This opinion will be unpublished and may not be cited except as provided by Minn .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
- 1387 Richard Allen Gumphrey, petitioner,

Appellant,

vs. Commissioner of Public Safety, Respondent. Filed July 7, 2014 Affirmed Chutich , Judge Hennepin County District Co urt File No.: 27

- CV

- 13

- 5289 Eric J. Nelson, Halberg Criminal Defense, Bloomington, Minnesota (for appellant) Lori A. Swanson, Attorney General , Stephanie Hilstrom, Assistant Attorney General, Uzodima Franklin Aba

- Onu, Assistant Attorney General, St. Paul, Minn esota (for respondent )
Considered and decided by Johnson , Presiding Judge; Chutich , Judge; and Huspeni , 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 CHUTICH , Judge Appellant Richard Allen Gumphrey challenges the district court ’s order sustaining
the revocation of his driver’s license. Because the totality of circumstances establishes that he voluntarily consented to a breath test , we affirm. FACTS On March 21, 2013, at approximately 1: 17 a.m. , Officer David Hackley of the Maple Grove Police Department observed a vehicle that crossed over fog lines on two occasions while exiting a freeway. As the vehicle turned right off the exit ramp, it again drifted over the fog line, crossed into a right

- ha nd turn lane, then veered back into the lane of traffic. Officer Hackley stop ped the vehicle and identified th e driver as ap pellant Richard Allen Gumphrey. In conversing with Gumphrey, Officer Hackley detected “a strong odor of an alcoholic beverage com ing from the vehicle.” Officer Hackley then conducted field sobriety tests and performed a preliminary breath test. Officer Hackley arrested Gumphrey on suspicion of driving while impaired and transported him to the Maple Grove Police Department.
At 1: 56 a.m. , Officer Hackley read Gumphrey the implied

- consent advisory, which included the statement, “ [ y ] ou have the right to consult with an attorney. If you wish to do so, a telephone and directory will be available to you.” When asked if he
understood t he advisory, Gumphrey responded that he did. When asked if he wished to consult with an attorney, Gumphrey stated that he did not. Gumphrey agreed to take a3

breath test and Officer Timothy Erickson administered the test. The breath test resulted in a re ported value of .11 registered at 2:11 a.m.
Because Gumphrey’s alcohol concentration was over the legal limit, the Commissioner of Public Safety (commissioner) revoked Gumphrey ’s driver’s license. Gumphrey petitioned for judicial review of the revocatio n of his driver’s license. On May 14, 2013, the district court held a hearing and subsequently issued an order sustaining the revocation of Gumphrey’s driver’s license. It found that Gumphrey was read the implied

- consent advisory , understood it, and then agreed to take the breath test. The district court concluded that “ [t] here is no evidence of exigent circumstances, but there is evidence of consent given knowingly, freely, and voluntarily

. ” This appeal followed

. D E C I S I O N Gumphrey argues that th e district court erred in concluding that the totality of the circumstances establishes that he validly consented to the search. We disagree. “When the facts are not in dispute, the validity of a search is a question of law subject to de novo review.” Haase v. Comm’r of Pub. Safety , 679 N.W.2d 743, 745 (Minn. App. 2004). In reviewing the constitutionality of a search, “we independently analyze the undisputed facts to determine whether evidence resulting from the search should be suppressed.” Id. We d o not overturn a district court’s conclusions of law “absent erroneous construction and application of the law to the facts.” Id. In an implied

- consent case, the commissioner has the burden of proving by a preponderance of the evidence that a search was constitutional. State v. Diede , 795 N.W.2d 836, 8464

(Minn. 2011) ; s ee Johnson v. Comm’r of Pub. Safety , 392 N.W.2d 359, 362 (Minn. App. 1986). The United States and Minnesota Constitutions guarantee people the right to be free from unreasonable searches. U.S. Const. amend. IV; Minn. Const. art. 1 , § 10. Taking a sample of a person’s breath is a search under the Fourth Amendment and requires a warrant or a valid exception to the warrant requirement

