                       This opinion will be unpublished and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
                                  A14-0911

                            Paige J. Wentzel, petitioner,
                                     Appellant,

                                         vs.

                           Commissioner of Public Safety,
                                  Respondent.

                               Filed March 23, 2015
                                     Affirmed
                                Rodenberg, Judge

                           Hennepin County District Court
                              File No. 27-CR-14-2229

Daniel J. Koewler, Charles A. Ramsay, Ramsay Law Firm, PLLC, Roseville, Minnesota
(for appellant)

Lori Swanson, Attorney General, Jeanine M. Putnam, Assistant Attorney General, St.
Paul, Minnesota (for respondent)

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

Toussaint, Judge.*




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                         UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant challenges the district court’s finding that appellant consented to the

search of her breath, arguing that her breath sample was obtained in violation of her

constitutional right against unreasonable searches and seizures. We affirm.

                                          FACTS

       In the early morning hours of January 11, 2014, Orono Police Officer Brent

Rasmussen stopped a speeding vehicle driven by appellant Paige Julieanna Wentzel.

Officer Rasmussen approached the vehicle and observed that appellant displayed signs of

intoxication. After field sobriety testing and a preliminary breath test resulted in a

reading over the legal limit, Officer Rasmussen arrested appellant for driving while

intoxicated. Appellant was handcuffed, placed in the back of Officer Rasmussen’s squad

car, and transported to the Orono police station.

       At the police station, Officer Rasmussen read appellant the implied consent

advisory. When asked whether she understood, appellant responded, “Yeah.” Asked

whether she wanted to contact an attorney, appellant said, “No” twice, then said,

“Maybe,” and finally said, “I don’t know.” Officer Rasmussen told appellant that he

needed a “100 percent certain either yes or no.” Appellant agonized over the decision

about whether to contact an attorney and became upset. Officer Rasmussen patiently

explained to appellant that, if she decided to contact an attorney, she could obtain legal

advice concerning her situation and whether to consent to the testing of her breath.




                                             2
Officer Rasmussen also went through a detailed explanation of the implied-consent

procedure with appellant, answering all of the questions she posed to him.1

       Twelve minutes after Officer Rasmussen read the implied consent advisory,

appellant decided to call her father, a retired attorney.     Officer Rasmussen allowed

appellant to speak with her father for approximately 23 minutes.               During this

conversation, appellant is heard saying “scared,” and “no, I’m just scared!” Apparently

upset, appellant can be heard telling her father, “[T]hey said that I get a call . . . so I

thought I’d call you since you were a lawyer.” At the end of the conversation, Officer

Rasmussen asked, “Okay, Paige, are you done with your attorney time?” Appellant

responded, “I mean, yeah, half of an attorney.” Officer Rasmussen then asked, “Will you

take the breath test?” and appellant responded, “Sure.” Appellant provided an adequate

breath sample that revealed an alcohol concentration of .19. Appellant’s driver’s license

was revoked pursuant to Minnesota’s implied-consent law.                 Appellant sought

reinstatement of her driving privileges by petition.

       At the implied-consent hearing, appellant testified that, when the officer read the

portion of the implied consent advisory indicating that “Minnesota law requires you to

take a test,” she thought that she had to take a test and felt as if she “had no choice.” On

cross-examination the prosecutor asked appellant what she understood “paragraph 4”

(reading, “You must make the decision on your own. . . . You must make your decision

within a reasonable period of time”) of the implied consent advisory to mean, and


1
  The recording of the process was received in evidence as exhibit one and is part of the
record on appeal.

                                             3
appellant responded, “That I have to decide whether or not to take the test . . . and within

a certain amount of time.” When asked, “So it would be your decision whether or not to

take the test; correct?” appellant responded, “Correct.” Finally, appellant testified that

she understood that if she refused to take a breath or urine test she would be arrested but

did not believe that the police were going to “hold [her] down and take [her] blood.”

       The district court sustained the revocation of appellant’s driver’s license, finding

that her consent to the breath test was voluntary. This appeal followed.

                                     DECISION

       Any person who drives a vehicle within the state of Minnesota impliedly consents

to a chemical test for the purposes of determining the presence of alcohol. Minn. Stat.

§169A.51, subd. 1(b) (2014). If an officer has probable cause to believe that a person has

driven a motor vehicle while under the influence of alcohol, and arrests that driver under

Minn. Stat. § 169A.20 (2014) (driving while impaired), the officer must inform the driver

that Minnesota law requires a sample to determine whether that person is under the

influence and that refusal is a crime. Minn. Stat. § 169A.51, subd. 2 (2014).

