                         This opinion will be unpublished and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
                                    A15-1603

                         Marsha Katherine Millonig, petitioner,
                                     Appellant,

                                          vs.

                            Commissioner of Public Safety,
                                   Respondent.

                                  Filed May 23, 2016
                                       Affirmed
                                  Klaphake, Judge *

                              Dakota County District Court
                    File Nos. 19WS-CV-15-431, 19HA-CR-15-1389


Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)

Lori Swanson, Attorney General, Peter D. Magnuson, Assistant Attorney General, St. Paul,
Minnesota (for respondent)


      Considered and decided by Schellhas, Presiding Judge; Jesson, Judge; and

Klaphake, Judge.




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                         UNPUBLISHED OPINION

KLAPHAKE, Judge

       Appellant Marsha Katherine Millonig challenges her driver’s license revocation,

arguing that the arresting officer did not have probable cause to arrest her and invoke

Minnesota’s implied-consent law, she did not consent to a breath test, and Minnesota’s

implied-consent law is unconstitutional. We affirm.

                                     DECISION

Probable Cause for Arrest

       Millonig argues that the district court erroneously concluded that Officer David

Streefland had probable cause to arrest her for driving while impaired (DWI) and invoke

Minnesota’s implied-consent law. Probable cause “exists whenever there are facts and

circumstances known to the officer which would warrant a prudent man in believing that

the individual was driving . . . a motor vehicle while impaired.” State v. Koppi, 798 N.W.2d

358, 362 (Minn. 2011) (quotation omitted). We review the district court’s probable cause

determination de novo because Millonig does not challenge the district court’s factual

findings. See Shane v. Comm’r of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998) (“When

the facts of a case are undisputed, probable cause is a question of law to be reviewed de

novo.”).

       Officer Streefland initially observed Millonig’s vehicle enter an intersection on a

red light. Millonig also nearly completed a stop at a green light, and crossed over and

straddled the center-dividing line. After Officer Streefland activated his emergency lights,

Millonig turned twice before entering her garage. While standing near Millonig, Officer


                                             2
Streefland noticed a strong odor of an alcoholic beverage, Millonig’s speech was “very

slurred,” her eyes were bloodshot and watery, and she leaned on her vehicle for balance.

       Depending on the circumstances, probable cause may be based on a single objective

indication of intoxication. Martin v. Comm’r of Pub. Safety, 353 N.W.2d 202, 204 (Minn.

App. 1984). Officer Streefland observed numerous indicia of intoxication, and Millonig

admitted to consuming alcohol. See State v. Laducer, 676 N.W.2d 693, 698 (Minn. App.

2004) (“An admission of drinking, coupled with other indicators of intoxication, is

sufficient for probable cause to arrest.”). Therefore, the district court did not err when it

concluded that Officer Streefland had probable cause to arrest Millonig and invoke

Minnesota’s implied-consent law.

Consent to Test

       Millonig next argues that she did not consent to a breath test. This court reviews

for clear error whether consent to search was voluntary. State v. Diede, 795 N.W.2d 836,

846 (Minn. 2011). “A finding is clearly erroneous when there is no reasonable evidence

to support the finding or when an appellate court is left with the definite and firm conviction

that a mistake occurred.” State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012).

       Both the United States and Minnesota Constitutions provide that “[t]he right of the

people to be secure in their persons, houses, papers, and effects against unreasonable

searches and seizures shall not be violated.” U.S. Const. amend IV; Minn. Const. art. I,

§ 10. Collecting a breath sample constitutes a search under the Fourth Amendment. Mell

v. Comm’r of Pub. Safety, 757 N.W.2d 702, 709 (Minn. App. 2008). A warrantless search




                                              3
is presumptively unreasonable. Harrison v. Comm’r of Pub. Safety, 781 N.W.2d 918, 920

(Minn. App. 2010).

       But a search warrant is not required “if the subject of the search consents.” State v.

Brooks, 838 N.W.2d 563, 568 (Minn. 2013). Consent must be made freely and voluntarily.

