Michael John Frank v. Commissioner of Public Safety ( 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This opinion will be unpublished and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
A16-0166
Michael John Frank, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed July 25, 2016
Affirmed
Cleary, Chief Judge
Crow Wing County District Court
File No. 18-CV-15-3357
Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)
Lori Swanson, Attorney General, Kristi Nielsen, Peter D. Magnuson, Assistant Attorneys
General, St. Paul, Minnesota (for respondent)
Considered and decided by Cleary, Chief Judge; Connolly, Judge; and Toussaint,
Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
CLEARY, Chief Judge
On appeal from an order sustaining the revocation of his driver’s license, appellant
argues that the district court erred by (1) refusing to suppress evidence obtained after the
stop of appellant’s car because the police officer lacked a particularized, objective basis for
suspecting appellant of criminal activity; (2) admitting evidence obtained from field
sobriety tests because it was obtained from appellant in violation of his Fourth Amendment
rights; (3) admitting evidence from a DataMaster breath test because it was obtained in
violation of appellant’s Fourth Amendment rights; and (4) admitting the breath test result
because the criminal test-refusal statute is unconstitutional, and therefore the implied
consent advisory read to appellant violated his constitutional right to due process of law
and the doctrine of unconstitutional conditions. We affirm.
FACTS
At about 12:35 a.m. on Sunday, August 2, 2015, a police officer was on patrol,
driving on a county road near Breezy Point. As the officer approached a hillcrest, he saw
appellant’s vehicle, a pickup truck, traveling in the opposite direction. As appellant’s truck
crested the hill, appellant flashed his bright headlights very briefly. The officer testified
that he was about 150 to 200 feet from appellant’s vehicle when its headlights went from
dim to bright and then dimmed again. The officer stated that as he approached the hill, he
was driving at about 50 miles per hour, and he estimated that appellant’s vehicle was
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traveling at about 55 miles per hour. On cross-examination, the officer agreed that the
vehicles were converging at about 95 to 110 miles per hour.
The officer also testified that appellant’s headlights were “extremely bright,” to the
extent that they “literally just about blinded [him].” The officer testified that he pulled
onto the shoulder and stopped because he was blinded by appellant’s headlights. Appellant
continued driving east. The district court found that the officer believed appellant had
violated Minn. Stat. § 169.61(b) (2014) (prohibiting drivers from aiming glaring headlights
into the eyes of oncoming drivers), so the officer made a U-turn from the shoulder to follow
appellant’s vehicle and make further observations about its operation. The officer testified
that he intended to pull appellant over for flashing his bright headlights.
The officer caught up with appellant as he was entering a series of curves in the
road. The officer observed appellant’s vehicle cross the centerline on one curve, and then
cross the fog line on the next curve. The officer then stopped appellant’s vehicle. He
testified that he initiated the stop due to the time of day, the fact that it was a weekend
night, the fact that appellant had flashed his bright headlights, and appellant’s inability to
maintain lane position.
After stopping the truck, the officer approached the vehicle and told appellant that
the reason for the stop was the way in which appellant had flashed his bright lights. As the
officer was speaking with appellant, he noted that there was a strong odor of alcohol
coming from inside the vehicle, that appellant’s eyes were bloodshot and watery, and that
his speech was somewhat slurred. When asked if he had been drinking, appellant
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responded that he had consumed two alcoholic drinks. The officer directed appellant to
get out of his vehicle and instructed him to perform three different field sobriety tests.
Appellant displayed signs of impairment during each test. The officer then administered a
Preliminary Breath Test (PBT), which registered a blood alcohol content of 0.15. The
officer arrested appellant for driving while impaired (DWI) and transported him to the
Crow Wing County Jail.
At the jail, the officer read the Implied Consent Advisory to appellant, asked
appellant if he understood, and asked appellant if he wished to call an attorney. Appellant
answered “yes” to both questions. Appellant placed several phone calls during a period of
about 26 minutes, apparently without success. The district court found that appellant
indicated that he was finished using the phone when he said, “I don’t know if I can reach
an attorney at this hour.” The officer asked appellant if he would take a breath test, and
appellant asked what would happen if he refused. In response, the officer read the portion
of the advisory that explains that Minnesota law requires appellant to take a test and that it
is a crime to refuse to take the test. The officer then asked appellant again if he would take
the breath test, and appellant agreed to take it, responding, “I suppose, yeah, I guess.”
