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This opinion will be unpublished and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
A19-0079

State of Minnesota,
Respondent,

vs.

Brian John Abrahamson,
Appellant.

Filed November 12, 2019
Affirmed
Cleary, Chief Judge

Dakota County District Court
File No. 19HA-CR-17-4361

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

Korine Land, West St. Paul City Attorney , Cassandra C. Wolfgram, Assistant City
Attorney, LeVander, Gillen & Miller, P.A., South St. Paul, Minnesota (for respondent)

Rodd Tschida, Minneapolis, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Larkin, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this direct appeal fro m convictions for driving while impaired (DWI) and
violation of a driver’s license restricti on, appellant argues that (1) a state trooper

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misinformed him that he could not refuse a preliminary breath test (PBT) and field-sobriety
testing, thereby violating his due-process rights and requiring the suppression of those tests;
(2) he did not voluntarily cons ent to a PBT; (3) the breath-t est advisory violated his due-
process rights because it was inaccurate; (4) the evidence did not establish his guilt for the
restricted license offense; and (5) the district court erred in granting the state’s motion for
a continuance. We affirm.
FACTS
Around 1:00 a.m., a state trooper st opped a vehicle for speeding. Upon
approaching, the trooper smel led alcohol and saw that the driver and sole occupant,
appellant Brian John Abrahams on, had bloodshot and glassy eyes. The trooper asked
appellant when he last consumed alcohol, and appellant replied that he was coming from a
concert but did not drink.
The trooper went to his squad car, ran a ppellant’s driver’s license, and discovered
that it had a restriction prohibiting the use of al cohol. He returned to appellant’s vehicle
and asked him to perform “a co uple of quick checks.” Ap pellant exited his vehicle but
refused to submit to the checks, stating that he was “not going to do this” and that he “d[id]
not have to do this.”
The trooper then told appellant that he smelled alcohol coming from his vehicle and
again asked whether he had imbibed. Appella nt changed his story and said, “[N]ot since
like 5:00.” The trooper told appellant that he would perform “a quick check to make sure
[he was] safe to drive.” Appellant told the trooper that he did not “legally have to do this,”

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and the trooper responded several times “yes, you do.” Appellant stat ed that he did not
have to do a field-sobriety test. The troope r asked him if he woul d submit to a PBT, and
appellant refused. Appellant said that he had not drunk since 5:00 p.m., and when the
trooper asked what he drank, he replied “a shot of James on.” The trooper again asked
appellant to submit to a PBT and stated that he should be “at zero.” Appellant refused.
The trooper stated that he wanted to check appellant’s eyes, and appellant complied.
The trooper administered the horizontal-g aze nystagmus (HGN) test and observed
indicia of impairment. He again requested a PBT. Appellant refused, and the trooper stated
that he was arresting him for DWI; appellant then agreed to a PBT, which indicated an
alcohol concentration of 0.149.
Appellant was arrested and transported to the police station. He was read the breath-
test advisory and told, “Minnesota law requires you to take a test to determine the presence
of alcohol,” and “[r]efusal to take a test is a crime.” He stated that he understood his rights.
He elected not to speak with an attorney and agreed to submit to a DataMaster breath test,
which indicated an alcohol concentration of 0.13.
The state charged appellant with three gross-misdemeanor counts: (1) DWI—0.08
or more, (2) DWI—under the influence of al cohol, and (3) violating a driver’s license
restriction on the consumption of alcohol.
Appellant moved to suppress the results of the PBT and DataMaster breath test. The
day prior to the hearing, the state moved for a continuance because the trooper was

4
unavailable. Appellant’s counsel objected, but acknowledged that “the officer would have
to testify.” The district court heard arguments from the parties and granted the continuance.
Appellant testified at the cont inued hearing. He stated that he felt pressured to take
the PBT because he was asked several times and was told it was illegal to refuse field-
sobriety tests. He was concerned about viola ting his license restriction, and it was late at
night following a “very long day.” He stated that he took the PBT after being told he was
being placed under arrest because he “thought it was illegal not to do it.” Appellant also
testified about being read the breath-test advisory. He stated that he relied on the advisory.
He could not “say for sure” whether he would have tested had he been informed that the
test was to determine if he was under the influence of alcohol, rather than to determine the
presence of alcohol.
The district court denied appellant’s suppression motion. The court concluded that
appellant’s due-process rights were not violated by the trooper informing him that he was
required to submit to field-sobriety tests an d a PBT, and that appellant had voluntarily
consented to those tests. The court concl uded that the breath-test advisory was not
misleading or coercive.
The parties agreed to submit the determination of appell ant’s guilt to the district
court in a stipulated-evidence trial. See Minn. R. Crim. P. 26.01, subd 3. The evidence
included the breath-test advisory, a recordi ng of appellant’s statements, the squad car
video, a police incident report, the Data Master results, and an uncertified copy of

