                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A15-0142

                              Kristin Marie Poeschel, petitioner,
                                         Appellant,

                                              vs.

                               Commissioner of Public Safety,
                                      Respondent.

                                   Filed October 26, 2015
                                          Affirmed
                                       Larkin, Judge

                               Goodhue County District Court
                                 File No. 25-CV-14-2362


Charles A. Ramsay, Daniel J. Koewler, Suzula R. Bidon, Ramsay Law Firm, PLLC,
Roseville, Minnesota (for appellant)

Lori Swanson, Attorney General, William J. Young, Assistant Attorney General, St. Paul,
Minnesota (for respondent)


         Considered and decided by Smith, Presiding Judge; Peterson, Judge; and Larkin,

Judge.

                                      SYLLABUS

         An officer does not violate a driver’s statutory right to an additional chemical test

under Minnesota’s implied-consent law by not offering the driver use of a telephone after

the state’s test, where the driver does not request posttest access to a telephone.
                                      OPINION

LARKIN, Judge

       Appellant challenges the district court’s order sustaining the revocation of her

driver’s license under Minnesota’s implied-consent law, arguing that her statutory right to

an additional chemical test was not vindicated and that her fundamental rights to due

process were violated. We affirm.

                                         FACTS

       On August 4, 2014, Officer Brad Arens of the Prairie Island Police Department

responded to a gas station to investigate a report that an individual was unable to pay for

gasoline. Officer Arens identified the individual as appellant Kristin Marie Poeschel.

Officer Arens noticed that Poeschel’s speech was slurred, her eyes were glossy, and her

breath smelled like alcohol.      Poeschel admitted that she had consumed alcoholic

beverages and that she had driven to the gas station.

       Officer Arens arrested Poeschel for driving while impaired (DWI), transported her

to the Prairie Island Public Safety Office, and read her Minnesota’s implied-consent

advisory. Poeschel contacted an attorney. While Poeschel was on the telephone with the

attorney, she informed the officer that she wanted an additional test. She also asked if the

officer had a warrant for chemical testing. Poeschel told the officer that, “[b]ecause I am

being coerced, I will give you a test” and “I’ll take the urine test because I am required




                                             2
to.”1 Poeschel was transported to the Goodhue County Jail, where she provided a urine

sample. She did not repeat her earlier request for an additional test after providing the

sample. Chemical testing of the sample revealed an alcohol concentration of 0.141,

prompting respondent commissioner of public safety to revoke Poeschel’s driver’s

license.

       Poeschel petitioned for judicial review of the license revocation, arguing that the

collection of her urine was a warrantless search in violation of the Fourth Amendment,

that she was denied due process of law, and that her statutory right to an additional test

was not vindicated. The district court sustained the license revocation, determining that

(1) the warrantless collection of Poeschel’s urine did not violate the Fourth Amendment

because she voluntarily consented to provide the sample; (2) Poeschel “was not misled by

the virtue of the language contained within the Minnesota Motor Vehicle Implied

Consent Advisory in violation of her due process rights”; and (3) Poeschel was not

denied her statutory right to an additional test.

       Poeschel appeals.

                                           ISSUES

       I.     When proceeding under Minnesota’s implied-consent statute, is an officer

required to offer a driver posttest use of a telephone where the driver informs the officer

that she wants an additional chemical test but does not request posttest access to a

telephone?

1
  The recording of the conversation between Officer Arens and Poeschel was not
included in the record available to this court. This account is based on undisputed facts
as they were presented in the parties’ briefs.

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       II.    Do appellant’s constitutional claims provide a basis for relief?

                                       ANALYSIS

                                             I.

