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This opinion will be unpublished and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
A19-0120

State of Minnesota,
Respondent,

vs.

Bradley Alan Freeman,
Appellant.

Filed January 21, 2020
Affirmed
Jesson, Judge

Stearns County District Court
File No. 73-CR-16-11804

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
Jilian Frueh, Certified Student Attorney, St. Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenber g, Presiding Judge; Ross, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Bradley Alan Freeman, who wa s pulled over for running a stop sign in
Avon, had about 28 cans of beer in his back seat and smelled of alcoholic beverages.

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Following his subsequent conviction for refusal to submit to chemical testing and driving
in violation of a restricted license, Freeman challenges the district court’s denial of his
motion to suppress evidence of his chemical test refusal. According to Freeman, the officer
prevented him from vindicating his right to c onsult counsel before deciding whether to
submit to the test. Because we discern no erro r in the district court’s determination that
Freeman failed to invoke his right to an attorney, we affirm.
FACTS
A police officer patrolling in Avon observed a black car fail to stop at a stop sign.
The officer turned around to follow the car, intending to initiate a traffic stop, but briefly
lost sight of it. He found the car parked near by with its lights off. Then its lights turned
back on and it pulled away. The officer confirmed that it was the same car because it had
the same license plate. The officer followed the car and pulled it over, identifying appellant
Bradley Alan Freeman as the driver.
As he spoke to Freeman through the car window, the officer smelled the odor of
alcoholic beverages and heard Freeman’s slurred speech. Freeman said he came from his
home and not from Avon but later admitted he stopped in Avon at a liquor store to buy
beer for his friend. An unopened 18-pack of beer and ten loose cans of beer sat in the back
seat of Freeman’s car. Freeman said he had not been drinking and that he had been sober
for ten years. The officer asked Freeman to st ep out of his car to perform field sobriety

3
tests. During the horizontal-gaze-nystagmus test, the officer noticed a lack of smooth
pursuit.1 And during the one-legged-stand test, Freeman swayed.
After observing Freeman’s performance on these tests, the officer believed Freeman
was impaired and asked him to submit to a preliminary breath test. Freeman refused, and
“became upset” and “uncooperative, ” arguing that he should not have to take the test.
According to Freeman, he had been sober for ten years and that if the officer smelled
alcohol coming from him, he should “get [his] nose checked.” While he continued to refuse
the test, Freeman said that he knew his rights, thought that the test was an illegal expansion
of the traffic stop, and that he did not “have the patience right now to sit here and go through
all the bullsh-t, I got other things to do.” Based on the odor, slurred speech, and
sobriety-test performance, the officer arrest ed Freeman on suspicion of driving while
intoxicated (DWI). When looking Freeman up in the squad car’s computer system, the
officer discovered that Freeman’s driver’s li cense had a restriction that invalidated his
license if he consumed any alcohol.
With Freeman in the back of his squad ca r in handcuffs, the officer read him the
implied-consent advisory. In this advisory, the officer told Freeman that refusing to take a
chemical test is a crime but that Freeman had the right to talk to an attorney before deciding
whether to take the test. Th e officer explained that the te st could not be “unreasonably

1 During the horizontal-gaze-nystagmus test, officers observe involuntary eye movements
that may indicate if someone is impaired. See State v. Klawitter , 518 N.W.2d 577, 579
(Minn. 1994). During this test, officers look for rapid, involuntary eye movements while
the subject’s eyes focus on a point and follow the point from side to side. Id. Additionally,
Freeman had a prior leg injury so the officer did not perform the walk-and-turn test. The
officer also had Freeman state a portion of the alphabet, which he did correctly.

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delayed” or it would be considered a test refusal. The officer asked if Freeman understood
and he said he did. And Freeman said, “I’m gonna contact [an attorney] but it ain’t gonna
be tonight.”
The officer read the advisory once more and asked again whether Freeman wanted
to consult with an attorney, and Freeman said that he was not going to talk to an attorney
at that moment. He said, “I don’t need to contact one beforehand” and “I will talk to one
afterwards.”
The officer asked one last time, “[d]o you wish to consult with an attorney? Yes or
No?” and Freeman responded, “[a]t this moment, no. Not be fore that.” Then the officer
offered him one last chance to take the test and Freeman said no. The officer recorded
Freeman’s test refusal and took him to jail.
The state charged Freeman with three c ounts: DWI, test refusal, and violating
driving restrictions relating to alcohol. At the contested omnibus hearing, Freeman moved
to suppress evidence of his te st refusal and dismiss the charges. He contended, among
other things, that the officer did not have probable cause to arrest him on suspicion of DWI,
and that his limited right to counsel was not vindicated.
The district court heard te stimony from the arresting officer and considered
squad-car video of the incident. Based on that evid ence, the district court found that the
officer had probable cause to arrest Freeman on suspicion of DWI. The district court also
concluded that Freeman “did not invoke his lim ited right to counsel prior to testing” and
subsequently declined to submit to a breath test. Consequen tly, the district court denied
Freeman’s motion to dismiss.

