State of Minnesota v. Zachary Michael McGowan

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1850

State of Minnesota,
Respondent,

vs.

Zachary Michael McGowan,
Appellant.

Filed July 13, 2015
Affirmed
Chutich, Judge

Dakota County District Court
File No. 19HA-CR-13-2979

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Henry A. Schaeffer, III, Alina Schwartz, Campbell Knutson P.A., Eagan, Minnesota (for
respondent)

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville,
Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Connolly, Judge; and Chutich,

Judge.

UNPUBLISHED OPINION

CHUTICH, Judge

Appellant Zachary McGowan appeals his conviction of third-degree driving while

impaired, arguing that the district court clearly erred by finding that he voluntarily
consented to a breath test. He further argues that the district court erred by concluding

that a Wisconsin operating-while-impaired license revocation could be used to enhance

the charge to third degree. Because the totality of the circumstances shows that

McGowan voluntarily consented to the test and because the Wisconsin and Minnesota

impaired driving statutes are in conformity, we affirm.

FACTS

Around 3:30 a.m. on July 4, 2013, Lieutenant Adam Flynn of the Minnesota State

Patrol saw a car weave in and out of the roadway, drive over several plastic cones

dividing the highway, and cross over the fog line. Lieutenant Flynn conducted a traffic

stop and identified the driver as appellant Zachary McGowan.

Lieutenant Flynn immediately observed indicia of intoxication: he could smell

alcohol and saw that McGowan had watery, glassy eyes. McGowan admitted that he had

been drinking that night. He also told Lieutenant Flynn that he had previously been

arrested for driving while impaired. While McGowan was still in his car, Lieutenant

Flynn told him:

What I’m going to have you do Zach . . . I’m going to have
you hop out and do a couple tests. We’ll see if you’re okay.
If you’re not, I mean, it is what it is. . . . I’m going to be
straight with you, and a straight shooter with you.
***
If you stay like you are and end up getting arrested again I
don’t have any plans of holding you in jail, especially with
the holiday tomorrow. I’m guessing you have better things to
do than spend possibly until next Monday in jail. So long as
you cooperate, I don’t have a problem doing that. You turn
into a problem and that’s a different story.

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 McGowan failed the field sobriety tests and a preliminary breath test, and

Lieutenant Flynn arrested him for driving under the influence. Before handcuffing

McGowan, Lieutenant Flynn told him:

Your prior that you told me that you have . . . everything goes
as is, that’d be a third-degree DWI. And, what that means is
technically you could stay in jail, I mean it’s a gross
misdemeanor. But as I told you up front at the car, you’ve
been square with me the entire time, and I don’t think you’re
going to change. But I have no intentions of keeping you in
jail, so, as long as you stay like you are. If you act up—
again, like I told you before—different story, different set of
rules.

Before taking McGowan to jail, Lieutenant Flynn retrieved McGowan’s phone

and wallet from the car for him and moved McGowan’s car off the roadway so that

McGowan could call someone to pick it up and thus avoid a towing fee. Although

Lieutenant Flynn could have taken McGowan to the jail in Hastings, he instead brought

McGowan to the jail in Lakeville because it was closer to McGowan’s residence.

Once they arrived at the Lakeville facility, Lieutenant Flynn read McGowan the

implied-consent advisory. McGowan said that he understood it, declined the opportunity

to consult an attorney, and agreed to take a breath test. The results yielded an alcohol

concentration of .15. Because McGowan had an impaired driving incident in Wisconsin

in 2008, he was charged with two counts of third-degree driving while impaired and one

count of failure to stay within a single lane of traffic. See Minn. Stat. §§ 169.18, subd.

7(a), 169A.20, subd. 1(1), (5) (2014).

McGowan moved to dismiss the charges and suppress the evidence. Relevant to

this appeal, McGowan argued that the results of his breath test should be suppressed

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because he did not validly consent to the breath test and because his Wisconsin license

revocation could not be used to enhance the charges. Lieutenant Flynn and McGowan

testified at the hearing. The district court denied McGowan’s motions.

McGowan agreed to stipulate to the prosecution’s case to obtain review of the two

pretrial rulings under Minnesota Rule of Criminal Procedure 26.01, subdivision 4. In

exchange, the state dismissed the charges of driving under the influence and failure to

remain in a single lane. The district court convicted McGowan of one count of third-

degree driving while impaired, alcohol concentration above .08. McGowan appealed.

DECISION

I. Consent

McGowan first makes several arguments as to why his consent to a breath test was

not voluntary. Our review of the totality of the circumstances does not lead to the

conclusion that the district court’s finding of voluntary consent was clearly erroneous.

The United States and Minnesota Constitutions prohibit unreasonable searches.

U.S. Const. amend. IV; Minn. Const. art. I, § 10. A warrantless search is presumptively

unreasonable unless an exception to the warrant requirement applies. State v. Diede, 795

N.W.2d 836, 846 (Minn. 2011).

