State of Minnesota, Respondent,

This opinion will be unpublished and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
A17-0674

State of Minnesota,
Respondent,

vs.

John Duane Fairbanks,
Appellant.

Filed April 2, 2018
Reversed and remanded
Jesson, Judge

Beltrami County District Court
File No. 04-CR-15-3394

Lori Swanson, Attorney General, Cory Beth Monnens, Assistant Attorney General,
St. Paul, Minnesota; and

David Hanson, Beltrami County Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Reyes, Judge; and Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
While dr iving his maroon pickup truck, a ppellant John Duane Fairbanks nearly
collided with a car driven by a Bureau of Criminal Apprehension agent. When law
enforcement officers attempted to stop Fairbanks, he fled and officers gave chase.
2
Fairbanks eventually pulled over and was arrested, charged, and later convicted of fleeing
police and felony driving while impaired ( DWI). Fairbanks appeals his conviction of
felony DWI, challenging the district court’s admission of the results of a urine test he gave
after his arrest, arguing that he did not pro vide adequate consent in part because he was
inaccurately informed that if he failed to take the urine test, he could be charged with a
crime. We reverse and remand for a new trial.
FACTS
On Saturday October 24, 2015, a ppellant John Duane Fairbanks was driving a
maroon pickup truck when he almost collided with a car driven by an agent from the Bureau
of Criminal Apprehension (BCA). Following this near collision, the agent noted that
Fairbanks’s car drifted into different lanes several times and onto th e shoulder of the
highway. The agent activated his car ’s lights and sirens and attempted to pull the pickup
over. At multiple points Fairbanks seemed as if he would stop, but then sped away.
Eventually, he pulled into a driveway and additional law enforcement officers arrived to
assist. Officers approached Fairbanks and noticed he smelled of alcohol, had bloodshot
and watery eyes, and slurred his speech.
Officers transported Fairbanks to the Beltrami County jail. There, Fairbanks
informed officers tha t he was diabetic and had not eaten much that day, that he had
consumed alcohol but “not a lot,” and he was unsure when his last drink was. An officer
asked Fairbanks to complete field sobriety tests including the horizontal gaze test, the walk
and turn, and the one-legged stand. Fairbanks failed each test. Fairbanks was arrested for
driving under the influence of alcohol.
3
The officer read Fairbanks the implied consent advisory, stating that he was required
to take a test to determine if he was under the influence of alcohol. The advisory warned
that Fairbanks’s refusal to take a test would be a crime. He was advised he could speak to
an attorney before consenting to a test, but Fairbanks declined. The officer then asked if
he would provide a urine test and Fairbanks responded yes. Officers offered no other type
of test.
Approximately fifteen minutes passed between Fairbanks ’s original agreement to
take the test and when he actually took the test. During this time, as captured on video,
Fairbanks’s behavior deteriorated . He often sobbed and struggled to stand and sit on his
own. While standing, he began to fall and needed assistance from officers to sit in a chair.
Once in the chair, he slid onto the floor where he cried and repeatedly told officers “I don’t
want to fall over” and “I don’t want to feel stupid right now.” He needed to be lifted off
the floor and back into a chair, continuing to cry and state “I don’t want to feel stupid right
now.” He fell out of the chair again, despite office rs attempting to hold him in place, and
sobbed as he rolled around on the floor. Again officers lifted Fairbanks off the floor and
back into the chair.
Officers told Fairbanks three times during this fifteen -minute period that he could
be charged with a crime for refusal to take the urine test. They stated “if this is
unreasonably delayed you are going to be charged with a refusal,” that “refusal or
unreasonably delaying the test is a crime,” and that “if we keep doing this and we don’t get
the test it will be unreasonably delayed.” They also told him they did not want him “to get
in more trouble.” Officers then attempted to get Fairbanks to the toilet twice, but had to
4
have him sit back down because Fairbanks could not walk. Officers told Fairbanks, due to
his inability to walk to the toilet, “you’re going to be charged with refusal to take a test.”
But officers tried one more time and were able to get Fairbanks to the toilet. Fairbanks had
trouble sitting on the toilet and when sitting, continued to tell officers “help me walk.” An
officer had to remind Fairbanks to stay awake while on the toilet. Eventually, Fairbanks
provided urine for the test. After doing so, Fairbanks asked about the test and seemed
unclear that he had already provided the sample. The test results showed a n alcohol
concentration of 0.149 per 67 milliliters of urine.
Fairbanks was charged with Count I —Felony First-Degree DWI 1 and Count II —
Fleeing a Police Officer.2 Fairbanks filed a motion to suppress the urine test results and to
dismiss the DWI charge for lack of probable cause. Fairbanks argued the district court
should suppress the urine because that test required a warrant, and he did not provide
consent, in part, because officers provided him with inaccurate information when they told
him he could be charged with a crime for refusing to take the urine test. At the time of
Fairbanks’s arrest, the law in Minnesota allowed such prosecution, but while his case was
pending, this court decided such prosecution would be unconstitutional. State v.
Thompson, 873 N.W.2d 873, 880 (Minn. App. 2015), aff’d, 886 N.W.2d 224 (Minn. 2016)
(holding the defendant ’s conviction for refusing to submit to a warrantless urine test
violated his substantive due process rights ). The dis trict court denied Fairbanks’s
suppression motion. When the Minnesota Supreme Court affirmed this court’s decision in

