                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2012).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A13-1518

                            Alex Michael Bistodeau, petitioner,
                                      Respondent,

                                             vs.

                              Commissioner of Public Safety,
                                      Appellant.

                                    Filed July 21, 2014
                                         Reversed
                                       Reilly, Judge

                               Stearns County District Court
                                 File No. 73-CV-12-11703

Brian N. Steele, Steele Law Offices, PLLC, Minnetonka, Minnesota (for respondent)

Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul,
Minnesota (for appellant)

         Considered and decided by Reilly, Presiding Judge; Ross, Judge; and Bjorkman,

Judge.

                          UNPUBLISHED OPINION

REILLY, Judge

         Appellant commissioner of public safety appeals the district court’s rescission of

respondent Alex Michael Bistodeau’s driver’s license revocation.          On appeal, the

commissioner argues that the district court erred when it concluded that Bistodeau’s

consent to a breath test was not voluntary. Bistodeau waived his right to file a brief in
this appeal. Because the record demonstrates that Bistodeau voluntarily consented to the

breath test, we reverse.

                                         FACTS

       Although the record is sparse, the facts are undisputed. On December 7, 2012, a

St. Cloud police officer arrested Bistodeau for driving while impaired.         The police

initially came into contact with Bistodeau because of an accident. Bistodeau admitted he

was drinking, and operating or in physical control of the car. The officer had probable

cause to believe Bistodeau was under the influence because of the odor of alcoholic

beverage, bloodshot eyes, poor balance, and admission. The officer read Bistodeau the

Minnesota motor vehicle implied-consent advisory, which informed him that Minnesota

law required that he take a test to determine if he was under the influence of alcohol, that

refusal to take a test was a crime, and that he had a right to consult with counsel before

making a decision about taking the test. Bistodeau declined the opportunity to consult

with counsel and agreed to take a breath test. The officer administered a breath test

around 10:00 p.m., and the test revealed an alcohol concentration of .13. The officer did

not obtain a search warrant before administering the breath test. Based on the results of

the breath test, the commissioner subsequently revoked Bistodeau’s driver’s license and

impounded his license plates.

       Bistodeau moved the district court to rescind the revocation, arguing that under

Missouri v. McNeely, 133 S. Ct. 1552 (2013), the search of his breath was not within a

per se exception to the warrant requirement and that the commissioner did not prove

either exigent circumstances or valid consent to the search.        At the May 14, 2013


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implied-consent hearing, both parties stipulated to the facts and entered two exhibits into

evidence.   The parties waived all issues but the McNeely issue.        The district court

rescinded the revocation, concluding that no exigent circumstances exception to the

warrant requirement existed and that Bistodeau’s consent to the breath test was coerced.

The commissioner appeals.

                                     DECISION

       The United States and Minnesota Constitutions guarantee the right to be secure

against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. 1,

§ 10. A breath test is a search. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616-17,

109 S. Ct. 1402, 1413 (1989).      In reviewing the constitutionality of a search, “we

independently analyze the undisputed facts to determine whether evidence resulting from

the search should be suppressed.” Haase v. Comm’r of Pub. Safety, 679 N.W.2d 743,

745 (Minn. App. 2004). Warrantless searches are unreasonable unless the state proves

that an exception to the warrant requirement applies. State v. Flowers, 734 N.W.2d 239,

248 (Minn. 2007).

       Consent is an exception to the warrant requirement. State v. Brooks, 838 N.W.2d

563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). For the consent exception

to apply, the state “must show by a preponderance of the evidence that the defendant

freely and voluntarily consented.” Id. Whether consent is voluntary must be determined

on a case-by-case basis and requires an examination of the totality of the circumstances.

State v. Lemert, 843 N.W.2d 227, 233 (Minn. 2014) (citing McNeely, 133 S. Ct. at 1536).

In determining whether consent is voluntary, this court considers the totality of the


                                            3
circumstances, “including the nature of the encounter, the kind of person the defendant is,

and what was said and how it was said.” Brooks, 838 N.W.2d at 569.

       In the implied-consent context, the nature of the encounter includes why police

suspected that the driver was driving under the influence, how the police requested

submission to the chemical testing, whether the driver was read the implied-consent

advisory, and whether the driver had the opportunity to consult with an attorney. Id. The

district court, which issued its order before the supreme court’s opinion in Brooks, ruled

that because the implied-consent advisory informed Bistodeau that the state criminalized

the refusal to submit to testing, respondent’s consent to chemical testing was coerced.

But the supreme court in Brooks stated that “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.

       Here, Bistodeau does not challenge the probable cause to arrest him for driving

while intoxicated. It is uncontested that the officer complied with the implied-consent

advisory requirements. The officer read Bistodeau the implied-consent advisory and

asked him whether he wished to consult with an attorney. Bistodeau declined to do so.

The officer then asked Bistodeau whether he would take a breath test, and he agreed to

the test. Furthermore, there is nothing in the record to suggest that Bistodeau was subject

to repeated police questioning or prolonged custody.

       Overall, this record indicates that Bistodeau voluntarily consented to the breath

test. Most significant, the only basis for the district court’s finding of coercion was its

legal determination that the weight of the implied-consent advisory is coercive—a


                                            4
determination that the supreme court foreclosed in Brooks.      Although the record is

limited due to the parties’ stipulations at the implied-consent hearing, there is enough

undisputed evidence in the record such that remand is not warranted.           Because

Bistodeau’s consent justified the warrantless search, the district court’s rescission of

Bistodeau’s driver’s license revocation was in error.

       The commissioner also raises additional arguments regarding Minnesota’s

implied-consent laws, the reasonableness of the search, and the application of the

exclusionary rule. Because the consent exception to the warrant requirement applies to

the collection of Bistodeau’s breath sample, it is not necessary to consider these

additional arguments.

       Reversed.




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