       Poeschel contends that the results of the state’s chemical test of her urine are

inadmissible because law enforcement failed to vindicate her statutory right to an

additional chemical test. A law-enforcement officer may request that a driver submit to a

chemical test of the person’s blood, breath, or urine, if the officer has “probable cause to

believe the person was driving, operating, or in physical control of a motor vehicle” while

impaired and the driver “has been lawfully placed under arrest” for driving while

impaired. Minn. Stat. § 169A.51, subd. 1(b) (2014). However,

              [t]he person tested has the right to have someone of the
              person’s own choosing administer a chemical test or tests in
              addition to any administered at the direction of a peace
              officer; provided, that the additional test sample on behalf of
              the person is obtained at the place where the person is in
              custody, after the test administered at the direction of a peace
              officer, and at no expense to the state. The failure or inability
              to obtain an additional test or tests by a person does not
              preclude the admission in evidence of the test taken at the
              direction of a peace officer unless the additional test was
              prevented or denied by the peace officer.

Minn. Stat. § 169A.51, subd. 7(b) (2014) (emphasis added).

       Whether an officer unlawfully prevented or denied an additional test involves both

questions of law and of fact. Schulz v. Comm’r of Pub. Safety, 760 N.W.2d 331, 333

(Minn. App. 2009). “The district court’s findings of fact must be sustained unless clearly

erroneous, but this court reviews de novo whether, as a matter of law, the driver’s right to

an independent test was [violated].” Id.


                                             4
       “In determining whether an additional test has been prevented or denied, we must

draw a distinction between an officer’s failing to assist and an officer’s hampering an

attempt to obtain such a test.” Haveri v. Comm’r of Pub. Safety, 552 N.W.2d 762, 765

(Minn. App. 1996), review denied (Minn. Oct. 29, 1996). An officer must allow an

additional test to be administered, but “need not act affirmatively to facilitate the test.”

Id.   “The only obligation an officer has in assisting the defendant in obtaining an

additional test is to allow defendant use of a phone.” Frost v. Comm’r of Pub. Safety,

348 N.W.2d 803, 804 (Minn. App. 1984). The officer is not required to arrange an

opportunity for a driver to obtain additional testing. Hager v. Comm’r of Pub. Safety,

382 N.W.2d 907, 912 (Minn. App. 1986). Moreover, “[i]t is the duty of attorneys, not

police officers, to explain the extent and scope of the right to an additional test while the

driver is in custody.” Duff v. Comm’r of Pub. Safety, 560 N.W.2d 735, 738 (Minn. App.

1997) (quotation omitted). Advice and assistance regarding additional testing should

come from an attorney. See Hotchkiss v. Comm’r of Pub. Safety, 553 N.W.2d 74, 78

(Minn. App. 1996) (noting that an attorney is the appropriate source of legal advice

regarding additional testing), review denied (Minn. Oct. 29, 1996).

       Poeschel contends that her pretest telephone access was insufficient to vindicate

her right to an additional test. She argues that “[b]ecause a driver is only entitled to an

additional test after first submitting to the test requested by law enforcement, it follows

that vindication of the right to an additional test requires post-test access to a telephone”

and that “law enforcement had a duty to provide [her] with telephone access to arrange an

independent test after she submitted to the State’s test.”


                                              5
       Poeschel does not cite, and we are not aware of, any caselaw directly supporting

her contention that an officer’s obligation to allow the use of a telephone for the purpose

of obtaining an additional test can only be satisfied after the state’s test is administered.

In fact, caselaw refutes Poeschel’s contention. For example, this court has stated that the

pretest right to counsel provides an opportunity for an attorney to advise the driver

regarding the right to additional testing and to assist the driver in obtaining additional

testing. Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380, 386-87 (Minn. App. 1993),

aff’d, 517 N.W.2d 901 (Minn. 1994). Also, this court has held that a driver’s limited

right to pretest counsel was violated where a police officer terminated the driver’s

telephonic attorney consultation before the driver had an opportunity to obtain advice

regarding additional testing. Duff, 560 N.W.2d at 738. In doing so, we rejected the

commissioner’s argument that a driver’s pretest failure to receive advice regarding

additional testing is inconsequential because such advice could reasonably be postponed

until after the state’s test. Id.

