                          This opinion will be unpublished and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
                                     A13-2263

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                Greer Elizabeth Dempster,
                                       Appellant.

                                Filed September 29, 2014
                                        Affirmed
                                      Smith, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-15777

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Martin J. Costello, Richfield City Attorney, Richfield, Minnesota (for respondent)

Thomas C. Gallagher, Minneapolis, Minnesota (for appellant)

         Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Smith,

Judge.

                         UNPUBLISHED OPINION

SMITH, Judge

         We affirm appellant’s conviction of driving while impaired because the

warrantless search of her breath was reasonable and because she expressly consented to

the search.
                                          FACTS

       On May 5, 2013, at approximately 8:15 a.m., Richfield Police Officer Cassandra

Sisson conducted a stop of appellant Greer Elizabeth Dempster’s vehicle after observing

that the vehicle’s license plate tabs were expired. While speaking with Dempster, Officer

Sisson “immediately detect[ed] a strong odor of an alcoholic beverage coming from

Dempster’s breath and inside the vehicle,” and she “noticed that [Dempster’s] speech was

slurred and her eyes were bloodshot and watery.” When Officer Sisson asked for proof

of insurance, Dempster took out two cards and “shuffled through them several times,”

stating that “she probably didn’t have the right insurance card.”          Officer Sisson

“immediately noticed that one of the insurance cards stated that it was valid until July of

2013.” During the stop, Dempster “randomly reached up and turned her ignition key.

The vehicle turned on and the radio began playing loud music. Dempster immediately

turned the vehicle off.” Dempster admitted consuming alcohol the previous evening, and

field sobriety tests indicated that she was intoxicated.

       Officer Sisson attempted to collect a sample of Dempster’s breath with a

preliminary breath test (PBT). See Minn. Stat. § 169A.41, subd. 1 (2012). Dempster

stated that she understood the test and “formed a seal around the PBT straw but did not

blow into it.” When Officer Sisson advised Dempster that “she needed to blow into the

PBT straw for it to obtain a reading,” Dempster refused to blow. Officer Sisson began to

arrest Dempster for driving while impaired, but paused when Dempster requested to take

the PBT. After administering the PBT, which indicated an alcohol concentration 0.155,

Officer Sisson arrested Dempster and transported her to the Richfield Police Department.


                                              2
        There, shortly before 9:00 a.m., Officer Sisson read Dempster the Minnesota

Implied Consent Advisory. Dempster indicated that she understood the advisory and that

she wished to consult with an attorney. Dempster was provided with a phone and a

phone book but, after stating that her attorney was out of state and she did not have his

number with her, she no longer wished to consult with an attorney. When asked if she

would take a breath test, Dempster replied, “I did.” Office Sisson responded, “This one’s

different. This is the one required by Minnesota’s law.” See Minn. Stat. § 169A.51,

subd. 2(a)(1) (2012). Dempster asked, “What happens if I say no?” Officer Sisson

replied, “If you say no, it’s considered a test refusal which is a separate crime from the

DWI.” Dempster asked, “What does that mean?” Officer Sisson replied, “It means that

if you refuse to take the test, then you’ll be charged with a test refusal, as well as with a

DWI.”     Officer Sisson then asked, “Do you want me to read this to you again?”

Dempster replied, “No, that’s fine,” and agreed to take a breath test. The test revealed an

alcohol concentration of 0.14.

        Respondent State of Minnesota charged Dempster with two counts of fourth-

degree driving while impaired. See Minn. Stat. § 169A.20, subd. 1(1) (driving under the

influence of alcohol), (5) (driving with an “alcohol concentration at the time, or as

measured within two hours of the time,” of 0.08 or more) (2012). The state later

amended the driving while impaired charge to careless driving. Dempster moved to

suppress the results of her breath test, arguing, in part, that the implied consent advisory

“requests ‘consent’ while it threatens criminal prosecution if this coerced ‘consent’ is not

given.” The district court denied the suppression motion, concluding that “consent is not


                                             3
the basis of the search and the search meets the reasonable requirement of the Fourth

Amendment.” Subsequently, the Minnesota Supreme Court analyzed the implied consent

statute in State v. Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799

(2014). In light of Brooks, the district court reconsidered Dempster’s motion to suppress,

hearing testimony from Officer Sisson and Dempster.         During the motion hearing,

Dempster testified that neither Officer Sisson nor her colleague threatened her or

exhibited “aggressiveness” and that she agreed to take a breath test to “get things moving

forward so [she] could go home.”

