                         This opinion will be unpublished and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
                                    A13-2113

                              Philip Carl Naatz, petitioner,
                                       Appellant,

                                           vs.

                             Commissioner of Public Safety,
                                     Respondent

                                  Filed July 28, 2014
                                       Affirmed
                                   Peterson, Judge

                               Lyon County District Court
                                File No. 42-CV-13-616

Cecil E. Naatz, Marshall, Minnesota (for appellant)

Lori Swanson, Attorney General, Anne Catherine Fuchs, Assistant Attorney General, St.
Paul, Minnesota (for respondent)

      Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and

Schellhas, Judge.

                        UNPUBLISHED OPINION

PETERSON, Judge

      Appellant seeks review of a district court order sustaining the revocation of his

driver’s license under the implied-consent statute. We affirm.
                                        FACTS

      Marshall police officer Derick Determan was on routine patrol just after 3:00 a.m.

when he stopped a vehicle driven by appellant Philip Carl Naatz because one of the

vehicle’s headlights was out. Determan noticed that appellant had trouble pulling over

and operating his blinkers. While talking with appellant, Determan observed signs of

alcohol consumption. Appellant admitted drinking four or five beers that evening. After

appellant failed field sobriety tests, Determan arrested appellant and transported him to

jail. Determan read appellant the implied-consent advisory, and appellant said that he

understood the advisory. Appellant exercised his right to consult with an attorney, and

then he agreed to submit to a breath test, which revealed an alcohol concentration of .12.

Appellant’s driver’s license was revoked under the implied-consent statute, Minn. Stat.

§ 169A.52, subd. 4(a) (2012).

      Appellant petitioned for judicial review of the order revoking his license, and the

parties submitted the matter on an evidentiary record that included the police reports.

Appellant narrowed the issues presented to the district court to whether the breath-test

result should be suppressed based upon Missouri v. McNeely, 133 S. Ct. 1552 (2013).

The district court made the following findings of fact: appellant’s vehicle was stopped

for a traffic violation; appellant was arrested for driving while impaired; the implied-

consent advisory was read to appellant; appellant exercised his right to speak with an

attorney; after conferring with an attorney, appellant agreed to take a breath test; and

appellant’s license was revoked after the test revealed that his alcohol concentration was

.12. The district court concluded that appellant knowingly and voluntarily consented to


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the breath test. The court denied appellant’s petition to rescind the revocation. This

appeal followed.

                                    DECISION

        The Fourth Amendment protects the “right of the people to be secure . . . against

unreasonable searches and seizures.” U.S. Const. amend. IV; accord Minn. Const. art. I,

§ 10.    This right extends to people who are detained by police on suspicion of drunk

driving and asked to submit to chemical testing for the presence of alcohol. McNeely,

133 S. Ct. at 1558 (blood testing). A warrant is necessary for such a search unless an

exception to the warrant requirement applies. Id. When the facts are undisputed, the

validity of a search is a question of law, which we review de novo. Haase v. Comm’r of

Pub. Safety, 679 N.W.2d 743, 745 (Minn. App. 2004).

        In McNeely, the Supreme Court held that “natural metabolization of alcohol in the

bloodstream [does not] present[] a per se exigency that justifies an exception to the

Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-

driving cases” and that “exigency in this context must be determined case by case based

on the totality of the circumstances.” 133 S. Ct. at 1556. In State v. Brooks, 838 N.W.2d

563, 567 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014), the Minnesota Supreme

Court acknowledged that, under McNeely, three warrantless searches of Brooks’s blood

and urine could not “be upheld solely because of the exigency created by the dissipation

of alcohol in the body.” But the supreme court also considered whether the searches

could be upheld because Brooks consented to the searches. Id.




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       In the first incident, after Brooks was stopped for an apparent traffic violation, he

showed signs of intoxication, was read the implied-consent advisory, sought advice of

counsel, and agreed to provide a urine sample. Id. at 565. In the second incident, after

Brooks was stopped because sparks were flying underneath his vehicle, he showed signs

of intoxication, was read the implied-consent advisory, sought advice of counsel, and

agreed to take a blood test. Id. In the third incident, Brooks was stopped while asleep

behind the steering wheel of a running vehicle, showed signs of intoxication, was arrested

and read the implied-consent advisory, sought advice of counsel, and agreed to a urine

test. Id. at 565-66.

       The supreme court analyzed the totality of the circumstances in each of the three

incidents and applied the preponderance-of-evidence standard to determine the validity of

the warrantless searches under the consent exception to the warrant requirement. Id. at

568-70. The supreme court rejected Brooks’s claim that, because test refusal is a crime

in Minnesota, his consent was coerced. Id. at 570. The supreme court held “that Brooks

voluntarily consented to the searches . . . .” Id. at 569-70, 572.

       The district court issued its order denying appellant’s petition for rescission before

the Minnesota Supreme Court released its opinion in State v. Brooks. But the district

court applied essentially the same analysis to the warrantless search in this case as the

supreme court applied to the searches in Brooks.        Appellant’s letter brief to this court

acknowledges that the supreme court’s decision in Brooks “would seem to be dispositive

of this appellate issue” unless further review was granted in Brooks. Further review was

not granted.


                                              4
       The district court record and findings show that police had reasonable grounds for

stopping appellant’s vehicle and for suspecting that appellant was under the influence;

appellant was read the implied-consent advisory, said he understood the advisory,

consulted with an attorney, and agreed to take a breath test.      As in Brooks, these

circumstances establish that the warrantless search was valid because appellant

voluntarily consented to the search.

       Affirmed.




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