State, Department of Highways v. Rieger

196 N.W.2d 310 (1972)

STATE of Minnesota, DEPARTMENT OF HIGHWAYS, Respondent, v. Thomas Eugene RIEGER, Appellant. STATE of Minnesota, DEPARTMENT OF HIGHWAYS, Respondent, v. Raymond A. ABEL, Appellant.

Nos. 42811, 42882.

Supreme Court of Minnesota.

March 24, 1972.

*311 John E. Daubney, St. Paul, for Rieger.

Katz, Taube, Lange & Frommelt and Emanuel Z. Kopstein, Minneapolis, for Abel.

Warren Spannaus, Atty. Gen., Frederick S. Suhler, Jr., Sp. Asst. Atty. Gen., St. Paul, for respondent in 42811.

Warren Spannaus, Atty. Gen., Thomas G. Lockhart, Sp. Asst. Atty. Gen., St. Paul, for respondent in 42882.

42811Heard before KNUTSON, C. J., and OTIS, KELLY, and TODD, JJ.

42882Considered by KNUTSON, C. J., and OTIS, KELLY, and TODD, JJ.

PER CURIAM.

In each of these cases the district court sustained the revocation of the defendant's driver's license for refusing to submit to a chemical test authorized by Minn.St.1969, § 169.123. The only issue before this court in each case is whether the examining officer was a "peace officer" within the meaning of § 169.123, subd. 1. Since both defendants refused to take the test, we do not find it necessary to resolve the issue raised by them and affirm each decision.

Each defendant was arrested for driving under the influence of alcohol in violation of Minn.St. 169.121, subd. 1. In each case, the examining officer advised the defendant of his rights and requested him to submit to a chemical test for intoxication. Each defendant refused. Thereafter, their respective drivers' licenses were revoked by the commissioner of public safety pursuant to § 169.123, subd. 4. The revocation was sustained in each case, both by the municipal court and the district court.

The issue in these cases has been rendered moot by our decision in State, Department of Public Safety, v. Rambow, Minn., 193 N.W.2d 801 (1972). There we held that the question of whether the examining officer was qualified may not be raised by defendant where he refuses to take the test without objecting to the officer's qualifications at the time it is offered. On the authority of Rambow, we affirm both decisions.

Affirmed.