Ellen Louise Arnt, 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This opinion will be unpublished and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
A19-0777

Ellen Louise Arnt, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed December 23, 2019
Affirmed
Reilly, Judge

Pipestone County District Court
File No. 59-CV-15-419

Paul M. Malone, Malone & Mailander, Slayton, Minnesota (for appellant)

Keith Ellison, Attorney General, William Young , Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this appeal after remand to determine whether appellant voluntarily consented to
provide a urine sample given the partial inaccuracy of the implied -consent advisory,
appellant argues that (1) the district court’s decision that appellant freely and volun tarily
provided a urine sample was clearly erroneous based on the totality of the circumstances,

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(2) the district court improperly required evidence that appellant’s will was overborne to
find that her consent was coerced, and (3) the district court should have drawn an adverse
inference against the respondent commissioner of public safety because the commissioner
failed to introduce into evidence video recordings of the arrest and implied -consent
advisory. Because the district court’s findings of fact were not clearly erroneous and the
district court did not otherwise err, we affirm.
FACTS
In September 2015, a deputy with the Pipest one County Sheriff’s Department was
on patrol when he observed a vehicle traveling in front of him that was “speeding up and
slowing down.” The deputy activated his radar and obtained a speed reading of
approximately 72 miles per hour. Because the driver of the vehicle was traveling over the
posted 55-miles-per-hour speed limit, the deputy activated his emergency lights and
stopped the vehicle.
The deputy approached the vehicle and identified the driver as appellant Ellen
Louise Arnt. While speaking with appellant, the deputy observed multiple indi cia o f
intoxication. The deputy also saw an open can of beer in appellant’ s center console and
appellant admitted that she had a “couple ” of beers. Based on these observations, t he
deputy asked appellant to perform field sobriety tests. After failing the field sobriety tests,
appellant agreed to take a preliminary breath test; however, the deputy was unable to obtain
a result because appellant was not properly blowing into the machine. Because the deputy
believed appellant was under the influence of alc ohol, he placed appellant under arrest.
The deputy handcuffed appellant and she was transported to jail.

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At the implied-consent hearing in December 2015, the deputy testified that he read
appellant the implied -consent advisory twice, word -for-word in the booking room at the
Pipestone county jail. The first time he read the advisory to appellant, she asked to speak
with an attorney. The deputy provided appellant with a telephone and directory and
allowed her “quite some time” to make calls, but appellant was unable to reach the attorney
with whom she wanted to speak. The deputy then offered appellant a breath test and
appellant agreed; however, the test produced a deficient sample because appellant was not
blowing the required amount of air.
The deputy again read the advisory, which informed appellant that it was a crime to
refuse a test, and appellant responded that she understood. The deputy asked appellant if
she wanted to contact an attorney. Appellant was provided with a telephone and directory
and again attempted to reach an attorney but was unable to do so. The deputy offered
appellant a urine test and she agreed to take the test. The deputy testified that appellant
was handcuffed while she was in the jail and the booking room due to protocol. The deputy
further testified that he had a calm demeanor while dealing with appellant and that he did
not get upset at her, yell at her, or physically or verbally threaten her.
The district court denied appellant’s petition to rescind the license revocation and
appellant subsequently appealed. We affirmed in part, 1 reversed in part and remanded to
the district court “to reconsider whether, in light of the inaccurate implied -consent

1 We rejected appellant’s due -process challenge because appellant did not testify at the
hearing or produce any other evidence to establish that she “prejudicially relied” on the
implied-consent advisory. Arnt v. Comm’r of Pub. Safety , No. A16 -0852, 2018 WL
5316090, at *3 (Minn. App. Oct. 29, 2018).