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appellant’s driving record. Appellant also stipulated to having two prior impaired-driving
incidents within the ten years preceding the charged offenses.
The district court returned guilty verdicts on count on e, DWI—0.08 or more, and
count three, violation of appellant’s license restriction, but returned a not-guilty verdict on
count two, DWI—under the influence. This appeal followed.
D E C I S I O N
I. Appellant’s due-process claim seeks to extend existing law, which is not a task
for this court.

Appellant argues that his due-process right s were violated, and the district court
erred by denying his suppression motion, because he was misl ed about his obligation to
undergo the PBT and HGN test.1
“When reviewing pretrial orders on mo tions to suppress evidence, we may
independently review the facts and determine, as a matter of law, whether the district court
erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90,
98 (Minn. 1999). We review factual finding s under the clearly erroneous standard and
review legal determinations de novo. State v. Onyelobi, 879 N.W.2d 334, 343 n.4 (Minn.
2016). We review de novo whether a due-process violation has occurred. State v. Beecroft,
813 N.W.2d 814, 836 (Minn. 2012).

1 The trooper told appellant that he was obligated to perform “a quick check.” It is unclear
if the trooper was referring to field-sobriety tests, PBTs, or both. The district court
analyzed both, and the state appears to concede that the trooper was referring to both. We
therefore accept that the trooper was referring to both.

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Appellant seeks to suppress the results of the HGN test and PBT. Field-sobriety
tests, like the HGN test, involve visual observations and are not searches under the Fourth
Amendment, while PBTs are limited search es and require reasonable, articulable
suspicion. State, Dep’t of Pub. Safety v. Juncewski , 308 N.W.2d 316, 321 (Minn. 1981);
Vondrachek v. Comm’r of Pub. Safety , 906 N.W.2d 262, 268 (Minn. App. 2017), review
denied (Minn. Feb. 28, 2018); State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012).
By statute, an officer may “require” a PBT if the officer has “reason to believe” that
the driver is impaired. Minn. Stat. § 169A.4 1, subd. 1 (2018). Despite this language, a
driver may refuse both field-sobriety testing and a PBT without direct criminal penalty.
See Vondrachek, 906 N.W.2d at 269, 271 (“A driver can refuse a PBT; many drivers do.”);
State v. Stoskopf, 644 N.W.2d 842, 846 (Minn. App. 2002) (“There is no criminal penalty
for refusing a PBT, as there is for refusing a chemical test.”); see also Otto v. Comm’r of
Pub. Safety , 924 N.W.2d 658, 659 (Minn. App. 20 19) (“There is no constitutional or
statutory requirement for police officers to info rm vehicle drivers that they may refuse to
perform field sobriety tests.”).2
Due process is an amorphous concept denoting a number of substantive and
procedural protections. See State v. Rey, 905 N.W.2d 490, 494-95 (Minn. 2018) (analyzing
substantive and procedural due-process claims ). We therefore focu s on the specific

2 While PBT results cannot be used as evidence of intoxication in a DWI prosecution, the
results may be used in prosecuting a driver for violating a restriction on his or her license.
See Minn. Stat. § 169A.41, subd. 2(7) (2018). Re fusal of a PBT may also be used as a
basis for requesting a chemical test for intoxication if there is also probable cause that the
driver was driving while impaired. See Minn. Stat. § 169A.51, subd. 1(b)(3) (2018).

