                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1120

                     Gregory Charles Van Schoonhoven, petitioner,
                                     Respondent,

                                           vs.

                            Commissioner of Public Safety,
                                    Appellant.

                                  Filed April 6, 2015
                                       Reversed
                                      Ross, Judge

                             Dakota County District Court
                              File No. 19HA-CV-14-389

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville,
Minnesota (for respondent)

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


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

                        UNPUBLISHED OPINION

ROSS, Judge

      Police arrested Charles Van Schoonhoven for driving while impaired, read him the

implied-consent advisory, and administered a breath test after he agreed to take one.

Because the breath test showed that Van Schoonhoven’s alcohol concentration exceeded

the .08 per se intoxication limit, the commissioner of public safety revoked his driver’s
license. On judicial review, the district court rescinded the revocation because it found

that the commissioner had not shown that Van Schoonhoven voluntarily consented to the

breath test. We reverse the district court’s decision because the evidence cannot support

its finding of coercion.

                                         FACTS

       Just after midnight on January 17, 2014, Dakota County Sergeant Booker Hodges

stopped Charles Van Schoonhoven for a traffic violation and suspected that Van

Schoonhoven was intoxicated. Deputy Dan Qualy arrived and administered field sobriety

tests and a preliminary breath test. Deputy Qualy arrested Van Schoonhoven on suspicion

of drunk driving.

       Deputy Qualy took Van Schoonhoven to the county jail and read him the implied-

consent advisory. Van Schoonhoven said he wanted to speak with an attorney, so the

deputy provided him a telephone and telephone directory. Van Schoonhoven made calls

from 12:57 to 1:13 a.m., and he spoke with someone. Deputy Qualy then asked if he

would take a breath test, and Van Schoonhoven said yes. The test indicated that Van

Schoonhoven had an alcohol concentration of .12. The commissioner of public safety

consequently revoked his driver’s license.

       Van Schoonhoven petitioned the district court to reverse the revocation,

challenging the admissibility of the breath test. The district court conducted a hearing at

which deputies Hodges and Qualy testified to the facts just outlined. The state also

offered into evidence the police report. Deputy Qualy states in the report that he checked




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Van Schoonhoven’s criminal history and did not find any previous arrests or convictions

for driving or alcohol-related crimes.

       Van Schoonhoven testified at the hearing. He remembered that he was told in the

advisory that he was required to take a breath test and that refusal to take a test was a

crime. His testimony was conflicting. On one hand, he said that the attorney he spoke to

just before the test told him it was “a worse crime to refuse the test than it was to take the

test,” but on the other, Van Schoonhoven said that he “thought he had no choice” but to

take the test.

       The district court rescinded Van Schoonhoven’s revocation. It reached this

conclusion by negative implication from the analysis in State v. Brooks, 838 N.W.2d 563

(Minn. 2013). It reasoned that Van Schoonhoven is dissimilar to the Brooks defendant,

whom the supreme court determined had consented to take a chemical test. In particular,

the district court here considered that the commissioner offered no evidence that Van

Schoonhoven had prior impaired-driving arrests and that he “showed no knowledge of

the DWI testing process.” The district court concluded that the commissioner “failed to

make a sufficient case to establish [that Van Schoonhoven] knowingly and voluntarily

consented to the search and waived the requirement under the Fourth Amendment for law

enforcement to obtain a warrant prior to the search.”

       The commissioner appeals the district court’s decision rescinding the revocation.

                                      DECISION

       The commissioner argues that the district court erroneously found that Van

Schoonhoven did not voluntarily consent to the breath test. The federal and state


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constitutions protect citizens from unreasonable searches and seizures. U.S. Const.

amend. IV; Minn. Const. art. I, § 10. A breath test constitutes a search under the Fourth

Amendment. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616–17, 109 S. Ct. 1402,

1413 (1989); see State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134

S. Ct. 1799 (2014). Warrantless searches are unreasonable unless an exception to the

warrant requirement applies, State v. Flowers, 734 N.W.2d 239, 248 (Minn. 2007), and

consent is an exception to the warrant requirement. State v. Othoudt, 482 N.W.2d 218,

222 (Minn. 1992). For the consent exception to apply, the state must show that consent

was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045

(1973); State v. Deide, 795 N.W.2d 836, 846 (Minn. 2011). Whether a driver voluntarily

consented is a fact finding, which we will reverse only if the district court’s finding is

clearly erroneous. Deide, 795 N.W.2d at 846.

       Whether consent is voluntary depends on the totality of the circumstances. Brooks,

838 N.W.2d at 568. The Brooks court included several factors in the mix of those

circumstances. Id. at 569. The district court clearly erred when it found a lack of consent

here based on its distinguishing of Van Schoonhoven from the defendant in Brooks. The

district court stated, “Unlike the defendant in Brooks, [Van Schoonhoven] showed no

knowledge of the DWI testing process.” Brooks does not require that a defendant have a

drunk-driving record or specific knowledge of the process before his informed and

apparently voluntary decision to take a breath test qualifies as voluntary consent.

       On the totality of the circumstances in this record, it is clear that the state

established that Van Schoonhoven voluntarily consented. Deputy Qualy arrested Van


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Schoonhoven for impaired-driving based on his performance on the field sobriety tests,

the result of the preliminary breath test, and Van Schoonhoven’s admission that he had

been drinking. The deputy read him the implied-consent advisory and requested a breath

test. Van Schoonhoven called and spoke with an attorney about what he should do. He

ostensibly consented to the breath test, saying “yes” when asked if he would take the test,

and he provided an adequate breath sample without any reference to being pressured to

do so. The Brooks court looked closely at the circumstances presented and agreed with

the district court that “nothing in the record suggests that Brooks was coerced in the sense

that his will had been overborne and his capacity for self-determination critically

impaired.” Id. at 571 (quotation omitted). We have similarly assessed the record and see

nothing in it to suggest that Van Schoonhoven was coerced under the same meaning of

coercion.

      Like the Brooks defendant, Van Schoonhoven argues that he was coerced because

he did not feel that he had a choice whether or not to submit to the test. The district court

accepted this assertion by looking only to Van Schoonhoven’s contention that he

“thought [he] had no choice” except to take the test. The court overlooked his testimony

that he agreed to take the test specifically because he learned from his lawyer that “[i]t

was a worse crime if [he] refused.” The overlooked statement of Van Schoonhoven’s

rationale establishes that he knew he had a choice between taking the test and refusing to

take the test in the same way the Brooks defendant knew he had a choice. Whatever

pressure Van Schoonhoven experienced from his awareness of the option of either failing

the test (with possible conviction for impaired driving) or refusing the test (with possible


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conviction for test refusal) is in a theoretical sense coercion, but it is not the sort of

pressure that amounts to the unconstitutional coercion that would render an apparent

consent involuntary. The supreme court has rejected the notion that this no-better-choice

conundrum amounts to coercion and a finding of involuntariness: “[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 570. We likewise reject Van Schoonhoven’s

argument that he was coerced by knowing the heightened punishment he might face for

refusing the test. Because this is the only evidentiary basis for the district court’s implicit

finding that Van Schoonhoven’s apparently voluntary consent was involuntary due to

coercion, we reverse the district court’s clearly erroneous finding.

      Reversed.




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