State of Minnesota v. Chad William Mosher ( 2016 )

This opinion will be unpublished and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
A16-0063
State of Minnesota,
Respondent,
vs.
Chad William Mosher,
Appellant.
Filed August 15, 2016
Affirmed
Ross, Judge
Becker County District Court
File No. 03-CR-14-107
Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and
Gretchen D. Thilmony, Becker County Attorney, Tammy L. Merkins, Assistant County
Attorney, Detroit Lakes, Minnesota (for respondent)
Richard Kenly, Kenly Law Office, Backus, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Ross, Judge; and
Stauber, Judge.
UNPUBLISHED OPINION
ROSS, Judge
Chad Mosher was arrested on suspicion of drunk driving after police discovered his
vehicle resting in a ditch and he failed field sobriety tests. Mosher listened to the implied-
consent advisory and agreed to take a breath test, which revealed an alcohol concentration
of 0.14. The state charged Mosher with driving while impaired. Mosher stipulated to the
state’s evidence after a contested omnibus hearing in which the district court apparently
denied his request to suppress the breath test. The district court found Mosher guilty of
driving while impaired. We affirm.
FACTS
On a January 2014 evening, White Earth police officer Franklin Tibbetts saw a
vehicle in a ditch along County Road 133. The engine was running and the headlights were
illuminated. Officer Tibbetts approached the vehicle’s passenger-side window and detected
the odor of an alcoholic beverage emanating from inside. Officer Tibbetts also noticed an
open can of beer in a passenger-side cup holder along with a 12-pack of beer sitting
between the passenger’s feet. The officer walked around and spoke with the vehicle’s
driver, Chad Mosher, who had bloodshot eyes and slurred speech. Mosher said he drank
six beers. Officer Tibbetts suspected that Mosher was drunk, and he administered field
sobriety tests and a preliminary breath test, which confirmed the suspicion. The officer
arrested Mosher and took him to the Becker County Law Enforcement Center.
Officer Tibbetts read Mosher the implied-consent advisory and asked him to take a
breath test. Mosher agreed to take the test, which revealed an alcohol concentration of 0.14.
The state charged Mosher with first-degree driving while impaired based alternatively on
his alcohol concentration and his physical impairment. Mosher asked the district court to
suppress the breath-test results on constitutional grounds, and the court rejected his
argument. The parties stipulated to the state’s evidence under Minnesota Rule of Criminal
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Procedure 26.01, subdivision 4, preserving for possible appeal Mosher’s constitutional
challenge. The district court found him guilty of the alcohol-concentration charge, and
Mosher appeals.
DECISION
Mosher argues on appeal that his consent to the breath test was involuntary and the
test therefore unconstitutional. The state first challenges Mosher’s argument on the ground
that Mosher has not provided a record of the pretrial ruling he asks us to review. We have
previously declined to review claims when the appellant has failed to prepare a sufficient
record. See, e.g., State v. Heithecker, 395 N.W.2d 382, 383 (Minn. App. 1986) (affirming
appellant’s conviction because he failed to provide the trial transcript necessary to review
his sufficiency-of-the-evidence claim). But the state concedes that because Mosher is
challenging the voluntariness of his consent and the underlying facts are undisputed, we
can reach the merits. See Richards Asphalt Co. v. Bunge Corp., 399 N.W.2d 188, 191–92
(Minn. App. 1987). We will address Mosher’s argument even though the record presented
on appeal lacks the district court’s analysis or express ruling.
The United States and Minnesota Constitutions protect individuals from
unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A
breath test is a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616–17, 109 S. Ct.
1402, 1412–13 (1989). A warrantless search without probable cause is generally per se
unconstitutional. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). But a search warrant
is not necessary when the test subject voluntarily consents to a breath test. State v. Brooks,
838 N.W.2d 563, 568 (Minn. 2013). Voluntariness depends on the totality of the
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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 569 (quotation omitted).
Mosher argues that his consent was involuntary because the implied-consent
advisory is itself unconstitutionally coercive. The argument is unconvincing. The supreme
court has held that a driver’s decision to take a breath test is not coerced simply because
the legislature has made test refusal a crime. See id. at 570. And we see nothing in the
circumstances that suggests that Mosher’s consent was involuntarily given. The Brooks
court concluded that the driver had voluntarily consented to testing in part because he was
not confronted with repeated police questioning or subjected to days in custody before
being asked to consent. Id. at 571. It also observed that he had the opportunity to consult
with a lawyer before taking each test and that police had read him the implied-consent
advisory, with its implied indication that the driver could refuse the test. Id. at 571–72.
This case resembles Brooks. Mosher agreed to take the breath test about two hours
after his arrest. He was read the implied-consent advisory, which he expressly understood.
And he was given the opportunity to speak with an attorney before he agreed to be tested.
Mosher’s only effort to distinguish this case from Brooks is his argument that he did not
actually speak to an attorney before agreeing to take the test. But the Brooks court
emphasized only “the ability to consult with counsel about [the] issue,” and even then it
said only that this ability “supports the conclusion that [the] defendant made a voluntary
decision,” not that it was required for the conclusion. Id. at 572 (emphasis added). The
audio recording of the implied-consent discussion reveals that Mosher had the ability and
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was given the opportunity to speak with an attorney, but he expressly declined. His consent
was not involuntary simply because he chose not to avail himself of the opportunity.
Because Mosher identifies no other circumstances supporting his assertion that his
consent was involuntary, we affirm the district court’s apparent finding of voluntariness.
Affirmed.
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