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Minnesota Legislature

Office of the Revisor of Statutes

360.0753 TESTING PROCEDURES.
    Subdivision 1. Peace officer defined. For purposes of this section, the term "peace officer"
means an employee of a political subdivision or state law enforcement agency who is licensed
by the Minnesota Board of Peace Officers Standards and Training, who is charged with the
prevention and detection of crime and the enforcement of the general criminal laws of the
state, and who has full power of arrest, and shall also include the Minnesota State Patrol and
Metropolitan Airports Commission peace officers, but does not include employees of the
Department of Natural Resources.
    Subd. 2. Implied consent; conditions; election of test. (a) Any person who operates
or attempts to operate an aircraft in or over this state or over any boundary water of this state
consents, subject to the provisions of this section and section 360.0752, to a chemical test of that
person's blood, breath, or urine for the purpose of determining the presence or amount of alcohol,
controlled substances, or hazardous substances. The test shall be administered at the direction of a
peace officer. The test may be required of a person when an officer has probable cause to believe
the person was operating or attempting to operate an aircraft in violation of section 360.0752
and one of the following conditions exists:
(1) the person has been lawfully placed under arrest for violation of section 360.0752;
(2) the person has been involved in an aircraft accident or collision resulting in property
damage, personal injury, or death;
(3) the person has refused to take the screening test provided for by section 360.0752;
(4) the screening test was administered and recorded an alcohol concentration of 0.04 or
more or the presence of a controlled substance listed in schedule I or II other than marijuana or
tetrahydrocannabinols; or
(5) the officer had probable cause to believe that the person was operating or attempting to
operate an aircraft with any amount of alcohol present in the person's body.
(b) At the time a test is requested, the person shall be informed:
(1) that Minnesota law requires the person to take a test to determine the presence or
amount of alcohol or a controlled substance listed in schedule I or II other than marijuana or
tetrahydrocannabinols, or to determine if the person is under the influence of alcohol, controlled
substances, or hazardous substances;
(2) that whether a test is taken or refused, the person may be subject to criminal prosecution
for an alcohol, controlled substance, or hazardous substance-related offense relating to the
operation of an aircraft;
(3) that if testing is refused, the person may be subject to criminal prosecution because
the person refused testing and the person will be disqualified from operating an aircraft for a
minimum period of one year;
(4) if the peace officer has probable cause to believe the person has violated the criminal
vehicular homicide and injury laws, that a test will be taken with or without the person's consent;
and
(5) that the person has the right to consult with an attorney, but that this right is limited to the
extent that it cannot unreasonably delay administration of the test.
(c) The peace officer who requires a test pursuant to this subdivision may direct whether the
test shall be of blood, breath, or urine. Action may be taken against a person who refuses to take a
blood test only if an alternative test was offered, and action may be taken against a person who
refuses to take a urine test only if an alternative test was offered.
    Subd. 3. Requirement of urine or blood test. Notwithstanding subdivision 2, a blood or
urine test may be required even after a breath test has been administered if there is probable
cause to believe that: (1) there is impairment by a controlled substance or hazardous substance
that is not subject to testing by a breath test; or (2) a controlled substance listed in schedule I or
II, other than marijuana or tetrahydrocannabinols, is present in the person's body. Action may
be taken against a person who refuses to take a blood test under this subdivision only if a urine
test was offered, and action may be taken against a person who refuses to take a urine test only
if a blood test was offered.
    Subd. 4. Breath test using infrared breath-testing instrument. (a) In the case of a breath
test administered using an infrared or other approved breath-testing instrument, as defined in
section 169A.03, subdivision 11, the test shall consist of analyses in the following sequence: one
adequate breath sample analysis, one control analysis, and a second, adequate breath sample
analysis.
(b) In the case of a test administered using an infrared or other approved breath-testing
instrument, a sample is adequate if the instrument analyzes the sample and does not indicate the
sample is deficient.
(c) For purposes of this section, when a test is administered using an infrared or other
approved breath-testing instrument, failure of a person to provide two separate, adequate breath
samples in the proper sequence constitutes a refusal.
