Barbara Faye Sproul, 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This opinion will be unpublished and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
A16-0993

Barbara Faye Sproul, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed December 17, 2018
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Cass County District Court
File No. 11-CV-15-1974

Rich Kenly, Kenly Law Office, Backus, Minnesota (for appellant)

L o r i S w a n s o n , A t t o r n e y G e n e r a l , Daniel S. Schueppert, Assistant A t t o r n e y G e n e r a l ,
St. Paul, Minnesota (for respondent)

Considered and decided by Jess on, Presiding Judge; Reilly, Jud ge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
The commissioner of public safety revoked appellant Barbara Spr oul’s driver’s
license based on a failed urine test, and the district court denied her petition to rescind the
revocation. She argues on appeal that the implied-consent advi sory violated her
due-process rights by informing her that she was “required by l aw” to submit to chemical

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testing without a warrant. She also maintains that the district court clearly erred by finding
that she voluntarily consented t o the warrantless search. We r eject Sproul’s due-process
argument because the record lack s evidence that she prejudicial ly relied on the
implied-consent advisory. But we reverse and remand for the di strict court to reconsider
the voluntariness of her consent.
FACTS
At about 12:30 a.m. on June 21, 2015, a Cass County Sheriff’s deputy was on patrol
going northbound on Highway 371. He was following a vehicle th at was crossing the
fogline when attempting to navigate curves and on the straighta way. Because he was
concerned that the driver might be impaired, he activated his emergency lights and stopped
the vehicle. He had the driver, appellant Barbara Sproul, perf orm field sobriety tests. A
preliminary breath test showed a result of 0.098. He then arrested Sproul based on probable
cause that she was driving while impaired.
The deputy escorted Sproul to the Cass County Jail, where he read her the Minnesota
Implied-Consent Advisory. The recording of that advisory provides:
Q.: Minnesota law requires you to take a test to determine if
you are under the influence of alcohol. Do you understand
that?

A.: Yes.

Q.: Refusal to take a test is a crime. Do you understand that?

A.: Yes.

Q.: Before making your decisio n about testing you have the
right to consult with an attorney. If you wish to do so, a
telephone and directory will be available to you.

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If you are unable to contact an attorney, you must make the
decision on your own. You must make your decision within a
reasonable period of time.

Do you understand that?

A.: Yes.

Q.: If the test is unreasonably delayed or if you refuse to make
a decision, you will be considered to have refused the test. Do
you understand that?

A.: Yes.

Q.: Okay, you understand everything that I just explained?

A.: I—I took the test so everything is ok, right?

Q.: Ok. Just listen to me. Do you understand everything that
I just explained?

A.: Yes.

Q.: Ok. Do you wish to consult with an attorney right now?

A.: No.

Q.: Ok. Are you willing to give me a urine test right now?

A.: Ye—yes. [slowly].

Q.: Ok.

The deputy then had a corrections officer administer a urine test, which showed an
alcohol concentration of 0.104. That officer testified at the implied-consent hearing that
Sproul was “extremely cooperativ e, very pleasant,” and showed “ no negativity, no body
language to imply that she is not willing to give a sample anymore.” The corrections officer
was not present during the giving of the implied-consent advisory.

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Based on the test results, the commissioner of public safety re voked Sproul’s
driver’s license. Sproul challenged the revocation, arguing that her due-process rights were
violated because she was misled by the implied-consent advisory, which informed her that
she was “required by law” to submit to chemical testing. She also contended that under the
totality of the circumstances, sh e did not freely and voluntari ly consent to the warrantless
search.
The district court sustained th e revocation, holding that “under the current state of
Minnesota law, criminalizing a person’s refusal to submit to a properly requested warrantless
chemical test, is constitutional.” The district court concluded that it was proper for the deputy
to read the portion of the implied-consent advisory informing Sproul that she would receive
a criminal charge if she refused testing. The district court a lso determined that the
warrantless search was permissible because Sproul freely and vo luntarily submitted to
testing.
Sproul appealed the district court’s order. This court issued two orders staying the
appeal pending relevant decisions before the Minnesota Supreme Court, but reinstated the
appeal and ordered additional briefing following the supreme court’s decisions 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).
D E C I S I O N
Minnesota’s implied-consent law governs the administration of b reath, blood, and
urine tests to drivers who are suspected of being under the influence of alcohol or hazardous
or controlled substances. Minn. Stat. § 169A.50-.53 (2018); Johnson, 911 N.W.2d at 507

