                        This opinion will be unpublished and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
                                   A13-0818

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                              Danielle Lynn DeMarais,
                                     Appellant.

                                 Filed July 21, 2014
                                      Affirmed
                                  Peterson, Judge

                           Mille Lacs County District Court
                               File No. 48-CR-11-2410

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

Janice S. Jude, Mille Lacs County Attorney, Tara Christel Ferguson Lopez, Assistant
County Attorney, Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Andrew Schmitz,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Connolly, Judge.

                       UNPUBLISHED OPINION

PETERSON, Judge

      In this appeal from a conviction of gross-misdemeanor driving while impaired

(DWI), appellant argues that the district court erred in admitting the alcohol-
concentration evidence obtained from appellant's breath test when the state did not

establish an exception to the warrant requirement. Because appellant waived this issue

by failing to raise it before the district court, we affirm.

                                            FACTS

          Appellant Danielle Lynn DeMarais and three of her friends were sitting inside

appellant’s car, which was parked in the driveway of a residence. Appellant was sitting

in the driver’s seat drinking a beer. Mille Lacs County Sheriff’s Deputy Mitch Lawler

drove by the residence, which was in foreclosure. Because foreclosure properties are

common targets for crimes, Lawler stopped to investigate.

          Lawler walked up to the driver’s side of the car, and appellant rolled down the

window. Lawler smelled a strong odor of alcohol coming from appellant. Appellant

admitted that she had been drinking that evening and that she drove the vehicle to the

residence. Appellant exhibited numerous signs of impairment when performing field

sobriety tests.

          Lawler arrested appellant and brought her to jail. At the jail, appellant admitted

that she was feeling the effects of alcohol. After Lawler read appellant the implied-

consent advisory, she submitted to a breath test, which showed an alcohol concentration

of .15.

          Appellant was charged with two counts of third-degree gross-misdemeanor DWI:

being in physical control of a motor vehicle while under the influence of alcohol and

being in physical control of a motor vehicle with an alcohol concentration of .08 or more




                                                2
within two hours of driving.1 Appellant waived all omnibus issues except any relating to

the admissibility of her statement to police. The case was tried to a jury. Appellant’s

breath-test result was admitted into evidence without objection. The jury found appellant

guilty of both DWI counts. The district court sentenced appellant on the offense of being

in physical control of a motor vehicle while impaired. This appeal followed.

                                      DECISION

       After appellant was sentenced and before this appeal was filed, the Supreme Court

issued its opinion in Missouri v. McNeely, holding that “natural metabolization of alcohol

in the bloodstream [does not] present[] a per se exigency that justifies an exception to the

Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-

driving cases.” 133 S. Ct. 1552, 1556 (2013). Appellant argues that, under McNeely, the

district court erred in admitting her breath-test result when the state did not establish that

an exception to the warrant requirement applied.

       Generally, a defendant’s failure to bring a suppression motion results in waiver:

              Defenses, objections, issues, or requests that can be
              determined without trial on the merits must be made before
              trial by a motion to dismiss or to grant appropriate relief. The
              motion must include all defenses, objections, issues, and
              requests then available. Failure to include any of them in the
              motion constitutes waiver . . . .

Minn. R. Crim. P. 10.01, subd. 2.

       A defendant who fails to object before trial to the admission of evidence allegedly

obtained in violation of her constitutional rights will generally be deemed to have waived

1
  Appellant was also charged with violating the open-container law, but that charge was
dismissed before trial.

                                              3
the issue. State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 550-51, 141 N.W.2d 3, 11

(1965); see also State v. Pederson–Maxwell, 619 N.W.2d 777, 780 (Minn. App. 2000)

(noting that “[i]n order for constitutional challenges to the admission of evidence to be

timely, objections to such evidence must be raised at the omnibus hearing” in the form of

a pretrial motion to suppress); State v. Brunes, 373 N.W.2d 381, 386 (Minn. App. 1985)

(holding that defendant waived his constitutional objection to admission of evidence by

failing to raise the issue at the omnibus hearing), review denied (Minn. Oct. 11, 1985).

But the court can grant relief from the waiver for good cause. Minn. R. Crim. P. 10.01,

subd. 2.

       The purpose of the waiver rule is to afford the state the opportunity to present

evidence and argument refuting a defendant’s suppression claim. State v. Needham, 488

N.W.2d 294, 296 (Minn. 1992); Brunes, 373 N.W.2d at 386. As a result of appellant’s

failure to raise the Fourth Amendment issue before the district court, the state was denied

that opportunity, and the record is not sufficiently developed for appellate review.

       Appellant argues that the doctrine of waiver should not be applied to this case

because McNeely was not decided until after appellant was sentenced. We recognize that

McNeely abrogated a Minnesota Supreme Court case holding that the natural dissipation

of alcohol in the bloodstream established a per se exigency that alone justified an

exception to the warrant requirement for nonconsensual blood testing in DWI cases.

McNeely, 133 S. Ct. at 1558 & n.2. But that does not change the need for a record that is

sufficiently developed for appellate review.




                                               4
       Appellant argues that this court should decline to apply waiver in the interests of

justice. But appellant has not shown good cause for granting relief from waiver. This is

not a case in which applying waiver would “perpetuate a substantial and essential

injustice in the sense that as a result an innocent [person] may have been convicted.”

Tahash, 272 Minn. at 551, 141 N.W.2d at 11.

       Even without the breath-test result, there was strong evidence that appellant was in

physical control of a motor vehicle while under the influence of alcohol. Appellant was

seated in the driver’s seat and admitted that she drove to the residence. Lawler smelled a

strong odor of alcohol coming from appellant, and appellant exhibited numerous signs of

impairment when performing field sobriety tests. Appellant also admitted that she had

been drinking and that she was feeling the effects of alcohol.

       Appellant waived the issue of the admissibility of her breath-test result by failing

to raise it before the district court and has not shown good cause for relief from that

waiver.

       Affirmed.




                                             5