7
argument set forth by appellant. He primarily relies on Raley v. Ohio , which concerned
“an indefensible sort of entr apment by the [s]tate.” 360 U.S. 423, 426, 79 S. Ct. 1257,
1260 (1959). In Raley, the Supreme Court recognized that the government violates a
person’s due-process rights when re presentatives of the state mi slead the person as to his
or her legal obligations, and the person is thereby convicted. Id. at 439, 79 S. Ct. at 1267.
The Raley case has been deemed a precursor to the defense of entrapment by estoppel.
United States v. Austin , 915 F.2d 363, 366 (8th Cir. 1990). We fail to see how Raley is
applicable. The state did not induce appellant to commit a crime.
Appellant also relies on McDonnell v. Comm’r of Pub. Safety, in which the supreme
court concluded that an implied-consent advi sory violated a driver’s due-process rights
because it misinformed her that she could be ch arged with the crime of test refusal when
such a charge was impossible. 473 N.W.2d 84 8, 855 (Minn. 1991). The supreme court
subsequently clarified its holding in McDonnell, and set forth a three-factor test for
determining whether a license revocation should be rescinded because a driver was misled.
Morehouse v. Comm’r of Pub. Safety , 911 N.W.2d 503, 505 (M inn. 2018). Under the
three-factor test, a license revocation should be rescinded when: “(1) the person whose
license was revoked submitted to a breath, blood, or urine test; (2) the person prejudicially
relied on the implied consent advisory” in choos ing to test; and “(3) the implied consent
advisory did not accurately inform the person of th e legal consequences of
refusing . . . testing.” Id. (quotation omitted).

8
The supreme court limited its holding in McDonnell to “any case raising an identical
due process claim.” 473 N.W.2d at 855. Here, the trooper did not state legal consequences
for refusal, and appellant’s challenge does not concern the advisory. This case is not
“identical.” Appellant, in effect, asks this court to extend the law, but “[t]he task of
extending existing law falls to the supreme court or the legislature[;] . . . it does not fall to
this court.” State v. Rodriguez , 738 N.W.2d 422, 432 (Minn. App. 2007), aff’d, 754
N.W.2d 672 (Minn. 2008). Appellant has failed to set forth a viable due-process claim.
II. The district court’s finding that appellant voluntarily consented to the PBT is
supported by the record and is not clearly erroneous, and even if appellant did
not consent, his breath was subject to a search incident to arrest.

Appellant argues that he was coerced into taking a PBT. The state contends that
appellant waived this argument by failing to suffi ciently raise it before the district court.
The argument was raised before, and addresse d by, the district court, and we therefore
consider it.
As a threshold matter, the state argues that PBTs are “not searches invoking Fourth
Amendment protection, and thus consent is not necessary.” We disagree. The Fourth
Amendment protects against unreasonable searches. U.S. Const. amend. IV. A breath test
is a search under the Fourth Amendment. Skinner v. Ry. Labor Execs.’ Ass’n , 489 U.S.
602, 616-17, 109 S. Ct. 1402, 1413 (1989). A PBT is a unique type of breath test,
preliminary in nature and used primarily for investigatory purposes. Stoskopf, 644 N.W.2d
at 844. An officer must have reasonable, ar ticulable suspicion before requiring a PBT.
Juncewski, 308 N.W.2d at 321. Wh ile no warrant is required, the Fourth Amendment’s

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reasonableness standard is still applicable. See Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct.
1868, 1879, 1884-85 (1 968) (concluding that limited search was reasonable under the
Fourth Amendment if supported by reasonable, articulable suspicion). Accordingly, PBTs
are searches subject to Fourth Amendment protection. That protection may be waived by
consent. See Harris , 590 N.W.2d at 102 (stating that police do not need reasonable
articulable suspicion to search if a person voluntarily consents).
The state must show by a preponderance of the evidence that the defendant freely
and voluntarily consented. State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). Whether
consent is voluntary is determ ined by examining the “totality of the circumstances.”
Harris, 590 N.W.2d at 102. The issue of whether consent was voluntary, or the product of
coercion, is a question of fact subject to a clearly erroneous standard of review. Diede, 795
N.W.2d at 846.
The district court’s finding that appellant voluntarily consented is supported by the
record and is not clearly erroneous. Following a traffic stop, appellant was confronted by
a single trooper during a relatively brief encoun ter. He had an alcohol restriction on his
license and appeared familiar with DWI procedures, stating that he had “been through this
before.” While the trooper told appellant that he was obligated to perform a quick check,
the trooper did not threaten appellant with consequences, raise his voice, or otherwise force
compliance. Following the trooper’s purportedly coercive statement, appellant refused to
perform a PBT, and he did not agree to take one until after he was informed that he was

