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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Olson v. State (9/23/2011) sp-6602

Olson v. State (9/23/2011) sp-6602, 260 P3d 1056

         Notice:   This opinion is subject to correction before publication in the PACIFIC  REPORTER. 
         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 
         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 
         corrections@appellate.courts.state.ak.us.  

                   THE SUPREME COURT OF THE STATE OF ALASKA  

FRANK J. OLSON,                                           )  
                                                          )    Supreme Court No. S-13595  
                           Petitioner,                    )    Court of Appeals No. A-08776  
                                                          )  
         v.                                               )    Superior Court No. 3AN-02-04962 CR  
                                                          )  
STATE OF ALASKA,                                          )    O P I N I O N  
                                                          )  
                           Respondent.                    )    No. 6602 - September 23, 2011  
                                                          )  

                  Petition for Hearing from the Court of Appeals of the State of  
                                                                      
                  Alaska, on appeal from the Superior Court, Third Judicial  
                  District, Anchorage, Michael L. Wolverton, Judge.  

                  Appearances:  Julia D. Moudy, Assistant Public Defender,  
                                      
                  and   Quinlan   Steiner,   Public   Defender,   Anchorage,   for  
                  Petitioner.   K enneth  M.  Rosenstein,  Assistant  Attorney  
                  General,   Anchorage,   and D  aniel   S.   Sullivan,   Attorney  
                  General, Juneau, for Respondent.  

                  Before:  Carpeneti, Chief Justice, Fabe, Winfree, Christen,  
                  and Stowers, Justices.  

                  CHRISTEN, Justice.  

I.       INTRODUCTION 

                  Frank Olson was arrested in Anchorage for driving while intoxicated.  At  
                                                                              

the police station he refused to submit to a breath test.  An officer advised him of the  
                                                                                  

consequences for refusing to take the test using an implied consent form, but the form  
                                                                      

contained information that was out of date; it stated that refusal was a felony  if the  
                                                                                                              

----------------------- Page 2-----------------------

arrestee had been convicted of DWI or refusal twice within the previous five  years.  In  
                            

fact, refusal was a felony if the arrestee had been twice convicted within the previous ten 
                                                                                                         

years.  Olson had several prior DWI convictions, one of which was approximately three  
                                                                                   

weeks  outside  the  five-year  window,  but  well  within  the  ten-year  window.   O lson  

                                                                 
persisted in his refusal and was convicted  of the class C felony, refusal to submit to  

chemical test.  He appealed, claiming the erroneous warning violated his due process  

                                                                        
rights.   O lson's  conviction  was  affirmed,  but  we  granted  his  petition  for  hearing.  

                            
Because  we  now  hold  that  Olson  bears  the  burden  of  proving  prejudice  from  the  

erroneous information, we remand to give him an opportunity to make this showing.  

II.       FACTS AND PROCEEDINGS 

                    The  facts  of  this  case  are  undisputed.   O n  June  12,  2002,  the  police  

                                                                                                      
responded to a report of a car stopped in the roadway with a person slumped over the  

                                                                                        
steering wheel.  They found Frank Olson in the driver's seat with the engine running and  

                                                                                                              
the transmission in "drive."  After waking Olson, the officers observed that he would not  

                                                                                 
make eye contact, would not answer any questions, was unsteady on his feet, and smelled  

of  alcohol.   Th ey  tried  to  administer  the  standardized  field  sobriety  horizontal  gaze  

nystagmus test (following the officer's finger from right to left), but Olson either would  

not or could not follow the instructions.  The officers arrested Olson for driving while  

intoxicated.  

                                                                                                            
                    There is no dispute that Olson refused to provide a breath sample at the  

                                                                                                 
police  station  and  that  our  case  law  required  the  police  to  inform  him  of  the  
                                         1  The arresting officer attempted to do so by reading Olson  
consequences of his refusal.                       

the  implied  consent  form  the  station  was  using  at  that  time.   A lthough  there  is  no  
                                                          

          1         See, e.g., Copelin v. State, 659 P.2d 1206, 1212 n.15 (Alaska 1983) (citing  

Wirz v. State, 577 P.2d 227, 230 (Alaska 1978)).  

