This opinion will be unpublished and may not be cited except as provided by Minn .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 A13
- 1376 State of Minnesota, Respondent,

vs. Terry Gene Anderson, Appellant. Filed August 11, 2014 Affirmed Reilly , Judge Meeker County District Court File No. 47

- CR

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- 1057 Lori Swanson, Attorney General, St. Paul, Minnesota; and Anthony D. Spector, Meeker County Attorney, Ricky Fidelis Lanners, Assistant County Attorney, Litchfield, Minnesota (for respondent) John E. Mack, Mack & Daby P.A., New London, Minnesota (for appellant) Considered and decided by Reyes , Presiding Judge; Reilly , Judge; and Stoneburner , Judge

. *

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.2 U N P U B L I S H E D O P I N I O N
REILLY , Judge On appeal from his driving while impaired convictions, appellant Terry Anderson argues that his conviction s must be reversed because (1) his consent to a warrantless b reath test was not voluntary; and (2) Minnesota’s implied

- consent laws are unconstitutional regulations of speech . Because the record demonstrates that Anderson voluntarily consented to the breath test and he has not demonstrated that the implied

consent laws are unconstitutional, we affirm

. FACTS The facts are undisputed. Around midnight on October 27, 2012, Minnesota State Patrol Sergeant Meagher noticed that the driver of a truck was not wearing a seatbelt. Sergeant Meagher activated his emergency lights. Because there was no reaction from the driver, later determined to be Anderson, Sergeant Mea gher then activated his siren. After traveling for three city blocks, Anderson pulled over onto the shoulder. As Sergeant Meagher approached the truck , Anderson attempted to roll down the window but, instead, opened the door and almost fell out of the driver’s seat. Sergeant Meagher requested Anderson’s driver’s li cense and questioned him about his lack of seatbelt. During this time, Sergeant Meagher smelled the strong odor of an alcoholic beverage coming from inside the truck

. After Anderson struggled to produce his driver’s license, Sergeant Meagher conducted fi eld sobriety tests, none of which Anderson successfully perform ed

. Sergeant Meagher then administered a preliminary breath test. The breath test indicated an alcohol concentration of .194.3

Sergeant Meagher arrested Anderson for driving while impaired ( DWI) and, w hile still at the scene of the traffic stop, read the Minnesota motor vehicle implied

- consent advisory form to Anderson. In reading the implied

- consent advisory form, Sergeant Meagher informed Anderson that Minnesota law require s him to take a test to determine whether he i s under the influence of alcohol; that refusing to take the test is a crime; that he ha s the right to consult an attorney; and that any unreasonable delay is considered a refusal. Anderson confirmed he understood the advisory, declined to consult with counsel, and agreed to take a breath test. After Sergeant Meagher drove Anderson to the Meeker County j ail, Sergeant Meagher administered the breath test at approximately
12:48 a.m. This test revealed an alcohol concent ration of .21. Anderson had a prior DWI conviction. Anderson moved to suppress the breath

- test evidence, arguing that Minnesota Statute section 169A.20 is unconstitutional under Missouri v. McNeely , 133 S. Ct. 1552 (2013), because it compels a warrantles s search. The district court held a bench trial on stipulated facts pursuant to Minnesota Rule of Criminal Procedure 26.01 , subd. 4 and State v. Lothenbach , 296 N.W.2d 854 (Minn. 1980).
In its order , the district court rejected appellant’s argument th at McNeely prohibited a warrantless breath test. Instead, the district court limited the holding of McNeely to blood tests and also found that Anderson consented to the breath test

. The district court also rejected Anderson’s argument that the implied

- co nsent statute is unconstitutional and denied Anderson’s motion to suppress the test results and dismiss4

the complaint. The district court convicted Anderson of two counts of second

- degree driving while impaired

. Anderson appeals. D E C I S I O N Anderson contends the district court erred by denying his motion to suppress evidence of his breath test , asserting that the test was a warrantless compelled search. Because the facts are undisputed, the district court’s suppression order presents a questi on of law that we review de novo. State v. Othoudt , 482 N.W.2d 218, 221 (Minn. 1992). The federal and state constitutions guarantee the right to be secure against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. 1, § 10.
Test ing a person’s breath constitutes a search under the Fourth Amendment and generally requires a warrant. Skinner v. Ry. Labor Execs. Ass’n , 489 U.S. 602, 616

- 17, 109 S. Ct. 1402, 1412

- 13 (1989); State v. Netland , 762 N.W.2d 202, 212 (Minn. 2009), abrogated in part by McNeely , 133 S. Ct. 1552, as recognized in State v. Brooks , 838 N.W.2d 563, 567 (Minn. 2013), cert. denied , 134 S. Ct. 1799 (2014)

