State of Minnesota v. Zachary Michael McGowan

This opinion will be unpublished and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
A14-1850
State of Minnesota,
Respondent,
vs.
Zachary Michael McGowan,
Appellant.
Filed July 13, 2015
Affirmed
Chutich, Judge
Dakota County District Court
File No. 19HA-CR-13-2979
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Henry A. Schaeffer, III, Alina Schwartz, Campbell Knutson P.A., Eagan, Minnesota (for
respondent)
Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville,
Minnesota (for appellant)
Considered and decided by Kirk, Presiding Judge; Connolly, Judge; and Chutich,
Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Zachary McGowan appeals his conviction of third-degree driving while
impaired, arguing that the district court clearly erred by finding that he voluntarily
consented to a breath test. He further argues that the district court erred by concluding
that a Wisconsin operating-while-impaired license revocation could be used to enhance
the charge to third degree. Because the totality of the circumstances shows that
McGowan voluntarily consented to the test and because the Wisconsin and Minnesota
impaired driving statutes are in conformity, we affirm.
FACTS
Around 3:30 a.m. on July 4, 2013, Lieutenant Adam Flynn of the Minnesota State
Patrol saw a car weave in and out of the roadway, drive over several plastic cones
dividing the highway, and cross over the fog line. Lieutenant Flynn conducted a traffic
stop and identified the driver as appellant Zachary McGowan.
Lieutenant Flynn immediately observed indicia of intoxication: he could smell
alcohol and saw that McGowan had watery, glassy eyes. McGowan admitted that he had
been drinking that night. He also told Lieutenant Flynn that he had previously been
arrested for driving while impaired. While McGowan was still in his car, Lieutenant
Flynn told him:
What I’m going to have you do Zach . . . I’m going to have
you hop out and do a couple tests. We’ll see if you’re okay.
If you’re not, I mean, it is what it is. . . . I’m going to be
straight with you, and a straight shooter with you.
***
If you stay like you are and end up getting arrested again I
don’t have any plans of holding you in jail, especially with
the holiday tomorrow. I’m guessing you have better things to
do than spend possibly until next Monday in jail. So long as
you cooperate, I don’t have a problem doing that. You turn
into a problem and that’s a different story.
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McGowan failed the field sobriety tests and a preliminary breath test, and
Lieutenant Flynn arrested him for driving under the influence. Before handcuffing
McGowan, Lieutenant Flynn told him:
Your prior that you told me that you have . . . everything goes
as is, that’d be a third-degree DWI. And, what that means is
technically you could stay in jail, I mean it’s a gross
misdemeanor. But as I told you up front at the car, you’ve
been square with me the entire time, and I don’t think you’re
going to change. But I have no intentions of keeping you in
jail, so, as long as you stay like you are. If you act up—
again, like I told you before—different story, different set of
rules.
Before taking McGowan to jail, Lieutenant Flynn retrieved McGowan’s phone
and wallet from the car for him and moved McGowan’s car off the roadway so that
McGowan could call someone to pick it up and thus avoid a towing fee. Although
Lieutenant Flynn could have taken McGowan to the jail in Hastings, he instead brought
McGowan to the jail in Lakeville because it was closer to McGowan’s residence.
Once they arrived at the Lakeville facility, Lieutenant Flynn read McGowan the
implied-consent advisory. McGowan said that he understood it, declined the opportunity
to consult an attorney, and agreed to take a breath test. The results yielded an alcohol
concentration of .15. Because McGowan had an impaired driving incident in Wisconsin
in 2008, he was charged with two counts of third-degree driving while impaired and one
count of failure to stay within a single lane of traffic. See Minn. Stat. §§ 169.18, subd.
7(a), 169A.20, subd. 1(1), (5) (2014).
McGowan moved to dismiss the charges and suppress the evidence. Relevant to
this appeal, McGowan argued that the results of his breath test should be suppressed
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because he did not validly consent to the breath test and because his Wisconsin license
revocation could not be used to enhance the charges. Lieutenant Flynn and McGowan
testified at the hearing. The district court denied McGowan’s motions.
McGowan agreed to stipulate to the prosecution’s case to obtain review of the two
pretrial rulings under Minnesota Rule of Criminal Procedure 26.01, subdivision 4. In
exchange, the state dismissed the charges of driving under the influence and failure to
remain in a single lane. The district court convicted McGowan of one count of third-
degree driving while impaired, alcohol concentration above .08. McGowan appealed.
DECISION
I. Consent
McGowan first makes several arguments as to why his consent to a breath test was
not voluntary. Our review of the totality of the circumstances does not lead to the
conclusion that the district court’s finding of voluntary consent was clearly erroneous.
The United States and Minnesota Constitutions prohibit unreasonable searches.
U.S. Const. amend. IV; Minn. Const. art. I, § 10. A warrantless search is presumptively
unreasonable unless an exception to the warrant requirement applies. State v. Diede, 795
N.W.2d 836, 846 (Minn. 2011).