       The Fourth Amendment to the United States Constitution and article I, section 10

of the Minnesota Constitution protect a person’s right to be free from unreasonable

searches and seizures, which include the right to be free from an unreasonable search and

seizure of one’s breath. State v. Netland, 762 N.W.2d 202, 212 (Minn. 2009), abrogated

in part by Missouri v. McNeely, 133 S. Ct. 1552, 1568 (2013), as recognized in State v.

Brooks, 838 N.W.2d 563, 564 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). A

warrantless search is generally unreasonable. Id. Consent is an exception to the warrant


                                             4
requirement, and the fact that refusal is a crime does not invalidate otherwise valid

consent. Brooks, 838 N.W.2d at 568, 570. That the encounter between the driver and the

officer is uncomfortable does not invalidate otherwise valid consent.           Id. at 569.

However, an individual does not validly consent by “simply acquiescing to a claim of

lawful authority.” Id.; see also State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994)

(holding that whether a person gave valid consent or was coerced turns on “whether a

reasonable person would have felt free to decline the officer’s requests” (quotation

omitted)). It is the state’s burden to “show by a preponderance of the evidence that

consent was given freely and voluntarily.” State v. Diede, 795 N.W.2d 836, 846 (Minn.

2011).

         Appellant argues that the district court’s determination that appellant voluntarily

consented to testing of her breath should be reviewed de novo. Whether a search is

constitutional is reviewed de novo, State v. Anderson, 733 N.W.2d 128, 136 (Minn.

2007), but whether consent was voluntarily given is a question of fact and is reviewed for

clear error, Diede, 795 N.W.2d at 846-47. “Findings of fact are clearly erroneous if, on

the entire evidence, we are left with the definite and firm conviction that a mistake

occurred.” Id. To establish whether appellant voluntarily consented to the search of her

breath, we evaluate the totality of the circumstances surrounding the search, including the

nature of the encounter, the kind of person appellant is, and what was said by the parties

and how it was said. Brooks, 838 N.W.2d at 569. “On appeal, due regard is given to the

district court’s opportunity to evaluate witness credibility.” Wilkes v. Comm’r of Pub.

Safety, 777 N.W.2d 239, 245 (Minn. App. 2010).


                                              5
       The district court concluded that, “[u]nder the totality of the circumstances,

[appellant’s] consent was not coerced, but was instead voluntarily given.” Specifically,

the district court found that appellant “understood that she had decisions to make about

whether to contact an attorney, and whether to take the test.” The district court found that

appellant’s “age, inexperience, and custody status [did not] render the decision to take the

breath test unconstitutionally coercive.”

       Appellant argues that the record shows appellant to have been merely acquiescing

to a show of legal authority. In exhibit one it is clear that appellant is upset and having

difficulty understanding her range of choices. She also tells her father that she is scared.

Appellant testified at the hearing that, when Officer Rasmussen ordered her out of her

vehicle, she was “very intimidated” and that she took the test because she “felt like [she]

didn’t have a choice.” But our task on appeal is not to find facts. Our task is to review

whether the record supports the district court’s findings. See Stiff v. Associated Sewing

Supply Co., 436 N.W.2d 777, 779 (Minn. 1989) (“[A]n appellate court’s limited scope of

review circumscribes additional fact finding . . . . If the [district] court’s findings of fact

are not clearly erroneous, they are to be affirmed.”).

       Appellant’s testimony was also conflicting. On cross-examination, she agreed that

she understood that she had a choice to make concerning a breath test. Appellant testified

that she understood that she had to “decide whether or not to take the test . . . and within a

certain amount of time.” Appellant further testified that she voluntarily blew into the

machine. The district court credited Officer Rasmussen’s testimony that appellant told

him she understood the implied consent advisory and voluntarily took the test. These


                                              6
credibility determinations, along with the evidence in exhibit one, support the district

court’s determination that, under the totality of the circumstances, appellant freely and

voluntarily consented to a breath test.

       The district court’s findings do not leave us with the “definite and firm conviction

that a mistake occurred.” See Diede, 795 N.W.2d at 846-47. That the record might

support a different conclusion than the one made by the district court does not require a

finding of clear error. Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).

       The evidence of record supports the district court’s findings, and those findings

support the district court’s determination that appellant consented to the test of her breath.

As consent is a valid exception to the warrant requirement, the search in this case was

constitutional.

       Affirmed.




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