Ellen Louise Arnt, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0852

Ellen Louise Arnt, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed October 29, 2018
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Pipestone County District Court
File No. 59-CV-15-419

Paul M. Malone, Malone & Mailander, Slayton, Minnesota (for appellant)

Lori Swanson, Attorney General, S tephen Melchionne, Justin A. M oor, Lindsay LaVoie
Assistant Attorneys General, St. Paul, Minnesota (for respondent)

Considered and decided by Brat vold, Presiding Judge; Rodenberg , Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant challenges the district court’s order sustaining the revocation of her
driving privileges. Appellant argues that (1) her privacy interest was violated by the urine
test, (2) her due-process rights were violated because of an in accurate implied-consent
advisory, and (3) she did not voluntarily consent to the urine test. We reject appellant’s

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privacy-interest argument. We also reject appellant’s due-proc ess argument, one that
appellant did not make to the district court, but we reverse and remand to the district court
to reconsider the voluntariness of appellant’s consent under the Fourth Amendment.
FACTS
On September 11, 2015, at approximately 11:15 p.m., Pipestone C ounty Sheriff’s
Deputy Jeff Sannow was traveling east on State Highway 30. Dep uty Sannow noticed a
car that was “speeding up and slowing down.” Using his radar equipment, Deputy Sannow
clocked the car at 72 miles per hour in a 55-mile-per-hour zone.
Deputy Sannow stopped the car and identified the driver as appe llant Ellen Louise
Arnt. Deputy Sannow noticed that appellant’s behavior was “slow” and she was “fumbling
around,” her speech was slurred, her eyes were glassy, and there was an “alcoholic” smell
coming from inside the car. As appellant retrieved her insurance information and driver’s
license, she moved a sweatshirt located inside the car, revealing an open beer can. Deputy
Sannow asked appellant several times if she had been drinking before she drove. She told
him that she had been at the casino and had consumed some beer. After appellant got out
of the car, Deputy Sannow retrieved the open beer can and notic ed that it was “cold” and
still had “some liquid inside.”
Appellant performed several field sobriety tests, the results o f which indicated
impairment. Deputy Sannow reque sted that appellant complete a preliminary breath test
(PBT). Appellant agreed to take that test. Despite three atte mpts, Deputy Sannow could
not obtain a result from the PBT because appellant “kept playin g with the machine.”

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Appellant was arrested for driving while impaired and was taken to the Pipestone County
Jail.
At the jail, Deputy Sannow read appellant the implied-consent advisory. Appellant
asked to speak to her attorney and was provided a telephone and a phone directory. Despite
repeated attempts, appellant failed to contact an attorney. Deputy Sannow asked appellant
to take a breath test to which she consented, but appellant fai led to provide a sufficient
sample. Deputy Sannow reread the implied-consent advisory1 to appellant and offered her
an “alternative” test. 2 Appellant indicated that she un derstood the implied-consent
advisory. She was again offered an opportunity to speak to her attorney, but again failed
to contact an attorney.
Deputy Sannow asked appellant to submit to a urine test, to which appellant agreed.
Because there were no female officers or employees on duty at the time, a female dispatcher
was called in to assist with the urine test. A urine sample wa s obtained, and later testing
revealed that appellant’s alcohol concentration was 0.14 at the time of the test.
Based on the urine-test results, the Minnesota Commissioner of Public Safety
revoked appellant’s driver’s license under Minn. Stat. §§ 169A.50-.53 (2014). Appellant
sought judicial review of the revocation of her driving privile ges, arguing that the officer
lacked a factual basis for the traffic stop, that her arrest wa s unlawful, that the implied-

1 Deputy Sannow read the same implied-consent advisory both times, stating that “[r]efusal
to take a test is a crime.”

2 At the time of this second reading, Deputy Sannow did not specify whether his reference
to an “alternative” test meant a blood test or a urine test. B ut by using the term
“alternative,” he was not offering or suggesting another breath test.

