                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0277


                        Mitchell Edwin Morehouse, petitioner,
                                     Appellant,

                                         vs.

                           Commissioner of Public Safety,
                                  Respondent.


                               Filed August 29, 2016
                              Reversed and remanded
                                 Bjorkman, Judge


                            Kanabec County District Court
                               File No. 33-CV-15-265

Charles A. Ramsay, Daniel J. Koewler, Jay S. Adkins, Ramsay Law Firm, P.L.L.C.,
Roseville, Minnesota (for appellant)

Lori Swanson, Attorney General, Dominic J. Haik, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

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

Klaphake, Judge.




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                         UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant challenges the revocation of his driver’s license, arguing that his due-

process rights were violated when he was advised that he could be criminally punished if

he refused to submit to a chemical test, and that his consent to a warrantless blood test was

coerced. We reverse and remand.

                                          FACTS

       Shortly after midnight on August 30, 2015, Trooper Travis Koenen of the Minnesota

State Patrol encountered a vehicle operating with only its flashers illuminated. Trooper

Koenen stopped the vehicle and identified the driver as appellant Mitchell Edwin

Morehouse. Believing that Morehouse was intoxicated, Trooper Koenen arrested him for

driving while impaired (DWI) and transported him to the Kanabec County Jail.

       At the jail, Trooper Koenen read the Minnesota Implied Consent Advisory, part of

which informed Morehouse that refusal to submit to chemical testing is a crime. Trooper

Koenen asked Morehouse if he understood the advisory, and he responded, “Yes.”

Morehouse was provided a phone and a phone book in order to contact an attorney.

Morehouse asked to use the restroom. Because he intended to ask Morehouse to take a

urine test, Trooper Koenen denied Morehouse’s request. After approximately one hour,

Morehouse indicated that he was done using the phone.

       Trooper Koenen asked Morehouse to provide a urine sample. Morehouse declined,

but agreed to submit to a blood test, which revealed an alcohol concentration of 0.149.

Respondent Commissioner of Public Safety subsequently revoked Morehouse’s driver’s


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license. Morehouse filed a petition for judicial review of the revocation. Following an

evidentiary hearing, the district court concluded that Morehouse’s consent to the blood test

was voluntary, under the totality of the circumstances, and sustained the revocation.

Morehouse appeals.

                                       DECISION

I.     Morehouse’s due-process argument fails because the advisory he received was
       accurate at the time it was given.

       Morehouse first urges us to reverse his license revocation because the implied-

consent advisory he received was incorrect and thereby violated his substantive due-

process rights. See McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855 (Minn.

1991) (stating that when an officer threatens criminal charges the state is not authorized to

impose, an individual’s due-process rights are violated). To support this argument,

Morehouse cites State v. Trahan, a case decided after Morehouse’s arrest, in which this

court held that the statute criminalizing refusal to submit to a warrantless blood test violates

due process. 870 N.W.2d 396, 404 (Minn. App. 2015), review granted (Minn. Nov. 25,

2015). We are not persuaded. Unlike the situation in McDonnell, Trooper Koenen did not

actively mislead Morehouse regarding his statutory obligation to undergo chemical testing.

McDonnell, 473 N.W.2d at 853-54. Indeed, the advisory Morehouse received was legally

accurate at the time it was given. Morehouse has not persuaded us to extend the holding

in McDonnell to these circumstances. Accordingly, we turn to his Fourth Amendment

argument.




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II.    Birchfield v. North Dakota requires remand to the district court to determine
       the validity of Morehouse’s consent to the warrantless blood test.

       The United States and Minnesota Constitutions protect individuals from

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

“Taking [a] blood . . . sample[] from someone constitutes a ‘search’ under the Fourth

Amendment.” State v. Brooks, 838 N.W.2d 563, 567 (Minn. 2013). “A search conducted

without a warrant is per se unreasonable unless an exception applies.” Ellingson v. Comm’r

of Pub. Safety, 800 N.W.2d 805, 807 (Minn. App. 2011), review denied (Minn. Aug. 24,

2011). “But police do not need a warrant if the subject of the search consents.” Brooks,

838 N.W.2d at 568.

       To satisfy the consent exception to the warrant requirement, the state must show by

a preponderance of the evidence that consent was freely and voluntarily given. Id. Courts

analyze the totality of the circumstances to determine whether consent was voluntary. Id.

This includes examining the nature of the encounter, the kind of person the defendant is,

what was said, and how it was said. State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011).

“An individual does not consent . . . simply by acquiescing to a claim of lawful authority.”

Brooks, 838 N.W.2d at 569. The issue of whether consent was voluntary or the product of

coercion is a question of fact, which we review for clear error. Diede, 795 N.W.2d at 846.

       The district court analyzed the totality of the circumstances and concluded that

Morehouse’s consent to the blood test was “freely and voluntarily given.” But during the

pendency of this appeal, the United States Supreme Court held that an individual may not

be criminally prosecuted for refusing a warrantless blood test, even if the person was



                                             4
lawfully arrested for DWI, unless case-specific exigent circumstances justify the

warrantless search. Birchfield v. North Dakota, 136 S. Ct. 2160, 2185-86 (2016) (also

holding that “a breath test, but not a blood test, may be administered as a search incident

to a lawful arrest”).

       In Birchfield, the Supreme Court consolidated three cases, including petitioner

Beylund’s challenge to the revocation of his North Dakota driver’s license. Id. at 2172.

Beylund was arrested for DWI, and received an implied-consent advisory that advised him

that refusing to submit to chemical testing to determine his alcohol concentration was a

crime. Id. Beylund agreed to a blood test, which revealed an alcohol concentration above

the legal limit. Beylund’s driver’s license was subsequently suspended. Id.

       The North Dakota Supreme Court affirmed Beylund’s license suspension on the

ground that he voluntarily consented to the blood test. Id. at 2186. The United States

Supreme Court vacated the judgment and remanded, noting that the North Dakota Supreme

Court’s holding was premised on the erroneous theory that the state could compel a blood

test. Id. Because voluntariness of consent to a search is determined by analyzing the

totality of the circumstances, the Supreme Court directed the state court on remand “to

reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory.” Id. at

2186-87.

       The Supreme Court’s holding in Birchfield, with respect to Beylund, is on all fours

with this case. Like Beylund, Morehouse only consented to the warrantless blood test after

Trooper Koenen advised him that failure to submit to a chemical test was a crime. Because

Birchfield established that Morehouse could not be criminally prosecuted for refusing to


                                             5
submit to a blood test in this situation, Trooper Koenen’s advisory was partially inaccurate.

Accordingly, we reverse the order sustaining Morehouse’s license revocation and remand

to the district court for determination of whether Morehouse’s consent was voluntary in

light of all of the circumstances, including the partial inaccuracy of Trooper Koenen’s

advisory.1 We leave to the district court the decision whether to reopen the record on

remand.

       Reversed and remanded.




1
  In reassessing the voluntariness of Morehouse’s consent, the district court may also
consider whether the warrantless blood test supports license revocation on other grounds.
See Birchfield, 136 S. Ct. at 2186 n.9 (stating that if the court on remand finds that consent
was not voluntary, it must determine whether the evidence obtained in the search must be
suppressed when the search was done pursuant to a state statute and is offered in an
administrative rather than criminal proceeding); see also State v. Lindquist, 869 N.W.2d
863, 876 (Minn. 2015) (describing good-faith exception to the exclusionary rule).

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