                         This opinion will be unpublished and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
                                    A13-1895

                             Jason Homer Dodge, petitioner,
                                     Respondent,

                                          vs.

                             Commissioner of Public Safety,
                                     Appellant.

                                  Filed July 28, 2014
                                       Reversed
                                  Rodenberg, Judge

                              Dakota County District Court
                               File No. 19AV-CV-13-447

Max A. Keller, Keller Law Offices, Minneapolis, Minnesota (for respondent)

Lori Swanson, Attorney General, Kristi A. Nielsen, Assistant Attorney General, St. Paul,
Minnesota (for appellant)

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

Chutich, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant Commissioner of Public Safety challenges the district court’s grant of

respondent Jason Homer Dodge’s motion to rescind the revocation of his driver’s license.

Because the totality of the circumstances demonstrates that respondent consented to the

chemical test, we reverse.
                                         FACTS

       The facts in the record consist of police reports and other documents to which the

parties stipulated. On January 26, 2013, at approximately 12:30 a.m., Officer Kyle

Posthumus observed a white sedan “traveling well over the posted speed limit” that

passed two other cars while in the right lane. The sedan then pulled into a parking lot,

still traveling at a high speed, and parked in a parking spot.         Officer Posthumus

approached the vehicle of respondent, the driver, and the officer “detected a strong odor

of an alcoholic beverage coming from the vehicle in which [respondent] was the sole

occupant.” Respondent had red and watery eyes and admitted that he had consumed

alcohol 20 minutes before the stop.

       Respondent agreed to perform field sobriety tests. After performing poorly on the

tests, respondent submitted to a preliminary breath test, with a reported result of .211.

Officer Posthumus arrested respondent and transported him to the Burnsville Police

Department. Around 1:09 a.m. respondent was read the Implied Consent Advisory and

respondent asked to contact an attorney. Respondent made one phone call at 1:31 a.m.,

to his mother. At approximately 1:53 a.m. respondent stated that he no longer wanted to

speak with an attorney and agreed to take a breath test (answering “yes sir” to Officer

Posthumus’s question of whether he would take a breath test according to the implied

consent advisory sheet). A reading of .21 was reported by the testing device.

       Appellant revoked respondent’s driver’s license, and respondent challenged the

revocation. At an implied-consent hearing, the parties stipulated to the facts in the record

and agreed that the only issue was the constitutionality of the breath test. The district


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court subsequently held that the breath test was unconstitutional and granted the motion

to rescind the revocation of respondent’s driver’s license. This appeal followed.

                                    DECISION

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

subject to de novo review.      When reviewing the constitutionality of a search, we

independently analyze the undisputed facts to determine whether evidence resulting from

the search should be suppressed.” Haase v. Comm’r of Pub. Safety, 679 N.W.2d 743,

745 (Minn. App. 2004) (citation omitted). A district court’s conclusions of law are not

overturned “absent erroneous construction and application of the law to the facts.” Id.

      The United States and Minnesota Constitutions guarantee people the right to be

free from unreasonable searches. U.S. Const. amend. IV; Minn. Const. art. I, § 10.

Taking a sample of a person’s breath is considered to be a search under the Fourth

Amendment and, absent an applicable exception to the warrant requirement, requires a

warrant. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402,

1412-13 (1989). Consent is an exception to the warrant requirement. State v. Brooks,

838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). “For a search

to fall under the consent exception, the [s]tate must show by a preponderance of the

evidence that the defendant freely and voluntarily consented.”       Id.   In determining

whether consent is voluntary, we 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. at 568-69. In the implied-consent context, the nature of the

encounter includes how the police came to suspect that the driver was driving under the


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influence, how the request to submit to chemical testing was made, including whether the

driver was read the implied-consent advisory, and whether the driver had the right to

consult with an attorney. Id. at 569. The provision of the law making a refusal to submit

to testing a crime does not render consent involuntary as a matter of law. Id. at 571

(stating that although test refusal comes with criminal penalties and choosing whether to

submit to chemical testing is difficult or unpleasant, the criminal process is replete with

difficult and unpleasant choices).

       The supreme court in Brooks examined the totality of the circumstances in

analyzing whether the driver consented to testing. Id. at 569-72. The supreme court held

that Brooks voluntarily consented to testing because he did not challenge whether there

was probable cause to believe that he had been driving under the influence, he agreed that

he was properly read the implied-consent advisory, he was not subject to repeated police

questioning nor did he spend days in custody before consenting, and he consulted with an

attorney before he consented to testing. Id. at 571-72.

       Here, as in Brooks, respondent does not assert that the officers lacked probable

cause to arrest him for driving while impaired. He does not argue that he was not read

the implied-consent advisory. He was asked whether he would submit to testing and was

not subject to coercive police questioning. He was not held in custody for any prolonged

period of time. When asked whether he would take a breath test, respondent responded,

“yes sir.” Less than one hour elapsed between when respondent was read the implied-

consent advisory and when he agreed to take a breath test.




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       Respondent argues only that his consent was not voluntary because he was advised

that refusal to submit to a breath test may result in criminal prosecution. But Brooks

clarified that the criminality of test refusal does not render consent involuntary. Id. at

572 (stating that “the fact that someone submits to the search after being told that he or

she can say no to the search supports a finding of voluntariness”). In this case, there was

no testimony at the hearing, and no fact questions exist on whether respondent was

coerced to take the breath test. On our review of the police reports and other documents

stipulated into evidence, and as a matter of law, the totality of the circumstances

demonstrates that respondent voluntarily consented to the chemical test. Therefore, the

district court erred in rescinding the revocation of respondent’s driver’s license.

       Reversed.




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