarceration. This appeal followed.

ISSUE

Is expert testimony, that unmarked LSD blotter paper contains a certain number of “dosage units,” sufficient to support a conviction of second-degree controlled substance crime for possession of LSD?

ANALYSIS

Bauer argues that the evidence was insufficient to convict him of second-degree controlled substance crime. In considering a claim of insufficient evidence, this court’s review is limited to a thorough analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

Bauer does not deny that he possessed LSD. He merely claims that the amount he possessed was insufficient to constitute second-degree possession. Minnesota criminalizes the possession of LSD under several statutes, from first to fifth degree with the degree of the possession crime determined, in large part, by the amount of LSD possessed. Sometimes the statutes express the perimeter of each offense as a function of the weight of the drug mixture, and sometimes as a function of the number of “dosage units” of the drug. See, e.g., Minn.Stat. §§ 152.025, subd. 2(1) (2000) (fifth-degree possession prohibits any possession of LSD), .024, subd. 2(1) (2000) (fourth-degree possession prohibits the possession of ten or more dosage units of LSD), .023, subd. 2(4) (Supp.2001) (third-degree possession prohibits the possession of five or more dosage units of LSD in a school zone, park zone, public housing zone, or drug treatment facility within a 90-day period), .022, subd. 2(3) (2000) (second-degree possession prohibits the possession of either 50 grams of LSD mixture or 100 dosage units), .021, subd. 2(3) (2000) (first-degree possession prohibits the possession of either 500 grams or 500 or more dosage units of LSD).

Bauer was charged with second-degree possession of LSD in violation of Minn. Stat. § 152.022, subd. 2(3), which criminalizes the possession of:

one or more mixtures of a total weight of 50 grams or more containing [LSD] or, if the controlled substance is packaged in dosage units, equaling 100 or more dosage units.

(Emphasis added.) Bauer argues that because his blotter paper was unmarked and not “packaged in dosage units,” Koch’s expert testimony, estimating the number of dosage units on the unmarked blotter paper according to BCA protocol, was insufficient to convict.

The essential question is whether, under MinmStat. § 152.022, subd. 2(3), the fact of LSD being packaged in dosage units is a prerequisite to a conviction based on the number of dosage units possessed. Statutory construction is a question of law, which this court reviews de novo. State v. Azure, 621 N.W.2d 721, 723 (Minn.2001). If possible, this court construes every law to give effect to all its provisions. Minn. Stat. § 645.16 (2000).

Minn.Stat. § 152.022, subd. 2(3) provides two distinct methods to prosecute for second-degree possession of LSD, by proving possession of over 50 grams of LSD or by proving possession of 100 or more dosage units of LSD. But the second means is available only where the prerequisite condition exists, “if the controlled substance is packaged in dosage units.” Id. (emphasis added). This language is clear and unambiguous. The number of dosage units can be used only if the drug has been packaged in dosage units.

The state’s arguments to the contrary are wide of the mark. First, the fact that the BCA’s method for counting dosage units may be accepted as “standard” in the forensic science community is irrelevant because the statute requires the drug to be “packaged” into those dosage units before any count of the units has legal significance. For this reason, the state’s reference to State v. Palmer, 507 N.W.2d 865 (Minn.App.1993), review denied (Minn. Jan. 14, 1994) is unavailing. While it is true that in Palmer a chemist testified to how many “hits” were possessed by the defendant, the critical factor there was that the LSD was already divided into eighth-inch squares, four of which constituted a dosage unit. Id. at 867-68. The chemist had merely counted them, and determined that four squares equaled a dosage unit. Id. at 868. Here, the cards were not divided, and the number of dosage units could only be estimated by expert opinion, applying an administrative “standard.”

Second, this case is not, as the state argues, about whether the defendant gets to decide the size of the dosage unit, because the question of size does not arise unless the LSD is first packaged into dosage units.

Finally, the state’s argument, that those who possess LSD should not be able to avoid punishment simply by failing to subdivide their drug into dosage units, also fails. Such an action does not prevent prosecution, it simply forces prosecutors to charge and prove the crime using the alternative measure of weight, or using an offense that does not depend on the number of dosage units. The statute creates a bifurcated system: where LSD is packaged into dosage units, you count them; where it is not, you weigh it. Any incongruity arising from this system must be addressed by the legislature, not this court.

DECISION

The state presented no evidence of the weight of the LSD or that it was packaged in dosage units. The expert testimony presented by the state to prove the number of dosage units did not satisfy the prerequisite condition that the LSD be packaged in dosage units and, accordingly, is insufficient to sustain a conviction of second-degree controlled substance crime for possession of LSD.

Reversed.


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge.

license: Public Domain

text:
    Gus A. CHAFOULIAS, Appellant, v. Lori C. PETERSON, Respondent, American Broadcasting Companies, Inc., a Delaware corp., Respondent.
    No. C2-01-1617.
    Court of Appeals of Minnesota.
    April 30, 2002.

      Michael Berens, Erin K. Fogarty Lisle, Kelly & Berens, P.A., Minneapolis, for appellant.
    Kay Nord Hunt, Phillip A. Cole, Laura L. Enga, Lommen, Nelson, Cole & Stage-berg, P.A., Thomas W. Tinkham, Dean C. Eyler, Dorsey & Whitney LLP, Minneapolis, for respondents.
    Considered and decided by ANDERSON, Presiding Judge, SCHUMACHER, Judge, and HARTEN, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Hotel owner Gus A. Chafoulias (appellant) brought a defamation action against attorney Lori Peterson (respondent) and the American Broadcasting Companies, Inc. (ABC) (respondent) in response to Peterson’s televised statements alleging appellant’s knowledge of acts of sexual abuse and harassment perpetrated against his female employees by male guests at his hotel. The district court granted respondents summary judgment, reasoning that appellant was a limited-purpose public figure who could not prove by clear and convincing evidence that respondents had acted with actual malice. We agree with the district court’s reasoning, and affirm. Because we affirm the decision in respondents’ favor, we do not reach the immunity and privilege issues raised by respondents by notice of review.

FACTS

In June 1996, respondent Lori Peterson brought a federal sexual-harassment lawsuit on behalf of five former employees of the Radisson Plaza Hotel in Rochester against appellant Gus A. Chafoulias, the hotel’s owner, companies appellant controlled, and others. The suit claimed that between 1993 and 1995, female hotel employees were subjected to acts of sexual harassment and abuse at the hands of hotel guests from the United Arab Emirates.

The allegations of liability were premised on the contention that appellant, as an employer, was responsible for the actions of his managers and employees in ignoring, condoning, and contributing to the illegal acts of the hotel guests. The suit alleged that appellant and his employees long knew about the offensive conduct but failed to take meaningful action, including notifying the police, and that appellant used his influence to dissuade the police from investigating or prosecuting reported crimes, including rape.

The harassment suit arise from a developing and increasingly public dispute concerning the alleged sexual harassment of Rochester women by Arab males visiting Rochester to receive medical care at the Mayo Clinic. In August 1995, Peterson notified appellant that she was representing several of his former employees in a suit against appellant and the Radisson. Appellant hired a public-relations firm in anticipation of a media-relations battle over the allegations, which soon became public. Beginning in April 1996, Rochester-area newspapers and television stations began reporting on the accusations. After the suit was filed, newspaper and television coverage increased. In October 1996, respondent American Broadcasting Companies (ABC) videotaped interviews with Peterson, her clients, and appellant.

On August 6, 1997, ABC broadcast the interviews, in a substantially edited form, as “The VIP Floor,” a segment of ABC’s “PrimeTime Live” television program. The report contained footage of appellant saying, “I don’t know if [the harassment] happened,” followed by footage of Peterson stating, “Chafoulias knew. Chafoulias has known for years that these women were being attacked, harassed, raped.”

On August 13, 1998, appellant brought a defamation action against respondents, alleging, inter alia, that Peterson’s statement was made and broadcast with actual malice. Respondents claimed various immunity and privilege defenses. Extensive discovery and motion practice ensued.

The district court concluded that appellant was a limited-purpose public figure, and would have to show that respondents acted with actual malice to recover for defamation.

Both respondents moved for summary judgment on the issue of actual malice. The district court granted both motions, reasoning that the evidence in the record could not support a reasonable jury finding that appellant showed respondents’ actual malice by clear and convincing evidence. This appeal followed. By notice of review, respondents claim that various immunities and privileges apply.

ISSUES

I. Is appellant a limited-purpose public figure?

II. Did the district court err by granting respondents summary judgment on the defamation claim?

ANALYSIS

I.

Chafoulias claims he was defamed by Peterson’s statement, as broadcast by ABC, that “Chafoulias knew. Chafoulias has known for years that these women were being attacked, harassed, raped.” The elements of a cause of action for defamation are (1) a false and defamatory statement about the plaintiff; (2) an unprivileged publication to a third party; (3) a tendency to harm the plaintiffs reputa-

tion in the community; and (4) fault, at least negligence. Britton v. Koep, 470 N.W.2d 518, 520 (Minn.1991).

We first consider whether appellant is a limited-purpose public figure. If so, he may only recover by showing that Peterson’s “statement was made with ‘actual malice,’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). The public or private status of the plaintiff in a defamation action is a question of law, which we consider de novo. Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966).

Generally, public figures are those whose exceptional access to the media affords them “ ‘a more realistic opportunity to counteract false statements than private individuals normally enjoy.’” Scheibel v. Pavlak, 282 N.W.2d 843, 856 (Minn.1979) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789 (1974)); see also Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 486 (Minn.1985) (effective media access is a “distinguishing feature” of public figures).

