This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1126

Darrick Alan Duncan, petitioner, 

Respondent, 

vs. 

Commissioner of Public Safety, 

Appellant.

Filed February 9, 2015

Reversed

Johnson, Judge

Dakota County District Court

File No. 19AV-CV-14-527

Anthony J. Larson, Gerald Miller, P.A., Minneapolis, Minnesota (for respondent)

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

Minnesota (for appellant)

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

Larkin, Judge. 

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

JOHNSON, Judge

The commissioner of public safety revoked Darrick Alan Duncan’s driver’s 

license after he was arrested for driving while impaired. The district court rescinded the 

commissioner’s revocation on the ground that Duncan’s consent to the breath test was not 
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voluntary. We conclude that the totality of the circumstances shows that Duncan 

voluntarily consented to the breath test. Therefore, we reverse. 

FACTS

In the early morning hours of January 25, 2014, Officer Jason Jensen of the

Lakeview Police Department observed a truck make an illegal U-turn by driving over a 

concrete median. Officer Jensen stopped the truck for the traffic violation and spoke with 

the driver, Duncan. Officer Jensen detected a strong odor of an alcoholic beverage and 

observed that Duncan’s eyes were bloodshot and watery. After Duncan produced a

Maryland driver’s license, Officer Jensen determined that the license had been 

suspended. Officer Jensen administered a preliminary breath test, which indicated an 

alcohol concentration of .245. 

Officer Jensen arrested Duncan on suspicion of driving while impaired (DWI). 

Officer Jensen transported Duncan to the police station, where he read Duncan the 

implied-consent advisory at 3:13 a.m. At Duncan’s request, Officer Jensen found the 

telephone number for Duncan’s Maryland attorney and provided it to him. Duncan called 

the Maryland attorney twice and left a message. While waiting for a call back, Duncan

asked Officer Jensen about the consequences of refusal. Officer Jensen informed him 

that if he did not agree to chemical testing, he would be booked into the jail to await a 

court hearing. At approximately 4:00 a.m., Officer Jensen asked Duncan whether he 

would consent to a breath test. Duncan initially responded in the affirmative but then 

“expressed some confusion” over the process and asked whether he could consult with a 

local attorney. Officer Jensen agreed, and Duncan reached a local attorney and spoke 
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with the attorney for five to seven minutes. At 4:18 a.m., Duncan agreed to a breath test. 

The test revealed an alcohol concentration of .19. The commissioner revoked Duncan’s 

driver’s license pursuant to the implied-consent law. 

In February 2014, Duncan petitioned the district court for judicial review of the 

commissioner’s revocation of his driver’s license. See Minn. Stat. § 169A.53, subd. 2 

(2014). In April 2014, the district court held an implied-consent hearing. Duncan was 

represented by counsel but was not personally present. The parties stipulated to the facts 

contained in the police report, the implied-consent advisory form, and the DataMaster 

breath-test report. Officer Jensen testified. Duncan’s counsel argued that Duncan was 

coerced into granting consent because he is a resident of another state and was confused. 

The district court issued an order rescinding the commissioner’s revocation on the 

ground that the warrantless breath test was unlawful because Duncan did not voluntarily 

consent to the test. The district court’s order states that the commissioner “failed to make 

a sufficient case to establish [Duncan] knowingly and voluntarily consented to the 

search.” The district court reasoned that Duncan did not have any prior arrests or 

convictions for DWI, was not a resident of Minnesota, and had expressed confusion over 

the process. The commissioner appeals.

D E C I S I O N

The commissioner argues that the district court erred by rescinding Duncan’s 

license revocation. The commissioner contends that the totality of the circumstances 

shows that Duncan voluntarily consented to the breath test. Duncan did not file a 
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responsive brief. The case will be resolved on the merits despite the absence of a 

responsive brief. See Minn. R. Civ. App. P. 142.03.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and 

seizures, shall not be violated, and no Warrants shall issue, 

but upon probable cause, supported by Oath or affirmation, 

and particularly describing the place to be searched, and the 

persons or things to be seized.

U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. A test of a person’s breath 

constitutes a search for purposes of the Fourth Amendment. Skinner v. Railway Labor 

Execs.’ Ass’n, 489 U.S. 602, 616–17, 109 S. Ct. 1402, 1413 (1989); State v. Netland, 762 

N.W.2d 202, 212 (Minn. 2009), abrogated in part by Missouri v. McNeely, 133 S. Ct. 