       Poeschel relies on Theel v. Comm’r of Pub. Safety, 447 N.W.2d 472 (Minn. App.

1989), review denied (Minn. Jan. 8, 1990). In Theel, the driver asked for additional

testing and attempted to arrange a test after submitting to the state’s test. 447 N.W.2d at

473. The driver made several calls to hospitals, but no one from the hospitals would go

to the jail to administer a chemical test. Id. The driver told the jail staff that he was not

able to get help from any hospital and asked if he could call an attorney to arrange an

additional test. Id. The staff responded “[f]orget it. They’re all sleeping.” Id. This court

determined that the driver “wanted to call an attorney to assist him in exercising his right


                                             6
to obtain an additional test and the officer hindered his attempt.” Id. at 474. This court

therefore held that the driver’s statutory right to additional testing was prevented or

denied. Id.

       Unlike the circumstances in Theel, the record does not reveal any attempt by

Poeschel to arrange an additional test. More importantly, Poeschel did not ask to use a

telephone to arrange an additional test after she submitted to the state’s test. If the officer

in this case had refused such a request, we would likely conclude that the officer

prevented or denied an additional test. See id. But those are not the circumstances here.

       Essentially, Poeschel asks this court to create an affirmative duty requiring an

officer to offer a driver posttest use of a telephone to arrange an additional test even

though the driver has not asked to use the phone. We decline to do so. Caselaw

consistently describes an officer’s obligation as allowing the use of a telephone, as

opposed to offering the use of a telephone. See, e.g., Cosky v. Comm’r of Pub. Safety,

602 N.W.2d 892, 894-95 (Minn. App. 1999) (determining that a driver’s right to

additional testing was vindicated when “all of [the driver’s] requests to use a telephone

were granted”), review denied (Minn. Jan. 18, 2000); Hotchkiss, 553 N.W.2d at 77

(stating that the statute imposes no obligations on officers “other than to allow the

defendant use of a phone”); State v. Whitehead, 458 N.W.2d 145, 150 (Minn. App. 1990)

(concluding that officer did not prevent an additional test where the driver was never

refused use of a telephone), review denied (Minn. Sept. 14, 1990); Theel, 447 N.W.2d at

474 (“The only obligation an officer has is to allow the use of a telephone.”); Hager, 382

N.W.2d at 911 (“Even while in custody, the only obligation that [the officer] had was to


                                              7
allow [the driver] the use of a telephone.”); Frost, 348 N.W.2d at 804 (“The only

obligation an officer has . . . is to allow [the] defendant use of a phone.”).

       Requiring an officer to offer posttest use of a telephone in the absence of a request

would mandate assistance that is not required under law. See Schulz, 760 N.W.2d at 334

(noting that “the law significantly limits a peace officer’s obligations with regard to a

driver’s exercise of the statutory right to an additional test”); Haveri, 552 N.W.2d at 765

(distinguishing between failing to assist and hampering when determining whether the

statutory right to an additional test has been vindicated).

       Poeschel had the opportunity to consult with an attorney on the telephone

regarding the implied-consent process and her statutory right to an additional test. She

does not allege that the officer inappropriately limited her attorney consultation. And she

did not mention additional testing or ask to use a telephone after her attorney consultation

or after the state’s test. These undisputed facts show that the officer did not prevent or

deny an attempt to obtain additional testing. In sum, Poeschel’s statutory right to an

additional test was not violated.

                                              II.

       Poeschel also contends that the revocation of her driver’s license must be

rescinded “because law enforcement violated [her] fundamental due process rights under

the United States and Minnesota Constitutions.” “Whether a due process violation has

occurred presents a question of constitutional law, which [appellate courts] review de

novo.” State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012). We address each of

Poeschel’s due-process claims in turn.


