This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-0303

State of Minnesota,

Respondent,

vs.

Michael James Berry,

Appellant.

Filed January 26, 2015

Affirmed in part, reversed in part, and remanded

Reilly, Judge

Ramsey County District Court

File No. 62SU-CR-12-3928

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Heather Monnens, Geck, Duea & Olson, PLLC, White Bear Lake, Minnesota (for 

respondent)

Brian P. Karalus, St. Paul, Minnesota (for appellant)

Considered and decided by Chutich, Presiding Judge; Reilly, Judge; and 

Toussaint, Judge.

*

 

 

*

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

Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N

REILLY, Judge

On appeal from his driving while impaired (DWI) convictions, appellant Michael 

James Berry challenges the district court’s denial of his motion to suppress evidence of 

the results of his breath test, arguing that the stop of his motorcycle was not supported by 

a reasonable, particularized suspicion of criminal activity on his part. Appellant also 

argues his statutory right to an additional chemical test was violated because he was not 

given an opportunity to exercise that right until more than three hours had passed since 

his arrest. We affirm the district court’s order denying appellant’s suppression motion, 

but reverse and remand to the district court with directions to vacate one of appellant’s 

DWI convictions under Minn. Stat. § 609.04 (2012).

FACTS

On August 22, 2012, at approximately 1:09 a.m., White Bear Lake police officer 

Jon Sanders heard loud noises and revving engines, coming from two motorcycles 

traveling northbound on White Bear Avenue. Officer Sanders confirmed that the 

violation came from these two motorcycles because there was no other traffic on the 

road. Officer Sanders stopped the motorcycles in the parking lot of a nearby sports bar

because the noise was in violation of a state statute and a city ordinance relating to 

muffler or motor vehicle noise, Minn. Stat. § 169.69 (2012), and White Bear Lake, Minn.

City Ordinance § 703.070 (2013). 

Officer Sanders approached the motorcycles and identified the driver of the 

Honda motorcycle as a “Mr. Gaetke,” and the driver of the Harley-Davidson motorcycle 
3

as appellant. Both men were asked which motorcycle was making the loud noise, and 

appellant admitted that the noise was coming from his “after-market motorcycle.” 

Officer Sanders immediately noticed that appellant’s breath smelled of alcohol and that 

his eyes were watery and bloodshot. Appellant admitted to consuming alcohol.

Based on the officer’s training and previous experience with intoxicated people, he 

believed that appellant was under the influence of alcohol and administered field sobriety 

testing and a preliminary breath test. Due to appellant’s conduct and performance on 

these tests, Officer Sanders believed that appellant was impaired and should not have 

been driving. At approximately 1:25 a.m., Officer Sanders arrested appellant and his 

friend for DWI and transported both to the White Bear Lake Police Department. 

Appellant was read the implied consent advisory at approximately 1:50 a.m. 

Appellant indicated that he wanted to speak with an attorney, and an officer gave him a 

telephone and directory at 1:52 a.m. At approximately 2:00 a.m., appellant advised the 

officer that he had spoken to his attorney and he consented to a breath test. Appellant 

provided a sample at approximately 2:10 a.m., which measured a .10 alcohol 

concentration. 

The state charged appellant with two gross misdemeanor counts of third-degree 

driving while intoxicated, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), (5), 

169A.26 (2012). Appellant filed pretrial motions seeking to suppress the evidence of his 

breath test on several grounds, including a McNeely challenge, and challenges to the stop 

of his motorcycle and whether his statutory right to an additional test was violated. A 

Rasmussen hearing was held on June 18, 2013, at which the police officer, the 
4

correctional officer, and appellant testified. In an August 9, 2013 order, the district court 

denied appellant’s suppression motions. 

Appellant thereafter waived his right to a jury trial and agreed to a stipulated facts 

trial pursuant to Minn. R. Crim. P. 26.01, subd. 4, previously known as a Lothenbach

proceeding.

1

The officer testified that he transported appellant and his friend to the Ramsey 

County Law Enforcement Center (LEC) in St. Paul and booked appellant into jail at 

approximately 3:30 a.m. The officer believed that appellant asked for an additional test 

in the squad car on the way to jail, and that he told jail staff that appellant was requesting 

an additional test as he was being booked. 

