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This opinion will be unpublished and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
A18-1774

State of Minnesota,
Respondent,

vs.

Cory Francis Sandhurst,
Appellant.

Filed September 16, 2019
Affirmed
Reyes, Judge

Lyon County District Court
File No. 42-CR-17-1298

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

Rick Maes, Lyon County Attorney, Marshall, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Tracy M. Smith, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this direct appeal from final judgment s of conviction of driving while impaired,
appellant argues that law enforcement failed to vindicate his limited constitutional right to

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counsel before deciding whether to submit to a chemical test pursuant to a warrant . We
affirm.
FACTS
In August 2017, a law-enforcement officer located appellant Cory Francis Sandhurst
in the driver’s seat of his parked vehicle. Appellant admitted to the officer that he had been
drinking, and the officer observed indicia that the car had been running recently and shut
off. The officer arrested appellant and transported him to the police station for failing to
respond to requests for field sobriety and preliminary breath tests.
The officer applied for and obtained a search warrant for a blood or urine sample.
The officer reviewed the warrant w ith appellant, provided him with the required warrant
advisory,1 and then asked him if he would provide a blood or urine sample. Appellant
repeatedly asked to speak with an attorney , and the officer informed him that he could
speak with an attorney after he provided the sample. Appellant refused to provide a blood
sample but agreed to provide a urine sample, and the test results revealed an alcohol
concentration of 0.216.
The state charged appellant with one count of third -degree driving while impaired
(over 0.08), Minn. Stat. § 169A.20, subd. 1(5) (2016), and one count of third-degree driving
while impaired (under the influence), Minn. Stat. § 169A.20, subd. 1(1) (2016). Appellant

1 Minn. Stat. § 171.177, subd. 1 (2018), provides that, “[a]t the time a blood or urine test is
directed pursuant to a search warrant under sections 626.04 to 626.18, the person must be
informed that refusal to submit to a blood or urine test is a crime.” If the person refuses
the chemical test, “then [it] must not be given,” unless certain circumstances exist, which
are not present here. Minn. Stat. § 171.177, subd. 13(a) (2018).

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moved to dismiss his charges and suppress the test results based on the officer’s failure to
vindicate his right to counsel before making “ the critical decision of whether to submit to
the chemical test .” The district court held an omnibus hearing and subsequently denied
appellant’s motion. The parties agreed to a stipulated court trial pursuant to Minn. R. Crim.
P. 26.01, subd. 4. The district court found appellant guilty of both counts, imposed a
sentence on count 1 of 365 days in jail with 350 days stayed , and placed appellant on
probation for two years. This appeal follows.
D E C I S I O N
Appellant argues that the district court erred by denying his motions to suppress and
dismiss because, even subject to a search warrant, he faced a “unique choice” similar to the
one in Friedman v. Comm’r of Pub. Safety , 473 N.W.2d 828, 8 32 (Minn. 1991),2 that
triggered his “limited right to consult an attorney before deciding whether or not to submit
to chemical testing for blood alcohol.” We disagree.
“The determination of whether an officer vin dicates a driver’s right to counsel is a
mixed question of law and fact.” Hartung v. Comm’r of Pub. Safety, 634 N.W.2d 735, 737
(Minn. App. 2001), review denied (Minn. Dec. 11, 2001). When the parties do not dispute
the facts, as here, appellate courts review the district court’s legal determination de novo.

2 In Friedman, an implied -consent case, the supreme court determined that a driver’s
decision regarding whether to submit to chemical testing is a “critical and binding” one
that will affect the driver in subsequent proceedings. 473 N.W.2d at 832. As a result, when
asked to submit to a chemical test, drivers find themselves at a “critical” stage in the DWI
process, thus triggering a “limited right to consult an attorney before deciding whether or
not to submit to chemical testing.” Id. at 829.

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Kuhn v. Comm’r of Pub. Safety , 488 N.W.2d 838, 840 (Minn. App. 1992), review denied
(Minn. Oct. 20, 1992).
Appellant acknowledges that State v. Rosenbush, 931 N.W.2d 91, 93, (Minn. 2019),
is relevant to the issue in his case . In Rosenbush, police arrested Rosenbush for driving
while intoxicated and obtained a search warrant to obtain a blood sample from her. Id. An
officer served Rosenbush with the warrant and read the warrant advisory. Rosenbush
submitted to testing. She later moved to suppress her blood-test results, arguing that, under
Friedman, while she didn’t ask to talk to her attorney, the officer failed to vindicate her
limited constitutional right to counsel before submitting to the test. Id. at 94. Rosenbush
asserted that, like the driver in Friedman, she faced a choice of either submitting to the test
and giving the police potentially incriminating evidence or refusing and having her license
automatically revoked. Id. at 97.
The supreme court held that “the limited right to counsel established in Friedman
does not apply when an individual is asked to submit to a blood test pursuant to a warrant,”
id. at 93, because the presence of a warrant “fundamentally changes [a driver’s] encounter
from the one at issue in Friedman,” id. at 97. The supreme court reasoned that the decision
whether to comply with a warrant is not a unique one because every person who is the
subject of a warrant has that choice, 3 and the Minnesota Constitution does not provide
subjects of a search warrant with the right to counsel before the warrant is executed. Id. at
98. Additionally, the supreme court noted that the existence of a search warrant eliminates

3 Rosenbush cites to Minn. Stat. § 609.50, subd. 1(1) (2018) (making it a crime to obstruct,
hinder, or prevent police from lawfully executing any legal process). Id. at 98

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many of the concern s that the Friedman court’s limited expansion of the right to counsel
intended to address. Id. Specifically, the involvement of a neutral judicial officer who
determines that the police may lawfully obtain a sample from the driver addresses the
Friedman court’s concern of drivers being faced with the “unch ecked legal power of the
state.” Id. (quotation omitted).
Rosenbush is dispositive of appellant’s case. Here, as in Rosenbush, the officer
applied for and obtained a search warrant, reviewed it with appellant, and provided a
warrant advisory . Both Rosenbush and appellant eventually submitted to testing, with
Rosenbush providing a blood sample and appellant refusing to provide a blood sample but
agreeing to provide a urine sample. Both subsequently challenged the denial of their
motions to suppress evidence, making identical arguments about their alleged limited right
to counsel. Under Rosenbush, the “unique choice” appellant claims he faced is not enough
to justify an extension of Friedman’s limited right to counsel pursuant to a warranted
search.
Affirmed.