This opinion will be unpublished and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

A14-0759

State of Minnesota, 

Appellant, 

vs. 

Sarah May Mickalsen, 

Respondent.

Filed November 24, 2014

Reversed and remanded

Rodenberg, Judge

Dakota County District Court

File No. 19AV-CR-12-12961

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Alina Schwartz, Campbell Knutson, Eagan, Minnesota (for appellant)

Jeffrey B. Ring, Minneapolis, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and Kirk, 

Judge. 

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

RODENBERG, Judge

Appellant State of Minnesota challenges the district court’s grant of respondent

Sarah May Mickalsen’s motion to suppress and its derivative order dismissing one count 
2

of the driving-while-impaired complaint, arguing that respondent voluntarily consented to 

the breath test. We reverse and remand for further proceedings. 

FACTS

Respondent is charged with fourth-degree driving while impaired (DWI) in 

violation of Minn. Stat § 169A.27, subd. 1 (2012), and with an alcohol concentration of 

.08 or more in violation of Minn. Stat. § 169A.20, subd. 1(5) (2012). In a pretrial motion 

to suppress, respondent argued that the results of her breath test should be suppressed 

because the state violated her right to counsel and her right to be free of unreasonable 

searches and seizures. After a contested hearing, the district court ruled that respondent 

was denied her right to counsel and granted the motion to suppress the results of the 

breath test on those grounds alone. The state appealed. On appeal, we reversed the 

district court, holding that respondent’s right to counsel was not violated because “no fair 

trial right . . . would be impeded by the officer’s refusing to disclose the preliminary 

breath test result before [respondent] was even charged with a crime.” We reversed, and 

further proceedings were held in the district court.1

Because the district court had not addressed the McNeely/Brooks issues raised by 

respondent in her motion to suppress, respondent then requested that the district court 

hear and determine her alternative motion alleging an unlawful search. See State v. 

Brooks, 838 N.W.2d 563, 568-69 (Minn. 2013) (holding that chemical test under 

Minnesota Implied Consent Law is a search). The district court concluded that 

 

1

The facts of the case are set forth in our earlier opinion, State v. Mickalsen, No. A13-

1244, 2013 WL 6839926 at *1 (Minn. App. Dec. 30, 2013).
3

respondent was unlike the defendant in Brooks because respondent has not been

previously arrested for a DWI. Further, unlike the defendant in Brooks, the district court 

held that the state put forth no evidence indicating that respondent had “significant prior 

contacts with law enforcement,” concluding that respondent “was confused by the 

process.” Based on these findings, the district court held that the “state has made an 

insufficient case to establish [that respondent] knowingly and voluntarily consented to the 

search and waived the requirement under the Fourth Amendment for . . . a warrant.” This 

appeal followed. 

D E C I S I O N

The evidentiary record is limited to the police report of July 16, 2012. There was 

no testimony at the motion hearing. According to the report, Lakeville Police Officer 

A.P. Stier stopped respondent after he observed illegal driving conduct. Officer Stier 

approached the driver, later identified as respondent, and detected a strong odor of 

alcohol. Respondent denied having consumed alcohol, but Officer Stier observed that her 

eyes were bloodshot and watery and that her speech was slurred. Based on these 

observations, respondent’s performance of field sobriety tests, and a Preliminary Breath 

Test (PBT) with a reading of .178, Officer Stier arrested respondent.

At the police department, Officer Stier read respondent the Minnesota Implied 

Consent Advisory. Respondent thought she had already taken the breath test. Officer 

Stier explained that the breath test done before her arrest was merely preliminary and that 

the breath test to be conducted in the police department was for evidentiary purposes. 

Respondent prematurely expressed a refusal to take the test. However, Officer Stier told 
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her “we’re not quite to that part.” He asked her if she wanted to consult with an attorney. 

Respondent confirmed that she did. Officer Stier allowed her to use her personal cell 

phone to contact her boyfriend in order to obtain the phone number for an attorney.

