                        This opinion will be unpublished and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
                                   A13-1664

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                   Ali John Moin,
                                     Appellant.

                                Filed March 16, 2015
                                      Affirmed
                                   Johnson, Judge

                           Hennepin County District Court
                              File No. 27-CR-13-1029


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

Sandra H. Johnson, Bloomington City Attorney, Torrie J. Schneider, Assistant City
Attorney, Bloomington, Minnesota (for respondent)

Casey T. Rundquist, Law Offices of William J. Mauzy, Minneapolis, Minnesota (for
appellant)

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

Larkin, Judge.
                         UNPUBLISHED OPINION

JOHNSON, Judge

       Ali John Moin was found guilty of fourth-degree driving while impaired after a

stipulated-evidence court trial. On appeal, Moin challenges the denial of his petition for

postconviction relief.   He argues that evidence of a breath test should have been

suppressed before trial because his consent to the breath test was not valid. We conclude

that we cannot engage in appellate review because Moin did not order a transcript of the

hearing at which the postconviction court orally made findings of fact and denied the

postconviction petition. Therefore, we affirm.

                                        FACTS

       On the evening of January 10, 2013, State Trooper Peter Schultz stopped the

vehicle Moin was driving after the trooper observed him weave between the right lane

and the shoulder and observed him exit the highway without using his turn signal.

Trooper Schultz smelled alcohol on Moin’s breath and noticed that Moin’s speech was

slurred and that his eyes were watery. Moin admitted that he had consumed two or three

drinks. Trooper Schultz asked Moin to perform field sobriety tests and to submit to a

preliminary breath test, and those tests indicated that Moin was impaired. Trooper

Schultz arrested Moin for driving while impaired (DWI). Trooper Schultz transported

Moin to the Hennepin County jail and read him the implied-consent advisory. Moin

declined to speak with an attorney and agreed to a breath test, which indicated an alcohol

concentration of .17.




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      In January 2013, the state charged Moin with fourth-degree DWI. In May 2013,

Moin moved to suppress evidence of the breath test on the ground that Trooper Schultz

did not obtain a search warrant. The state and Moin entered into a stipulation of facts,

which recited the basic facts of Moin’s arrest, as described in the police report. The

district court denied Moin’s motion in August 2013, without receiving any additional

evidence, in a 29-page order and memorandum. The state and Moin then agreed to a

stipulated-evidence court trial. See Minn. R. Crim. P. 26.01, subd. 4. The district court

found Moin guilty.

      In September 2013, Moin filed a notice of appeal. In October 2013, this court

stayed Moin’s appeal pending the supreme court’s release of its opinion in State v.

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

App. Spec. R. Pract. 1 (“If a case pending in the Supreme Court will be dispositive of a

case pending before the Court of Appeals, the Chief Judge may order that scheduling be

deferred until the Supreme Court has acted.”). After the supreme court issued its opinion

in Brooks, the parties filed a joint motion for a remand for postconviction proceedings to

allow the district court to engage in additional fact-finding on the question whether Moin

voluntarily consented to the breath test. See Minn. R. Crim. P. 28.02, subd. 4(4). In

February 2014, this court granted the joint motion and again stayed the appeal.

      In March 2014, Moin filed a petition for postconviction relief and requested an

evidentiary hearing. In May 2014, the district court held a hearing on the petition.

According to Moin’s attorney, the district court informed counsel that it had viewed a

squad-car video-recording but would not receive additional evidence. According to the


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representations of both counsel, the district court made oral findings of fact concerning

the issue of Moin’s consent but did not issue a written order.

       In June 2014, this court issued an order reinstating the appeal, which specifically

required Moin to file a written request for transcripts or to notify the clerk of the appellate

courts and opposing counsel that a transcript is not required. The parties proceeded to

file their respective briefs, and the matter was submitted with oral argument.

                                      DECISION

       Moin argues that the district court’s pre-trial ruling and the postconviction court’s

ruling should be reversed because he did not consent to the breath test that indicated an

alcohol concentration of .17.

