Donovan Jon Gilfillan, petitioner, Appellant,

This opinion will be unpublished and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
A18-2081

Donovan Jon Gilfillan, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed August 26, 2019
Affirmed
Cochran, Judge

Wright County District Court
File No. 86-CV-18-506

Daniel M. Mohs, Minneapolis, Minnesota (for appellant)

Keith Ellison, Attorney General, St ephen D. Melchionne, Assista nt Attorney General,
St. Paul, Minnesota (for respondent)

Considered and decided by Coch ran, Presiding Judge; Worke, Jud ge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Donovan Jon Gilfillan challenges the district court’s denial of his petition
to rescind the revocation of his driving privileges. Gilfillan argues that the district court
violated the best-evidence rule by declining to admit an audio recording of the
implied-consent process and e rred by concluding that Gilfillan freely and voluntarily

2
consented to submit to a breath test. Because the district cou rt did not violate the best-
evidence rule, and the evidence supports the district court’s finding that Gilfillan freely and
voluntarily consented to submit to the breath test, we affirm.
FACTS
In December 2017, a Minnesota State Patrol trooper initiated a traffic stop of
appellant Donovan Jon Gilfillan. The trooper arrested Gilfillan for driving while impaired
(DWI). The trooper brought Gilfillan to the Wright County Jail . Before reading the
implied-consent advisory, the trooper told Gilfillan that there would be a 15-minute
observation period to ensure that he did not have anything in h is mouth that could affect
the breath test. Gilfillan asked what would happen if he burpe d or coughed during the
observation period. The trooper responded that, if he could not get a valid breath test, he
could elect to seek a blood or urine test.
The trooper then read Gilfillan th e implied-consent advisory, i nforming Gilfillan
that he was under arrest for DWI, that he was required to submit to a breath test, that refusal
to submit to a breath test was a crime, and that Gilfillan had the right to contact an attorney.
Gilfillan said that he understood the advisory and that he want ed to contact an attorney.
Gilfillan attempted to contact a particular attorney but was unsuccessful. Gilfillan declined
to attempt to contact any other attorney.
The trooper then asked Gilfillan whether he would submit to a breath test. Gilfillan
said that he wanted a blood test. The trooper informed Gilfillan that it was not his choice,
and that he was only being offere d a breath test. The trooper told Gilfillan that if he did

3
not agree to submit to a breath test, the trooper would consider Gilfillan to be refusing the
breath test.
The trooper then began the 15-minute observation period. Gilfi llan burped during
the observation period, so the trooper began drafting a search- warrant application for a
blood sample from Gilfillan. The trooper informed Gilfillan th at he would seek a blood
test if Gilfillan continued to b urp. The trooper never submitt ed the search-warrant
application because Gilfillan then complied with t he observatio n-period process and
completed the breath test, which revealed an alcohol concentration of 0.09.
Based on Gilfillan’s breath test, the commissioner of public sa fety revoked his
driving privileges. Gilfillan filed a petition with the district court requesting rescission of
the revocation of his driver’s license. During a hearing on the petition, Gilfillan’s attorney
sought to introduce a compact disc (CD) containing an audio rec ording of the trooper
reading the implied-consent advisory to Gilfillan. The commissioner objected to the audio
recording because Gilfillan’s atto rney did not provide the comm issioner with the audio
recording prior to the hearing. The district court sustained t he objection on the grounds
that the audio recording had not been disclosed to the commissi oner prior to the hearing.
Later in the hearing, the district court also noted that the foundation for the recording was
questionable because the trooper could not identify the CD.
During the hearing, Gilfillan test ified that he agreed to submi t to a breath test, but
that he did not believe that he had a choice because refusal to take the test was a crime.
Gilfillan testified that the choice between taking a breath tes t and a charge for refusal
“wasn’t much of a choice.” Gilfillan further testified that he believed the trooper initially

4
told him that he would be allowed to choose a breath, blood, or urine test. Gilfillan testified
that his decision to take a breath test was not voluntary because he wanted to take a blood
test.
The district court concluded that Gilfillan freely and voluntarily consented to submit
to the breath test and upheld the revocation of his driving privileges. This appeal follows.
D E C I S I O N
Gilfillan argues that the district court erred by declining to admit an audio recording
of the implied-consent process because the audio recording was the best evidence of the
exchange between Gilfillan and the trooper. Gilfillan also arg ues that the district court
erred in concluding that Gilfillan freely and voluntary consented to submit to a breath test.
We address each issue in turn.
I. The be s t - e vi de nc e r u l e di d not r e qui r e t he di s t r i c t cour t t o a dmit the audio
recording.