      Pending the district court’s decision on the motion, Dempster agreed to a trial on

stipulated facts, thereby preserving the pretrial suppression issue for appeal. See Minn.

R. Crim. P. 26.01, subd. 4. Concluding that Dempster “knowingly and voluntarily

consented to chemical testing” and that the search was reasonable, the district court

denied the motion to suppress and found Dempster guilty as charged. The district court

sentenced Dempster to a fine and 30 days in the county workhouse, with 28 days stayed

and the option to perform two days of community service in lieu of the workhouse.

Dempster challenges her conviction of driving while impaired.

                                    DECISION

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

subject to de novo review.” Haase v. Comm'r of Pub. Safety, 679 N.W.2d 743, 745

(Minn. App. 2004); see also State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). The

United States and Minnesota Constitutions protect against unreasonable searches and

seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. It is undisputed that taking a


                                            4
breath sample from someone constitutes a search under the Fourth Amendment. See

Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13

(1989). However, the state argues that the challenged search was not unreasonable and

therefore it does not violate the Fourth Amendment. We agree.

      A warrantless search may also be reasonable if it falls within a recognized

exception to the warrant requirement. State v. Flowers, 734 N.W.2d 239, 248 (Minn.

2007). One such exception is express consent. Brooks, 838 N.W.2d at 568; Stevens,

2014 WL 3396522, at *6. “For a search to fall under [this] consent exception, the State

must show by a preponderance of the evidence that the defendant freely and voluntarily

consented.” Brooks, 838 N.W.2d at 568. In other words, the state must show that it is

more likely than not that the defendant’s consent was given freely and voluntarily. See

City of Lake Elmo v. Metro. Council, 685 N.W.2d 1, 4 (Minn. 2004) (“The

preponderance of the evidence standard requires that to establish a fact, it must be more

probable that the fact exists than that the contrary exists.”). To determine whether the

defendant consented, 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.” Brooks, 838 N.W.2d at 569 (quotation omitted). “[C]onsent can be voluntary even

if the circumstances of the encounter are uncomfortable for the person being questioned.”

Id. Merely “acquiescing to a claim of lawful authority” is not consent, but, in regards to

the implied consent law, “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

569, 570.


                                            5
       Dempster attempts to distinguish the circumstances of her consent from the

circumstances in Brooks. Significantly, Dempster argues that (1) her initial refusal of the

PBT “taught” or “trained” her “that her ‘choice’ of whether to submit to a search was not

a real choice” because “refusal would result in a loss of liberty,” and (2) the implied

consent advisory and Officer Sisson’s answers to her questions coerced her consent.

These arguments are without merit.

       First, regarding the PBT, Dempster implies that Officer Sisson stopped

handcuffing her as a reward for agreeing to take the PBT. The record does not support

this implication. Officer Sisson testified that, following Dempster’s request to take the

PBT, she stopped handcuffing Dempster “so that she could provide a PBT sample.”

According to Officer Sisson’s incident report, Dempster was then “handcuffed (double

locked, checked for tightness), searched, and placed in the back of [her] squad car.”

Dempster also testified that after she took the PBT, the handcuffing “happened again,”

and she “was taken to the police station in handcuffs.” On this record, the fact that

Officer Sisson paused the arrest to accommodate Dempster’s request to take the PBT

does not support a finding of coercion.

       Second, regarding the implied consent advisory, Dempster does not contend that

Officer Sisson misstated the law or emphasized the consequences of refusal.1 Rather,

Dempster’s argument focuses on the content of the implied consent advisory:


1
  The record would not support such contentions, as it demonstrates that Dempster
pressed Officer Sisson for information and Officer Sisson merely restated the applicable
statutory provision, and then she offered to re-read the implied consent advisory.
Additionally, Dempster testified that Officer Sisson did not behave aggressively.

                                            6
specifically, the criminalization of test refusal. In Brooks, the Minnesota Supreme Court

concluded that although Minnesota’s implied consent law presents suspects with a

difficult and unpleasant choice, the nature of this choice is not unlawful coercion. Id. at

571. To the contrary, the implied consent advisory makes it clear that whether to submit

to testing is a choice, 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.

       Considering the totality of the circumstances, the state proved by a preponderance

of the evidence that Dempster freely and voluntarily consented to the test. Because

Dempster freely and voluntarily consented, even absent our conclusion about “general

reasonableness,” a warrant was not required.

       For the foregoing reasons, the district court correctly denied Dempster’s motion to

suppress the test results. Accordingly, we affirm Dempster’s conviction of driving while

impaired.

       Affirmed.




                                             7