1 In violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24, subd. 1 (2014).
2 In violation of Minn. Stat. § 609.487, subd. 3 (2014).
5
Thompson, Fairbanks filed a motion to reconsider, which was also denied. State v.
Thompson, 886 N.W.2d 224, 234 (Minn. 2016), cert. denied, 137 S. Ct. 1338 (2017).
After Fairbanks’s motion was denied, he agreed to a stipulated facts trial. Parties
agreed to eleven exhibits, including law enforcement incident reports; squad video; video
from the Beltrami County jail where Fairbanks was read the implied consent advisory, and
struggled to but ultimately provided a urine test ; the toxicology report on the urine; and a
copy of Fairbanks’s driver’s license.
Following the stipulated facts trial, under Minnesota Rule of Criminal Procedure
26.01, subdivision 3, the district court found Fairbanks guilty on both counts and sentenced
him on the most severe offense, felony DWI, to 70 months in prison.
Fairbanks appeals his DWI conviction.
D E C I S I O N
Officers informed Fairbanks multiple times that if he did not submit to a urine test
he could be charged with a crime. When officers made these statements, they were
consistent with Minnesota law, but while Fairbanks’s case was pending, this changed.
Thompson made it clear that prosecution for u rine test refusal is unconstitutional.
Fairbanks argues that the inaccuracy of information he received from officers , as well as
his disorientation, physical limitations, and highly emotional state, demonstrate that he did
not consent to the urine test. And because he did not consent, the search violated his Fourth
Amendment rights and the district court erred in failing to suppress the test results.
Fairbanks further argues that his DWI conviction was not surely unattributable to the
admission of the test results and he is entitled to a new trial. We address each issue in turn.
6
I. The district court clearly erred when it found Fairbanks freely and voluntarily
consented to the urine test.

Fairbanks argues that the district court erred in failing to suppress the results of his
urine test because he did not freely and voluntarily consent to the test and therefore the
search violated his Fourth Amendment rights.3 We agree.
Both the United States and Minnesota constitutions provide Fairbanks with a right
to be free from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const.
art. I, § 10. A urine test is a search for the purposes of the Fourth Amendment. State v.
Brooks, 838 N.W.2d 563, 568 (Minn. 2013). There was no warrant to t est Fairbanks’s
urine. W arrantless searches are presumptively unreasonable unless an exception to the
warrant requirement applies. State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). Here,
the exception at issue is consent —whether Fairbanks freely and vol untarily consented to
the urine test. 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
and voluntarily consented.”).
The district court found that Fairbanks consented to the test and made brief findings
stating “[n]othing in the record suggests that [Fairbanks] was coerced in the sense that his

