                        This opinion will be unpublished and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
                                   A13-0286

                              Jon Earl Miller, petitioner,
                                      Appellant,

                                          vs.

                           Commissioner of Public Safety,
                                  Respondent.

                                Filed August 4, 2014
                                      Affirmed
                                  Peterson, Judge

                           Otter Tail County District Court
                              File No. 56-CV-12-2262

Robert M. Christensen, Steven J. Wright, Robert M. Christensen, P.L.C., Minneapolis,
Minnesota (for appellant)

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

      Considered and decided by Schellhas, Presiding Judge; Peterson, Judge; and

Connolly, Judge.

                       UNPUBLISHED OPINION

PETERSON, Judge

      Appellant challenges the district court’s order sustaining his license revocation

under the implied-consent law, arguing that the vehicle stop was unlawful and that
breath-test results should have been suppressed because he did not voluntarily consent to

the test. We affirm.

                                         FACTS

       Otter Tail County sheriff’s deputy Zachary Eifert saw a red pickup truck on

County Highway 41 in Otter Tail County that he believed was traveling in excess of the

speed limit. As he followed the truck at a distance of approximately 200 to 250 yards, he

saw the truck cross over the fog line five times and over the center line twice. After

stopping the truck and identifying the driver as appellant Jon Earl Miller, Eifert arrested

him for driving while impaired (DWI) and transported him to the Otter Tail County

Detention Center.

       At the detention center, Eifert read Miller the standard implied-consent advisory

form, which stated that Minnesota law required him to take a test to determine whether he

was under the influence of alcohol; test refusal is a crime; he had the right to consult an

attorney; and any unreasonable delay would be considered a refusal. Miller said that he

understood, declined to contact an attorney, and agreed to take a breath test, which

showed an alcohol concentration of 0.14. Eifert testified that Miller was cooperative

throughout the stop and the testing procedure. The operator who administered the breath

test, A. Mueller, also noted that Miller was “very cooperative.”

       Miller contested the license revocation, asserting that Eifert did not have a

reasonable articulable suspicion of criminal behavior to support the stop and that Miller

did not voluntarily consent to the breath test because the implied-consent advisory was

coercive. The district court sustained the license revocation.


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       Miller filed a notice of appeal on February 4, 2013. On April 17, 2013, the United

States Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013), was

issued. Miller’s appeal was stayed pending the Minnesota Supreme Court’s decision in

State v. Brooks, 838 N.W.2d 563, 567 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014).

After the Brooks decision was released on October 23, 2013, this court lifted the stay in

Miller’s appeal.

                                       DECISION

                                               I.

       Miller argues that the stop of his truck was “constitutionally unlawful,” because

Eifert did not have a reasonable articulable suspicion that Miller was engaged in criminal

activity to support an investigative stop. The United States and Minnesota Constitutions

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

§ 10. But a peace officer may make an investigative stop if “the stop was justified at its

inception by reasonable articulable suspicion, and . . . the actions of the police during the

stop were reasonably related to and justified by the circumstances that gave rise to the

stop in the first place.” State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011) (quotations

omitted). “Reasonable suspicion must be based on specific, articulable facts that allow

the officer to . . . articulate . . . that he or she had a particularized and objective basis for

suspecting the seized person of criminal activity.” Id. at 842-43 (quotation omitted).

Reasonable suspicion requires more than a hunch or a whim, but it is a lesser standard

than probable cause. Id. at 843. Reasonable suspicion may be based on the officer’s




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observation of even an insignificant traffic violation. State v. Doebel, 790 N.W.2d 707,

709 (Minn. App. 2010), review denied (Minn. Jan. 26, 2011).

       We review the district court’s factual findings regarding an investigative stop for

clear error and its legal conclusions de novo. Sarber v. Comm’r of Pub. Safety, 819

N.W.2d 465, 468 (Minn. App. 2012). This court defers to the district court’s assessment

of witness credibility. Wilkes v. Comm’r of Pub. Safety, 777 N.W.2d 239, 245 (Minn.

App. 2010).

       Eifert testified that he saw Miller’s truck cross the fog line five times and the

center line twice. Eifert noted that he saw the truck at 2:30 a.m., a time when it was

common to observe impaired driving because of bar closing time. The district court

concluded that this was sufficient to provide Eifert with a reasonable articulable suspicion

of impaired driving. Miller argues that Eifert was “foggy” in his testimony and that a

squad video showed Miller driving in a “smooth and unexceptional” manner. But the

district court found Eifert credible and accepted his testimony. The district court also

noted that the squad video was initiated after Miller’s erratic driving conduct and rejected

Miller’s contention that the video undermined Eifert’s testimony.