In certain circumstances, the United States Constitution treats private citizens who are not otherwise public figures as public figures for the purpose of comment upon certain issues; these individuals are known as limited-purpose public figures. See Wolston v. Reader’s Digest Assoc., 443 U.S. 157, 165-69, 99 S.Ct. 2701, 2706-08, 61 L.Ed.2d 450 (1979); Hutchinson v. Proxmire, 443 U.S. 111, 134, 99 S.Ct. 2675, 2688, 61 L.Ed.2d 411 (1979). A limited-purpose public figure is defined as

an individual [who] voluntarily injects himself or is drawn into a particular public controversy and therefore becomes a public figure for a limited range of issues.

Gertz, 418 U.S. at 351, 94 S.Ct. at 3013 (internal quotations omitted) (alteration in original).

To determine whether Chafoulias was a limited-purpose public figure in this matter, we must consider whether: (1) a public controversy existed; (2) appellant assumed a purposeful or prominent role in that controversy; and (3) the allegedly defamatory statement was related to the public controversy. Hunter v. Hartman, 545 N.W.2d 699, 704 (Minn.App.1996) (citing and adopting test established in Waldbaum v. Fairchild Publ’ns, Inc. 627 F.2d 1287, 1296-98, (D.C.Cir.1980)), review denied (Minn. June 19, 1996).

A. Public Controversy

Appellant challenges the district court’s conclusion that there was a public controversy involving the sexual harassment of Rochester women by Arab males, arguing that (1) there was no proper controversy, only media attention and a trial; and (2) if there was a controversy, it was generated by respondents, who cannot by their own conduct create a legal defense by foisting public-figure status on appellant. Respondents argue that the alleged harassment generated significant public interest and controversy prior to and independent of the lawsuit and the broadcast. The record supports respondents’ argument.

“A public controversy is not simply a matter of interest to the public; it must be a real dispute * * Waldbaum, 627 F.2d at 1296; see also Time, Inc. v. Firestone, 424 U.S. 448, 454-55, 96 S.Ct. 958, 965-66, 47 L.Ed.2d 154 (1976) (essentially private concerns or disagreements do not become public controversies simply because they attract attention).

To determine whether a public controversy existed, this court

must examine whether persons actually were discussing some specific question. A general concern or interest will not suffice. The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment. It should ask whether a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution. If the issue was being debated publicly and if it had foreseeable and substantial ramifications for non-participants, it was a public controversy.

Waldbaum, 627 F.2d at 1297 (citation and footnotes omitted).

Appellant first argues that there was no “dispute” here because “[a]ll responsible citizens * * * oppose sexual harassment.” But the record shows that the public debate in Rochester in the wake of the allegations was not between those opposed to and those in favor of sexual harassment. The debate was about whether the allegations were being sufficiently investigated by the women’s employers or Rochester law-enforcement officials.

The record shows that before the harassment lawsuit was filed, Rochester-area news sources were investigating several contentious and divisive topics related to the allegations. Published and televised news reports uncovered facts and theories to help the public determine the veracity of the allegations and of charges that Rochester police, bowing to pressure from the local business community, were not sufficiently investigating the allegations. Media reports paid special attention to the fact that the alleged harassers, wealthy Arabs receiving medical treatment at the Mayo Clinic, made vital contributions to the local economy. The potential impact of alienating such an important client group gave the controversy significance for people beyond those immediately involved in the dispute, as did the potential impact on norms and attitudes about sexual harassment.

Appellant argues that Peterson cannot invoke the public-figure defense when she herself created the public controversy that turned him into a public figure. See Jadwin, 367 N.W.2d at 485 (“[TJhose charged with defamation cannot by their own conduct create their defense by giving the claimant public figure status.”).

The record does not indicate that Peterson created this controversy or conferred public-figure status on appellant by making the statement. Numerous newspaper articles and television programs, published before the suit was filed, documented the allegations of harassment and hotel-management nonfeasance, and indicate that the sexual-harassment dispute existed before Peterson filed the suit or even learned of the allegations. Appellant, with the assistance of a public-relations firm hired specifically to protect his reputation in the face of the allegations, took affirmative action to influence the nature of media coverage.

Appellant also argues that the public controversy about the alleged harassment was limited to the disputes underlying the federal lawsuit filed by Peterson in June 1996. Appellant correctly cites to LeDoux v. N.W. Publ’g, Inc., 521 N.W.2d 59, 66 (Minn.App.1994), review denied (Minn. Nov. 16, 1994), for the proposition that litigation cannot be the controversy that confers public-figure status. But LeDoux is inapposite here because the public controversy of the sexual harassment of Rochester women by Arab visitors was far broader than the dispute underlying the federal lawsuit. The broader controversy could reasonably be expected to affect individuals not directly involved in the lawsuit. Appellant himself acknowledged as much in a letter written to Twin Cities television station KSTP on April 26, 1996, in which he wrote that “our hotel and other area businesses have been impacted by the [harassment allegations].” Appellant is not someone who became a public figure “simply by virtue of [his] being drawn into a courtroom.” Time, Inc., 424 U.S. at 457, 96 S.Ct. at 967.

The record is undisputed that there was significant public debate about the sexual harassment of women by Arab men before Peterson filed the lawsuit, and that the alleged acts of harassment were completed before Peterson was aware of them. There is little doubt that Peterson’s actions, which included distributing “Wanted” posters in the Rochester area offering cash rewards for the “apprehension” of various Arab men identified by name and photograph, were appalling and a discredit to the legal profession. But Peterson’s involvement in publicizing the controversy was an effect of the controversy, and not its cause, as appellant contends. We note that “[c]reating a public issue * * * is not the same as revealing one.” Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 434 (5th Cir.1987).

B. Appellant’s Role in the Controversy

Appellant argues that there was a genuine issue of material fact as to whether he assumed a purposeful or prominent role in the controversy, asserting that he merely reacted to Peterson’s allegations in order to defend himself. We disagree.

To determine whether appellant assumed a purposeful or prominent role in the controversy, we must examine the nature and extent of his participation in the controversy giving rise to the alleged defamation. See Gertz, 418 U.S. at 352, 94 S.Ct. at 3013. To do so, we consider: (1) whether his involvement was voluntary; (2) whether and to what extent he had access to channels of effective communication to counter false statements; and (3) his prominence in the controversy. Id. at 344-45, 94 S.Ct. at 3009-10. Our analysis may examine “[Chafoulias’s] past conduct, the extent of the press coverage, and the public reaction to his conduct and statements.” Waldbaum, 627 F.2d at 1297 (citation omitted).

Appellant contends, with some merit, that he should not have to choose between remaining silent in the face of libelous statements and sacrificing his private-figure status. But voluntary discussion of events with the press does not automatically indicate that a defamation plaintiff has thrust himself to the forefront of a public controversy. See Time, Inc., 424 U.S. at 454 n. 3, 96 S.Ct. at 965 n. 3 (defamation claimant does not become a public figure by convening press conferences in an attempt to satisfy inquiring reporters).

Rather, an individual’s contacting the media contributes to his public-figure status when he has done so in an attempt to influence the resolution or merits of a controversy, see id., has “draw[n] attention to himself in order to invite public comment,” Wolston, 443 U.S. at 168, 99 S.Ct. at 2707, or has “invited that degree of public attention and comment * * * essential to meet the public figure level.” Hutchinson, 443 U.S. at 135, 99 S.Ct. at 2688.

Appellant repeatedly interacted with the press in an attempt to influence the resolution of the controversy and control the public perception of the allegations against himself and the Radisson. In November 1995, appellant’s son Andrew, a top executive at appellant’s management company, hired a public-relations firm to develop a media-relations strategy for the Radisson to protect the hotel’s, and appellant’s family’s, reputation in the wake of the harassment allegations.

In correspondence with KSTP, appellant outlined new Radisson policies concerning appropriate guest conduct. Appellant suggested to David Page, an ABC News producer, that instead of investigating the harassment allegations, Page should investigate Peterson’s unethical legal tactics. After the PrimeTime Live broadcast and the settlement of the federal harassment suit, Rochester television station KTTC conducted a two-part interview with appellant in which appellant defended his position with respect to the harassment suit and discussed upcoming development projects. This interview illustrates both appellant’s access to the media and his willingness to use that access to influence the ultimate outcome of the public controversy surrounding the harassment allegations, beyond the resolution of the lawsuit.

Appellant argues that his repeated refusal to be interviewed by ABC is evidence that his participation in the controversy was involuntary and did not make him a public figure.

Occasionally, someone is caught up in the controversy involuntarily and, against his will, assumes a prominent position in its outcome. Unless he rejects any role in the debate, he too has “invited comment” relating to the issue at hand.

Waldbaum, 627 F.2d at 1298. Appellant’s selective refusal to consent to interviews, after purposefully communicating with media outlets on the advice of his lawyers and public-relations specialists, is not credible evidence of his unwillingness to participate publicly in the controversy.

We are sympathetic to the fact that appellant did not want the attention he received as a result of the allegations that he was condoning sexual abuse and harassment in his hotel. And there is little doubt that Peterson’s actions contributed to the media circus that ensued. But appellant could not obscure his prominent role in the controversy by periodically refusing to submit to interviews. Indeed, his efforts to control media interest in the allegations by alternately seeking out and then rejecting media attention may have thrust him further into the controversy, even if his intent was the opposite.

[T]he status of public figure vel non does not depend upon the desires of an individual. The purpose served by limited protection to the publisher of comment upon a public figure would often be frustrated if the subject of the publication could choose whether or not he would be a public figure. * * * It is no answer to the assertion that one is a public figure to say, truthfully, that one doesn’t choose to be.

Rosanova v. Playboy Enters., Inc. 580 F.2d 859, 861 (5th Cir.1978).

