                          This opinion will be unpublished and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
                                     A13-1983

                            Landon Ricky Olesiak, Petitioner,
                                     Respondent,

                                           vs.

                             Commissioner of Public Safety,
                                     Appellant.

                                  Filed August 4, 2014
                                        Reversed
                                      Ross, Judge

                               Steele County District Court
                                 File No. 74-CV-13-1203

Joel D. Eaton, Eaton & Mitchell Law Office, LLP, Owatonna, Minnesota (for
respondent)

Lori Swanson, Attorney General, Adam Kujawa, Assistant Attorney General, St. Paul,
Minnesota (for appellant)


         Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

         Landon Olesiak spoke with a lawyer and agreed to submit to a blood draw after

Owatonna police charged him with driving while impaired and read him the implied-

consent advisory. The commissioner of public safety revoked Olesiak’s driving
privileges, and Olesiak petitioned the district court to reverse that decision. The district

court held that Olesiak had been coerced to take the test by the threat of criminal

penalties for refusing, and it overturned the commissioner’s revocation decision. Because

the criminal penalties for test refusal are insufficient to coerce Olesiak’s consent to the

search and no other evidence of coercion is alleged, we reverse.

                                         FACTS

       Owatonna Police Officer Ben Johnson stopped a car driven by Landon Olesiak

late one night in April 2013 after Olesiak drove over the center line. Johnson noticed that

Olesiak smelled strongly of alcoholic beverages and had watery eyes. Olesiak failed all

field sobriety tests and refused to submit to a preliminary breath test. Johnson arrested

Olesiak for driving while impaired and placed him in the squad car. Johnson began

reading Olesiak the implied-consent advisory. Olesiak indicated that he understood the

advisory and said that he wanted to contact an attorney. Officer Johnson took Olesiak to a

hospital. Olesiak spoke to an attorney and then agreed to submit to a blood test. Hospital

staff drew a blood sample that indicated a .16 alcohol concentration. The state charged

Olesiak with driving while impaired, and the commissioner revoked his driving

privileges.

       Olesiak petitioned the district court to rescind the revocation, arguing that the

blood test violated his constitutional right to be free from unreasonable searches and

seizures. He contended that the criminal test-refusal penalties coerced his consent, and,

based only on that coercion theory, the district court agreed with Olesiak and rescinded

his revocation.


                                             2
       The commissioner appeals.

                                     DECISION

       The commissioner argues that the district court erred when it suppressed the result

of Olesiak’s blood test and rescinded the revocation of his driving privileges. The facts

are undisputed, so we review de novo the district court’s suppression order. State v.

Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

       The federal and state constitutions protect citizens from unreasonable searches and

seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A blood test is a search.

Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013). Warrantless searches are

unreasonable unless the state demonstrates that an exception to the warrant requirement

applies. State v. Flowers, 734 N.W.2d 239, 248 (Minn. 2007). Consent is an exception to

the warrant requirement. Othoudt, 482 N.W.2d at 222. The state must prove that consent

was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045

(1973); State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). We determine whether

consent was voluntary by examining the totality of the circumstances. State v. Brooks,

838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). We consider

“the nature of the encounter, the kind of person the defendant is, and what was said and

how it was said.” Id. at 569 (quotation omitted).

       Nothing in the record suggests, nor does Olesiak contend, that any aspect of

Officer Johnson’s conduct, aside from reading the implied-consent advisory, was

coercive. The district court based its decision that Officer Johnson had coerced Olesiak to

consent entirely on the force of that advisory. It specified that the officer was not


                                             3
“threatening or coercive in his manner, tone, or conduct.” But the district court did not

have the benefit of the Brooks decision, which has since rejected the notion that the

criminal penalties for test refusal can alone coerce consent. Id. at 570–71.

       The commissioner asserts that this case presents substantially the same

circumstances that were present in Brooks, where the supreme court held that the driver

had consented. See id. The assertion is accurate. In Brooks, police had probable cause to

suspect the defendant of driving while impaired, arrested him, and read him the implied

consent advisory. Id. at 565–66. Brooks spoke to his lawyer and submitted to a chemical

test afterward. Id. at 571–72. Olesiak’s case closely mirrors these facts, and only

Brooks’s more extensive impaired-driving history distinguishes him from Olesiak. This

distinction does not lead to a different result.

       We hold that the district court erred when it concluded that Olesiak’s consent was

coerced and therefore invalid. Because Olesiak’s consent was not invalid and he provides

no other reason to suppress the test result, we reverse. We do not reach the

commissioner’s other arguments.

       Reversed.




                                               4
