                        This opinion will be unpublished and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
                                   A13-1376

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Terry Gene Anderson,
                                      Appellant.

                                Filed August 11, 2014
                                      Affirmed
                                    Reilly, Judge

                            Meeker County District Court
                             File No. 47-CR-12-1057

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony D. Spector, Meeker County Attorney, Ricky Fidelis Lanners, Assistant County
Attorney, Litchfield, Minnesota (for respondent)

John E. Mack, Mack & Daby P.A., New London, Minnesota (for appellant)

      Considered and decided by Reyes, Presiding Judge; Reilly, Judge; and

Stoneburner, Judge.*




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                         UNPUBLISHED OPINION

REILLY, Judge

       On appeal from his driving while impaired convictions, appellant Terry Anderson

argues that his convictions must be reversed because (1) his consent to a warrantless

breath test was not voluntary; and (2) Minnesota’s implied-consent laws are

unconstitutional regulations of speech. Because the record demonstrates that Anderson

voluntarily consented to the breath test and he has not demonstrated that the implied-

consent laws are unconstitutional, we affirm.

                                          FACTS

       The facts are undisputed. Around midnight on October 27, 2012, Minnesota State

Patrol Sergeant Meagher noticed that the driver of a truck was not wearing a seatbelt.

Sergeant Meagher activated his emergency lights. Because there was no reaction from

the driver, later determined to be Anderson, Sergeant Meagher then activated his siren.

After traveling for three city blocks, Anderson pulled over onto the shoulder.      As

Sergeant Meagher approached the truck, Anderson attempted to roll down the window

but, instead, opened the door and almost fell out of the driver’s seat.

       Sergeant Meagher requested Anderson’s driver’s license and questioned him about

his lack of seatbelt. During this time, Sergeant Meagher smelled the strong odor of an

alcoholic beverage coming from inside the truck. After Anderson struggled to produce

his driver’s license, Sergeant Meagher conducted field sobriety tests, none of which

Anderson successfully performed. Sergeant Meagher then administered a preliminary

breath test. The breath test indicated an alcohol concentration of .194.


                                              2
       Sergeant Meagher arrested Anderson for driving while impaired (DWI) and, while

still at the scene of the traffic stop, read the Minnesota motor vehicle implied-consent

advisory form to Anderson. In reading the implied-consent advisory form, Sergeant

Meagher informed Anderson that Minnesota law requires him to take a test to determine

whether he is under the influence of alcohol; that refusing to take the test is a crime; that

he has the right to consult an attorney; and that any unreasonable delay is considered a

refusal.     Anderson confirmed he understood the advisory, declined to consult with

counsel, and agreed to take a breath test. After Sergeant Meagher drove Anderson to the

Meeker County jail, Sergeant Meagher administered the breath test at approximately

12:48 a.m. This test revealed an alcohol concentration of .21. Anderson had a prior DWI

conviction.

       Anderson moved to suppress the breath-test evidence, arguing that Minnesota

Statute section 169A.20 is unconstitutional under Missouri v. McNeely, 133 S. Ct. 1552

(2013), because it compels a warrantless search. The district court held a bench trial on

stipulated facts pursuant to Minnesota Rule of Criminal Procedure 26.01, subd. 4 and

State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).

           In its order, the district court rejected appellant’s argument that McNeely

prohibited a warrantless breath test. Instead, the district court limited the holding of

McNeely to blood tests and also found that Anderson consented to the breath test. The

district court also rejected Anderson’s argument that the implied-consent statute is

unconstitutional and denied Anderson’s motion to suppress the test results and dismiss




                                             3
the complaint. The district court convicted Anderson of two counts of second-degree

driving while impaired. Anderson appeals.

                                       DECISION

         Anderson contends the district court erred by denying his motion to suppress

evidence of his breath test, asserting that the test was a warrantless compelled search.

Because the facts are undisputed, the district court’s suppression order presents a

question of law that we review de novo. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.

1992).

         The federal and state constitutions guarantee the right to be secure against

unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. 1, § 10.

Testing a person’s breath constitutes a search under the Fourth Amendment and generally

requires a warrant. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616-17, 109 S. Ct.