Gilfillan argues that the best-evidence rule required admission of the recording of
the interaction between the trooper and Gilfillan. The best-evidence rule provides that “[t]o
prove the content of a writing, recording, or photograph, the original writing, recording, or
photograph is required.” Minn. R . Evid. 1002. “In a trial bef ore the court without a jury
and also where the best-evidence rule is raised as an objection, the trial judge is given wide
discretion, and there will be a reversal only where prejudicial error is clearly shown.”
Kunz v. Comm’r of Pub. Safety , 349 N.W.2d 593, 596 (Mi nn. App. 1984) (quotation
omitted).

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Gilfillan argues that the recording had to be admitted by the district court because it
was the best evidence of the interaction between the trooper an d Gilfillan. But the
best-evidence rule does not require an original recording to be admitted to prove what was
said during a recorded conversation. Rather, the best-evidence rule requires an original
recording to prove “the content of . . . [the] recording.” Min n. R. Evid. 1002. As the
Minnesota Supreme Court explained in State v. Bauer , “a witness with first-hand
knowledge of what was said in a conversation may permissibly testify as to what he heard,”
even if a recording of the conversation exists. 598 N.W.2d 352, 368 (Minn. 1999).
In Bauer, police officers testified about incriminating statements made by a
defendant during a recorded interview. Id. When the defense tried to introduce the entire
recording of the interview, the state objected, and the distric t court upheld the objection.
Id. On appeal, the defendant argued that the district court’s rulin g violated the
best-evidence rule. Id. The supreme court affirm ed the district court. Id. at 370. The
supreme court also noted that th e defense cross-examined the of ficers at trial about their
statements and that “[o]n appeal , appellant has not pointed to any inaccuracies in the
officers’ testimony or provided evidence that the testimony was in any way misleading.”
Id.
Similarly, in this case, the tro oper testified as to his own fi rst-hand knowledge of
what was said in his conversation with Gilfillan, not as to the content of the recording.
Thus, the best-evidence rule does not apply. Furthermore, there appears to be at most one
disputed issue of fact about which the recording may have provi ded additional
evidence: whether the trooper ever told Gilfillan that he would have the choice among a

6
breath, blood, or urine test. But, as discussed in further detail below, this factual dispute is
immaterial. Accordingly, even if the district court had erred by declining to admit the audio
recording, any error was not prejudicial.1
II. The district court did not err by concluding that Gilfillan freely and voluntarily
consented to taking the breath test.

Gilfillan argues that the breath test constituted an unconstitu tional warrantless
search. He argues that his consent to take the breath test was not voluntary because he was
confused about the testing met hods available to him. Gilfillan further argues that the
trooper coerced his consent by preparing a search-warrant application in front of him.
The Fourth Amendment protects ag ainst unreasonable searches and seizures.
U.S. Const. amend. IV. A warrantless search of a person is pre sumptively unreasonable
unless it falls within a limited exception to the warrant requi rement. State v. Diede ,
795 N.W.2d 836, 846 (Minn. 2011). Consent is one exception to the warrant requirement.
Id. To establish that the consent exception applies, the state bear s the burden of proving
by a preponderance of the evidence 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 determined by examin ing the totality of the circum stances.” Id. (quotation
omitted). Accurately informing a n individual about the consequ ences of refusing to

1 On appeal, Gilfilan only argues that the best-evidence rule required the admission of the
CD, not that the district court erred in sustaining the commiss ioner’s objection based on
the lack of disclosure of the CD and insufficient foundation fo r the CD. Accordingly, we
do not address those issues. Nev ertheless, we note that, for t he reasons discussed below,
any error in not admitting the CD was harmless. See State v. Guzman , 892 N.W.2d 801,
812-13 (Minn. 2017) (“When an alleged evidentiary error is harm less, an appellate court
need not address the merits of the claimed error.” (quotation omitted)).