A test operator then administered a DataMaster breath test, which indicated that
appellant’s blood alcohol concentration was 0.15. The officer certified that there was
probable cause to believe that appellant had violated Minn. Stat. § 169A.20 (driving while
impaired), and respondent Commissioner of Public Safety subsequently revoked
appellant’s driver’s license. Appellant petitioned the district court to rescind the
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revocation. After an implied-consent hearing, the district court sustained the revocation,
concluding that the stop, seizure, and arrest were lawful and that appellant voluntarily
consented to the breath test. This appeal followed.
DECISION
I. Basis for investigatory stop
Appellant argues that the district court erred when it refused to suppress evidence
obtained from the unlawful stop of appellant’s vehicle. Appellant contends that the district
court clearly erred in finding the officer’s testimony credible.
The United States Constitution guarantees the “right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV; see also Minn. Const. art. I, § 10 (guaranteeing the same).
Warrantless searches are per se unreasonable, subject to a few exceptions. State v. Othoudt,
482 N.W.2d 218, 222 (Minn. 1992). A police officer may conduct a limited investigatory
stop of a motor vehicle if the officer has a “particularized and objective basis for suspecting
the particular person stopped of criminal activity.” State v. Anderson, 683 N.W.2d 818,
822-23 (Minn. 2004) (quotation omitted). A reasonable, articulable suspicion exists if, “in
justifying the particular intrusion the police officer [is] able to point to specific and
articulable facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).
The reasonable-suspicion standard is not high, but the suspicion must be “something
more than an unarticulated hunch,” State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007)
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(quotation omitted), and more than an “inchoate and unparticularized suspicion,” State v.
Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotation omitted). Even a minor
violation of traffic law can establish a particularized, objective basis for an investigatory
stop. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
“We review a district court’s determination regarding the legality of an investigatory
traffic stop and questions of reasonable suspicion de novo.” Wilkes v. Comm’r of Pub.
Safety, 777 N.W.2d 239, 242-43 (Minn. App. 2010). Findings of fact are reviewed for
clear error. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). A finding of fact is clearly
erroneous only when the court is left with the “definite and firm conviction that a mistake
has been committed.” Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 440 (Minn.
2002) (quotation omitted). “Due regard is given the district court’s opportunity to judge
the credibility of witnesses.” Snyder v. Comm’r of Pub. Safety, 744 N.W.2d 19, 22 (Minn.
App. 2008).
The district court found that the police officer “clearly and credibly testified that
[appellant’s] high beam lights did temporarily blind and impair his sight.” On this basis,
the district court found that the police officer reasonably concluded that appellant had
violated Minn. Stat. § 169.61(b) (2014), and that this violation provided justification for
the investigatory stop. Minn. Stat. § 169.61(b) provides that “[w]hen the driver of a vehicle
approaches a vehicle within 1,000 feet, such driver shall use a distribution of light, or
composite beam, so aimed that the glaring rays are not projected into the eyes of the
oncoming driver.” Id. But the statute “does not prohibit drivers from momentarily flashing
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their high beams at oncoming traffic, so long as the flashing is brief and conducted in such
a manner that it does not blind or impair other drivers.” Sarber v. Comm’r of Pub. Safety,
819 N.W.2d 465, 471-72 (Minn. App. 2012).
Appellant argues that, given the speed at which his car and the police officer’s car
converged, the flash of appellant’s bright headlights was so brief that it could not have
impaired the police officer’s vision, and therefore it was not a traffic violation under
Sarber. Appellant calculates that he could have flashed his headlights at the officer during
a period of, at most, 1.28 seconds. The district court heard similar evidence and determined
that the police officer credibly testified that appellant’s “extremely bright” lights “just
about blinded” him.
The district court’s findings of fact are not clearly erroneous. Record evidence
exists to support the conclusion that when appellant flashed his headlights, they were bright
enough to impair an oncoming driver’s vision. The district court found that the officer
credibly testified that as appellant’s vehicle crested the hill, appellant switched his
headlights from dim to bright. The officer was within 200 feet of appellant’s vehicle when
appellant switched his lights from dim to bright. Appellant’s headlights could have shone
directly at the police officer given the higher position of the pickup truck’s lights and the
proximity of the two vehicles to one another. The district court did not clearly err in finding
that the officer credibly testified that his vision was momentarily impaired by appellant’s
bright headlights. Nor did it err in determining that the violation—although minor—
formed a particularized, objective basis for the officer’s investigatory stop of appellant.
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Appellant also argues that the officer was not in a legitimate position to observe
appellant’s vehicle crossing the centerline and the fog line because the officer had to break
the speed limit to catch up to appellant. Minnesota law requires law enforcement to adhere
to speed limits unless an officer is responding to an emergency call. Minn. Stat. § 169.17(2014). Here, the officer was responding to what he believed to be a risk to the public, so
he was not required to adhere to the speed limit.
