This opinion will be unpublished and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

A15-0434

Joel Gary Borchardt, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed November 2, 2015

Reversed and remanded

Connolly, Judge

Pine County District Court

File No. 58-CV-14-639

Adam W. Klotz, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Peter D. Magnuson, Frederic J. Argir, Assistant 

Attorneys General, St. Paul, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and 

Rodenberg, Judge. 

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

CONNOLLY, Judge

Appellant challenges the district court’s order denying his motion to suppress the 

results of his urine test and sustaining the revocation of his driver’s license, arguing that 
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the district court clearly erred in finding that he voluntarily consented to a urine test. 

Because the district court committed an error of law by placing the burden of proof on 

appellant, we reverse and remand. 

FACTS

On October 11, 2013, Minnesota Department of Natural Resources (DNR) 

Conservation Officers Ter Meer and Hanzal initiated a traffic stop of a truck they 

believed was engaging in deer shining. The driver of the car was identified as appellant 

Joel Gary Borchardt. As Officer Ter Meer spoke with appellant, he noticed a strong odor 

of alcohol coming from the vehicle, that appellant’s speech was slurred, and that his eyes 

were bloodshot and glazed. While the officers spoke with appellant and his companion, 

they observed two partially cased shotguns, several open containers of beer, and a cooler 

inside the car. Officer Ter Meer asked appellant to step out of the vehicle, performed a 

pat-down search, and conducted field sobriety tests. Appellant failed the tests, and a 

preliminary breath test indicated a 0.12 alcohol concentration. 

Officers with the DNR only have the authority to invoke the implied-consent law 

when the suspected impaired driver has been operating a recreational vehicle. Because 

appellant was driving a truck, the officers could not invoke the implied-consent law and 

had to request the assistance of another law-enforcement officer. Pine County Deputy 

Sheriff Mark Anderson responded to Officer Ter Meer’s request for assistance. He read 

appellant the implied-consent advisory and appellant agreed to provide a urine sample at 

the scene of the stop. Deputy Anderson then transported appellant and his companion 

back to appellant’s cabin. Appellant’s truck was left at the scene and appellant was 
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permitted to retrieve it at a later time. Testing of the urine sample revealed an alcohol 

concentration of 0.13. Respondent Commissioner of Public Safety later revoked 

appellant’s driver’s license. 

Appellant was subsequently charged with one count of using artificial lights to 

locate animals and two counts of driving while intoxicated (DWI). During the 

companion criminal case appellant challenged the admissibility of the results of the urine 

test. On July 8, 2014, the district court held a Rasmussen hearing. Appellant testified 

that before Deputy Anderson arrived and read the implied-consent advisory, Officer Ter 

Meer told him that if he agreed to provide a urine sample at the scene of the stop then he 

would not be transported to jail, his truck would not be confiscated, and the officers 

would transport him and his companion back to his cabin. He further testified that these 

statements were a factor in his decision to submit to a urine test at the scene of the stop. 

He argued that the statements that he would not be taken to jail and his truck would not 

be confiscated if he agreed to provide a urine sample amounted to coercion and therefore 

his consent was not voluntary. The district court agreed and suppressed the results of the 

urine test. The district court also dismissed the DWI charge that was based on appellant 

driving with an alcohol concentration over the legal limit in violation of Minn. Stat. 

§ 169A.20, subd. 1(5) (2012). 

On November 17, 2014, appellant petitioned for judicial review of the license 

revocation. On January 6, 2015, the district court held an implied-consent hearing. 

Appellant’s sole argument in support of reversing the revocation was that his consent to 

the urine test was not voluntary. Neither party proffered any live testimony. Rather, the 
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parties stipulated that the record would consist of a packet containing the implied-consent 

advisory, peace officer’s certificate, urine test results, and police reports; the findings of 

fact, conclusions of law, and order from the hearing in the criminal case; and the 

transcript of the hearing in the criminal case, which included the testimony of Officer 

Hanzal, Officer Ter Meer, Deputy Anderson, and appellant. 

On January 14, 2015, the district court issued an order determining that appellant 

was not coerced into consenting to the urine test and sustaining the revocation of 

appellant’s driver’s license. This appeal follows. 

D E C I S I O N

The United States and Minnesota Constitutions prohibit unreasonable searches and 

seizures. U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. A test of a person’s 

urine constitutes a search for purposes of the Fourth Amendment. Skinner v. Ry. Labor 

Execs.’ Ass’n, 489 U.S. 602, 617, 109 S. Ct. 1402, 1413 (1989). A warrantless search is 

presumptively unreasonable unless an exception to the warrant requirement applies. 

State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). One exception to the warrant 

requirement is consent. 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 to the warrant requirement, the 

state must show by a preponderance of the evidence that the individual freely and 

voluntarily consented to the search. Diede, 795 N.W.2d at 846. The voluntariness of 

consent is determined by considering the totality of the circumstances. Brooks, 838 

N.W.2d at 568. This includes the nature of the encounter, what was said and how it was 
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said, and the kind of person the defendant is. Id. at 569. The question of whether consent

to a search was voluntary is a question of fact, which this court reviews for clear error. 

Diede, 795 N.W.2d at 846. Findings of fact are clearly erroneous if, based on the entire 

record, this court is “left with the definite and firm conviction that a mistake occurred.” 

State v. Andersen, 784 N.W.2d 320, 334 (Minn. 2010).

Appellant argues that the district court erred by applying the wrong burden of 

proof. This court reviews the district court’s determination of which party bears the 

burden of proof de novo. C.O. v. Doe, 757 N.W.2d 343, 352 (Minn. 2008). According to 

Brooks, “[f]or a search to fall under the consent exception, the State must show by a 

preponderance of the evidence that the defendant freely and voluntarily consented.” 838 

N.W.2d at 568. In this case, the district court’s conclusions of law include the 

determination that “[appellant] has failed to prove by a preponderance of the evidence 

that the law enforcement coerced [appellant] in order to collect the incriminating 

evidence.” Thus, we agree that the district court put the burden on appellant to prove his 

consent was not given freely and voluntarily, when based on Brooks the burden should be 

on the state to show that it was. Therefore, we conclude that the district court’s finding 

that appellant voluntarily consented to the urine test was based on the erroneous 

application of the law, and reverse the district court’s decision and remand for the district 

court to apply the correct burden of proof. See Coker v. Jesson, 831 N.W.2d 483, 492 

(Minn. 2013) (reversing a decision based on the application of the wrong burden and 

remanding for the application of the correct burden). 

Reversed and remanded.