                         This opinion will be unpublished and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
                                    A13-1435

                          Bryce Edward Ramthun, petitioner,
                                    Appellant,

                                          vs.

                            Commissioner of Public Safety,
                                   Respondent.

                                  Filed July 21, 2014
                                       Affirmed
                                  Rodenberg, Judge

                             Wright County District Court
                               File No. 86-CV-13-826

Charles L. Hawkins, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

      Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and

Chutich, Judge.
                        UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant Bryce Edward Ramthun challenges the district court’s order sustaining

the implied consent revocation of his driver’s license. We affirm.

                                         FACTS

      On January 11, 2013 appellant was stopped for speeding by Wright County

Sheriff’s Deputy Travis MacLeod at approximately 2:49 p.m. Deputy MacLeod noticed

that appellant smelled of alcohol and had bloodshot, watery eyes.        When Deputy

MacLeod asked appellant whether he had consumed alcohol, appellant admitted

consuming two alcoholic beverages. After appellant submitted to field sobriety tests and

to a preliminary breath test, which revealed an alcohol concentration of .125, Deputy

MacLeod arrested appellant.

      At approximately 3:34 p.m., Deputy MacLeod read appellant the implied consent

advisory at the Wright County Jail. Deputy MacLeod informed appellant that refusal to

submit to chemical testing is a crime. He informed appellant that he had the right to

consult with an attorney before submitting to testing. Appellant chose not to contact an

attorney. Deputy MacLeod asked whether appellant would take a breath test. Appellant

replied “sure” but also indicated that he wanted a blood test. Deputy MacLeod replied

that appellant was being offered only a breath test and advised appellant that he could

take a blood test at his own expense. Deputy MacLeod also told appellant that if he did

not submit to a breath test it would be considered a test refusal. The implied consent

advisory was completed at approximately 3:36 p.m., and appellant agreed to a breath test


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at approximately 3:43 p.m. The test indicated an alcohol concentration of .11. Deputy

MacLeod then issued appellant a notice and order of revocation of his driver’s license.

Appellant petitioned for judicial review of the revocation.

       The only issue raised at the implied consent hearing was appellant’s contention

that the breath test was illegal under Missouri v. McNeely, 133 S. Ct. 1552 (2013).

Deputy MacLeod and a corrections officer testified. Appellant did not testify. The

district court made its order before our supreme court’s decision in State v. Brooks, 838

N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). The district court

(accurately anticipating the test that would be adopted in Brooks) found that, “under the

totality of the circumstances, . . . [appellant’s] consent [was] voluntary, not coerced.” It

also held that “the voluntariness of [appellant’s] consent was not rendered invalid by his

desire to take a blood test instead of a breath test.” The district court sustained the

revocation of appellant’s driver’s license. This appeal followed, and we stayed the

appeal until after our supreme court’s decision in Brooks. The stay has now been

dissolved.

                                     DECISION

       In a civil action to rescind the revocation of driving privileges under the implied

consent law, the commissioner has the burden to demonstrate by a preponderance of the

evidence that revocation is appropriate. Kramer v. Comm’r of Pub. Safety, 706 N.W.2d

231, 235 (Minn. App. 2005). In reviewing a district court’s order sustaining an implied

consent revocation, we will not set aside findings of fact unless they are clearly

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


                                             3
will overturn conclusions of law only when the district court “erroneously construed and

applied the law to the facts of the case.” Dehn v. Comm’r of Pub. Safety, 394 N.W.2d

272, 273 (Minn. App. 1986).

       Appellant argues that his consent to the breath test was coerced because Deputy

MacLeod told him that he would be charged with a crime if he refused to provide a

breath sample. Collection and testing of a person’s breath is a search under the Fourth

Amendment to the United States Constitution and therefore requires a warrant or an

exception to the warrant requirement. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602,

616-17, 109 S. Ct. 1402, 1412-13 (1989). A warrantless search is valid when a person

voluntarily consents to it. Brooks, 838 N.W.2d at 568.

       The state bears the burden of demonstrating by a preponderance of the evidence

that the driver freely and voluntarily consented to a search. Id. To determine whether

consent was voluntary, the totality of the circumstances must be examined, “including the

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

was said.” State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999). The nature of the

encounter includes how the police came to suspect the driver was under the influence,

whether police read the driver the implied consent advisory, and whether the driver had

the right to consult with an attorney. Brooks, 838 N.W.2d at 560. A driver’s decision to

take a test is not coerced or extracted “simply because Minnesota has attached the penalty

of making it a crime to refuse the test.” Id. at 570.

       The district court conducted the equivalent of a Brooks analysis, despite Brooks

having not yet been decided. We defer to the district court’s factual findings within that


                                              4
analysis. See Jasper, 642 N.W.2d at 440. There is ample record support for the district

court’s finding that, based on the totality of the circumstances, appellant’s consent was

voluntary and not coerced.      Appellant was read the implied consent advisory and

submitted to testing within one hour of being stopped by Deputy MacLeod. Appellant

was told that he had the right to contact an attorney and chose not to do so. Appellant

signed the implied consent advisory, indicating that he understood it and consented to

taking a breath test, and Deputy MacLeod testified that he believed appellant understood

the advisory. This DWI is not appellant’s first, so he cannot claim that he was unfamiliar

with the implied consent process at the time of testing. There is nothing in this record to

indicate that appellant “was coerced in the sense that his will had been overborne and his

capacity for self-determination critically impaired.” See Brooks, 838 N.W.2d at 571.1

       Appellant contends that his expression of a preference for a blood test amounted to

a clear expression of his refusal to consent to a breath test. But close examination of the

record supports the district court’s finding that appellant’s consent to the breath test was

voluntary and not coerced. The record indicates that, after Deputy MacLeod explained to

appellant that he could not choose the type of test he would take, appellant thereafter

expressed his willingness to take a breath test.      The district court’s totality-of-the-


1
  Deputy MacLeod’s having required a breath test rather than a blood test does not render
appellant’s consent coerced. According to statute, a peace officer may require a chemical
test to be a breath test. Minn. Stat. § 169A.51, subd. 3 (2012). And Minnesota caselaw
has long recognized an officer’s ability to require that the method of testing be of an
arrestee’s breath sample. See, e.g., Meyers v. Comm’r of Pub. Safety, 379 N.W.2d 219,
221 (Minn. App. 1985); Forrest v. Comm’r of Pub. Safety, 366 N.W.2d 371, 372 (Minn.
App. 1985), review denied (Minn. June 27, 1985); Carlson v. Comm’r of Pub. Safety, 357
N.W.2d 391, 392 (Minn. App. 1984), review denied (Minn. Mar. 6, 1985).

                                             5
circumstances analysis is thorough and supported by the record. Its findings are not

clearly erroneous, and it properly applied the law.

       Affirmed.




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