This opinion will be unpublished and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

A15-0710

Alexander Nathan Davis, petitioner, 

Appellant, 

vs. 

Commissioner of Public Safety, 

Respondent.

Filed December 7, 2015

Affirmed

Bjorkman, Judge

Hennepin County District Court

File No. 27-CV-13-20151

Rick E. Mattox, Prior Lake, Minnesota (for appellant)

Lori Swanson, Attorney General, William Young, Assistant Attorney General, St. Paul, 

Minnesota (for respondent)

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

Judge.



 

U N P U B L I S H E D O P I N I O N

BJORKMAN, Judge

Appellant challenges the district court’s order sustaining the revocation of his 

driver’s license, arguing that (1) law enforcement was not justified in expanding the 

 



 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10. 
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scope of the traffic stop, (2) the warrantless search of his breath was unlawful, and (3) the 

implied-consent law is unconstitutional. We affirm.

FACTS

On November 3, 2013, at 12:50 a.m., Trooper Francis Tutell of the Minnesota 

State Patrol stopped appellant Alexander Nathan Davis’s vehicle for speeding. The 

trooper approached the vehicle on the front passenger side, identified Davis, and 

observed three passengers. He noticed an odor of alcohol coming from the vehicle, and 

observed that Davis’s eyes were bloodshot and watery. The trooper asked Davis if he 

had been drinking, and Davis responded that he had consumed two beers earlier in the 

night. 

The trooper asked Davis to perform field sobriety tests because he suspected Davis 

was under the influence of alcohol. When Davis stepped out of the vehicle, the trooper 

immediately smelled an odor of alcohol coming directly from Davis. Davis performed 

several field sobriety tests, exhibiting multiple indicia of intoxication. A preliminary 

breath test indicated that Davis had a 0.153 alcohol concentration. The trooper then 

placed Davis under arrest and transported him to the Hennepin County Jail. 

At the jail, the trooper read the implied-consent advisory to Davis and asked him if 

he wanted to contact an attorney. Davis stated that he did, and the trooper provided a 

phone and multiple directories. Davis called his father and spoke to him for 

approximately one minute. After this conversation, the trooper asked Davis if he 

contacted an attorney, and whether he wanted to continue to use the phone. The record 

does not reflect whether Davis answered this question. The trooper then asked Davis if 
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he would take a breath test. Davis agreed to do so and the test results indicated an

alcohol concentration of 0.13. 

Respondent Commissioner of Public Safety subsequently revoked Davis’s driver’s 

license. Davis filed a petition for judicial review of the revocation. Following an 

evidentiary hearing, the district court sustained the revocation, determining that the 

trooper reasonably expanded the scope of the traffic stop, that a valid exception to the 

warrant requirement existed for the search of Davis’s breath, and that Minnesota’s

implied-consent statute is constitutional. Davis appeals.

D E C I S I O N

I. Expansion of the traffic stop was supported by reasonable, articulable 

suspicion of criminal activity.

Expansion of a traffic stop is unlawful unless there is a reasonable, articulable 

suspicion of criminal activity beyond the observed traffic violation. State v. Fort, 660 

N.W.2d 415, 418-19 (Minn. 2003). Each additional intrusion must be justified by the 

original purpose of the stop, probable cause, or reasonableness as defined in Terry. State 

v. Askerooth, 681 N.W.2d 353, 365 (Minn. 2004). Reasonableness is an objective test, 

based on the totality of the circumstances. State v. Smith, 814 N.W.2d 346, 351 (Minn. 

2012). We review a district court’s ruling regarding the legality of a traffic stop and 

questions of reasonable suspicion de novo. Wilkes v. Comm’r of Pub. Safety, 777 

N.W.2d 239, 242-43 (Minn. App. 2010). 

Davis first argues that the trooper did not have reasonable, articulable suspicion to 

expand the traffic stop because there was no evidence that the odor of alcohol in the car 
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came from Davis and there was no foundation for the trooper’s testimony that Davis’s 

eyes were bloodshot and watery. Davis also contends the district court’s aggregate 

findings do not support expansion of the stop. We disagree. 

This court has consistently concluded that expansion of a traffic stop is valid on 

facts similar to those in this case. In State v. Klamar, we held that an odor of alcohol and 

bloodshot and watery eyes justified the expansion of a traffic stop to investigate 

suspicions of impaired driving. 823 N.W.2d 687, 696 (Minn. App. 2012). And in State 

v. Lopez, we concluded that the odor of alcohol alone provided an officer with reasonable 

suspicion of criminal activity to expand a traffic investigation. 631 N.W.2d 810, 814 

(Minn. App. 2001), review denied (Minn. Sept. 25, 2001). Here, the trooper observed 

that Davis had bloodshot and watery eyes, noticed an odor of alcohol, and Davis admitted 

to consuming alcohol earlier in the evening. These indicia of intoxication were more 

than sufficient to justify expansion of the traffic stop.