                                                             -2-                                                        6602 

----------------------- Page 3-----------------------

allegation that the police officer in this case had any improper motive, it is uncontested  
                                    

that he gave an incorrect warning.  Using an out-of-date, pre-printed form, the officer  

advised  Olson  that:   "R efusal  to  submit  to  a ch emical  test  can  be  either  a cl ass  A  

                                                                                   
misdemeanor or a class C felony.  If you have been twice convicted of either driving  

                                                                  
while intoxicated or refusal to take a chemical test in the last five years, the penalty for  

refusing to take the test is a class C felony."  (Emphasis added).  

                   Olson had several prior convictions for DWI, including four convictions  

for DWI in Alaska since 1992.  The two most recent of these convictions occurred after  

                                                                                                  
the effective date for the statutory amendment that created the ten-year look back period.  

One of the prior convictions - from May 19, 1997 - was three weeks too old to be  

                                                                         
considered in a five-year look back period but fit easily inside a ten-year look back  

period.  

                                                                                                       
                   Olson was indicted for the class C felony refusal to submit to chemical test,  

he was convicted, and the court of appeals affirmed his conviction.  

III.     STANDARD OF REVIEW 

                   Whether a due process violation occurred is a question of law, which we  

                       2 
                                                                              
review de novo.   We will adopt the rule of law  that is "most persuasive in light of  
precedent, reason, and policy."3 

IV.      DISCUSSION 

                   The  issue  we  must  decide  is  whether  Olson's  due process   rights  were  

                                                              
violated by the improper warning regarding the consequences of refusal.  This requires  

                                                      
that we consider whether a reasonable person would regard it as a "fundamentally unfair  

         2         See S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

Servs., 61 P.3d 6, 10 (Alaska 2002);  Whiteside v. State, Dep't of Pub. Safety, Div. of 
Motor Vehicles, 20 P.3d 1130, 1134 (Alaska 2001).  

         3         Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).  

                                                          -3-                                                    6602 

----------------------- Page 4-----------------------

                                                                                                                        
use  of  government  power"  for  the  police  to  give  a  warning  that  understates  the  

                                                                                                                    
consequences of refusal, and then, after an arrestee refuses to submit to chemical testing,  
indict the arrestee for the greater penalty.4 

                                                                                                                 
                       Under Alaska's implied consent law, AS 28.35.031, a person who drives  

                                   
or operates a motor vehicle in Alaska is considered to have given implied consent to a  

                  5 
                                                           
breath test.   If the motorist refuses the breath test, AS 28.35.032 provides that the officer  

must warn the person:  (1) that refusal will result in the denial or revocation of the  

                                                                                                            
person's driver's license; (2) that refusal may be used against the person in a civil or  

                                                                                
criminal action or proceeding arising out of the incident; and (3) that refusal is a "crime."  
If the person still refuses, no chemical test may be given.6 

                       Alaska Statute 28.35.032 also outlines the penalties for refusal.  Section (f)  

states that refusal is ordinarily a misdemeanor.  But section (p) adds that:  

                                                                
                       A  person  is  guilty  of  a  class  C  felony  if th e  person  is  
                                                                                  
                       convicted  under  this  section  and  .  . . h as  been  previously  
                                                                                       
                       convicted  two  or  more  times  since  January  1,  1996,  and  
                                               
                       within the 10 years preceding the date of the present offense.  

           4          Municipality of Anchorage v. Ray, 854 P.2d 740, 748 (Alaska App. 1993)               

("The due process guarantee protects citizens from the arbitrary or fundamentally unfair           
use of government power . . . .");                       cf. Nichols v. State, 425 P.2d 247, 256 (Alaska 1967)  
(Rabinowitz, J., concurring) (describing the failure to appoint counsel once a sentencing  
court   has det  ermined   that   a hea  ring   is   required   to   resolve   factual   issues   as  
                                                                                              
"fundamentally unfair").  