    Subd. 5. Consent of person incapable of refusal not withdrawn. A person who is
unconscious or who is otherwise in a condition rendering the person incapable of refusal is
deemed not to have withdrawn the consent provided by subdivision 2 and the test may be given.
    Subd. 6. Manner of making test; additional test. (a) Only a physician, medical technician,
physician's trained mobile intensive care paramedic, registered nurse, medical technologist, or
laboratory assistant acting at the request of a peace officer may withdraw blood for the purpose of
determining the presence or amount of alcohol, controlled substances, or hazardous substances.
This limitation does not apply to the taking of a breath or urine sample. The person tested has the
right to have someone of the person's own choosing administer a chemical test or tests in addition
to any administered at the direction of a peace officer; provided, that the additional test sample
on behalf of the person is obtained at the place where the person is in custody, after the test
administered at the direction of a peace officer, and at no expense to the state.
(b) The failure or inability to obtain an additional test or tests by a person shall not preclude
the admission in evidence of the test taken at the direction of a peace officer unless the additional
test was prevented or denied by the peace officer.
(c) The physician, medical technician, physician's trained mobile intensive care paramedic,
medical technologist, laboratory assistant, or registered nurse drawing blood at the request of a
peace officer for the purpose of determining the presence or concentration of alcohol, controlled
substances, or hazardous substances shall in no manner be liable in any civil or criminal action
except for negligence in drawing the blood. The person administering a breath test shall be fully
trained in the administration of breath tests pursuant to training given by the commissioner of
public safety or the commissioner of transportation.
    Subd. 7. Refusal to permit test; cease and desist order. If a person under arrest refuses to
permit chemical testing, none shall be given, but the commissioner of transportation, upon the
receipt of a certificate of the peace officer that the officer had reasonable and probable grounds to
believe the arrested person had been operating or attempting to operate an aircraft in violation of
section 360.0752 and that the person had refused to permit the test, shall issue a cease and desist
order prohibiting the operation of an aircraft for a period of one year. However, if a peace officer
has probable cause to believe that the person has violated section 609.21, a test may be required
and obtained despite the person's refusal. When a test is obtained pursuant to this section after the
person refused to submit to testing, the commissioner of transportation shall issue a cease and
desist order under this section based on the person's refusal.
    Subd. 8. Notice of cease and desist order; request for hearing. No cease and desist order
under subdivision 7 shall be made until the commissioner notifies the person by certified mail of
intention to issue a cease and desist order and allows the person a 20-day period after the date of
receiving the notice to request of the commissioner, in writing, a hearing as herein provided. If
no request is filed within the 20-day period, the commissioner may then issue a cease and desist
order. However, if a request for hearing is filed, no cease and desist order shall be made until final
judicial determination resulting in an adverse decision to the person.
    Subd. 9. Hearing. The hearing shall be before a district court in the county where the arrest
occurred, unless there is agreement that the hearing may be held in some other county. The
hearing shall be recorded and proceed as in a criminal matter, without the right of trial by jury,
and its scope shall cover the issues of whether the peace officer had reasonable and probable
grounds to believe the person was operating or attempting to operate an aircraft in violation of
section 360.0752; whether the person was lawfully placed under arrest; whether the person
refused to permit the test, and if the person refused whether the person had reasonable grounds
for refusing to permit the test; and whether at the time of request for the test the peace officer
informed the person that the right to fly will be denied if the person refused to permit the test and
of the right to have additional tests made by someone of the person's own choosing. The court
shall order either that the denial be rescinded or sustained and refer the order to the commissioner
of transportation for further action.
    Subd. 10. Notice of action to other governments. When it has been finally determined that
a nonresident's privilege to operate an aircraft in this state has been denied, the commissioner
shall give information in writing of the action taken to the appropriate federal authorities and any
state in which the nonresident operates an aircraft or has a license to operate an aircraft.
History: 1990 c 602 art 6 s 5; 1992 c 570 art 4 s 3-5; 1996 c 442 s 30-32; 2003 c 96 s 5