                          This opinion will be unpublished and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
                                     A14-0759

                                    State of Minnesota,
                                         Appellant,

                                            vs.

                                  Sarah May Mickalsen,
                                       Respondent.

                                Filed November 24, 2014
                                Reversed and remanded
                                    Rodenberg, Judge

                               Dakota County District Court
                               File No. 19AV-CR-12-12961

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

Alina Schwartz, Campbell Knutson, Eagan, Minnesota (for appellant)

Jeffrey B. Ring, Minneapolis, Minnesota (for respondent)

         Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

RODENBERG, Judge

         Appellant State of Minnesota challenges the district court’s grant of respondent

Sarah May Mickalsen’s motion to suppress and its derivative order dismissing one count
of the driving-while-impaired complaint, arguing that respondent voluntarily consented to

the breath test. We reverse and remand for further proceedings.

                                          FACTS

       Respondent is charged with fourth-degree driving while impaired (DWI) in

violation of Minn. Stat § 169A.27, subd. 1 (2012), and with an alcohol concentration of

.08 or more in violation of Minn. Stat. § 169A.20, subd. 1(5) (2012). In a pretrial motion

to suppress, respondent argued that the results of her breath test should be suppressed

because the state violated her right to counsel and her right to be free of unreasonable

searches and seizures. After a contested hearing, the district court ruled that respondent

was denied her right to counsel and granted the motion to suppress the results of the

breath test on those grounds alone. The state appealed. On appeal, we reversed the

district court, holding that respondent’s right to counsel was not violated because “no fair

trial right . . . would be impeded by the officer’s refusing to disclose the preliminary

breath test result before [respondent] was even charged with a crime.” We reversed, and

further proceedings were held in the district court.1

       Because the district court had not addressed the McNeely/Brooks issues raised by

respondent in her motion to suppress, respondent then requested that the district court

hear and determine her alternative motion alleging an unlawful search. See State v.

Brooks, 838 N.W.2d 563, 568-69 (Minn. 2013) (holding that chemical test under

Minnesota Implied Consent Law is a search).             The district court concluded that


1
 The facts of the case are set forth in our earlier opinion, State v. Mickalsen, No. A13-
1244, 2013 WL 6839926 at *1 (Minn. App. Dec. 30, 2013).

                                              2
respondent was unlike the defendant in Brooks because respondent has not been

previously arrested for a DWI. Further, unlike the defendant in Brooks, the district court

held that the state put forth no evidence indicating that respondent had “significant prior

contacts with law enforcement,” concluding that respondent “was confused by the

process.” Based on these findings, the district court held that the “state has made an

insufficient case to establish [that respondent] knowingly and voluntarily consented to the

search and waived the requirement under the Fourth Amendment for . . . a warrant.” This

appeal followed.

                                     DECISION

       The evidentiary record is limited to the police report of July 16, 2012. There was

no testimony at the motion hearing. According to the report, Lakeville Police Officer

A.P. Stier stopped respondent after he observed illegal driving conduct. Officer Stier

approached the driver, later identified as respondent, and detected a strong odor of

alcohol. Respondent denied having consumed alcohol, but Officer Stier observed that her

eyes were bloodshot and watery and that her speech was slurred.           Based on these

observations, respondent’s performance of field sobriety tests, and a Preliminary Breath

Test (PBT) with a reading of .178, Officer Stier arrested respondent.

       At the police department, Officer Stier read respondent the Minnesota Implied

Consent Advisory. Respondent thought she had already taken the breath test. Officer

Stier explained that the breath test done before her arrest was merely preliminary and that

the breath test to be conducted in the police department was for evidentiary purposes.

Respondent prematurely expressed a refusal to take the test. However, Officer Stier told


                                            3
her “we’re not quite to that part.” He asked her if she wanted to consult with an attorney.

Respondent confirmed that she did. Officer Stier allowed her to use her personal cell

phone to contact her boyfriend in order to obtain the phone number for an attorney.

