                           This opinion will be unpublished and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
                                      A14-0526

                            Joshua William Muckala, petitioner,
                                       Respondent,

                                            vs.

                              Commissioner of Public Safety,
                                      Appellant.

                                 Filed November 3, 2014
                                        Reversed
                                    Bjorkman, Judge


                             Washington County District Court
                                File No. 82-CV-13-3061

Thomas W. Jakway, Woodbury, Minnesota (for respondent)

Lori Swanson, Attorney General, Kristi Nielsen, Assistant Attorney General, St. Paul,
Minnesota (for appellant)

         Considered and decided by Smith, Presiding Judge; Larkin, Judge; and Bjorkman,

Judge.

                          UNPUBLISHED OPINION

BJORKMAN, Judge

         Appellant commissioner challenges the district court’s rescission of respondent’s

driver’s license revocation, arguing that the exclusion of evidence of respondent’s alcohol
concentration was inappropriate because he voluntarily consented to the breath test. We

reverse.

                                         FACTS

       Early in the morning on May 7, 2013, respondent Joshua Muckala was arrested for

driving while impaired. Police transported Muckala to the Washington County Jail,

where the arresting officer read him the standard implied-consent advisory. Muckala

indicated that he understood the advisory and did not wish to speak to an attorney, and

agreed to take a breath test. The test revealed an alcohol concentration of 0.11. Based on

that finding, appellant commissioner of public safety revoked Muckala’s driver’s license.

Muckala petitioned for judicial review of the license revocation, asserting that the breath

test constituted an unreasonable warrantless search not justified by exigent

circumstances. The district court concluded that a warrant was required for the search,

excluded the test results, and rescinded the license revocation.       The commissioner

appeals.

                                     DECISION

       Collection and testing of a person’s blood, breath, or urine constitutes a search

under the Fourth Amendment of the United States Constitution, requiring a warrant or an

exception to the warrant requirement. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602,

616-17, 109 S. Ct. 1402, 1412-13 (1989); State v. Brooks, 838 N.W.2d 563, 568 (Minn.

2013), cert. denied, 134 S. Ct. 1799 (2014). The dissipation of alcohol in the blood-

stream is not an exigent circumstance that categorically allows for a warrantless search.

Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013). But a warrantless search of a


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person’s blood, breath, or urine is valid if the person voluntarily consents to the search.

Brooks, 838 N.W.2d at 568. The commissioner must establish by a preponderance of the

evidence that the defendant freely and voluntarily consented. See id.

       Whether a driver’s consent is voluntary is determined by examining the “totality

of the circumstances.” Id. (quotation omitted). This court independently reviews the

facts and determines, as a matter of law, whether the district court erred in suppressing

the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). Relevant circumstances

include “‘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 (quoting State v. Dezso, 512

N.W.2d 877, 880 (Minn. 1994)). The nature of the encounter includes how the police

came to suspect the driver was driving under the influence, whether they read the driver

the implied-consent advisory, and whether the driver had the right to speak with an

attorney. Id. A driver’s consent is not coerced simply because he or she faces criminal

charges for refusing to submit to the test. Id. at 570.

       The commissioner argues that Muckala voluntarily consented to the breath test.

We agree. It is undisputed that there was probable cause to arrest Muckala for driving

while impaired and that the officer followed all of the requirements when giving Muckala

the implied-consent advisory. Unlike Brooks, Muckala chose not to consult an attorney,

but he was aware of and had the opportunity to do so.

       Muckala does not claim, and there is nothing in the record to indicate that the

officer did anything to overcome Muckala’s will or coerce his cooperation. Muckala was

not confronted with repeated questioning or held in custody for an extended period of


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time before being asked to take the breath test. He points only to the content of the

implied-consent advisory as evidence of coercion, which our supreme court rejected as a

matter of law in Brooks, 838 N.W.2d at 570. Under the totality of the circumstances, we

conclude that Muckala’s consent was voluntary, and the district court erred by rescinding

the revocation of Muckala’s license.

         Muckala asserts that the warrantless search of his breath is nonetheless invalid

because Minnesota’s implied-consent law unconstitutionally conditions his privilege to

drive on relinquishing his right to be free from unreasonable searches. We recently

addressed this issue, holding that Minnesota’s implied-consent statute does not violate the

unconstitutional-conditions doctrine. See Stevens v. Comm’r of Pub. Safety, 850 N.W.2d

717, 724-31 (Minn. App. 2014) (identifying four reasons why the implied-consent law is

not invalid under the doctrine of unconstitutional conditions). Muckala provides us with

no reason to depart from Stevens in this case, and as such his constitutional challenge

fails.

         Reversed.




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