3 Fairbanks also argues that officers violated his due process rights by inaccurately
informing him he could be charged with a crime for refusing to take the urine test, when
the Minnesota Supreme Court has since determin ed this is not in fact the case . See
Thompson, 886 N.W.2d at 234 (stating a person cannot be prosecuted for refusing to submit
to an unconstitutional, warrantless urine test); see also Johnson v. Comm’r of Pub. Safety,
887 N.W.2d 281, 295 (Minn. App. 2016), review granted (Minn. May 30, 2017) (holding
an inaccurate advisory that misinformed the defendant “regarding the potential penalty for
refusing to submit to a urine test” violated his right to due proces s). Because we decide
this case on Fourth Amendment grounds, we do not reach this due process argument.
7
will had been overborne and his capacity for self -determination critically impaired.” W e
review a district’s determination on consent for clear error. Diede, 795 N.W.2d at 845. In
doing so, we subject the claim of consent to “careful appellate review” and examine the
totality of the circumstances surrounding the encounter. State v. George, 557 N.W.2d 575,
580-81 (Minn. 1997). Consent can be voluntary, even when a situation is uncomfortable.
Brooks, 838 N.W.2d at 569. But an individual does not consent simply by “acquiescing to
a claim of lawful authority.” Id. In our careful appellate review of a c onsent claim, we
examine the totality of the circumstances, which includes the nature of the encounter, the
kind of person Fairbanks is, and what was said and how it was said. State v. Harris, 590
N.W.2d 90, 102 (Minn. 1999) (internal citations omitted).
We begin our examination by looking at the nature of the encounter. Fairbanks fled
police, eventually stopped, was arrested by officers and brought to jail. He failed field
sobriety tests and struggled to stand on his own. He was placed under arrest for DWI.
While in custody and under arrest , he was asked to take a urine test and initially agreed.
See Brooks, 838 N.W.2d at 571 ( stating that agreeing to something after arrest is not
dispositive as to valid consent and noting that someone in custody becomes more
susceptible to police duress and coercion ). But before he actually took the urine test,
Fairbanks became increasingly distraught and unable to control his basic motor skills. He
could not remain seated in a chair, falling out of it twice, and succumbed to rolling on the
floor and crying. He repeated the same phrases over and over in response to officers
assisting and instructing him to get up, sit in the chair, and walk to the bathroom. Officers
repeatedly reminded Fairb anks that if he failed to provide a urine sample, he would be
8
charged with refusal. And o fficers attempted three different times to get Fairbanks to the
bathroom. Once there, Fairbanks struggled to sit on the toilet seat, was unclear as to what
he was supposed to do once seated on the toilet seat, and after he provided the urine sample,
he did not seem to understand that he had provided it.
Next, we look at the type of person Fairbanks is. Fairbanks informed officers that
he is diabetic and had not consumed much food that day. We also note that Fairbanks was
in a highly emotional and disoriented state throughout much of his interaction with officers.
And as to what was said and how, an officer read Fairbanks the implied consent
advisory and asked him to take a urine test. Fairbanks agreed, but then struggled to provide
that sample. While struggling, officers told him multiple times that if he did not take the
test, or caused unreasonable delay, he would be charged with a crime. This information
was inaccurate since the Minnesota Supreme Court has since determined it is
unconstitutional to prosecute an individual for re fusing to submit to a warrantless urine
test. Thompson, 886 N.W.2d at 254 . And the fact that the officer ’s statements were
inaccurate, warning of what would be an unconstitutional prosecution is a relevant
consideration in the totality of the circumstances surrounding consent. See Birchfield v.
North Dakota, 136 S. Ct. 2160, 2186 (2016) (remanding case to the state court to reevaluate
consent given an inaccurate implied consent advisory).
We determine that because Fairbanks was already in custody when he agreed to a
urine test, he was disoriented and had to be helped to the toilet and reminded not to fall
asleep, he was highly di straught and emotional, and he was provided inaccurate
information from officers regarding the consequences for failing to take the test, the totality
9
of the circumstances here demonstrate that Fairbanks did not freely and voluntarily consent
to a urine test.4
The state’s argument that Fairbanks consented to the urine test focuses primarily on
his initial, verbal agreement to that test. But consent is more than mere verbal agreement.
When we consider whether consent is properly given, we do not view a snapshot moment,
rather we view both words and actions, in light of surrounding circumstances. Diede, 795
N.W.2d at 847-48. And it is Fairbanks’s actions here , as well as the circumstances under
which he agreed to the urine test, that give us pause. It is, after all, the state’s burden to
prove that the totality of circumstances surrounding that agreement supports free and
voluntary consent. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). Fairbanks’s initial
verbal agreement to the test is not enough to support that burden.
We acknowledge that many suspected of driving under the influence and related
crimes may be disoriented but may still provide free and voluntary consent. But the totality
of the specific facts of this case —where disorientation was severe, coupled with physical

4 Both parties compare this case to Brooks, the seminal recent case where the Minnesota
Supreme Court determined the defendant voluntarily consented to warrantless blood and
urine tests to determine alcohol concentration . 838 N.W.2d at 568. But Brooks was
decided prior to Thompson, 873 N.W.2d 873 and State v. Trahan, 886 N.W.2d 216 (Minn.
2016) (holding it is unconstitutional to prosecute a defendant for refusing a warrantless
blood test), and those cases do not apply retroactively. State v. Brooks, 897 N.W.2d 811,
816 (Minn. App. 2017). Because Thompson was decided while this case was pending, it
is appropriate that we consider its holding, and thus that the officers provided Fairbanks
inaccurate information, in the totality of the circumstances. Additionally, the facts in
Brooks and the facts here are distinguishable. Brooks was arrested for DWI three different
times, was read the implied consent advisory each time, contacted an attorney prior to
taking each of the blood and urine tests, and his emotional state never rose above agitation.
Id. at 565 -67. Here, Fairbanks did not contact an attorney , was provided inaccurate
information by officers, and was disoriented and emotional, beyond that of mere agitation.
10
limitations and repeated inaccurate information from officers—demonstrates that Fairbank
could not provide free and voluntary consent.
As a result, the district court’s finding that there was consent is clearly erroneous.
And because Fairbanks did not consent to the urine test, the test violated his Fourth
Amendment right to be free from an unreasonable, warrantless search. The general remedy
for a constitutional violation is suppression ; therefore, the urine test results should have
been suppressed. State v. Jackson, 742 N.W.2d 163, 178 (Minn. 2007).5
II. Failure to suppress the urine test results was not harmless beyond a reasonable
doubt and Fairbanks is entitled to a new trial.