[T]he plaintiffs action may itself invite comment and attention, and even though he does not directly try or even want to attract the public’s attention, he is deemed to have assumed the risk of such attention.

Marcone v. Penthouse Int’l Magazine For Men, 754 F.2d 1072, 1083 (3rd Cir.1985) (citations omitted). A limited-purpose public figure is one who either “injects himself or is drawn into a particular public controversy.” Gertz, 418 U.S. at 351, 94 S.Ct. at 3013 (emphasis added).

On independent review of the record, we conclude that appellant actively and voluntarily injected himself into the dispute over sexual harassment in an effort to influence the outcome of the controversy.

We also conclude that appellant had “access to the channels of effective communication and hence ha[d] a * * * realistic opportunity to counteract false statements.” Id. at 344, 94 S.Ct. at 3009. Appellant is well known in Rochester for several major downtown building projects, several of which have been funded or subsidized with public money. The record contains hundreds of newspaper articles discussing both appellant’s business ventures and his private life.

It is true that media attention alone could not make appellant a limited-purpose public figure. See Jadwin, 367 N.W.2d at 485-86 (business activities attracting media attention did not transform a businessperson into a limited-purpose public figure). Nor does public investment in a development project make the developer a public figure. See id. at 486. Rather, we conclude that the general interest in appellant gave him “the regular and continuing access to the media that is one of the accouterments of having become a public figure.” Hutchinson, 443 U.S. at 136, 99 S.Ct. at 2688; see also Jadwin, 367 N.W.2d at 486 (“distinguishing feature” of public figures is the ability “to rebut the alleged libelous publication”).

Appellant had adequate access to channels of effective communication because the press presented him with many opportunities to be interviewed and he was in fact interviewed on several occasions. He “aggressively promoted h[is] version of the case” both before and after the court proceedings. Street v. NBC, 645 F.2d 1227, 1235 (6th Cir.1981). He employed a public-relations firm and repeatedly contacted the media as a means of communicating his position to the public and influencing the outcome of the sexual-harassment controversy. His willingness and ability to contribute to the debate supports the conclusion that his involvement in the controversy was voluntary and that he was effectively able to broadcast his view of the federal lawsuit and the broader controversy to the public. See id. at 1234-35.

The evidence here shows that appellant’s involvement in the harassment controversy went far beyond the low-key participation one might expect of someone attempting to avoid the public eye. Appellant contends that his contact with the media was necessary to vigorously defend himself, but it appears on the record before us that his conduct rose beyond this level. Appellant affirmatively and voluntarily engaged in a course of action with respect to the debate that was bound to invite public attention and comment. The district court appropriately found that appellant took a prominent role in the controversy.

C. Relation Between the Statements and the Controversy

Peterson’s statement directly relates to the allegation, at the heart of the public controversy, that appellant failed to act to prevent Rochester women from being sexually harassed and assaulted by male"Arab visitors.

We conclude that the district court, having appropriately examined the “nature and extent of [Chafoulias’s] participation in the particular controversy giving rise to the defamation,” Gertz, 418 U.S. at 352, 94 S.Ct. at 3013, did not err by concluding as a matter of law that appellant was a limited-purpose public figure.

II.

Chafoulias challenges the district court’s conclusion that ABC did not act with actual malice in broadcasting, and Peterson did not act with actual malice in making, the allegedly defamatory statement. Whether a statement was made with actual malice is a question of law, which we review de novo. Britton, 470 N.W.2d at 524. On appeal from summary judgment in a defamation case brought by a public figure, our task is to determine whether “the record could support a reasonable jury finding that the plaintiff has shown actual malice by clear and convincing evidence.” Foley v. WCCO Television, Inc. 449 N.W.2d 497, 503 (Minn.App.1989), review denied (Minn. Feb. 9, 1990).

To prevail in this defamation action, Chafoulias must prove that Peterson’s statement was made and broadcast with actual malice, that is, “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co., 376 U.S. at 280, 84 S.Ct. at 726. “Reckless [disregard] is not measured by whether a reasonably prudent person would have published or would have investigated before publishing.” Connelly, 448 N.W.2d at 903 (citing St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968)). Instead, the defamatory statement must have been published with a subjective awareness of its probable falsity, as demonstrated by “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325.

The Supreme Court, by way of example, has observed that a statement may have been made with actual malice if it

is fabricated by the defendant, is the product of his imagination, * * * is based wholly on an unverified anonymous telephone call [or if] the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation.

Id. at 732, 88 S.Ct. at 1326.

“The burden of proving actual malice is upon the one alleging defamatory statements and it must be proved with convincing clarity.” Hirman, 257 N.W.2d at 566 (citation omitted). Chafoulias offered circumstantial evidence to show that Peterson and ABC in fact entertained serious doubts as to the truth of their publication. See Connelly, 448 N.W.2d at 904 (noting that use of circumstantial evidence is authorized to prove actual malice).

The actual-malice standard is intended to protect free speech by severely limiting the ability of public figures to recover damages for defamation. See Hirman, 257 N.W.2d at 566. Consequently, summary judgment on the issue of actual malice has historically been the preferred disposition in defamation cases brought by public figures. See Foley, 449 N.W.2d at 504.

A. Peterson’s Actual Malice

Appellant sets out three factors in support of his argument that Peterson acted with actual malice: (1) Peterson’s ill-will toward appellant; (2) Peterson’s reliance on a known unreliable source for her statement that appellant failed to stop the sexual abuse of his employees; and (3) the inherent improbability of Peterson’s statement.

Appellant first argues that Peterson’s ill-will toward him, as evidenced by her videotaped allegations, demonstrates that the truth is unimportant to her. But while evidence of the speaker’s motive may bear some relation to a determination of actual malice, “the actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666, 109 S.Ct. 2678, 2685, 105 L.Ed.2d 562 (1989) (citations and footnote omitted).

It is not enough for a public official to show that the defendant has acted from personal ill-will but rather he must prove that the publication was made with a high degree of awareness that it was probably false.

Hirman, 257 N.W.2d at 566 (citations omitted). Without other evidence, Peterson’s ill-will is not clear and convincing evidence of actual malice. See id. at 567 (concluding that “longstanding animosity” between the parties was insufficient to prove actual malice).

Appellant next argues that Peterson acted with a reckless disregard for the truth of her statement by relying on a known unreliable source, D.W., for the information contained in the statement. “[R]ecklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Id., 390 U.S. at 732, 88 S.Ct. at 1326 (citations and footnote omitted). Appellant contends that D.W. is unreliable because she changed her account of whether she notified him of sexual abuse alleged to have occurred in the Radisson employee elevator in August 1994. Appellant argues that D.W. initially claimed she had told only her supervisor and manager, and never claimed she had informed appellant of this event until her videotaped interview with ABC.

We do not agree. The record shows that D.W. described the assault two times, in two separate conversations: one with her supervisor and manager, and another, at a later time, with appellant. Nowhere in the record does D.W. claim that she never told appellant about the assault. There is no discrepancy between D.W.’s statements, and appellant has therefore not demonstrated that Peterson had obvious reasons to doubt D.W.’s veracity.

Finally, appellant argues that Peterson acted with actual malice because, in light of appellant’s excellent reputation in Rochester, Peterson’s “allegations are so inherently improbable that only a reckless [wojman would have put them in circulation.” St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326. We are troubled by appellant’s suggestion that an individual’s reputation should function as a prior restraint on another individual’s freedom to allege wrongdoing. We also note that reputation alone, however excellent it may be, cannot render defamatory allegations inherently improbable or conclusively prove that an individual spoke with actual malice. It does not logically follow that Peterson’s statement was reckless because it concerned an individual with an excellent reputation.

Moreover, evidence in the record supporting the truth of Peterson’s statement precludes the conclusion that the statement was inherently improbable. There is evidence that appellant knew about sexual harassment and abuse in his hotel as early as 1993. Appellant testified that in 1993 he learned of the sexual assault of employee C.H. by an Arab guest. Former Radis-son manager Jerry Smith testified that he and appellant discussed the July 1993 sexual assault of S.M. by an Arab guest immediately after the assault took place. A report prepared for appellant by his attorneys in July 1996 states that hotel management repeatedly failed to investigate employee allegations of harassment by Arab guests.

Peterson herself conducted an extensive investigation of the allegations before filing the federal suit and believed in the substantial truth of her statement. In a settlement letter sent to appellant’s attorneys, she described more than 60 specific incidents of harassment and abuse that had been related to her during interviews with former Radisson employees. Many of these allegations were supported by police reports and charges of discrimination filed with the Minnesota Department of Human Rights.

Peterson took a sworn statement from a former Rochester Radisson security guard who told Peterson that after one assault by an Arab guest in November 1993, hotel management initially refused to report the incident to the police. When the police were called, they interviewed the alleged assailant, after which appellant had the guard apologize to the Arab guest for any inconvenience the complaint had caused him.

A former Rochester Radisson personnel manager stated in an affidavit that after one alleged assault, hotel manager Jerry Smith tried to prevent the Rochester Police from filing criminal sexual conduct charges against the guest in order to avoid publicity. Former hotel managers told Peterson that appellant was regularly briefed on complaints about the Arab guests and participated in developing management responses.

Peterson interviewed accusers and witnesses, confirmed stories, and attempted to verify allegations. The record supports the conclusion that Peterson believed the truth of the allegations.

The district court did not err by concluding that appellant faded to present clear and convincing evidence of Peterson’s actual malice. The court properly granted Peterson summary judgment on the actual malice issue and properly dismissed the defamation claim against Peterson.

