                            This opinion will be unpublished and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
                                       A15-2051

                       Michael Paul Tulenchek-Armstrong, petitioner,
                                        Appellant,

                                              vs.

                               Commissioner of Public Safety,
                                      Respondent.

                                    Filed August 22, 2016
                                          Affirmed
                                        Reyes, Judge

                              Crow Wing County District Court
                                   File No. 18CV151817

Rich Kenly, Kenly Law Office, Backus, Minnesota (for appellant)

Lori Swanson, Attorney General, Dominic J. Haik, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

         Considered and decided by Bratvold, Presiding Judge; Schellhas, Judge; and Reyes,

Judge.

                           UNPUBLISHED OPINION

REYES, Judge

         On appeal from the district court’s order sustaining the revocation of his driving

privileges, appellant argues that the implied-consent advisory “unconstitutionally” misled

him and that his consent to submit to the breath test was coerced. We affirm.
                                           FACTS

       On April 21, 2015, at 4:53 a.m., a Crow Wing county deputy sheriff received a

call from dispatch regarding a person asleep in a vehicle. The sheriff approached the

running vehicle, where he found appellant Michael Tulenchek-Armstrong unresponsive.

When appellant exhibited signs of intoxication, the sheriff conducted field sobriety tests,

which appellant failed. The sheriff asked appellant if he would take a preliminary breath

test, appellant agreed, and the test resulted in an alcohol concentration of 0.133. The

sheriff arrested appellant and transported him to jail.

       The sheriff read appellant the implied-consent advisory (ICA) verbatim, and

appellant stated that he understood it. Next, the sheriff asked appellant if he wanted to

contact an attorney, and appellant declined. Subsequently, the sheriff asked whether

appellant would take a breath test, and appellant agreed. The breath test registered an

alcohol concentration in excess of 0.08.

       Respondent, Minnesota Commissioner of Public Safety, thereafter revoked

appellant’s driver’s license. Appellant timely filed an implied-consent petition seeking

rescission of the revocation. The district court conducted a hearing on August 19, 2015,

at which appellant raised issues regarding the legality of his stop, arrest, and breath test.

In an order filed on October 19, 2015, the district court sustained the revocation of

appellant’s driving privileges. This appeal follows.




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                                      DECISION

I.     Standard of review

       “This court reviews the district court’s findings supporting an order sustaining a

license revocation for clear error.” Axelberg v. Comm’r of Pub. Safety, 831 N.W.2d 682,

684 (Minn. App. 2013), aff’d 848 N.W.2d 206 (Minn. 2014). “A finding is clearly

erroneous when there is no reasonable evidence to support the finding or when an

appellate court is left with the definite and firm conviction that a mistake occurred.”

State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012). We give de novo review to

questions of law including whether the ICA violates a driver’s due-process rights.

Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 344 (Minn. 2005).

II.    The test-refusal statute is constitutional for breath tests.

       Appellant argues that the ICA “unconstitutionally” violated his substantive due-

process rights by misleading him to submit to a warrantless search and seizure of his

breath by leading him to believe that he had no right to refuse such a test. Appellant’s

argument is misguided.

       Minnesota’s test-refusal statute provides that “[i]t is a crime for any person to

refuse to submit to a chemical test of the person’s . . . breath . . . under section 169A.51,

(chemical tests for intoxication), or section 169A.52 (test refusal or failure; revocation of

license).” Minn. Stat. § 169A.20, subd. 2 (2014). But because drivers have a right to

refuse a breath test, the ICA “makes clear that drivers have a choice whether to submit to

testing.” State v. Brooks, 838 N.W.2d 563, 570 (Minn. 2013). Additionally, the ICA

informs the person that he has “the right to consult with an attorney.” Minn. Stat.


                                              3
§ 169A.51, subd. 2(a)(4) (2014). Because the test-refusal statute in its entirety articulates

to a driver that he must make a choice between complying with or violating a legal

requirement for a breath test for intoxication, appellant’s argument fails. As such, the

ICA is not unconstitutionally misleading with respect to a breath test.

       Appellant further argues that State v. Bernard, 859 N.W.2d 762 (Minn. 2015),

aff’d sub nom. Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), is contrary to both the

Fourth Amendment and Missouri v. McNeely, 133 S. Ct. 1552 (2013). We disagree. The

United States Supreme Court recently concluded that Bernard “had no right to refuse” the

warrantless breath test. 136 S. Ct. 2165. Accordingly, the statute is constitutional.