One exception to the warrant requirement is consent. State v. Brooks, 838 N.W.2d
563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). Whether consent was
voluntary is a question of fact reviewed under the “clearly erroneous” standard: a finding
of voluntariness is clearly erroneous if the court is left with the definite and firm
conviction that a mistake occurred. Diede, 795 N.W.2d at 846-47. The voluntariness of
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consent is determined by considering the totality of the circumstances. Brooks, 838
N.W.2d at 568. The totality of the circumstances includes the nature of the encounter,
what was said and how it was said, and the kind of person the defendant is. Diede, 795
N.W.2d at 846. Consent is not involuntary merely because the encounter is
uncomfortable. Id.
McGowan’s primary argument regarding consent involves the statements made by
Lieutenant Flynn before and after the field sobriety tests. McGowan claims that these
statements induced his submission to the later breath test. But viewing these statements
in the full context of the stop, however, we conclude that they did not induce McGowan
to submit to the tests. Lieutenant Flynn spoke in a respectful and professional tone
throughout the entire transaction with McGowan. McGowan, a well-educated person,
was equally respectful. Lieutenant Flynn explained the situation to McGowan and the
possible outcomes. And after arresting McGowan, Lieutenant Flynn extended several
unrequired courtesies to him: moving McGowan’s car to avoid a towing fee; retrieving
McGowan’s cell phone and wallet from the car; and taking McGowan to a more
convenient facility.
As to the specific statements with which McGowan takes issue, Lieutenant Flynn
testified that by “cooperate,” he meant that he did not want McGowan to attempt to
assault him or to damage any property. Indeed, these statements occurred approximately
half an hour before they arrived at the police station and the breath sample was taken.
Although McGowan said that he understood “cooperate” to mean that he would be
released if he complied with all of Lieutenant Flynn’s requests, the district court
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implicitly rejected this testimony, finding that “it is highly speculative to conclude that
McGowan thought cooperate meant he could not say no to the request to provide a breath
sample.” The district court noted that “Lieutenant Flynn was candid, honest, and
respectful in the way he conducted himself throughout the encounter. In fact, based on
the interaction with Lieutenant Flynn, McGowan could easily have clarified what
‘cooperate’ meant at any point in the process.” Our review of the video leads us to
determine that this finding is not clearly erroneous, and accordingly this argument fails.
McGowan’s remaining arguments regarding consent have been foreclosed by
Brooks. McGowan claims that he did not consent because he merely submitted to legal
authority, relying on Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788 (1968).
But this precise argument was rejected in Brooks and fails here as well. See 838 N.W.2d
at 571 (“Bumper therefore does not support Brooks’s argument that the State unlawfully
coerced his consent.”).
McGowan next argues that his arrest weighs against a finding of voluntary
consent. Courts are less willing to find that a defendant voluntarily consented to a search
after an arrest because a person in custody “becomes more susceptible to police duress
and coercion.” Id. at 571 (quotation omitted). McGowan supports this argument by
relying on State v. High, 287 Minn. 24, 176 N.W.2d 637 (1970). But the supreme court
in Brooks distinguished High with reasoning that applies here: “[T]he fact that [the
defendant] was under arrest is not dispositive here. [The defendant] was neither
confronted with repeated police questioning nor was he asked to consent after having
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spent days in custody.” 838 N.W.2d at 571. McGowan was also not confronted with
repeated questioning or confined for days, and therefore this argument fails.
McGowan further contends that his consent was involuntary because he was not
informed that he could refuse the search. But “an individual does not necessarily need to
know he or she has a right to refuse a search for consent to be voluntary.” Id. at 572.
Although Lieutenant Flynn did not explicitly tell McGowan that he could refuse, the
implied-consent advisory informed McGowan four times that he had a “decision” to
make. A reading of the implied-consent advisory makes clear to a suspect that he has a
choice of whether to submit to testing. Id. Although McGowan testified that he did not
understand that he could make a decision, the district court did not credit this testimony.
McGowan finally seeks to distinguish his situation from that in Brooks by noting
that Brooks was a repeat offender who had the benefit of counsel. This argument is
meritless. To be sure, Brooks may have had more previous driving-while-impaired
charges than McGowan. See id. at 565 (noting that the case involved three separate
incidents). But McGowan himself is a repeat offender: his charge was enhanced to third-
degree driving while impaired based on a previous operating-while-intoxicated
conviction in Wisconsin. He was familiar with the legal process following an arrest on
charges of drunk driving. And while Brooks may have consulted with counsel where
McGowan did not, that fact was not dispositive in Brooks; it merely reinforced the
finding of voluntary consent. Id. at 571.
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Because the totality of the circumstances does not give rise to a definite and firm
conviction that a mistake was made, the district court’s finding of voluntary consent is
not clearly erroneous.