II. Field sobriety tests
Appellant argues that the district court erred by admitting evidence obtained from
field sobriety tests, because the tests are searches that must be supported by probable cause
and a warrant or a warrant exception. We review the district court’s conclusions of law de
novo. Thole v. Comm’r of Pub. Safety, 831 N.W.2d 17, 19 (Minn. App. 2013), review
denied (Minn. July 16, 2013).
Appellant relies on Colorado and Oregon law to support the proposition that field
sobriety tests are full searches subject to the Fourth-Amendment warrant requirement.
Minnesota precedent establishes otherwise, however. An officer needs only reasonable,
articulable suspicion that a driver was driving while impaired before administering field
sobriety tests and PBTs. State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321
(Minn. 1981); see also State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (holding
that administration of field sobriety testing was reasonable, based on an officer’s
observations of odor of alcohol and defendant’s bloodshot and watery eyes); State v. Crane,
766 N.W.2d 68, 75 (Minn. App. 2009) (citing Juncewski for the proposition that “[i]ndicia
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of intoxication give an officer reasonable articulable suspicion that a driver is operating a
vehicle while under the influence”), review denied (Minn. Aug. 26, 2009); State v.
Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (stating that an officer may request a
preliminary breath test on the basis of “specific and articulable facts”), review denied
(Minn. May 16, 1986).
The officer’s observations support reasonable, articulable suspicion that appellant
was driving under the influence of alcohol. The officer testified that appellant failed to
maintain lane position, there was a strong odor of alcohol coming from inside appellant’s
vehicle, appellant’s eyes were bloodshot and watery and his speech was somewhat slurred,
and appellant admitted to consuming alcohol prior to driving.
Appellant argues that Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013), requires
law enforcement to obtain a warrant in drunk-driving investigations whenever doing so
will not significantly undermine the search. But McNeely did not overrule Minnesota law
requiring only articulable suspicion to administer field sobriety tests. McNeely dealt
specifically with the application of the exigent-circumstances exception to a warrantless
blood test. A blood test, “which involve[s] a compelled physical intrusion beneath [a
suspect’s] skin and into his veins,” is subject to the Fourth-Amendment warrant
requirement. McNeely, 133 S. Ct. at 1558. McNeely does not address whether field
sobriety tests are subject to the Fourth-Amendment warrant requirement.
Appellant argues that his consent to the field sobriety tests would have served as a
valid exception to the warrant requirement but that respondent failed to prove that he
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voluntarily consented. We need not reach the question of whether appellant voluntarily
consented, because field sobriety tests and PBTs are not full searches subject to the Fourth-
Amendment warrant requirement. Since no warrant is required for such searches, no
warrant exception is required.
III. Exception to the warrant requirement for a breath test
Appellant argues that evidence from the DataMaster breath test is inadmissible
because the officer did not obtain a search warrant before administering the test, and there
is no proof of an exception to the warrant requirement. The district court concluded that
appellant consented to the breath test, and the court admitted the test results.
A breath test is a search subject to the Fourth Amendment. Skinner v. Ry. Labor
Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13 (1989). Generally, a
warrantless search conducted without probable cause is per se unconstitutional, State v.
Dezso, 512 N.W.2d 877, 880 (Minn. 1994), but a search warrant is not required “if the
subject of the search consents.” State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013).
Consent serves as an exception to the warrant requirement only if the state shows by a
preponderance of the evidence that a defendant’s consent to a search was free and
voluntary. Id. “Whether consent was voluntary is determined by examining 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.” State v. Diede, 795 N.W.2d 836, 846 (Minn.
2011) (quotation omitted); see also Brooks, 838 N.W.2d at 569 (applying the same
analysis). A person does not consent simply by acquiescing to a claim of lawful authority.
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Brooks, 838 N.W.2d at 569. Voluntariness is a question of fact that this court reviews
under the clearly erroneous standard. Diede, 795 N.W.2d at 846.
In this case, the district court conducted a thorough analysis, following Brooks, and
found that appellant voluntarily consented to the breath test. Regarding the “nature of the
encounter,” the district court found that the officer had probable cause to suspect that
appellant was driving while impaired, that there was no evidence that appellant was ever
subject to harsh treatment at the hands of law enforcement, and that appellant was given
the opportunity to contact an attorney (even though his attempts were unsuccessful). The
district court found that the nature of the encounter weighed in favor of the conclusion that
appellant consented. Nothing in the record suggests that this is an erroneous conclusion.