B. ABC’s Actual Malice

Appellant argues that ABC’s overall failure to sufficiently investigate the controversy before broadcasting Peterson’s statement indicates actual malice. Appellant contends that ABC relied on unreliable witnesses, maliciously adopted Peterson’s version of events, and disregarded evidence that contradicted Peterson’s story. Because the record shows that ABC conducted a lengthy investigation and came to believe that Peterson’s statement was corroborated and at least arguably true, we do not agree.

Generally, the mere failure to investigate does not establish knowledge of falsity or serious doubt about the truth of a story, Connelly, 448 N.W.2d at 904, and such failure is insufficient to establish recklessness for purposes of a libel suit. Speer v. Ottaway Newspapers, Inc., 828 F.2d 475, 478 (8th Cir.1987); see also Harte-Hanks Communications, Inc., 491 U.S. at 688, 109 S.Ct. at 2696 (stating that “failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard”).

Appellant observes that D.W. admitted, in video taken by ABC but not broadcast, that she never explicitly told Chafoulias about being digitally penetrated by an Arab hotel guest. Appellant argues that ABC therefore acted with actual malice by broadcasting Peterson’s statement alleging Chafoulias’s knowledge of the penetration.

David Page, the ABC producer who worked on “The VIP Floor,” submitted an affidavit expressing his belief that “anyone hearing [D.W.] describe her assailant violently thrusting his hand down her nylons would have to have understood where that hand ended up.” ABC investigated the allegation and concluded that appellant’s knowledge that D.W. had been digitally penetrated was at least arguably 'true. Even if it were untrue that appellant had knowledge of the penetration, ABC did not clearly broadcast Peterson’s statement with knowledge that it was false or with reckless disregard of whether it was false or not.

Next, appellant challenges the sufficiency of ABC’s investigation, arguing that “The VIP Floor” was a “wholesale adoption” of Peterson’s version of events. Appellant cites to Stokes v. CBS Inc., 25 F.Supp 2d 992, 1004 (D.Minn.1998) for the proposition that a highly slanted perspective and a preconceived story line may demonstrate a reckless disregard of the truth and support a finding of actual malice. Appellant’s reliance on Stokes is misplaced. In Stokes, the court concluded that media defendants had acted with actual malice by taking a “source’s emotional assertions at face value, without checking their factual bases.” Id. Here, the record shows that ABC conducted a careful independent review of the sexual-harassment allegations, and did not simply adopt Peterson’s theory of the controversy.

Appellant is really challenging the style and presentation of ABC’s broadcast rather than its factual content. It is true that the broadcast’s selective, and arguably unfair, use of facts and sensational style made appellant look bad. But presentation of a slanted news story is not actual malice. See Speer, 828 F.2d at 478; Westmoreland v. CBS Inc., 596 F.Supp. 1170, 1173 (S.D.N.Y.1984) (choices made by news organizations in preparing and presenting reports, such as “the selection of interviewees, the framing of questions and the handling of witnesses” are insufficient basis for establishing actual malice even when “designed to confirm a hostile premise rather than to find the truth”).

Appellant next argues that ABC recklessly failed to investigate the veracity of its main source, Peterson. See St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326 (“recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of [the] reports”). Appellant argues that Peterson’s credibility is “lacking across the board,” given her dubious legal strategy of media manipulation, and that ABC’s decision to trust her constitutes actual malice. Appellant cites to newspaper articles relating the breakup of Peterson’s law firm and Peterson’s professional misconduct sanctions as evidence that Peterson’s past is cluttered with “red flags” that should have alerted ABC to Peterson’s unreliability.

But mere failure to investigate is not evidence of actual malice, and “[m]ere errors in judgment are not sufficient to constitute actual malice.” Valento v. Ulrich, 402 N.W.2d 809, 812 (Minn.App.1987) (quotation omitted). Nor are details about Peterson’s professional travails or generalizations about her litigation strategy germane to a determination of her credibility. Even assuming that ABC had some reason to doubt Peterson’s veracity, ABC conducted an investigation to corroborate her charges. By the time of the broadcast, ABC had an independent basis to believe that Peterson’s statements about appellant were true. That ABC came to the same conclusion as Peterson about appellant’s knowledge of the harassment and abuse does not prove that ABC recklessly adopted Peterson’s version of events; it demonstrates that ABC investigated the charges and satisfied itself that the allegations were substantially based in fact. See Tavoulareas v. Piro, 817 F.2d 762, 795-96 (D.C.Cir.1987) (“An adversarial stance is certainly not indicative of actual malice under the circumstances where, as here, the reporter conducted a detailed investigation and wrote a story that is substantially true.” (citation omitted)).

Appellant argues that statements made by reporter Brian Ross during “The VIP Floor” stating that appellant used his “influence” to effect a police “cover-up” of the sexual-harassment allegations are provocative, inflammatory, and evidence of ABC’s actual malice. The words “influence” and “cover-up” are not alleged as defamatory in appellant’s original complaint. On January 13, 2000, the district court denied appellant’s motion to amend his complaint to include a defamation claim for defamation based on the “cover-up” and “influence” statements. “Influence” and “coverup” cannot therefore be used to prove ABC’s actual malice. See Benson v. N.W. Airlines, Inc., 561 N.W.2d 530, 538 (Minn.App.1997) (allegedly defamatory statements not contained in plaintiffs complaint beyond scope of plaintiffs claim), review denied (Minn. June 11, 1997).

Finally, appellant argues that the statement’s inherent improbability is evidence that ABC acted with actual malice. We reject this argument as to ABC for the same reason we rejected it as to Peterson.

ABC’s broadcast of Peterson’s statement does not constitute “evidence of an intent to avoid the truth.” Harte-Hanks Communications, Inc., 491 U.S. at 693, 109 S.Ct. at 2698. The district court properly granted ABC summary judgment on the issue of actual malice.

DECISION

The district court correctly determined that appellant is a limited purpose public figure and that he failed to present clear and convincing evidence that respondents acted with actual malice. The district court therefore did not err in granting summary judgment in favor of respondents. Because we affirm the decision in respondents’ favor, we do not reach the claims raised by notice of review.

Affirmed.

      . Because we affirm the grant of summary judgment in ABC's favor, we do not address ABC's claim, raised by notice of review, that "The VIP Floor” was privileged as a fair and accurate report or a fair abridgement of the federal harassment lawsuits. See Moreno, 610 N.W.2d at 332 (the media generally have a qualified privilege when making a fair and accurate report of public records). We note, however, that "The VIP Floor” would not likely enjoy the privilege, because it is "edited in such a manner as to misrepresent the proceeding and become misleading.” Id. at 332 (citing Restatement (Second) of Torts § 611, cmt. f). "The VIP Floor” is a montage of statements by parties to the harassment lawsuit edited to create a factually accurate but rhetorically and breathlessly inflammatory narrative. The report gives the erroneous impression that appellant knew that all five of his ex-employees were raped, when in fact appellant knew- of only one alleged rape. More egregiously, the report never mentions D.W.’s acknowledgement, videotaped but not broadcast by ABC, that an allegation she made in the federal suit was untrue. See Restatement (Second) of Torts § 611, cmt. f. (privilege is lost if the report fails to mention the discovery of discreditable testimony in a judicial proceeding). Nothing about the segment gives the impression of fair, objective, or balanced reporting. But bad journalism is not the same as reckless disregard of the truth.


text:
    STATE of Minnesota, Respondent, v. Susannah Jane MELLETT, Appellant.
    No. C4-01-1036.
    Court of Appeals of Minnesota.
    April 30, 2002.

      Mike Hatch, Attorney General, Jay M. Heffern, Minneapolis City Attorney, Lee C. Wolf, Assistant City Attorney, Minneapolis, for respondent.

      Jeffrey S. Sheridan, Strandemo & Sheridan, Eagan, for appellant.
    Considered and decided by ANDERSON, Presiding Judge, HARTEN, Judge, and STONEBURNER, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant was arrested for and charged with first-degree driving while impaired (Minn.Stat. §§ 169A.20, . subd. 1(1), 169A.25, subd. 1 (2000)) and first-degree refusal to submit to chemical testing (Minn.Stat. §§ 169A.20, subd. 2, 169A.25, subd. 1 (2000)) .

A jury found appellant not guilty on the driving-while-impaired (DWI) charge, but found her guilty of the refusal-to-submit charge.

Appellant argues that: (1) Minn.Stat. § 169A.20, subd. 2, is unconstitutional; (2) the district court incorrectly instructed the jury as to the refusal-to-submit charge; (3) the admission into evidence of her refusal to perform field sobriety tests was error; and (4) the district court erred by using her prior license revocations as charge enhancements in this case because her constitutional rights were violated during those prior license revocations. Because we conclude that the district court did not commit error, we affirm.

FACTS

On February 18, 2001, Minneapolis police officer Joel Dittman observed a car traveling the wrong way on a one-way street. The car, driven by appellant Su-sannah Jane Mellett, was stopped by the officer. The officer suspected that appellant was under the influence of alcohol. The officer asked appellant to leave the vehicle and perform field sobriety tests. Appellant refused to perform any tests and also refused to take a preliminary-breath test. The officer arrested appellant and took her to the chemical-testing unit in downtown Minneapolis. Appellant indicated that she wanted to contact an attorney and then tried to contact an attorney for approximately 30 minutes. Appellant never reached an attorney and refused to take a breath test or provide a blood or urine sample.

Because appellant’s driving privileges had been revoked twice within the preceding ten years, she was charged with first-degree DWI and first-degree refusal-to-submit to chemical testing (hereinafter “refusal-to-submit charge”).

