                         This opinion will be unpublished and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
                                     A13-1818

                             Arturo James Ortega, petitioner,
                                      Respondent,

                                            vs.

                             Commissioner of Public Safety,
                                     Appellant.


                                   Filed July 21, 2014
                                        Reversed
                                   Halbrooks, Judge

                               Rice County District Court
                                File No. 66-CV-13-1316

Barry L. Hogen, Golden Valley, Minnesota (for respondent)

Lori Swanson, Attorney General, James E. Haase, Assistant Attorney General, St. Paul,
Minnesota (for appellant)

       Considered and decided by Smith, Presiding Judge; Halbrooks, Judge; and

Hudson, Judge.

                        UNPUBLISHED OPINION

HALBROOKS, Judge

       In this appeal by the commissioner of public safety of an order rescinding the

revocation of respondent’s driver’s license, appellant argues that the district court erred

by ruling that respondent did not voluntarily consent to the urine test because he was
under arrest and had been informed that criminal penalties would result from refusal. We

reverse.

                                         FACTS

       On March 17, 2013, at approximately 2:00 a.m., Rice County Sheriff’s Deputy

Belcourt saw respondent Arturo James Ortega back his vehicle into a parked car in

Faribault. The deputy stopped the vehicle, identified respondent by his Minnesota ID

card, and detected a strong odor of alcoholic beverage.        In response to questions,

respondent stated that he was coming from a bar and that he had had four or five beers

since 9:00 or 10:00 p.m. Respondent performed poorly on three field sobriety tests—the

horizontal gaze nystagmus, one-leg stand, and walk-and-turn tests. Respondent then took

a preliminary breath test, which resulted in a reading of .095. A status check revealed

that respondent’s driver’s license was suspended.

       The deputy placed respondent under arrest and transported him to the Rice County

Law Enforcement Center. The deputy read respondent the implied-consent advisory,

which informed him that he had the right to consult with an attorney before making a

decision about testing, and asked whether he would provide a urine sample. Respondent

stated that he understood the advisory, that he did not wish to speak with an attorney, and

that he would submit to the urine test. The sample was collected at 2:12 a.m. and showed

an alcohol concentration of .10.

       The Minnesota Commissioner of Public Safety revoked respondent’s driver’s

license for a period of 90 days under the Minnesota Implied Consent Law, Minn. Stat.

§§ 169A.50-.52 (2012). Respondent challenged the revocation in district court, arguing


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that under Missouri v. McNeely, 133 S. Ct. 1552 (2013), the search of his urine was not

within a per se exigency exception to the warrant requirement and that there were no

exigent circumstances here, because only twelve minutes had elapsed between the stop of

the vehicle and the collection of the sample. The parties stipulated to the facts as

presented in the implied-consent reports. The district court rescinded the revocation,

determining that there were no exigent circumstances and that the commissioner had not

proved by a preponderance of the evidence that respondent’s submission to the urine test

was free and voluntary. The commissioner now appeals.

                                    DECISION

      “When the facts are not in dispute, the validity of a search is a question of law

subject to de novo review.” Haase v. Comm’r of Pub. Safety, 679 N.W.2d 743, 745

(Minn. App. 2004). The United States and Minnesota Constitutions protect against

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

Taking and testing a blood, breath, or urine sample constitutes a search under the Fourth

Amendment. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402,

1412-13 (1989). A warrantless search is unreasonable unless it falls within an exception

to the warrant requirement. State v. Flowers, 734 N.W.2d 239, 248 (Minn. 2007).

      The exigency created by the dissipation of alcohol in the body is not per se

sufficient to dispense with the warrant requirement. McNeely, 133 S. Ct. at 1561. But a

warrantless search is valid if the person voluntarily consents to the search. State v.

Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). The

state bears the burden of showing by a preponderance of the evidence that the defendant


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freely and voluntarily consented. Id. Whether consent is given freely and voluntarily is

determined by examining the “totality of the circumstances.” Id. (quotation omitted).

       The district court, which issued its order before our supreme court’s opinion in

Brooks, ruled that because the implied-consent advisory criminalizes the refusal to submit

to testing and respondent was under arrest, his consent to testing was coerced. But the

supreme court in Brooks held 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, it is uncontested that the deputy complied with all the

requirements of administering the implied-consent advisory.       Respondent was asked

whether he wished to speak with an attorney, and he stated that he did not. He was asked

whether he would submit to a test, and he stated that he would do so. Under these

circumstances, the district court erred in rescinding the revocation of respondent’s

driver’s license. Accordingly, we reverse the district court’s order. Because we reverse

the district court’s order on the ground that respondent validly consented to the

warrantless search, we do not address the commissioner’s additional arguments in

support of reversal.

       Reversed.




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