1402, 1412-13 (1989); State v. Netland, 762 N.W.2d 202, 212 (Minn. 2009), abrogated

in part by McNeely, 133 S. Ct. 1552, as recognized in State v. Brooks, 838 N.W.2d 563,

567 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014).            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 if the state can show by a preponderance of the evidence that a

defendant “freely and voluntarily” consented to the search. State v. Diede, 795 N.W.2d

836, 846 (Minn. 2011).

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

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


                                               4
and what was said and how it was said.” Diede, 795 N.W.2d at 846. In the implied-

consent context, the nature of the encounter includes why law enforcement suspected that

the driver was driving under the influence, how law enforcement requested submission to

chemical testing, including whether the driver was read the implied-consent advisory, and

whether the driver had the ability to consult with an attorney. Brooks, 838 N.W.2d at

569.

       In Brooks, the supreme court held that the driver’s consent to testing was

voluntary because he did not challenge the probable cause that he had been driving under

the influence, he was properly read the implied-consent advisory, he consulted with an

attorney before consenting to testing, and he was not subjected to repeated police

questioning nor did he spend a prolonged period in custody. Id. at 571-72. The Brooks

court established that the criminal penalties for refusing a chemical test do not invalidate

consent that is otherwise voluntary under the totality of the circumstances. Id. at 570-71

(“[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.”).

       Here, the circumstances surrounding Anderson’s arrest and chemical testing are

substantially similar to those that the Brooks court held satisfactorily demonstrated

voluntary consent. Anderson does not challenge that Sergeant Meagher had probable

cause to arrest Anderson for DWI. Sergeant Meagher read Anderson the implied-consent

advisory, and Anderson told Sergeant Meagher that he understood the advisory and that

he did not wish to speak to an attorney. There is nothing in the record to suggest that law

enforcement subjected Anderson to repeated questioning or prolonged custody.


                                              5
       Anderson attempts to distinguish Brooks from his case because Anderson did not

speak to an attorney before consenting. In Brooks, although the defendant did consult

with an attorney before submitting to the chemical test, this fact is not dispositive when

reviewing the voluntariness of the consent. Brooks stated only that the driver should

have the ability to consult with an attorney. Id. at 572 (explaining that “the ability to

consult with counsel about an issue supports the conclusion that a defendant made a

voluntary decision”). Here, Sergeant Meagher gave Anderson the opportunity to consult

with an attorney, but Anderson declined to do so. Because the circumstances establish

that Anderson freely and voluntarily consented to the breath test, the district court did not

err in declining to suppress the breath-test results.

       Anderson also argues that Brooks is simply wrong. We are obligated to follow

Minnesota Supreme Court precedent. State v. Peter, 825 N.W.2d 126, 129 (Minn. App.

2012), review denied (Feb. 27, 2013). Moreover, the United States Supreme Court

recently denied the petition for writ of certiorari in Brooks. 134 S. Ct. 1799 (2014).

Thus, Anderson’s assertion that subsequent review of Brooks will provide relief under the

facts of this case is meritless.

       Finally, Anderson argues that Brooks does not dispose of his First Amendment

constitutional claim because requiring an individual to say “yes” or “no” to an implied-

consent advisory is a form of compelled protected speech and compelling this speech

violates his First Amendment rights under both the United States and Minnesota

Constitutions. We presume that a statute is constitutional. State v. Behl, 564 N.W.2d

560, 566 (Minn. 1997). The “power to declare a statute unconstitutional should be


                                               6
exercised with extreme caution and only when absolutely necessary.”          Id. A party

challenging the constitutionality of a statute bears a “very heavy burden” on appeal and

must demonstrate that the statute is unconstitutional beyond a reasonable doubt. State v.

Johnson, 813 N.W.2d 1, 11 (Minn. 2012). We review de novo a district court’s ruling on

the constitutionality of a statute. Id. at 4.

       A review of the record reveals that Anderson did not raise his First Amendment

argument in any of his previous filings or motions to the district court. We decline to

consider a constitutional challenge when it is not raised before and acted upon by the

district court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (“This court

generally will not decide issues which were not raised before the district court, including

constitutional questions of criminal procedure.”). Even if we were to address the merits

of this argument, Anderson’s reliance on two inapposite United States and Minnesota

Supreme Court cases does not satisfy the heavy burden of demonstrating that the implied-

consent statutes are unconstitutional.

       Affirmed.




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