                         This opinion will be unpublished and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
                                    A14-0380

                            Randall Frank Larch, petitioner,
                                      Appellant,

                                           vs.

                             Commissioner of Public Safety,
                                    Respondent.

                                Filed October 20, 2014
                                       Affirmed
                                    Johnson, Judge

                              Aitkin County District Court
                                File No. 01-CV-13-973

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

Lori Swanson, Attorney General, Rory Mattson, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

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

Reilly, Judge.

                        UNPUBLISHED OPINION

JOHNSON, Judge

       The commissioner of public safety revoked Randall Frank Larch’s driver’s license

after he was arrested for driving while impaired and a breath test showed that his alcohol

concentration exceeded .08.     Larch sought judicial review of the commissioner’s
revocation. The district court denied his petition to rescind the revocation on the ground

that Larch voluntarily consented to the breath test. We affirm.

                                           FACTS

        Just after midnight on September 21, 2013, State Trooper Glen Bihler stopped

Larch for speeding in Aitkin County. Trooper Bihler detected the odor of alcohol on

Larch’s breath and noticed that his speech was slurred and that he had bloodshot and

watery eyes. Larch admitted that he had drunk four or five beers. Trooper Bihler asked

Larch to perform field sobriety tests and to submit to a preliminary breath test. Those

tests indicated that Larch was impaired.

        Trooper Bihler arrested Larch for fourth-degree driving while impaired. Trooper

Bihler read Larch the implied-consent advisory. Trooper Bihler transported Larch to the

county jail, where he repeated the advisory. When Larch indicated that he wished to

speak with an attorney, Trooper Bihler provided him with a telephone and a telephone

book.    After 30 minutes, Larch had not contacted an attorney.             Trooper Bihler

discontinued Larch’s telephone time. Larch then told Trooper Bihler that he would

submit to a breath test. The result of the breath test was an alcohol concentration of .12.

        The commissioner of public safety revoked Larch’s driver’s license.           Larch

petitioned the district court for judicial review of the commissioner’s revocation. In a

memorandum accompanying his petition, Larch argued that the breath-test results should

be suppressed because he did not provide valid consent to the breath test. The district

court held a hearing on the petition in November 2013. Larch testified that Trooper

Bihler told him that “Minnesota law requires you to take a test” and that “refusal to take a


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test is a crime.” Larch further testified that he “made a choice not to break the law” when

he submitted to the test.     The district court found that, under the totality of the

circumstances, Larch validly consented to the breath test. Accordingly, the district court

denied Larch’s petition and sustained the revocation of his license. Larch appeals.

                                     DECISION

       Larch argues that the district court erred by finding that his consent to the breath

test was not coerced and, thus, was valid. This court applies a clear-error standard of

review to a district court’s finding that a driver validly consented to a breath test. Jasper

v. Commissioner of Pub. Safety, 642 N.W.2d 435, 440 (Minn. 2002).

       The Fourth Amendment to the United States Constitution provides:

              The right of the people to be secure in their persons, houses,
              papers, and effects, against unreasonable searches and
              seizures, shall not be violated, and no Warrants shall issue,
              but upon probable cause, supported by Oath or affirmation,
              and particularly describing the place to be searched, and the
              persons or things to be seized.

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

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

Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1413 (1989); 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, 567 (Minn. 2013),

cert. denied, 134 S. Ct. 1799 (2014). As a general rule, a search requires either a warrant

or an exception to the warrant requirement, such as the person’s consent or the existence

of exigent circumstances. McNeely, 133 S. Ct. at 1558; Brooks, 838 N.W.2d at 568. The



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exigency created by the dissipation of alcohol in a suspect’s body is not a per se

exception to the warrant requirement. McNeely, 133 S. Ct. at 1568. But the consent of

the person whose breath is tested is an exception to the warrant requirement, in which

case a police officer is not required to obtain a warrant. Brooks, 838 N.W.2d at 568. In

an implied-consent case, the commissioner of public safety bears the burden of showing

by a preponderance of the evidence that the driver voluntarily consented to chemical

testing. Johnson v. Commissioner of Pub. Safety, 392 N.W.2d 359, 362 (Minn. App.