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consent process is unconstitutio nal, that the unconstitutional- conditions doctrine applied,
that a warrant was required to obtain a urine sample, and that the urine sample violated her
Fourth-Amendment right to privacy.
The district court issued a written order sustaining the revoca tion of appellant’s
driver’s license. It concluded that Deputy Sannow, based on hi s initial observations, had
reasonable articulable suspicion for the initial stop and that, based upon his interaction with
appellant, Deputy Sannow had probable cause to arrest her. The district court also
determined that the unconstitutional-conditions doctrine was inapplicable under Stevens v.
Comm’r of Pub. Safety , 850 N.W.2d 717, 723 (Minn. App. 2014), and that, per Stevens,
appellant’s right to privacy was outweighed by the government’s interests in combatting
drunk driving. Finally, the district court determined that, because appellant had been read
the implied-consent advisory twice and had not been coerced, sh e had voluntarily
consented to the warrantless urin e test. It did not resolve a due-process argument,
apparently because no record was made of a due-process challenge.
This appeal followed.3

3 This appeal was initially stayed pending the supreme court’s decision in State v. Phillips,
No. A16-0129, 2016 WL 4497355 (Minn. App. Aug. 29, 2016), review dismissed (Minn.
May 18, 2017). Following Phillips’s death and the supreme court’s dismissal of the case,
the matter was again stayed p ending final dispositions in Morehouse v. Comm’r of Pub.
Safety, 911 N.W.2d 503 (Minn. 2018) and Johnson v. Comm’r of Pub. Safety, 911 N.W.2d
506 (Minn. 2018). After the supreme court issued its decisions in Morehouse and Johnson,
we reinstated the appeal and both parties submitted supplemental briefs on the application
of these cases.

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D E C I S I O N
I. Privacy Interest
Appellant argues that Minnesota’s implied-consent law, which requires a person to
u r i n a t e i n t h e p r e s e n c e o f a l a w e n f o r c e m e n t o f f i c e r , i s “ a n u nreasonable invasion of
privacy in violation of the Minnesota and Federal Constitutions.”
“The reasonableness of any search must be considered in the context of the person’s
legitimate expectations of privacy.” Maryland v. King, 569 U.S. 435, 462, 133 S. Ct. 1958,
1978 (2013). The Minnesota Supreme Court has recognized the privacy concerns inherent
in urine testing. In State v. Thompson , Thompson was arrested for a suspected driving
while impaired (DWI) and refused to submit to a warrantless blo o d o r u r i n e t e s t . 8 8 6
N.W.2d 224, 226 (Minn. 2016). T he Minnesota Supreme Court exam ined “the impact
urine tests have on individual privacy interests” and the “weig hty privacy concerns”
implicated in such testing. Id. at 230, 232. Because of how urine samples are obtained and
the type of information they may reveal, such tests may not be conducted absent an
exception to the warrant requirement. Id. at 231-34. Appellant’s claimed privacy interest
is grounded in the warrant requirement for a urine test adopted in Thompson.
Consent is an exception to the warrant requirement. State v. Brooks, 838 N.W.2d
563, 568-69 (Minn. 2013). As disc ussed below, the district cou rt found that appellant
consented to the urine test. Appellant cites no authority for the notion that, even when a
driver validly consents to a urine test, the driver has a separ ate non-Fourth-Amendment
privacy right that precludes such testing. We are aware of no such authority and, as an
error-correcting court, it is not our proper role to construct such a right not recognized by

