                       This opinion will be unpublished and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
                                  A13-1639

                         Bruce Joseph Fischbach, petitioner,
                                    Respondent,

                                         vs.

                           Commissioner of Public Safety,
                                   Appellant.

                               Filed August 18, 2014
                                     Reversed
                                Rodenberg, Judge

                             Pine County District Court
                                File No. 58-CV-13-8

Jeffrey S. Sheridan, Strandermo, Sheridan & Dulas, P.A., Eagan, Minnesota (for
respondent)

Lori Swanson, Attorney General, Adam Kujawa, James E. Haase, Assistant Attorneys
General, St. Paul, Minnesota (for appellant)

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

Stoneburner, Judge.*




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                        UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant Commissioner of Public Safety challenges the district court’s order

rescinding the revocation of respondent Bruce Joseph Fischbach’s driver’s license.

Because the totality of the circumstances demonstrates that respondent consented to the

chemical test, we reverse.

                                        FACTS

      Around 1:20 a.m. on December 3, 2012, Minnesota State Trooper Richard Pender

conducted a traffic stop of respondent’s vehicle because it was travelling over the right

fog line at 79 miles per hour in a 70-mile-per-hour zone. While talking to respondent,

Trooper Pender noticed that respondent had “an odor of alcoholic beverage coming from

his breath” and that he had “very red and bloodshot eyes.” Respondent admitted that he

had been drinking alcohol, but stated that his last drink was at 6:00 p.m. Respondent

submitted to a preliminary breath test, which showed an alcohol concentration of .172.

      Trooper Pender arrested respondent and transported him to the Pine County jail,

where he read respondent the implied consent advisory.        Respondent stated that he

understood the advisory and declined to consult with an attorney. Trooper Pender then

asked respondent “if he would take a breath test” and “he said yes.” The breath test

revealed an alcohol concentration above .08.

      Appellant revoked respondent’s driver’s license pursuant to the Minnesota Implied

Consent Law, Minn. Stat. § 169A.52, subd. 4(a) (2012), and respondent challenged the

revocation. The evidence at the implied consent hearing consisted of the completed


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implied consent advisory and Trooper Pender’s testimony regarding the events of

December 3.     Trooper Pender testified that he neither attempted to obtain a search

warrant before obtaining a breath test nor asked respondent whether respondent would

consent to testing until after reading him the implied consent advisory.

       The district court granted respondent’s motion to rescind the revocation of his

driver’s license, concluding that “there was no valid consent to submit to testing” because

respondent could either take the test or face criminal penalties for test refusal. This

appeal followed.

                                     DECISION

       “When the facts are not in dispute, the validity of a search is a question of law

subject to de novo review.” Haase v. Comm’r of Pub. Safety, 679 N.W.2d 743, 745

(Minn. App. 2004). In reviewing the constitutionality of a search, “we independently

analyze the undisputed facts to determine whether evidence resulting from the search

should be suppressed.” Id. A district court’s conclusions of law are not overturned

“absent erroneous construction and application of the law to the facts.” Id.

       The United States and Minnesota Constitutions guarantee people the right to be

free from unreasonable searches. U.S. Const. amend. IV; Minn. Const. art. I, § 10.

Collection and testing of a person’s breath constitutes a search under the Fourth

Amendment to the United States Constitution and requires 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).




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       Consent is an exception to the warrant requirement. 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, the [s]tate must show by a preponderance of the evidence that the

defendant freely and voluntarily consented.” Id. In determining whether consent is

voluntary, “we consider 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.”

Id. at 569 (quotation omitted). In the implied consent context, the nature of the encounter

includes how the police came to suspect that the driver was driving under the influence of

an intoxicant, how the request to submit to chemical testing was made, including whether

the driver was read the implied consent advisory, and whether the driver had the right to

consult with an attorney. Id. at 569. “[A] driver’s decision to agree to take a test is not

coerced simply because Minnesota has attached the penalty of making it a crime to refuse

the test.” Id. at 570.