                                               8
       Warrantless Search

       Poeschel first claims that she “had a fundamental, due process right to a warrant

issued by a neutral magistrate” and that “the commissioner did not meet its burden to

prove that a specifically established and well delineated exception to the warrant

requirement is present in [this] case.” Although Poeschel attempts to frame her first

claim as one sounding in due process, it is a Fourth Amendment claim. “[I]f a claim is

covered by a specific constitutional provision, that claim must be analyzed according to

the standards established by the specific provision, and not as a possible violation of the

claimant’s substantive-due-process rights.” State v. Mellett, 642 N.W.2d 779, 783 (Minn.

App. 2002), review denied (Minn. July 16, 2002).

       The United States and Minnesota Constitutions prohibit the unreasonable search

and seizure of “persons, houses, papers, and effects.” U.S. Const. amend. IV; Minn.

Const. art. I, § 10. The collection of a urine sample is a search under the Fourth

Amendment. Mell v. Comm’r of Pub. Safety, 757 N.W.2d 702, 709-10 (Minn. App.

2008). Warrantless searches are per se unreasonable, subject to limited exceptions. State

v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).            The state bears the burden of

establishing the existence of an exception to the warrant requirement. State v. Ture, 632

N.W.2d 621, 627 (Minn. 2001).         One such exception is consent.       Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973). “For a search to fall

under the consent exception, the State must show by a preponderance of the evidence that

the defendant freely and voluntarily consented.” State v. Brooks, 838 N.W.2d 563, 568

(Minn. 2013), cert. denied 134 S. Ct. 1799 (2014).


                                            9
       “Whether consent is voluntary is determined by examining the totality of the

circumstances.”    Id. (quotation omitted).      The question of whether an individual

voluntarily consented to a search is a question of fact. Schneckloth, 412 U.S. at 227, 93

S. Ct. at 2047-48. Therefore, this court reviews the district court’s finding of voluntary

consent for clear error. State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). “Findings of

fact are clearly erroneous if, on the entire evidence, [a reviewing court is] left with the

definite and firm conviction that a mistake occurred.” Id. at 846-47.

       Poeschel argues that the district court erred by determining that she freely and

voluntarily consented to the collection of her urine sample. Whether Poeschel voluntarily

consented requires consideration of all of the relevant circumstances, including “the

nature of the encounter, the kind of person the defendant is, and what was said and how it

was said.” Brooks, 838 N.W.2d at 569 (quotation omitted).

       Our review of the record does not leave us with a definite and firm conviction that

the district court erroneously found that Poeschel’s consent was voluntary. We are

guided by Brooks, in which the supreme court concluded that a driver voluntarily

consented to three chemical tests for alcohol concentration because he did not dispute

that the police had probable cause to believe that he had been driving under the influence;

he did not “contend that police did not follow the proper procedures established under the

implied consent law”; the police read “the implied consent advisory before asking [the

driver] whether he would take all three tests, which makes clear that drivers have a choice

of whether to submit to testing”; the “police gave [the driver] access to telephones to

contact his attorney and he spoke to a lawyer”; and “[a]fter consulting with his attorney,


                                            10
[the driver] agreed to take the tests in all three instances.” Id. at 569-70, 572. The

supreme court further noted that, although the driver was in custody, he “was neither

confronted with repeated police questioning nor was he asked to consent after having

spent days in custody.” Id. at 571.

       Applying Brooks, the circumstances do not suggest that Poeschel was coerced into

providing a urine sample. As in Brooks, Poeschel does not dispute that Officer Arens had

probable cause to believe that she had been driving under the influence or that he

properly read the implied-consent advisory. Poeschel indicated that she understood the

implied-consent advisory and, after consulting with an attorney, she agreed to submit to

chemical testing. Lastly, when Poeschel agreed to provide a urine sample, she had not

been confronted with repeated police questioning or held in custody for an unreasonable

period of time.

       Poeschel argues that her consent was involuntary because she told the officers

“she would take the urine test only because she was required to do so by law.” But in

Brooks, the supreme court rejected the argument that consent is per se involuntary

because of the attendant threat of a criminal charge for test refusal, concluding 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.” Id. at 570.