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either the legislature or the Minnesota Supreme Court. See Finn v. All. Bank, 838 N.W.2d
585, 603 (Minn. App. 2013), aff’d as modified, 860 N.W.2d 638 (Minn. 2015); N. Star Int’l
Trucks, Inc. v. Navistar, Inc. , 837 N.W.2d 320, 325 (Minn. App. 2013); State v. Kelley ,
832 N.W.2d 447, 456 (Minn. App. 2013), aff’d on other grounds, 855 N.W.2d 269 (Minn.
2014).
II. Due Process
Next, appellant argues that her due-process rights were violate d by the reading of
an inaccurate implied-consent ad visory. “We review due-process challenges de novo.”
Thole v. Comm’r of Pub. Safety , 831 N.W.2d 17, 19 (Minn. App. 2013), review denied
(Minn. July 16, 2013). The Minnesota Supreme Court has conclud ed that an implied-
consent advisory which “permit[s] police to threaten criminal c harges the state was not
authorized to impose . . . viol at[es] the constitutional guaran tee of due process.”
McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991).
The Minnesota Supreme Court recently clarified that a due-proce ss violation does
not occur “solely because a driver had been misled.” Johnson v. Comm’r of Pub. Safety,
911 N.W.2d 506, 508 (Minn. 2018). The Johnson court held that a due-process violation
under McDonnell requires three elements:
A license revocation violates due process when: (1) the person
whose license was revoked subm itted to a breath, blood, or
urine test; (2) the person prej udicially relied on the implied
consent advisory in deciding to u n d e r g o t e s t i n g ; a n d ( 3 ) t h e
implied consent advisory did not accurately inform the person
of the legal consequences of refusing to submit to the testing.
Id. at 508-09.

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All three elements must be present to entitle an appellant to rescission of a district
court’s license revocation order. Morehouse v. Comm’r of Pub. Safety, 911 N.W.2d 503,
505 (Minn. 2018). In Morehouse, the supreme court rejected Morehouse’s due-process-
violation argument and found tha t, “[b]ecause Morehouse did not even claim, much less
establish, that he prejudicially relied on the implied consent advisory, Morehouse is not
entitled to a rescission of his license revocation under McDonnell.” Id.
Here, the first element of Johnson is satisfied because appellant submitted to a urine
test. Appellant, in her supplemental brief, attempts to distin guish Morehouse by arguing
that “[a]ppellant is raising the fact that she was prejudiced b y the threat of impossible
criminal charges.” But, like Morehouse, appellant did not even claim in the petition for
judicial review, much less establish at the evidentiary hearing in district court, that she
prejudicially relied on the implie d-consent advisory. Appellan t did not testify at the
hearing, and she produced no other evidence tending to show tha t she prejudicially relied
on the inaccurate implied-consent advisory. Appellant raised t he question of prejudicial
reliance on the implied-consent advisory for the first time in her supplemental brief on
appeal. Under Morehouse, because appellant “did not even claim, much less establish, that
[s]he prejudicially relied on the implied consent advisory, [ap pellant] is not entitled to a
rescission of [her] license revocation under McDonnell.” Morehouse, 911 N.W.2d at 505.
Appellant nevertheless asks that we remand to allow her to deve lop a record on
prejudicial reliance. The supreme court did not remand in Morehouse to give the driver an
opportunity to develop a record on prejudicial reliance. Id. Given the factual and legal

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similarities between this case and Morehouse, remanding to allow appellant to develop the
record regarding any prejudicial reliance would stray from the Morehouse disposition.
We see no basis on which to reverse the district court’s denial of appellant’s petition
for rescission of the revocation of her license because appellant has not claimed, much less
established, a McDonnell due-process violation.
III. Fourth Amendment
Finally, appellant argues that she did not voluntarily consent to give a urine sample
because she was coerced by Depu ty Sannow reading her the inaccu rate implied-consent
advisory.4 Both the United States and Minnesota Constitutions prohibit u nreasonable
searches and seizures. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. The Minnesota
Supreme Court has held that, under the Fourth Amendment, taking a u r i n e s a m p l e
constitutes a search. Brooks, 838 N.W.2d at 568. “Searches conducted without a warrant,
outside the judicial process, without prior approval by judge o r magistrate, are per se
u n r e a s o n a b l e . . . s u b j e c t o n l y t o a f e w s p e c i f i c a l l y e s t a b l i s hed and well-delineated
exceptions.” Thompson, 886 N.W.2d at 228 (quotation om itted). One such recognized
exception is the consent exception, where “the subject of the s earch consents.” Brooks,
838 N.W.2d at 568. “For a search to fall under the consent exception, the State must show
by a preponderance of the evidence that the defendant freely an d voluntarily consented.”
Id. “Whether consent was voluntary is determined by examining the totality of the

4 The state argues for the first time on appeal that the good-fa ith exception to the
exclusionary rule applies. We decline to address this issue as we generally will not consider
matters not argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988).