10
being placed under arrest for DWI. Appellant was not coerced by the trooper’s statement
that he had to perform a quick check.
Appellant cites a Kansas case, State v. Edgar, for the proposition that the trooper’s
statement “constitutes per se coercion. ” 294 P.3d 251 (Kan. 2013). In Edgar, a Kansas
statute required an officer to give “oral noti ce that refusal to take a PBT is a traffic
infraction.” Id. at 254. The officer told the driver that a PBT was required, and the Kansas
Supreme Court concluded that the officer’s statement coerced the driver’s consent and
rendered it involuntary. Id. at 262. This case is distinguishable because the driver in Edgar
agreed to a PBT after being misinformed by the officer. Id. at 255. Here, appellant
continued to refuse a PBT after the officer’s statement, and he did not agree to one until
after the officer informed him that he was be ing placed under arrest for DWI. Further,
unlike Kansas drivers, Minnesota drivers need not be told that PBT refusal is a traffic
infraction. In Minnesota, an officer may “r equire” a PBT if the officer has reasonable,
articulable suspicion that the driver is impaired. Minn. Stat. § 169A.41, subd. 1.
Lastly, appellant does not challenge the dist rict court’s conclusion that the trooper
developed probable cause to arrest him for violation of his license restriction, and we agree
that probable cause was clearly present. See State v. Horner, 617 N.W.2d 789, 795 (Minn.
2000) (conducting a de novo revi ew of whether probable cause to arrest existed). A
warrantless breath test may be administered as a search incident to arrest. State v. Bernard,
859 N.W.2d 762, 767 (Minn. 2015). Even if appellant did not consent to the PBT, his
“breath was subject to seizure incident to arrest.” Vondrachek, 906 N.W.2d at 272.

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III. The breath-test advisory did not violate appellant’s due-process rights.

Appellant argues that the advisory was in accurate because it required a test to
determine the presence of alcohol, rather than to determine if he was “under the influence
of alcohol.” Minn. Stat. § 169A.51, subd. 2 (2018) (emphasis added). He asserts that this
inaccuracy violated his due-process rights. The district court acknowledged the
inconsistency between the advisory, as r ead, and the language of section 169A.51,
subdivision 2, but concluded that the advisory was not misleading and did not misstate the
law, and therefore “it was not coercive.”
A breath test obtained in violation of due process under McDonnell is subject to
“total exclusion.” State v. Stumpf, 481 N.W.2d 887, 890 (Minn. App. 1992). As previously
discussed, three elements are required for a viable McDonnell claim: (1) submission to
testing of blood, breath, or urine; (2) prejudicial reliance on the advisory in deciding to test;
and (3) an advisory that “did not accurately inform the person of the legal consequences of
refusing to submit to the testing.” Morehouse, 911 N.W.2d at 505 (quotation omitted).
The district court primarily addressed the accuracy of the advisory, and we begin
with that element. Appellant’s claim fails on that front in two ways. First, in Morehouse,
the supreme court held that the inaccuracy must concern the legal consequences for refusal.
Id. Here, the advisory did not contain inac curacies regarding legal consequences.
Appellant was told that refusal was a crime, and indeed refusal was a crime. Accordingly,
the advisory was not inaccurate for purposes of a McDonnell claim.

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Second, section 169A.51, subdivision 2, requires that the person be “informed” that
the test is “to determine if the person is un der the influence of alcohol.” Appellant was
told that the test was to dete rmine the presence of alcohol, but he was also told, at the
beginning of the advisory, that he was suspec ted of driving in viol ation of Minnesota’s
DWI laws and that he had been arrested for that offense. Accordingly, he was effectively
informed that the test was to determine if he was under the influence or impaired.
As for prejudicial reliance, the second elem ent, appellant testified at the contested
omnibus hearing that he relied on the advisory and could not “say for sure” whether he
would have tested had he been read the specif ic statutory language. He did not testify,
however, as to how his choice to test was impa cted. We fail to see how he was deprived
of a “meaningful choice,” or as the district court framed it, how the advisory was coercive.
See Morehouse, 911 N.W.2d at 505 (quotation omitted).
Appellant argues that—given his restricted license, the technical inaccuracy “would
be misleading.” There is some merit to this argument. Ba sed on the advisory that was
read, a driver with a restricted license might submit to testing thinking that it pertained only
to a restricted license offense, and not a DWI offense. However, appellant failed to offer
any testimony or evidence to that effect, and as previously disc ussed, he was told that he
was suspected of and arrested for DWI. Gi ven the dearth of evidence indicating that
appellant was deprived of a m eaningful choice on whether to test, his claim fails for lack
of prejudicial reliance. See Windsor v. Comm’r of Pub. Safety, 921 N.W.2d 71, 74 (Minn.