One exception to the warrant requirement is consent. State v. Brooks, 838 N.W.2d

563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). Whether consent was

voluntary is a question of fact reviewed under the “clearly erroneous” standard: a finding

of voluntariness is clearly erroneous if the court is left with the definite and firm

conviction that a mistake occurred. Diede, 795 N.W.2d at 846-47. The voluntariness of

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consent is determined by considering the totality of the circumstances. Brooks, 838

N.W.2d at 568. The totality of the circumstances includes the nature of the encounter,

what was said and how it was said, and the kind of person the defendant is. Diede, 795

N.W.2d at 846. Consent is not involuntary merely because the encounter is

uncomfortable. Id.

McGowan’s primary argument regarding consent involves the statements made by

Lieutenant Flynn before and after the field sobriety tests. McGowan claims that these

statements induced his submission to the later breath test. But viewing these statements

in the full context of the stop, however, we conclude that they did not induce McGowan

to submit to the tests. Lieutenant Flynn spoke in a respectful and professional tone

throughout the entire transaction with McGowan. McGowan, a well-educated person,

was equally respectful. Lieutenant Flynn explained the situation to McGowan and the

possible outcomes. And after arresting McGowan, Lieutenant Flynn extended several

unrequired courtesies to him: moving McGowan’s car to avoid a towing fee; retrieving

McGowan’s cell phone and wallet from the car; and taking McGowan to a more

convenient facility.

As to the specific statements with which McGowan takes issue, Lieutenant Flynn

testified that by “cooperate,” he meant that he did not want McGowan to attempt to

assault him or to damage any property. Indeed, these statements occurred approximately

half an hour before they arrived at the police station and the breath sample was taken.

Although McGowan said that he understood “cooperate” to mean that he would be

released if he complied with all of Lieutenant Flynn’s requests, the district court

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implicitly rejected this testimony, finding that “it is highly speculative to conclude that

McGowan thought cooperate meant he could not say no to the request to provide a breath

sample.” The district court noted that “Lieutenant Flynn was candid, honest, and

respectful in the way he conducted himself throughout the encounter. In fact, based on

the interaction with Lieutenant Flynn, McGowan could easily have clarified what

‘cooperate’ meant at any point in the process.” Our review of the video leads us to

determine that this finding is not clearly erroneous, and accordingly this argument fails.

McGowan’s remaining arguments regarding consent have been foreclosed by

Brooks. McGowan claims that he did not consent because he merely submitted to legal

authority, relying on Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788 (1968).

But this precise argument was rejected in Brooks and fails here as well. See 838 N.W.2d

at 571 (“Bumper therefore does not support Brooks’s argument that the State unlawfully

coerced his consent.”).

McGowan next argues that his arrest weighs against a finding of voluntary

consent. Courts are less willing to find that a defendant voluntarily consented to a search

after an arrest because a person in custody “becomes more susceptible to police duress

and coercion.” Id. at 571 (quotation omitted). McGowan supports this argument by

relying on State v. High, 287 Minn. 24, 176 N.W.2d 637 (1970). But the supreme court

in Brooks distinguished High with reasoning that applies here: “[T]he fact that [the

defendant] was under arrest is not dispositive here. [The defendant] was neither

confronted with repeated police questioning nor was he asked to consent after having

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spent days in custody.” 838 N.W.2d at 571. McGowan was also not confronted with

repeated questioning or confined for days, and therefore this argument fails.

McGowan further contends that his consent was involuntary because he was not

informed that he could refuse the search. But “an individual does not necessarily need to

know he or she has a right to refuse a search for consent to be voluntary.” Id. at 572.

Although Lieutenant Flynn did not explicitly tell McGowan that he could refuse, the

implied-consent advisory informed McGowan four times that he had a “decision” to

make. A reading of the implied-consent advisory makes clear to a suspect that he has a

choice of whether to submit to testing. Id. Although McGowan testified that he did not

understand that he could make a decision, the district court did not credit this testimony.

McGowan finally seeks to distinguish his situation from that in Brooks by noting

that Brooks was a repeat offender who had the benefit of counsel. This argument is

meritless. To be sure, Brooks may have had more previous driving-while-impaired

charges than McGowan. See id. at 565 (noting that the case involved three separate

incidents). But McGowan himself is a repeat offender: his charge was enhanced to third-

degree driving while impaired based on a previous operating-while-intoxicated

conviction in Wisconsin. He was familiar with the legal process following an arrest on

charges of drunk driving. And while Brooks may have consulted with counsel where

McGowan did not, that fact was not dispositive in Brooks; it merely reinforced the

finding of voluntary consent. Id. at 571.

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 Because the totality of the circumstances does not give rise to a definite and firm

conviction that a mistake was made, the district court’s finding of voluntary consent is

not clearly erroneous.

II. Enhancement

McGowan next argues that the district court erred by concluding that his prior

Wisconsin license revocation could be used as an aggravating factor to enhance his

current driving-while-impaired charge to third degree. He claims that the two states’

statutes are not in conformity. We disagree.