       Based on the totality of the circumstances, Eifert had a reasonable articulable

suspicion that Miller was driving while impaired that supported his decision to make an

investigatory stop. See id. at 244-45.




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                                             II.

       In the district court, Miller argued that evidence of the breath-test results should be

suppressed because Eifert forced him to submit to a warrantless search that was not

subject to a warrant exception. The district court rejected this argument, stating that

              it is clear from the record that when requested by Deputy
              Eifert to submit to a breath test, [Miller] consented. The
              breath sample was taken upon [Miller’s] clear consent.
              Therefore, there is no reasonable basis to believe that
              [McNeely] will render [Miller’s] consent involuntary or the
              seizure of his breath sample unlawful.

       Miller now argues that the state has failed to show that, under the totality of the

circumstances, he was not coerced into giving his consent to the breath test. Miller

distinguishes Brooks because (1) Brooks had a lengthy history of DWI arrests, whereas

Miller had no prior arrests and would feel the normal stress of an individual placed under

arrest for the first time in his life; (2) Brooks consulted with an attorney, while Miller did

not; (3) Eifert advised Miller of the consequences of refusing, but he did not advise

Miller that he had a right to refuse the test; and (4) Brooks’s obstreperous behavior

indicated that he was not intimidated, while Miller’s compliance suggests that he felt he

could not refuse the test.

       In Brooks, the supreme court acknowledged that chemical testing under the DWI

and implied-consent laws is a search subject to Fourth Amendment protections; as such, a

warrant is required unless the search falls under an exception to the warrant requirement.

838 N.W.2d at 568. No warrant is necessary if the subject of the search consents to the

warrantless search. Id. Whether a person freely and voluntarily consented is determined



                                              5
by examining the totality of the circumstances. Id. “Consent to search may be implied

by action, rather than words. And consent can be voluntary even if the circumstances of

the encounter are uncomfortable for the person being questioned. An individual does not

consent, however, simply by acquiescing to a claim of lawful authority.” Id. at 568-69.

“‘Voluntariness’ is a question of fact and it varies with the facts of each case.” State v.

Dezso, 512 N.W.2d 877, 880 (Minn. 1994).

       The supreme court stated that an analysis of the totality of the circumstances

begins with the statutory requirements of the implied-consent law: (1) anyone who drives

a motor vehicle in Minnesota consents to chemical testing to determine the presence of

alcohol; (2) before requiring testing, a peace officer must have probable cause to believe

a person has been driving while impaired by alcohol; and (3) an advisory must be given

explaining that the law requires that a driver suspected of driving while impaired must

take a test, the person may consult with an attorney, and that there are consequences for

refusing. Id. at 569. If these statutory requirements are met, the court will consider other

relevant circumstances to determine whether a person consented to testing. Id. Among

these are “‘the nature of the encounter, the kind of person the defendant is, and what was

said and how it was said.’” Id. (quoting Dezso, 512 N.W.2d at 880).

       Next, the supreme court stated that the sole fact that there is a penalty for refusal

does not coerce a driver to take a test. Id. at 570. Under Minnesota law, a driver may

refuse the test and may not be forced to submit to testing, although he may suffer a

penalty for making that choice. Id. The supreme court recognized that someone in

custody may be more susceptible to coercion, but the fact of arrest alone is not sufficient


                                             6
to negate consent, particularly if the person is not confronted by repeated questioning or a

long period in custody. Id. at 571. The right to consult with counsel mitigates coercion.

Id. at 571-72. Finally, the supreme court concluded that the implied-consent advisory

makes clear to an individual “that he had a choice of whether to submit to testing.” Id. at

572.

       Here, all of the statutory requirements were met; the stop and arrest were routine;

nothing in the record indicates that Eifert or anyone else intimidated or sought to

intimidate Miller; and Miller was advised of his right to counsel but declined the

opportunity to consult with counsel. Miller’s testimony at the implied-consent hearing

was limited to the circumstances of the stop, and he did not indicate in any way that he

did not consent to the breath test. After listening to the testimony, the district court found

that Miller consented to the breath test and Miller gave a “clear consent.”

       We agree that the state met its burden to show that, under the totality of the

circumstances, Miller voluntarily consented to the breath test and, therefore, no search

warrant was necessary.

       Affirmed.




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