                          This opinion will be unpublished and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
                                     A13-2245

                          Brenda Lynne Schoenecker, petitioner,
                                     Respondent,

                                             vs.

                              Commissioner of Public Safety,
                                      Appellant.

                                   Filed August 4, 2014
                                         Reversed
                                     Connolly, Judge

                               Stearns County District Court
                                 File No. 73-CV-12-9659


Justin Braulick, Bradshaw & Bryant, PLLC, Waite Park, Minnesota (for respondent)

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


       Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and

Schellhas, Judge.

                         UNPUBLISHED OPINION

CONNOLLY, Judge

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

rescinding the revocation of respondent’s driving privileges, arguing (1) the totality of the

circumstances demonstrates that respondent consented to testing; (2) respondent agreed
to submit to alcohol-concentration testing as a condition of operating a motor vehicle on

Minnesota roads; (3) Missouri v. McNeely did not invalidate Minnesota’s implied-

consent law; (4) no warrant was required to collect respondent’s sample because

chemical testing under the implied-consent law is reasonable; and (5) application of the

exclusionary rule is not appropriate in this case. We reverse.

                                         FACTS

       On September 16, 2012, an officer was on routine patrol when he observed

respondent Brenda Lynne Schoenecker’s vehicle drifting in its lane of traffic. When

respondent crossed the center line, the officer conducted a traffic stop. He noticed that

respondent exhibited signs of impairment and asked if she had been drinking alcohol.

Respondent answered affirmatively. The officer led respondent through field sobriety

tests, including a preliminary breath test (PBT), which indicated that respondent’s alcohol

concentration was 0.118.

       The officer read respondent the Minnesota Motor Vehicle Implied Consent

Advisory (the implied-consent advisory). Respondent indicated that she understood the

implied-consent advisory, did not wish to consult with an attorney, and was willing to

submit to a breath test. The breath test indicated that respondent’s alcohol concentration

was .10. Based on this result, appellant revoked respondent’s driver’s license.

       On October 15, 2012, respondent sought judicial review to contest the revocation.

On September 26, 2013, the district court filed its order finding that “the totality of the

circumstances does not demonstrate that [respondent] provided free and voluntary

consent to the breath test.” The district court concluded that respondent’s consent was


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coerced by the threat of criminal sanctions in the implied-consent advisory and rescinded

the revocation of respondent’s driver’s license.

                                     DECISION

       Appellant argues that “[r]espondent consented to alcohol concentration testing

because the totality of the circumstances demonstrate that [r]espondent’s agreement to

submit to chemical testing was freely and voluntarily given.” We agree. 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.

Taking samples of an individual’s blood, breath, or urine is a search under the Fourth

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

1412-13 (1989); State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134

S. Ct. 1799 (2014). “[T]he Fourth Amendment does not proscribe all searches and

seizures, but only those that are unreasonable.” Skinner, 489 U.S. at 619, 109 S. Ct. at

1414. 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).

       Voluntary consent is a valid exception to the search-warrant requirement. Brooks,

838 N.W.2d at 568.      Consent must be given “freely and voluntarily” based on the

preponderance of the evidence. Id. To determine whether an individual validly consents,

we must 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 569


                                             3
(quotation omitted). “[T]he nature of the encounter includes how the police came to

suspect [the offender] was driving under the influence, their request that [s]he take the

chemical tests, which included whether they read [her] the implied consent advisory, and

whether [s]he had the right to consult with an attorney.” Id.

       The district court concluded,

              the totality of the circumstances does not demonstrate that
              [respondent] provided free and voluntary consent to the
              breath test. The Court finds that [respondent] was coerced
              into taking the test by the threat of criminal sanctions in the
              Minnesota Implied Consent Advisory. The Court finds that
              this threat was sufficient to invalidate the free and voluntary
              nature of the consent. Therefore, the Court finds that the
              exclusionary rule applies in this matter and the revocation of
              [respondent’s] driving privileges shall be RESCINDED.

But the district court issued its order on September 26, 2013, without the benefit of the

Minnesota Supreme Court’s October 2013 Brooks decision. See id. at 567. In Brooks,

the Minnesota Supreme Court concluded 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. The implied-consent advisory makes it clear that the offender

has “a choice of whether to submit to testing,” and “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.” Id. at 572.

       Based on the totality of the circumstances, we conclude that respondent

voluntarily consented to the breath test. As in Brooks, the officer in this case had

probable cause to arrest respondent for driving while intoxicated. The officer stopped

respondent’s vehicle after he witnessed her drifting in her lane of traffic and crossing the


                                             4
center line. Respondent exhibited signs of impairment and admitted that she had been

drinking alcohol.     The PBT administered at the scene indicated that her alcohol

concentration was .118. The officer read respondent the implied-consent advisory and

respondent stated that she understood the advisory, did not wish to contact an attorney,

and agreed to submit to the breath test. Respondent does not argue that the officer failed

to follow the proper implied-consent procedure. And although respondent elected not to

consult with an attorney, she did so after the officer advised her that she had that right.

       There is nothing in the record to suggest that the officer unduly coerced

respondent into submitting to the breath test. And although respondent argues that her

“agreement to test was not freely and voluntarily given” because “the choice the officer

gave [r]espondent was not really a choice at all given that the first thing the officer told

[r]espondent was that Minnesota law required her to take the test,” Brooks concluded that

the implied-consent advisory is not coercive even though it is a crime to refuse to take the

test. Id. at 570. We therefore conclude that the district court erred by reversing the

revocation of respondent’s driver’s license. Consequently, we reverse the district court’s

order reinstating respondent’s driving privileges.

       Appellant also makes alternative arguments for reversing the district court’s order.

Because we conclude that respondent’s consent was voluntary, we need not reach them.

       Reversed.




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