                         This opinion will be unpublished and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
                                    A14-0913

                         Del Roy Lloyd Wendt, III, petitioner,
                                     Appellant,

                                          vs.

                            Commissioner of Public Safety,
                                   Respondent.

                                Filed March 30, 2015
                                      Affirmed
                                    Smith, Judge

                              Anoka County District Court
                                File No. 02-CV-14-163

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

Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

      Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and

Smith, Judge.
                         UNPUBLISHED OPINION

SMITH, Judge

        We affirm the district court’s order sustaining the revocation of appellant’s

driver’s license because, if a seizure occurred, it was reasonable, and appellant’s consent

to a breath test was given voluntarily and was not based upon a misstatement of the law.

                                         FACTS

        A Blaine police officer, while driving in her squad car, came across a vehicle in a

ditch. She then saw a vehicle stopped in the road while a person later identified as

appellant Del Roy Wendt crossed the street in front of it, walking away from the accident

with a dog in his arms. Wendt saw the squad car as it approached the accident but did not

stop.

        The officer tried to get Wendt’s attention to speak to him, but he continued

walking away. In order to speak to Wendt, the officer pulled up near him, turned her

emergency lights on, exited her vehicle, and called out while approaching Wendt. While

talking to Wendt, the officer observed that he was bleeding from the nose, smelled of

alcohol, and had bloodshot, watery eyes. After questioning him and conducting field

sobriety tests, the officer arrested Wendt for driving while impaired.

        The officer handcuffed Wendt, put him in her squad car, then read him the implied

consent advisory. The advisory informed Wendt that he was required by Minnesota law

to submit to alcohol testing and could be prosecuted for a crime if he refused. Wendt

invoked his right to contact an attorney before deciding whether to submit to testing. The

officer then transported Wendt to the Blaine Police Department and gave him a phone to


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contact an attorney. While speaking to the attorney, Wendt asked the officer if she would

seek a warrant. The officer replied that she was not required to do so for a breath test.

Subsequently, Wendt submitted to a breath test, which reported an alcohol concentration

of .22.

          Respondent Commissioner of Public Safety revoked Wendt’s driver’s license, and

Wendt petitioned for judicial review.       The district court sustained the revocation,

concluding that the officer reasonably seized Wendt to conduct a welfare check and to

investigate the accident and that the totality of circumstances demonstrated that Wendt

validly consented to the breath test.

                                        DECISION

                                             I.

          Wendt argues that the officer unreasonably seized him after arriving at the

accident scene. “We will not reverse a district court’s findings regarding the legality of a

search and seizure unless the findings are clearly erroneous or contrary to law.” Overvig

v. Comm’r of Pub. Safety, 730 N.W.2d 789, 792 (Minn. App. 2007) (citing In re Welfare

of G.M., 560 N.W.2d 687, 690 (Minn. 1997)), review denied (Minn. Aug. 7, 2007). Both

the United States and Minnesota Constitutions prohibit an unreasonable search and

seizure by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. However,

limited seizures to check a person’s welfare or to investigate possible criminal activity

may be reasonable. See State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001); State v.

Lopez, 698 N.W.2d 18, 24 (Minn. App. 2005).




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       Without deciding whether a seizure took place or at what point Wendt may have

been seized, we hold that a seizure was reasonable under the circumstances. A police

officer may initiate a limited investigative stop when the officer has a reasonable,

articulable suspicion of criminal activity. Richardson, 622 N.W.2d at 825. To determine

whether an officer has a reasonable suspicion, we look at the totality of the circumstances

and must ensure that the stop is not “the product of mere whim, caprice, or idle

curiosity.” In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn. App. 2005) (quotation

omitted), review denied (Minn. June 28, 2005). The district court may consider the

officer’s experience, general knowledge, and observations; background information,

including the time and location of the stop; and anything else that is relevant. Appelgate

v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987). “The issue is whether

objective, reasonable, articulable suspicion of a violation of law existed at the time of the

stop.” State v. Beall, 771 N.W.2d 41, 45 (Minn. App. 2009).

       Here, the officer found a single-car accident, which may have been the result of

inattentive driving or driving while impaired. The vehicle was empty, and Wendt was the

only person walking in the vicinity. Because the officer observed Wendt walking away

from the vehicle, carrying a dog in his arms, not merely walking a dog, she inferred that

he had come from the vehicle in the ditch. The officer had a duty to investigate why the

vehicle was in the ditch, see Kozak v. Comm’r of Pub. Safety, 359 N.W.2d 625, 628

(Minn. App. 1984), and had a reasonable basis for suspecting that Wendt was either the

driver of the vehicle or a possible witness to the accident. Because the officer had a




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reasonable suspicion that a law had been violated resulting in the accident, a seizure was

reasonable.

