Brian Paul Keller, petitioner, Respondent,

This opinion will be unpublished and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
A17-0173

Brian Paul Keller, petitioner,
Respondent,

vs.

Commissioner of Public Safety,
Appellant.

Filed December 17, 2018
Reversed
Stauber, Judge*

Anoka County District Court
File No. 02-CV-16-83

Paul W. Rogosheske, Ryan J. Grove, Rogosheske , Rogosheske, & Atkins, PLLC , South
St. Paul, Minnesota (for respondent)

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

Considered and decided by Connolly, Presiding Judge; Smith, Tracy M., Judge; and
Stauber, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
STAUBER, Judge
Appellant commissioner of public safety (the commissioner) appeals the district
court’s rescission of respondent Brian Paul Keller’s license revocation, arguing that (1) the
implied-consent advisory did not violate respondent’s due -process rights; (2) respondent
voluntarily consented to the warrantless blood test; and (3) even if respondent’s consent
was involuntary, the good-faith exception to the exclusionary rule precludes the results of
the blood test from being suppressed. We reverse.
FACTS
On September 13, 2015, Officer Nordby of the Blaine Police Department was on
routine patrol when he observed a vehicle cross over the dividing line of the road it was
traveling on for about 100 yards before swerving back into its lane. The vehicle then
slowed in response to a red light and continued to slow even though the light turned green.
The vehicle reacted slowly to yet another green light. Officer Nordby believed this to be a
delayed reaction, which is a sign of impairment. He stopped the vehicle and determined
that respondent Brian Paul Keller was the driver.
Officer Nordby observed that respondent was driving with ignition interlock and
had bloodshot, watery eyes. He believed respondent to be under the influence of marijuana
after observing a green leafy substance on respondent’s shirt and pant leg and a brown
substance on the back of respondent’s tongue .1 Further, respondent appeared to be

1 The substance later tested negative for marijuana.

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confused about where he was traveling, which is another indication of impairment. Officer
Nordby’s partner found methadone located in a safe in th e back of respondent’s vehicle
and observed that the dose was higher than what respondent said he was prescribed.
Respondent failed a field sobriety test, and a preliminary breath test showed a blood-
alcohol reading of 0.00, furthering Officer Nordby’s suspicion that respondent was under
the influence of a controlled substance. Officer Nordby believed respondent could not
safely operate a vehicle and placed him under arrest for driving while impaired. He then
read the implied-consent advisory to respondent, which stated that refusing to take a test
was a crime. Officer Nordby gave respondent the chance to speak with an attorney, but he
declined. Respondent stated that he understood the advisory and agreed to take a blood
test, which produced a positive result for methadone.
The commissioner revoked respondent’s driver’s license. The district court held an
implied-consent hearing after r espondent petitioned for judicial review of the license
revocation. The commissioner called the only witness, Officer Nordby. The district court
rescinded the revocation of respondent’s driver’s license on the basis that the misleading
advisory violated his due-process rights and because he did not consent voluntarily to the
warrantless blood test. The commissioner appealed. This court stayed the appeal pending
the supreme court’s review of State v. Phillips , A16-0129 (Minn. App. Aug. 29, 2016),
review granted (Minn. Nov. 15, 2016) and appeal dismissed (Minn. May 18, 2017). This
court further stayed the appeal pending the decisions in Johnson v. Comm’r of Pub. Safety,
911 N.W.2d 506 (Minn. 2018), and Morehouse v. Comm’r of Pub. Safety, 911 N.W.2d 503

4
(Minn. 2018). Following the supreme court’s decisions in Johnson and Morehouse, this
court reinstated the appeal, and directed the parties to submit their briefs.
D E C I S I O N
I. Respondent’s due -process rights were not violated because he did not
prejudicially rely on the implied-consent advisory.

The commissioner argues that respondent’s due -process rights were not violated
under Johnson and Morehouse because respondent failed to establish that he prejudicially
relied on the inaccurate implied-consent advisory when he made the decision to submit to
testing. We agree.
This court reviews due -process challenges de novo. Anderson v. Comm’r of Pub.
Safety, 878 N.W.2d 926, 928 (Minn. App. 2016). The supreme court held in McDonnell
v. Comm’r of Pub. Safety , that an implied -consent advisory that threatened a criminal
consequence the state is not authorized to impose violated the appellant’s due -process
rights and required re scission of her license revocation. 473 N.W.2d 848 , 855 (Minn.
1991). In Johnson, the supreme court stated that, under McDonnell, a due-process violation
did not occur solely because a driver had been misled by an inaccurate implied -consent
advisory. 911 N.W.2d at 508 . The supreme court clarified that a license revocation
violates due process when: (1) the person whose license was revoked submitted to a blood,
breath, or urine test; (2) the person prejudicially relied on the implied consent advisory in
consenting to the test; and (3) the implied consent advisory was legally inaccurate. Id. at
508-509. In Johnson, the supreme court stated that Johnson’s claim failed on the first and
second elements because Johnson did not submit to testing. Id. at 509.

