This opinion will be unpublished and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

A13-1895

Jason Homer Dodge, petitioner, 

Respondent, 

vs. 

Commissioner of Public Safety, 

Appellant.

Filed July 28, 2014

Reversed

Rodenberg, Judge

Dakota County District Court

File No. 19AV-CV-13-447

Max A. Keller, Keller Law Offices, Minneapolis, Minnesota (for respondent)

Lori Swanson, Attorney General, Kristi A. Nielsen, Assistant Attorney General, St. Paul, 

Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and 

Chutich, Judge. 

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

RODENBERG, Judge

Appellant Commissioner of Public Safety challenges the district court’s grant of 

respondent Jason Homer Dodge’s motion to rescind the revocation of his driver’s license. 

Because the totality of the circumstances demonstrates that respondent consented to the 

chemical test, we reverse.
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FACTS

The facts in the record consist of police reports and other documents to which the 

parties stipulated. On January 26, 2013, at approximately 12:30 a.m., Officer Kyle 

Posthumus observed a white sedan “traveling well over the posted speed limit” that 

passed two other cars while in the right lane. The sedan then pulled into a parking lot, 

still traveling at a high speed, and parked in a parking spot. Officer Posthumus 

approached the vehicle of respondent, the driver, and the officer “detected a strong odor 

of an alcoholic beverage coming from the vehicle in which [respondent] was the sole 

occupant.” Respondent had red and watery eyes and admitted that he had consumed 

alcohol 20 minutes before the stop. 

Respondent agreed to perform field sobriety tests. After performing poorly on the 

tests, respondent submitted to a preliminary breath test, with a reported result of .211. 

Officer Posthumus arrested respondent and transported him to the Burnsville Police 

Department. Around 1:09 a.m. respondent was read the Implied Consent Advisory and 

respondent asked to contact an attorney. Respondent made one phone call at 1:31 a.m.,

to his mother. At approximately 1:53 a.m. respondent stated that he no longer wanted to 

speak with an attorney and agreed to take a breath test (answering “yes sir” to Officer 

Posthumus’s question of whether he would take a breath test according to the implied 

consent advisory sheet). A reading of .21 was reported by the testing device. 

Appellant revoked respondent’s driver’s license, and respondent challenged the 

revocation. At an implied-consent hearing, the parties stipulated to the facts in the record 

and agreed that the only issue was the constitutionality of the breath test. The district 
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court subsequently held that the breath test was unconstitutional and granted the motion 

to rescind the revocation of respondent’s driver’s license. This appeal followed.

D E C I S I O N

“When the facts are not in dispute, the validity of a search is a question of law 

subject to de novo review. When reviewing the constitutionality of a search, we 

independently analyze the undisputed facts to determine whether evidence resulting from 

the search should be suppressed.” Haase v. Comm’r of Pub. Safety, 679 N.W.2d 743, 

745 (Minn. App. 2004) (citation omitted). A district court’s conclusions of law are not 

overturned “absent erroneous construction and application of the law to the facts.” Id.

The United States and Minnesota Constitutions guarantee people the right to be 

free from unreasonable searches. U.S. Const. amend. IV; Minn. Const. art. I, § 10. 

Taking a sample of a person’s breath is considered to be a search under the Fourth 

Amendment and, absent an applicable exception to the warrant requirement, requires a 

warrant. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 

1412-13 (1989). Consent is an exception to the warrant requirement. 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, the [s]tate must show by a preponderance of the 

evidence that the defendant freely and voluntarily consented.” Id. In determining 

whether consent is voluntary, we consider the totality of the circumstances, “including 

the nature of the encounter, the kind of person the defendant is, and what was said and 

how it was said.” Id. at 568-69. In the implied-consent context, the nature of the 

encounter includes how the police came to suspect that the driver was driving under the 
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influence, how the request to submit to chemical testing was made, including whether the 

driver was read the implied-consent advisory, and whether the driver had the right to 

consult with an attorney. Id. at 569. The provision of the law making a refusal to submit 

to testing a crime does not render consent involuntary as a matter of law. Id. at 571 

(stating that although test refusal comes with criminal penalties and choosing whether to 

submit to chemical testing is difficult or unpleasant, the criminal process is replete with 

difficult and unpleasant choices). 

The supreme court in Brooks examined the totality of the circumstances in 

analyzing whether the driver consented to testing. Id. at 569-72. The supreme court held 

that Brooks voluntarily consented to testing because he did not challenge whether there 

was probable cause to believe that he had been driving under the influence, he agreed that 

he was properly read the implied-consent advisory, he was not subject to repeated police 

questioning nor did he spend days in custody before consenting, and he consulted with an 

attorney before he consented to testing. Id. at 571-72.

Here, as in Brooks, respondent does not assert that the officers lacked probable 

cause to arrest him for driving while impaired. He does not argue that he was not read 

the implied-consent advisory. He was asked whether he would submit to testing and was 

not subject to coercive police questioning. He was not held in custody for any prolonged 

period of time. When asked whether he would take a breath test, respondent responded, 

“yes sir.” Less than one hour elapsed between when respondent was read the impliedconsent advisory and when he agreed to take a breath test. 
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Respondent argues only that his consent was not voluntary because he was advised 

that refusal to submit to a breath test may result in criminal prosecution. But Brooks

clarified that the criminality of test refusal does not render consent involuntary. Id. at 

572 (stating that “the fact that someone submits to the search after being told that he or 

she can say no to the search supports a finding of voluntariness”). In this case, there was 

no testimony at the hearing, and no fact questions exist on whether respondent was 

coerced to take the breath test. On our review of the police reports and other documents 

stipulated into evidence, and as a matter of law, the totality of the circumstances 

demonstrates that respondent voluntarily consented to the chemical test. Therefore, the 

district court erred in rescinding the revocation of respondent’s driver’s license.

Reversed.