                          This opinion will be unpublished and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
                                     A14-0918

                                    State of Minnesota,
                                        Respondent,

                                             vs.

                                   Maurice Lee Meyer,
                                       Appellant.


                                Filed December 15, 2014
                                       Affirmed
                                    Halbrooks, Judge

                               Mower County District Court
                                File No. 50-CR-13-1241

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

Thomas C. Baudler, Austin City Attorney, Austin, Minnesota (for respondent)

Brandon V. Lawhead, Lawhead Law Offices, Austin, Minnesota (for appellant)

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

Bjorkman, Judge.

                         UNPUBLISHED OPINION

HALBROOKS, Judge

       Following his conviction of third-degree driving while impaired, appellant

challenges the district court’s denial of his motion to suppress evidence of his breath test.
Appellant argues that the district court erred in determining that he voluntarily consented

to a breath test after being advised that refusal to submit to the test is a crime. We affirm.

                                          FACTS

       On May 10, 2013, at approximately 9:30 p.m., a Mower County sheriff’s deputy

responded to a call of an erratic driver. The deputy stopped the vehicle after it nearly hit

his squad car, identified the driver, noted heavily slurred speech, and detected a light odor

of an alcoholic beverage. Meyer stated that he had consumed one vodka beverage.

Getting out of the vehicle, Meyer tripped and almost fell into the lane of traffic. He then

failed three field sobriety tests: horizontal gaze nystagmus, one-leg stand, and walk-and-

turn, as well as a preliminary breath test. A status check revealed that Meyer’s driver’s

license was revoked due to a 2012 impaired driving incident.

       The deputy placed Meyer under arrest and transported him to the Mower County

law-enforcement center, where he read Meyer the implied-consent advisory. Meyer

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

would submit to a breath test. The test was completed at 10:59 p.m. and showed an

alcohol concentration of .10.

       The state charged Meyer with operating a motor vehicle under the influence of

alcohol in violation of Minn. Stat. § 169A.20, subd. 1(1) (2012), and operating a motor

vehicle with an alcohol concentration of .08 or more in violation of Minn. Stat.

§ 169A.20, subd. 1(5) (2012). Meyer moved to suppress the evidence of his breath test,

arguing that under Missouri v. McNeely, 133 S. Ct. 1552 (2013), the warrantless search

violated his Fourth Amendment rights. The state stipulated that there were no exigent


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circumstances.     Following an omnibus hearing, the district court denied Meyer’s

suppression motion, finding that the implied-consent statute is not unconstitutionally

coercive and that, under the totality of the circumstances, Meyer voluntarily consented to

the breath test.   After a stipulated-facts trial, the district court convicted Meyer of

violating Minn. Stat. § 169A.20, subd. 1(5). Meyer 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

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

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




                                            3
       Meyer argues that his consent was coerced rather than voluntarily given because

the deputy had advised him that refusal to submit to a test is a crime. But our 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 probable cause existed to arrest Meyer for driving under

the influence and that the deputy complied with all requirements of administering the

implied-consent advisory.     Meyer 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 properly

found that Meyer voluntarily consented to the breath test. Accordingly, we affirm the

district court’s denial of Meyer’s motion to suppress evidence.

       Affirmed.




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