                         ‘This opinion will be unpublished and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
                                    A13-1526

                                 Tamara Ann Cowan,
                                    Respondent,

                                          vs.

                            Commissioner of Public Safety,
                                    Appellant.

                                  Filed July 21, 2014
                                       Reversed
                                  Rodenberg, Judge

                             Stearns County District Court
                               File No. 73-CV-13-3778

Brian Nelson 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 Chutich, Presiding Judge; Johnson, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant Commissioner of Public Safety challenges the district court’s order

rescinding the revocation of respondent Tamara Ann Cowan’s driver’s license. Because

the totality of the circumstances demonstrates that respondent consented to the chemical

test, we reverse.
                                         FACTS

       On April 21, 2013, Stearns County Sheriff’s Deputy Adam Johnson received a

report of a car in a ditch. After he arrived at the scene, he noticed that respondent had “a

strong odor of an alcoholic beverage coming from her” and had bloodshot, watery eyes

and slurred speech. Respondent was unable to satisfactorily perform the field sobriety

tests and admitted that she had been drinking alcohol.        Respondent submitted to a

preliminary breath test, which showed an alcohol concentration of .158. Deputy Johnson

placed respondent under arrest.

       At the police station, Deputy Johnson read respondent the implied consent

advisory. Respondent stated that she understood the advisory and that she wanted to

speak with an attorney. Respondent tried but was unable to reach an attorney. Deputy

Johnson then “asked [respondent] if she would take a breath test and she said yes.” The

breath test showed an alcohol concentration of .16.

       Appellant revoked respondent’s driver’s license pursuant to Minnesota’s Implied

Consent Law, Minn. Stat. § 169A.52, subd. 4(a) (2012), and respondent challenged the

revocation. At the implied consent hearing, the parties stipulated to the introduction of

(1) Deputy Johnson’s narrative report, (2) the implied consent-advisory form, and

(3) respondent’s breath-test results. The parties also stipulated that Deputy Johnson did

not seek a warrant before conducting the breath test. The district court rescinded the

revocation of respondent’s driver’s license, concluding that respondent’s “consent to the

breath test was coerced.” This appeal followed.




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                                     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). In reviewing the constitutionality of a search, “we independently

analyze the undisputed facts to determine whether evidence resulting from the search

should be suppressed.” Id. A district court’s conclusions of law are not overturned

“absent erroneous construction and application of the law to the facts.” Id.

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

free from unreasonable searches. U.S. Const. amend. IV; Minn. Const. art. I, § 10.

Collection and testing of a person’s breath constitutes a search under the Fourth

Amendment and requires a warrant or an exception to the warrant requirement. Skinner

v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13 (1989).

       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 a search to fall under

the consent exception, the [s]tate must show by a preponderance of the evidence that the

defendant freely and voluntarily consented.” Id. In determining whether consent is

voluntary, we consider the totality of the circumstances, “including the nature of the

encounter, the kind of person the defendant is, and what was said and how it was said.”

Id. at 568-69 (quotation omitted). In the implied consent context, the nature of the

encounter includes how the police came to suspect that the driver was driving under the

influence, how the request to submit to chemical testing was made, including whether the

driver was read the implied consent advisory, and whether the driver had the right to


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consult with an attorney. Id. at 569. “[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.

       In Brooks, our supreme court held that a driver voluntarily consented to testing

where he did not dispute the existence of probable cause to believe that he had been

driving while impaired, he was properly read the implied consent advisory, he was not

subjected to repeated police questioning and did not spend days in custody before

consenting, and he consulted with an attorney before he consented to testing. Id. at 569-

71. The district court here did not have the benefit of our supreme court’s decision in

Brooks when it held that respondent’s “consent to the breath test was coerced.”

       As in Brooks, respondent’s consent to the breath test was not coerced. The record

concerning consent consists of documentary evidence only (and a stipulation that Deputy

Johnson did not seek a warrant). That record establishes that Deputy Johnson responded

to a report of a car in a ditch and observed indicia of intoxication. Respondent failed

field sobriety testing and admitted that she had been drinking alcohol. Deputy Johnson

properly read the implied consent advisory. Respondent stated that she understood the

advisory and attempted to contact an attorney, but was unable to reach one. Respondent

then agreed to take a breath test. Based on the totality of the circumstances, respondent

voluntarily consented to the test. Nothing in this record shows that respondent “was

coerced in the sense that [her] will had been overborne and [her] capacity for self-

determination critically impaired.” See Brooks, 838 N.W.2d at 571. Because respondent

consented to the breath test, the district court erred in rescinding the revocation of


                                            4
respondent’s driver’s license, and we need not reach appellant’s other arguments on

appeal.

      Reversed.




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