                          This opinion will be unpublished and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
                                     A15-0434

                              Joel Gary Borchardt, petitioner,
                                        Appellant,

                                             vs.

                              Commissioner of Public Safety,
                                     Respondent.

                                 Filed November 2, 2015
                                 Reversed and remanded
                                     Connolly, Judge

                                Pine County District Court
                                 File No. 58-CV-14-639


Adam W. Klotz, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Peter D. Magnuson, Frederic J. Argir, Assistant
Attorneys General, St. Paul, Minnesota (for respondent)


       Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and

Rodenberg, Judge.



                         UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant challenges the district court’s order denying his motion to suppress the

results of his urine test and sustaining the revocation of his driver’s license, arguing that
the district court clearly erred in finding that he voluntarily consented to a urine test.

Because the district court committed an error of law by placing the burden of proof on

appellant, we reverse and remand.

                                         FACTS

       On October 11, 2013, Minnesota Department of Natural Resources (DNR)

Conservation Officers Ter Meer and Hanzal initiated a traffic stop of a truck they

believed was engaging in deer shining. The driver of the car was identified as appellant

Joel Gary Borchardt. As Officer Ter Meer spoke with appellant, he noticed a strong odor

of alcohol coming from the vehicle, that appellant’s speech was slurred, and that his eyes

were bloodshot and glazed. While the officers spoke with appellant and his companion,

they observed two partially cased shotguns, several open containers of beer, and a cooler

inside the car. Officer Ter Meer asked appellant to step out of the vehicle, performed a

pat-down search, and conducted field sobriety tests. Appellant failed the tests, and a

preliminary breath test indicated a 0.12 alcohol concentration.

       Officers with the DNR only have the authority to invoke the implied-consent law

when the suspected impaired driver has been operating a recreational vehicle. Because

appellant was driving a truck, the officers could not invoke the implied-consent law and

had to request the assistance of another law-enforcement officer. Pine County Deputy

Sheriff Mark Anderson responded to Officer Ter Meer’s request for assistance. He read

appellant the implied-consent advisory and appellant agreed to provide a urine sample at

the scene of the stop. Deputy Anderson then transported appellant and his companion

back to appellant’s cabin. Appellant’s truck was left at the scene and appellant was


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permitted to retrieve it at a later time. Testing of the urine sample revealed an alcohol

concentration of 0.13.      Respondent Commissioner of Public Safety later revoked

appellant’s driver’s license.

       Appellant was subsequently charged with one count of using artificial lights to

locate animals and two counts of driving while intoxicated (DWI).               During the

companion criminal case appellant challenged the admissibility of the results of the urine

test. On July 8, 2014, the district court held a Rasmussen hearing. Appellant testified

that before Deputy Anderson arrived and read the implied-consent advisory, Officer Ter

Meer told him that if he agreed to provide a urine sample at the scene of the stop then he

would not be transported to jail, his truck would not be confiscated, and the officers

would transport him and his companion back to his cabin. He further testified that these

statements were a factor in his decision to submit to a urine test at the scene of the stop.

He argued that the statements that he would not be taken to jail and his truck would not

be confiscated if he agreed to provide a urine sample amounted to coercion and therefore

his consent was not voluntary. The district court agreed and suppressed the results of the

urine test. The district court also dismissed the DWI charge that was based on appellant

driving with an alcohol concentration over the legal limit in violation of Minn. Stat.

§ 169A.20, subd. 1(5) (2012).

       On November 17, 2014, appellant petitioned for judicial review of the license

revocation. On January 6, 2015, the district court held an implied-consent hearing.

Appellant’s sole argument in support of reversing the revocation was that his consent to

the urine test was not voluntary. Neither party proffered any live testimony. Rather, the


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parties stipulated that the record would consist of a packet containing the implied-consent

advisory, peace officer’s certificate, urine test results, and police reports; the findings of

fact, conclusions of law, and order from the hearing in the criminal case; and the

transcript of the hearing in the criminal case, which included the testimony of Officer

Hanzal, Officer Ter Meer, Deputy Anderson, and appellant.

       On January 14, 2015, the district court issued an order determining that appellant

was not coerced into consenting to the urine test and sustaining the revocation of

appellant’s driver’s license. This appeal follows.

                                      DECISION

       The United States and Minnesota Constitutions prohibit unreasonable searches and

seizures. U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. A test of a person’s

urine constitutes a search for purposes of the Fourth Amendment. Skinner v. Ry. Labor

Execs.’ Ass’n, 489 U.S. 602, 617, 109 S. Ct. 1402, 1413 (1989). A warrantless search is

presumptively unreasonable unless an exception to the warrant requirement applies.

State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). One exception to the warrant

requirement is consent. State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert.

denied, 134 S. Ct. 1799 (2014).

       For a search to fall under the consent exception to the warrant requirement, the

state must show by a preponderance of the evidence that the individual freely and

voluntarily consented to the search. Diede, 795 N.W.2d at 846. The voluntariness of

consent is determined by considering the totality of the circumstances. Brooks, 838

N.W.2d at 568. This includes the nature of the encounter, what was said and how it was


                                              4
said, and the kind of person the defendant is. Id. at 569. The question of whether consent

to a search was voluntary is a question of fact, which this court reviews for clear error.

Diede, 795 N.W.2d at 846. Findings of fact are clearly erroneous if, based on the entire

record, this court is “left with the definite and firm conviction that a mistake occurred.”

State v. Andersen, 784 N.W.2d 320, 334 (Minn. 2010).

       Appellant argues that the district court erred by applying the wrong burden of

proof. This court reviews the district court’s determination of which party bears the

burden of proof de novo. C.O. v. Doe, 757 N.W.2d 343, 352 (Minn. 2008). According to

Brooks, “[f]or 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.” 838

N.W.2d at 568.      In this case, the district court’s conclusions of law include the

determination that “[appellant] has failed to prove by a preponderance of the evidence

that the law enforcement coerced [appellant] in order to collect the incriminating

evidence.” Thus, we agree that the district court put the burden on appellant to prove his

consent was not given freely and voluntarily, when based on Brooks the burden should be

on the state to show that it was. Therefore, we conclude that the district court’s finding

that appellant voluntarily consented to the urine test was based on the erroneous

application of the law, and reverse the district court’s decision and remand for the district

court to apply the correct burden of proof. See Coker v. Jesson, 831 N.W.2d 483, 492

(Minn. 2013) (reversing a decision based on the application of the wrong burden and

remanding for the application of the correct burden).

       Reversed and remanded.


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