Davis next asserts that the expansion of the traffic stop was improper because the 

trooper initiated the stop to conduct a driving-while-impaired (DWI) investigation. We 

are not persuaded. First, Davis does not challenge the validity of the stop. Second, the 

record supports the district court’s findings that the trooper stopped Davis’s vehicle for 

speeding, observed numerous indicia of intoxication after making contact with Davis, and 

learned that Davis had consumed alcohol that evening. Only after making these 

observations did the trooper expand the stop into a DWI investigation. Third, the 

trooper’s subjective reasons for stopping Davis in the first place are irrelevant. Courts 

determine reasonable suspicion based on the objective circumstances. See State v. Koppi, 
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798 N.W.2d 358, 363 (Minn. 2011) (noting that the subjective beliefs of an officer are 

not the focus in evaluating reasonableness); Paulson v. Comm’r of Pub. Safety, 384 

N.W.2d 244, 246 (Minn. App. 1986) (stating that “articulable suspicion is an objective 

standard” (quotation omitted)). On this record, we conclude that the totality of the 

circumstances support the expansion of the traffic stop into a DWI investigation. 

II. The search of Davis’s breath was a constitutional search incident to arrest.

The United States and Minnesota Constitutions protect individuals from 

unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A 

breath test is considered a search for Fourth Amendment purposes. Mell v. Comm’r of 

Pub. Safety, 757 N.W.2d 702, 709 (Minn. App. 2008). “A search conducted without a 

warrant is per se unreasonable unless an exception applies.” Ellingson v. Comm’r of Pub. 

Safety, 800 N.W.2d 805, 807 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011). 

A warrantless breath test does not violate the Fourth Amendment because it satisfies the 

search-incident-to-arrest exception to the warrant requirement. State v. Bernard, 859 

N.W.2d 762, 767 (Minn. 2015). 

Probable cause to arrest an individual for DWI exists if the circumstances at the 

time of arrest reasonably warrant a prudent and cautious officer to believe the person was 

driving under the influence. Reeves v. Comm’r of Pub. Safety, 751 N.W.2d 117, 120 

(Minn. App. 2008). An officer’s observation of objective indications of intoxication 

establishes probable cause to believe a person is under the influence of alcohol. State v. 

Kier, 678 N.W.2d 672, 678 (Minn. App. 2004), review denied (Minn. June 15, 2004). 

Common indicia of intoxication include the odor of alcohol, bloodshot and watery eyes, 
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slurred speech, and uncooperative behavior. Id.; see also Mell, 757 N.W.2d at 712 

(holding that a failed preliminary breath test, in combination with other indicia of 

intoxication, provided sufficient probable cause for DWI arrest). An admission of 

consuming alcohol and difficulty performing field sobriety tests also indicate 

intoxication. Reeves, 751 N.W.2d at 120. 

Davis asserts that the search-incident-to-arrest exception does not apply because 

the trooper did not have probable cause to arrest him. We disagree. The trooper 

observed several recognized indicia of intoxication. Davis emitted an odor of alcohol,

had bloodshot and watery eyes, and admitted consuming alcohol prior to driving. He 

performed poorly on multiple field sobriety tests, and his preliminary breath test 

registered an alcohol concentration of 0.153. Because the trooper had probable cause to 

arrest Davis for DWI, the breath test was a valid search incident to arrest under Bernard.

Finally, Davis argues that the implied-consent advisory statute is unconstitutional 

because it violates his due-process rights and the doctrine of unconstitutional conditions. 

These arguments are unavailing. Our supreme court rejected the due-process argument in 

Bernard, holding that rational-basis review applies and that this standard is met because 

the statute criminalizing the refusal of chemical testing is a reasonable means to fulfilling 

the government’s interest in keeping impaired drivers off the road.

1

 859 N.W.2d at 774. 

And this court held in Stevens v. Comm’r of Pub. Safety that the unconstitutionalconditions doctrine does not apply in the context of the Fourth Amendment, and even if it 

 

1 We note that this argument is most appropriately addressed in a criminal proceeding 

rather than in the civil implied-consent context, but the argument fails in both settings. 
7

did, the statute does not authorize a search that violates the Fourth Amendment. 850 

N.W.2d 717, 725 (Minn. App. 2014). 

Affirmed.