       Poeschel further argues that her consent was involuntary because there are

“several undeniably coercive facts” in her case, including that she was asked to perform

field sobriety tests, handcuffed during her arrest, and placed in a locked police car. But

in Brooks the supreme court found that Brooks’s consent was voluntary even though he


                                             11
was impaired by alcohol, under arrest, and in custody. Id. at 565-66, 572. Rather than

showing an “undeniably coercive” atmosphere, the facts here show a routine arrest for

DWI. The record does not suggest that Poeschel “was coerced in the sense that [her] will

had been overborne and [her] capacity for self-determination critically impaired.” See id.

at 571 (quotation omitted). In sum, the district court did not clearly err by finding that

Poeschel voluntarily consented to provide a urine sample for chemical testing.

       Summary Advisory

       Poeschel also claims that her due-process rights were violated because the officer

told her that refusal to submit to a urine test was a crime even though she could have

legally refused to submit to a urine test so long as she ultimately submitted to a chemical

test. See Minn. Stat. § 169A.51, subd. 3 (2014) (“The peace officer who requires a test

pursuant to this section may direct whether the test is of blood, breath, or urine. Action

may be taken against a person who refuses to take a blood test only if an alternative test

was offered and action may be taken against a person who refuses to take a urine test

only if an alternative test was offered.”).

       This court rejected a similar claim in Moe v. Comm’r of Pub. Safety, 574 N.W.2d

96 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998). In Moe, two drivers were

arrested for driving under the influence. Id. at 97. Both drivers were read the implied-

consent advisory and told that “refusal to take a test is a crime.” Id. at 97-98. Both

drivers consented to provide samples for testing. Id. The drivers later challenged the

revocations of their licenses, arguing that




                                              12
               the advisory, which failed to offer an alternative test, was
               inaccurate, misleading, and threatened them with potential
               criminal penalties that the state was not authorized to impose.
               See McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848,
               854-55 (Minn. 1991) (holding part of implied consent
               advisory unconstitutional where it threatened unauthorized
               criminal charges).

Id. at 98. This court rejected that argument, noting that “a state does not violate the

fundamental fairness inherent to due process by choosing not to advise individuals of all

the possible consequences of refusing an alcohol concentration test.” Id. We held that

“[a] peace officer’s use of a summary advisory does not violate the law where the

summary is accurate, the driver’s right to counsel is vindicated, and the driver consents to

the offered test.” Id. at 99.

       Here, the implied-consent advisory accurately stated that refusal to take a test is a

crime, Poeschel’s right to counsel was vindicated, and she voluntarily consented to the

test that was offered. The summary advisory therefore did not violate Poeschel’s right to

due process.

       Waiver of Statutory Right

       Lastly, Poeschel claims that

                      Officer Arens violated [her] due process rights by
               failing to obtain [her] knowing and intentional waiver of her
               statutory right to refuse to permit a test. Without a valid
               waiver of the statutory right, the evidence generated by the
               violation of that statutory right–the urine test results–is
               inadmissible in this proceeding.

       Poeschel does not offer due-process analysis or authority to support her last due-

process claim. Nor does she offer legal argument or authority to support her assertion



                                             13
that invalid waiver of a statutory right requires suppression of evidence in a civil

proceeding.   An assignment of error in a brief based on “mere assertion” and not

supported by argument or authority is waived unless prejudicial error is obvious on mere

inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).

Because prejudicial error is not obvious, we do not address the merits of Poeschel’s last

due-process claim.

                                     DECISION

       Because the police did not prevent or deny an additional chemical test by not

offering Poeschel use of a telephone in the absence of a request, her statutory right to an

additional test was not violated. In addition, the district court did not err by finding that

Poeschel voluntarily consented to the collection of a urine sample for chemical testing

and concluding that the warrantless collection therefore did not violate the Fourth

Amendment. Lastly, Poeschel’s due-process claims do not provide a basis for relief. We

therefore affirm the district court’s order sustaining the revocation of Poeschel’s driver’s

license.

       Affirmed.




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