       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 Brooks, 838 N.W.2d at 567. As a general rule, a

search requires either a warrant or an exception to the warrant requirement, such as the

person’s consent, Brooks, 838 N.W.2d at 568; the existence of exigent circumstances,



                                              4
McNeely, 133 S. Ct. at 1558; or a valid arrest, State v. Bernard, ___ N.W.2d ___, ___,

2015 WL 543160, at *4 (Minn. Feb. 11, 2015). Whether a person has voluntarily

consented to a search is a factual determination. State v. Diede, 795 N.W.2d 836, 853

(Minn. 2011). A district court makes this determination by considering “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 (quotations

omitted). This court applies a clear-error standard of review to a district court’s finding

that a driver has validly consented to a breath test. Jasper v. Commissioner of Pub.

Safety, 642 N.W.2d 435, 440 (Minn. 2002).

       In its responsive brief, the state first argues that this court should dismiss Moin’s

appeal on the ground that he did not provide an adequate record for appellate review

because he failed to order a transcript of the postconviction hearing. The applicable rule

of appellate procedure provides:

                     Within ten days after filing the notice of appeal, the
              appellant shall:

                             (a) pursuant to subdivision 2 of this rule, order
              from the reporter a transcript of those parts of the proceedings
              not already part of the record which are deemed necessary for
              inclusion in the record; or

                           (b) file a notice of intent to proceed pursuant to
              Rule 110.03 or Rule 110.04; or

                             (c) notify the respondent in writing that no
              transcript or statement will be ordered or prepared.

Minn. R. Civ. App. P. 110.02, subd. 1. If a transcript is necessary for the proper

consideration of the issues presented on appeal but the appellant has not submitted the


                                             5
necessary transcript, this court will not consider the merits of the appeal. See State v.

Anderson, 351 N.W.2d 1, 2 (Minn. 1984); Godbout v. Norton, 262 N.W.2d 374, 376

(Minn. 1977); Custom Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608,

609 (1976); Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968);

Collins v. Waconia Dodge, Inc., 793 N.W.2d 142, 146 (Minn. App. 2011), review denied

(Minn. Mar. 15, 2011); State v. Heithecker, 395 N.W.2d 382, 383 (Minn. App. 1986);

Fritz v. Fritz, 390 N.W.2d 924, 925 (Minn. App. 1986).

          Moin did not order a transcript of the postconviction hearing. He also did not

notify the clerk of appellate courts and opposing counsel that no transcript is necessary,

as required by rule 110.02, subdivision 1, and by the order that reinstated the appeal.

Moin’s argument for reversal is that he did not consent to the breath test. His appellate

argument challenges the postconviction court’s denial of his petition for postconviction

relief.

          Moin did not file a reply brief and, thus, did not reply in writing to the state’s

responsive argument. At oral argument, Moin’s attorney argued that a transcript is not

necessary because the postconviction court did not conduct an evidentiary hearing but,

rather, relied primarily on the stipulated record that was submitted to the district court for

the pre-trial motion to suppress. But a transcript is necessary in this appeal for a more

fundamental reason: according to counsel for both parties, the postconviction court made

findings and announced its decision orally at the postconviction hearing. Without a

transcript, this court cannot know the postconviction court’s findings of facts and the

reasons for its decision. In other words, without a transcript, this court has no way of


                                              6
determining whether the postconviction court’s findings of facts are clearly erroneous or

whether the postconviction court properly considered the totality of the circumstances

surrounding Moin’s consent to the breath test. See Brooks, 838 N.W.2d at 569.

      We conclude that a transcript of the postconviction hearing is necessary to review

the postconviction court’s decision and that, without such a transcript, we are unable to

engaged in meaningful appellate review of the postconviction court’s decision.

Therefore, we affirm. See Anderson, 351 N.W.2d at 2; Heithecker, 395 N.W.2d at 383.

      Affirmed.




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