1986).

         In this case, the district court found that, under the “totality of the circumstances,”

Larch “voluntarily consented to the breath test, and his consent was not coerced but was

voluntarily given.” The district court found, “By reading the implied consent advisory to

[Larch], it was made clear that there was a choice in whether to submit to a test,

especially considering [Larch’s] prior experiences with intoxicated driving arrests.” The

district court reasoned that Larch’s consent was voluntary in light of Brooks, which held

that a finding of voluntariness is supported by evidence that a person has a choice to

either consent to or refuse a breath test. See Brooks, 838 N.W.2d at 572.

         The supreme court held in Brooks that a driver’s consent is not coerced as a matter

of law simply because the driver would face criminal consequences if he were to refuse

testing. 838 N.W.2d at 570. Instead, “whether consent is voluntary is determined by

examining the totality of the circumstances.” Id. (quotation omitted). The relevant

circumstances include “‘the nature of the encounter, the kind of person the defendant is,

and what was said and how it was said.’” Id. at 569 (quoting State v. Dezso, 512 N.W.2d


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877, 880 (Minn. 1994)). When considering the nature of the encounter, a court should

ask how the police came to suspect the driver was under the influence, whether police

read the driver the implied-consent advisory, and whether he had an opportunity to

consult with an attorney. Id. The supreme court identified three primary reasons why

Brooks’s consent was voluntary and not coerced. First, Brooks was read the implied-

consent advisory, which “made clear to him that he had a choice of whether to submit to

testing.” Id. at 572. The supreme court reasoned that “[w]hile an individual does not

necessarily need to know he or she has a right to refuse a search for consent to be

voluntary, 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. (citation omitted). Second,

Brooks had “the ability to consult with counsel,” id. at 572, which the supreme court

reasoned supports the conclusion that a defendant made a voluntary decision. Id. at 572.

Third, Brooks “was neither confronted with repeated police questioning nor was he asked

to consent after having spent days in custody.” Id. at 571 (citing State v. High, 287 Minn.

24, 27-28, 176 N.W.2d 637, 639 (1970)). The supreme court reasoned that “nothing in

the record suggests that Brooks was coerced in the sense that his will had been overborne

and his capacity for self-determination critically impaired.”         Id. (quotation marks

omitted).

       Larch contends that the district court improperly applied Brooks because the facts

of his case are factually distinguishable in two respects. First, Larch contends that, unlike

the appellant in Brooks, he did not actually confer with counsel because he was unable to

contact an attorney within the allotted 30 minutes. In Brooks, the appellant actually


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consulted with an attorney before consenting to a test. Id. at 570. But the supreme court

noted merely that Brooks had “the ability to consult with counsel.” Id. at 572. The

supreme court did not reason that actual consultation was essential but, rather, stated that

an actual consultation “reinforces the conclusion that his consent was not illegally

coerced.” Id. at 571. In any event, because a proper analysis considers the totality of the

circumstances, the Brooks opinion cannot be read to say that the absence of a

consultation with an attorney necessarily renders a driver’s consent involuntary.

       Second, Larch contends that the trooper coerced his consent by telling him that he

was “required” to take a breath test. The record reveals that the trooper read Larch the

implied-consent advisory that is required by statute. See Minn. Stat. § 169A.51, subd. 2

(2012). The supreme court in Brooks held that the advisory “made clear to [Brooks] that

he had a choice of whether to submit to testing” and that the existence of a choice

“supports a finding of voluntariness.” 838 N.W.2d at 572 (citation omitted). Similarly,

Larch testified that he “made a choice not to break the law.”           (Emphasis added.)

Accordingly, Larch’s testimony supports the district court’s finding that his consent was

voluntary. Nothing in the record suggests that Larch “was coerced in the sense that his

will had been overborne and his capacity for self-determination critically impaired.” See

id. at 571 (quotation marks omitted).

       In sum, the district court did not clearly err by finding that Larch voluntarily

consented to the breath test. In light of that finding, the district court properly denied

Larch’s petition to rescind the revocation of his driver’s license.

       Affirmed.


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