During respondent’s conversation with her boyfriend, respondent stated that she did not

want to take the test. She then spoke with an attorney and ultimately agreed to provide a

breath test. Respondent also indicated that she was satisfied with the advice she received

from the attorney and both agreed to the breath testing and requested that a second breath

test be administered. Officer Stier complied with that request. Both tests resulted in a

reported .17 alcohol concentration.

       In a pretrial appeal, the state must show clearly and unequivocally that the district

court erred and that the error will have a critical impact on the outcome of the trial. State

v. Kim, 398 N.W.2d 544, 547 (Minn. 1987). There is a critical impact where the pretrial

order “seriously impede[s] . . . continuation of the prosecution.” Id. at 551 (quotation

omitted). As the pretrial order here dismisses one of the counts against respondent, and

suppresses evidence relevant to both counts, the pretrial order seriously impedes the

continuation of the prosecution and therefore will have a critical impact on the outcome

of the trial. Thus, the state has met its threshold burden.

       When deciding whether the district court erred in its pretrial order, we

“independently review the facts and determine, as a matter of law, whether the district

court erred.” State v. Baxter, 686 N.W.2d 846, 851 (Minn. App. 2004). Ordinarily we

give great deference to the district court’s factual determinations. However, the district

court here made no credibility determinations. Respondent did not appear or testify at the


                                              4
motion hearing. The evidentiary record is limited to the officer’s police report, and there

is no conflicting evidence to be considered.

       The Fourth Amendment to the United States Constitution and Article I, Section 10

of the Minnesota Constitution protect persons from unreasonable searches and seizures.

U.S. Const. amend. IV; Minn. Const. art. 1, § 10.2 Generally, a search conducted without

a warrant is per se unconstitutional. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).

A breath test constitutes a search. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 617,

109 S. Ct. 1402, 1413 (1989). Consent is an exception to the warrant requirement.

Dezso, 512 N.W.2d at 880. The state bears the burden of proving that the defendant

consented to a search. Id. Whether the defendant consented to a search is determined by

an examination of the totality of the circumstances. Id. These circumstances include “the

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

was said.” Id.

       In Brooks, the supreme court considered “how the police came to suspect [the

defendant] was driving under the influence, their request that he take the chemical tests . .

. whether they read him the implied consent advisory, and whether he had the right to

consult with an attorney” to analyze whether the “nature of the encounter” indicated

voluntary consent to the tests. 838 N.W.2d at 569. The supreme court ultimately held

that the driver in Brooks voluntarily consented to the breath test because the driver was


2
  The Minnesota Supreme Court has favorably cited federal caselaw when analyzing state
constitutional issues of breath, blood, and urine tests under Minnesota’s implied consent
laws. Brooks, 838 N.W.2d at 568. The protections afforded by the state and federal
constitutions are identical in this context.

                                               5
neither “confronted with repeated police questioning” nor “coerced in the sense that his

will had been overborne and his capacity for self-determination critically impaired.” Id.

at 571. “[N]or was he asked to consent after having spent days in custody.” Id. In

finding the driver’s consent in Brooks to be voluntary, the supreme court also noted that

he was given an option to consult with an attorney, and did so; he was read the implied

consent advisory and informed of his options; and he was told that he could refuse to take

the test. Id. at 571-72.

       It is true, in this case, that there is no evidence that respondent had been previously

arrested for a DWI or that respondent had any significant prior contacts with law

enforcement, like that of the driver in Brooks. It is also true that, when Officer Stier read

the implied consent advisory to respondent, respondent initially seemed confused about

why Officer Stier requested a second breath test when she had been given a PBT when

she was stopped.

       But respondent was read the implied consent advisory, was told of her options,

consulted an attorney of her own choosing before making her decision, and was satisfied

with the advice of her attorney. After speaking with the attorney, respondent consented

to a breath test. Then she also requested that a second breath test be taken. The

undisputed facts here admit of no conclusion other than that, like the driver in Brooks,

respondent voluntarily consented to supplying a sample of her breath for testing. Both

respondent and the driver in Brooks were informed of their options under the implied

consent law, both respondent and the driver in Brooks were allowed to contact an

attorney, both respondent and the driver in Brooks consented to a chemical test. Neither


                                              6
respondent nor the driver in Brooks were confronted with repeated police questioning or

asked to consent only after spending a few days in custody. The district court erred by

focusing on two relatively unimportant comparisons to Brooks, while failing to take into

account the totality of the circumstances as required by Brooks.