           5           AS 28.35.031(a).  T his statute applies if th e person has been "lawfully  

                                                                                                                                   
arrested for an offense arising out of acts alleged to have been committed while the  
person was operating or driving a motor vehicle."  Id.  There is no dispute the police had  
probable cause to arrest Olson.  

           6 
                                                                                                                       
                       AS 28.35.032(a). There are some exceptions, but none of them are relevant  
here.  

                                                                       -4-                                                                6602
 

----------------------- Page 5-----------------------

The  statute's  ten-year  look  back  period  was  the  result  of  a J uly  2001  statutory  

                 7 
amendment.           Before the amendment, the statute provided for a five-year look back  
window.8 

                                                                                                           
                   Olson argues that the police violated his due process rights by giving him  

                                                                         
inaccurate information about the look back period.  Olson does not allege bad faith by  

                9 
the officer,  but he contends the erroneous information hindered his ability to make a 
                                                                                                                
"knowing and intelligent decision to refuse to submit to a chemical test."10  The State  

                                                               
argues that the warning is not an element it must prove in order to establish unlawful  

                                   
refusal, that it was only obligated to inform Olson that refusal is a "crime," and that it  

met this duty.  The State also responds that Olson's "knowing and intelligent" argument  

is misplaced because this standard traditionally applies where a right exists, and Alaska  

                                                               
courts have repeatedly stated that there is no constitutional, statutory, or implied right to  

         7         Ch. 63,  13, SLA 2001.  

         8         See former AS 28.35.032(p) (2000).  

         9         See Hernandez   v.   State,   28   P.3d  315,  318 ( Alaska  App.  2001)  ("[An]  

officer's good faith is not determinative of whether the officer's conduct violated [the   
defendant's] right to due process.").  

         10        The court of appeals characterized Olson's argument as:  "[T]he police must  

inform the arrestee whether refusal will be a misdemeanor or a felony."  But Olson's  
brief on appeal argued that "the warnings were inadequate to ensure that [he] understood  
the  consequences of   his  refusal"  because  "there  is  a  substantial  difference  between  
informing  a  person  that  the  crime  is  a  misdemeanor  as  opposed  to  a  felony."    We  
interpret Olson's argument in the court of appeals to be the same argument he makes to  
                                                                                                              
our court:  he does not argue that the police have a duty to inform an arrestee of the class  
of penalty for refusing; he argues that if they choose to do so, the information they  
provide must be accurate.  

                                                           -5-                                                    6602
 

----------------------- Page 6-----------------------

                                        11 
                                                                          
refuse to take a breath test.              In Alaska, arrestees have the power to refuse, meaning the  

police may not administer the test if a person continues to refuse after being informed  
that refusal is a crime.12 

                    We  find  the  State's  first  argument  unpersuasive  because  the  incorrect  

                                                                                               
information given to Olson raises due process concerns even if the State met its burden  

                                                                                                               
of informing Olson that refusal is a crime, and even if the State can prove the elements  

                                                                                                                       
of refusal.  We find the State's second argument unpersuasive for two reasons:  (1) we  

                                       
define "power to refuse" in the same way other jurisdictions loosely use the term "right  

                                                        
to refuse"; and (2) the validity of the decision to refuse is called into question when the  

decision is premised upon misinformation.  

          A.        The Incorrect Information Given To Olson Raises A Due Process Issue. 

                    The State and the court of appeals rely heavily on earlier holdings that "the  

                                                                                                                               13 
                                                    
warnings required by [the implied consent statute] . . . are not elements of the offense." 

As the State phrases it, "[t]he police satisfied the foundation requirement of [the implied  
                                                                                                             

consent statute] by informing Olson that his refusal would constitute a misdemeanor.  

                                                                                               
Even though this was inaccurate as to the class of offense, it still unmistakably conveyed  

          11        See, e.g., Copelin v. State, 659 P.2d 1206, 1212 (Alaska 1983) (holding that   

arrestees may have no right to refuse, but do have a power to refuse);                                  Graham v. State,  
633 P.2d 211, 214 (Alaska 1981) ("Under Alaska law . . . one arrested for operating a  
motor vehicle while under the influence of intoxicating liquor has no constitutional or  
statutory right to refuse to submit to a breathalyzer test.") (internal citations omitted);  
 Wirz v. State, 577 P.2d 227, 230 (Alaska 1978) (refusing to recognize a statutory or  
                                      
implied right to refuse).  