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provide a chemical test does not render the individual’s consen t to the test involuntary.
Id. at 570-72.
“The question of whether an indi vidual voluntarily consented to a s e a r c h i s a
question of fact.” Poeschel v. Comm’ r of Pub. Safety , 871 N.W.2d 39, 45 (Minn.
App. 2015). “Therefore, this court reviews the district court’s finding of voluntary consent
for clear error.” Id. “Findings of fact are clearly erroneous if, on the entire evide nce, a
reviewing court is left with the definite and firm conviction that a mistake occurred.” Id. at
45-46 (quotation omitted).
Gilfillan argues that, because the trooper initially told him that he had the option of
a blood or urine test, he was co nfused about the testing method s available to him and his
right to refuse a breath test. But even accepting Gilfillan’s assertion that the trooper
initially told him that he would have the option to choose a bl ood test, the totality of the
circumstances demonstrates that Gilfillan freely and voluntarily submitted to a breath test.
Gilfillan testified that he agreed to the breath test because h e did not want to be charged
w i t h t h e c r i m e o f t e s t r e f u s a l . Thus, at the time that he made his decision, Gilfillan
understood that the trooper was offering him only a breath test and that if he refused the
breath test, he would be charged with test refusal.
Gilfillan also testified that he felt his consent was coerced b ecause the choice
between submitting to a breath test and being charged with test refusal was not much of a
choice. But in Brooks, the Minnesota Supreme Court rejected this argument. 838 N.W.2d
at 570. In that case, Brooks argued “that he did not truly have a choice of whether to submit
to the tests because police told him that if he did not do so, he would be committing a

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crime.” Id. The supreme court noted that “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.” Id.
Although Gilfillan did not like the choices he faced, submittin g to a breath test or
being charged with test refusal, the trooper accurately informe d him of his options, and
Gilfillan freely and voluntarily consented to submit to a breath test. As the supreme court
noted in Brooks, “consent can be voluntary even if the circumstances of the encounter are
uncomfortable for the person being questioned.” Id. at 569.
Gilfillan also argues that becaus e the trooper started drafting a search-warrant
application in front of him, his consent to the breath test was coerced. “[T]he fact that
someone submits to [a] search after being told that he or she c a n s a y n o t o t h e s e a r c h
supports a finding of voluntariness.” Id. at 572. The drafting of the search warrant
demonstrated that Gilfillan had the option not to provide a breath test. If he declined, the
trooper could have proceeded with the search-warrant applicatio n. Thus, the
search-warrant application only reinforced Gilfillan’s option to refuse to submit to a breath
test, and the consequences for choosing that option.
The fact that Gilfillan did not want to face the consequence of refusing a breath test,
a consequence that was reinforced by the drafting of the warran t, does not mean that his
consent was coerced. Gilfillan di d not present any evidence to demonstrate that his will
was overborne by the trooper drafting the search-warrant application in front of him or that
he was otherwise coerced by the trooper into agreeing to take the breath test. Cf. id. at 571
(noting that Brooks was not confronted with repeated police que stioning or asked to give

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his consent after having spent days in jail and that there was no evidence in the record that
Brooks’s will was overborne). We conclude that, under the totality of the circumstances,
the district court did not err in finding that Gilfillan freely and voluntarily consented to
submit to a breath test.2
Affirmed.

2 The commissioner separately argues that even if Gilfillan did not validly consent to the
breath test, no warrant was required because the breath test was a valid search incident to
arrest pursuant to Birchfield v. North Dakota , 136 S. Ct. 2160 (2016). But the
commissioner did not make this argument before the district cou rt and appellate courts
generally will not consider matters not argued to and considere d by the district court.
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Consequently, and also becau se we
conclude that Gilfillan freely and voluntarily consented to the breath test, we do not address
this issue.