                        This opinion will be unpublished and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
                                   A13-1591

                           Pamela Marie Faust, petitioner,
                                   Respondent,

                                         vs.

                           Commissioner of Public Safety,
                                   Appellant.

                                 Filed July 14, 2014
                                      Reversed
                                 Bjorkman, Judge


                            Stearns County District Court
                              File No. 73-CV-13-2592

Michael L. Samuelson, St. Cloud, Minnesota (for respondent)

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

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

Klaphake, Judge.

                       UNPUBLISHED OPINION

BJORKMAN, Judge

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

driver’s license revocation, arguing that excluding evidence of respondent’s alcohol


 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
concentration is not appropriate because she voluntarily consented to the warrantless

breath test. We reverse.

                                          FACTS

       Early in the morning on March 2, 2013, respondent Pamela Faust was arrested for

driving while impaired. Police transported Faust to the Stearns County Jail and read her

the standard implied-consent advisory. Faust agreed to take a breath test, which revealed

an alcohol concentration of 0.11.          Based on that result, appellant Minnesota

Commissioner of Public Safety revoked Faust’s driver’s license.

       Faust sought judicial review of the license revocation, arguing that the warrantless

collection and testing of her breath constituted an unreasonable, unconstitutional search

and that the results of the test should be suppressed. The district court agreed that neither

exigent circumstances nor consent justified the warrantless search, excluded the test

results, and rescinded the license revocation. This appeal follows.

                                     DECISION

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

under the Fourth Amendment to 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 exigency created by the dissipation of

alcohol in the body is insufficient to dispense with the warrant requirement. Missouri v.

McNeely, 133 S. Ct. 1552, 1561 (2013). But a warrantless search of a person’s breath,

blood, or urine is valid if the person voluntarily consents to the search. Brooks, 838


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N.W.2d at 568. The commissioner bears the burden of showing by a preponderance of

the evidence that the defendant freely and voluntarily consented. Id.

       The voluntariness of a driver’s consent depends on “the totality of the

circumstances,” which we review independently. See id.; see also State v. Harris, 590

N.W.2d 90, 98 (Minn. 1999) (“When reviewing pretrial orders on motions to suppress

evidence, we may independently review the facts and determine, as a matter of law,

whether the district court erred in suppressing . . . the evidence.”).          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.” 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 under the influence, whether police read the

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

attorney. Id. A driver’s consent is not coerced as a matter of law simply because he or

she faces criminal consequences for refusal to submit to testing. Id. at 570.

       The commissioner argues that examination of the totality of the circumstances

reveals that Faust voluntarily consented to chemical testing. We agree. Faust does not

dispute that police had probable cause to believe she was driving while under the

influence of alcohol.     Faust received a standard implied-consent advisory, which

informed her that she had the right to consult with an attorney (though she does not

appear to have actually done so) and to decide whether to submit to chemical testing.

She thereafter consented to a breath test.




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       Faust has not claimed, and there is no evidence indicating that the police did

anything to overcome Faust’s will or coerce her cooperation. She was not subjected to

extensive questioning or held in custody for a prolonged time before being asked to

provide a sample for chemical testing. The only fact she identified in support of her

argument, and the district court’s sole basis for concluding that she did not validly

consent, was that she was advised that refusal to submit to testing is a crime. After

Brooks, this sole fact is insufficient to demonstrate coercion. See id.

       Overall, this record indicates that Faust voluntarily consented to chemical testing

of her breath. Because Faust’s consent justified the warrantless search, we conclude the

district court erred by excluding the test result and rescinding Faust’s license revocation.

       Reversed.




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