          12 
                                          
                    Copelin, 659  P.2d at 1212 (citing Anchorage v. Geber, 592 P.2d 1187  
(Alaska 1979)).  See also AS 28.35.032(a).  

          13        Brown v. State, 739 P.2d 182, 185 (Alaska App. 1987) (citing Svedlund v. 

Anchorage, 671 P.2d 378, 385 (Alaska App. 1983)).  

                                                              -6-                                                         6602
 

----------------------- Page 7-----------------------

                                                                  
to Olson[] that refusal would be a crime.  And that is all [the statute] requires."  We agree  

the police satisfied the statutory duty to inform Olson that refusal is a crime, and we  

                                                                                                              
agree the State proved the elements of refusal, but this is insufficient to  answer the  

question  whether  Olson's  due process   rights  were  violated  when  he  was  given  an  
incorrect warning.14 

                                                                                                      
          B.	      The Distinction Between A "Right" And A "Power" Is Not Relevant 
                   To This Case. 

                   We have stated that there is "no right [to refuse a breath test] in the statutory  
sense, in that the arrestee will suffer adverse legal consequences."15  We have avoided  

                                                                                                     
labeling refusal as a "right" because penalties may arise for choosing to refuse a breath  

                                                                                                                 
test.  But this distinction is largely one of semantics; other states recognize a "right" to  
refuse  a  breath  test  and  assess  legal  consequences  for  exercising  that  right.16                             The  

                                            
distinction drawn by the State between a "right" and a "power" in the context of refusing  

to submit to a breath test is not material to the outcome of this case.  

          C.	      The Police Voluntarily Gave Olson Additional Information Beyond 
                   That Required By AS 28.35.032. 

                   Our case law clearly establishes that the decision to refuse a breath test  

                                                                                                         17 
                                                                                                             In Copelin,  
requires careful consideration.  Copelin v. State provides a good example. 

          14	      See, e.g., State v. Wilson, 987 P.2d 268, 273 (Haw. 1999) (collecting cases).     

          15	      Copelin, 659 P.2d at 1212 (emphasis added) (citing AS 28.35.032).  

          16       See, e.g., Wilson, 987 P.2d at 272 (recognizing both an implied right to  
                                                                       
refuse and penalties for refusing); State v. Cormier, 499 A.2d 986, 989 (N.H. 1985)  
("The defendant's refusal is . . . the exercise of a legal right provided by the legislature.  
                                                                                                         
. . . Thus a DWI defendant has a legal power to refuse to provide a sample that the State  
                                                                                                            
could constitutionally demand." (emphasis added)).  

          17       659 P.2d 1206.  

                                                            -7-	                                                      6602
 

----------------------- Page 8-----------------------

                                                                                                                              18 
                                                                        
two arrestees asked to contact their attorneys before submitting to the breath test.                                               Their  

                                                                        
requests were denied, and the arrestees were subsequently convicted of operating motor  
vehicles while intoxicated.19  After granting their petitions for hearing, we observed:  

                                                                                               
"The  police  are  not  required  to  inform  the  arrestee  that  he  has  the  right  to  refuse;  

                                                            
however, if he does refuse, he must be advised of the consequences flowing from his  
refusal and be permitted to reconsider his refusal in light of that information."20 

                     Alaska Statute 28.35.032 requires police to inform arrestees that, among  

                                                                        
other things, refusal is a "crime."  The police had no obligation to inform Olson that, due  

                                                                    
to his prior record, a conviction for refusal would be a felony, but the police went beyond  

                                                                                                              
the statutory minimum and gave Olson additional information about the actual penalties  

that could be imposed in his case.  Alaska case law encourages the police to provide  
additional information beyond the statutory minimum,21 but due process concerns can  

