Thomas Gerald Rothmeier, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0984

Thomas Gerald Rothmeier, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed January 7, 2019
Affirmed
Ross, Judge

Redwood County District Court
File No. 64-CV-15-741

Wesley J. Abrahamson, Douglas V. Hazelton, Lee M. Orwig, Jeremy J. Kaschinske,
Halberg Criminal Defense, Bloomington, Minnesota (for appellant)

Lori Swanson, Attorney General, William Young, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
A sheriff’s deputy stopped Thomas Rothmeier’s car for having a loud exhaust and,
after administering field sobriety tests, arrested him for impaired driving. The deputy read
Rothmeier the implied -consent advisory and asked if he would take a breath test.
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Rothmeier instead agreed to take a blood test, revealing a blood -alcohol concentration of
0.169. After Rothmeier challenged the consequent revocation of his driver’s license, the
district court found that the stop was valid, that Rothmeier consented to the blood test, that
the good-faith exception applied to the test results, and that the implied -consent advisory
did not violate Rothmeier’s due process rights. We affirm because the deputy had
reasonable suspicion to stop the car, Rothmeier did not argue that he prejudicially relied
on the advisory, and Rothmeier consented to the blood draw.
FACTS
Redwood County Sheriff’s Deputy Mitch Zimmermann was patrolling after
midnight in August 2015 when he heard a car with a loud exhaust that he thought was
revving its engine and squealing its tires. The car was out of the deputy’s view, but when
he turned a corner he saw a sole car stopped at an intersection. The car’s engine revved and
its exhaust was loud. Deputy Zimmermann stopped the car, which was being driven by
Thomas Rothmeier.
Rothmeier showed signs of intoxication and said that he had been drinking. The
deputy administered field sobriety tests, arrested Rothmeier for drunk driving, and took
him to jail. Deputy Zimmermann read Rothmeier the implied -consent ad visory, which
warned that refusal to take a test is a crime. Rothmeier spoke with an attorney and told the
deputy that his attorney recommended he take a blood test.
Deputy Zimmermann asked Rothmeier if he would submit to a breath test, and
Rothmeier inquired about the differences between a breath test and a blood test. The deputy
told him, “They are all equally viable.” The deputy repeatedly asked Rothmeier if he would
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take a breath test. After the third request, Rothmeier said that his attorney suggested that it
was a “toss -up” between the blood or breath test. The deputy asked if Rothmeier would
take a blood test. Rothmeier did not answer, asking if a refusal would result in the forfeiture
of his car. Deputy Zimmermann asked a fourth time if Rothmeier would take a breath test.
He responded, “Nah, let’s do the blood.” The blood test indicated that Rothmeier’s blood-
alcohol concentration was 0.169, and the Commissioner of Public Safety revoked his
driver’s license.
Rothmeier petitioned for judicial review w ith three challenges: he claimed that the
traffic stop was invalid, a search warrant was necessary for the blood draw, and his due
process rights were violated by the implied -consent advisory and the deputy’s comments.
The district court denied the petitio n, holding that the deputy had reasonable suspicion to
stop the car, Rothmeier consented to the blood test, the good-faith exception applied to the
search results, and the advisory did not violate Rothmeier’s due process rights.
Rothmeier appealed the district court’s denial of his petition to reinstate his driver’s
license. We stayed the appeal pending the decisions by the supreme court in Johnson v.
Commissioner of Public Safety , 911 N.W.2d 506 (Minn. 2018), and Morehouse v.
Commissioner of Public Safety , 911 N.W.2d 503 (Minn. 2018). Following the supreme
court’s decisions, we reinstated and now decide this appeal.
D E C I S I O N
Rothmeier raises three arguments challenging the district court’s denial of his
petition to rescind his license revocation. He argues first that the deputy lacked reasonable
suspicion to stop his car. He argues second that the implied -consent advisory violated his
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due process rights. And he argues third that the warrantless blood draw violated his Fourth
Amendment rights. None of his arguments warrants reversal.
The district court properly concluded that Deputy Zimmermann had reasonable
suspicion to stop Rothmeier’s car. Although a judicial challenge to the administrative
revocation of a driver’s license under the implied-consent statute is a civil proceeding, we
apply the exclusionary rule if the revocation resulted from a Fourth Amendment violation.