Having determined that the district court erred by failing to suppress the urine test
results, the question now becomes whether this error was harmless beyond a reasonable
doubt. State v. Horst , 880 N.W.2d 24, 37 (Minn. 2016). This standard requires that the

5 There are exceptions that apply to the suppression remedy, including the good-faith
exception, which the state urges us to apply. The good-faith exception could allow for the
admission of the urine test results, even though officers misled Fairbanks as to the
consequences of not taking the test, because officers relied on what was good law at the
time. State v. Lindquist , 869 N.W.2d 863, 871 (Minn. 2015) (declining to suppress
evidence from a search “conducted in reasonable reliance on binding appellate precedent”).
But the state did not raise the good -faith exception at the district court level. Fairbanks
brought a motion to reconsider suppression of the urine test results, specifica lly citing the
Minnesota Supreme Court’s decision in Thompson, and the court heard arguments. This
provided a clear opportunity for the state to argue good faith, and it failed to do so. While
the state argues we could still address the exception under M innesota Rule of Criminal
Procedure 29.04, subdivision 6, which permits “a party, without filing a cross -petition, to
defend a decision or judgment on any ground that the law and record permit that would not
expand the relief that has been granted to the p arty,” this rule generally applies to parties
before the Minnesota Supreme Court. The subdivision begins by stating, “[a] party cross-
petitioning for review to the Supreme Court. . .” Id. (emphasis added). While we have, on
occasion, allowed parties to raise alternative arguments under this rule, we decline to do so
here because the state had ample opportunity and should have raised the good -faith
exception to the district court. See Ries v. State, 889 N.W.2d 308, 316 (Minn. App. 2016).
11
guilty verdict for DWI in this case is surely unattributable to the admission of the test,
otherwise Fairbanks is entitled to a new trial . Id.; State v. Roberts , 296 Minn. 347, 353,
208 N.W.2d 744, 748 (1973). State v. Al-Naseer sets out the factors this court considers
when determining whether a verdict is surely unattributable to error. 690 N.W.2d 744, 748
(Minn. 2005). Those factors include “ the manner in which the evidence was presented,
whether it was highly persuasive, whether it was used in closing argument, and whether it
was effectively countered by the defendant.” Id. We address each factor in turn.
Looking first at how the evidence was presented, the BCA report on the alcohol
content of Fairbanks’s urine was one of eleven exhibits submitted. While the state argues
this was just one of many pieces of evidence, the Minnesota Supreme Court has previously
held that a BCA report is not likely lost “among a plethora of other evidence” in a short
court trial that include d testimony of four witnesses, in addition to the report. State v.
Caulfield, 722 N.W.2d 304, 307, 314 (Minn. 2006). Just as the test in Caulfield was not
lost in the plethora of evidence, neither was the test here. Second, the test results are highly
persuasive as they provided the only scientific proof that Fairbanks’s alcohol content was
well over the legal limit. In fact, the results were so persuasive that the court’s order finding
Fairbanks guilty of first-degree felony DWI cited only that single piece of evidence.6
There were no closing arguments in the case, therefore the third Al-Naseer factor
does not apply. And looking at the fourth element, how effectively Fairbanks countered
the evidence here, he arguably could not. While Fairbanks strongly objected to the

6 The court did mention Fairbanks’s failed sobriety tests in its memo accompanying the
order.
12
admission of the test results, he was unable to produce evidence to refute the scientific
results.
Thus, while there is significant circumstantial evidence that Fairbanks was under
the influence of alcohol, including his failed field sobriety tests, slurred speech, and
emotionally unstable state, the urine test results provided critical evidence of Fairbanks’s
alcohol concentration level. This evidence is particularly important since Fairbanks told
the officers he is diabetic and had not eaten much that day , which could have affected his
behavior. As stated in Caulfield, “we do not have a single case where we have held that
the admission of direct and persuasive evidence on an element of the crime is harmless
because other less direct and less persuasive or largely circumstantial evidence is strong. ”
722 N.W.2d at 317; see also State v. Wright, 726 N.W.2d 464, 469, 476-79 (Minn. 2007)
(holding that the trial court’s error in admitting statements victims made to police officers
during their field investigation was not harmless); State v. Weaver, 733 N.W.2d 793, 801-
02 (Minn. App. 2007) ( holding that the error in admitting test results through expert’s
testimony was not harmless but rather warranted new trial), review denied (Minn. Sept. 18,
2007). Similarly, we are not persuaded here that the admission of the urine test results was
harmless beyond a reasonable doubt. Fairbanks is enti tled to a new trial that does not
include his urine test results.
Reversed and remanded.