                                                                                                             
arise if the information understates the consequences of the offense. Misinformation can  

impair an arrestee's ability to make an informed decision about potential "consequences  
flowing from his refusal,"22 and may actually discourage the arrestee from taking the  

       23 
                                                                                                   
test.      "The decision . . . whether to comply with an arresting officer's request to take a  

           18        Id. at 1209.  

           19        Id. at 1208-09.  

           20        Id. at 1212 n.15 (citing  Wirz v. State, 577 P.2d 227, 230 (Alaska 1978)).  

           21        Svedlund v. Municipality of Anchorage, 671 P.2d 378, 385 n.9 (Alaska  

App. 1983).  

           22         Copelin, 659 P.2d at 1212 n.15 (citing Wirz, 577 P.2d at 230).  

           23        See   Svedlund, 671 P.2d at 385 n.9 ("Adequate warnings serve . . .                                              the  

obvious legislative goal of encouraging those accused of drunk driving to take the test.").         

                                                                   -8-                                                             6602
 

----------------------- Page 9-----------------------

sobriety  test  is  not  a simple  one,"24  and w e  have said  it  should  not  be  based  on  an  
                                                                                                      
ignorance of the actual consequences of refusing.25  H ere, the implied consent form  

understated the penalties for Olson's refusal.  We conclude it would be fundamentally  

                                                                                                        
unfair to allow the State to assert one penalty, on which the arrestee's decision relies, and  
then later convict him of a charge that carries a greater penalty.26 

          D.	        Olson Bears The Burden Of Proving Prejudice From The Officer's 
                    Extraneous And Erroneous Warning. 

                    The  State  concedes  that  "if  misinformation  supplied  by  the  police  

reasonably induced an arrestee to refuse the test, then the evidence of the refusal should  
                                                                                                      

be suppressed."  But the State argues that "[m]isinformation provided by the police is not  
                                                               

actionable unless it induced a [DWI] arrestee into refusing to submit to the chemical  

                                                                                                      
test."  The court of appeals agreed with this argument, concluding: "Olson never offered  

                                                                                                                  
to prove that he indeed relied to his detriment on the erroneous information about a five- 

                            
year 'look back' for prior convictions when he made his decision to refuse the breath  

                                                                                                
test."  But Olson counters that, contrary to the court of appeals' decision, "[t]here should  

be no requirement that [he] 'prove' he would have done something differently."  

          24	        Copelin, 659 P.2d at 1213.  

          25        See Svedlund, 671 P.2d at 385 n.9 ("Adequate warnings serve to insure that       

a refusal will not be based on ignorance . . . .").  

          26        Numerous other jurisdictions agree that an officer's misstatements about  

the consequences of refusing can violate due process.  See, e.g., State v. Peirce, 571  
S.E.2d 826 (Ga. App. 2002); State v. Wilson, 987 P.2d 268 (Haw. 1999); Meigs v. Kan. 
                                                                            
Dep't of Revenue, 840 P.2d 448 (Kan. 1992); Forman v. Motor Vehicle Admin., 630  
A.2d 753 (Md. 1993); McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848 (Minn.  
 1991); Teson v. Dir. of Revenue, State of Mo., 937 S.W.2d 195 (Mo. 1996); State v. 
Koch, 103 P.3d 1280 (Wash. App. 2005).  The State cites to no jurisdictions that hold  
                  
otherwise.  

                                                                -9-	                                                        6602
 

----------------------- Page 10-----------------------

                   The State primarily relies on           Hernandez v. State27 and Graham v. State28
to  

support  its  argument  that  Olson  must  show  that  he  was   prejudiced  by  the  incorrect  

statement of the penalty for refusal, but these cases are not dispositive.  Hernandez 
concerned an arrestee's right to obtain an independent blood test.29  After Hernandez  

submitted to the request that he take a breath test, he exercised his right to obtain an  
independent  blood  test.30   The   arresting  officer  informed  Hernandez  that  Fairbanks  

Memorial Hospital was the only facility available to perform the test because it was late  
                                                                                            
