                         This opinion will be unpublished and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
                                    A13-1887

                           Sheila Kay Thompson, petitioner,
                                     Respondent,

                                           vs.

                            Commissioner of Public Safety,
                                    Appellant.

                                  Filed July 21, 2014
                                       Reversed
                                   Schellhas, Judge

                             Renville County District Court
                                File No. 65-CV-13-73

Curtis L. Reese, Olivia, Minnesota (for respondent)

Lori Swanson, Attorney General, Jacob Fischmann, Assistant Attorney General, St. Paul,
Minnesota (for appellant)

      Considered and decided by Schellhas, Presiding Judge; Halbrooks, Judge; and

Toussaint, Judge.*

                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant challenges the district court’s order rescinding the revocation of

respondent’s driver’s license, arguing that the district court erred by concluding that a


*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
warrant was required before requesting that respondent provide a sample of urine for

chemical testing. We reverse.

                                        FACTS

       Appellant Minnesota Commissioner of Public Safety revoked respondent Sheila

Thompson’s driver’s license following a urine test that showed an alcohol concentration

of 0.11. Thompson sought judicial review of her license revocation and moved to

suppress the results of the urine test. At the judicial review hearing, Renville Police

Officer Quentin Pomplun testified that he stopped Thompson’s vehicle after observing

the vehicle weave within its lane and repeatedly swerve across a white street line. Upon

approaching Thompson’s vehicle, Officer Pomplun noticed an “extremely strong” odor

of alcohol from within the car, Thompson’s speech was slurred, and her eyes were

bloodshot and watery. Officer Pomplun asked Thompson how much she had to drink, and

she stated that she had consumed two or three drinks. Thompson performed poorly on

field sobriety tests.

       Officer Pomplun arrested Thompson on suspicion of driving while impaired,

transported her to the Renville County Jail, and read to her the Minnesota Implied

Consent Advisory. Thompson stated that she understood the advisory, declined to speak

to an attorney, and agreed to provide a urine sample for chemical testing. Officer

Pomplun did not obtain a warrant for the urine sample. Thompson testified that she

consumed three alcoholic drinks between 4:30 p.m. and 10:30 p.m. and sipped from

another drink that was ordered during last call. Thompson testified that she crossed the

white line at least once while driving. She also testified that, although Officer Pomplun


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did not threaten her or yell at her when he read her the implied-consent advisory, she felt

compelled to submit to his request for the urine test. The district court rescinded

Thompson’s license revocation after concluding that Thompson’s consent was not a

voluntary waiver for Fourth Amendment purposes.

       This appeal follows.

                                     DECISION

       “When the facts are not in dispute, the validity of a search is a question of law

subject to de novo review.” Haase v. Comm’r of Pub. Safety, 679 N.W.2d 743, 745

(Minn. App. 2004). We will not set aside the district court’s findings unless they are

clearly erroneous. Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 440 (Minn. 2002).

We will overturn questions of law only if we determine that the district court has

erroneously construed and applied the law to the facts of the case. Dehn v. Comm’r Pub.

Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).

       The United States and Minnesota Constitutions prohibit warrantless searches and

seizures, subject to limited exceptions. U.S. Const. amend. IV; Minn. Const. art I, § 10;

see generally Bailey v. United States, 133 S. Ct. 1031, 1037 (2013) (noting that “[t]he

Fourth Amendment[ is] applicable through the Fourteenth Amendment to the States”).

Taking a urine sample is a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 617,

109 S. Ct. 1402, 1413 (1989).

       The commissioner argues that, under the totality of the circumstances, Thompson

consented to the urine test. If an individual consents to a search, the police do not need a

warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973).


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“[T]he State must show by a preponderance of the evidence that the defendant freely and

voluntarily consented” to the search. State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013),

cert. denied, 134 S. Ct. 1799 (2014). “Whether consent is voluntary is determined by

examining the totality of the circumstances.” Id. (quotation omitted). Under Brooks,

consent “is assessed by examining all of the relevant circumstances.” Id. at 569. This

examination requires us to “consider 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.” Id. (quotation omitted). The “nature of the encounter includes how the police

came to suspect [the driver] was driving under the influence, their request that he take the

chemical tests, which included whether they read him the implied consent advisory, and

whether he had the right to consult with an attorney.” Id. “[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.

       The district court found that “[Thompson] was under arrest and at the county jail

at the time she was read the Implied Consent advisory.” The court then noted that

“[g]iven that fact, a reasonable person in her position would not have felt free ‘to

terminate the encounter,’ and was certainly ‘more susceptible to police duress and

coercion.’” The court concluded that Thompson’s consent was “an insufficiently

voluntary waiver for Fourth Amendment purposes” and suppressed the urine sample.

       Thompson argues that the implied-consent advisory is coercive because it

indicates that a driver is “required” to take the test. But, in light of Brooks, we conclude

that the implied-consent advisory does not coerce the subject into taking the test; the


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advisory instead “ma[kes] clear to [the subject] that [s]he ha[s] a choice of whether to

submit to testing.” Id. at 572. Thompson attempts to distinguish Brooks by pointing out

that she did not consult an attorney. But Thompson does not dispute that Officer Pomplun

offered her an opportunity to consult an attorney or that she declined to consult with an

attorney. Thompson notes other allegedly distinguishing facts, including that the weather

was cold when Officer Pomplun stopped her, but none of the facts materially

distinguishes her case from Brooks.

      Nothing in the record contradicts that Thompson understood the implied-consent

advisory when Officer Pomplun read it to her, declined to speak to an attorney after

Officer Pomplun advised her of her right to do so, and agreed to provide a urine test when

Officer Pomplun asked her whether she would provide a sample. Under these

circumstances, the district court erred by suppressing the urine-test results. We therefore

reverse the district court’s order rescinding the revocation of Thompson’s driver’s

license. Because the commissioner prevails on the consent argument, we need not address

the commissioner’s alternative arguments.

      Reversed.




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