                           This opinion will be unpublished and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
                                      A14-1244

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                    Kyle Allen Snyder,
                                        Appellant

                                   Filed August 3, 2015
                                         Affirmed
                                       Smith, Judge

                              Kandiyohi County District Court
                                  File No. 34-CR-13-649

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

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

Daniel Mohs, Spicer, Minnesota (for appellant)

         Considered and decided by Smith, Presiding Judge; Hudson, Judge; and Worke,

Judge.

                          UNPUBLISHED OPINION

SMITH, Judge

         We affirm the district court’s denial of a motion to suppress breath-test results

because the police officer did not coerce appellant Kyle Snyder into consenting to the

breath test.
                                         FACTS

       Deputy Jared Lange stopped Snyder’s truck because his tail light was out. During

the traffic stop, Deputy Lange observed that Snyder’s eyes were bloodshot and watery

and he had the “odor of an alcoholic beverage coming from him.” After performing field

sobriety tests and a preliminary breath test, Deputy Lange arrested Snyder for driving

while impaired (DWI). Deputy Lange then read Snyder the implied-consent advisory.

Snyder “concedes that Deputy Lange had a lawful basis to stop his vehicle, had probable

cause to believe he was driving while impaired, lawfully placed [him] under arrest and

properly advised him of the statutory requirements regarding chemical testing under the

implied consent law.”

       After hearing the implied-consent advisory, Snyder stated that he thought he had a

right to a blood test. Deputy Lange responded that he was only offering a breath test, but

that Snyder could arrange an additional blood test on his own and at his own expense if

he wanted one. Snyder agreed to a breath test. Deputy Lange wrote in his report that he

said he “would help [Snyder] make the arrangements and make sure he was able to get

that additional test” if Snyder was held in jail. But the video recording of Deputy Lange

reading the implied-consent advisory did not reveal any such promise made before

Snyder agreed to and took the breath test.

       The breath test measured Snyder’s alcohol concentration at .12. Deputy Lange

explained that Snyder would be held in jail, and Snyder “indicated he had no further

questions.” Snyder was then booked into jail.




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       The state charged Snyder with second-degree DWI, and Snyder moved to suppress

the breath test results as an unreasonable, warrantless search. The district court denied

Snyder’s motion. On stipulated facts, Minn. R. Crim. P. 26.01, subd. 4, the district court

found Snyder guilty.

                                     DECISION

       Snyder argues that he was coerced into consenting to a breath test by Deputy

Lange’s promise to assist him with obtaining an additional blood test and by stating in the

implied-consent advisory that test refusal is a crime.

       The federal and state constitutions prohibit unreasonable warrantless searches.

See 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). But a

warrantless search is not unreasonable “if the subject of the search consents.” See State

v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014).

“The question of whether consent is voluntary is a question of fact,” State v. Othoudt, 482

N.W.2d 218, 222 (Minn. 1992), and we therefore review for clear error, State v. Cox, 807

N.W.2d 447, 450 (Minn. App. 2011). “Whether consent is voluntary is determined by

examining the totality of the circumstances.” Brooks, 838 N.W.2d at 568 (quotation

omitted).

       Generally, an officer is not acting coercively when he provides an accurate

summary of relevant law. See Moe v. Comm’r of Pub. Safety, 574 N.W.2d 96, 98-99

(Minn. App. 1998), review denied (Minn. Apr. 14, 1998). A person who has submitted to

chemical testing has the right to an additional test by his own arrangement and at his own


                                             3
expense. Minn. Stat. § 169A.51, subd. 7(b) (2014). “The failure or inability to obtain an

additional test does not preclude the admission of the [breath] test administered by the

officer unless the additional test was prevented or denied by the peace officer.” Umphlett

v. Comm’r of Pub. Safety, 533 N.W.2d 636, 638 (Minn. App. 1995) (quotation omitted),

review denied (Minn. Aug. 30, 1995).

       An officer is under no obligation to explain the right to additional testing or ask

the driver if he would like additional testing. Schulz v. Comm’r of Pub. Safety, 760

N.W.2d 331, 334 (Minn. App. 2009). By discussing the right to additional testing,

Deputy Lange did not engage in a coercive tactic, but rather accurately explained the law

regarding additional testing. None of Deputy Lange’s statements on the video recording

could be construed as a promise to assist with additional testing, notwithstanding the

phrasing of the incident report. But, even if they could be, Snyder was obliged to make

an affirmative request for additional testing because Snyder testified that the deputy’s

offer of assistance was contingent upon whether he actually wanted an additional test.

Whether Snyder made such a request is also a factual question, subject to review for clear

error. See id. at 333-34.

       In Schulz, the driver requested a blood test when offered a urine test, but the

officer declined. Id. at 332. After submitting to a urine test, the driver made no request

for additional testing. Id. at 333. We concluded that the driver failed to assert his right to

additional chemical testing by failing to request it after submitting to the offered test. Id.

at 335. Similarly, Snyder expressed a preference for a blood test over a breath test, but

made no request for additional testing after the breath test, despite being informed about


                                              4
his right. Snyder testified that Deputy Lange offered to help him with additional testing

if he wanted it, but that he did not specifically request an additional test from Deputy

Lange, the booking officer, or the officer that escorted him to the holding cell.

       The implied-consent video recording also demonstrates that Deputy Lange

explained that Snyder could arrange his own additional test if he wanted, but Snyder

never confirmed that he wanted an additional test either before or after agreeing to the

breath test. In fact, after agreeing to the breath test, Snyder stated that he had asked about

a blood test because he was under the impression that, by requesting a blood test, he

would be immediately released and he needed to get home to his children because his

wife was out of town. After learning that requesting a blood test would have no effect on

his release, Snyder did not show any further interest in an additional test. Therefore, the

district court did not clearly err by finding that Snyder made no request for additional

testing and that Deputy Lange’s statements were not coercive.

       In addition, the Minnesota Supreme Court has expressly rejected the argument that

the implied-consent advisory is unconstitutionally coercive. See Brooks, 838 N.W.2d at

568. Because neither Deputy Lange’s statements nor the implied-consent advisory were

unconstitutionally coercive, the district court did not clearly err by finding that Snyder

voluntarily consented to the breath test.

       Affirmed.




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