            31 At the hospital, a receptionist stated - incorrectly - that the hospital's test  
at night.                                                                                          
was inadmissible in court.32  Hearing the receptionist's statement, Hernandez looked to  
                                                                               
the  arresting  officer  for clari fication,  but  the  officer  only  shrugged  his  shoulders.33 

Hernandez  interpreted  the  officer's  response  as  an  affirmation  of  the  receptionist's  
statement.34  He waived his right to the blood test and he was convicted of DWI.35
                                   The  
                                                                                                           

superior court found that Hernandez was in fact dissuaded from seeking the independent  
                                                                    

test - and thus prejudiced - by the false information he received and by the officer's  
                                                                                                           

          27       28 P.3d 315 (Alaska App. 2001).   

          28       633 P.2d 211 (Alaska 1981).   

          29       Hernandez, 28 P.3d at 316-17.   

          30       Id.
 

          31       Id.
 

         32
       Id. at 317.   

          33       Id.
 

          34       Id.
 

         35
       Id. at 316-17.  

                                                           -10-                                                     6602
 

----------------------- Page 11-----------------------

subsequent conduct.            36  The issue on appeal was whether Hernandez's reliance on the                            

arresting officer's response was reasonable.  The court of appeals held that if Hernandez  

                                                                                 
reasonably relied on the officer's conduct, "the State should be held accountable . . .  for  

                                                   
the fact that the officer's conduct was a substantial factor in dissuading Hernandez from  
pursuing his right to an independent blood test."37 

                    The arrestee in Graham refused the breath test after being read her Miranda 

          38                                                                             39 
rights.    She claimed that the officer's Miranda warning                                   that she had the "right to  

                                    
remain silent" and that "anything said may be used against [her]" confused her about the  

"right" to refuse to take the test or answer questions about whether she was refusing to  
do so.40  Given the circumstances in Graham, we held:  

                                                        
                    [W]here         an     arrested       person       refuses      to    submit        to   a  
                    breathalyzer test, the administering officer must inquire into  
                    the nature of the refusal and, if it appears that the refusal is  
                                                
                    based on a confusion about a person's rights, the officer must  
                                                                                         
                    clearly  advise  that  person  that  the  rights  contained  in  the  
                    Miranda          warning        do     not     apply      to    the     breathalyzer  
                                        [41] 
                    examination.  

          36        Id. at 316, 317-18.   

          37        Id. at 317.   

          38
       Graham v. State, 633 P.2d 211, 212 (Alaska 1981).  

          39        Miranda v. Arizona, 384 U.S. 436, 444 (1966).  

          40        Graham, 633 P.2d at 213-14.  

          41        Id. at 215.  

                                                              -11-                                                         6602
 

----------------------- Page 12-----------------------

But we also explained that "[t]he defendant motorist . . . has the burden of showing that           
he or she was in fact confused" by the officer's statements.42 

                                                                                                                             
                     Hernandez  and   Graham                   were  cases  where  arrestees  claimed  to  be  

                                                                                                             
subjectively confused by the officer's statements or conduct.  Viewing the facts of those  

                                                                                                       
cases objectively, the court concluded that some people may have been confused by the  

circumstances whereas others would not.  Under those circumstances, we required the  

                                                                                                                  
defendants  to  show  that  they  were  actually  confused  by  the  officer's  statement  or  

                                                                                                               
conduct.  Olson's case is different.  There is no reason to suspect he was confused by the  

                          
misinformation about penalties for refusal.  The meaning of the officer's warning was  

not ambiguous or unclear; it was simply incorrect.  As Olson points out, "[t]here is no  

                                    
dispute  that  [he]  was  provided  with  incorrect  information  that  would  have  misled  

                                         
anyone."  We agree that the pre-printed form provided an objectively clear - albeit  

                                                                             
wrong - statement that would have prevented a reasonable person who had prior DWI  

                                                                                                   
convictions within the ten-year look back period from making a knowing and intelligent  

decision about refusal.  The Hernandez and Graham requirement for showing subjective  

confusion does not apply here; Olson was objectively misinformed.  

