This opinion will be unpublished and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
A13-1411
Loren Elton Schwarzwalter, petitioner,
Respondent,
vs.
Commissioner of Public Safety,
Appellant.
Filed July 28, 2014
Reversed
Willis, Judge
Stearns County District Court
File No. 73-CV-10-11704
Sharon R. Osborn, Minneapolis, Minnesota (for respondent)
Lori Swanson, Attorney General, James E. Haase, Assistant Attorney General, St. Paul,
Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Connolly, Judge; and
Willis, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
WILLIS, Judge
In this appeal from rescission of a driver’s-license revocation, appellant
commissioner argues that the district court erred by concluding that respondent did not
voluntarily consent to a warrantless breath test. We reverse.
FACTS
On December 10, 2010, St. Cloud police officer Ryan Priebe stopped a truck driven
by respondent Loren Elton Schwarzwalter for two minor traffic violations. Priebe arrested
Schwarzwalter for driving while impaired (DWI) after he failed a field sobriety test and a
preliminary breath test. Priebe read the Minnesota Implied Consent Advisory to
Schwarzwalter while he was in the squad car, and he agreed to take a breath test, which
showed an alcohol concentration of 0.10. Both Priebe and the Intoxilyzer operator noted
that Schwarzwalter was “cooperative.”
Schwarzwalter petitioned for judicial review of the license revocation, asserting
several grounds for rescission, including a challenge to the Intoxilyzer results, an alleged
violation of his Fourth Amendment rights, and a claim that the implied-consent advisory
was coercive. Before the revocation hearing could be held, the United States Supreme
Court issued its decision in Missouri v. McNeely, in which it held that the natural
dissipation of alcohol is not a per se exigent circumstance that, standing alone, creates an
exception to the Fourth Amendment search-warrant requirement. 133 S. Ct. 1552, 1556
(2013). Relying on McNeely, the district court suppressed the Intoxilyzer results as the
fruit of an unreasonable, warrantless search, and rescinded the revocation of
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Schwarzwalter’s driving privileges. The commissioner appealed from this decision,
alleging that Schwarzwalter consented to the test, an exception to the warrant requirement.
DECISION
When the facts are not disputed, we review a constitutional challenge to a driver’s-
license-revocation determination de novo, as a question of law. Harrison v. Comm’r of
Pub. Safety, 781 N.W.2d 918, 920 (Minn. App. 2010). We will reverse the district court
only if it erroneously interpreted the law. Ellingson v. Comm’r of Pub. Safety, 800 N.W.2d
805, 806 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011).
The district court concluded that (1) a breath test is a search within the meaning of
the Fourth Amendment; (2) the evanescent nature of alcohol does not provide a per se
exigent-circumstances exception to the warrant requirement; (3) consent implied by law is
insufficiently voluntary; and (4) Minnesota law does not recognize a good-faith exception
to the warrant requirement. After the district court issued its order, the Minnesota
Supreme Court released its opinion in State v. Brooks, 838 N.W.2d 563 (Minn. 2013), cert.
denied, 134 S. Ct. 1799 (2014).
In Brooks, the supreme court ruled that DWI chemical testing is a search that
requires a warrant unless an exception applies and that the rapid dissipation of alcohol is
not an exigency that provides a basis for a warrantless search, absent other circumstances.
838 N.W.2d at 567. But the supreme court concluded that a search falls under the consent
exception if the state can show by a preponderance of the evidence that the defendant
“freely and voluntarily consented.” Id. at 568. “Consent to search may be implied by
action, rather than words” and “can be voluntary even if the circumstances of the
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encounter are uncomfortable for the person being questioned.” Id. at 568-69. A court
must consider the totality of the circumstances when deciding whether a person voluntarily
consented to a search. Id. at 568.
The supreme court began its totality-of-the-circumstances analysis by considering
the implied-consent statutory scheme, which requires a peace officer to have probable
cause to believe a person is driving while impaired; to read the implied-consent advisory to
the person, including the information that he is required to take a test and that refusal is a
crime; and to advise the person of his right to consult an attorney before deciding whether
to submit to a test. Id. at 569. If the person refuses a test, no test may be administered. Id.
Here, there is no question that Priebe complied with the statutory requirements;
Schwarzwalter does not contest the stop, nor deny that Priebe properly read the implied-
consent advisory and advised him that he could consult with an attorney.
Next, a court considers “‘the nature of the encounter, the kind of person the
defendant is, and what was said and how it was said.’” Id. (quoting State v. Dezso, 512
N.W.2d 877, 880 (Minn. 1994)). Although Schwarzwalter did not consult with an
attorney, nothing in the record suggests that he was subjected to duress, coercive
questioning, or threatening behavior, or that he was confused about his rights.
The supreme court rejected the argument that the duress of being under arrest could
prevent voluntary consent when an individual “was neither confronted with repeated police
questioning nor . . . asked to consent after having spent days in custody.” Id. at 571.
Schwarzwalter was stopped at 12:47 a.m., the implied-consent advisory was read at 1:09
a.m., and testing was completed at 1:35 a.m. Schwarzwalter’s friend was permitted to
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drive his car home. Schwarzwalter was not handcuffed or questioned at length, and he did
not spend a protracted time in custody.
Schwarzwalter argues that his consent was coerced because the implied-consent
advisory informed him that refusal to submit to chemical testing is a crime. But the
supreme court 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. The supreme court reasoned that the implied-consent advisory makes clear that an
individual has a choice of whether to submit to testing:
While an individual does not necessarily need to know he or
she has a right to refuse a search for the consent to be
voluntary, the fact that someone submits to the search after
being told that he or she can say no to the search supports a
finding of voluntariness.
Id. at 572. The supreme court rejected the contention that “existence of a consequence for
refusing to take a chemical test render[s] the driver’s choice involuntary.” Id. at 570.
Schwarzwalter distinguishes Brooks by asserting that he had never been arrested
before and Brooks clearly was more knowledgeable and aggressive, based on his behavior
and multiple arrests for DWI. But on this record, we observe no evidence of coercion and
conclude that the commissioner sustained the burden of showing that Schwarzwalter
voluntarily consented to submit to a breath test. Therefore, the district court erred when it
rescinded Schwarzwalter’s driver’s-license revocation.
Reversed.
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