The district court examined “the kind of person the defendant was” and found it
weighed neither for or against a finding that appellant consented. In examining “what was
said,” the district court noted no irregularities in the manner in which the officer read the
implied consent advisory to appellant or in the way appellant responded affirmatively.
Following the reasoning in Brooks, the district court found that the “what was said” factor
weighed in favor of finding that appellant consented. The district court also found that the
circumstances that the Brooks court warned might amount to coercion—repeated police
questioning and long periods in police custody—were not present in appellant’s case, and
therefore the “how it was said” factor weighed in favor of finding that appellant consented
to the breath test.
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Upon review, we find no evidence in the record to suggest that appellant’s consent
“was coerced in the sense that his will had been overborne and his capacity for self-
determination critically impaired.” Brooks, 838 N.W.2d at 571 (quotation omitted). “[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. The district court
did not clearly err in concluding that appellant voluntarily consented to a breath test.
Because the district court did not err in determining that appellant consented to the
breath test, this court need not reach appellant’s argument that the breath test was a
warrantless search that was not justified as a search incident to arrest.
IV. Constitutionality of test-refusal statute
Appellant argues that Minnesota’s test-refusal statute violates his constitutional
right to due process of law and the doctrine of unconstitutional conditions. The
constitutionality of a statute is a question of law that this court reviews de novo. State v.
Ness, 834 N.W.2d 177, 181 (Minn. 2013). Minnesota statutes are presumed constitutional,
and a statute should be upheld “unless the challenging party demonstrates that it is
unconstitutional beyond a reasonable doubt.” Id. at 181-82.
Minnesota’s implied-consent law provides that “any person who drives, operates,
or is in physical control of a motor vehicle within this state or on any boundary water of
this state consents . . . to a chemical test of that person’s blood, breath, or urine for the
purpose of determining the presence of alcohol.” Minn. Stat. § 169A.51, subd. 1(a) (2014).
If a police officer has probable cause to believe that a person has committed a DWI offense
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and the person has been arrested for DWI, the officer may require that person to submit to
a chemical test. Minn. Stat. § 169A.51, subd. 1(b) (2014). At the time a police officer
requests a person to submit to a breath test, the officer must inform the person that
Minnesota law requires them to take the test and that refusal to take the test is a crime.
Minn. Stat. § 169A.51, subd. 2(a) (2014). Minnesota’s test-refusal statute provides that a
person may refuse to submit to testing, and in such a case, “a test must not be given.” Minn.
Stat. § 169A.52, subd. 1 (2014); see also Brooks, 838 N.W.2d at 571 (“If a driver refuses
the test, the police are required to honor that refusal and not perform the test.”).
Appellant argues that Minnesota law unconstitutionally criminalizes his right to
withhold consent to a warrantless search. But the Minnesota Supreme Court and the United
States Supreme Court have held that a warrantless breath test is constitutional under the
search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement. State
v. Bernard, 859 N.W.2d 762, 772 (Minn. 2015), aff’d sub nom. Birchfield v. North Dakota,
No. 14-1468, 2016 WL 3434398 (U.S. June 23, 2016). Applying Bernard, we hold that
Minnesota’s test-refusal statute does not violate appellant’s constitutional right to due
process of law, given that the test at issue here was a warrantless breath test.
Appellant’s argument regarding the doctrine of unconstitutional conditions is
precluded by Bernard and by this court’s precedents.1 The doctrine requires appellant to
establish that the challenged statute authorizes an unconstitutional search. State v. Bennett,
1
The district court apparently did not decide this issue, but appellant did argue in his trial
brief that the statute violates the doctrine of unconstitutional conditions.
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867 N.W.2d 539, 543 (Minn. App. 2015), review denied (Minn. Oct. 28, 2015), cert.
denied, 2016 WL 3496844 (U.S. June 28, 2016). In Bennett, this court held that, under
Bernard, the warrantless breath test the defendant refused would have been a lawful search
incident to arrest and therefore would not have been an unconstitutional search. Bennett,
867 N.W.2d at 543. Because Bernard held that a warrantless breath test would have been
constitutional under the search-incident-to-arrest exception, 859 N.W.2d at 767,
Minnesota’s test-refusal statute does not authorize an unconstitutional search and the
unconstitutional-conditions doctrine does not apply. Bennett, 867 N.W.2d at 543; see also
Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717, 731 (Minn. App. 2014) (holding that
“Minnesota’s implied-consent statute does not violate the unconstitutional-conditions
doctrine by authorizing the commissioner of public safety to revoke the driver’s license of
a person who has been arrested for DWI and has refused to submit to chemical testing”).
Affirmed.
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