During respondent’s conversation with her boyfriend, respondent stated that she did not 

want to take the test. She then spoke with an attorney and ultimately agreed to provide a 

breath test. Respondent also indicated that she was satisfied with the advice she received 

from the attorney and both agreed to the breath testing and requested that a second breath 

test be administered. Officer Stier complied with that request. Both tests resulted in a 

reported .17 alcohol concentration. 

In a pretrial appeal, the state must show clearly and unequivocally that the district 

court erred and that the error will have a critical impact on the outcome of the trial. State 

v. Kim, 398 N.W.2d 544, 547 (Minn. 1987). There is a critical impact where the pretrial 

order “seriously impede[s] . . . continuation of the prosecution.” Id. at 551 (quotation 

omitted). As the pretrial order here dismisses one of the counts against respondent, and 

suppresses evidence relevant to both counts, the pretrial order seriously impedes the

continuation of the prosecution and therefore will have a critical impact on the outcome 

of the trial. Thus, the state has met its threshold burden.

When deciding whether the district court erred in its pretrial order, we 

“independently review the facts and determine, as a matter of law, whether the district 

court erred.” State v. Baxter, 686 N.W.2d 846, 851 (Minn. App. 2004). Ordinarily we 

give great deference to the district court’s factual determinations. However, the district 

court here made no credibility determinations. Respondent did not appear or testify at the 
5

motion hearing. The evidentiary record is limited to the officer’s police report, and there 

is no conflicting evidence to be considered.

The Fourth Amendment to the United States Constitution and Article I, Section 10 

of the Minnesota Constitution protect persons from unreasonable searches and seizures. 

U.S. Const. amend. IV; Minn. Const. art. 1, § 10.2 Generally, a search conducted without 

a warrant is per se unconstitutional. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). 

A breath test constitutes a search. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 617, 

109 S. Ct. 1402, 1413 (1989). Consent is an exception to the warrant requirement. 

Dezso, 512 N.W.2d at 880. The state bears the burden of proving that the defendant 

consented to a search. Id. Whether the defendant consented to a search is determined by 

an examination of the totality of the circumstances. Id. These circumstances include “the 

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

was said.” Id.

In Brooks, the supreme court considered “how the police came to suspect [the 

defendant] was driving under the influence, their request that he take the chemical tests . . 

. whether they read him the implied consent advisory, and whether he had the right to 

consult with an attorney” to analyze whether the “nature of the encounter” indicated

voluntary consent to the tests. 838 N.W.2d at 569. The supreme court ultimately held 

that the driver in Brooks voluntarily consented to the breath test because the driver was 

 

2

The Minnesota Supreme Court has favorably cited federal caselaw when analyzing state 

constitutional issues of breath, blood, and urine tests under Minnesota’s implied consent 

laws. Brooks, 838 N.W.2d at 568. The protections afforded by the state and federal 

constitutions are identical in this context.
6

neither “confronted with repeated police questioning” nor “coerced in the sense that his 

will had been overborne and his capacity for self-determination critically impaired.” Id.

at 571. “[N]or was he asked to consent after having spent days in custody.” Id. In 

finding the driver’s consent in Brooks to be voluntary, the supreme court also noted that

he was given an option to consult with an attorney, and did so; he was read the implied 

consent advisory and informed of his options; and he was told that he could refuse to take 

the test. Id. at 571-72. 

It is true, in this case, that there is no evidence that respondent had been previously

arrested for a DWI or that respondent had any significant prior contacts with law 

enforcement, like that of the driver in Brooks. It is also true that, when Officer Stier read 

the implied consent advisory to respondent, respondent initially seemed confused about 

why Officer Stier requested a second breath test when she had been given a PBT when 

she was stopped.

But respondent was read the implied consent advisory, was told of her options, 

consulted an attorney of her own choosing before making her decision, and was satisfied 

with the advice of her attorney. After speaking with the attorney, respondent consented 

to a breath test. Then she also requested that a second breath test be taken. The 

undisputed facts here admit of no conclusion other than that, like the driver in Brooks, 

respondent voluntarily consented to supplying a sample of her breath for testing. Both 

respondent and the driver in Brooks were informed of their options under the implied 

consent law, both respondent and the driver in Brooks were allowed to contact an 

attorney, both respondent and the driver in Brooks consented to a chemical test. Neither 
7

respondent nor the driver in Brooks were confronted with repeated police questioning or 

asked to consent only after spending a few days in custody. The district court erred by 

focusing on two relatively unimportant comparisons to Brooks, while failing to take into 

account the totality of the circumstances as required by Brooks. 