Appellant moved to suppress her statement to the officer in which she refused to perform field sobriety testing. At trial, the district court allowed the state to present evidence of appellant’s refusal to perform field sobriety tests. Appellant submitted a proposed jury instruction regarding the refusal-to-submit charge. The district court declined to give appellant’s instruction, and gave CRIMJIG 29.28, which is the form jury instruction for the refusal-to-submit charge.

The jury found appellant guilty of the refusal-to-submit charge and not guilty of the other charges. Appellant’s sentence was enhanced due to previous revocations, and appellant’s sentence was stayed pending this appeal.

ISSUES

I.Did the district court err by concluding that Minn.Stat. § 169A.20, subd. 2 (2000) is constitutional?

II.Did the district court abuse its discretion when it refused to give appellant’s proposed jury instruction, but instead gave CRIMJIG 29.28?

III. Did the district court abuse its discretion when it admitted evidence of appellant’s refusal to perform field sobriety tests?

IV. Did the district court err by finding that appellant’s prior license revocations could be used to enhance appellant’s refusal-to-submit charge to a gross misdemeanor?

ANALYSIS

I.

Appellant claims that Minn.Stat. § 169A.20, subd. 2 (2000), the refusal statute, violates her substantive-due-process rights, and is, therefore, unconstitutional. Appellant’s substantive-due-process claim depends on two alleged violations of appellant’s constitutional rights: (1) a violation of appellant’s right to privacy; and (2) a violation of appellant’s Fifth Amendment right against self-incrimination.

“Evaluating a statute’s constitutionality is a question of law.” Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999). Accordingly, this court “is not bound by the lower court’s conclusions.” In re Blilie, 494 N.W.2d 877, 881 (Minn.1993) (quoting Sherek v. Indep. Sch. Dist. No. 699, 449 N.W.2d 434, 436 (Minn.1990)).

Minn.Stat. § 169A.20, subd. 2, states:

It is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine under section 169A.52 (test refusal or failure; revocation of license).

Both the United States and Minnesota constitutions provide substantive-due-process protections against arbitrary and capricious state action. U.S. Const. amend. XIV; State v. Mitchell, 577 N.W.2d 481, 491 (Minn.1998).

But the United States Supreme Court has stated that if a claim is covered by a specific constitutional provision, that claim must be analyzed according to the standards established by the specific provision, and not as a possible violation of the claimant’s substantive-due-process rights. County of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S.Ct. 1708, 1714, 140 L.Ed.2d 1043 (1998); Dokman v. County of Hennepin, 637 N.W.2d 286, 295 (Minn.App.2001) (holding that, because a claim could be addressed under Fourth Amendment, the court did not need to address party’s due process claim).

A. Fifth Amendment

The Minnesota Supreme Court has already addressed the constitutionality of the refusal statute and has found that the statute does not violate a defendant’s right against self-incrimination, guaranteed by the Fifth Amendment of the United States Constitution and article I, section 7, of the Minnesota Constitution. Therefore, appellant’s substantive-due-process claim is without merit because the refusal statute passes constitutional muster under a Fifth Amendment analysis. See McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 856 (Minn.1991). But in the interests of justice, we also address appellant’s right-to-privaey and Fourth Amendment challenges to the refusal statute. See Minn. R. Civ. P. 103.04.

B. Right to Privacy

There is a right to privacy under the Minnesota constitution. See State v. Gray, 413 N.W.2d 107, 111 (Minn.1987). “The right begins with protecting the integrity of one’s own body and includes the right not to have it altered or invaded without consent.” Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn.1988). The right to privacy, though, is not absolute. Minnesota State Bd. of Health v. City of Brainerd, 308 Minn. 24, 36, 241 N.W.2d 624, 631 (1976) (holding that “[wjhether one’s right to bodily integrity is designated a right of personal privacy or not, though, does not alter [the] conclusion that the right, like other constitutional rights, is not absolute”). ■ “When there is an allegation of interference by the state with a protected right of privacy,” we must, “balance the interest in the privacy against the state’s need to intrude on that privacy.” LaChapelle v. Mitten, 607 N.W.2d 151, 164 (Minn.App.2000), review denied (Minn. May 16, 2000).

Here, because the legislature has a compelling state interest in protecting state residents from drunk drivers, and an important part of the implementation of that interest is the testing of those whom officers have probable cause to believe have been drinking and are driving while impaired, that balancing test favors intrusion by the state on privacy rights held by appellant. See South Dakota v. Neville, 459 U.S. 553, 558-559, 103 S.Ct. 916, 919-920, 74 L.Ed.2d 748 (1983) (stating that the United States Supreme Court has long recognized the compelling state interest in highway safety); State v. Hulst, 510 N.W.2d 262, 263 (Minn.App.1994) (recognizing necessity of probable-cause determination by officer in refusal-to-submit context).

This court has recognized that other compelling state interests may justify an intrusion into the right to privacy. See LaChapelle, 607 N.W.2d at 164 (holding that state’s compelling interest in protecting children justifies intrusion against familial right to privacy); Humenansky v. Minnesota Bd. of Med. Exam’rs, 525 N.W.2d 559, 567-68 (Minn.App.1994) (holding that right to privacy was not violated by statute that allowed physician to be required to submit to mental and physical examinations), review denied (Minn. Feb. 14, 1995). In this case, a compelling state interest is involved, and appellant’s right to privacy, to whatever degree it exists here, is justifiably subject to intrusion.

C. Fourth Amendment

At oral argument, appellant asserted that Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), supports her claim that criminalizing the refusal to submit to chemical testing violates the Fourth Amendment. Appellant correctly argues that Schmerber allows for the withdrawal of blood without a warrant from a suspected drunk driver, if the withdrawal is conducted in a reasonable manner, for example, as ordered by a physician, because of the possible dissipation of alcohol from the suspect’s system. Id. at 770-72, 86 S.Ct. at 1835-36.

While appellant concedes that the state has the power to take a blood sample, by force if need be, appellant also argues that because the state has this power, all other means of coercion available to the state to require submission to chemical testing are foreclosed. But appellant cites no direct authority for this conclusion, and the presence of one constitutional remedy to enforce the driving-while-intoxicated statutes cannot prevent legislative enactment of other procedures. See Davis v. Comm’r of Pub. Safety, 517 N.W.2d 901, 904 (Minn.1994) (concluding that the ability of the state to take a blood sample by force does not answer question of what process is due if suspect refuses to submit to testing), superseded by statute as recognized in Hamilton, 600 N.W.2d at 722. “It is not for this court ‘to question the wisdom * * * of a police regulation.’ ” McLeod County Bd. of Comm’rs v. State, Dep’t of Nat’l Res., 549 N.W.2d 630, 634 (Minn.App.1996) (quoting Lee v. Delmont, 228 Minn. 101, 108, 36 N.W.2d 530, 536 (1949)) (ellipsis in original), review denied (Minn. Aug. 20, 1996). Therefore, we defer to the legislature’s judgment and hold that the refusal statute does not violate appellant’s Fourth Amendment rights.

II.

“The refusal to give a requested jury instruction lies within the discretion of the trial court and no error results if no abuse of discretion is shown.” State v. Blasus, 445 N.W.2d 535, 542 (Minn.1989) (citation omitted).

Appellant challenges the district court’s decision to give CRIMJIG 29.28 (formerly CRIMJIG 29.17.02). Appellant argues that CRIMJIG 29.28 misstates the elements of Minn.Stat. § 169A.20, subd. 2, and that the district court should have given appellant’s proposed jury instruction, instead of CRIMJIG 29.28.

First, we note that appellant’s requested jury instruction addresses several legal issues that would be inappropriate to submit to a jury for consideration. For example, appellant’s requested jury instruction addresses the issue of right to counsel, and whether that right was fully vindicated by the officer in this case. But purely legal issues, such as whether the right to counsel was vindicated, are for the district court, and not for the jury, to decide. Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 501 (Minn.App.1992) (whether driver’s right to counsel was vindicated is a question of law for the district court to decide and for this court to review de novo).

Furthermore, this court has addressed this particular jury instruction before in State v. Olmscheid, 492 N.W.2d 263 (Minn.App.1992), and Olmscheid supports the conclusion that CRIMJIG 29.28 was the proper instruction to be given in this case.

In Olmscheid, this court concluded that the refusal statute now codified at § 169A.20, subd. 2, incorporates some of the civil implied-consent statute via the language “under section [169A.52].” Id. at 266 (recently renumbered statute in brackets). But this court also concluded that the inclusion of such language does not require that all of the elements of the related civil violation be proven beyond a reasonable doubt. Id. Therefore, the district court did not violate Olmscheid’s due process rights when it did not instruct the jury on all of the elements of the civil implied-consent statute. Id.

Appellant argues that the state did not prove several elements beyond a reasonable doubt, and that such lack of proof violated her due process rights. But as Olmscheid states, “we must follow the general rule that the definition of a criminal offense is within the province of the legislature.” Id. (citation omitted). The legislature has not acted to substantively amend the refusal statute since the Olm-scheid decision. Therefore the district court did not abuse its discretion by giving CRIMJIG 29.28.

III.

We largely defer to a district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). The admissibility of the refusal to perform field sobriety tests into evidence is an issue not yet addressed by Minnesota appellate courts.

Other states, on various grounds, allow into evidence a refusal to perform field sobriety tests. See People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906, 708 N.E.2d 979, 982 (1999); Farmer v. Commonwealth, 12 Va.App. 337, 404 S.E.2d 371, 373 (1991); City of Seattle v. Stalsbroten, 138 Wash.2d 227, 978 P.2d 1059, 1065 (1999); State v. Mallick, 210 Wis.2d 427, 565 N.W.2d 245, 248 (1997). It is useful to look at each of these cases.