Id. This court determines whether consent is voluntary by considering the totality of the

circumstances. Id. This consideration includes “the nature of the encounter, the kind of

person the defendant is, and what was said and how it was said.” State v. Dezso, 512

N.W.2d 877, 880 (Minn. 1994). A person does not consent simply by acquiescing to a

claim of lawful authority. Brooks, 838 N.W.2d at 569.

       Millonig agreed to take a breath test after Officer Streefland read her the implied-

consent advisory and informed her that refusal to take the test constituted a crime. “[A]

driver’s decision to agree to take a test is not coerced simply because Minnesota has

attached the penalty of making it a crime to refuse the test.” Id. at 570; Poeschel v. Comm’r

of Pub. Safety, 871 N.W.2d 39, 46 (Minn. App. 2015) (rejecting argument that consent was

involuntary because the appellant told the officers she would take the test only because the

law required it). In Brooks, the supreme court concluded that the driver voluntarily

consented to testing, considering that: (1) he was not confronted with repeated questioning

nor asked to consent after spending “days in custody,” (2) he consulted with an attorney

before submitting to testing, and (3) law enforcement read the implied-consent advisory to

him prior to testing. Id. at 571–72.

       Similarly here, Millonig was not confronted with repeated questioning or asked to

consent after a lengthy period in custody; Officer Streefland began the implied-consent


                                             4
advisory approximately 26 minutes after stopping Millonig’s vehicle, and Millonig agreed

to take the test shortly thereafter. Officer Streefland also read the implied-consent advisory

to Millonig before the test, and Millonig consulted with an attorney before taking the test.

       Millonig asserts that Brooks is distinguishable because the driver in Brooks had been

arrested on numerous occasions for DWI. The fact that Brooks was a “veteran drunk

driver” was but one factor that was considered. See id. at 569–72. Moreover, because

Millonig was also previously convicted of DWI, this consideration also supports the district

court’s decision here. Therefore, the district court did not err by concluding that Millonig

validly consented to the breath test.

Constitutionality of Statute

       Millonig next argues that Minnesota’s test-refusal statute violates her constitutional

right to due process because it criminalizes the exercise of her right to withhold consent to

a warrantless search. The constitutionality of a statute is a question of law that this court

reviews de novo. State v. Ness, 834 N.W.2d 177, 181 (Minn. 2013). Minnesota statutes

are presumed constitutional, and a reviewing court will declare a statute unconstitutional

“only when absolutely necessary.” State v. Melde, 725 N.W.2d 99, 102 (Minn. 2006)

(quotation omitted). Minnesota’s test-refusal statute provides that “[i]t 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.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure;

revocation of license).” Minn. Stat. § 169A.20, subd. 2 (2014).

       In State v. Bernard, the supreme court held that a warrantless breath test was

constitutional under the search-incident-to-arrest exception to the Fourth Amendment’s


                                              5
warrant requirement. 859 N.W.2d 762. 772 (Minn. 2015), cert. granted, 136 S. Ct. 615

(Dec. 11, 2015). While Bernard is currently under review in the Supreme Court, it remains

the law in this state until and unless overturned. See State v. M.L.A., 785 N.W.2d 763, 767

(Minn. App. 2010) (“[T]his court[] is bound by supreme court precedent . . . .”), review

denied (Minn. Sept. 21, 2010). Thus, following Bernard, we conclude that Minnesota’s

test-refusal statute does not violate Millonig’s constitutional right to due process of law.

Unconstitutional-Conditions Doctrine

       Millonig also argues that the test-refusal statute violates the unconstitutional-

conditions doctrine. “Minnesota’s test-refusal statute does not violate the unconstitutional-

conditions doctrine by imposing a criminal penalty on a person who has been arrested for

driving while impaired and has refused to submit to a breath test.” State v. Bennett, 867

N.W.2d 539, 540 (Minn. App. 2015), review denied (Minn. Oct. 28, 2015). We therefore

reject this challenge to the test-refusal statute.

       Affirmed.




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