                         This opinion will be unpublished and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
                                    A13-1816

                            Stephanie Ann Keim, petitioner,
                                      Appellant,

                                          vs.

                            Commissioner of Public Safety,
                                   Respondent.

                                Filed August 25, 2014
                                      Affirmed
                                    Reilly, Judge

                             Wright County District Court
                              File No. 86-CV-13-2713

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Jacob Fischmann, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

       Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and

Reilly, Judge.

                        UNPUBLISHED OPINION

REILLY, Judge

       Appellant Stephanie Ann Keim challenges the district court’s order sustaining the

revocation of her driving privileges under the implied consent law, arguing that the

district court wrongly admitted hearsay evidence regarding the traffic stop. Appellant
further argues that the warrantless urine test was unconstitutional and her right to counsel

was not vindicated. We affirm.

                                          FACTS

       On April 14, 2013, Deputy Bobbi Olson of the Wright County Sheriff’s Office

was assigned to a high priority call involving a threat of suicide.         While traveling

southbound on County Road 12, Deputy Olson caught up to a vehicle driven by

appellant. Deputy Olson saw appellant’s vehicle cross over the center line six or seven

times, veer to the right shoulder, and strike the curb before correcting back into the

driving lane. Deputy Olson contacted Deputy Nick Lee to assist in stopping appellant’s

vehicle while Deputy Olson continued to her initial destination. While speaking with

Deputy Lee, Deputy Olson saw appellant’s vehicle veer off to the right and strike the

curb again. Deputy Olson shared her observations regarding appellant’s driving conduct

with Deputy Lee while the officers were speaking on the phone. Appellant’s vehicle

slowed down and continued to drive on the shoulder, at which point Deputy Olson

determined it was unsafe to let appellant continue driving and initiated a traffic stop.

       Deputy Lee arrived at the scene and Deputy Olson continued to the high priority

call. Deputy Lee approached the vehicle at 9:23 p.m. and noticed that appellant had

bloodshot and watery eyes, slurred speech, and smelled of an alcoholic beverage.

Appellant admitted to Deputy Lee that she had consumed two alcoholic drinks. The

officer conducted a series of standard field sobriety tests and administered a preliminary

breath test, which revealed an alcohol concentration of .153. The officer placed appellant

under arrest for suspicion of driving under the influence and transported her to jail.


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       At 10:07 p.m., Deputy Lee read appellant the Minnesota implied consent advisory.

Appellant asked to speak to an attorney and a telephone was made available to her.

Appellant said she did not have the telephone number for her attorney and Deputy Lee

located the attorney’s telephone number and dialed the telephone for her.        Appellant

spoke to someone at her attorney’s office for several minutes and then stated that she was

finished. Deputy Lee asked appellant if she would take a breath test and she refused.

After speaking with her attorney a second time, appellant agreed to take a breath test and

it was administered at 10:25 p.m.

       Appellant did not blow enough air into the breath-testing machine and, after two

attempts, it registered a deficient sample.       The officer reread appellant the implied

consent advisory at 10:50 p.m. and gave appellant another opportunity to speak with her

attorney. Appellant attempted to call her attorney over 15 times but was unsuccessful.

Deputy Lee reread the implied consent advisory and emphasized that if appellant was

unable to contact an attorney she would have to make a decision on her own. Appellant

made another telephone call and stated that she was done. Appellant agreed to take a

urine test and the toxicology report showed an alcohol concentration of .15.

       Appellant’s driving privileges were subsequently revoked as a result of the

chemical test.   Appellant filed a petition seeking rescission of her driver’s license

revocation and challenging the constitutionality of the urine test. Appellant raised a

hearsay objection at the implied consent hearing, challenging the basis for the initial stop

because Deputy Olson was unavailable to testify at the hearing. The district court did not

credit this argument. It determined that the standard for a motor vehicle stop was “less


                                              3
than probable cause” under Minnesota Rule of Evidence 1101 and that “reasonable

suspicion can be established by information received from other individuals.”           The

district court sustained appellant’s driver’s license revocation and this appeal followed.

                                      DECISION

                                              I.

       “Rulings on evidentiary matters rest within the sound discretion of the district

court and will not be reversed on appeal absent a clear abuse of discretion.” In re Source

Code Evidentiary Hearings in Implied Consent Matters, 816 N.W.2d 525, 537 (Minn.

2012). An appellant has the burden of establishing that the district court abused its

discretion and that the appellant was prejudiced. State v. Amos, 658 N.W.2d 201, 203

(Minn. 2003).