. Warrantless searches are unreasonable unless the state proves that an exception to the warrant requirement appl ies. State v. Flowers , 734 N.W.2d 239, 248 (Minn. 2007). Consent is an exception to the warrant requirement if the state can show by a preponderance of the evidence that a defendant “freely and voluntarily” consented to the search

. State v. Diede , 795 N .W.2d 836, 846 (Minn. 2011).
In determining whether consent is voluntary, this court considers the totality of the

c ircumstances, “including the nature of the encounter, the kind of person the defendant is,5

and what was said and how it was said.” Diede , 795 N.W.2d at 846. In the implied

consent context, the nature of the encounter includes why law enforcement suspected that the driver was driving under the influence, how law enforcement requested submission to chemical testing, including whether the driv er was read the implied

- consent advisory, and whether the driver had the ability to consult with an attorney. Brooks , 838 N.W.2d at 569.
I n Brooks , the supreme court held that the driver ’s consent to testing was voluntary because he did not challenge th e probable cause that he had been driving under the influence, he was properly read the implied

- consent advisory, he consulted with an attorney before consenting to testing , and he was not subjected to repeated police questioning nor did he spend a prolong ed period in custody

. Id. at 571

- 72. T he Brooks court established that the criminal penalties for refusing a chemical test do not invalidate consent that is otherwise voluntary under the totality of the circumstances. Id. at 570

- 71 ( “[A] driver’s decisi on to agree to take a test is not coerced simply because Minnesota has attached the penalty of making it a crime to refuse the test.”). Here, the circumstances surrounding Anderson’s arrest and chemical testing are substantially similar to those that the Brooks court held satisfactor ily demonstrate d voluntary consent. Anderson does not challenge that Sergeant Meagher had probable
cause to arrest Anderson for DWI

. Sergeant Meagher read Anderson the implied

- consent advisory, and Anderson told Sergeant Meagher that he understood the advisory and that he did not wish to speak to an attorney. T here is nothing in the record to suggest that law enforcement subjected Anderson to repeated questioning or prolonged custody

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Anderson attempts to distinguish B rooks from his case because Anderson did not speak to an attorney before consenting. In Brooks , although the defendant did consult with an attorney before submitting to the chemical test, this fact is not dispositive when reviewing the voluntariness of th e consent. Brooks stated only that the driver should have the ability to consult with an attorney. Id. at 572 (explaining that “the ability to consult with counsel about an issue supports the conclusion that a defendant made a voluntary decision ” ). Here , Sergeant Meagher gave Anderson the opportunity to consult with an attorney, but Anderson declined to do so. Because the circumstances establish that Anderson freely and voluntarily consented to the breath test, the district court did not err in declinin g to suppress the breath

- test results. Anderson also argues that Brooks is simply wrong. We are oblig ated to follow Minnesota Supreme Court precedent. State v. Peter , 825 N.W.2d 126, 129 (Minn. App. 2012), review denied (Feb. 27, 2013). Moreover, the United States Supreme Court recently denied the petition for writ of certiorari in Brooks . 134 S. Ct. 1799 (2014). Thus, Anderson’s assertion that subsequent review of Brooks will provide relief under the facts of this case is meritless. Finally, Anderson argu es that Brooks does not dispose of his First Amendment constitutional claim because requiring an individual to say “yes” or “no” to an implied

consent advisory is a form of compelled protected speech and compe lling this speech viol ates his First A mendment rights under both the United States and Minnesota
C onstitutions. We presume that a statute is constitutional. State v. Behl , 564 N.W.2d 560, 566 (Minn. 1997). The “power to declare a statute unconstitutional should be7

exercised with extreme caution and only when absolutely necessary.” Id. A party challenging the constitutionality of a statute bears a “very heavy burden” on appeal and must demonstrate that the statute is unconstitutional beyond a reasonable doubt. State v. John son , 813 N.W.2d 1, 11 (Minn. 2012). We review de novo a district court’s ruling on the constitutionality of a statute. Id. at 4. A review of the record reveals th at Anderson did not raise his First A mendment argument in any of his previous filings or mo tions to the district court. We decline to consider a constitutional challenge when it is not raised before and acted upon by the district court. See Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996) (“ This court generally will not decide issues which were not raised before the district court, including constitutional questions of criminal procedure. ”)

. Even if we were to address the merits of this argument, Anderson’s reliance on two inapposite United States and Minnesota Supreme Court cases does not sati sfy the heavy burden of demonstrating that the implied

consent statute s are unconstitutional. Affirmed.