                        This opinion will be unpublished and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
                                   A13-1517

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                Stacy Jean Fouquette,
                                     Appellant.

                                Filed August 18, 2014
                                      Affirmed
                                    Smith, Judge

                           Sherburne County District Court
                              File No. 71-CR-12-1239

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

Kathleen A. Heaney, Sherburne County Attorney, Kevin C. Lin, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Jennifer M. Macaulay, Macaulay Law Offices, Ltd., St. Paul, Minnesota; and

Sharon R. Osborn, Osborn Law Office, LLC, Minneapolis, Minnesota (for appellant)

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

Hudson, Judge.
                          UNPUBLISHED OPINION

SMITH, Judge

       We affirm appellant’s conviction of driving while impaired because she consented

to the warrantless search of her urine.

                                          FACTS

       On June 19, 2012, at approximately 9:42 p.m., a Sherburne County deputy

observed a vehicle driving along an unlit county road without its headlights illuminated.

As the deputy prepared to stop the vehicle, he observed the driver, subsequently

identified as appellant Stacy Jean Fouquette, throw “a large amount of liquid” out the

driver’s side window. The deputy stopped the vehicle. While talking with Fouquette, the

deputy smelled “an overwhelming odor of an alcoholic beverage,” saw “a large amount

of liquid spread across the driver’s side of the vehicle,” and noticed that Fouquette’s eyes

were bloodshot and watery and that her speech was “very heavy and slurred.” Fouquette

claimed to have tossed a glass of water out her window; however, she handed the deputy

the now-empty glass and he smelled the lingering odor of an alcoholic beverage.

Fouquette admitted that she had consumed two or three vodka mixed drinks prior to

driving and she was driving with an open bottle of vodka. Field sobriety tests indicated

that Fouquette was impaired and a preliminary breath test indicated an alcohol

concentration of 0.183.

       The deputy arrested Fouquette and transported her to the county jail. There, at

approximately 10:24 p.m., the deputy read Fouquette the Minnesota Implied Consent

Advisory. Fouquette indicated that she understood the advisory, she did not wish to


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consult with an attorney, and she would take a urine test. The test revealed an alcohol

concentration of 0.16.

       Respondent State of Minnesota charged Fouquette with two counts of driving

while impaired. See Minn. Stat. § 169A.20, subd. 1(1) (driving under the influence of

alcohol), (5) (driving with an “alcohol concentration at the time, or as measured within

two hours of the time,” of 0.08 or more) (2010). Fouquette moved to suppress the results

of her urine test. After the United States Supreme Court’s decision in Missouri v.

McNeely, 133 S. Ct. 1552 (2013), Fouquette argued that the urine test was a search

requiring a warrant and that none of the warrant exceptions applied. The district court

denied the suppression motion and Fouquette agreed to a trial on stipulated facts, thereby

preserving the pretrial suppression issue for appeal. See Minn. R. Crim. P. 26.01, subd.

4. The state dismissed the driving-under-the-influence charge, and the district court

found Fouquette guilty of violating Minn. Stat. § 169A.20, subd. 1(5).

       Fouquette moved to stay sentencing pending a decision by the Minnesota Supreme

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

1799 (2014). The district court denied the motion and sentenced Fouquette to a fine and

90 days in jail; the district court stayed the jail time and all but $300 of the fine.

       We stayed this appeal pending the release of Brooks. The stay has now been

dissolved and the appeal reinstated.

                                       DECISION

       “When the facts are not in dispute, the validity of a search is a question of law

subject to de novo review.” Haase v. Comm'r of Pub. Safety, 679 N.W.2d 743, 745


                                               3
(Minn. App. 2004). The United States and Minnesota Constitutions protect against

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

Taking a urine sample from someone constitutes a search under the Fourth Amendment.

Brooks, 838 N.W.2d at 568. A warrantless search is generally unreasonable unless it falls

within a recognized exception to the warrant requirement. State v. Flowers, 734 N.W.2d

239, 248 (Minn. 2007). One such exception is consent. Brooks, 838 N.W.2d at 568.

       “For a search to fall under the consent exception, the State must show by a

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

In other words, the state must show that it is more likely than not that the defendant’s

consent was free and voluntary. See City of Lake Elmo v. Metro. Council, 685 N.W.2d 1,

4 (Minn. 2004) (“The preponderance of the evidence standard requires that to establish a

fact, it must be more probable that the fact exists than that the contrary exists.”). To

determine whether the defendant consented, we consider “the totality of the

circumstances, including 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 (quotation omitted).

“[C]onsent can be voluntary even if the circumstances of the encounter are uncomfortable

for the person being questioned.”       Id.   Merely “acquiescing to a claim of lawful

authority” is not consent, but in regards to the implied consent law, “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 569, 570.

       Fouquette argues that Brooks applies narrowly to the “extreme circumstances” of a

“veteran drunk driver,” and “by no means suggest[s] that reading the advisory alone


                                              4
could not overbear the free will of a first-time offender.” Fouquette argues that the state

must “prove that [she] would have agreed to a test regardless of whether she was told that

the law required her to do so and then threatened her with an additional crime if she

didn’t [agree].” Fouquette asserts that the state failed to present any evidence that her

“acquiescence” to a urine test was “the product of a free and voluntary act.”

       Fouquette’s arguments are without merit. Fouquette stipulated that the deputy

read the implied consent advisory “as written and followed all standard procedures.” In

Brooks, the Minnesota Supreme Court concluded that although Minnesota’s implied

consent law presents suspects with a difficult and unpleasant choice, the nature of this

choice does not constitute unlawful coercion. Id. at 571. Rather, “the fact that someone

submits to the search after being told that he or she can say no to the search supports a

finding of voluntariness.” Id. at 572. Considering the totality of the circumstances, the

state proved by a preponderance of the evidence that Fouquette freely and voluntarily

consented to the test.    Because Fouquette consented, a warrant was not required.

Accordingly, the district court correctly denied Fouquette’s motion to suppress the test

results.

       Affirmed.




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