Steven Paul Scheiterlein 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This opinion will be unpublished and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
A13-1929
Steven Paul Scheiterlein, petitioner,
Respondent,
vs.
Commissioner of Public Safety,
Appellant.
Filed July 7, 2014
Reversed
Reilly, Judge
Stearns County District Court
File No. 73-CV-13-4472
Steven Paul Scheiterlein, Rice, Minnesota (pro se respondent)
Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul
Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Stauber, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
REILLY, Judge
Appellant Minnesota Commissioner of Public Safety appeals the district court’s
rescission of respondent Steven Scheiterlein’s driver’s license revocation after it
concluded that respondent’s consent to the breath test was coerced. We reverse.
FACTS
Around 2:16 a.m. on April 7, 2013, Officer Megan McDonald, a police officer
with the St. Cloud Police Department, noticed a vehicle driving without its taillights
illuminated. Officer McDonald initiated a traffic stop and learned that respondent was
the driver of the vehicle. Officer McDonald noted that respondent’s eyes were
“bloodshot, watery, and glassy”; he smelled of alcohol; and he appeared confused when
she asked him why it took so long for him to pull over once she had activated her
emergency lights. Respondent told Officer McDonald that he had drunk four or five
beers that night.
Officer McDonald then administered three field sobriety tests, all of which
respondent failed. Respondent agreed to take a preliminary breath test (PBT), and his test
result was .180. Officer McDonald arrested respondent for DUI and brought him to the
Stearns County jail. At 3:06 a.m., Officer McDonald began reading respondent the
Minnesota implied-consent advisory, which states that refusal to take a test to determine
whether a person is under the influence of alcohol is a crime and that a person has a right
to consult with an attorney before deciding whether to submit to the test. Respondent
indicated that he understood what Officer McDonald had explained and wished to consult
his personal attorney. Respondent used his cell phone to call his attorney several times
but did not receive an answer. Respondent then used a phonebook to find, call, and speak
with an attorney. After doing so, respondent indicated he would take a breath test. The
implied-consent advisory was finished at 3:47 a.m., respondent took a breath test at
4:07 a.m., and his test result was .17.
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Appellant revoked respondent’s driver’s license under Minn. Stat. § 169A.52,
subd. 4 (2012), and respondent subsequently sought rescission of the revocation. An
implied-consent hearing was held on July 16, 2013, where respondent did not appear and
appellant entered Officer McDonald’s investigative report, the implied-consent advisory
read to respondent, and respondent’s breath-test results into evidence without objection.
The parties submitted the issue on the briefs.
The district court rescinded the revocation of respondent’s driver’s license. The
district court, relying on this court’s opinion in State v. Netland, 762 N.W.2d 202 (Minn.
2009), abrogated in part by Missouri v. McNeely, 133 S. Ct. 1552 (2013), as recognized
in State v. Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014),
concluded that respondent’s consent to the breath test was coerced because a criminal
sanction was attached to the refusal to submit to the test. Consequently, it rescinded the
revocation of respondent’s driver’s license.
This appeal follows.
DECISION
Appellant argues several bases for the admission of respondent’s breath test.
Because we conclude that, under the totality of the circumstances, respondent consented
to the test, we do not reach appellant’s other arguments.
Appellant contends the district court erred by determining respondent’s consent to
the breath test was coerced. Appellant does not challenge the facts as found by the
district court. “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
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(Minn. App. 2004). We must “independently analyze the undisputed facts to determine
whether evidence resulting from the search should be suppressed.” Id.The United States and Minnesota Constitutions guarantee “the right of the people
to be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const.
amend. IV; Minn. Const. art. I, § 10. A breath test constitutes a search under the Fourth
Amendment. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402,
1413 (1989). Searches conducted without a warrant are generally unreasonable, unless
an exception to the warrant requirement applies. State v. Flowers, 734 N.W.2d 239, 248
(Minn. 2007). Consent is such an exception. Schneckloth v. Bustamonte, 412 U.S. 218,
219, 93 S. Ct. 2041, 2043-44 (1973); State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011).
“For a search to fall under the consent exception, the State must show by a preponderance
of the evidence that consent was given freely and voluntarily.” Diede, 795 N.W.2d at
846. In determining whether consent was voluntary, we examine “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. Harris, 590 N.W.2d 90, 102 (Minn.
1999) (quotation omitted). “[C]onsent can be voluntary even if the circumstances of the
encounter are uncomfortable for the person being questioned.” Brooks, 838 N.W.2d at
569.
Respondent argued to the district court that he did not consent to the test because
the “choice” between whether to submit to the test or be charged with test refusal was not
really a choice at all because the consequence of refusing to take the test was a criminal
sanction. The Minnesota Supreme Court rejected this argument in Brooks, 838 N.W.2d
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at 570, when it stated that “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.”
Therefore, the district court erred by concluding that respondent’s consent was not free
and voluntary simply because he agreed to take the test after being read the implied-
consent advisory.
“Whether consent is voluntary is determined by examining the totality of the
circumstances.” Brooks, 838 N.W.2d at 568. The record indicates that respondent was
arrested for DUI after he failed three field sobriety tests and a PBT indicated that his
alcohol concentration was .180. These facts gave Officer McDonald probable cause to
arrest respondent and to administer the implied-consent advisory. The record shows that
Officer McDonald read respondent the implied-consent advisory, and respondent
indicated that he understood it. Respondent then said he wanted to speak with an
attorney and, after several phone calls, was able to consult with one. “[T]he ability to
consult with counsel about an issue supports the conclusion that a defendant made a
voluntary decision.” Id. at 572. He then agreed to take a breath test, which registered an
alcohol concentration of .17. The record demonstrates that respondent was not subjected
to repeated police questioning, and less than an hour elapsed between the time respondent
was stopped and when Officer McDonald began reading the implied-consent advisory.
See id. at 571 (noting that repeated police questioning or days in custody are factors
weighing against voluntary consent). In addition, respondent did not provide any
additional facts supporting his contention that he was coerced into taking the test. Under
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the totality of the circumstances, respondent consented to the test. We therefore reverse
the district court’s order rescinding the revocation of respondent’s driver’s license.
Reversed.
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