State of Minnesota, 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This opinion will be unpublished and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
A18-0095

State of Minnesota,
Respondent,

vs.

Daniel Richard LeBre,
Appellant.

Filed January 14, 2019
Reversed and remanded
Halbrooks, Judge

Hennepin County District Court
File No. 27-CR-15-10774

Keith M. Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant
Public Defender, Eagan, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Halbrooks, Judge; and
Schellhas, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges his conviction of driving while impaired (DWI), arguing that
the district court erred in denying his motion to suppress evidence resulti ng from a

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warrantless urine test because he did not validly consent to the test. We reverse and
remand.
FACTS
On February 19, 2015, Bloomington Police Officer Christopher Wegner responded
to a report of a possible tra ffic accident. The collision was mino r, and when Officer
Wegner arrived at the scene , one of the vehicles was alrea dy leaving. Officer Wegner
spoke with appellant Daniel Richard LeBre, the driver of the remaining car, who had
caused the collision. While speaking with LeBre, Officer Wegner observed that his speech
was “slow and lethargic.” LeBre’s vehicle was equipped with an ignition-interlock system,
so Officer Wegner asked him to turn off the vehicle and restart it. LeBre was able to restart
the vehicle, which indicated that the system did not register a reading of any alcohol on his
breath. Because LeBre did not have a valid license, Officer Wegner issued him a citation
for driving without a license and instructed him to park his car in a ne arby lot. Officer
Wegner followed LeBre until he turned into the parking lot and then resumed patrol.
When LeBre turned into the parking lot, he st ruck a parked car. The owner of the
parked vehicle called 911, and Officer Wegner responded to the call. He again observed
that LeBre’s speech was slow and lethargic. Additionally, LeBre “seemed unsteady on his
feet.” Based on these observations, O fficer Wegner decided to administer field sobriety
tests. When asked if he had any physical limitations, LeBre responded that he did not. But
he informed Officer Wegner that he had prescriptions for Oxycodone and Ativan and had
taken both that morning. After administering field sobriety tests, Officer Wegner arrested
LeBre on suspicion of DWI.

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Officer Wegner transported LeBre to the p olice department. While there, Officer
Wegner read LeBre the implied-consent advisory, which states that refusal to submit to
chemical testing is a crime. After being read the implied -consent advisory, LeBre agreed
to take a urine test. The test revealed the p resence of Oxycodone and Oxymorphone.
Because LeBre took a urine test, rather than a blood test, the analyst was not able to
quantify the amount of Oxycodone in the sample.
Respondent State of Minnesota charged LeBre with one count of DWI under Minn.
Stat. § 169A.20, subd. 1(2) (2014). LeBre moved to suppress the evidence resulting from
the warrantless urine test. LeBre argued that his consent to the test was not voluntary
because it was obtained under the threat of additional criminal penalties. The district court
denied the motion. The district court determined that the warrantless urine test could be
requested as a search incident to arrest and that LeBre voluntarily consented to the test.
The district court held a jury trial. The jury found LeBre guilty. The district court
sentenced LeBre to 51 months in prison. This appeal follows.
D E C I S I O N
When reviewing a pretrial order on a motion to suppress evidence, we independently
review the facts and determine, as a matter of law, whether the district court erred by
denying the motion. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). When the facts are
not in dispute, our review is de novo, and we must determine whether the police articulated
an adequate basis for the search or seizure. Id. This court will not reverse the district
court’s factual findings unless they are clearly erroneous. State v. Ruoho, 685 N.W.2d 451,
458 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).

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The Fourth Amendment protects against unreasonable searches and seizures. State
v. Stavish , 868 N.W.2d 670, 674 -75 (Minn. 2015). The collection of a urine sample
constitutes a search under the Fourth Amendment. State v. Brooks, 838 N.W.2d 563, 568
(Minn. 2013). A search is presumptively unreasonable when police do not have a warrant.
Stavish, 868 N.W.2d at 675. Evidence collected through an illegal search may be excluded.
State v. Lindquist , 869 N.W.2d 863, 868 -69 (Minn. 2015). A warrantless search is
reasonable only if it falls within a defined exception to the warrant requirement. Stavish,
868 N.W.2d at 675.
Consent is one exception to the warrant requirement. State v. Diede, 795 N.W.2d
836, 846 (Minn. 2011). The state bears the burden of establishing that the defendant “freely
and voluntarily” consented to the search. Brooks, 838 N.W.2d at 568. “Whether consent
was voluntary is determined by examining the totality of the circumstances, including the
nature of the encounter, the kind of person the defendan t is, and what was said and how it
was said.” Harris, 590 N.W.2d at 102 (quotation omitted). Whether consent was voluntary
is a question of fact that is reviewed for clear error. Diede, 795 N.W.2d at 846-47.
LeBre argues that the district court erred by determining that he voluntarily
consented to the urine test. In determining that LeBre voluntarily consented to the urine
test, the district court first acknowledged that the supreme court has held that the criminal
penalties attached to test refusal d o not render the defendant’s consent invalid. Brooks,
838 N.W.2d at 570. The supreme court observed that “[a]lthough refusing the test comes
with criminal penalties in Minnesota” and “the choice to submit or refuse to take a chemical
test will not be an easy or pleasant one . . . the criminal process often requires suspects and