A correctional officer at the Ramsey County jail testified that he was on duty the 

morning that appellant was booked. The correctional officer confirmed that Officer 

Sanders informed him that appellant had requested an additional test. The correctional 

officer testified that when someone requests an additional test, his practice is to give them 

access to the phone as soon as he is done booking them. Appellant received a phone at

4:05 a.m., and the correctional officer dialed the number for an independent testing 

 

1

State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). In Lothenbach, the supreme court 

sanctioned a procedure whereby a defendant pleads not guilty, waives his right to a jury 

trial, and stipulates to the facts in the prosecutor’s case. Id. at 857-58. “This procedure 

allows a defendant to appeal a pretrial issue when the material facts are not 

disputed.” State v. Knoll, 739 N.W.2d 919, 921 (Minn. App. 2007).
5

company. The correctional officer testified that, according to his report, appellant was 

able to reach someone at the testing company. 

Appellant claimed that he asked for an additional test while he was still at the 

White Bear Lake Police Department, after he submitted to the breath test. Appellant

testified that his attorney had advised him to ask for an additional test. No second test 

was ever administered, however, and appellant did not explain why he did not obtain a 

second test.

 The district court filed an order on December 24, 2013, making findings and 

conclusions, and adjudicating appellant guilty of both counts. According to the warrant 

of commitment and the district court register of actions, appellant was convicted of both 

third-degree DWI counts and was given concurrent sentences on each conviction. This 

appeal follows.

D E C I S I O N

I.

When reviewing a district court’s decision on a motion to suppress evidence, we 

independently review the facts and determine whether, as a matter of law, the district 

court erred by not suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 

1999).

An officer conducting an investigatory motor vehicle stop must be able to 

articulate a particular, objective basis for suspecting the person stopped of criminal 

activity. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). The officer’s suspicion 

must be more than a hunch, but even an insignificant traffic or equipment violation can 
6

be sufficient to establish an objective basis for a stop. Id.; see also State v. Johnson, 444 

N.W.2d 824, 825-26 (Minn. 1989). Minnesota requires all vehicles to be “equipped with 

a muffler in good working order,” and this requirement is adopted by a White Bear Lake 

City ordinance. See Minn. Stat. § 169.69 (2012); White Bear Lake City Ordinance, 

Minn. § 703.070, subd. 3.B. An officer’s suspicion that a muffler is faulty has been held 

to be a valid reason to initiate a stop. See, e.g., State v. Beardemphl, 674 N.W.2d 430, 

432 (Minn. App. 2004) (upholding search initiated due to loud muffler); State v. Pierce, 

347 N.W.2d 829, 833 (Minn. App. 1984) (affirming conviction stemming from stop 

prompted by noisy muffler). 

Appellant argues that the stop of his motorcycle violated the Fourth Amendment 

because the officer lacked reasonable suspicion to conduct a stop when it was clear that 

he did not know if the loud exhaust was coming from appellant’s motorcycle or from the 

other motorcycle. Appellant asserts that without an individualized suspicion of criminal 

activity on appellant’s part, the officer had “nothing more than a gambler’s hunch.” 

As support for his position, appellant cites Ascher v. Comm’r of Pub. Safety, a

supreme court case declaring unconstitutional the use of temporary roadblocks to stop 

large numbers of drivers in the hope of discovering evidence of alcohol-impaired driving. 

519 N.W.2d 183, 187 (Minn. 1994). In Ascher, the supreme court held that such 

roadblocks violated the Minnesota Constitution because the state failed to articulate a 

persuasive reason for dispensing with the individualized suspicion requirement. Id.

The state counters that the district court properly held that reasonable, articulable 

suspicion of criminal activity supported the stop of appellant’s motorcycle. We agree.
7

“The factual basis required to support a stop is minimal, and an actual violation is not 

necessary.” State v. Haataja, 611 N.W.2d 353, 354 (Minn. App. 2000), review denied

(Minn. July 25, 2000). The district court must “simply analyze the testimony of the 

officer and determine whether, as a matter of law, his observations provided an adequate 

basis for the stop.” Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). 

The officer need not actually observe a violation and “suspicion is all that is required, if 

the officer can sufficiently articulate the factual basis for his suspicion.” Id. at 733.

Here, Officer Sanders testified that he heard “loud motorcycle revving engines,” 

and “crackling and popping noises that were very loud,” and that there was no other 

traffic on the road. The district court upheld the stop as lawful, concluding that Sanders 

“articulated a reasonable suspicion of illegal activity, i.e., the officer’s belief that 

defendant may have been riding a motorcycle that violated the city’s noise ordinance.” 

