This opinion will be unpublished and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

A15-0248

Eric Dennis Carter, petitioner, 

Appellant, 

vs. 

Commissioner of Public Safety, 

Respondent.

Filed August 24, 2015

Affirmed

Klaphake, Judge*

Dakota County District Court

File No. 19WS-CV-14-816

Douglas V. Hazelton, Halberg Criminal Defense, Bloomington, Minnesota (for appellant)

Lori Swanson, Attorney General, Rory C. Mattson, Assistant Attorney General, St. Paul, 

Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and 

Klaphake, Judge. 

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

KLAPHAKE, Judge

Appellant Eric Dennis Carter challenges the district court’s order denying his 

motion to suppress the results of his breath test and sustaining the revocation of his 

 

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

Minn. Const. art. VI, § 10. 
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driver’s license, arguing that the district court clearly erred in finding that he voluntarily 

consented to a breath test. Because the record supports the district court’s voluntariness 

finding, we affirm.

D E C I S I O N

The question of whether consent to a search was voluntary is a question of fact, 

which we review for clear error. State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011).

“Findings of fact are clearly erroneous if, on the entire evidence, we are left with the 

definite and firm conviction that a mistake occurred.” State v. Andersen, 784 N.W.2d 

320, 334 (Minn. 2010).

Shortly before midnight on May 10, 2014, State Trooper Anthony Mains stopped 

Carter for speeding. He observed that Carter exhibited multiple signs of alcohol 

consumption and arrested Carter for driving while impaired (DWI). While placing Carter 

in the back of his squad car, Trooper Mains said, “If you’re cooperative with me, I’ll let 

you go tonight so you don’t have to spend the night in jail.” Trooper Mains transported 

Carter to the Dakota County Law Enforcement Center, where he read Carter the impliedconsent advisory. After consulting with an attorney, Carter submitted to a breath test. 

A test of a person’s breath constitutes a search for purposes of the Fourth 

Amendment. Skinner v. Railway Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 

1402, 1413 (1989). As a general rule, a search requires either a warrant or an exception

to the warrant requirement, such as the person’s consent. Missouri v. McNeely, 133 S. Ct. 

1552, 1558 (2013); State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134 

S. Ct. 1799 (2014). The state has the burden of showing by a preponderance of the 
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evidence that the defendant freely and voluntarily consented. Brooks, 838 N.W.2d at 

568. “Whether consent is voluntary is determined by examining the totality of the 

circumstances.” Id. (quotation omitted).

Carter argues that the district court clearly erred in finding that he voluntarily 

consented to the breath test. He contends that Trooper Mains coerced his consent by 

telling him he would not spend the night in jail if he was “cooperative.” We disagree. 

Carter focuses on the officer’s comment about being cooperative, but voluntariness 

depends on the totality of the circumstances. Id. Those circumstances include not merely 

what the officer said to Carter, but how he said it, the kind of person Carter is, how the 

officer came to suspect Carter was driving under the influence, the reading of the 

implied-consent advisory, and whether Carter had the right to consult with an attorney. 

See id. at 569.

The district court appropriately considered the totality of the circumstances in 

finding that Carter voluntarily consented to testing. Trooper Mains had probable cause to 

arrest Carter for DWI and pursue chemical testing. He requested that Carter be 

“cooperative” but did not tie that request to chemical testing and was not overbearing or 

aggressive; rather, the district court found that Trooper Mains was “candid, honest, and 

respectful in the way he conducted himself” toward Carter. When Trooper Mains 

requested that Carter submit to chemical testing, he read Carter the standard implied 

consent advisory, which clearly informed Carter that he had a choice whether to submit 

to testing. See id. at 572. Carter understood the advisory. He consulted with an attorney. 

He verbally agreed to take a breath test, and he completed the testing process.
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Carter testified that Trooper Mains’s statement about not staying in jail if he was 

“cooperative” affected his decision to submit to testing because he did not want to spend 

the night in jail. We agree that a vague request for cooperation is unnecessarily 

confusing and, in some cases, might support a finding that a driver’s consent to testing 

was not voluntary. We also are concerned that tying such a request to a driver’s release

misrepresents the extent of an arresting officer’s authority in determining whether to 

detain a suspected drunk driver. See Minn. R. Crim. P. 6.01 (requiring that arrested 

person be cited and released unless separate authority determines continued detention is 

warranted). But on this record, the district court found it “speculative” that Carter 

believed that he could not refuse testing. At most, Carter faced a difficult choice 

regarding testing. Consent can be voluntary “even if the circumstances of the encounter 

are uncomfortable” or the driver is presented with a difficult choice, so long as he 

understands he has the right to refuse testing. See Brooks, 838 N.W.2d at 569, 571. 

Because Carter was accurately informed of and understood his right to refuse chemical 

testing, we are not left with the definite and firm conviction that the district court’s 

voluntariness finding is a mistake. Accordingly, we conclude that the district court did 

not err in denying Carter’s motion to suppress and sustaining his license revocation.

Affirmed.