       Deputy Olson was unavailable to testify during the implied consent hearing.

Deputy Lee was ready to testify at the implied consent hearing but never actually did.

Instead the parties stipulated to the admission of the police reports and agreed that the

district court could consider the reports in reaching its decision.

       However, appellant argued that the district court should disregard what Deputy

Olson told Deputy Lee on the telephone because those statements violated the hearsay

rule. The district court concluded that reasonable suspicion could be established by

information received from other individuals and would allow Deputy Lee’s testimony

regarding the initial traffic stop. The district court recognized that the rules of evidence

apply “to all actions and proceedings in the courts of this state.” Minn. R. Evid. 1101.

Rule 1101 enumerates certain situations where the rules of evidence do not apply


                                              4
including preliminary questions of fact, grand juries, contempt proceedings, and

“miscellaneous” proceedings such as probable cause hearings. Id. The district court

determined that, because “the standard for a motor vehicle stop is less than probable

cause,” the rules of evidence did not apply and Deputy Lee could testify as to the basis

for the stop.

        Appellant argues that the district court misapplied the rules of evidence by

considering Deputy Lee’s proffered testimony about what Deputy Olson told him

regarding the basis for stopping appellant’s vehicle, in violation of Minnesota’s hearsay

rules. It is well-settled that implied consent proceedings are civil in nature. State v.

Wagner, 637 N.W.2d 330, 337 (Minn. App. 2001). Accordingly, the rules of evidence

apply and reliable hearsay statements are admissible in implied consent proceedings. See

Heuton v. Comm’r of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995) (applying

rules of evidence); Kunz v. Comm’r of Pub. Safety, 349 N.W.2d 593, 596 (Minn. App.

1984) (same).

        Hearsay is a “statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn.

R. Evid. 801(c). Hearsay is admissible only when specifically provided for by the rules

of evidence. Minn. R. Evid. 802. Hearsay may be admissible under certain exceptions,

including statements of a declarant’s then existing state of mind. Minn. R. Evid. 803(3).

Rule 803(3) provides in relevant part that “[a] statement of the declarant’s then existing

state of mind, emotion, sensation, or physical condition” are not excluded by the hearsay

rule.


                                            5
       Here, the record shows that while Deputy Lee and Deputy Olson were speaking on

the telephone, Deputy Olson relayed her observations about appellant’s driving conduct

as it was happening. The state argues that Deputy Lee’s testimony was admissible as an

exception to the hearsay rule. To be admissible under the state-of-mind exception, “[t]he

statement must be contemporaneous with the mental state sought to be proven,” there

must be “no suspicious circumstances suggesting a motive for the declarant to fabricate

or misrepresent his or her thoughts,” and the declarant’s state of mind “must be relevant

to an issue in the case.” State v. DeRosier, 695 N.W.2d 97, 104-05 (Minn. 2005).

       Deputy Olson’s statements to Deputy Lee occurred contemporaneously with the

vehicle stop, they were relevant to an issue in the case, and there has been no suggestion

that Deputy Olson had a motive to fabricate her thoughts. Deputy Lee’s testimony was

admissible as a “statement of the declarant’s then existing state of mind,” Minn. R. Evid.

803(3), and the district court did not abuse its discretion in holding that Deputy Lee could

testify regarding the basis for the stop of appellant’s vehicle. Moreover, the district

court’s findings are supported by its consideration of Deputy Olson’s police reports.

During the implied consent hearing, appellant stipulated to the admission of the police

reports, the implied consent advisory, and the test results. The parties agreed that the

district court could consider the police reports in rendering its decision. Appellant has

not challenged the trustworthiness of these police reports on appeal.

       We are further persuaded by the state’s argument that Deputy Lee’s testimony was

admissible under the collective-knowledge doctrine. Under this doctrine, “the entire

knowledge of the police force is pooled and imputed to the arresting officer for the


                                             6
purpose of determining if sufficient probable cause exists for an arrest.”          State v.

Conaway, 319 N.W.2d 35, 40 (Minn. 1982). The collective knowledge of the police

“may provide the basis for an investigatory stop,” and the factual basis justifying an

investigatory stop “need not be known to the officer acting in the field.” Magnuson v.

Comm’r of Pub. Safety, 703 N.W.2d 557, 559-60 (Minn. App. 2005). Thus, it is not

necessary for the arresting officer to have firsthand knowledge of the facts substantiating

the arrest. State v. Radil, 288 Minn. 279, 283, 179 N.W.2d 602, 605 (1970). Instead, an

officer may act “on the strength of information received from the department.”

