                        This opinion will be unpublished and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
                                   A13-1532

                               Corey John Schoenberg,
                                    Respondent,

                                         vs.

                           Commissioner of Public Safety,
                                   Appellant.

                                 Filed July 21, 2014
                                      Reversed
                                Stoneburner, Judge

                            Stearns County District Court
                              File No. 73-CV-13-2755


Robert D. Stoneburner, Stoneburner Law Office, Paynesville, Minnesota (for respondent)

Lori Swanson, Attorney General, James E. Haase, Assistant Attorney General, St. Paul,
Minnesota (for appellant)


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

Stoneburner, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

STONEBURNER, Judge

      Appellant Minnesota Commissioner of Public Safety (commissioner) revoked

respondent Corey John Schoenberg’s driver’s license after he was arrested for driving

while impaired and a breath test showed that his alcohol concentration was 0.09. The

district court rescinded the commissioner’s revocation solely on the ground that

criminalization of test refusal made Schoenberg’s consent to the breath test involuntary

for Fourth Amendment purposes. Based on the supreme court’s subsequent ruling that

consent to testing is determined by examination of the totality of the circumstances and

because the record in this case shows that under the totality-of-circumstances test

Schoenberg’s consent was not coerced and was voluntary, we reverse.

                                        FACTS

      Stearns County Sheriff’s Deputy Andrew Struffert stopped Schoenberg’s vehicle

for failing to come to a complete stop at a stop sign and for having an obscured license

plate. Deputy Struffert noticed that Schoenberg’s eyes were bloodshot and watery and

that he smelled of alcohol. Schoenberg admitted that he had been drinking. Schoenberg

failed several field sobriety tests, and a preliminary breath test indicated an alcohol

concentration of .092.

      Deputy Struffert arrested Schoenberg for driving while impaired and read the

implied-consent advisory to him. Schoenberg indicated that he understood the advisory

and that he wanted to speak with an attorney. Deputy Struffert then took Schoenberg to

the Paynesville Police Department so that he could use a telephone to contact an attorney.


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After speaking with an attorney, Schoenberg told Deputy Struffert that he would submit

to a chemical test. A test of Schoenberg’s breath revealed an alcohol concentration of

.09.

       Based on the test result, the commissioner revoked Schoenberg’s driver’s license.

Schoenberg petitioned the district court for judicial review of the commissioner’s

revocation of his license. See Minn. Stat. § 169A.53, subd. 2 (2012). The district court

conducted an implied-consent hearing at which Schoenberg was present and represented

by counsel. At the outset of the hearing, Schoenberg’s attorney identified two issues: the

validity of the investigatory stop and the “McNeely challenge.”

       Deputy Struffert testified about the basis of the stop and described the

circumstances surrounding the breath test. He testified that he read the implied-consent

advisory, which Schoenberg said he understood. Deputy Struffert gave Schoenberg

access to a telephone book and telephone, and Schoenberg, after speaking to an attorney,

said that he would take a breath test. The test was administered by Deputy Peggy Engler,

who is a certified operator of the testing device.           Deputy Struffert testified that

Schoenberg was respectful and cooperative throughout the process. Deputy Struffert

confirmed that he did not seek a warrant to obtain Schoenberg’s breath sample.

       Schoenberg called Deputy Engler, who confirmed that no warrant was obtained

before the test was administered.      Schoenberg’s father testified for Schoenberg and

established that Schoenberg is a college student who was, at the time of the stop, home on

a visit, driving a car registered to father. He testified that the license plate on the vehicle

was not obscured because it had been very recently wiped off so that the new registration


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stickers could be applied. Schoenberg testified on his own behalf. He confirmed that he

is a college student. He corroborated his father’s testimony about the license plate and

denied that he had failed to come to a complete stop at a stop sign. He testified that he

did not dispute Deputy Struffert’s assertion that he had failed to stop “because [Deputy

Struffert] had a badge and a gun.” Schoenberg testified the he cooperated with the test

because he was told that refusal would be a crime. He stated, “I decided to take the test.”

Schoenberg introduced the squad-car video of the stop, asserting that it depicted a full

stop.