                                                                                                             
                     Even though the cases regarding subjective confusion do not control in this  

                                                                                                              
case, we still must determine who bears the burden of proving prejudice when an arrestee  

is objectively misinformed by the police.  Olson argues that he should not have the  

burden  of  proving  that  he w ould  have  done  something  differently  because  he w as  

squarely  within  the  class  of  defendants  who  would  reasonably  be  misled  by t he  

                                        
misinformation:  he had two DWI convictions within the preceding ten, but not five,  

                   
years,  and  the  implied  consent  form  erroneously  informed  him  that  refusal  was  a  

misdemeanor, not a felony, for a person with this history.  The State responds that Olson  

          42        Id. (citing State v. Severino, 537 P.2d 1187, 1190 (Haw. 1975)).  

                                                                -12-                                                          6602 

----------------------- Page 13-----------------------

                                                                                                 
"is claiming that the misinformation negated his refusal," but Olson "should be required  

                                                        
to plead and prove those facts that entitle him to relief."  The State points to two policy  

                                                                     
reasons to support its position:  (1) if Olson does not have to prove prejudice, he "would  

                                                          
receive a substantial windfall [even though] the misinformation he received played no  

                                                               
role in his decision to refuse to submit to the chemical test"; and (2) "proof of Olson's  

motivation for refusing to submit is singularly available to him." 

                      We have never directly addressed this issue before, but other jurisdictions  

                                                                                                           
that have considered it require arrestees to show a causal connection between an officer's  

                                                                                                                                  43 
                                                                                                                                      In  
extraneous and erroneous statement and the arrestee's decision to submit to testing. 

Cuthbertson v. Kansas Department of Revenue, the holder of a co mmercial driver's  
license was arrested on suspicion of DUI while driving a noncommercial vehicle.44  The  

                                    
arrestee "received all the statutory notices required by law," which covered only the  

                                                                                         
effect  that  refusing  or f ailing  the  test  would  have  on  the  arrestee's  noncommercial  
license.45  The officer in  Cuthbertson was not required to inform the arrestee of the  

potential  penalties  associated  with  his  commercial  license,  but  the  officer  did  so  
anyway.46   U  nfortunately,  the  extraneous  information  the  officer   provided  was  

           43        We do not reach the question whether an arrestee must show prejudice if     

the  officer's  misstatement  concerns   a  statutorily-required  warning,  as  opposed  to  
extraneous information.  See Gonzales v. State Dep't of Licensing, 774 P.2d 1187, 1192-  
93 (Wash. 1989) (explaining that a showing of prejudice is not required for criminal   
cases  when  the  misinformation  concerns  a  statutorily-required  warning,  but  that  a  
showing of prejudice is required for civil matters when the misinformation concerns not- 
                                                                                            
required information).  

           44        220 P.3d 379, 380 (Kan. App. 2009).  

           45        Id. at 383.  

           46        Id. at 381.  

                                                                 -13-                                                            6602
 

----------------------- Page 14-----------------------

               47 
                                                                                              
incorrect.          The arrestee argued that his driving privileges should be fully reinstated  

                                                                                  
because he was incorrectly advised about the effect failing the test would have on his  

commercial license.  The Kansas Court of Appeals disagreed.  It explained:  

                                                                                            
                     [The officer] was not required to provide any information to  
                     Cuthbertson           regarding         the     collateral        damage         to    his  
                                                                                        
                     [commercial driver's license]. . . . However, once [the officer]  
                                           
                     dove into the pool of gratuitous information, his responses  
                                                                              
                     are required to be correct statements of the law.  Even in this  
                     situation,  however,  we  revert  to  the  fact  that  we  are  not  
                                                                                      
                     dealing with statutorily mandated notices.  The consequence  
                     is  that  Cuthbertson  must  demonstrate  prejudice,  which  he  
                                                                                    [48] 
                     cannot, in order to show reversible error.  

