                          This opinion will be unpublished and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
                                     A15-1495

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Paige Julieanna Wentzel,
                                        Appellant.

                                   Filed July 18, 2016
                                        Affirmed
                                       Ross, Judge

                             Hennepin County District Court
                                File No. 27-CR-14-2229

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

Kenneth N. Potts, Kenneth N. Potts, P.A., Mound City Attorney, Minnetonka, Minnesota
(for respondent)

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


         Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Stauber,

Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

         Police arrested Paige Wentzel for driving while impaired, read her the implied-

consent advisory, and administered a breath test on her agreement. The test showed that
Wentzel’s alcohol concentration was 0.19, and the state charged her with driving while

impaired. Wentzel moved the district court to suppress the test results, arguing that her

consent was involuntary. The district court denied the motion and found Wentzel guilty.

Because the district court did not clearly err by finding that the circumstances demonstrate

that Wentzel freely and voluntarily consented to the test, we affirm.

                                         FACTS

       Early one morning in January 2014, Orono police officer Brent Rasmussen stopped

a Land Rover for speeding. Officer Rasmussen smelled the strong odor of an alcoholic

beverage coming from the driver, 18-year-old Paige Wentzel. He also noticed that her

speech was slurred and her eyes were watery. The officer administered field sobriety tests,

which indicated that Wentzel was intoxicated. Wentzel took a preliminary breath test,

which corroborated the officer’s impression that she was drunk.

       Officer Rasmussen arrested Wentzel and took her to the police station. He read her

the implied-consent advisory, which, among other things, warns, “Minnesota law requires

you to take a [chemical] test” and “[r]efusal to take a test is a crime.” Wentzel said she

understood. She first said she did not want to contact an attorney but soon changed her

mind and called her father, a retired lawyer. She spent more than 20 minutes talking with

him. Officer Rasmussen then asked her to take a breath test. She agreed to take the test,

which indicated an alcohol concentration of 0.19, twice the statutory limit of 0.08.

       The state charged Wentzel with fourth-degree driving while impaired based

alternatively on her alcohol concentration from the test results and on her physical

impairment. She unsuccessfully moved the district court to suppress the test results,


                                             2
arguing that her consent was coerced. Wentzel stipulated to the state’s evidence on the

alcohol-concentration charge under criminal rule 26.01, subdivision 4, in exchange for the

state’s dismissal of the impairment charge. The district court found that Wentzel freely and

voluntarily consented to the breath test and found her guilty. This appeal follows.

                                      DECISION

       Wentzel argues that the breath test violated her constitutional rights because she did

not freely and voluntarily consent to it. The United States and Minnesota Constitutions

protect individuals from unreasonable searches. U.S. Const. amend. IV; Minn. Const. art.

I, § 10. A breath test is a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616–

17, 109 S. Ct. 1402, 1413 (1989). A warrantless search conducted without probable cause

is per se unconstitutional. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). But a warrant

is unnecessary when one consents to the test. State v. Brooks, 838 N.W.2d 563, 568 (Minn.

2013). A district court’s voluntariness decision is a matter of fact reviewed for clear error.

State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). It depends on the totality of

circumstances, including “the nature of the encounter, the kind of person the defendant is,

and what was said and how it was said.” Id. (quotation omitted). A driver’s agreement to

take a chemical test is not coerced simply because Minnesota has criminalized test refusal.

Brooks, 838 N.W.2d at 570. And the Supreme Court has recently deemed constitutional

Minnesota’s statute criminalizing a driver’s breath-test refusal. See Birchfield v. North

Dakota, No. 14-1468, 2016 WL 3434398 (U.S. June 23, 2016).

       Wentzel’s situation is similar to that of the appellant in Brooks. There the supreme

court held that Brooks consented to testing based on several facts: he was not repeatedly


                                              3
questioning or asked to consent after days in custody; he had the opportunity to consult

with a lawyer before taking the test; and police read him the implied-consent advisory,

which implied he had a choice whether to take the test. Brooks, 838 N.W.2d at 571–72.

Wentzel similarly agreed to take a breath test shortly after being arrested, was read the

implied-consent advisory, and was given the opportunity to speak with an attorney.

       Wentzel tries to distinguish Brooks. She fails. Wentzel notes that she was less

familiar with the law and the justice system than was Brooks, but system familiarity was

but one factor in Brooks. She cites caselaw discussing the susceptibility of juveniles

pressured by authority figures, like police, see, e.g., J.D.B. v. North Carolina, 564 U.S.

261, 271–77, 131 S. Ct. 2394, 2402–06 (2011), but she is a young adult, not a juvenile. She

highlights that she did not first speak with a practicing impaired-driving attorney. But the

Brooks court analyzed the attorney call this way: “[T]hat Brooks consulted with counsel

before agreeing to take each test reinforces the conclusion that his consent was not illegally

coerced.” 838 N.W.2d. at 571 (emphasis added). The term “reinforces” implies that the

attorney call merely added to the court’s conclusion and that it would not have decided

differently even if Brooks had not called counsel. It is “the ability to consult with counsel”

that makes a subsequent decision more likely voluntary. Id. at 572. Wentzel, like Brooks,

had “the ability to” contact an attorney. The officer gave her phonebooks and the chance

to call any attorney. That she reached a retired attorney rather than a practicing implied-

consent attorney does not suggest coercion.

       Wentzel also maintains that she was never told that she had the right to refuse the

test. The record defeats the argument. Although Officer Rasmussen did not expressly tell


                                              4
Wentzel that she could refuse the test, she was read the implied-consent advisory, which

informed her that “[r]efusal to take a test is a crime.” This implicitly indicated that the test

may be refused. See id. at 570 (“Police read Brooks the implied consent advisory before

asking him whether he would take all three tests, which makes clear that drivers have a

choice of whether to submit to testing.”). And although Wentzel testified at an implied-

consent hearing that she took the test because she felt she had no choice, her statements on

cross-examination demonstrate that she knew she could refuse the test:

              Q:      So when you were read paragraph 4, before making
                      your decision about testing, you must make a decision
                      on you own, you must make your decision within a
                      reasonable period of time; what does that mean to you?
              A:      That I have to decide whether or not to take the test --
              Q:      Ok- --
              A:      -- and within a certain amount of time.
              Q:      -- okay. So it would be your decision whether or not to
                      take the test; correct?
              A:      Correct.

       We are also unpersuaded by Wentzel’s argument that her consent was involuntary

because Officer Rasmussen told her she could go home if she took the test. The officer’s

statement that she could be released to her father after she took the test was an accurate

explanation of what could happen if she complied. It was not coercive. The totality of the

circumstances supports the district court’s finding that Wentzel freely and voluntarily

consented to the test.

       Affirmed.




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