II. Enhancement
McGowan next argues that the district court erred by concluding that his prior
Wisconsin license revocation could be used as an aggravating factor to enhance his
current driving-while-impaired charge to third degree. He claims that the two states’
statutes are not in conformity. We disagree.
Applying the driving-while-impaired statutes to undisputed facts involves a
question of law and is reviewed de novo. State v. Loeffel, 749 N.W.2d 115, 116 (Minn.
App. 2008), review denied (Minn. Aug. 5, 2008). Under Minnesota law, a person is
guilty of third-degree driving while impaired if one aggravating factor was present when
the current offense occurred. Minn. Stat. § 169A.26, subd. 1 (2014). A “qualified prior
impaired driving incident” within 10 years of the current offense is considered an
aggravating factor. Minn. Stat. § 169A.03, subd. 3 (2014).
A “qualified prior impaired driving incident” includes an earlier impaired driving
conviction and loss of license under Minnesota law or a statute or ordinance from another
state in conformity with Minnesota law. Id., subds. 20-22 (2014). To determine whether
another state’s statute is in conformity with Minnesota law, “[i]t is the prohibited
behavior which must be in conformity, not the evidentiary standards by which that act is
proven.” State v. Geyer, 355 N.W.2d 460, 461 (Minn. App. 1984).
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McGowan does not argue that his Wisconsin license revocation is not a prior loss
of license for impaired driving. Instead, he claims that the Wisconsin statute is not in
conformity with Minnesota law because Wisconsin does not provide a statutory right to
counsel before a chemical test.
In Minnesota, a person has the right to a reasonable opportunity to obtain legal
advice before submitting to chemical testing. Friedman v. Comm’r of Pub. Safety, 473
N.W.2d 828, 835 (Minn. 1991); see also Minn. Stat. § 169A.51, subd. 2 (2014) (stating
that a person must be informed of the right to consult with an attorney). But, even though
Wisconsin does not provide such a right, the Minnesota Supreme Court addressed and
rejected a similar assertion in State v. Schmidt, 712 N.W.2d 530 (Minn. 2006),
concerning a South Dakota law.
In Schmidt, the defendant argued that his South Dakota convictions of impaired
driving could not be used to enhance his Minnesota driving-while-impaired conviction
because he was not given the opportunity in South Dakota to consult with an attorney
before deciding whether to submit chemical tests. Id. at 532. The supreme court rejected
this argument, stating that “Minnesota’s interest in preserving the Friedman right is not
sufficient to prohibit the use of the South Dakota convictions to enhance Schmidt’s DWI
offenses in Minnesota even though the South Dakota convictions were based on
uncounseled test decisions.” Id. at 539. We rejected a similar argument in Loeffel,
holding that a driving-while-impaired charge could be enhanced with a Wisconsin license
revocation, even though the defendant was not given the opportunity to consult with an
attorney before the Wisconsin testing. 749 N.W.2d at 117.
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McGowan claims that neither Schmidt nor Loeffel control because neither
considered whether the foreign statutes were in conformity with Minnesota law. He
attempts to distinguish between the constitutional right to counsel and the statutory right
to counsel. Yet his claim still relies on the argument that driving while impaired cannot
be enhanced by offenses committed in states that did not permit a pre-chemical test right
to counsel, an argument that the Schmidt and Loeffel courts rejected.
Furthermore, we considered and rejected an argument identical to McGowan’s in
State v. Geyer. In Geyer, the defendant argued that an Ohio driving-while-impaired
conviction could not be used to enhance a Minnesota driving-while-impaired conviction
because the states’ implied consent statutes were not in conformity: “Minnesota’s implied
consent statute requires that a person be advised that he may consult with an attorney
before taking a breath, blood or urine test. Ohio’s implied consent statute has no such
requirement.” 355 N.W.2d at 461. But we rejected the defendant’s argument, noting that
other than this difference, the statutes prohibit identical behavior. Id. “It is the prohibited
behavior which must be in conformity, not the evidentiary standards by which that act is
proven.” Id.
Here, the Wisconsin and Minnesota statutes are in conformity because they
prohibit the same behavior: operating a motor vehicle while under the influence or with
an alcohol concentration above the legal limit. Compare Wis. Stat. § 346.63(1)(a), (b)
(2011-12), with Minn. Stat. § 169A.20, subd. 1. And this court has previously stated that
Wisconsin and Minnesota impaired driving statutes are in conformity. See Dempski v.
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Comm’r of Pub. Safety, 520 N.W.2d 532, 533 (Minn. App. 1994); State v. Friedrich, 436
N.W.2d 475, 477 (Minn. App. 1989).
McGowan also argues that the Wisconsin offense cannot be used as an
aggravating factor because he was denied certain fundamental rights, including the right
to a unanimous jury and the right to be proven guilty beyond a reasonable doubt only
upon a plea with a sufficient factual basis. But Schmidt foreclosed this argument when
the supreme court declined to consider the collateral attack of a foreign conviction under
Minnesota law. 712 N.W.2d at 539.
Affirmed.
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