This opinion will be unpublished and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
A13-0818
State of Minnesota,
Respondent,
vs.
Danielle Lynn DeMarais,
Appellant.
Filed July 21, 2014
Affirmed
Peterson, Judge
Mille Lacs County District Court
File No. 48-CR-11-2410
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Janice S. Jude, Mille Lacs County Attorney, Tara Christel Ferguson Lopez, Assistant
County Attorney, Milaca, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Andrew Schmitz,
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Schellhas, Judge; and
Connolly, Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In this appeal from a conviction of gross-misdemeanor driving while impaired
(DWI), appellant argues that the district court erred in admitting the alcohol-
concentration evidence obtained from appellant's breath test when the state did not
establish an exception to the warrant requirement. Because appellant waived this issue
by failing to raise it before the district court, we affirm.
FACTS
Appellant Danielle Lynn DeMarais and three of her friends were sitting inside
appellant’s car, which was parked in the driveway of a residence. Appellant was sitting
in the driver’s seat drinking a beer. Mille Lacs County Sheriff’s Deputy Mitch Lawler
drove by the residence, which was in foreclosure. Because foreclosure properties are
common targets for crimes, Lawler stopped to investigate.
Lawler walked up to the driver’s side of the car, and appellant rolled down the
window. Lawler smelled a strong odor of alcohol coming from appellant. Appellant
admitted that she had been drinking that evening and that she drove the vehicle to the
residence. Appellant exhibited numerous signs of impairment when performing field
sobriety tests.
Lawler arrested appellant and brought her to jail. At the jail, appellant admitted
that she was feeling the effects of alcohol. After Lawler read appellant the implied-
consent advisory, she submitted to a breath test, which showed an alcohol concentration
of .15.
Appellant was charged with two counts of third-degree gross-misdemeanor DWI:
being in physical control of a motor vehicle while under the influence of alcohol and
being in physical control of a motor vehicle with an alcohol concentration of .08 or more
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within two hours of driving.1 Appellant waived all omnibus issues except any relating to
the admissibility of her statement to police. The case was tried to a jury. Appellant’s
breath-test result was admitted into evidence without objection. The jury found appellant
guilty of both DWI counts. The district court sentenced appellant on the offense of being
in physical control of a motor vehicle while impaired. This appeal followed.
DECISION
After appellant was sentenced and before this appeal was filed, the Supreme Court
issued its opinion in Missouri v. McNeely, holding that “natural metabolization of alcohol
in the bloodstream [does not] present[] a per se exigency that justifies an exception to the
Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-
driving cases.” 133 S. Ct. 1552, 1556 (2013). Appellant argues that, under McNeely, the
district court erred in admitting her breath-test result when the state did not establish that
an exception to the warrant requirement applied.
Generally, a defendant’s failure to bring a suppression motion results in waiver:
Defenses, objections, issues, or requests that can be
determined without trial on the merits must be made before
trial by a motion to dismiss or to grant appropriate relief. The
motion must include all defenses, objections, issues, and
requests then available. Failure to include any of them in the
motion constitutes waiver . . . .
Minn. R. Crim. P. 10.01, subd. 2.
A defendant who fails to object before trial to the admission of evidence allegedly
obtained in violation of her constitutional rights will generally be deemed to have waived
1
Appellant was also charged with violating the open-container law, but that charge was
dismissed before trial.
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the issue. State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 550-51, 141 N.W.2d 3, 11
(1965); see also State v. Pederson–Maxwell, 619 N.W.2d 777, 780 (Minn. App. 2000)
(noting that “[i]n order for constitutional challenges to the admission of evidence to be
timely, objections to such evidence must be raised at the omnibus hearing” in the form of
a pretrial motion to suppress); State v. Brunes, 373 N.W.2d 381, 386 (Minn. App. 1985)
(holding that defendant waived his constitutional objection to admission of evidence by
failing to raise the issue at the omnibus hearing), review denied (Minn. Oct. 11, 1985).
But the court can grant relief from the waiver for good cause. Minn. R. Crim. P. 10.01,
subd. 2.
The purpose of the waiver rule is to afford the state the opportunity to present
evidence and argument refuting a defendant’s suppression claim. State v. Needham, 488
N.W.2d 294, 296 (Minn. 1992); Brunes, 373 N.W.2d at 386. As a result of appellant’s
failure to raise the Fourth Amendment issue before the district court, the state was denied
that opportunity, and the record is not sufficiently developed for appellate review.
Appellant argues that the doctrine of waiver should not be applied to this case
because McNeely was not decided until after appellant was sentenced. We recognize that
McNeely abrogated a Minnesota Supreme Court case holding that the natural dissipation
of alcohol in the bloodstream established a per se exigency that alone justified an
exception to the warrant requirement for nonconsensual blood testing in DWI cases.
McNeely, 133 S. Ct. at 1558 & n.2. But that does not change the need for a record that is
sufficiently developed for appellate review.
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Appellant argues that this court should decline to apply waiver in the interests of
justice. But appellant has not shown good cause for granting relief from waiver. This is
not a case in which applying waiver would “perpetuate a substantial and essential
injustice in the sense that as a result an innocent [person] may have been convicted.”
Tahash, 272 Minn. at 551, 141 N.W.2d at 11.
Even without the breath-test result, there was strong evidence that appellant was in
physical control of a motor vehicle while under the influence of alcohol. Appellant was
seated in the driver’s seat and admitted that she drove to the residence. Lawler smelled a
strong odor of alcohol coming from appellant, and appellant exhibited numerous signs of
impairment when performing field sobriety tests. Appellant also admitted that she had
been drinking and that she was feeling the effects of alcohol.
Appellant waived the issue of the admissibility of her breath-test result by failing
to raise it before the district court and has not shown good cause for relief from that
waiver.
Affirmed.
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