. Skinner v. Ry. Labor Execs.’ Ass’n , 489 U.S. 602, 616

– 1 7, 109 S. Ct. 1402, 1412

– 13 (1989); State v. Netland , 762 N.W.2d 202, 212 (Minn. 2009). Consent is such an exception. Diede, 795 N.W. 2d
at 846. The supreme court recently held in State v. Brooks that a driver may validly consent to testing after being i nformed that refusal to submit to testing is a crime. State v. Brooks , 838 N.W.2d 563, 568 (Minn. 2013), cert. denied , 134 S. Ct. 1799 ( 2014). The Brooks court acknowledged that chemical te sting under the implied

- consent statute is a search subject to Fourth Amendment protections; a warrant is required unless the search falls under an exception to the warrant requirement. Id. “For a search to fall under the consent exception, the [s]tate must show by a preponderance of the evid ence that the defendant freely and voluntarily consented.” Id. In determining whether consent is voluntary, this court considers 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 (quotation omitted) . In the implied

- consent context, the nature of the encounter includes how the police came to suspect that the driver was driving under the influence, how the request to submit to5

chemical test ing 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. Gumphrey relies on Bumper v. North Carolina , 391 U.S. 543, 88 S. Ct. 1788 (1968) , to contend that the commissioner failed to establish that he consent ed to the breath test, but Bumper does not compel that result. In Bumper , a law enforcement officer claimed authority under a search warrant to search a home and the homeowner allowed him to execute the purported search warrant. Id. at 54 6

– 47 , 88 S. Ct. at 1791. The record contained no evidence that a valid search wa rrant was issued to the officer, however. Id. at 549

– 50 n. 15, 88 S. Ct. at 1792. The Supreme Court held that “[a] search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid .” Id. at 549 , 88 S. Ct. at 1792. It reasoned that without a warrant, the state has the burden to prove that the pe rson consented to the search, and that the “burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Id. at 548

– 49, 88 S. Ct. at 1792. Gumphrey asserts that , similar to Bumper, the commissioner failed to establish more than his “acquiesce nce ” to the breath test. As the trier of fact, t he district court is in the best position to distinguish between “consent” and mere “ acquiescence , ” however. See State v. Al

- Naseer , 788 N.W.2d 469, 473 (Minn. 2010) (stating that “t he trier of fact is in the best position to determine credibility and weigh the evidence”). In review ing the district court’s findings for error, we cannot conclude that the district court err ed in finding that Gumphrey’s “ consent [was] given knowingly, f reely, and voluntarily .” See
Haase , 679 N.W.2d at 745

. Off icer Hackley read Gumphrey the i mplied

- consent6

advisory , and Gumphrey said that he understood it. Officer Hackley did not state that he was acting pursuant to a warrant and did not otherwise act coercively in requesting the breath test. Gumphrey further tries to distinguish Brooks by contending that, unlike Brooks, he did not consult with legal counsel and he had no previous experience with investigations of alleged drunk driving. He states that the key factor in the Brooks ’ totality

- of

- the

- circumstances analysis is that Brooks actually consulted with an attorney. To be sure, the Brooks court did note that “[t]he fact that B rooks consulted with counsel before agreeing to take each test reinforces the conclusion that his consent was not illegally coerced.” 838 N.W.2d at 571. But the supreme court suggested that “the ability to consult with counsel ” is important as well in ev aluating whether consent was voluntary. Id. at 572 (emphasis added)

. Here, Gumphrey was given an opportunity to consult with an attorney, but chose not to exercise that ability. And no evidence in the record suggests, and Gumphrey does not assert, that officers pressured him to forego the opportunity to consult with an attorney.
In addition, the record does not reflect whether Gumphrey has previous experience with law enforcement for alleged drunk driving . Even assuming that this traffic stop was Gumphrey ’s first experience , he told the officer that he understood the implied

- consent advisory , and no evidence suggests otherwise. Gumphrey did not tell the officer that he did not understand the advisory, nor did he ask the officer to read it again. And he chose
not to consult with an attorney. In sum , under Brooks , t he district court properly7

sustain ed the revocation of Gumphrey’s driver’s license because the totality of the circumstances establishe s that Gumphrey validly consented to the breath tes t. Affirmed .