Berg, a recent New York case, determined that if a refusal to perform field sobriety tests is not the product of custodial interrogation, the refusal does not need to be preceded by Miranda warnings to be admissible. See Berg, 685 N.Y.S.2d 906, 708 N.E.2d at 982.

Farmer and Mallick, on the other hand, analyze the refusal to perform field sobriety tests in a testimonial versus non-testimonial context. Farmer analogized the refusal to perform field sobriety tests to a refusal to take a blood test. Farmer, 404 S.E.2d at 373. The Farmer court held that there is no reason to distinguish between the performance of field sobriety tests, which is non-testimonial in nature, and the act of refusing to submit to chemical testing. Id. Therefore, Farmer held that a refusal to perform field sobriety tests is non-testimonial in nature, and, consequently, the Fifth Amendment allows the refusal into evidence. Id. Malliek, like Farmer, addressed the refusal to perform field sobriety tests from a testimonial perspective. Relying on Farmer, the Malliek court also determined that the refusal was non-testimonial in nature. Mallick, 565 N.W.2d at 246.

The Stalsbroten court noted that the majority of courts have concluded that the admission into evidence of a refusal to perform field sobriety tests does not violate the privilege against self-incrimination. But the Stalsbroten court held that a refusal to perform field sobriety tests is admissible for two separate reasons: (1) the refusal is non-testimonial evidence, Stalsbroten, 978 P.2d at 1063; and (2) the refusal was not impermissibly compelled in violation of the defendant’s Fifth Amendment right. Id. at 1064.

Therefore, Virginia and Wisconsin courts allow the refusal to perform field sobriety tests into evidence because it is non-testimonial, Washington courts allow the refusal because it is non-testimonial and not impermissibly compelled, and New York courts allow the refusal into evidence because the questioning leading to the refusal is not custodial interrogation.

Characterizing the refusal to perform field sobriety tests as testimonial or non-testimonial is not easily accomplished and is subject to much debate. See e.g., Stalsbroten, 978 P.2d at 1065-70 (Johnson, J., dissenting) (arguing that the refusal “was admittedly offered solely for its testimonial value — the implied assertion of belief that Stalsbroten knew he was drunk. * * * Thus, indisputably, the incriminating value of the evidence here stemmed in whole from its testimonial component.”).

But we think it is unnecessary to reach this question because the better analysis is that appellant’s refusal to perform field sobriety tests here did not occur during custodial interrogation, and is therefore admissible under our custodial-interrogation jurisprudence.

In Miranda, the United States Supreme Court held that under the Fifth Amendment, a criminal defendant has a right against self-incrimination and is entitled to be informed of that right. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The right to a Miranda warning attaches only during custodial interrogation. Id.

The determination of whether a suspect is in custody is an objective inquiry. The district court must decide whether a reasonable person in the suspect’s situation would have understood that she was in custody. State v. Hince, 540 N.W.2d 820, 823 (Minn.1995).

If a suspect is not under arrest, a district court must consider all of the surrounding circumstances and assess whether a reasonable person in the suspect’s position would have believed she was in custody to the degree associated with arrest. State v. Champion, 533 N.W.2d 40, 43 (Minn.1995). We independently review the district court’s determination regarding custody and the necessity of a Miranda warning. Hince, 540 N.W.2d at 823.

At trial, the district court denied appellant’s motion to exclude her refusal to perform field sobriety tests, but did so without making a specific finding as to whether appellant was in custody when she refused to perform those tests.

The testimony at the evidentiary hearing and at trial indicates that the refusal by appellant came before arrest and without custodial interrogation. The officer asked appellant to leave her vehicle based on his suspicions that she was intoxicated. After getting out of her vehicle, appellant refused to perform any type of field sobriety test. Only then did an arrest occur.

Before appellant’s refusal to perform field sobriety tests, a reasonable person would not have felt that she was in custody to the degree associated with formal arrest. See Champion, 533 N.W.2d at 43. There is no suggestion in the record that the officer used anything but a single request to induce appellant to get out of her vehicle, and there was no display of force. While it is true that a uniformed officer, using a siren and emergency lights, conducted this traffic stop, more is required to indicate custodial interrogation. See, e.g., State v. Moorman, 505 N.W.2d 593, 599 (Minn.1993) (person under arrest and therefore in custody when handcuffed); State v. Olson, 634 N.W.2d 224, 229 (Minn.App.2001) (concluding that an officer telling suspect he was “under arrest” indicated custody), review denied (Minn. Dec. 11, 2001).

Since there is no evidence that appellant was in custody, her refusal to perform field sobriety tests was not the product of custodial interrogation. Consequently, Miranda warnings were not a prerequisite to the use of the refusal statement as evidence at appellant’s trial. Our conclusion is bolstered by appellant’s counsel’s pretrial comments, where counsel stated, “I never suggested, nor do I suggest now, that she was entitled to a Miranda warn-mg[.]”

We leave for another day the resolution of whether refusal to perform field sobriety tests is testimonial and the issue of such a refusal arising in the context of custodial interrogation by the police. It is sufficient for our purposes in the present case to hold that because appellant was not in custody, Miranda rights did not attach, and the district court did not abuse its discretion by admitting appellant’s refusal to perform field sobriety tests into evidence.

IV.

Appellant challenges the use of her prior license revocations to enhance the refusal-to-submit charge. Because appellant was charged with first-degree DWI and first-degree refusal-to-submit, the state had the burden of proving two aggravating factors pursuant to Minn.Stat. § 169A.25, subd. 1. See Minn.Stat. § 169A.03, subd. 3 (defining aggravating factors); see also CRIMJIG 29.22 (sample jury instruction regarding one aggravating factor). Respondent produced certified copies of appellant’s two license revocations from May 1998 and October 1997, and these copies were submitted into evidence.

Respondent also produced a petition to enter a guilty plea from the October 1997 incident. The petition was signed by appellant and indicates appellant was represented by an attorney and had discussed her constitutional rights with that attorney. Furthermore, the petition specifically mentions that if appellant was arrested in the future for similar charges, she could be sentenced to a gross misdemeanor based on the plea. Such a petition is prima facie evidence that the plea was not obtained in violation of appellant’s constitutional rights. State v. Fussy, 467 N.W.2d 601, 605 (Minn.1991). But no such petition exists in the record for the May 1998 license revocation.

Appellant claims that her prior license revocations may not be used because she was not given a full opportunity to consult with an attorney. Under the Minnesota Constitution, an individual has a limited right, upon request, to obtain legal advice before deciding whether to submit to chemical testing, provided the consultation does not unreasonably delay administration of the test. Minn.Stat. § 169A.51, subd. 2(4) (2000); Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn.1991). But it is well settled that there is no Sixth Amendment right to consult with counsel before deciding whether to consent to chemical testing. Friedman, 473 N.W.2d at 840 (Coyne, J., dissenting) (stating that Minnesota Supreme Court has expressly rejected the argument that a driver has a right under Sixth Amendment to consult with attorney before chemical testing). Therefore, appellant’s right-to-counsel argument must be based on the statutorily granted right and not on the Sixth Amendment right to counsel.

The issue of using prior license revocations for charge-enhancement purposes was recently addressed in State v. Dumas, 587 N.W.2d 299 (Minn.App.1998), review denied (Minn. Feb. 24, 1999). The Dumas court held that Minn.Stat. § 169.121, subd. 3(e)(2) (1996) was not unconstitutional. Id. at 304-05. The Dumas court also held that State v. Nordstrom, 331 N.W.2d 901 (Minn.1983), prohibits “the use of a prior unconstitutionally obtained conviction to enhance a subsequent charge.” Dumas, 587 N.W.2d at 302 (second emphasis added).

The Nordstrom court also concluded that once a defendant properly raises the issue of the constitutionality of a prior conviction, the state then has the burden of proving that the conviction was obtained consistent with constitutional requirements. Nordstrom, 331 N.W.2d at 905.

To properly raise the constitutionality of a prior license revocation and shift the burden of proof to the state, an appellant must (1) promptly notify the state that her constitutional rights were violated during a prior license revocation; and (2) “produce evidence in support of that contention with respect to each challenged [revocation].” Fussy, 467 N.W.2d at 603 (citing State v. Goff, 418 N.W.2d 169, 172 (Minn.1988)). The Dumas court recognized that ordinarily a sworn affidavit, stating that the defendant was not represented by counsel and did not validly waive her right to counsel, will satisfy an appellant’s burden of production. Id.

Here, appellant provided an affidavit stating that she did not have a full opportunity to consult with an attorney during her prior license revocations.

[A]lthough the defendant does not have the ultimate burden of proof, the defendant is obligated to come forward with some evidence indicating that the defendant was deprived of the right to counsel before the state must assume its burden of proof.

Fussy, 467 N.W.2d at 603 (citation omitted). The statutorily granted right to counsel in the implied consent context is, by its own definition,' limited. Appellant has only claimed the lack of a full opportunity to consult with an attorney and has provided no other evidence. Given these two facts, we hold that appellant has not met her obligation here, and therefore has not shifted the burden of proof to the state.

Furthermore, appellant’s cursory claims in her affidavit regarding other constitutional violations are also not supported by any evidence. Therefore, we hold that those claims must also fail. See id.

DECISION

The district court correctly held that Minn.Stat. § 169A.20, subd. 2, the refusal statute, is constitutional, and did not abuse its discretion by giving CRIMJIG 29.28 as the jury instruction on the elements of the refusal-to-submit charge. The district court properly admitted appellant’s refusal to perform field sobriety tests at the scene into evidence. Appellant did not produce any evidence that would shift the burden to the state to prove that her prior license revocations were constitutionally obtained.

Affirmed.

