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This opinion will be unpublished and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
A18-1100

State of Minnesota,
Respondent,

vs.

Dennis Dean Blumke,
Appellant.

Filed July 8, 2019
Affirmed
Cochran, Judge

Swift County District Court
File No. 76-CR-14-345

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

Danielle H. Olson, Swift County Attorney, Allison T. Whalen, Assistant County Attorney,
Benson, Minnesota (for respondent)

John D. Ellenbecker, St. Cloud, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Smith, T racy M., Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Dennis Dean Blumke challenges the district court’s c onclusion that he
freely and voluntarily consented to the collection of a sample of his blood. Because the
facts support the district court’s conclusion, we affirm.

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FACTS
In June 2014, a Swift County deputy sheriff was called to a vehicle that appeared to
have veered off the road into a ditch. The deputy sheriff coul d smell the odor of an
alcoholic beverage coming from the vehicle. The deputy sheriff identified Blumke as the
d r i v e r a n d c o n d u c t e d f i e l d s o b r i ety tests. After Blumke failed field sobriety tests, the
sheriff’s deputy arrested Blumke for driving while impaired (DWI). The sheriff’s deputy
transported Blumke to the Swift County jail, where he read Blum ke the Minnesota
implied-consent advisory. The deputy sheriff told Blumke that “Minnesota law requires
you to take a test to determine if you are under the influence of alcohol” and that “refusal
to take a test is a crime.” The deputy sheriff did not specify at that time what type of test
would be required.
Blumke then asked to speak to an attorney. After Blumke spoke with an attorney,
the deputy sheriff asked him, “Will you take the breath test?” Blumke responded, “I am
requesting a blood test.” Blumk e clarified that he was not ref using a breath test, but that
he was requesting a blood test i nstead. The deputy sheriff agr eed to allow a blood test
rather than a breath test and transported Blumke to the hospital where a blood sample was
drawn. Blumke’s blood sample was sent to the Minnesota Bureau of Criminal
Apprehension where a forensic scientist determined that Blumke’ s alcohol concentration
was 0.104.
The state charged Blumke with one count of third-degree DWI. Blumke moved to
suppress the results of the blood test on constitutional grounds, arguing that his consent to
the blood test was coerced. The district court denied Blumke’s motion. The parties then

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submitted the case to the district court for a trial by stipula ted facts pursuant to Minn. R.
Crim. P. 26.01, subd. 3, and the district court found Blumke guilty.
Shortly after the district cour t found Blumke guilty, the Unite d States Supreme
Court issued its decision in Birchfield v. North Dakota , 136 S. Ct. 2160 (2016). In
Birchfield, the Supreme Court examined how the search-incident-to-arrest doctrine applies
to breath tests and blood tests incident to DWI arrests. 136 S . Ct. 2160 at 2183-85. The
Supreme Court held that the Fourth Amendment permits the administration of warrantless
breath tests as a search inciden t t o a r r e s t f o r D W I o f f e n s e s b ut does not permit the
administration of warrantless bl ood tests as a search incident to arrest for DWI offenses.
Id. at 2185. Applying this rule, the Supreme Court upheld a convi ction for refusing a
warrantless breath test following an arrest for DWI, but reversed a conviction for refusing
a warrantless blood test following an arrest for DWI. Id. at 2186-87; see also Johnson v.
State, 916 N.W.2d 674, 682 (Minn. 2018) (explaining that under Birchfield, individuals
may be convicted of the crime of test refusal for refusing to submit to a breath test, but may
only be convicted for refusing a blood or urine test if the police have a search warrant or a
valid exception to the warrant requirement applies).
Blumke requested a new trial in light of the Birchfield decision. The district court
denied Blumke’s request, and he appealed to this court. State v. Blumke, No. A16-1840,
2017 WL 4105194 (Minn. App. Sept. 18, 2017). This court held t hat “the district court
erred by declining to consider [Blumke’s] case in light of Birchfield,” and reversed and
remanded for additional factual findings on the voluntariness o f Blumke’s consent to the
blood test. Id. at *2.

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In February 2018, the district court held an evidentiary hearin g during which the
deputy sheriff testified that Blumke clearly and unequivocally requested a blood test. The
deputy sheriff testified that he did not suggest the possibilit y of a blood test as an option
and that the blood test was Blumke’s idea. The deputy sheriff further testified that Blumke
was not subject to intensive questioning and never appeared emotional during questioning.
Following the hearing, the district court found that Blumke fre ely and voluntarily
consented to a blood test, denied Blumke’s motion to suppress e vidence, and reinstated
Blumke’s conviction and sentence.
This appeal follows.
D E C I S I O N
The Fourth Amendment protects against unreasonable searches and seizures. U.S.
Const. amend. IV. The collection of a blood sample constitutes a search under the Fourth
Amendment. State v. Stavish , 868 N.W.2d 670, 674-75 (Minn. 2015). A warrantless
search of a person is per se unreasonable unless it falls withi n a limited exception to the
warrant requirement. Id. 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. State v. Brooks, 838 N.W.2d
563, 568 (Minn. 2013). “Whether consent is voluntary is determ ined by examining the
totality of the circumstances.” Id. (quotation omitted); see also Birchfield , 136 S. Ct. at
2186.
When reviewing a pretrial order on a motion to suppress evidence, appellate courts
independently review the facts and determine, as a matter of law, whether the district court

