This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 2 ). STATE OF MINNESOTA IN COURT OF APPEALS A14 - 0591 State of Minnesota, Appellant,
vs. Carmilla J. Thibodeau

- Schoeszler,

Respondent. Filed September 2 , 2014 Reversed and remanded Stauber , Judge Stearns County Distric t Court File No. 73 CR 13 7892 Lori Swanson, Attorney General, St. Paul, Minnesota; and Matthew A. Staehling , St. Cloud City Attorney, Hao Nguyen, Assistant City Attorney, St. Cloud, Minnesota (for appellant ) Brian Nelson Steele, Heidi E. Viesturs, Steele Law Offices, P.L.L.C., Minne tonka, Minnesota (for responde nt ) Considered and decided by Hudson , Presiding Judge; Stauber , Judge; and Kirk , Judge
.2 U N P U B L I S H E D O P I N I O N STAUBER , Judge The state appeals from the district court’s pretrial order s uppressing results of a blood test obtained outside of the framework of the i mplied

- c onsent law, but with respondent’s consent. We reverse and remand
. D E C I S I O N Respondent Carmilla Thibodeau

- Schoeszler was asked to submit to a blood test after she was arrested on suspicion of driving while intoxicated (DWI). The arresting officer did not read her the Minnesota Implied Consent Advisory or offer her an opportunity to contact an attorney. She agreed to a blood test, on the condition that she did not have to pay for it; the test results showed an alcohol concentration (BAC) of 0.16. The s tate did not invoke the implied

- consent law and did not immediately revoke Thib odeau

- Schoeszler’s driver’s license. In a pretrial hearing, the district court granted h er motion to suppress the blood

- test results, concluding that the mere exigency of rapid dissipation of alcohol did not justify a warrantless search and police failed to vindicate Thibodeau

- Schoeszler’s right to counsel , and dismissed the charge of driving with a BAC over 0.08 . The state appeals from the suppression order. When the facts are not disputed, we review the district court’s pretrial suppression order as a question of law. State v. Gauster , 752 N.W.2d 496, 502 (Minn. 2008). In order to appeal a pretrial suppression order, the state must demonstrate not only that the district court erred, but also that suppression of the evidence would have a critical impac t on the outcome of the trial. State v. Trei , 624 N.W.2d 595, 597 (Minn. App. 2001) ,3

review dismissed (Minn. June 22, 2001) . “Dismissal of a complaint satisfies the critical impact requirement.” Id. Because the district court dismissed the BAC charge, the state has shown that the suppression order would have a critical impact on the outcome of the trial. T he district court noted that in Missouri v. McNeely , 133 S. Ct. 1552 (2013), the Supreme Court held that the dissipation of alcohol in the bloodstrea m is not a per se exigency that excuses the police from obtaining a search warrant before subjecting a suspected drunk driver to a nonconsensual blood test. But , t he district court acknowledged that , although in Minnesota most DWI testing is obtained throu gh the implied

- consent procedure, “law enforcement officers can choose not to comply with the procedures outlined in the implied consent law.” If an officer doe s not proceed under the implied

- consent law, the results of chemical testing can be used in a D WI prosecution but the defendant cannot be charged with test refusal and the defendant’s driver’s license cannot be summ arily revoked under the implied

- consent law. See Tyler v. Comm’r of Pub. Safety , 368 N.W.2d 275, 280 (Minn. 1985) (suppressing blood

- te st results taken without implied

- consent advisory in a license revocation proceeding but approving use of results in criminal prosecution); State v. Nielsen , 530 N.W.2d 212 , 215 (Minn. App. 1995), review denied (Minn. Jun. 14, 1995); State v. Scott , 473 N. W.2d 375, 377 (Minn. App. 1991) (suppressing blood test results taken involuntarily fr om driver who was given implied

- consent advisory and refused test, but noting that results could have been used if tr ooper proceeded without implied

- consent advisory).4

While these cases approve of the use of blood

- test resul ts taken outside of the implied

- consent law, the courts relied primarily on the exigent factor of rapid dissipation of alcohol to reach this conclusion; the reasoning applied in these cases is that i f there is probable cause to believe that a suspect was driving under the influence of alcohol, and there is a need to preserve evidence, the suspect has no right to refuse testing. See, e.g., State v. Shriner , 751 N.W.2d 538, 545 (Minn. 2008) (affirming warrantless blood test perfor med outside implied

- consent law when police have probable cause that suspect committed DWI, to preserve evidence because of single

- factor exigency of dissipation of alcohol), abrogated by McNeely , 133 S. Ct. 1552 (2013)); Tyler , 368 N.W. 2d at 278 (stating that warrantless blood testing “clearly permitted” if police have probable cause to believe defendant committed DWI and removal of blood was necessary to preserve evidence); Nielsen , 530 N.W.2d at 214 (approving removal of blo od to preserve evidence when there is probable cause to believe suspect committed DWI); Scott , 473 N.W.2d at 376