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defendants to make difficult choices.” Id. at 571 (quotations omitted). Based on this
reasoning, the district court determined that “[s]imply because none of the options offered
were attractive to [LeBre] does not mean that [LeBre] did not have a choice.” The district
court also observed that LeBre had been lawfully stopped and arrested and that the implied-
consent advisory made it clear that if he refused to take a test, no test would be
administered. Based on these circumstances, the district court determined that LeBre
voluntarily consented to the urine test.
LeBre argues that the district court’s reliance is misplaced because the defendant in
Brooks was read an accurate implied-consent advisory, while he was not. At the time of
the district court’s order, the supreme court had decided State v. Bernard, which held that
a breath test following an arrest for suspicion of DWI was a valid search incident to arrest.
859 N.W.2d 762, 767 (Minn. 2015). The supreme court determined that because a search
of the defendant’s breath would be permissible as a search incident to arrest, the criminal
penalties attached to test refusal did not offend due process. Id. at 773-74. But the supreme
court explicitly declined to reach the issue of whether a urine test qualified as a search
incident to arrest. Id. at 768 n.6.
Here, the district court determined that urine testing was analogous to breath testing,
and therefore the reasoning i n Bernard applied. But the supreme court has since decided
State v. Thompson, which held that “a warrantless urine test does not qualify as a search
incident to a valid arrest of a suspected drunk driver.” 886 N.W.2d 224, 233 (Minn. 2016).
Therefore, a driver cannot be prosecuted for refusing to submit to a urine test. Id. at 234.
Accordingly, LeBre was read an inaccurate implied -consent advisory. He argues t hat

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because the advisory inaccurately informed him that he could be prosecuted for test refusal,
the district court erred in determining that his consent was valid.
The United States Supreme Court addressed a similar issue in Birchfield v. North
Dakota. 136 S. Ct. 2160 (2016). Defendant B eylund was arrested in North Dakota for
DWI and read an implied-consent advisory that informed him that test refusal was a crime.
Id. at 2172. Beylund agreed to take a blood test, which revealed an alcohol concentration
above the legal limit. Id. As a result, his license was suspended. Id. Beylund appealed
and argued that his consent to the blood test was invalid because the officer instructed him
that refusal to submit to the test was a crime . Id. The North Dakota Supreme Court
affirmed the license suspension, “ emphasiz[ing] that North Dakota’s implied consent
advisory was not misleading because it truthfully related the penalties for refusal.” Id.
The Un ited States Supreme Court determined that the state could not compel
warrantless blood tests and consequently could not attach criminal penalties to test refusal.
Id. at 2185-86. Therefore, the implied-consent advisory inaccurately advised Beylund that
he could be prosecuted for refusing a blood test. Id. at 2186. The Supreme Court remanded
to the North Dakota Supreme Court to “reevaluate Beylund’s consent given the partial
inaccuracy of the officer’s advisory [in light of the Supreme Court’s decision].” Id.
(footnote omitted).
Here, LeBre was similarly told tha t refusal to submit to a urine test was a crime.
But in Thompson, the Minnesota Supreme Court determined that because a urine test did
not qualify as a search incident to arrest, the state could not attach criminal penalties to
refusal to take a urine test. 886 N.W.2d at 234. The district court did not have the benefit

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of the supreme court’s decision in Thompson when it determined that LeBre voluntarily
consented to the urine test. The district court was therefore unable to consider the partial
inaccuracy of the implied -consent advisory as a circumstance when evaluating the
voluntariness of LeBre’s consent. Based on Birchfield, this is a relevant circumstance that
must be considered when evaluating consent. 136 S. Ct. at 2186.
The state argues that the good -faith exception to the warrant requirement applies
and therefore the results of the urine test do not need to be suppressed. The good -faith
exception provides that the “exclusionary rule does not apply to violations of the Fourth
Amendment to the U.S. Constitution, or Ar ticle I, Section 10, of the Minnesota
Constitution when law enforcement acts in objectively reasonable reliance on binding
appellate precedent.” Lindquist, 869 N.W.2d at 876. This issue was presented to, but not
decided by, the district court. Accordingly, this court cannot review it. Thiele v. Stich, 425
N.W.2d 580, 582 (Minn. 1988); see also Welch v. Comm’r of Pub. Safety , 545 N.W.2d
692, 694 (Minn. App. 1996) (“A remand may be required if the trial court fails to make
adequate findings.”).
Finally, the state argues that any error in the admission of the result of the urine test
was harmless beyond a reasonable doubt. When an error implicates a constitutional right,
“a new trial is required unless the [s]tate can show beyond a reasonable doubt that the error
was harmless.” State v. Sanders, 775 N.W.2d 883, 887 (Minn. 2009). An error is harmless
beyond a reasonable doubt if the “verdict was surely unattributable to the error.” Id. The
state argues that because the analyst was unable to quantify the amount of Oxycodone and
Oxymorphone in LeBre’s system, the result was merely cumulative to LeBre’s own

8
admission that he had taken Oxycodone that morning. But the state was required to prove
that LeBre was under the influence of a controlled substance at the time he was operating
the vehicle. Minn. Stat. § 169A.20, subd. 1(2). LeBre admitted he had taken Oxycodone
earlier that morning, but at trial argued that he was no longer unde r the influence of the
substance at the time he was operating the vehi cle. The test results confirmed that there
was Oxycodone in LeBre’s system while he was operating the vehicle; his own admission
did not provide such evidence. Thus, the jury verdict was not “surely unattributable” to
the admission of the test results.
Accordingly, we reverse and remand to the district court to reconsider whether
LeBre’s consent was voluntary in light of the inaccuracy of the implied-consent advisory.
The district court may also consider whether the good-faith exception applies.1
Reversed and remanded.

1 We express no opinion on how the district court should resolve these issues. Whether the
record should be reopened on remand is left to the district court’s discretion.