                           This opinion will be unpublished and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
                                      A16-0143

                               Ian Jorgen Crocker, petitioner,
                                         Appellant,

                                             vs.

                              Commissioner of Public Safety,
                                     Respondent.

                                    Filed July 18, 2016
                                         Affirmed
                                     Schellhas, Judge

                                Cass County District Court
                                 File No. 11-CV-15-745

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

Lori Swanson, Attorney General, Amy J. Tripp-Steiner, Assistant Attorney General, St.
Paul, Minnesota (for respondent)

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

Judge.

                          UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant challenges the district court’s denial of his petition to rescind the

revocation of his driver’s license, arguing that the implied-consent advisory is

“fundamentally misleading” and that his consent to a breath test was coerced. We reject

appellant’s arguments and affirm.
                                          FACTS

       Around 10:30 p.m. on April 8, 2015, Lakeshore Police Officer Derek Johnson

arrested appellant Ian Jorgen Crocker for driving while impaired (DWI). Officer Johnson

transported Crocker to jail and, just before midnight, administered the implied-consent

advisory as prescribed by statute. After Crocker received 25 minutes of attorney time,

Officer Johnson asked Crocker whether he would consent to a breath test. Crocker

responded affirmatively and submitted to a breath test, which revealed an alcohol

concentration of 0.21. Respondent Minnesota Commissioner of Public Safety revoked

Crocker’s driver’s license, and Crocker filed a timely petition seeking rescission of the

revocation. After a hearing, the district court denied Crocker’s petition.

       This appeal follows.

                                      DECISION

       “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). “Findings of fact are clearly

erroneous if, on the entire evidence, [the reviewing court is] left with the definite and firm

conviction that a mistake occurred.” State v. Diede, 795 N.W.2d 836, 846–47 (Minn. 2011).

“We give de novo review to questions of law in implied-consent proceedings.” Axelberg,

831 N.W.2d at 684.

       Crocker first argues that his due-process rights were violated by the “fundamentally

misleading” language of the implied-consent advisory. Specifically, Crocker claims that

“[w]here Minnesota drivers have the right to refuse [chemical testing], it is


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unconstitutionally misleading to inform them that they are ‘required’ by law to submit to

testing.” According to Crocker, the advisory’s language that “‘Minnesota law requires you

to take a test to determine if you are under the influence of alcohol’ . . . makes it

unequivocally clear to the listener that there is no right to refuse under Minnesota law.”

“Whether an implied-consent advisory violates a driver’s due-process rights is a question

of law, which this court reviews de novo.” Magnuson v. Comm’r of Pub. Safety, 703

N.W.2d 557, 561 (Minn. App. 2005) (citing Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d

340, 344 (Minn. 2005)).

       Crocker is correct that “due process does not permit the government to mislead

individuals as to either their legal obligations or the penalties they might face should they

fail to satisfy those obligations.” State v. Melde, 725 N.W.2d 99, 103 (Minn. 2006). And

the supreme court has stated that “the Minnesota Legislature has given those who drive on

Minnesota roads a right to refuse the chemical test.” State v. Brooks, 838 N.W.2d 563, 571

(Minn. 2013) (citing Minn. Stat. § 169A.52, subd. 1 (2012), which provides that “[i]f a

person refuses to permit a test, then a test must not be given”). But the balance of Crocker’s

argument falls short.

       By statute, an implied-consent advisory must inform a person “that Minnesota law

requires the person to take a test . . . to determine if the person is under the influence of

alcohol.” Minn. Stat. § 169A.51, subd. 2(a) (2014). And Minnesota law does so require,

consistent with the Fourth Amendment. See id., subd. 1 (2014) (providing that chemical

testing “may be required of a person” under specified circumstances, including lawful

arrest for DWI); Birchfield v. North Dakota, No. 14-1468, 2016 WL 3434398, at *12,


                                              3
*26–27 (U.S. June 23, 2016) (concluding that Minnesota constitutionally criminalized

driver’s refusal to submit to warrantless breath test where driver was arrested for DWI and

did not challenge lawfulness of arrest). A person may choose to violate the legal

requirement of chemical testing, Minn. Stat. § 169A.52, subd. 1 (2014), thereby subjecting

himself to the consequences of violation, Minn. Stat. §§ 169A.20, subd. 2, .52, subd. 3

(2014), but the availability of such a choice does not diminish the testing mandate.

       Indeed, the supreme court has stated that the implied-consent advisory “makes clear

that drivers have a choice whether to submit to testing.” Brooks, 838 N.W.2d at 570. The

advisory does not inform a person simply that the law requires him to take a chemical test;

the advisory also informs the person “that refusal to take a test is a crime” and “that the

person has the right to consult with an attorney.” Minn. Stat. § 169A.51, subd. 2(a). In other

words, the advisory as a whole informs a driver that, with the assistance of counsel, he

must decide whether to meet or to violate a legal requirement of chemical testing, where

violation is itself a crime. Id. We conclude that the advisory is not unconstitutionally

misleading as applied to Crocker, to whom Officer Johnson offered only a breath test

following the advisory. Cf. Birchfield, 2016 WL 3434398, at *10, *27 (stating that driver

“had no right to refuse” warrantless breath test offered after driver’s DWI arrest and receipt

of Minnesota’s implied-consent advisory).

