                        This opinion will be unpublished and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
                                   A13-1475

                        Anna Marie Ashenbrenner, petitioner,
                                   Respondent,

                                         vs.

                           Commissioner of Public Safety,
                                   Appellant.

                                 Filed July 21, 2014
                                      Reversed
                                   Hudson, Judge

                            Dakota County District Court
                             File No. 19HA-CV-13-530


Samuel J. Edmunds, Sieben Edmunds PLLC, Mendota Heights, Minnesota (for
respondent)

Lori Swanson, Attorney General, Kristi Nielsen, Assistant Attorney General, St. Paul,
Minnesota (for appellant)


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

Smith, Judge.
                        UNPUBLISHED OPINION

HUDSON, Judge

       Appellant Commissioner of Public Safety appeals an order suppressing

respondent’s urine test for Fourth Amendment violations and rescinding the revocation of

respondent’s driver’s license.     Because the totality of circumstances shows that

respondent voluntarily consented to the urine test, we reverse.

                                         FACTS

       Respondent Anna Marie Ashenbrenner was arrested for driving while impaired

(DWI) after a Dakota County sheriff’s sergeant responded to a call about a vehicle stuck

in the snow. When they arrived at the jail, respondent was read the implied-consent

advisory. She stated that she understood the advisory and asked to call an attorney. The

officer assisted respondent in using her phone, and she left a message for her attorney.

She then told the officer she was done with the phone and agreed to take a breath test.

Respondent attempted two breath tests but both attempts were unsuccessful because she

was not breathing properly into the machine. Respondent then agreed to a urine test,

which showed an alcohol concentration of .29.

       Appellant revoked respondent’s driver’s license, and respondent sought judicial

review. All issues were waived except the admissibility of the urine test. The district

court suppressed the urine test and rescinded the revocation of respondent’s license,

concluding that the test was conducted in violation of respondent’s Fourth Amendment

rights because a warrant had not been obtained and no exception to the warrant

requirement applied.    After the district court’s order, the Minnesota Supreme Court


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

1799 (2014). On appeal, appellant argues that respondent voluntarily consented to the

urine test.

                                     DECISION

       Appellant argues that, based on the totality of the circumstances, respondent’s

consent to the urine test was free and voluntary. Both the United States Constitution and

the Minnesota Constitution guarantee individuals the right to be free from unreasonable

searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Under the

Fourth Amendment, police need a warrant supported by probable cause to conduct a

search unless an exception exists, such as the consent of the subject of the search.

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973). A urine

test is considered a search for Fourth Amendment purposes. Brooks, 838 N.W.2d at 568.

       The district court concluded that respondent’s consent was not voluntary because

respondent only agreed to take the test upon the threat of criminal penalties under the

implied-consent advisory. Brooks made clear that “a driver’s decision to agree to take a

test is not coerced simply because Minnesota has attached the penalty of making it a

crime to refuse the test.” Id. at 571. Brooks further held that a warrantless urine test is

constitutional if the defendant voluntarily consents. Id. at 572. For the consent exception

to apply, the state must “show by a preponderance of the evidence that consent was given

freely and voluntarily.”   State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011).            To

determine whether consent was voluntary, the totality of the circumstances must be

examined “including the nature of the encounter, the kind of person the defendant is, and


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what was said and how it was said.” State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999).

When the facts are not in dispute, this court reviews the validity of a search de novo.

Haase v. Comm’r of Pub. Safety, 679 N.W.2d 743, 745 (Minn. App. 2004).

       Respondent argues that appellant has not shown that her consent was voluntary

simply because she said yes to the test. Respondent argues that the coercive nature of the

implied-consent advisory is still a factor to be taken into consideration. Respondent

attempts to distinguish herself from the defendant in Brooks by pointing out that Brooks

had prior DWI offenses, was belligerent with officers, faced multiple charges in

conjunction with his DWIs, and was able to speak with a lawyer.             According to

respondent, those facts show that the defendant in Brooks would not be intimidated by

the “threats” in the implied-consent advisory.      Here, the police report shows that

respondent yelled and cussed at the officer who arrested her, kicked the officer, and

kicked the police car. Respondent had two previous DWI convictions. She was also

given an opportunity to contact an attorney, and after leaving a voicemail, told officers

she was done using the phone. Respondent was read the implied-consent advisory in full

and stated that she understood its contents. Thus, the facts are very similar to Brooks.

There is nothing in the record to indicate that officers coerced respondent into taking the

urine test, nor does she identify any coercive tactics. We conclude that respondent’s

consent to the test was voluntary under the totality of the circumstances and the district

court’s suppression of the urine test must be reversed. Accordingly, the rescission of the

revocation of respondent’s driver’s license must also be reversed. Because we conclude




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that respondent consented to the test, we do not reach the parties’ arguments related to the

constitutionality of Minnesota’s implied-consent laws.

       Reversed.




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