Tamara Ann Cowan v. Commissioner of Public Safety ( 2014 )

‘This opinion will be unpublished and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
A13-1526
Tamara Ann Cowan,
Respondent,
vs.
Commissioner of Public Safety,
Appellant.
Filed July 21, 2014
Reversed
Rodenberg, Judge
Stearns County District Court
File No. 73-CV-13-3778
Brian Nelson Steele, Steele Law Offices, PLLC, Minnetonka, Minnesota (for respondent)
Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul,
Minnesota (for appellant)
Considered and decided by Chutich, Presiding Judge; Johnson, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Commissioner of Public Safety challenges the district court’s order
rescinding the revocation of respondent Tamara Ann Cowan’s driver’s license. Because
the totality of the circumstances demonstrates that respondent consented to the chemical
test, we reverse.
FACTS
On April 21, 2013, Stearns County Sheriff’s Deputy Adam Johnson received a
report of a car in a ditch. After he arrived at the scene, he noticed that respondent had “a
strong odor of an alcoholic beverage coming from her” and had bloodshot, watery eyes
and slurred speech. Respondent was unable to satisfactorily perform the field sobriety
tests and admitted that she had been drinking alcohol. Respondent submitted to a
preliminary breath test, which showed an alcohol concentration of .158. Deputy Johnson
placed respondent under arrest.
At the police station, Deputy Johnson read respondent the implied consent
advisory. Respondent stated that she understood the advisory and that she wanted to
speak with an attorney. Respondent tried but was unable to reach an attorney. Deputy
Johnson then “asked [respondent] if she would take a breath test and she said yes.” The
breath test showed an alcohol concentration of .16.
Appellant revoked respondent’s driver’s license pursuant to Minnesota’s Implied
Consent Law, Minn. Stat. § 169A.52, subd. 4(a) (2012), and respondent challenged the
revocation. At the implied consent hearing, the parties stipulated to the introduction of
(1) Deputy Johnson’s narrative report, (2) the implied consent-advisory form, and
(3) respondent’s breath-test results. The parties also stipulated that Deputy Johnson did
not seek a warrant before conducting the breath test. The district court rescinded the
revocation of respondent’s driver’s license, concluding that respondent’s “consent to the
breath test was coerced.” This appeal followed.
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DECISION
“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. A district court’s conclusions of law are not overturned
“absent erroneous construction and application of the law to the facts.” Id.
The United States and Minnesota Constitutions guarantee people the right to be
free from unreasonable searches. U.S. Const. amend. IV; Minn. Const. art. I, § 10.
Collection and testing of a person’s breath constitutes a search under the Fourth
Amendment and requires a warrant or an exception to the warrant requirement. Skinner
v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13 (1989).
Consent is an exception to the warrant requirement. State v. Brooks, 838 N.W.2d
563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). “For a search to fall under
the consent exception, the [s]tate must show by a preponderance of the evidence that the
defendant freely and voluntarily consented.” Id. In determining whether consent is
voluntary, we consider 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 to chemical testing was made, including whether the
driver was read the implied consent advisory, and whether the driver had the right to
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consult with an attorney. Id. at 569. “[A] driver’s decision to agree to take a test is not
coerced simply because Minnesota has attached the penalty of making it a crime to refuse
the test.” Id. at 570.
In Brooks, our supreme court held that a driver voluntarily consented to testing
where he did not dispute the existence of probable cause to believe that he had been
driving while impaired, he was properly read the implied consent advisory, he was not
subjected to repeated police questioning and did not spend days in custody before
consenting, and he consulted with an attorney before he consented to testing. Id. at 569-
71. The district court here did not have the benefit of our supreme court’s decision in
Brooks when it held that respondent’s “consent to the breath test was coerced.”
As in Brooks, respondent’s consent to the breath test was not coerced. The record
concerning consent consists of documentary evidence only (and a stipulation that Deputy
Johnson did not seek a warrant). That record establishes that Deputy Johnson responded
to a report of a car in a ditch and observed indicia of intoxication. Respondent failed
field sobriety testing and admitted that she had been drinking alcohol. Deputy Johnson
properly read the implied consent advisory. Respondent stated that she understood the
advisory and attempted to contact an attorney, but was unable to reach one. Respondent
then agreed to take a breath test. Based on the totality of the circumstances, respondent
voluntarily consented to the test. Nothing in this record shows that respondent “was
coerced in the sense that [her] will had been overborne and [her] capacity for self-
determination critically impaired.” See Brooks, 838 N.W.2d at 571. Because respondent
consented to the breath test, the district court erred in rescinding the revocation of
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respondent’s driver’s license, and we need not reach appellant’s other arguments on
appeal.
Reversed.
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