This opinion will be unpublished and may not be cited except as provided by Minn .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 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 mo tion to suppress and its derivative order dismissing one count2

of the driving

- while

- impaired complaint, arguing that respondent voluntarily consented to the breath test. We reverse and remand for further proceedings. FACTS
R espondent is charged with four th

- degree driving while impaired (DWI) in violation of Minn. Stat § 169A.27, subd. 1 (2012) , and with an alcohol concentratio n of
.08 or more in violation of Minn. Stat. § 169A.20, subd. 1(5) (2012) . In a pretrial motion to suppress , respondent argued tha t 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] w as even charged with a crime.” We reversed, and further proceedings were held in the district court. 1
Because the district court had not a ddress ed 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 L aw 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 prio r contacts with law enforcement, ” concluding that respondent “was confused by the
pr ocess.” 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 warra nt.” 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 h e 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 re spondent 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 d epartment was for evidentiary purposes. Respondent prematurely expressed a refusal to take the test. However, Officer Stier told4

her “we’re not quite to that part.” He asked her if she wanted to consult with an attorney. Respondent confirmed that she d id. 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 spo k e 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 a dministered. 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 ( quo tation 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 crit ical 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 mad e no credibility determinations . R espondent did not appear or testify at the5

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 Constitutio n 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 c onstitutes 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 ho w it was said.” Id.
In Brooks , the supreme c ourt 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 c ourt ultimately held
that the driver in Brooks voluntarily consented to the b reath test because the driver was

2 The Minnesota Supreme Court h as favorably cited federal case law 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 af ter 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 h is options ; and he was told that he could refuse to take the test. Id. at 57 1

- 7 2. 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

e nforcement, 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 . A fter spea king 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 su pplying a sample of her breath for testing . Both respondent and the driver in Brooks were informed of the ir 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. Neither7

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 un important 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 bre ath test was being administered at the police station after the earlier PBT. B efore she consented to the breath test, respondent had confe rred with counsel. The Brooks c ourt 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 e vidence 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 consent ed to testing . The district court unequivocally erred in concluding otherwise. The district court appears not to have address ed 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 l aw enf o r cement. The record is replete with information about what kind of person respondent is in this case. Exhibit 1 identifies respondent a s a physical therapist and that s he is clearly of sufficient intelligence to understand her options and make dec isions. The exhibit also8

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 de cision she was asked to make.
T he district court did not appear to address what was said and how it was said , another factor required to be addressed by the B r ooks analysis . Exhibit 1 shows the

encounter to have been professional and accommodating. Of ficer 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 p rocedure at every point. The district court unequivocally erred in not consider ing this evidence. Under Brooks , the totality of the circumstances admit s 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 driver s 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. §169 A.51, subd. 1(b)(1) (2012) . An officer may request a chemical test be adminis tered 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 s upreme c ourt has made [it] clear that while the choice to9

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 ; s ee also Stevens v. Comm ’r of Pub

. Safety , 850 N.W.2d 717, 722

- 731 (Minn. App. 2014) (holding that Minnesota Implied Consent L aw does not violate the unconstitutional

- con ditions 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 distric t 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.