This opinion will be unpublished and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

A14-0591

State of Minnesota,

Appellant,

vs.

Carmilla J. Thibodeau-Schoeszler,

Respondent.

Filed September 2, 2014

Reversed and remanded

Stauber, Judge

Stearns County District Court

File No. 73CR137892

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., Minnetonka, 

Minnesota (for respondent)

Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and 

Kirk, Judge. 
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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 suppressing results of a 

blood test obtained outside of the framework of the implied-consent 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 state did not invoke the implied-consent law and did not immediately revoke 

Thibodeau-Schoeszler’s driver’s license. In a pretrial hearing, the district court granted 

her 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 impact 

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.

The district court noted that in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the 

Supreme Court held that the dissipation of alcohol in the bloodstream 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, the district court 

acknowledged that, although in Minnesota most DWI testing is obtained through the 

implied-consent procedure, “law enforcement officers can choose not to comply with the 

procedures outlined in the implied consent law.” If an officer does not proceed under the 

implied-consent law, the results of chemical testing can be used in a DWI prosecution but 

the defendant cannot be charged with test refusal and the defendant’s driver’s license 

cannot be summarily revoked under the implied-consent law. See Tyler v. Comm’r of 

Pub. Safety, 368 N.W.2d 275, 280 (Minn. 1985) (suppressing blood-test 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 from driver who was given 

implied-consent advisory and refused test, but noting that results could have been used if 

trooper proceeded without implied-consent advisory). 
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While these cases approve of the use of blood-test results 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 if 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 

performed 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 blood 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 exception 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 warrant 
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unnecessary. Here, the record reflects that Thibodeau-Schoeszler voluntarily consented 

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 right to counsel.” While this appears straightforward, Friedman is an 

implied-consent case; the supreme court reasoned that the consequences of a driver’s 

decision depended on the choice made and that a driver could be confused about this. 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 is 
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even necessary.” Id. This suggests that 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 counsel 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 criminal 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 traditionally, “[t]he Sixth Amendment right to counsel attaches as soon as the 

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). Therefore, during the investigatory phase before 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 to 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). 
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Here, Thibodeau-Schoeszler was under arrest but had not been charged, indicted, 

or arraigned; 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 Miranda warning before doing so. We therefore reverse the district 

court’s pretrial suppression order and remand this matter for trial.

Reversed and remanded.