      . Minn.Stat. § 169A.20, subd. 2, was previously found at Minn.Stat. § 169.121, subd. la. The legislature recently recodified chapter 169 in 2000, but the statute, in substance, remains unchanged. See Minn. Laws ch. 478, art. 1 § 7.

      . At oral argument, appellant’s counsel claimed that this alleged right to be free from bodily invasion arises from the Fourth Amendment right to be free from unwarranted searches and seizures. This argument is without merit. The Supreme Court has explicitly rejected Fourth Amendment challenges to chemical testing in the driving-while-intoxicated context. See Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966). Therefore, we analyze appellant’s arguments pursuant to the right to privacy that arises from article I, §§ 1, 2 & 10 of the Minnesota Constitution, see State v. Davidson, 481 N.W.2d 51, 58 (Minn.1992) (stating that right to privacy under Minnesota Constitution is broader than comparable federal constitutional provision), and separately analyze appellant’s Fourth Amendment argument.

      . The supreme court stated:
      We therefore conclude that in this particular context — where an individual is requested to submit to blood alcohol content testing and potentially faces criminal penalties for refusing to do so, and where that individual is provided a reasonable opportunity to consult an attorney before deciding whether to submit as requested' — neither the state nor the federal privilege against compelled self-incrimination is violated.

        McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 856 (Minn.1991).

      . An authority on moving-traffic violations has stated:
      Field sobriety tests (standing on one leg, finger to nose, walking heel-to-toe on a straight line, HGN, etc.) are very important pieces of evidence for the state in a DWI prosecution. An issue not yet decided by the Minnesota courts is the admissibility of a defendant's refusal to perform such tests. However, in State v. Taylor [648 So.2d 701 (Fla.1995)], the Florida Supreme Court held a driver's refusal to perform such tests was admissible in his criminal trial for DWI. The court held that such tests are not compelled; consequently, they are not in violation of the driver's fifth amendment rights. It further held that refusal to perform such tests can be an indication of a consciousness of guilt. Compare * * * State v. Whitehead [458 N.W.2d 145 (Minn.App.1990), review denied (Minn. Sept. 14, 1990) ], and Pennsylvania v. Muniz [496 U.S. 582, 110 S.Ct. 2638 (1990) ], which held that interrogation questions not related to informing a driver of his or her implied consent rights, but asked during that process, are not admissible unless they are preceded by a Miranda warning.
      2 Martin J. Costello et al., Minnesota Misdemeanors and Moving Traffic Violations 73 (3d ed.1999) (first emphasis added) (footnotes omitted).

      . Furthermore, the Mallick court also relied on Wisconsin precedent (State v. Babbitt, 188 Wis.2d 349, 525 N.W.2d 102 (1994)) to reach the same conclusion as the Farmer court: that a refusal is a non-testimonial communication and therefore is not barred by the Fifth Amendment. Mallick, 565 N.W.2d at 247-48.

      . Stalsbroten, 978 P.2d at 1065 (citing State v. Taylor, 648 So.2d 701 (Fla.1995); State v. Washington, 498 So.2d 136 (La.Ct.App.1986); State v. Wright, 116 N.M. 832, 867 P.2d 1214 (1993); Commonwealth v. McConnell, 404 Pa.Super. 439, 591 A.2d 288 (1991); State v. Hoenscheid, 374 N.W.2d 128 (S.D.1985); Dawkins v. State, 822 S.W.2d 668 (Tex.Ct.App.1991)).

      . Appellant’s affidavit in support of her memorandum in opposition of enhancement states in relevant part:
      I do not believe I had the full opportunity of consulting with an attorney I was entitled to when I was asked to submit to testing in the prior events that led to the implied consent revocations that are being used to enhance the charges in this matter. I also believe my implied consent revocations were obtained in violation of my constitutional rights because they are the product of a violation of my right to be free from unwarranted and unreasonable searches and seizures, my right against self-incrimination, and I was denied a fair chance to get independent testing.


author: NEUMANN, Justice.

text:
    2002 ND 67
    Richard Henry MARSCHNER, Plaintiff and Appellee, v. Carol MARSCHNER, Defendant and Appellant.
    No. 20010220.
    Supreme Court of North Dakota.
    April 16, 2002.
    Kelly A. Dillon, Minot, for defendant and appellant.
    Michael S. Mclntee of Mclntee Law Firm, Towner, for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Carol Marschner appeals from the trial court’s judgment retaining the original distribution of marital assets, and reserving jurisdiction over the issue of spousal support until after the ten-year period for the payment of the property distribution has been completed. We affirm.

I

[¶ 2] Carol Marschner and Richard Marschner married in 1962. Carol Mar-schner spent her married life on the farm where she fulfilled the duties of a wife and mother, and she assisted in various aspects of the farming operations. Both parties are in their sixties. Carol Marschner has some health problems, but her primary obstacles in obtaining meaningful employment are limited skills needed in the job market. Richard Marschner also has some health problems, but none that prevent him from working on the farm.

[¶ 3] The parties’ divorce was tried on September 8, 1999. The trial court issued its opinion on January 7, 2000. The court awarded Richard Marschner the farm operation and equipment valued at $168,779. The court awarded Carol Marschner her inheritance of $83,933, and a cash award of $50,000. The trial court did not award spousal support. Carol Marschner moved for a new trial alleging certain errors and, subsequently, appealed the trial court’s new findings. This Court reversed and remanded for reconsideration of the spousal support issue. Marschner v. Marschner, 2001 ND 4, 621 N.W.2d 339. The hearing on remand was held April 19, 2001. The trial court concluded there was no additional evidence presented requiring reconsideration of the distribution of the parties’ assets. The trial court reserved consideration of a spousal support award and retained jurisdiction over the issue until the ten-year property distribution has been completed. Carol Marschner appeals, arguing the trial court erred in failing to award immediate spousal support or redistribute the marital estate.

II

[¶ 4] The trial court’s determinations regarding valuation and division of marital property are findings of fact and will not be reversed unless they are clearly erroneous. Dufner v. Dufner, 640 N.W.2d 694, 2002 ND 47, ¶ 8. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, the reviewing court is left with a definite and firm conviction a mistake has been made. Zeller v. Zeller, 2002 ND 35, ¶ 5, 640 N.W.2d 53. The burden is on the complaining party to demonstrate on appeal that a trial court’s finding of fact is clearly erroneous. Barth v. Barth, 1999 ND 91, ¶ 7, 593 N.W.2d 359.

[¶ 5] This Court initially considered this case in Marschner v. Marschner, 2001 ND 4, 621 N.W.2d 339. We determined the trial court’s original finding denying spousal support to Carol Marschner was induced by an erroneous view of the law. Id. at ¶ 23. We reversed the judgment and remanded, stating:

We remand to the trial court to further consider the matter of spousal support. The trial court may further consider an award of spousal support under the same or similar property distribution, it may order the sale of the farm and divide the proceeds, or it may consider some form of delayed spousal support. Although we believe the property distribution was an equitable distribution as ordered by the trial court, because issues of property division and spousal support are intertwined, Fox v. Fox, 1999 ND 68, 592 N.W.2d 541, the trial court may, if necessary, revisit the property distribution on remand.

Id.

[¶ 6] On remand, the trial court reviewed the parties’ property and financial conditions. The trial court determined its initial property distribution was correct. The trial court concluded Richard Mar-schner did not have the financial means to make spousal support payments in addition to the monthly property distribution payment. In reserving its jurisdiction over this matter, the trial court stated:

Consequently, pursuant to the options as presented to the trial court by the North Dakota Supreme Court, the trial court shall reserve the issue of spousal support and continue its jurisdiction over it until after the ten-year period from date of judgment that was ordered for the payment of the property distribution. It appears to the trial court this would be the appropriate time to review the needs and abilities of both parties to award a reasonable amount of spousal support.

Ill

[¶ 7] Carol Marschner argues the trial court clearly erred in failing to award immediate spousal support. She claims the trial court failed to give sufficient weight to evidence pertaining to her health and financial needs. She asserts that because of her debilitating heart condition and lack of skills it is unlikely and unreasonable to expect that she will be able to obtain employment.

[¶ 8] At trial and on remand, Carol Marschner argued she was suffering from medical problems, and claimed her medical conditions prevent her from being employed. However, she did not submit any medical evidence to substantiate her claims of poor medical condition, nor did she provide the trial court with any evidence indicating she is unable to obtain employment. Based on the evidence presented, we conclude the trial court did not err in reserving its jurisdiction to grant delayed spousal support if necessary.

IV

[¶ 9] Carol Marschner argues the trial court erred in refusing to redistribute the marital property. She claims Richard Marschner failed to disclose an interest in three quarters of land his parents had gifted him, and argues under N.D.C.C. § 14-05-24 the trial court may redistribute property in a post-judgment proceeding when a party fails to disclose property.

[¶ 10] At the time of the original trial, Richard Marschner had a one-quarter remainder interest in a life estate. After the trial, the life estate terminated leaving three quarters of property, part of which contained a residence in Kongsberg, North Dakota. The trial court determined the value would not justify an adjustment to its earlier findings concerning the farm and property distribution. A trial court’s valuation of marital property depends on the evidence presented by the parties. Olson v. Olson, 2002 ND 30, ¶ 7, 639 N.W.2d 701. Carol Marschner presented no evidence regarding the value of Richard Marschner’s one-quarter interest in the property. The burden was on Carol Marschner to demonstrate the trial court erred in not determining the value of the property. See Barth v. Barth, 1999 ND 91, ¶ 7, 593 N.W.2d 359. In failing to produce any evidence regarding the value of Richard Marsehner’s interest, Carol Marschner failed to meet her burden of establishing the trial court’s findings of fact on valuations and division of marital property are clearly erroneous. See Grinaker v. Grinaker, 553 N.W.2d 204, 209 (N.D.1996).