We conclude that the basis for the stop in this case may have been “minimal,” but 

the officer did testify that he stopped the motorcycles after hearing a violation of the 

traffic laws and the district court credited the officer’s testimony. The officer’s belief 

that one of two motorcycles was violating the noise laws is reasonable and sufficient to 

make the suspicion “individualized,” in that the officer was not conducting a roadblock or 

stopping a large number of vehicles to see if one was violating the law. Under these 

circumstances, the district court did not err in holding the stop was lawful and supported 

by a reasonable, articulable suspicion of criminal activity.
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II.

Appellant next argues that he was denied his statutory right to an additional test 

because the officers hampered his timely effort to obtain an independent test when he was 

not given an opportunity to obtain a test for several hours. In his brief to this court, 

appellant states that the “relevant facts are not disputed.” At oral arguments, however, 

appellant’s counsel questioned whether appellant requested an additional test in the squad 

car on the way to jail, as the testimony of Officer Sanders suggested and the district court 

found, or whether appellant first asked for an additional test at the White Bear Lake 

Police Department after administration of the breath test.

A person has a limited right to an additional test under Minn. Stat. § 169A.51, 

subd. 7(b) (2012). The issue on appeal is whether the officer unlawfully prevented or 

denied the right to obtain an additional chemical test. See Haveri v. Comm’r of Pub. 

Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). 

An officer is not required to inform a driver of the right to an additional test. Schulz v. 

Comm’r of Pub. Safety, 760 N.W.2d 331, 334 (Minn. App. 2009). Other than providing a 

telephone, an officer has no obligation to assist a driver to obtain an additional test. Id.

Appellant is essentially claiming that the delay in providing him access to a 

telephone violated his statutory right to an additional test. An officer gave appellant 

access to a telephone but for some reason he chose to not obtain an additional test. Had 

appellant submitted to an additional test, he still could have attempted to present 

retrograde extrapolation to prove his alcohol concentration at a time prior to testing. See 

State v. Jensen, 482 N.W.2d 238, 239-40 (Minn. App. 1992) (upholding admission of 
9

expert testimony using retrograde extrapolation to determine alcohol concentration), 

review denied (Minn. May 15, 1992). Moreover, any delay that did occur between 

appellant’s breath test at the White Bear Lake Police Department and his arrival and 

booking at the Ramsey County jail was caused not by the officer’s deliberate delay, but 

by the necessity to complete testing and paperwork for appellant and his friend. Thus, 

the district court did not err in finding that appellant’s right to an alternative test was 

vindicated.

III.

Finally, although this issue is not raised by appellant, examination of the record 

establishes that he was improperly convicted of two counts of third-degree DWI, in 

violation of Minn. Stat. § 609.04 (2012). According to the warrant of commitment and 

the district court register of actions, appellant was convicted of both third-degree DWI 

counts and was given concurrent sentences on each conviction. Similarly, in State v. 

Clark, the defendant was convicted of a number of offenses, including both driving under 

the influence and driving with an alcohol concentration of .10 or more. 486 N.W.2d 166, 

167 (Minn. App. 1992). On appeal, he raised issues involving trial errors and also argued 

that his sentence for fleeing a peace officer should be vacated because that offense arose 

out of the same behavioral incident as his conviction of third-degree burglary. Id. We

also identified and chose to address an issue not raised by the defendant involving the 

fact that he had received multiple convictions under different sections of the DWI statute, 

in violation of Minn. Stat. § 609.04. Id. at 170-71.
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In this case, appellant was convicted of two counts of third-degree DWI, in 

violation of Minn. Stat. §§ 169A.20, subds. 1(1) (driving under the influence of alcohol), 

(5) (operating a motor vehicle with an alcohol concentration of .08 or more within two 

hours of driving), 169A.26 (defining third-degree DWI). The district court sentenced 

appellant to concurrent sentences for each conviction, according to the warrant of 

commitment. This sentencing is in violation of section 609.04, which prohibits 

‘“multiple convictions under different sections of a criminal statute for acts committed 

during a single behavioral incident.’” Clark, 486 N.W.2d at 170 (quoting State v. 

Jackson, 363 N.W.2d 758, 760 (Minn. 1985)). We therefore reverse and remand to the 

district court, with directions to vacate one of appellant’s convictions.

Affirmed in part, reversed in part, and remanded.