       Respondent argues that, unlike the defendant in Brooks, he did not consent to the

breath test because he complied with Trooper Pender, did not consult an attorney, and

had not previously been arrested for DWI.        But Brooks set forth a totality-of-the-

circumstances analysis. Id. at 569-70. The Minnesota Supreme Court held that the

defendant in Brooks voluntarily consented to testing after “examining all of the relevant

circumstances,” including that he did not challenge the probable cause that he had been

driving under the influence, he was properly read the implied consent advisory, he was

not subject to repeated police questioning and did not spend days in custody before

consenting, and he consulted with an attorney before he consented to testing. Id. at 569-


                                            4
71. No one circumstance was determinative. See id. at 571 (explaining that Brooks’s

consultation with an attorney merely “reinforce[d] the conclusion” that he consented to

testing).

       The district court did not have the benefit of the supreme court’s decision in

Brooks when it held that respondent’s consent to the breath test was coerced by the

implied consent advisory.      Under the criteria for examining the totality of the

circumstances set out in Brooks, respondent’s consent was not coerced. Trooper Pender

stopped a vehicle that was speeding and driving over the right fog line. He observed

indicia of intoxication, and respondent admitted that he had been drinking alcohol.

Trooper Pender read the implied consent advisory to respondent. Respondent stated that

he understood the advisory and declined to consult with an attorney. When Trooper

Pender asked respondent “if he would take a breath test,” “he said yes.” Based on the

totality of the circumstances, respondent voluntarily consented to the breath test. Nothing

in the record suggests that respondent “was coerced in the sense that his will had been

overborne and his capacity for self-determination critically impaired.” See id.

       Contrary to respondent’s suggestion, appellant is not required to prove that

respondent would have agreed to the test regardless of receiving the implied consent

advisory. See id. at 570 (stating that a “driver’s decision to agree to take a test is not

coerced simply because Minnesota has attached the penalty of making it a crime to refuse

the test”). And we disagree with appellant’s contention that consent under the Fourth

Amendment is based solely on an objective analysis. See State v. Harris, 590 N.W.2d

90, 102 (Minn. 1999) (“Whether consent was voluntary is determined by examining the


                                            5
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.” (quotation omitted)). Because the

totality of the circumstances includes “the kind of person the defendant is,” there is a

subjective component to the consent analysis. See id. Here, having examined the totality

of the circumstances, we conclude that appellant has met the burden to show that

respondent consented to testing.

         Respondent also argues that Minnesota’s implied consent law is unconstitutional.

In Brooks, the supreme court rejected the defendant’s alternative argument that the

implied-consent statute was unconstitutional under Missouri v. McNeely, 133 S. Ct. 1552

(2013). 838 N.W.2d at 572-73; see also State v. Bernard, 844 N.W.2d 41, 46 (Minn.

App. 2014) (holding that a prosecution for test refusal under the implied-consent law “did

not implicate any fundamental due process rights”), review granted (Minn. May 20,

2014).     In addition, the implied-consent statute does not violate the doctrine of

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

___, 2014 WL 3396522, at *5-11 (Minn. App. July 14, 2014) (setting forth four reasons

why the Minnesota Implied Consent Law does not violate the doctrine of unconstitutional

conditions). And we decline to overrule the supreme court’s binding authority in Brooks,

as respondent requests. See Lake George Park, L.L.C. v. IBM Mid-America Emps. Fed.

Credit Union, 576 N.W.2d 463, 466 (Minn. App. 1998) (“This court, as an error

correcting court, is without authority to change the law.”), review denied (Minn. June 17,

1998).




                                             6
      Finally, respondent argues that we must remand for the district court to determine

whether he voluntarily consented to chemical testing.     The record here supports no

conclusion other than that respondent voluntarily consented and a remand is therefore not

necessary. Because respondent consented to the breath test, we reverse.1

      Reversed.




1
  Because we reverse based on respondent’s consent, we do not reach appellant’s other
arguments on appeal.


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