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(Minn. 2018). If a driver refuses to permit a test, the commissioner of public safety revokes
that driver’s license. Minn. Stat. §169A.52, subd. 3. If a driver submits to chemical testing,
and the test results show an alcohol content of 0.08 or more, the commissioner also revokes
the driver’s license. Id., subd. 4.
Sproul argues that: (1) she was denied due process when she was told that she would
be charged with the crime of test refusal if she exercised her right to refuse warrantless
chemical testing, and (2) her consent to testing was not volunt ary, as required for a
warrantless search under the Fourth Amendment. We address each argument in turn. After
doing so we conclude that Sproul’s due-process rights were not violated because she did not
present evidence to the district court to support her argument that she prejudicially relied on
the reading of the implied-consent advisory. But we remand for the district court to further
address her argument that she did not voluntarily consent to the warrantless search.
Due process
Whether an implied-consent advisory violates a driver’s due-process rights presents
a question of law, which we review de novo. Magnuson v. Comm’r of Pub. Safety ,
703 N.W.2d 557, 561 (Minn. App. 2005). In McDonnell v. Comm’r of Pub. Safety , the
supreme court set forth a three-part test for determining whether a due-process violation has
occurred in the context of a driver’s-license revocation. 473 N.W.2d 848, 853-55 (Minn.
1991). Under that test, a license revocation violates due proc ess when: (1) the driver
submitted to chemical testing; (2) “the [driver] prejudicially relied on the implied-consent
advisory in deciding to undergo testing”; and (3) the advisory failed to accurately inform
the driver of the legal consequences of test refusal. Johnson, 911 N.W.2d at 508-09 (citing

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McDonnell, 473 N.W.2d at 853-55). The supreme court noted that a due-process violation
is not established under McDonnell “solely because a driver [has] been misled” by an
implied-consent advisory. Id. at 508. The supreme court has held that under the test in
McDonnell, a driver was not entitled to have his license revocation resc inded when he
submitted to blood testing and “the district court did not find, nor did [the driver] claim, that
he prejudicially relied on the im plied consent advisory in deci ding to submit to the test.”
Morehouse, 911 N.W.2d at 505; see also Johnson, 911 N.W.2d at 508-09 (holding that the
first two elements of McDonnell were not satisfied when a dr iver refused to submit to
chemical testing).
We have recently held that a district court errs when it grants relief under McDonnell
without first determining that t he three elements of a due-proc ess claim under McDonnell
have been established. Windsor v. Comm’r of Pub. Safety, ___ N.W.2d ___, ___, 2018 WL
5780410, at *3.1 In Windsor, we also concluded that a remand is unnecessary if the record
does not show evidence sufficient to establish all three elements. Id. at *4.
Here, we conclude that Sproul has failed to establish all three elements of the
McDonnell test which would entitle her to relief under that analysis. Sh e has satisfied the
first and third elements of the McDonnell test because she submitted to a urine test and
because the implied-consent advi sory did not accurately inform her of the legal
consequences of refusi ng chemical testing. See Johnson, 911 N.W.2d at 508-09 (citing

1Windsor expressly overruled Olinger v. Comm’r of Pub. Safety , 478 N.W.2d 806, 807
(Minn. App. 1991), which had held that the mere misstatement of the law entitled drivers
to rescission of their license revocations without a showing of actual prejudice.

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McDonnell, 473 N.W.2d at 853-55). But on this record, she has not satis fied the second
element: establishing that she prejudicially relied on the implied-consent advisory in making
her decision to submit to testing. See id.; see also Windsor, 2018 WL 5780410, at *3.
Sproul did not testify at the district-court hearing or proffer any written evidence to
show prejudicial reliance. She points out that her counsel asserted in briefing to the district
court that “[law enforcement] actively misled her” with the man datory language in the
implied-consent advisory, which led her to believe that she was required to submit to testing.
But counsel’s factual assertions in a brief do not constitute evidence presented to the district
court. See State v. McCoy, 682 N.W.2d 153, 158 (Minn. 2004) (noting that “arguments of
attorneys are not evidence”) (quotation omitted); see also Tang v. I.N.S., 223 F.3d 713, 720
(8th Cir. 2000) (stating that factual assertions in a brief were “argument of counsel and not
evidence”). And in Morehouse, the supreme court emphasized that the driver must
establish, and the district court must find, prejudicial reliance in order to establish that factor
under McDonnell. Morehouse, 911 N.W.2d at 505.
We conclude that because Sproul did not establish prejudicial r eliance on the
implied-consent advisory in deciding to submit to testing, the second McDonnell factor has
not been satisfied. See id. We therefore, reject her due-process argument. We also note
that in Windsor we did not see fit to order a remand when the supreme court in Morehouse
had declined to do so. See Windsor, 2018 WL 5780410, at *4. Following Windsor, we also
decline to order a remand to develop the record on this issue. See id.

