This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-1953

 

State of Minnesota,
Respondent,

vs.

Douglas Charles Hendricks,
Appellant.

 

Filed  November 20, 2007

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 06029544

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Jason T. Hutchison, Steiner & Curtiss, P.A., 1011 First Street South, Wells Fargo Bank Building, Suite 400, Hopkins, MN  55343 (for respondent)

 

Daniel L. Gerdts, Brink & Gerdts, P.A., Suite 110, TriTech Center, 331 Second Avenue South, Minneapolis, MN  55401 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a third-degree driving-while-impaired (DWI) conviction, appellant argues that he did not voluntarily consent to providing a breath sample for testing.  We affirm.

FACTS

            In March 2006, Officer Pilon of the Hopkins Police Department stopped and arrested appellant Douglas Charles Hendricks for DWI.[1]  Pilon brought Hendricks to the police station to obtain a breath sample from Hendricks.  At the station, Pilon read Hendricks the implied-consent advisory, which included the statements, “Minnesota law requires you to take a test to determine if you are under the influence of alcohol.  Refusal to take a test is a crime.”  Hendricks agreed to take the test because he did not want to be charged with another crime.  The parties agree that Hendricks’s Intoxilyzer result indicated an alcohol concentration above the legal limit and that Hendricks had a DWI conviction in 2002. 

            Hendricks was charged with third-degree DWI.  See Minn. Stat. § 169A.20, subd.  1(5) (alcohol concentration above .08) (2004).  At the omnibus hearing, Hendricks moved to suppress the Intoxilyzer evidence, arguing that he was coerced into providing a breath sample because Pilon told him that it was a crime to refuse to test.  The district court found that Hendricks voluntarily consented to providing a breath sample and denied Hendricks’s motion to suppress. 

            Hendricks submitted his case to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found Hendricks guilty of third-degree DWI for driving with an alcohol concentration above .08.  See Minn. Stat. § 169A.20, subd. 1(5).  The district court sentenced Hendricks, and this appeal followed.

D E C I S I O N

            Hendricks argues that his breath sample was illegally seized without voluntary consent.  “When reviewing pretrial orders on motions to suppress evidence, [appellate courts] may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).    

[I]nvoluntariness of a consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person being questioned.  Rather, it is at the point when an encounter becomes coercive, when the right to say no to a search is compromised by a show of official authority, that the Fourth Amendment intervenes.  Consent must be received, not extracted.

 

State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).  “‘Voluntariness’ is a question of fact and it varies with the facts of each case.  The test is the totality of the circumstances.”  Id.  (citing Schneckloth v. Bustamonte, 412 U.S. 218, 249, 93 S. Ct. 2041, 2059 (1973)).  When examining the totality of the circumstances, appellate courts consider “the nature of the encounter, the kind of person the defendant is, and what was said and how it was said.”  Id.  The burden is on the state to demonstrate that the defendant’s consent was voluntary.  Id.

            Hendricks argues that because he was under arrest and detained at the police station when Pilon read the implied-consent advisory, his consent to providing a breath sample was not voluntary under the totality of the circumstances.  Quoting State v. High, 287 Minn. 24, 27, 176 N.W.2d 637, 639 (1970), Hendricks argues that “consent to search obtained subsequent to an arrest will be less readily inferred than consent obtained prior to an arrest since, once arrested, a person becomes more susceptible to police duress and coercion.”  But in High, the challenged consent to search an automobile was given by the defendant’s husband, who, along with the defendant, had been detained by police in Nebraska and jailed for three days before consenting to the search and who two days earlier had consented to a search of the automobile by officers from Iowa.  Id. at 27-28, 176 N.W.2d at 638.  These circumstances are easily distinguishable from the present case, where Hendricks was in custody for less than two hours when he consented to the test. 

            Hendricks also argues that the statement in the implied-consent advisory that Minnesota law requires a test was misleading because a person can refuse a test, but the advisory did not inform him that he could refuse.  Hendricks contends that saying that Minnesota law requires a test suggests that a driver has no choice about taking a test, which, he contends, is incorrect because a driver has a choice about taking a test.

            If it were read in isolation, the statement that Minnesota law requires a test might be misleading because when a driver refuses to take a test, the driver is not forced to take a test, and instead, the refusal is an offense for which the driver may be prosecuted.  But this statement was not read to Hendricks in isolation; it was read as part of the complete implied-consent advisory.  The next sentence in the advisory that was read to Hendricks stated that “[r]efusal to take a test is a crime.”  This sentence implies that a driver may refuse to test but warns that doing so is a crime.  We are not persuaded that the advisory misled Hendricks into believing that he did not have a choice to refuse to test rather than informing him that he could refuse to test, but if he refused, he would be committing a crime.

            In Dezso, the supreme court found that an officer’s actions were coercive when “[t]he officer’s questions, though couched in nonauthoritative language, were official and persistent, and were accompanied by the officer’s body movement in leaning over towards the defendant seated next to him.”  512 N.W.2d at 881.  Nothing in the record indicates that Pilon was persistent with his request for a breath sample or that Pilon was intimidating or intrusive.  Pilon simply read the implied-consent advisory, and Hendricks does not allege any misconduct by Pilon.

            Furthermore, when Hendricks asked to speak with an attorney about whether to provide a breath sample, Pilon provided Hendricks with a telephone, and Hendricks made several telephone calls.  When Hendricks was not able to contact an attorney, he provided a breath sample. 

            Based on our review of the totality of the circumstances, we conclude that Pilon’s request for a breath sample was not “compromised by a show of official authority,” and the district court did not err when it determined that Hendricks voluntarily provided a breath sample.  See State v. Hanley, 363 N.W.2d 735, 739 (Minn. 1985) (determining that an officer’s statement that “a search warrant would be or could be obtained on the premises” was not impermissibly coercive).

            Affirmed.