III.   Appellant voluntarily consented to a breath test.

       Appellant next argues that his consent to a breath test was coerced because (1) he

was already in custody and under arrest and (2) he did not consult with an attorney. We

disagree.

       The question of whether a consent search was voluntary and not the product of

duress or coercion is a question of fact, which we review under the clearly erroneous

standard. State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). “Findings of fact are

clearly erroneous if, on the entire evidence, we are left with the definite and firm

conviction that a mistake occurred.” Id at 846-47. “‘Voluntariness’ is a question of fact”

that depends on 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.” State v.

Dezso, 512 N.W.2d 877, 880 (Minn. 1994). A person does not consent simply by

acquiescing to a claim of lawful authority. Brooks, 838 N.W.2d at 569.


                                              4
       In Brooks, the supreme court analyzed the totality of the circumstances and

concluded that the driver voluntarily consented to testing because (1) he was not

confronted with repeated police questioning nor asked to consent after spending “days in

custody;” (2) he had the opportunity to consult with an attorney and did so before

submitting to testing; and (3) law enforcement read the ICA to him prior to testing. Id. at

571-72.

       The district court concluded that appellant’s consent was voluntary because

(1) appellant was in custody for a short period of time and not subjected to repeated

questioning or coercive tactics; (2) appellant “had the opportunity to call an attorney;”

and (3) the sheriff read the ICA before testing. (Emphasis added.)

       The district court’s findings are supported by the record and are not clearly

erroneous. First, the sheriff did not confront appellant with repeated questioning nor was

appellant’s consent obtained after a prolonged period in custody. Second, the sheriff

offered appellant the opportunity to consult with an attorney before taking the test, but

appellant elected not to do so. See id. (“recogniz[ing] that the ability to consult with

counsel about an issue supports the conclusion that a defendant made a voluntary

decision”) (emphasis added). Appellant’s attempt to distinguish his case from Brooks

because he did not speak to an attorney before being asked whether he would consent to a

breath test is misguided. Voluntariness is based upon the ability to consult with counsel,

not the actual consultation with an attorney. See id. (stating that “[t]he fact that Brooks

consulted with counsel before agreeing to take each test reinforces the conclusion that his

consent was not illegally coerced”). Third, the record reflects that, shortly after appellant


                                              5
was arrested, the sheriff read the ICA to appellant, and he agreed to take the test.

Analyzing the totality of the circumstances, we conclude, as the district court did, that

appellant’s consent to the breath test was voluntary.

       Finally, appellant contends that his consent was not voluntary because he “merely

submitted to the law, after being deliberately led to believe that he had no right to refuse.”

But “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.” Brooks, 838 N.W.2d at

570 (emphasis added); see also Poeschel v. Comm’r of Pub. Safety, 871 N.W.2d 39, 46

(Minn. App. 2015) (rejecting argument that appellant’s consent was involuntary because

the ICA penalizes test refusals). Moreover, the Supreme Court affirmed that, pursuant to

a lawful DWI arrest, a warrantless breath test is constitutional, and the driver “had no

right to refuse [a constitutional search].” Birchfield, 136 S. Ct. at 2165. Appellant’s

argument fails.

IV.    The test-refusal statute does not violate the unconstitutional-conditions
       doctrine.

       To the extent that appellant argues that the test-refusal statute violates the

unconstitutional-conditions doctrine, we recently held that “Minnesota’s test-refusal

statute does not violate the unconstitutional-conditions doctrine by imposing a criminal

penalty on a person who has been arrested for driving while impaired and has refused to

submit to a breath test.” State v. Bennett, 867 N.W.2d 539, 540 (Minn. App. 2015),

review denied (Minn. Oct. 28, 2015), cert. denied, No. 15-848 (U.S. June 28, 2016); see

also Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717, 731 (Minn. App. 2014)



                                              6
(concluding that “Minnesota’s implied-consent statute does not violate the

unconstitutional-conditions doctrine by authorizing the commissioner of public safety to

revoke the driver’s license of a person who has been arrested for DWI and has refused to

submit to chemical testing”). Appellant’s unconstitutional-conditions challenge fails

under Bennett.

      Affirmed.




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