Applying the driving-while-impaired statutes to undisputed facts involves a

question of law and is reviewed de novo. State v. Loeffel, 749 N.W.2d 115, 116 (Minn.

App. 2008), review denied (Minn. Aug. 5, 2008). Under Minnesota law, a person is

guilty of third-degree driving while impaired if one aggravating factor was present when

the current offense occurred. Minn. Stat. § 169A.26, subd. 1 (2014). A “qualified prior

impaired driving incident” within 10 years of the current offense is considered an

aggravating factor. Minn. Stat. § 169A.03, subd. 3 (2014).

A “qualified prior impaired driving incident” includes an earlier impaired driving

conviction and loss of license under Minnesota law or a statute or ordinance from another

state in conformity with Minnesota law. Id., subds. 20-22 (2014). To determine whether

another state’s statute is in conformity with Minnesota law, “[i]t is the prohibited

behavior which must be in conformity, not the evidentiary standards by which that act is

proven.” State v. Geyer, 355 N.W.2d 460, 461 (Minn. App. 1984).

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 McGowan does not argue that his Wisconsin license revocation is not a prior loss

of license for impaired driving. Instead, he claims that the Wisconsin statute is not in

conformity with Minnesota law because Wisconsin does not provide a statutory right to

counsel before a chemical test.

In Minnesota, a person has the right to a reasonable opportunity to obtain legal

advice before submitting to chemical testing. Friedman v. Comm’r of Pub. Safety, 473

N.W.2d 828, 835 (Minn. 1991); see also Minn. Stat. § 169A.51, subd. 2 (2014) (stating

that a person must be informed of the right to consult with an attorney). But, even though

Wisconsin does not provide such a right, the Minnesota Supreme Court addressed and

rejected a similar assertion in State v. Schmidt, 712 N.W.2d 530 (Minn. 2006),

concerning a South Dakota law.

In Schmidt, the defendant argued that his South Dakota convictions of impaired

driving could not be used to enhance his Minnesota driving-while-impaired conviction

because he was not given the opportunity in South Dakota to consult with an attorney

before deciding whether to submit chemical tests. Id. at 532. The supreme court rejected

this argument, stating that “Minnesota’s interest in preserving the Friedman right is not

sufficient to prohibit the use of the South Dakota convictions to enhance Schmidt’s DWI

offenses in Minnesota even though the South Dakota convictions were based on

uncounseled test decisions.” Id. at 539. We rejected a similar argument in Loeffel,

holding that a driving-while-impaired charge could be enhanced with a Wisconsin license

revocation, even though the defendant was not given the opportunity to consult with an

attorney before the Wisconsin testing. 749 N.W.2d at 117.

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 McGowan claims that neither Schmidt nor Loeffel control because neither

considered whether the foreign statutes were in conformity with Minnesota law. He

attempts to distinguish between the constitutional right to counsel and the statutory right

to counsel. Yet his claim still relies on the argument that driving while impaired cannot

be enhanced by offenses committed in states that did not permit a pre-chemical test right

to counsel, an argument that the Schmidt and Loeffel courts rejected.

Furthermore, we considered and rejected an argument identical to McGowan’s in

State v. Geyer. In Geyer, the defendant argued that an Ohio driving-while-impaired

conviction could not be used to enhance a Minnesota driving-while-impaired conviction

because the states’ implied consent statutes were not in conformity: “Minnesota’s implied

consent statute requires that a person be advised that he may consult with an attorney

before taking a breath, blood or urine test. Ohio’s implied consent statute has no such

requirement.” 355 N.W.2d at 461. But we rejected the defendant’s argument, noting that

other than this difference, the statutes prohibit identical behavior. Id. “It is the prohibited

behavior which must be in conformity, not the evidentiary standards by which that act is

proven.” Id.

Here, the Wisconsin and Minnesota statutes are in conformity because they

prohibit the same behavior: operating a motor vehicle while under the influence or with

an alcohol concentration above the legal limit. Compare Wis. Stat. § 346.63(1)(a), (b)

(2011-12), with Minn. Stat. § 169A.20, subd. 1. And this court has previously stated that

Wisconsin and Minnesota impaired driving statutes are in conformity. See Dempski v.

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Comm’r of Pub. Safety, 520 N.W.2d 532, 533 (Minn. App. 1994); State v. Friedrich, 436

N.W.2d 475, 477 (Minn. App. 1989).

McGowan also argues that the Wisconsin offense cannot be used as an

aggravating factor because he was denied certain fundamental rights, including the right

to a unanimous jury and the right to be proven guilty beyond a reasonable doubt only

upon a plea with a sufficient factual basis. But Schmidt foreclosed this argument when

the supreme court declined to consider the collateral attack of a foreign conviction under

Minnesota law. 712 N.W.2d at 539.

Affirmed.

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