                        This opinion will be unpublished and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
                                   A14-0591

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                          Carmilla J. Thibodeau-Schoeszler,
                                     Respondent.

                              Filed September 2, 2014
                              Reversed and remanded
                                   Stauber, Judge

                            Stearns County District Court
                                File No. 73CR137892

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

Matthew A. Staehling, St. Cloud City Attorney, Hao Nguyen, Assistant City Attorney,
St. Cloud, Minnesota (for appellant)

Brian Nelson Steele, Heidi E. Viesturs, Steele Law Offices, P.L.L.C., Minnetonka,
Minnesota (for respondent)


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

Kirk, Judge.
                         UNPUBLISHED OPINION

STAUBER, Judge

       The state appeals from the district court’s pretrial order suppressing results of a

blood test obtained outside of the framework of the implied-consent law, but with

respondent’s consent. We reverse and remand.

                                      DECISION

       Respondent Carmilla Thibodeau-Schoeszler was asked to submit to a blood test

after she was arrested on suspicion of driving while intoxicated (DWI). The arresting

officer did not read her the Minnesota Implied Consent Advisory or offer her an

opportunity to contact an attorney. She agreed to a blood test, on the condition that she

did not have to pay for it; the test results showed an alcohol concentration (BAC) of 0.16.

The state did not invoke the implied-consent law and did not immediately revoke

Thibodeau-Schoeszler’s driver’s license. In a pretrial hearing, the district court granted

her motion to suppress the blood-test results, concluding that the mere exigency of rapid

dissipation of alcohol did not justify a warrantless search and police failed to vindicate

Thibodeau-Schoeszler’s right to counsel, and dismissed the charge of driving with a BAC

over 0.08. The state appeals from the suppression order.

       When the facts are not disputed, we review the district court’s pretrial suppression

order as a question of law. State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008). In

order to appeal a pretrial suppression order, the state must demonstrate not only that the

district court erred, but also that suppression of the evidence would have a critical impact

on the outcome of the trial. State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001),


                                              2
review dismissed (Minn. June 22, 2001). “Dismissal of a complaint satisfies the critical

impact requirement.” Id. Because the district court dismissed the BAC charge, the state

has shown that the suppression order would have a critical impact on the outcome of the

trial.

         The district court noted that in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the

Supreme Court held that the dissipation of alcohol in the bloodstream is not a per se

exigency that excuses the police from obtaining a search warrant before subjecting a

suspected drunk driver to a nonconsensual blood test. But, the district court

acknowledged that, although in Minnesota most DWI testing is obtained through the

implied-consent procedure, “law enforcement officers can choose not to comply with the

procedures outlined in the implied consent law.” If an officer does not proceed under the

implied-consent law, the results of chemical testing can be used in a DWI prosecution but

the defendant cannot be charged with test refusal and the defendant’s driver’s license

cannot be summarily revoked under the implied-consent law. See Tyler v. Comm’r of

Pub. Safety, 368 N.W.2d 275, 280 (Minn. 1985) (suppressing blood-test results taken

without implied-consent advisory in a license revocation proceeding but approving use of

results in criminal prosecution); State v. Nielsen, 530 N.W.2d 212, 215 (Minn. App.

1995), review denied (Minn. Jun. 14, 1995); State v. Scott, 473 N.W.2d 375, 377 (Minn.

App. 1991) (suppressing blood test results taken involuntarily from driver who was given

implied-consent advisory and refused test, but noting that results could have been used if

trooper proceeded without implied-consent advisory).




                                              3
       While these cases approve of the use of blood-test results taken outside of the

implied-consent law, the courts relied primarily on the exigent factor of rapid dissipation

of alcohol to reach this conclusion; the reasoning applied in these cases is that if there is

probable cause to believe that a suspect was driving under the influence of alcohol, and

there is a need to preserve evidence, the suspect has no right to refuse testing. See, e.g.,

State v. Shriner, 751 N.W.2d 538, 545 (Minn. 2008) (affirming warrantless blood test

performed outside implied-consent law when police have probable cause that suspect

committed DWI, to preserve evidence because of single-factor exigency of dissipation of

alcohol), abrogated by McNeely, 133 S. Ct. 1552 (2013)); Tyler, 368 N.W. 2d at 278

(stating that warrantless blood testing “clearly permitted” if police have probable cause to

believe defendant committed DWI and removal of blood was necessary to preserve

evidence); Nielsen, 530 N.W.2d at 214 (approving removal of blood to preserve evidence

when there is probable cause to believe suspect committed DWI); Scott, 473 N.W.2d at

376-77 (noting that nonconsensual blood testing is permissible when police have

probable cause suspect committed DWI and blood testing is necessary to preserve

evidence).