                     Olson was correctly informed of the statutorily-required warning, i.e., that  

                    
refusing the breath test was a crime.  It was only in regard to the supplemental piece of  

                                                                                
information - the length of the look back period used to determine whether refusal  

                                                                                      
constituted a misdemeanor or a felony - that incorrect information was provided.  We  

                                                                  
join those jurisdictions holding that under these circumstances the arrestee must prove  

           47        Id.  Specifically, the officer informed Cuthbertson that the penalties were  

the same for his commercial license as for his regular license: a suspension of two years  
                                                                                                
for refusing the test and a suspension of one year for failing.  Id.                                In fact, Cuthbertson's  
                                                                                                     
commercial license would have been suspended for life regardless of whether he failed  
                                                                                                           
or refused the test.  Id.  

           48        Id. at 383.  

                                                               -14-                                                          6602
 

----------------------- Page 15-----------------------

                                                                   49 
        
that he or she was prejudiced by the mistake.                          Indeed, the standard of review section  

in Olson's brief acknowledges "[a] defendant who reasonably and detrimentally relies 

on incorrect legal advice in deciding to refrain from acting should not be criminally  

                                                  
punished for that failure to act." (Emphasis added).  Olson has the burden of proving  

                                                                                 
prejudice from the officer's misstatement; the question remains whether Olson satisfied  

this burden.  

                    The State contends that Olson did not argue that he was actually prejudiced  

by the implied consent form's misinformation and the court of appeals agreed.  Both  

                                                            
observed  that  Olson  did  not  explicitly  testify  that  he  would  have  made  a  different  

                                                                                                           
decision if he had been given correct information.  But Olson argues on appeal that his  

                                                                                                      
contention in superior court was that he was prejudiced by the police officer's incorrect  

warning.  Olson's motion to dismiss argued:  

                                                                        
                    There  is  no doubt   that  [Olson]  was   misled  as  to  the  
                                                              
                    consequences of his refusal to take a chemical test and there  
                                                                  
                    is no doubt that because of his prior criminal record it had a  
                    direct  impact  upon h is  ability  to  make  a  knowing  and  
                                                                                              
                    intelligent decision as to whether to refuse or not refuse the  
                    chemical test.  

Olson's  motion  to  suppress  added:   " Had  [Olson]  been  correctly  informed  of  the  

consequences, he would have known that he would be facing a felony as opposed to a  

misdemeanor  charge.   H e  would  have  certainly  given  greater  consideration  to  his  

          49        See id.; see also Gonzales v. State Dep't of Licensing, 774 P.2d 1187, 1193   

(Wash. 1989) (holding that where the arresting officer gave all the required warnings,   
but  they  contained  additional  language  which,  under  certain  circumstances  was  
inaccurate, the driver must demonstrate that he was actually prejudiced by the inaccurate  
                                                                                                        
warnings); State v. Ludwigson, 569 N.W.2d 762, 764 (Wis. App. 1997) ("[W]hen an  
officer has exceeded the duty, and the extra information provided is erroneous, then it  
is the defendant's burden to prove by a preponderance of the evidence that the erroneous  
                                                         
information caused the defendant to refuse to take the test.").  

                                                             -15-                                                       6602
 

----------------------- Page 16-----------------------

decision  knowing    that  the  consequence  of  his  refusal  [was]  a f elony  versus  a  

misdemeanor."  

                  We agree with the State and the court of appeals that Olson presented no  

                                                                         
evidence that he in fact misapprehended the potential class of offense he faced when he  

refused, but we have never before stated that defendants in Olson's position are required  

                                                                                                           
to do so.  We cannot fault Olson for not putting forward this evidence because we have  

                                                                                                         
not previously said that it is required.  Because we now hold that it is Olson's burden to  

                           
prove that he was prejudiced by the extraneous and incorrect information the officer  

provided him, we remand this case to give Olson an opportunity to make such a showing.  

                                            
The superior court may allow  additional evidence or hold new hearings as it deems  

necessary.  

V.       CONCLUSION 

                  We REVERSE the decision of the court of appeals and REMAND to the  

superior court for proceedings consistent with this decision.  

                                                        -16-                                                  6602
 
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