This opinion will be unpublished and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
A13-1435
Bryce Edward Ramthun, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed July 21, 2014
Affirmed
Rodenberg, Judge
Wright County District Court
File No. 86-CV-13-826
Charles L. Hawkins, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Bryce Edward Ramthun challenges the district court’s order sustaining
the implied consent revocation of his driver’s license. We affirm.
FACTS
On January 11, 2013 appellant was stopped for speeding by Wright County
Sheriff’s Deputy Travis MacLeod at approximately 2:49 p.m. Deputy MacLeod noticed
that appellant smelled of alcohol and had bloodshot, watery eyes. When Deputy
MacLeod asked appellant whether he had consumed alcohol, appellant admitted
consuming two alcoholic beverages. After appellant submitted to field sobriety tests and
to a preliminary breath test, which revealed an alcohol concentration of .125, Deputy
MacLeod arrested appellant.
At approximately 3:34 p.m., Deputy MacLeod read appellant the implied consent
advisory at the Wright County Jail. Deputy MacLeod informed appellant that refusal to
submit to chemical testing is a crime. He informed appellant that he had the right to
consult with an attorney before submitting to testing. Appellant chose not to contact an
attorney. Deputy MacLeod asked whether appellant would take a breath test. Appellant
replied “sure” but also indicated that he wanted a blood test. Deputy MacLeod replied
that appellant was being offered only a breath test and advised appellant that he could
take a blood test at his own expense. Deputy MacLeod also told appellant that if he did
not submit to a breath test it would be considered a test refusal. The implied consent
advisory was completed at approximately 3:36 p.m., and appellant agreed to a breath test
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at approximately 3:43 p.m. The test indicated an alcohol concentration of .11. Deputy
MacLeod then issued appellant a notice and order of revocation of his driver’s license.
Appellant petitioned for judicial review of the revocation.
The only issue raised at the implied consent hearing was appellant’s contention
that the breath test was illegal under Missouri v. McNeely, 133 S. Ct. 1552 (2013).
Deputy MacLeod and a corrections officer testified. Appellant did not testify. The
district court made its order before our supreme court’s decision in State v. Brooks, 838
N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). The district court
(accurately anticipating the test that would be adopted in Brooks) found that, “under the
totality of the circumstances, . . . [appellant’s] consent [was] voluntary, not coerced.” It
also held that “the voluntariness of [appellant’s] consent was not rendered invalid by his
desire to take a blood test instead of a breath test.” The district court sustained the
revocation of appellant’s driver’s license. This appeal followed, and we stayed the
appeal until after our supreme court’s decision in Brooks. The stay has now been
dissolved.
DECISION
In a civil action to rescind the revocation of driving privileges under the implied
consent law, the commissioner has the burden to demonstrate by a preponderance of the
evidence that revocation is appropriate. Kramer v. Comm’r of Pub. Safety, 706 N.W.2d
231, 235 (Minn. App. 2005). In reviewing a district court’s order sustaining an implied
consent revocation, we will not set aside findings of fact unless they are clearly
erroneous. Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 440 (Minn. 2002). We
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will overturn conclusions of law only when the district court “erroneously construed and
applied the law to the facts of the case.” Dehn v. Comm’r of Pub. Safety, 394 N.W.2d
272, 273 (Minn. App. 1986).
Appellant argues that his consent to the breath test was coerced because Deputy
MacLeod told him that he would be charged with a crime if he refused to provide a
breath sample. Collection and testing of a person’s breath is a search under the Fourth
Amendment to the United States Constitution and therefore 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). A warrantless search is valid when a person
voluntarily consents to it. Brooks, 838 N.W.2d at 568.
The state bears the burden of demonstrating by a preponderance of the evidence
that the driver freely and voluntarily consented to a search. Id. To determine whether
consent was voluntary, the totality of the circumstances must be examined, “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). The nature of the
encounter includes how the police came to suspect the driver was under the influence,
whether police read the driver the implied consent advisory, and whether the driver had
the right to consult with an attorney. Brooks, 838 N.W.2d at 560. A driver’s decision to
take a test is not coerced or extracted “simply because Minnesota has attached the penalty
of making it a crime to refuse the test.” Id. at 570.
The district court conducted the equivalent of a Brooks analysis, despite Brooks
having not yet been decided. We defer to the district court’s factual findings within that
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analysis. See Jasper, 642 N.W.2d at 440. There is ample record support for the district
court’s finding that, based on the totality of the circumstances, appellant’s consent was
voluntary and not coerced. Appellant was read the implied consent advisory and
submitted to testing within one hour of being stopped by Deputy MacLeod. Appellant
was told that he had the right to contact an attorney and chose not to do so. Appellant
signed the implied consent advisory, indicating that he understood it and consented to
taking a breath test, and Deputy MacLeod testified that he believed appellant understood
the advisory. This DWI is not appellant’s first, so he cannot claim that he was unfamiliar
with the implied consent process at the time of testing. There is nothing in this record to
indicate that appellant “was coerced in the sense that his will had been overborne and his
capacity for self-determination critically impaired.” See Brooks, 838 N.W.2d at 571.1
Appellant contends that his expression of a preference for a blood test amounted to
a clear expression of his refusal to consent to a breath test. But close examination of the
record supports the district court’s finding that appellant’s consent to the breath test was
voluntary and not coerced. The record indicates that, after Deputy MacLeod explained to
appellant that he could not choose the type of test he would take, appellant thereafter
expressed his willingness to take a breath test. The district court’s totality-of-the-
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Deputy MacLeod’s having required a breath test rather than a blood test does not render
appellant’s consent coerced. According to statute, a peace officer may require a chemical
test to be a breath test. Minn. Stat. § 169A.51, subd. 3 (2012). And Minnesota caselaw
has long recognized an officer’s ability to require that the method of testing be of an
arrestee’s breath sample. See, e.g., Meyers v. Comm’r of Pub. Safety, 379 N.W.2d 219,
221 (Minn. App. 1985); Forrest v. Comm’r of Pub. Safety, 366 N.W.2d 371, 372 (Minn.
App. 1985), review denied (Minn. June 27, 1985); Carlson v. Comm’r of Pub. Safety, 357
N.W.2d 391, 392 (Minn. App. 1984), review denied (Minn. Mar. 6, 1985).
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circumstances analysis is thorough and supported by the record. Its findings are not
clearly erroneous, and it properly applied the law.
Affirmed.
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