                        This opinion will be unpublished and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
                                   A14-1401

                        Clayton Leonard Thompson, petitioner,
                                     Appellant,

                                         vs.

                           Commissioner of Public Safety,
                                  Respondent.

                                Filed March 30, 2015
                                      Affirmed
                                   Chutich, Judge

                             Anoka County District Court
                              File No. 02-CV-14-1981

Rory P. Durkin, Giancola-Durkin, Anoka, Minnesota (for appellant)

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


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

Smith, Judge.

                       UNPUBLISHED OPINION

CHUTICH, Judge

      Appellant Clayton Thompson challenges a district court order sustaining the

revocation of his driver’s license, arguing that his consent to take a breath test was
coerced and that the implied-consent statute is unconstitutional. Because Thompson

voluntarily consented and the implied-consent statute is constitutional, we affirm.

                                           FACTS

       In April 2014, Ramsey Police Officer James Bagne responded to a report of a

drunk driver. A citizen reported seeing a white Ford truck being driven erratically.

When Officer Bagne arrived in the area, he saw a white Ford truck with a license plate

number matching that which the caller reported. Officer Bagne observed the truck cross

over the centerline and fail to signal a turn.

       Officer Bagne stopped the truck and identified the driver as appellant Clayton

Thompson. Officer Bagne noticed that Thompson’s eyes were bloodshot and watery.

Thompson admitted that he had been drinking.          Officer Bagne asked Thompson to

perform field sobriety tests. When Thompson stepped outside the truck, Officer Bagne

smelled alcohol and noticed that Thompson had poor balance. Thompson failed several

field sobriety tests, and a preliminary breath test yielded an alcohol concentration of .188.

       Officer Bagne placed Thompson under arrest for driving while impaired. While

Thompson was in the back of the squad car, Officer Bagne read him the implied-consent

advisory. Thompson said he did not want to speak to a lawyer and would take a breath

test. At the Ramsey Police Department, Thompson submitted a breath sample. This

sample revealed an alcohol concentration of .13. Thompson was charged with two

counts of driving while impaired.

       Respondent Commissioner of Public Safety (the commissioner) revoked

Thompson’s driving privileges.        Thompson petitioned the district court for judicial


                                                 2
review of the revocation, and in June 2014, the district court conducted an implied-

consent hearing. Thompson’s counsel stated that the “sole challenge” was the search of

Thompson’s breath, specifically whether Officer Bagne needed a warrant or if a valid

warrant exception applied. The parties stipulated to the police reports, test results, and

reading of the implied-consent advisory, and no testimony was presented.

        The district court sustained the revocation.   It found that the totality of the

circumstances demonstrated that Thompson freely and voluntarily consented to the breath

test.   It determined that no evidence existed to suggest that Thompson’s will was

overborne or that his capacity to consent was impaired. Thompson appealed.

                                    DECISION

        Thompson first argues that his consent was involuntary. We disagree.

        The United States and Minnesota Constitutions protect individuals against

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

searches are presumptively unreasonable unless an exception to the warrant requirement

applies. State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). Consent is an exception to

that requirement. State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134

S. Ct. 1799 (2014). Whether consent was voluntary is determined by considering the

totality of the circumstances, id., and is a question of fact, Diede, 795 N.W.2d at 846.

Therefore, we review a finding of voluntary consent under the “clearly erroneous”

standard: findings of fact are clearly erroneous if we are left with the definite and firm

conviction that a mistake occurred. Id. at 846-47.




                                            3
       The district court found that Thompson voluntarily consented, and our review of

the evidence does not leave us with the definite and firm conviction that a mistake

occurred. Thompson was lawfully arrested, read the advisory, and agreed to take a breath

test. That Thompson was under arrest did not render his consent involuntary. See

Brooks, 838 N.W.2d at 571. And as the district court correctly noted, no evidence

suggests that Thompson’s will was overborne or that his capacity to consent was

impaired. See id.

       Additionally, the advisory informed Thompson that he could refuse the search.

Thompson submitted to the search after being informed of his right to refuse, which

further supports a finding of voluntariness. See id. at 572.

       Thompson next claims that his consent was not voluntary because the implied-

consent advisory misled him. But the implied-consent advisory correctly explained the

law in Minnesota, and an officer does not mislead a person if the officer truthfully

explains chemical testing obligations. McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d

848, 854 (Minn. 1991).

       Thompson further contends that the implied-consent statute is unconstitutional.

But Thompson did not raise this issue at the implied-consent hearing.              Instead,

Thompson’s counsel stated that the “sole challenge” was whether the search of

Thompson’s breath was valid.

       To raise a license-revocation issue for judicial review, a petition must “state with

specificity the grounds upon which the petitioner seeks rescission of the order of

revocation.” Minn. Stat. § 169A.53, subd. 2(b)(3) (2014); Schafer v. Comm’r of Pub.


                                             4
Safety, 348 N.W.2d 365, 368 (Minn. App. 1984). The specific-pleading requirement

alerts the commissioner and the district court to the specific matters at issue; the district

court does not err by failing to address an issue not raised in the petition for judicial

review. Rancour v. Comm’r of Pub. Safety, 355 N.W.2d 462, 464 (Minn. App. 1984).

       Because Thompson did not raise the constitutionality of the implied-consent

statute below, it is waived on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.

1988). Even if we were to consider this argument, however, Thompson’s claim would

fail. See State v. Bernard, ___ N.W.2d ___, ___, 2015 WL 543160, at *8-9 (Minn. Feb.

11, 2015) (finding test-refusal statute constitutional).

       Affirmed.




                                               5