Although respondent initially indicated a preference to refuse testing before she 

was even asked whether she agreed to testing, her apparent confusion was immediately 

and correctly resolved when Officer Stier explained the process and why a breath test was 

being administered at the police station after the earlier PBT. Before she consented to 

the breath test, respondent had conferred with counsel. The Brooks court found that 

consulting with counsel “supports the conclusion that a defendant made a voluntary 

decision.” 838 N.W.2d at 572. The record establishes that respondent was no longer 

confused after this explanation. 

The evidence in the record in this case supports no finding other than that the 

nature-of-the-encounter consideration under Deszo weighs in favor of finding that 

respondent voluntarily consented to testing. The district court unequivocally erred in 

concluding otherwise.

The district court appears not to have addressed the kind of person respondent is, 

other than to observe that there was no evidence that respondent had been arrested for a 

DWI and no evidence that respondent had prior significant contact with law enforcement. 

The record is replete with information about what kind of person respondent is in this 

case. Exhibit 1 identifies respondent as a physical therapist and that she is clearly of 

sufficient intelligence to understand her options and make decisions. The exhibit also 
8

indicates that respondent was cooperative and understood, after explanation, the implied 

consent process. These facts support no conclusion other than that respondent is the kind 

of person to understand the consequences of the decision she was asked to make. 

The district court did not appear to address what was said and how it was said, 

another factor required to be addressed by the Brooks analysis. Exhibit 1 shows the 

encounter to have been professional and accommodating. Officer Stier allowed 

respondent to not only contact an attorney, but also to have a long phone conversation 

seeking advice from her boyfriend. Further, Officer Stier explained the procedure

thoroughly and accurately ensured that respondent understood the procedure at every 

point. The district court unequivocally erred in not considering this evidence.

Under Brooks, the totality of the circumstances admits of no conclusion other than 

that respondent voluntarily consented to breath testing. The district court unequivocally 

erred in suppressing the breath test results.

Finally, respondent claims that Minnesota’s implied consent law is 

unconstitutional. Under the Minnesota implied consent law, all drivers in the state of 

Minnesota impliedly consent to a chemical test of blood, breath, or urine as evidence of

whether the driver is under the influence of alcohol. Minn. Stat. §169A.51, subd. 1(b)(1)

(2012). An officer may request a chemical test be administered when an officer has 

probable cause to believe a driver is impaired and the driver has been arrested for DWI. 

Id. (among other scenarios listed in the statute). Refusal to consent to a chemical test is a 

crime. Minn. Stat. §169A.52, subd. 1 (2012). “Although refusing the test comes with 

criminal penalties . . . the supreme court has made [it] clear that while the choice to 
9

submit or refuse to take the chemical test ‘will not be an easy or pleasant one for a 

suspect to make,’ the criminal process ‘often requires suspects and defendants to make 

difficult choices.’” Brooks, 838 N.W.2d at 571 (citing South Dakota v. Neville, 459 U.S. 

553, 564, 103 S. Ct. 916, 923 (1983)). The fact that refusal is a crime does not render the 

Minnesota implied consent law unconstitutional and does not invalidate otherwise valid 

consent. Id. at 572-73; see also Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717, 722-

731 (Minn. App. 2014) (holding that Minnesota Implied Consent Law does not violate 

the unconstitutional-conditions doctrine).

In sum, we reverse the district court’s grant of respondent’s motion to suppress 

because the record admits of no conclusion other than that respondent voluntarily 

consented to chemical testing of her breath. We also reverse the district court’s grant of 

respondent’s derivative motion to dismiss the count of driving with an alcohol 

concentration of .08 or more. We remand for further proceedings.

Reversed and remanded.