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erred by denying the motion. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). When the
facts are not in dispute, appellate courts review the issue de novo. Id. Reversal of the
district court’s factual findings is not warranted unless they are clearly erroneous. State v.
Ruoho, 685 N.W.2d 451, 458 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).
Blumke argues that his consent to a b l o o d t e s t w a s n o t v o l u n t a ry in light of
Birchfield’s holding that states may not criminalize an individual’s refusal to submit to a
warrantless blood test following an arrest for DWI. Blumke contends that, post-Birchfield,
the implied-consent advisory that Blumke received was inherentl y coercive and does not
survive the totality-of-the-circumstances analysis. Blumke’s argument is without merit.
In this case, the deputy sheriff asked Blumke for a breath test after telling him that
refusal to consent to the test would be a crime. Under Minneso ta law and the Supreme
Court’s decision in Birchfield, the state could legally charge Blumke with a crime for
refusing to submit to a breath test. Minn. Stat. § 169A.20, subd. 2 (2018);1 Birchfield, 136
S. Ct. at 2186-87; Johnson, 916 N.W.2d at 682. The deputy sheriff did not request a blood
test or tell Blumke that refusi ng to submit to a blood test wou ld be a crime. The deputy
sheriff accurately advised Blumke about his rights and the cons equences for refusing to
submit to a breath test. As the Minnesota Supreme Court held i n Brooks, accurately

1 We note that under Minnesota’s test refusal law in place at th e time of Blumke’s arrest,
refusal to submit to a blood or urine test was also a crime. Minn. Stat. § 169A.20, subd. 2
(2012). The law was amended after the Birchfield decision, and now refusal to submit to
a blood or urine test is only a crime if the blood or urine test is required by a search warrant.
Minn. Stat. § 169A.20, subd. 2. Refusal to submit to a breath test remains a crime. Id.

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advising an individual of the consequences of refusing a chemic al test does not constitute
coercion. 838 N.W.2d at 572.
After consulting with an attorney, Blumke himself requested a blood test in place of
a breath test. Blumke not only freely and voluntarily consente d to a blood test, he
affirmatively asked for a blood t est in place of a breath test, w h i c h t h e s t a t e w a s
constitutionally permitted to require.
Blumke argues that his consent was nonetheless involuntary, not ing that the
Supreme Court stated in Birchfield that “motorists cannot be deemed to have consented to
submit to a blood test on pain of committing a criminal offense . ” 1 3 6 S . C t . a t 2 1 8 6 .
Blumke’s argument reads that language out of context. The statement comes from a section
of Birchfield examining whether a motorist’s c onsent to a blood test can be i nferred “by
virtue of a decision to drive on public roads.” Id. at 2185-86. The quoted language deals
with implied consent, not express consent, as Blumke suggests. Furthermore, the Supreme
Court did not hold in Birchfield that a driver’s voluntary and express consent to a blood
test after being read a lawful implied-consent advisory violate s the Fourth Amendment’s
prohibition against unreasonable searches. Rather, the Supreme Court recognized that “a
search is reasonable when the subject consents.” Id. at 2185. The Supreme Court stated
that “voluntariness of consent to a search must be determined f rom the totality of all the
circumstances.” Id. at 2186 (quotation omitted).
Birchfield dealt with three consolidated cases. Id. One of the three cases involved
an individual who submitted to a blood test after being advised by a police officer that the
law required his submission to the test. Id. at 2186. After determining that the state could

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not compel a blood test, the Supreme Court remanded that case to state court to reevaluate
whether the individual’s consent was voluntary in light of the partial inaccuracy of the
police officer’s advisory. Id. Thus, the Supreme Court declined to adopt a per se rule that
a defendant cannot give voluntary consent to a blood test after hearing even an inaccurate
implied-consent advisory. This court followed the Supreme Cour t’s procedure and
remanded Blumke’s case after his first appeal. Blumke, 2017 WL 4105194 at *2
(remanding “for additional factual findings on the voluntariness of [Blumke’s] consent to
the warrantless blood test under the totality of the circumstan c e s , a n d i n a m a n n e r
consistent with the Birchfield ruling”).
Applying the “totality of all the circumstances” test to this c ase, we conclude that
Blumke freely and voluntarily consented to a blood test. Becau se the deputy sheriff only
requested a breath test, his statement that Blumke could be cha rged with a crime for
refusing the test was accurate. Blumke does not cite to any ci rcumstances beyond the
reading of the implied-consent advisory that would support a finding that his consent was
not voluntary. Blumke freely and voluntarily consented to a blood test, in place of a breath
test, after the deputy sheriff accurately advised him as to the criminal penalties for refusing
a breath test.
Affirmed.