      In addition, a seizure is reasonable in emergencies when         (1) the officer is

“motivated by the need to render aid or assistance,” and (2) a reasonable person would

believe that an emergency existed under the circumstances. Lopez, 698 N.W.2d at 23.

“[T]he officer must be permitted to make contact with the individual and ensure that the

individual does not require additional medical assistance.” Id.

      Again, the officer found a vehicle in a ditch when weather conditions were poor;

and, under such conditions, a reasonable person would believe that an emergency existed.

The officer suspected that anyone in the car at the time it went into the ditch could be

injured and inferred that Wendt had been in the car because he was walking nearby with a

dog in his arms. The officer testified that she was concerned for Wendt’s welfare. Even

though the officer did not observe any injuries to Wendt before making contact with him,

such an observation is not a prerequisite. The welfare check is to determine if the person

is injured, otherwise many would go unassisted because their injuries were not apparent

at a distance. And, in fact, on closer inspection, the officer observed bleeding from

Wendt’s nose, indicating that Wendt was injured.           Consequently, a seizure was

reasonable as a welfare check as well.

                                            II.

      Wendt next argues that the state did not meet its burden of proof to show that

Wendt freely and voluntarily consented to the breath test. A breath test is a search under

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


                                            5
S. Ct. 1402, 1413 (1989). Warrantless searches are presumed unreasonable, State v.

Othoudt, 482 N.W.2d 218, 222 (Minn. 1992), and any evidence acquired as a result must

be suppressed, Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415-16

(1963); State v. Askerooth, 681 N.W.2d 353, 370 (Minn. 2004). However, searches

conducted with valid, voluntary consent are an exception. State v. Brooks, 838 N.W.2d

563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). The state has the burden of

proving voluntary consent by a preponderance of the evidence. Id. “The question of

whether consent is voluntary is a question of fact, and is based on all relevant

circumstances,” Othoudt, 482 N.W.2d at 222, and we therefore review for clear error,

State v. Cox, 807 N.W.2d 447, 450 (Minn. App. 2011).

       Wendt contends that the evidence shows that he merely agreed to the breath test

and his agreement was coerced because he was arrested and “repeatedly told that any

attempt to refuse would be considered a crime.” However, the Minnesota Supreme Court

has held that the implied consent advisory is clear that a choice must be made to submit

to testing, that being under arrest at the time the choice is presented “is not dispositive,”

and that the opportunity to consult an attorney supports a finding of voluntary consent.

Brooks, 838 N.W.2d at 571-72. Wendt was not just given the opportunity to speak with

an attorney, he actually did so. Only after speaking with an attorney and asking the

officer questions did Wendt indicate that he understood the advisory and expressly

consented to the test. As in Brooks, Wendt was not subjected to repeated questioning, did

not spend extended time in custody before consenting, or experience any coercive




                                             6
elements other than being under arrest.        The district court did not clearly err in

determining that Wendt’s consent was voluntary based on the totality of circumstances.

      Finally, Wendt argues that his due-process rights were violated because the

implied consent advisory and the officer’s statement misled him into believing that a

warrant was not required and that he must consent to a breath test. Whether Wendt’s

due-process rights were violated is a question of law, which we review de novo. See

Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 413 (Minn. 2007).

      Wendt cites McDonnell v. Commissioner of Public Safety, 473 N.W.2d 848 (Minn.

1991), in support of the proposition that the implied consent advisory cannot be used to

mislead a person about the law. In McDonnell, the supreme court held that the advisory

was misleading because the appellant in that case was informed that she could be

prosecuted for test refusal, when in fact she could not. 473 N.W.2d at 855. At the time,

prosecution for test refusal required a prior license revocation, which the appellant

lacked. See Minn. Stat. § 169.121, subd. 1a (Supp. 1989). Here, Wendt was informed

that he could be prosecuted for test refusal, which was legally accurate. See Minn. Stat.

§ 169A.20, subd. 2 (2012). While Wendt again focuses on the use of the term “require”

to support his argument that the advisory is misleading, the supreme court has held that

the advisory makes clear that one may refuse the test. See Brooks, 838 N.W.2d at 571-

72.

      Wendt also contends that he “tried in vain to exercise the right to a warrant” and

was told that one was not necessary in his case, which he argues was a misstatement of

the law. However, we have held that a breath test is a reasonable search, even if


                                           7
warrantless, given the weight of the state’s interests in preventing drunken driving and

ensuring road safety against the diminished expectation of privacy that an individual has

when operating a motor vehicle. Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717,

726-30 (Minn. App. 2014). Under Stevens, the officer did not misstate the law. Because

Wendt was not misled, his due-process rights were not violated.

      Affirmed.




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