V

[¶ 11] We affirm the judgment of the trial court retaining the original distribution of marital assets, and reserving jurisdiction over the issue of spousal support until after the payment of the property distribution has been completed.

[¶ 12] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.


author: VANDE WALLE, Chief Justice. SANDSTROM, Justice,

text:
    2002 ND 64
    Michael ISAAK, Petitioner and Appellee, v. David SPRYNCZYNATYK, Director, North Dakota Department of Transportation, Respondent and Appellant.
    No. 20010291.
    Supreme Court of North Dakota.
    April 16, 2002.

      Ronald A. Reichert, Reichert & Herauf, P.C., Dickinson, for petitioner and appel-lee.
    Reid A. Brady, Assistant Attorney General, Bismarck, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] The North Dakota Department of Transportation (“Department”) appealed from a district court judgment reversing an administrative hearing officer’s decision to suspend the driving privileges of Michael Isaak for 365 days and imposing, instead, a suspension of 91 days. We reverse and direct the district court to reinstate the suspension for 365 days.

[¶ 2] Isaak was stopped for speeding. He smelled of alcohol and was given field sobriety tests, which he failed. Isaak submitted to a blood test, which showed he had a blood-alcohol concentration of .16 by weight. He was arrested and charged with Driving Under the Influence (“DUI”).

[¶ 3] At the administrative hearing, a certified copy of Isaak’s North Dakota driving record was admitted into evidence. This record showed Isaak had been arrested for a similar offense in Arkansas in 1998, and as a result had Ms North Dakota driving license suspended. Considering Isaak’s prior violation, the administrative hearing officer issued a decision suspending Isaak’s driving privileges for 365 days, the suspension period for a second offense within five years under N.D.C.C. § 39-20-04.1(l)(b).

[¶ 4] Isaak appealed to the district court. As required by statute, Isaak submitted “specifications of error.” In the specifications of error, Isaak listed the following errors:

1. The destruction of notes by the arresting officer should have prevented the introduction of the field sobriety tests and consequently there would be no probable cause.
2. There was improper foundation for the introduction of the blood test results.
3. Any other issues to be determined following a review of the hearing transcript.

[¶ 5] Despite arguing at the administrative hearing there should be no penalty enhancement because the foundation for the first offense was improper, Isaak did not list the error in the specifications of error. Nevertheless, Isaak’s sole argument before the district court was there should be no penalty enhancement, because the foundation for the first offense was improper. The district court reversed the administrative hearing officer and imposed a suspension of 91 days, the suspension period for a single DUI within five years under N.D.C.C. § 39-20-04.1(l)(a).

I

[¶ 6] The Department asserts the 365-day administrative suspension should be reinstated because Isaak’s specifications of error failed to identify the sole issue Isaak raised before the district court. Isaak argues, however, his inclusion of the phrase “[a]ny other issues to be determined following a review of the hearing transcript” is sufficiently specific to satisfy the requirements of N.D.C.C. § 28-32-42(4). Although this issue was raised and argued by the Department in the appeal to the district court the district court did not address it. Both the Department and Is-aak are asking us to construe the applicable statute in a particular way, and construction of a statute is a question of law, fully reviewable by this Court. E.g., State v. Rambousek, 479 N.W.2d 832, 834 (N.D.1992).

[¶ 7] A party appealing from an administrative hearing officer’s decision now must comply with the specifications-of-error requirement of N.D.C.C. § 28-32-42(4). Before August 1, 2001, however, these requirements were included in N.D.C.C. § 28-32-15(4), which contained identical language as N.D.C.C. § 28-32-42(4). Isaak was arrested June 8, 2001. An administrative hearing was held July 18, 2001. Isaak appealed the administrative hearing officer’s decision to the district court August 16 2001, thus N.D.C.C. § 28-32^42(4) is the applicable statute. Section 28-32-42(4), N.D.C.C., provides:

An appeal shall be taken by serving a notice of appeal and specifications of error specifying the grounds on which the appeal is taken, upon the administrative agency concerned, upon the attorney general or an assistant attorney general, and upon all the parties to the proceeding before the administrative agency, and by filing the notice of appeal and specifications of error together with proof of service of the notice of appeal, and the undertaking required by this section, with the clerk of the district court to which the appeal is taken. In an appeal of an agency’s rulemaking action, only the administrative agency concerned, the attorney general, or an assistant attorney general, as well as the legislative council, need to be notified.

Isaak’s third specification of error, the only specification his issue on appeal could be included within, is “boilerplate” “so general [it] could apply to any administrative agency appeal.” Held v. North Dakota Workers Compensation Bureau, 540 N.W.2d 166, 171 (N.D.1995)(Sandstrom, J., concurring). See also Vetter v. North Dakota Workers Compensation Bureau, 554 N.W.2d 451, 453-54 (N.D.1996)(holding specifications of error in an appeal from an administrative hearing must be sufficiently specific to identify the particular issues asserted on appeal). Although the time for appeal in the matter is brief, Isaak argued the issue at the administrative hearing and was obviously aware of the issue. Isaak failed to satisfy the require-. ments of N.D.C.C. § 28-32-42(4).

II

[¶ 8] In any event, evidence of Is-aak’s prior violation was properly before the administrative hearing officer in the form of a certified copy of Isaak’s driving record and it was, therefore, appropriate for the administrative hearing officer to consider the prior violation when assigning a penalty for the current offense.

[¶ 9] Section 39-20-05(4), N.D.C.C., provides:

At a hearing under this section, the regularly kept records of the director may be introduced. Those records establish prima facie their contents without further foundation. For purposes of this chapter, the following are deemed regularly kept records of the director: any copy of a certified copy of an analytical report of a blood, urine, or saliva sample received by the director from the state toxicologist or a law enforcement officer, a certified copy of the checklist and test records received by the director from a certified breath test operator, and any copy of a certified copy of a certificate of the state toxicologist relating to approved methods, devices, operators, materials, and checklists used for testing for alcohol concentration received by the director from the state toxicologist, or the recorder, unless the board of county commissioners has designated a different official to maintain the certificate.

Section 39-20-05(4), N.D.C.C., does not list “driving record” as a record deemed to be a regularly kept record, but nothing in the statute suggests this list is an exhaustive compilation of regularly kept records. Further, N.D.C.C. § 39-06-22 provides:

The director shall file all accident reports and abstracts of court records of convictions received by the director under the laws of this state and in connection therewith maintain convenient records or make suitable notations in order that an individual record of each licensee showing the convictions of such licensee and the traffic accidents in which the licensee has been involved shall be readily ascertainable and available for the consideration of the director upon any application for renewal of license and at other suitable times.

Thus, the director has a statutory obligation to regularly keep driving records. Accordingly, Isaak’s driving record is a regularly kept record, and establishes pri-ma facie its contents.

[¶ 10] We review an administrative suspension of a driver’s license under N.D.C.C. ch. 28-32, the Administrative Agencies Practice Act. North Dakota Dep’t of Transp. v. DuPaul, 487 N.W.2d 593, 595 (N.D.1992). We affirm the Department’s decision unless we conclude:

1) the decision is not in accordance with the law; 2) the decision violates the constitutional rights of the appellant; 3) provisions of the Administrative Agencies Practice Act were not complied with in the proceedings before the agency; 4) the agency’s rules or procedures have not afforded the appellant a fair hearing; 5) the agency’s findings are not supported by a preponderance of the evidence; or 6) the conclusions of law and the agency’s decision are not supported by its findings of fact.

North Dakota Dep’t of Transp. v. DuPaul, 487 N.W.2d 593, 595(citation omitted); see also Houn v. North Dakota Dep’t of Transp., 2000 ND 131, ¶ 5, 613 N.W.2d 29.

[¶ 11] A certified copy of Isaak’s driving record was admitted into evidence before the administrative hearing officer. Isaak’s driving record showed a prior DUI violation for an offense committed in 1998. Isaak’s driving record further showed a notice of an opportunity for hearing was issued for the 1998 DUI violation and that, as a result of this first DUI, Isaak’s North Dakota driver’s license was suspended for 91 days.

[¶ 12] The DUI Isaak was most recently arrested for was, according to the record, his second DUI violation. As a result, the Department was obligated to suspend Isaak’s license for 365 days instead of 91 days under N.D.C.C. § 39-20-04.1(l)(providing different penalties for a single offense and for second offense within five years). If Isaak wished to escape this result he should have challenged the 1998 DUI violation and resulting suspension. By arguing the 1998 DUI violation should not now cause a penalty enhancement, Isaak is mounting a collateral challenge to the 1998 conviction. This he cannot do. State v. Larson, 419 N.W.2d 897, 898 (N.D.1988)(explaining “the proper time to challenge the validity of a driver’s license suspension is at a hearing on the suspension”).

Ill

[¶ 13] The judgment is reversed.

[¶ 14] CAROL RONNING KAPSNER, MARY MUEHLEN MARING and WILLIAM A. NEUMANN, JJ., concur.

SANDSTROM, Justice,

concurring specially.

[¶ 15] Because part I of the majority opinion is dispositive of the appeal, and because — as the majority holds in part I— the issue in part II was not properly raised on appeal, I would not reach the issue in part II. See N.D.C.C. § 28-82-42(4); Johnson v. Johnson, 2001 ND 109, ¶ 13, 627 N.W.2d 779 (we need not answer questions that are not necessary to the determination of an appeal); Vernon v. North Dakota Workers Comp. Bureau, 1999 ND 153, ¶ 27, 598 N.W.2d 139 (we decline to address issues not preserved for our review).

[¶ 16] Dale Sandstrom