13
App. 2018) (concluding that relief was not warranted because driver failed to establish that
he prejudicially relied on the advisory).
IV. The evidence was sufficient to satisfy the willfulness element of appellant’s
restricted license offense.

Appellant challenges the sufficiency of th e evidence for his restricted license
offense. He claims a lack of evidence supporting the willfulness element of that crime. He
argues that his uncertified driving record, wh ich showed the alcohol restriction, was
insufficient because there was no evidence that he saw that record.
Appellant was convicted of violating Mi nn. Stat. § 171.09, subd. 1(f)(1) (2016),
which imposes gross-misdemeanor criminal liability if a person drives a motor vehicle in
breach of a driver’s license restriction on the consumption of alco hol. Willfulness is a
required element. State v. Rhode, 628 N.W.2d 617, 620 (Minn. App. 2001); see also Minn.
Stat. § 171.241 (2018) (“It is a misdemeanor for any person to willfully violate any of the
provisions of this chapter unless the violation is declared by any law to be a felony or gross
misdemeanor, or the violation is declared by a section of this chapter to be a
misdemeanor.”).3

3 The state concedes that willfulness is an element. The language of section 171.09 has
changed since Rhode. Previously, the statute did not reference gross misdemeanors.
Compare Minn. Stat. § 171.09 (2000) with Minn. Stat. § 171.09 (2016). In Rhode, this
court relied upon that fact, in conjunction w ith the language of section 171.241, in
concluding that willfulness was a required element. Rhode, 628 N.W.2d at 619. After the
amendments to section 171.09 creating a gro ss-misdemeanor offense, this court has held
in unpublished opinions that willf ulness remains an element. See, e.g., State v. Watters ,
No. A11-174, 2011 WL 6757427, at *3 (Minn. App. Dec. 27, 2011).

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In considering a claim of insufficient eviden ce, this court’s review is limited to a
thorough analysis of the record to determin e whether the evidence, when viewed in the
light most favorable to the conviction, was su fficient to allow the fa ctfinder to reach the
guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume the
factfinder “believed the state’s witnesses and di sbelieved any evidence to the contrary.”
State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
In Rhode, this court concluded that the evidence was insufficient because, although
the state produced evidence of the defendant’s driving record, it produced no evidence that
the defendant saw the record. 628 N.W.2d at 619-20. This case is distinguishable. In the
squad-car video, appellant tells the trooper that he was aware of the no-use restriction on
his license. Appellant argues that the squad- car video should not be considered because
the district court’s order indicates that it relied on the uncertified copy of appellant’s
driving record. Appellant’s argument is unavailing for two reasons.
First, a reviewing court independently ex amines the record to determine whether
the evidence was sufficient to support the conviction. See State v. Tscheu , 758 N.W.2d
849, 857 (Minn. 2008) (“When we review whether the eviden ce is sufficient to sustain a
conviction, we determine whether, under th e facts in the record and any legitimate
inferences that can be drawn from them, a jury could reasonably conclude that the
defendant was guilty of the offense charged.” (quotation omitted)). Second, although the
district court cited the uncertified copy of appellant’s driving record in concluding that the

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willfulness element was satisfied, th e court did not indicate that it solely relied on that
record. The evidence was sufficient to sustain the conviction.
V. The district court did not abuse its discretion by granting a continuance.

Appellant challenges the district court’s gr ant of a continuance. We review that
ruling for a clear abuse of discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).
Appellant must show prejud ice to justify reversal. Id. He must show that the district
court’s decision materially affected the outcome of the case. See State v. Turnipseed, 297
N.W.2d 308, 311 (Minn. 1980).
After hearing arguments from both parties, the district court granted the continuance
based on the unavailability of the trooper and th e lack of any prior continuances. We see
no abuse of discretion in that ruling. Furthe r, appellant has failed to show the requisite
prejudice. He points to a three and a half month delay, but the record indicates that a vast
majority of that time resulted from a second co ntinuance, agreed upon by both parties.
Appellant does not claim that his defense was impaired, and he conceded that the trooper’s
testimony was necessary. There is no basis for reversal.
Affirmed.