                         This opinion will be unpublished and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
                                    A14-0244

                                  State of Minnesota,
                                        Plaintiff,

                                           vs.

                                 William John Boyland,
                                       Defendant.

                                 Filed August 4, 2014
                                  Appeal dismissed
                                     Kirk, Judge

                            Le Sueur County District Court
                               File No. 40-CR-12-1391


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

James W. Brandt, Special Le Sueur City Attorney, Stefanie L. Menning, Special
Assistant City Attorney, St. Peter, Minnesota (for plaintiff)

James M. Ventura, Wayzata, Minnesota (for defendant)


      Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Kirk, Judge.

                        UNPUBLISHED OPINION

KIRK, Judge

      The state charged defendant with fourth-degree driving while impaired and

possession of an open bottle in a vehicle, and defendant moved to suppress the results of

his breath test. After the district court denied defendant’s motion because it found that
the police officer acted in good faith when he obtained the breath evidence, the

Minnesota Supreme Court issued its decision in State v. Brooks, 838 N.W.2d 563 (Minn.

2013), cert. denied, 134 S. Ct. 1799 (2014). Defendant requested that the district court

reconsider its decision in light of Brooks, but the district court denied his request.

Instead, the district court certified the question of whether the good-faith exception to the

exclusionary rule applies to breath alcohol evidence obtained without a warrant under

Minn. R. Crim. P. 28.03. Because we conclude that the certified question presents a

hypothetical question or is intended to secure an advisory opinion, we decline to address

the question and dismiss the appeal.

                                          FACTS

       At approximately 9:15 p.m. on November 21, 2012, a Le Sueur police officer

observed a vehicle driving southbound on Forest Prairie Road in Le Sueur with its high-

beam headlights on. After the vehicle passed the officer’s vehicle without dimming its

headlights, the officer followed the vehicle.

       As the officer got closer to the vehicle, he observed the driver’s side tires drive on

and briefly cross over the center double-yellow line. The officer activated his emergency

lights and initiated a traffic stop.   The officer recognized the driver from previous

contacts as defendant William John Boyland. Boyland got out of his vehicle and spoke to

the officer. The officer noticed that Boyland was slightly unsteady on his feet and

swayed from side to side, his speech was slurred, and he smelled of alcohol. Boyland

admitted that he had consumed a few beers. The officer administered field sobriety tests,




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which Boyland failed. The officer also administered a preliminary breath test, which

registered Boyland’s alcohol concentration as .166.

       The officer searched Boyland’s vehicle and in the center console he found a can

containing a small amount of beer and an unopened can of beer. He also found five

empty beer cans in a cooler behind the driver’s seat. The officer read Boyland the

implied-consent advisory, and asked if he understood. Boyland responded, “Yes.” The

officer asked Boyland if he wanted to consult with an attorney, and he responded, “Yes.”

After Boyland spoke to an attorney by telephone, the officer asked him if he would take a

breath test. Boyland responded, “Yes.” Boyland provided a breath test that measured a

.17 alcohol concentration. The officer did not attempt to obtain a warrant prior to

administering the breath test.

       In December 2012, plaintiff State of Minnesota charged Boyland with two counts

of fourth-degree driving while impaired and one count of possession of an open bottle in

a vehicle. Boyland moved to suppress the results of the breath test and dismiss the

charges against him. Following a hearing, the district court denied Boyland’s motion to

suppress. The district court found that the officer obtained the breath evidence from

Boyland in violation of the Fourth Amendment, and neither the exigency exception nor

the consent exception to the warrant requirement applied. However, the district court

denied the motion to suppress because it found that the officer acted in good faith when

he obtained the breath evidence.

       After the supreme court issued its decision in Brooks, Boyland requested that the

district court reconsider its decision to deny his motion to suppress. The district court


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denied Boyland’s request. Boyland then moved to certify the question of whether the

good-faith exception to the exclusionary rule applies to breath alcohol evidence obtained

without a warrant under Minn. R. Crim. P. 28.03. The district court granted Boyland’s

motion, certified the question as important and doubtful, and filed it with this court.

                                      DECISION

       The district court may certify a question to this court upon the defendant’s request

or consent when it believes that a question of law “is so important or doubtful” that this

court should decide it. Minn. R. Crim. P. 28.03. “The certification procedure should not

be used to present a hypothetical question or to secure an advisory opinion. Nor should it

be invoked until the record is sufficiently developed to present a substantive issue.” State

v. Filipovic, 312 Minn. 147, 151, 251 N.W.2d 110, 112 (1977). The supreme court has

also stated that “[t]he certification process is not a substitute for the normal appellate

process.”   Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 30 (Minn. 1998).              A

certified question is a question of law, which we review de novo. State v. Arends, 786

N.W.2d 885, 888 (Minn. App. 2010).

       As an initial matter, the state contends that this case should be dismissed because

the certified question is not important or doubtful based on the Minnesota Supreme

Court’s recent decision in Brooks. The state argues that this court does not need to

consider whether the police officer acted in good faith because a valid exception to the

warrant requirement was present since, like the defendant in Brooks, Boyland consented

to the breath test.




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       We agree with the state that the Minnesota Supreme Court’s decision in Brooks

governs this case. In Brooks, the supreme court held 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.” 838 N.W.2d at 570. Here, the district court, ruling on

Boyland’s motion to suppress without the benefit of the Brooks opinion, found that

Boyland did not freely and voluntarily consent to the breath test because he complied

only after the officer told him that refusal to take the test was a crime. Under Brooks, the

district court was required to look at the totality of the circumstances surrounding

Boyland’s statement agreeing to submit to a breath test. Thus, as the district court

acknowledged in its order certifying the good-faith question, Brooks effectively reverses

the district court’s decision on the consent issue. If the district court applied Brooks to

the facts of this case, it would not be necessary to reach the issue of whether the good-

faith exception to the warrant requirement applies. We therefore conclude that it is

inappropriate for us to address the question that the district court certified to this court

because it presents a hypothetical question or is intended to secure an advisory opinion.

Accordingly, we dismiss this appeal.

       Appeal dismissed.




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