       Although respondent initially indicated a preference to refuse testing before she

was even asked whether she agreed to testing, her apparent confusion was immediately

and correctly resolved when Officer Stier explained the process and why a breath test was

being administered at the police station after the earlier PBT.    Before she consented to

the breath test, respondent had conferred with counsel. The Brooks court found that

consulting with counsel “supports the conclusion that a defendant made a voluntary

decision.” 838 N.W.2d at 572. The record establishes that respondent was no longer

confused after this explanation.

       The evidence in the record in this case supports no finding other than that the

nature-of-the-encounter consideration under Deszo weighs in favor of finding that

respondent voluntarily consented to testing. The district court unequivocally erred in

concluding otherwise.

       The district court appears not to have addressed the kind of person respondent is,

other than to observe that there was no evidence that respondent had been arrested for a

DWI and no evidence that respondent had prior significant contact with law enforcement.

The record is replete with information about what kind of person respondent is in this

case. Exhibit 1 identifies respondent as a physical therapist and that she is clearly of

sufficient intelligence to understand her options and make decisions. The exhibit also


                                            7
indicates that respondent was cooperative and understood, after explanation, the implied

consent process. These facts support no conclusion other than that respondent is the kind

of person to understand the consequences of the decision she was asked to make.

       The district court did not appear to address what was said and how it was said,

another factor required to be addressed by the Brooks analysis. Exhibit 1 shows the

encounter to have been professional and accommodating.                 Officer Stier allowed

respondent to not only contact an attorney, but also to have a long phone conversation

seeking advice from her boyfriend.        Further, Officer Stier explained the procedure

thoroughly and accurately ensured that respondent understood the procedure at every

point. The district court unequivocally erred in not considering this evidence.

       Under Brooks, the totality of the circumstances admits of no conclusion other than

that respondent voluntarily consented to breath testing. The district court unequivocally

erred in suppressing the breath test results.

       Finally,   respondent    claims    that       Minnesota’s   implied   consent   law   is

unconstitutional. Under the Minnesota implied consent law, all drivers in the state of

Minnesota impliedly consent to a chemical test of blood, breath, or urine as evidence of

whether the driver is under the influence of alcohol. Minn. Stat. §169A.51, subd. 1(b)(1)

(2012). An officer may request a chemical test be administered when an officer has

probable cause to believe a driver is impaired and the driver has been arrested for DWI.

Id. (among other scenarios listed in the statute). Refusal to consent to a chemical test is a

crime. Minn. Stat. §169A.52, subd. 1 (2012). “Although refusing the test comes with

criminal penalties . . . the supreme court has made [it] clear that while the choice to


                                                 8
submit or refuse to take the chemical test ‘will not be an easy or pleasant one for a

suspect to make,’ the criminal process ‘often requires suspects and defendants to make

difficult choices.’” Brooks, 838 N.W.2d at 571 (citing South Dakota v. Neville, 459 U.S.

553, 564, 103 S. Ct. 916, 923 (1983)). The fact that refusal is a crime does not render the

Minnesota implied consent law unconstitutional and does not invalidate otherwise valid

consent. Id. at 572-73; see also Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717, 722-

731 (Minn. App. 2014) (holding that Minnesota Implied Consent Law does not violate

the unconstitutional-conditions doctrine).

       In sum, we reverse the district court’s grant of respondent’s motion to suppress

because the record admits of no conclusion other than that respondent voluntarily

consented to chemical testing of her breath. We also reverse the district court’s grant of

respondent’s derivative motion to dismiss the count of driving with an alcohol

concentration of .08 or more. We remand for further proceedings.

       Reversed and remanded.




                                             9