Conaway, 319 N.W.2d at 40.          Here, the district court correctly recognized that

“reasonable suspicion can be established by information received from other individuals”

and imputed Deputy Lee with knowledge of the facts known by Deputy Olson in

conducting the arrest.    See State v. Lemieux, 726 N.W.2d 783, 789 (Minn. 2007)

(imputing knowledge of officers involved in a search when some degree of

communication existed between officers). We therefore conclude that the district court’s

reliance on the collective-knowledge doctrine was not an abuse of its discretion.

                                            II.

       Appellant challenges the constitutionality of the warrantless chemical test. The

United States and Minnesota Constitutions prohibit unreasonable searches and seizures.

U.S. Const. amend. IV; Minn. Const. art. I, § 10. A blood, breath, or urine sample

constitutes a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S.

Ct. 1402, 1413 (1989); State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied,

134 S. Ct. 1799 (2014). A warrantless search is valid “if the subject of the search


                                            7
consents.” Id. In order for the consent exception to apply, the state must show by a

preponderance of the evidence that the defendant “freely and voluntarily consented.” Id.

Whether consent is voluntary must be determined on a case-by-case basis examining the

totality of the circumstances. State v. Lemert, 843 N.W.2d 227, 233 (Minn. 2014) (citing

Missouri v. McNeely, 133 S. Ct. 1552, 1563 (2013)). This analysis includes “the nature

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

said.” Brooks, 838 N.W.2d at 569 (citation omitted).

       Given the totality of the circumstances, the uncontested facts demonstrate that

appellant’s consent was freely and voluntarily given. Appellant performed field sobriety

tests as requested by the officer, who also administered a preliminary breath test. Based

upon her observations of these test results, the officer placed appellant under arrest and

read her the implied consent advisory. The wording of the advisory is compelled by

statute as set forth in Minnesota Statute section 169A.51, subdivision 2 (2012). Under

Minnesota’s implied consent law, anyone who drives a motor vehicle in the state

consents to a chemical test for the purpose of determining the presence of alcohol when

certain conditions are met.    Minn. Stat. § 169A.51, subd. 1(a) (2012); Brooks, 838

N.W.2d at 569. A police officer may require someone to submit to a test when the officer

“has probable cause to believe the person committed the offense of driving while

impaired and the person has been lawfully arrested for driving while impaired.” Brooks,

838 N.W.2d at 569. As part of the advisory, appellant was told both that Minnesota law

requires the person to take a test and that refusing to submit to the test is a crime. Minn.

Stat. § 169A.51, subd. 2(1)-(2).


                                             8
       Appellant contends that she was unable to consult with an attorney prior to taking

the urine test. The Minnesota Supreme Court has articulated that under the right-to-

counsel clause in article I, section 6 of the Minnesota Constitution, “an individual has the

right, upon request, to a reasonable opportunity to obtain legal advice before deciding

whether to submit to chemical testing.” Friedman v. Comm’r of Pub. Safety, 473 N.W.2d

828, 835 (Minn. 1991). However, due to the “evanescent nature” of the evidence in DWI

cases, the accused is only entitled to a limited amount of time within which to contact an

attorney. Id. An individual’s right to counsel is considered vindicated when he or she is

provided with a telephone prior to testing and given a reasonable amount of time within

which to contact and consult with an attorney. Nelson v. Comm’r of Pub. Safety, 779

N.W.2d 571, 574 (Minn. App. 2010).

       Appellant was properly advised of her right to counsel. Deputy Lee read the

implied consent advisory numerous times, each time explaining to appellant her right to

consult with an attorney for the purpose of deciding whether to submit to a chemical test.

Deputy Lee assisted appellant in finding her attorney’s phone number and allowed her to

use the telephone numerous times to seek counsel. Appellant spoke with an individual at

her attorney’s office prior to taking a breath test. The fact that she was unable to reach

her attorney on subsequent attempts to discuss the urine test does not invalidate the test.

Indeed, the right to counsel is vindicated even when the accused cannot locate his or her

own attorney and there are no other attorneys the accused wishes to call. Kuhn v.

Comm’r of Pub. Safety, 488 N.W.2d 838, 841-42 (Minn. App. 1992), review denied

(Minn. Oct. 20, 1992). Appellant was given the opportunity to speak with an attorney


                                             9
and agreed to submit to a urine test. The district court did not err in determining that

appellant freely and voluntarily consented to a urine test after having a reasonable

amount of time within which to consult with an attorney and sustaining the revocation of

appellant’s driving privileges.

       Affirmed.




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