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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.” State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999)
(quotation omitted). If the circumstances indicate that the en counter was coercive, then
consent is involuntary and ev idence must be suppressed. Id. W h e t h e r c o n s e n t w a s
voluntary is a question of fact that is reviewed for clear error. State v. Diede, 795 N.W.2d
836, 846-47 (Minn. 2011).
After reviewing the evidence at the implied-consent hearing, the district court found
that appellant voluntarily consented to the urine test. The district court based its conclusion
upon an analysis of the circumstances surrounding appellant’s a rrest and her interactions
with Deputy Sannow. The district court specifically noted that Deputy Sannow read
appellant the implied-consent ad visory twice and that appellant was provided a choice:
comply and provide evidence of intoxication or refuse and be charged with refusing to take
the test. The district court also noted that appellant was twice offered access to and means
by which to contact counsel. Based upon Deputy Sannow’s testim ony, which the district
court credited, the district court implicitly found that appell ant did not face any overtly
coercive police tactics. Reviewing appellant’s claims, the dis trict court found that
appellant had “offered no evidence that indicated that she was improperly coerced by the
Deputy.” Applying Brooks, the district court concluded that “[b]ased on the totality of the
circumstances, the [appellant] vol untarily consented to provide a breath and urine test.
Therefore, a warrant was not required[.]”
In finding that appellant’s consent to the test was voluntary, the district court relied
on appellant having twice been read the implied-consent advisory. But the second implied-

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consent advisory inaccurately advised appellant that she could be charged with a crime for
refusing a warrantless urine test.
The United States Supreme Court considered a similar issue in Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016). Defe ndant Beylund was arrested in No rth Dakota for
driving while impaired and “sub mitted to a blood test after pol ice told him that the law
required his submission.” Id. at 2186. Because the blood test results revealed Beylund
was intoxicated at the time, he had his license “suspended for two years after an
administrative hearing.” Id. at 2172. Beylund appealed, “a rguing that his consent to the
blood test was coerced by the officer’s warning that refusing t o consent would itself be a
crime.” Id. The North Dakota Supreme Court affirmed the license suspensio n,
“emphasiz[ing] that North Dakota’s implied consent advisory was not misleading because
it truthfully related the penalties for refusal.” Id. The United States Supreme Court in
Birchfield, after concluding that states may not compel warrantless blood tests, remanded
to the North Dakota Supreme Court to “reevaluate Beylund’s cons ent given the partial
inaccuracy of the officer’s adviso ry [in light of the Supreme C ourt’s decision].” Id. at
2186.
At the time the district court determined that appellant voluntarily consented to the
warrantless urine search, the district court did not have the b enefit of the supreme court’s
decisions in Thompson, Johnson, or Morehouse. It therefore did not consider whether the
inaccuracy of the second implied- consent advisory might have re ndered appellant’s
consent to the urine test involuntary. Accordingly, we reverse and remand to the district
court to reconsider whether, in light of the inaccurate implied-consent advisory, the totality

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of the circumstances indicates t hat appellant’s consent to the urine test was voluntarily
given.5
Affirmed in part, reversed in part, and remanded.

5 Our remand for reconsideration of the voluntariness of appellant’s consent is no indication
of how the district court should resolve the issue. Because co nsent is a fact-dependent
issue, see Brooks, 838 N.W.2d at 568-69; Harris, 590 N.W.2d at 104, the district court
must assess all evidence availa ble to it. This is uniquely the district court’s proper role.
Whether the record should be reopened on remand is left to the district court’s discretion.