        The district court issued an order in which it determined that Deputy Struffert had

probable cause that Schoenberg had not come to a complete stop at the stop sign, and that

his stop of Schoenberg’s vehicle was lawful.        But the district court rescinded the

revocation of Schoenberg’s license based solely on its determination that criminalization

of test refusal made Schoenberg’s consent to testing involuntary, resulting in an

unconstitutional warrantless search of Schoenberg’s breath.

        Subsequently, the supreme court issued its opinion in State v. Brooks, 838 N.W.2d

563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014), rejecting the assertion that

criminalization of test refusal makes consent to testing involuntary as a matter of law and

setting out a totality-of-circumstances test to be applied on a case-by-case basis to

determine whether consent is voluntary. This appeal followed.

                                     DECISION

        The Minnesota and United States Constitutions protect citizens from unreasonable

searches. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. A breath test is a search


                                             4
requiring a warrant or an exception to the warrant requirement. Skinner v. Ry. Labor

Execs.’ Ass’n, 489 U.S. 602, 617, 109 S. Ct. 1402, 1413 (1989). The exception relied on

by the commissioner in this case is consent. “[P]olice do not need a warrant if the subject

of the search consents.” Brooks, 838 N.W.2d at 568. “For a search to fall under the

consent exception, the State must show by a preponderance of the evidence that the

defendant freely and voluntarily consented [to a search].” Id.

          In this case, the district court concluded, as a matter of law, that Schoenberg did

not voluntarily consent to the breath test solely because “[t]he imposition of criminal

sanction upon test refusal plainly serves to coerce an individual to provide his actual

consent.” In Brooks, which was issued four months after the district court’s order, the

supreme court expressly rejected the district court’s reasoning. See id. at 570. The

supreme court held that a driver’s consent is not coerced as a matter of law simply

because the driver would face criminal consequences if he were to refuse testing. Id.

Instead, “[w]hether consent is voluntary is determined by examining the totality of the

circumstances.” Id. at 568 (quotation omitted).        In light of Brooks, the district court

erred by holding that Schoenberg’s consent was not voluntary as a matter of law. See id.

at 570.

          In Brooks, the supreme court stated that the relevant circumstances to be

considered in determining voluntariness of consent include “‘the nature of the encounter,

the kind of person the defendant is, and what was said and how it was said.’” Id. at 569

(quoting State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994)). When considering the

nature of the encounter, a court should ask how the police came to suspect the driver was


                                               5
under the influence, whether police read the driver the implied-consent advisory, and

whether he had the right to consult with an attorney. Id. Under this test, the supreme

court identified three primary reasons why the record established that Brooks’s consent

was voluntary and not coerced: (1) Brooks was read the implied-consent advisory, which

“made clear to him that he had a choice of whether to submit to testing”; (2) Brooks had

“the ability to consult with counsel”; and (3) Brooks “was neither confronted with

repeated police questioning nor was he asked to consent after having spent days in

custody.” Id. at 571-72. The supreme court noted that “nothing in the record suggests

that Brooks was coerced in the sense that his will had been overborne and his capacity for

self-determination critically impaired.” Id. at 571 (quotation marks omitted).

      Applying the factors delineated in Brooks to this case, the undisputed facts

establish that Schoenberg’s consent to testing was voluntarily. Schoenberg, a college

student, was read the implied-consent advisory and indicated that he understood it; he

was given the opportunity to speak with an attorney; and he “decided to take the test.”

Although his testimony demonstrates that the criminal penalty for refusal weighed in his

decision, nothing in the record suggests any circumstance that would have overborne his

will or his capacity for self-determination. Under the totality of the circumstances, we

conclude that the undisputed evidence in the record establishes that the commissioner met

the burden to prove by a preponderance of evidence that Schoenberg voluntarily

consented to the breath test. In light of that conclusion, we need not consider the

commissioner’s arguments that Schoenberg consented to chemical testing as a condition

of driving in Minnesota, that McNeely did not invalidate Minnesota’s implied-consent


                                            6
law, that chemical testing under the implied-consent law is per se reasonable, or that the

exclusionary rule does not apply.

      Reversed.




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