This opinion will be unpublished and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
A13-1518
Alex Michael Bistodeau, petitioner,
Respondent,
vs.
Commissioner of Public Safety,
Appellant.
Filed July 21, 2014
Reversed
Reilly, Judge
Stearns County District Court
File No. 73-CV-12-11703
Brian N. Steele, Steele Law Offices, PLLC, Minnetonka, Minnesota (for respondent)
Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul,
Minnesota (for appellant)
Considered and decided by Reilly, Presiding Judge; Ross, Judge; and Bjorkman,
Judge.
UNPUBLISHED OPINION
REILLY, Judge
Appellant commissioner of public safety appeals the district court’s rescission of
respondent Alex Michael Bistodeau’s driver’s license revocation. On appeal, the
commissioner argues that the district court erred when it concluded that Bistodeau’s
consent to a breath test was not voluntary. Bistodeau waived his right to file a brief in
this appeal. Because the record demonstrates that Bistodeau voluntarily consented to the
breath test, we reverse.
FACTS
Although the record is sparse, the facts are undisputed. On December 7, 2012, a
St. Cloud police officer arrested Bistodeau for driving while impaired. The police
initially came into contact with Bistodeau because of an accident. Bistodeau admitted he
was drinking, and operating or in physical control of the car. The officer had probable
cause to believe Bistodeau was under the influence because of the odor of alcoholic
beverage, bloodshot eyes, poor balance, and admission. The officer read Bistodeau the
Minnesota motor vehicle implied-consent advisory, which informed him that Minnesota
law required that he take a test to determine if he was under the influence of alcohol, that
refusal to take a test was a crime, and that he had a right to consult with counsel before
making a decision about taking the test. Bistodeau declined the opportunity to consult
with counsel and agreed to take a breath test. The officer administered a breath test
around 10:00 p.m., and the test revealed an alcohol concentration of .13. The officer did
not obtain a search warrant before administering the breath test. Based on the results of
the breath test, the commissioner subsequently revoked Bistodeau’s driver’s license and
impounded his license plates.
Bistodeau moved the district court to rescind the revocation, arguing that under
Missouri v. McNeely, 133 S. Ct. 1552 (2013), the search of his breath was not within a
per se exception to the warrant requirement and that the commissioner did not prove
either exigent circumstances or valid consent to the search. At the May 14, 2013
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implied-consent hearing, both parties stipulated to the facts and entered two exhibits into
evidence. The parties waived all issues but the McNeely issue. The district court
rescinded the revocation, concluding that no exigent circumstances exception to the
warrant requirement existed and that Bistodeau’s consent to the breath test was coerced.
The commissioner appeals.
DECISION
The United States and Minnesota Constitutions guarantee the right to be secure
against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. 1,
§ 10. A breath test is a search. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616-17,
109 S. Ct. 1402, 1413 (1989). In reviewing the constitutionality of a search, “we
independently analyze the undisputed facts to determine whether evidence resulting from
the search should be suppressed.” Haase v. Comm’r of Pub. Safety, 679 N.W.2d 743,
745 (Minn. App. 2004). Warrantless searches are unreasonable unless the state proves
that an exception to the warrant requirement applies. State v. Flowers, 734 N.W.2d 239,
248 (Minn. 2007).
Consent is an exception to the warrant requirement. State v. Brooks, 838 N.W.2d
563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). For the consent exception
to apply, the state “must show by a preponderance of the evidence that the defendant
freely and voluntarily consented.” Id. Whether consent is voluntary must be determined
on a case-by-case basis and requires an examination of the totality of the circumstances.
State v. Lemert, 843 N.W.2d 227, 233 (Minn. 2014) (citing McNeely, 133 S. Ct. at 1536).
In determining whether consent is voluntary, this court considers the totality of the
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circumstances, “including the nature of the encounter, the kind of person the defendant is,
and what was said and how it was said.” Brooks, 838 N.W.2d at 569.
In the implied-consent context, the nature of the encounter includes why police
suspected that the driver was driving under the influence, how the police requested
submission to the chemical testing, whether the driver was read the implied-consent
advisory, and whether the driver had the opportunity to consult with an attorney. Id. The
district court, which issued its order before the supreme court’s opinion in Brooks, ruled
that because the implied-consent advisory informed Bistodeau that the state criminalized
the refusal to submit to testing, respondent’s consent to chemical testing was coerced.
But the supreme court in Brooks 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.” Id. at 570.
Here, Bistodeau does not challenge the probable cause to arrest him for driving
while intoxicated. It is uncontested that the officer complied with the implied-consent
advisory requirements. The officer read Bistodeau the implied-consent advisory and
asked him whether he wished to consult with an attorney. Bistodeau declined to do so.
The officer then asked Bistodeau whether he would take a breath test, and he agreed to
the test. Furthermore, there is nothing in the record to suggest that Bistodeau was subject
to repeated police questioning or prolonged custody.
Overall, this record indicates that Bistodeau voluntarily consented to the breath
test. Most significant, the only basis for the district court’s finding of coercion was its
legal determination that the weight of the implied-consent advisory is coercive—a
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determination that the supreme court foreclosed in Brooks. Although the record is
limited due to the parties’ stipulations at the implied-consent hearing, there is enough
undisputed evidence in the record such that remand is not warranted. Because
Bistodeau’s consent justified the warrantless search, the district court’s rescission of
Bistodeau’s driver’s license revocation was in error.
The commissioner also raises additional arguments regarding Minnesota’s
implied-consent laws, the reasonableness of the search, and the application of the
exclusionary rule. Because the consent exception to the warrant requirement applies to
the collection of Bistodeau’s breath sample, it is not necessary to consider these
additional arguments.
Reversed.
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