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Fourth Amendment
Sproul also asserts a Fourth Amendment challenge to the revocation of her license,
arguing that her consent to a warrantless search was not voluntary. The United States and
Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const. amend.
IV; Minn. Const. art I, § 10. A urine test is a search subject to Fourth Amendment
protections. State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013). Unless an exception to
the warrant requirement applies, a warrantless search is per se unreasonable. Ellingson v.
Comm’r of Pub. Safety, 800 N.W.2d 805, 807 (Minn. App. 2011), review denied (Minn.
Aug. 24, 2011).
Under one exception, a warrant is not necessary if the subject of the search consents.
Brooks, 838 N.W.2d at 568. To satisfy the consent exception to the warrant requirement,
the state must show by a prepond erance of the evidence that con s e n t w a s f r e e l y a n d
voluntarily given. Id. Voluntariness presents a question of fact, which this court reviews
for clear error. State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). To determine whether
consent was voluntary, a court examines the totality of the circumstances, which includes
the nature of the encounter, the kind of person the defendant is, what was said, and how it
was said. Id. A person does not consent “s imply by acquiescing to a claim of lawful
authority.” Brooks, 838 N.W.2d at 569.
The district court found that under Brooks, Sproul’s consent to the urine test was
voluntary, and her consent was not negated by any shortcomings in the language of the
implied-consent advisory. Two months after the district court’ s order, however, the
United States Supreme Court issued its opinion in Birchfield v. North Dakota, 136 S. Ct.

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2160, (2018). In Birchfield, petitioner Beylund submitted to a blood test in North Dakota
after law enforcement told him that refusal to submit to chemical testing was a crime. Id.
at 2172. Beylund appealed the s uspension of his license, argui ng that his consent was
coerced by the advisory. Id. The Supreme Court concluded that the state may not compel
warrantless blood tests, and because voluntariness of consent t o a search requires
analyzing the totality of the ci rcumstances, it remanded the ca se to state court to
“reevaluate [the driver’s] consent [to the warrantless blood te st] given the partial
inaccuracy of the officer’s advisory.” Id. at 2186.
Following Birchfield, the Minnesota Supreme Court has held that absent a warrant
or exigent circumstances, a defendant could not be prosecuted u nder Minnesota’s
test-refusal statute for refusing to submit to a blood test. State v. Trahan, 886 N.W.2d 216,
218 (Minn. 2018). And in State v. Thompson, the supreme court extended that reasoning
to urine tests, concluding that such tests given under the test-refusal law implicated privacy
rights and that conducting a warrantless urine test violates th e Fourth Amendment.
886 N.W.2d 224, 230, 234 (Minn. 2018). Thus, without a warrant , law enforcement was
required to obtain Sproul’s consent before proceeding with chemical testing. See id.
Here, the district court did not have the benefit of the Birchfield, Trahan , and
Thompson cases when it issued its order finding that Sproul voluntarily consented to
testing. Because Sproul could not be criminally prosecuted for refusing a urine test, the
implied consent advisory given by the officer was partially ina ccurate. See Birchfield,
136 S. Ct. at 2186; Thompson, 886 N.W.2d at 234. In additio n, the district court did not

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address all of the circumstances surrounding the giving of the implied-consent advisory,
including Sproul’s reaction at the time she was read the advisory.
The question of the voluntariness of Sproul’s consent to testing is fact-specific and
properly addressed by the district court. See Diede, 795 N.W.2d at 846. We therefore
reverse the district court’s finding on the voluntariness of Sproul’s consent and remand to
the district court for further consideration of that issue.2
Affirmed in part, reversed in part, and remanded.

2 The commissioner also argued before the district court that a good-faith exception to the
exclusionary rule applies. Because the district court did not address this issue, we decline
to do so. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (stating that this court
must generally consider only issu es “presented [to] and conside red by the [district] court
in deciding the matter before it”). Should the district court deem it appropriate, it may
address this issue on remand.