- 77 (noting that nonconsensual blood testing is permissible when police have probable cause suspect committed DWI and blood testing is necessary to preserve evidence). The district court is correct in concluding that after McNeely , a single

- factor exigency based on the rapid dissipation of alcohol is not sufficient to avoid the warrant requirement. But exigency does not provide the only excepti on to the warrant requirement. As the supreme court stated in State v. Brooks , 838 N.W.2d 563, 568 (Minn. 2013), a person may voluntarily consent to a search, making a warrant5

unnecessary. Here, the record reflects that Thibodeau

- Schoeszler voluntarily c onsented to the arresting officer’s request that she undergo a blood test. Thibodeau

- Schoeszler argues that the district court nevertheless correctly suppressed the blood

- test results because her right to counsel was not vindicated. In Friedman v. Comm ’r of Pub. Safety , 473 N.W.2d 828, 833 (Minn. 1991), the supreme court held that “a driver who has been stopped for a possible DWI violation and has been asked to submit to a chemical test is at a ‘critical stage’ in DWI proceedings, thus triggering the ri ght to counsel.” While this appears straightforward, Friedman is an implied

- consent case; the supreme court reason ed that the consequences of a driver’s decision depended on the choice made and that a driver could be confused about th is. Id. In Nielsen , this court stated, “The right to counsel . . . does not attach until the commencement of formal judicial proceedings, or until the driver faces a critical decision regarding chemical testing.” 530 N.W.2d at 215. This court noted that the testing outside of the implied

- consent framework “was merely an investigatory stage which necessarily preceded the decision to prosecute” and that Nielsen “faced no immediate revocation of his driver’s license if he refused to take the blood test or failed the blood test. ” Id. Instead, Nielsen would face penalties only after a jury trial, at which he would have the right to counsel. Id. The right to counsel enunciated in Friedman was a “ limited right to counsel within a reasonable time before submitting to testing.” 473 N.W.2d at 837. The majority in Friedman reasoned that “[i]n the case of a DWI, the chemical tests are more than just a search. The act itself could produce the evidence leading to conviction before any trial is6

even necessary.” Id. This suggests t hat the court recognized that a driver arrested for DWI needs the assistance of counsel when choosing whether to take or refuse chemical testing because of the immediate implied

- consent sanctions that would result from the choice made. This right to couns el is included now in the statutory sections governing implied consent. Minn. Stat. § 169A.51, subd. 2 (2012). The constitutional right to counsel arises out of U.S. Const. amend. VI and Minn. Const. art. I, § 6. Both sections state that in all crimin al prosecutions, the accused has the right to have the assistance of counsel in his or her defense. The Minnesota Supreme Court has interpreted this right under the Minnesota constitution more broadly than the federal right. Friedman , 473 N.W.2d at 836. This broader interpretation provides the basis for the limited right to consult an attorney before submitting to chemical testing under the implied

- consent law. Id. at 832. But t raditionally, “[t]he Sixth Amendment right to counsel attaches as soon as t he suspect is subject to adverse judicial proceedings by way of formal charge, preliminary hearing, indictment, information, or arraignment.” State v. Borg , 806 N.W.2d 535, 545 (Minn. 2011) (quotations omitted). T herefore , during the investigatory phase befor e a judicial proceeding is commenced, the right to counsel does not attach. Id. A Fifth Amendment right to counsel arises when a suspect is subject to custodial interrogation, to protect a suspect from self

- incrimination. Id. at 545

- 46. But a request t o submit to chemical testing is not considered to be interrogation. See State v. Whitehead , 458 N.W.2d 145, 148 (Minn. App. 1990), review denied (Minn. Sep. 14, 1990).7

Here, Thibodeau

- Schoeszler was under arrest but had not been charged, indicted,

or a rraigned; the exception carved out in Friedman for a limited right to consult with counsel before submitting to chemical testing under the implied

- consent law does not apply because the immediate sanctions of the implied

- consent law could not be levied against her. Although earlier cases opined that suspects did not have the right to refuse testing, the single

- factor exigency to preserve evidence because of the rapid dissipation of alcohol no longer excuses the necessity for a search warrant. But Thibodeau

- Schoeszler consented to a warrantless search , a valid exception to the warrant requirement as set forth in Brooks
. 838 N.W.2d at 568. A Fifth Amendment right to counsel does not apply because the arresting officer did not interrogate her until after she was booked into jail and he gave her a Miran da warning before doing so. We therefore reverse the district court’s pretrial suppression order and remand this matter for trial. Reversed and remanded.