1552, 1568 (2013), as recognized in State v. Brooks, 838 N.W.2d 563, 567 (Minn. 2013), 

cert. denied, 134 S. Ct. 1799 (2014). As a general rule, a search requires either a warrant 

or an exception to the warrant requirement, such as the person’s consent or the existence 

of exigent circumstances. McNeely, 133 S. Ct. at 1558; Brooks, 838 N.W.2d at 568. The 

exigency created by the dissipation of alcohol in a suspect’s body is not a per se

exception to the warrant requirement. McNeely, 133 S. Ct. at 1568. But the consent of 

the person whose breath is tested is an exception to the warrant requirement, in which 

case a police officer is not required to obtain a warrant. Brooks, 838 N.W.2d at 568. In 

an implied-consent case, the commissioner of public safety bears the burden of proving 

by a preponderance of the evidence that the driver voluntarily consented to chemical 

testing. Johnson v. Commissioner of Pub. Safety, 392 N.W.2d 359, 362 (Minn. App.
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1986). This court applies a clear-error standard of review to a district court’s finding on 

the issue of consent. Jasper v. Commissioner of Pub. Safety, 642 N.W.2d 435, 440 

(Minn. 2002).

The supreme court held in Brooks, “Whether consent is voluntary is determined by 

examining the totality of the circumstances.” 838 N.W.2d at 568 (quotation omitted). 

The relevant circumstances include “‘the nature of the encounter, the kind of person the 

defendant is, and what was said and how it was said.’” Id. at 569 (quoting State v. Dezso, 

512 N.W.2d 877, 880 (Minn. 1994)). When considering the nature of the encounter, a 

court should ask how the police came to suspect the driver was under the influence, 

whether police read the driver the implied-consent advisory, and whether he had an 

opportunity to consult with an attorney. Id. The supreme court identified three primary 

reasons why Brooks’s consent was voluntary and not coerced. First, Brooks was read the 

implied-consent advisory, which “made clear to him that he had a choice of whether to 

submit to testing.” Id. at 572. The supreme court reasoned that “[w]hile an individual 

does not necessarily need to know he or she has a right to refuse a search for consent to 

be voluntary, 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.” Id. (citation omitted). 

Second, Brooks had “the ability to consult with counsel,” id. at 572, which the supreme 

court reasoned supports the conclusion that a defendant made a voluntary decision. Id. at 

572. Third, Brooks “was neither confronted with repeated police questioning nor was he 

asked to consent after having spent days in custody.” Id. at 571 (citing State v. High, 287 

Minn. 24, 27–28, 176 N.W.2d 637, 639 (1970)). The supreme court reasoned that 
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“nothing in the record suggests that Brooks was coerced in the sense that his will had 

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

(quotation marks omitted).

In this case, the undisputed facts indicate that Duncan voluntarily consented to the 

breath test in essentially the same manner as the appellant in Brooks. First, Duncan was 

stopped during a routine traffic stop, and Officer Jensen read the standard impliedconsent advisory. Second, Officer Jensen provided Duncan with an opportunity to 

consult with an attorney, and Duncan actually did so. Third, the record does not contain 

any evidence that Duncan was repeatedly questioned, had spent days in custody, or 

otherwise was subjected to pressure to make a decision about whether to submit to 

chemical testing. See id. at 571-72. There simply is no meaningful difference between 

this case and Brooks.

Although Duncan did not file a responsive brief, we nonetheless note that the 

reasons stated by the district court do not justify its conclusion. The fact that Duncan is a 

resident of another state has little, if any, bearing on whether his consent to the breath test 

is valid. The implied-consent advisory is designed to give a driver sufficient information 

to make a decision about whether to submit to chemical testing, regardless whether the 

driver has a Minnesota driver’s license or a license from another state. See Minn. Stat. 

§ 169A.51, subd. 2 (2014); State v. Scott, 473 N.W.2d 375, 377 (Minn. App. 1991) (“The 

purpose of the implied consent advisory is to inform the driver of the serious 

consequences of his or her refusal.”). In any event, Duncan was able to consult with a 

Minnesota attorney before deciding whether to consent. The fact that Duncan did not 
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have any prior DWI arrests may be relevant but is only one factor. The most important 

feature of the record is, as in Brooks, the complete absence of any evidence that Duncan 

“was coerced in the sense that his will had been overborne and his capacity for selfdetermination critically impaired.” See Brooks, 838 N.W.2d at 571 (quotation marks 

omitted). In short, the totality of the circumstances shows that Duncan voluntarily 

consented to the breath test.

Thus, the district court clearly erred by concluding that the commissioner did not 

satisfy her burden of proving that Duncan consented to the breath test. Therefore, the 

district court erred by rescinding the revocation of Duncan’s driver’s license. In light of 

that conclusion, we need not consider the commissioner’s other arguments for reversal.

Reversed.