       Crocker next argues that he did not freely and voluntarily consent to a breath test,

i.e., that the circumstances coerced his consent to the test. The district court rejected this

argument and determined that Crocker’s consent was voluntary. “The question whether a

consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express


                                              4
or implied, is a question of fact,” and a district court’s finding of voluntary consent is

reviewed for clear error. Diede, 795 N.W.2d at 846 (quotation omitted); see also Poeschel

v. Comm’r of Pub. Safety, 871 N.W.2d 39, 45–46 (Minn. App. 2015) (stating that “[t]he

question of whether an individual voluntarily consented to a search is a question of fact”

and reviewing for clear error district court’s determination that petitioner voluntarily

consented to warrantless urine test).

       “[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. Instead, the voluntariness of a driver’s consent to chemical testing is

assessed under “the totality of the circumstances, including the nature of the encounter, the

kind of person the d[river] is, and what was said and how it was said.” Id. at 569 (quotation

omitted); see also Birchfield, 2016 WL 3434398, at *27 (stating that “voluntariness of

consent to a search must be determined from the totality of all the circumstances”

(quotation omitted)). Consent to testing is voluntary unless the totality of the circumstances

demonstrates that the driver consented because his will was overborne and his capacity for

self-determination was critically impaired. Brooks, 838 N.W.2d at 571–72; accord

Poeschel, 871 N.W.2d at 46.

       After its analysis of the totality of the circumstances in Brooks, the supreme court

concluded that Brooks voluntarily consented to chemical testing. 838 N.W.2d at 572. The

court acknowledged that Brooks consented after arrest and while in custody but further

reasoned that “Brooks was neither confronted with repeated police questioning nor was he

asked to consent after having spent days in custody,” that “Brooks consulted with counsel


                                              5
before agreeing to take each test,” and 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 571–72.

       Similarly here, Officer Johnson read the implied-consent advisory to Crocker before

asking him whether he would consent to a breath test; Crocker also read the advisory to

himself. Crocker consented after arrest and while in custody, but Officer Johnson did not

subject him to repeated questioning or days in custody before asking him whether he would

consent to a breath test. Officer Johnson did not yell at or threaten Crocker, who was not

handcuffed when he was asked for consent to testing. Officer Johnson asked Crocker to

consent to a breath test only after he received 25 minutes of attorney time.

       Crocker attempts to distinguish Brooks by stressing that he, unlike Brooks, did not

speak with an attorney before consenting to chemical testing. But Brooks does not suggest

that voluntariness hinges on actual consultation with an attorney. The supreme court merely

noted that “[it] ha[s] recognized that the ability to consult with counsel about an issue

supports the conclusion that a [person] made a voluntary decision” and stated 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.” Id. (emphasis added).

       Here, Crocker failed to reach an attorney despite his multiple attempts to do so. Yet

he had 25 minutes of access to a phone, phone books, and attorney directories, and he was

told how to use the phone to call an attorney. Crocker chose to spend several minutes of

his attorney time speaking with his father on the phone, rather than persisting in his efforts

to reach an attorney. When Crocker ended the call with his father, Officer Johnson asked


                                              6
Crocker whether he wanted to “try to contact anyone else,” and Crocker answered in the

negative. In sum, Crocker had the ability to consult with an attorney even though no

consultation actually took place. As in Brooks, then, the totality of the circumstances

indicates that Crocker’s consent to chemical testing was free and voluntary. Because the

district court’s voluntariness finding is not clearly erroneous, we conclude that the

warrantless search of Crocker’s breath was justified by his consent.1 See State v. Johnson,

813 N.W.2d 1, 14 (Minn. 2012) (stating that “[e]stablished exceptions to the warrant

requirement include . . . searches conducted after obtaining voluntary consent”).

       Finally, Crocker argues that State v. Bernard, 859 N.W.2d 762 (Minn. 2015), aff’d

sub nom. Birchfield, 2016 WL 3434398, was wrongly decided. But the United States

Supreme Court has affirmed Bernard, holding that “the Fourth Amendment permits

warrantless breath tests incident to arrests for drunk driving.” Birchfield, 2016 WL

3434398, at *25, *27. We reject Crocker’s futile attack on Bernard and conclude that, even

if Crocker did not freely and voluntarily consent to the warrantless breath test, that test was

permissible as a search incident to his DWI arrest.

       Affirmed.




1
  We do not reach the state’s alternative argument that, because a reasonable officer would
have understood Brooks as authorizing Officer Johnson’s conduct, the results of the breath
test need not be suppressed even if Crocker did not freely and voluntarily consent to the
test.

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