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Following trial on the three cr iminal counts, the jury fo und Freeman guilty of test
refusal and driving in violation of a restricted driver’s license, and not guilty of DWI. The
district court sentenced him to 42 months in prison. Freeman appeals.
D E C I S I O N
Freeman seeks reversal of his conviction for test refusal, arguing that evidence of
his refusal should be suppressed because his right to consult with counsel before submitting
to chemical testing was not vindicated. Whether an officer has vindicated a driver’s right
to counsel presents a mixed question of law and fact. Mell v. Comm’r of Pub. Safety ,
757 N.W.2d 702, 712 (Minn. App. 2008). Accordingly, this court reviews factual findings
for clear error and legal conclusions de novo. Id. The district court concluded that Freeman
did not invoke his limited right to consult with counsel. We discern no error in this
conclusion and the factual findings are supported in the record.
Drivers have a state constitutional right to seek legal advice, upon request, before
deciding whether to comply with chemical testing. Friedman v. Comm’r of Pub. Safety ,
473 N.W.2d 828, 835 (Minn. 1991 ). An officer must assist th e driver in vindicating this
right. State v. Collins , 655 N.W.2d 652, 656 (Minn. App. 2003), review denied
(Minn. Mar. 26, 2003). But this right “is triggered only when the implied-consent advisory
is read.” State v. Hunn, 911 N.W.2d 816, 820 (Minn. 2018). And the right is “limited” to
“ensure that consultation does not unreasonabl y delay the administration of the test.”
Mell, 757 N.W.2d at 712.
Here, the officer read Freeman the implied-consent advisory, thereby triggering his
limited right to counsel. During their subsequent conversation, Freeman stated that he was

6
going to be talking to an attorney but not in that moment or that night, noting that he wanted
to contact an attorney he had worked with before.
When a driver expresses his interest in consulting with an attorney, the officer must
either clarify the driver’s request or vindi cate that right by providing a phone and an
opportunity for consultation. State v. Slette , 585 N.W.2d 407, 410 (Minn. App. 1998).
And courts consider the totality of the circum stances in determining whether the right to
consult counsel was vindicated. Groe v. Comm’r of Pub. Safety , 615 N.W.2d 837,
841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).
Here, the transcript shows that the offi cer tried to clarify whether Freeman was
invoking this right. The officer demonstrat ed this through his fo llow-up questions and
efforts to confirm Freeman’s wishes. And Freeman ultimately stated that he did not want
to consult an attorney before making his deci sion not to submit to chemical testing. By
doing so, Freeman declined to exercise his limited right to consult with an attorney.
Our conclusion is bolstered by the requi rement that drivers not frustrate the
implied-consent testing process. Collins, 655 N.W.2d at 658. For example, when a driver
is disruptive by swearing and screaming, the dr iver may be deemed to have retracted his
request to consult counsel and to have refused testing. Id. Here, Freeman admits that he
was uncooperative and “boorish” in his interactions with the officer. The transcript of the
exchange confirms this and more. It shows Freeman frequently interrupting the officer and
arguing with him about his authority for the traffic stop and the testing. 2 The officer

2 In the transcript of the implied-consent a dvisory, the officer repeatedly tried to get
Freeman to stop talking and listen to him. The officer asked, “[c]an you let me get through

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diligently attempted to explain Freeman’s rights to him in spite of this. Considering the
totality of this interaction—including Freeman’s behavior and decision not to consult with
an attorney before declining chemical testing— the district court’s conclusion that he did
not invoke his right to counsel is well-supported by the facts and legally sound.
Yet Freeman argues that the “coercive conditions” and the officer’s demeanor
prevented him from exercising his right to consult an attorney. Freeman asserts that when
he asked the officer how he could contact an attorney when he did not have a phone number
with him or access to his ph one, the officer should have —but did not—explain that
Freeman would be provided a phone and could look up a phone number at the jail. But the
record demonstrates that the officer did just that. The officer said, “we’re gonna go up to
jail, so would you like—” and then was appa rently interrupted by Freeman saying he did
not have the phone number on him. The officer replied, “[d]id you not hear what I said
before” and then repeated the implied-consen t advisory, stating, “If you wish to consult
with an attorney, a telephone and directory will be available to you.”
In addition, Freeman contends that his ri ght to consult counsel was not vindicated
because the officer did not actually provide him with a phone and time to make a call. See
Duff v. Comm’r of Pub. Safety, 560 N.W.2d 735, 737 (Minn. App. 1997) (describing that
the right to consult counsel before submitting to chemical testing “is vindicated when the
driver is provided with a telephone and given reasonable time to contact and talk with an
attorney”). But the officer appeared unsure whether Freeman was invoking his right so he

this?” and “[c]an you hang on a second?” And he said th ree times, “[c]an you listen,
please?”

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asked clarifying questions. See Slette, 585 N.W.2d at 410 (noting that officers must either
clarify the driver’s request or provide a phone and an opportunity to consult with counsel).
And when Freeman declined to consult an attorney, the officer was not required to provide
him with a phone.
Freeman also suggests that the officer exploited his heightened emotional state and
made little effort to help him exercise his right. He focuses on the officer’s insistence that
Freeman decide whether to contact an attorney “right now,” seeming to argue that such a
comment was coercive. But th e officer had a duty to inform Freeman that his decision
whether to consult an attorney could not “unreasonably delay administration of the test.”
Minn. Stat. § 169A.51, subd. 2(4) (2016). His insistence on Freeman making a decision
soon was warranted.
Finally, Freeman submitted a supplemental brief on his own behalf that contains a
recitation of the facts of this case from his point of view. But this recitation is at odds with
the record and the district court’s factual findings, which we determined are not clearly
erroneous. And because he makes no legal arguments and cites no legal authority, his
claims do not alter our conclusion. See State v. Ture, 632 N.W.2d 621, 632 (Minn. 2001)
(concluding that claims made in a pro se brief without any authority or argument to support
them are waived).
In sum, the district court’s factual findi ngs are supported by the record and it did
not err by concluding that Freema n did not invoke his right to consult an attorney before
declining to submit to chemical testing.
Affirmed.