                         This opinion will be unpublished and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
                                    A13-2212

                             Scott David Silver, petitioner,
                                      Appellant,

                                           vs.

                            Commissioner of Public Safety,
                                    Respondent

                                  Filed July 28, 2014
                                       Affirmed
                                      Ross, Judge

                            Hennepin County District Court
                               File No. 27-CV-13-3024

Steven J. Meshbesher, David R. Lundgren, Kevin M. Gregorius, Adam T. Johnson,
Meshbesher & Associates, PA, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Rory Mattson, Assistant Attorney General, Joseph
Simmer, Assistant Attorney General, St. Paul, Minnesota (for respondent)

      Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Huspeni,

Judge.

                       UNPUBLISHED OPINION

ROSS, Judge

      The state charged Scott Silver with driving while impaired after police stopped the

car he was driving and administered a breath test that revealed an alcohol concentration

above the per se intoxication limit. The commissioner of public safety revoked Silver’s


 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
driving privileges. Silver unsuccessfully petitioned the district court to rescind the

revocation. Because Silver voluntarily consented to the breath test, we affirm.

                                          FACTS

       Hopkins Police Officer Jessica Thomas stopped a speeding car that Scott Silver

was driving. Officer Thomas noticed that Silver had watery, bloodshot eyes and smelled

of alcoholic beverages. She asked Silver to perform field sobriety tests, and the tests

informed her that he was intoxicated. She administered a preliminary breath test,

indicating a .106 alcohol concentration. Officer Thomas arrested Silver.

       The officer took Silver to the police station and read him the implied consent

advisory. Silver indicated that he wanted to call an attorney, so Officer Thomas gave him

a cellular telephone, a phone book, and access to another phone. Silver dialed his

attorney’s number, but the attorney did not answer or call back within 30 minutes. Officer

Thomas then ended Silver’s phone access and asked if he would take a breath test. Silver

said he would, and his test indicated an alcohol concentration of .10. The commissioner

of public safety revoked Silver’s driving privileges.

       Silver petitioned for judicial review of the commissioner’s decision, raising

numerous arguments. The district court rejected them all, sustaining the revocation.

Silver appeals.

                                     DECISION

       Silver argues that his breath test results should have been suppressed because he

was coerced into taking the test, resulting in a violation of his constitutional rights. We

review revocation challenges based on alleged constitutional violations de novo.


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Harrison v. Comm’r of Pub. Safety, 781 N.W.2d 918, 920 (Minn. App. 2010). The

federal and state constitutions protect citizens against unreasonable searches and seizures.

U.S. Const. amend. IV; Minn. Const. art. I, § 10. A breath test is a search. Skinner v. Ry.

Labor Execs.’ Ass’n, 489 U.S. 602, 616–17, 109 S. Ct. 1402, 1413 (1989). Police

searches conducted without a warrant are unreasonable unless an exception to the warrant

requirement applies. State v. Flowers, 734 N.W.2d 239, 248 (Minn. 2007). Consent is an

exception to the warrant requirement, but the state must prove that the defendant

consented voluntarily. State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). We examine

the totality of the circumstances to decide whether the defendant’s consent was voluntary.

State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert denied, 134 S. Ct. 1799 (2014).

       Silver maintains that “two of the foremost” factors establishing voluntariness in

Brooks are absent here. The first, he argues, is “clear communication that [he]could

effectively withhold his consent to testing.” But Silver is wrong as a matter of fact

because police communication indicating the right to withhold consent was the same here

as it was in Brooks. The Brooks court reasoned that “by reading Brooks the implied

consent advisory police made clear to him that he had a choice of whether to submit to

testing.” Id. at 572. Likewise here, by reading Silver the implied consent advisory police

made clear to him that he had a choice of whether to submit to testing.

       The second of the “foremost” factors that Silver says distinguishes this case from

Brooks is that Brooks consulted with an attorney and Silver did not. But the Brooks court

analyzes the attorney call this way: “The fact that Brooks consulted with counsel before

agreeing to take each test reinforces the conclusion that his consent was not illegally


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coerced.” Id. at 571 (emphasis added). The term “reinforces” in context suggests that the

supreme court had already come to its conclusion and would not have decided differently

even if Brooks had not consulted with counsel. The court reasoned, it is “the ability to

consult with counsel about an issue” that makes a subsequent decision more likely to be

voluntary. Id. at 572. Silver, like Brooks, had “the ability to” contact an attorney before

agreeing to testing. That he tried unsuccessfully to reach an attorney and then agreed to

the test anyway does not suggest involuntariness or coercion.

       Silver highlights other factors, but none indicates that his will was overborne or

that he was pressured beyond his capacity to refuse the test. He points out that he was in

police custody when he was asked to take the test, that police had driven him to the police

department, and that he was subject to their direction. He adds that the advisory told him

he was required to take a test and that refusal is a crime. And he points out that he was

never advised that he would not be forced to submit to a test if he refused. In none of this

has he identified anything to distinguish his circumstances from those the supreme court

considered in Brooks. Although he asserts that “there are significant differences between

him and Mr. Brooks,” he identifies none except that Brooks was combative and had a

significant history with drunk driving offenses. We do not see these two factors as

significant. More important, Silver identifies nothing that the officer did or said that

would suggest coercion; like Brooks, he relies mostly on the theoretical force of the

threat of prosecution for refusing. But although this threat may in one sense be coercive,

Brooks teaches that it cannot alone support a finding of unconstitutional coercion.

       Affirmed.


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