       The district court is correct in concluding that after McNeely, a single-factor

exigency based on the rapid dissipation of alcohol is not sufficient to avoid the warrant

requirement. But exigency does not provide the only exception to the warrant

requirement. As the supreme court stated in State v. Brooks, 838 N.W.2d 563, 568

(Minn. 2013), a person may voluntarily consent to a search, making a warrant




                                              4
unnecessary. Here, the record reflects that Thibodeau-Schoeszler voluntarily consented

to the arresting officer’s request that she undergo a blood test.

       Thibodeau-Schoeszler argues that the district court nevertheless correctly

suppressed the blood-test results because her right to counsel was not vindicated. In

Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991), the supreme

court held that “a driver who has been stopped for a possible DWI violation and has been

asked to submit to a chemical test is at a ‘critical stage’ in DWI proceedings, thus

triggering the right to counsel.” While this appears straightforward, Friedman is an

implied-consent case; the supreme court reasoned that the consequences of a driver’s

decision depended on the choice made and that a driver could be confused about this. Id.

In Nielsen, this court stated, “The right to counsel . . . does not attach until the

commencement of formal judicial proceedings, or until the driver faces a critical decision

regarding chemical testing.” 530 N.W.2d at 215. This court noted that the testing

outside of the implied-consent framework “was merely an investigatory stage which

necessarily preceded the decision to prosecute” and that Nielsen “faced no immediate

revocation of his driver’s license if he refused to take the blood test or failed the blood

test.” Id. Instead, Nielsen would face penalties only after a jury trial, at which he would

have the right to counsel. Id.

       The right to counsel enunciated in Friedman was a “limited right to counsel within

a reasonable time before submitting to testing.” 473 N.W.2d at 837. The majority in

Friedman reasoned that “[i]n the case of a DWI, the chemical tests are more than just a

search. The act itself could produce the evidence leading to conviction before any trial is


                                               5
even necessary.” Id. This suggests that the court recognized that a driver arrested for

DWI needs the assistance of counsel when choosing whether to take or refuse chemical

testing because of the immediate implied-consent sanctions that would result from the

choice made. This right to counsel is included now in the statutory sections governing

implied consent. Minn. Stat. § 169A.51, subd. 2 (2012).

       The constitutional right to counsel arises out of U.S. Const. amend. VI and Minn.

Const. art. I, § 6. Both sections state that in all criminal prosecutions, the accused has the

right to have the assistance of counsel in his or her defense. The Minnesota Supreme

Court has interpreted this right under the Minnesota constitution more broadly than the

federal right. Friedman, 473 N.W.2d at 836. This broader interpretation provides the

basis for the limited right to consult an attorney before submitting to chemical testing

under the implied-consent law. Id. at 832.

       But traditionally, “[t]he Sixth Amendment right to counsel attaches as soon as the

suspect is subject to adverse judicial proceedings by way of formal charge, preliminary

hearing, indictment, information, or arraignment.” State v. Borg, 806 N.W.2d 535, 545

(Minn. 2011) (quotations omitted). Therefore, during the investigatory phase before a

judicial proceeding is commenced, the right to counsel does not attach. Id. A Fifth

Amendment right to counsel arises when a suspect is subject to custodial interrogation, to

protect a suspect from self-incrimination. Id. at 545-46. But a request to submit to

chemical testing is not considered to be interrogation. See State v. Whitehead, 458

N.W.2d 145, 148 (Minn. App. 1990), review denied (Minn. Sep. 14, 1990).




                                              6
       Here, Thibodeau-Schoeszler was under arrest but had not been charged, indicted,

or arraigned; the exception carved out in Friedman for a limited right to consult with

counsel before submitting to chemical testing under the implied-consent law does not

apply because the immediate sanctions of the implied-consent law could not be levied

against her. Although earlier cases opined that suspects did not have the right to refuse

testing, the single-factor exigency to preserve evidence because of the rapid dissipation of

alcohol no longer excuses the necessity for a search warrant. But Thibodeau-Schoeszler

consented to a warrantless search, a valid exception to the warrant requirement as set

forth in Brooks. 838 N.W.2d at 568. A Fifth Amendment right to counsel does not apply

because the arresting officer did not interrogate her until after she was booked into jail

and he gave her a Miranda warning before doing so. We therefore reverse the district

court’s pretrial suppression order and remand this matter for trial.

       Reversed and remanded.




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