See Olson v. Comm’r of Pub. Safety , 371 N.W.2d 552, 553 –56 (Minn. 1985) (applying
Fourth Amendment protection to license revocation proceeding); Ascher v. Comm’r of Pub.
Safety, 527 N.W.2d 122, 125–26 (Minn. App. 1995) (applying exclusionary rule to Fourth
Amendment violation in license -revocation proceeding), review denied (Mar. 21, 1995).
We review de novo a district court’s legal decision that an officer had reasonable suspicion
to stop a car. State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012). In doing so, we base our
decision on the district court’s factual findings unless they are clearly erroneous. Id. The
facts here are not materially disputed, so we review the district court’s legal conclusion
that the circumstances justified the stop.
We see no support for Rothmeier’s position that the district court errantly held that
the deputy had reasonable suspicion to justify st opping him. The deputy could stop
Rothmeier without violating his Fourth Amendment rights so long as, under the totality of
the circumstances, there was some objective manifestation that Rothmeier was engaged in
criminal activity. See Navarette v. Californ ia, 572 U.S. 393, 396 , 134 S. Ct. 1683, 1687
(2014). The district court credited the testimony establishing that the deputy saw
Rothmeier’s car—the only car around—and heard its engine rev with a loud exhaust. This
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supports the deputy’s stop based on the s tatutory requirement that every car must “be
equipped with a muffler in good working order.” Minn. Stat. § 169.69 (2014). The stop did
not violate Rothmeier’s Fourth Amendment rights.
We also see no support for Rothmeier’s position that the implied -consent advisory
violated his due process rights. We review due process challenges de novo. State v. Krause,
817 N.W.2d 136, 144 (Minn. 2012). Rothmeier maintains that the advisory’s warning that
refusing a blood test is a crime was false, based on cases decided after his arrest. But a due
process violation based on an improper implied -consent advisory does not result merely
from an inaccurate advisory; the driver must also establish that he prejudicially relied on
the inaccurate advisory when he decided to under go the chemical test. Johnson, 911
N.W.2d at 508–09. In a case similar to this one, the supreme court rejected a driver’s due
process challenge because the challenger “did not even claim, much less establish, that he
prejudicially relied on the implied con sent advisory.” Morehouse, 911 N.W.2d at 505.
Likewise, because Rothmeier did not claim in the district court , much less establish, that
he prejudicially relied on the implied-consent advisory when he agreed to take the blood
test, his due process argument fails.
Finally, we find no support for Rothmeier’s position that the warrantless blood draw
violated his Fourth Amendment rights on the notion that he did not voluntarily consent to
it. Although warrantless searches are generally unreasonable under the Fourth Amendment
and the taking of a blood sample constitutes a search, a search warrant is unnecessary if
the person consents to the intrusion . See State v. Brooks , 838 N.W.2d 563, 568 (Minn.
2013). Because c onsent constitutes a valid exception only if it w as given “freely and
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voluntarily,” we must decide whether the district court accurately decided that Rothmeier’s
consent was voluntary. See State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). We need
not review the district court’s detailed factual findings supporting its conclusion that
Rothmeier validly consented to the search, because Rothmeier never argues that the district
court clearly erred when it made its findings under the factors discussed in Brooks.
Rothmeier argues implicitly instead that the ina ccuracy of the refusal -is-a-crime warning
in the implied -consent advisory rendered his consent involuntary as a matter of law,
distinguishing this case from Brooks, where the same warning was thought to be accurate.
We cannot conceive how a warning about potential incarceration that is not inherently
coercive when it is enforceable flips to being inherently coercive by virtue of its becoming
unenforceable. Rothmeier offers no rationale.
Following Brooks, the district court reasoned that Rothmeier was informed he could
refuse to submit to testing, he was afforded the opportunity to consult with an attorney, his
impairment was not so great as to render him unable to consent, he understood the advisory
and asked clarifying questions, and the deputy’s questioni ng was not persistent,
authoritative, or pressuring. We see no fault in the district court’s factual findings or legal
reasoning. We hold that Rothmeier voluntarily consented to the blood draw, and we
therefore have no reason to consider his argument about the good-faith exception to the
warrant requirement.
Affirmed.