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In Morehouse, which was issued contemporaneously with Johnson, the supreme
court held that Morehouse, who did consent to a blood test, was not entitled t o rescission
of his revocation under McDonnell. 911 N.W.2d at 505. Morehouse’s argument failed on
the second prong because “the district court did not find, nor did Morehouse claim, that he
prejudicially relied on the implied-consent advisory in deciding to submit to the test.” Id.
In this case, t he district court found that respondent’s due -process rights were
violated because the advisory was misleading under McDonnell. But the facts here are
analogous to Morehouse. Like Morehouse, respondent agreed to take the test, therefore
satisfying the first element of a McDonnell claim. But, as in Morehouse, respondent did
not establish, nor did the district court find , that he prejudicially relied on the implied-
consent advisory when he decided to take the test.2 Respondent’s claim fails on the second
prong, and he therefore is not entitled to a rescission of his license revocation under
McDonnell.
II. Under the totality of the circumstances, respondent’ s consent to the
warrantless blood test was voluntary.

The commissioner argues that the district court clearly erred when it found that
respondent’s consent was involuntary because an analysis of the totality of the
circumstances shows that respondent voluntarily consented. We agree.

2 Our decision that respondent is not entitled to due-process relief is further guided by this
court’s recent published opinion in Windsor v. Comm’r of Pub. Safety, __ N.W.2d __, __,
2018 WL 5780410, at *3 (Minn. App. Nov. 5, 2018). In Windsor, this court held that the
supreme court’s decisions in Johnson and Morehouse overruled Olinger v. Comm’r of Pub.
Safety, 478 N.W.2d 806 (Minn. App. 1991) (holding a driver could obtain due-process
relief under McDonnell without establishing prejudicial reliance) . Windsor, 2018 WL
5780410, at *3.

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The United States and Minnesota Constitutions prohibit the unreasonable search and
seizure of persons, houses, papers, and effects. U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. Taking a blood sample cons titutes a search under the Fourth Amendment. State v.
Brooks, 838 N.W.2d 563, 568 (Minn. 2013). Warrantless searches are per se unreasonable
and subject to limited exceptions, one of which is consent. Poeschel v. Comm’r of Pub.
Safety, 871 N.W.2d 39, 45 (Minn. App. 2015). To satisfy this exception, the state must
show by a preponderance of the evidence that consent was free and voluntary. Id. Whether
consent to search was voluntary and not the product of duress or coercion is a question of
fact that we review for clear error . State v. Diede , 795 N.W.2d 836, 846 (Minn. 2011).
Findings of fact are clearly erroneous if, based on the entire record, a reviewing court is
left with the definite and firm conviction that a mistake occurred. Id. at 846-47.
Voluntariness must be considered in light of the totality of the 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. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). Consent
to testing is voluntary unless the totality of the circumstances demonstrates that the driver
consented because his will was overborne and his capacity for self -determination was
critically impaired. Brooks, 838 N.W.2d at 571-72; accord Poeschel, 871 N.W.2d at 46. A
person does not consent “simply by acquiescing to a claim of lawful authority.” Brooks,
838 N.W.2d at 569.
The district court found that , based on the totality of the circumstances, the
commissioner failed to establish that respondent freely and voluntarily consented to the
blood test. The district court made findings that Officer Nordby read the implied-consent

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advisory to respondent , which informed him that refusal to take the test was a crime ,
respondent indicated that he understoo d, respondent was given the opportunity to speak
with an attorney but declined, and respondent agreed to take the test only after being read
the advisory. The district court found that there was no evidence showing that respondent’s
consent was the result of a free and voluntary choice unrelated to the misleading advisory
and that “the record does not show that Petitioner’s agreement to take the test was a result
of anything other than the information in the [a]dvisory that he was required to by law, and
would be subject to criminal sanctions if he did not.”
However, t he record here does show facts favoring a finding of voluntariness,
including that respondent indicated he understood, he was given the opportunity to speak
with an attorney, and never indicated that he did not wish to take the test. Further, although
respondent was briefly in custody, the fact that consent to testing was made while in
custody is not dispositive. Brooks, 838 N.W.2d at 571. And the record indicates that
respondent was not yelled at or subjected to repeat questioning by Officer Nordby while in
custody, and the reading of the implied-consent advisory and respondent consenting to the
test took only three minutes. The only circumstance that does not support a finding of
voluntariness is that the implied-consent advisory was misleading when it advised that test
refusal would be a crime . But “a driver’s decision to agree to take a test is not coerced
simply because Minnesota has attached the penalty of making it a crime to refuse the test.”
Brooks, 838 N.W.2d at 570. Further, although respondent did not actually speak with an
attorney, the supreme court has recognized that the ability to consult with counsel supports
a conclusion that consent was voluntary. Id. at 572. We therefore conclude that the district

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court clearly erred because the record did not establish that respondent’s will or capacity
for self-determination were overborne. Respondent’s consent was voluntary based on the
totality of the circumstances.
Because we determine that respondent’s Fourth Amendment rights were not
violated, we need not address the commissioner’s argument regarding the applicability of
the good-faith exception.
Reversed.