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advisory, the totality of the circumstances indicates that appellant’s consent to the urine
test was voluntarily given.” Arnt, 2018 WL 5316090, at *5. This court left to the district
court’s discretion whether to reopen the record on remand. Id. at *5 n.5.
At the hearing following remand, the district court reopened the record and allowed
appellant to testify, because she did not testify at the previous hearing. Appellant testified
that, while at the jail, s he was read the implied -consent advisory and a llowed to call an
attorney, but wa s unable to reach one. Appellant was handcuffed during this time, with
one handcuff attached to the counter and the other cuff unhooked so she could use the
phone. After agreeing to and unsuccessfully attempting the brea th test, the deputy again
read the advisory to appellant. Appellant testified that the deputy was “quite upset ,” he
was screaming at her and that he seemed agitated. Appellant further testified that she was
given a second opportunity to consult with an a ttorney and was provided a telephone and
phone books, but she was again unable to reach an attorney. Appellant was told that it was
a crime to refuse to take a te st, which upset her. Appellant agreed to take a urine test
because she didn’t want to commit a crime. Appellant agreed that while at the jail, the
deputy never physically threatened her. When asked whether she was verbally threatened,
appellant responded that the deputy was very upset, raised his voice, and was never calm.
She said that the mo st threatening thing was his intonation. Appellant also testified that
she was previously arrested for DWI in 1993 and 1998.
The deputy also testified. He was asked, among other things, whether the events
involving appellant were videotaped, and the depu ty agreed that they were. The deputy

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indicated that “the State” should have the videotape. The video was never offered as
evidence by either party.
The district court found that appellant’s consent to the urine test was voluntarily
given and again denied appellant’s motion to rescind the revocation of her driver’s license.
The district court found that “[t]he [p]rocess of arresting the [appellant] appears to have
followed protocol. Nothing in the record credibly suggests that [the deputy] was
threatening or acted abusively toward [appellant].” The district court also found that the
“process of booking the [appellant], as well as the reading of the advisory, followed
established protocol and was not abusive or threatening in nature.” Additionally, the
district court found that “this was the third occasion on which the [appellant] had been
arrested for [DWI] rendering her less likely to have been intimidated or frightened by the
nature of the encounter.” Finally, the district court found that “the [appellant] was afforded
an adequate opportunity to consult with an attorney.” After examining the totality of the
circumstances, the district court concluded that appellant’s
consent to testing was freely and voluntarily given. The
encounter was no doubt unpleasant for the [appellant] but her
will was not overborn [sic] such that her consent was coerced.
The nature of the stop, the questioning, and [appellant’s]
eventual arrest evidences no coercive behavior on the part of
[the deputy].

This appeal follows.

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D E C I S I O N
I. The district court’s finding that appellant freely and voluntarily provided a
urine sample was not clearly erroneous based on the totality of the
circumstances.

Appellant argues that the district court clearly erred when it found that appellant
freely and voluntarily provided a urine sample based on the totality of the circumstances.
“Under the Fourth Amendment to the United States Constitution and Article I, § 10 of the
Minnesota Constitution, warrantless searches are presumptively unreasonable unless one
of a few specifically established and well -delineated exceptions applies.” State v. Diede,
795 N.W.2d 836, 846 (Minn. 2011) (quotations and citations omitted). “Taking blood and
urine samples from someone constitutes a ‘search’ under the Fourth Amendment.” State
v. Brooks , 838 N.W.2d 563, 568 (Minn. 2013). However, if the subject of the search
consents, the police do not need a warrant. Id. For the consent exception to apply, the state
must show “by a preponderance of the evidence that consent was given freely and
voluntarily.” Diede, 795 N.W.2d at 846. “Whether consent was voluntary is determined
by examining ‘the totality of the circumstances, including the nature of the encount er, the
kind of person the defendant is, and what was said and how it was said.’” State v. Harris,
590 N.W.2d 90, 102 (Minn. 1999) (citation omitted). “[I]nvoluntariness of a consent to a
police request is not to be inferred simply because the circumstan ces of the encounter are
uncomfortable for the person being questioned.” State v. Dezso , 512 N.W.2d 877, 880
(Minn. 1994).
Whether consent is given voluntarily is a question of fact “and it varies with the
facts of each case.” Id. As such, this court re views the district court’s findings for clear

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error. Diede, 795 N.W.2d at 843. “Findings of fact are clearly erroneous if, on the entire
evidence, we are left with the definite and firm conviction that a mistake occurred.” Id. at
846-47.
First, appellant contends that her consent was not voluntary because the implied -
consent advisory was inaccurate and she was threatened with criminal charges. We agree
that the implied -consent advisory read to appellant was partially inaccurate because it
conveyed to her that refusing to submit to a warrantless urine test was a crime. See
Birchfield v. North Dakota , 136 S. Ct. 2160, 2185 (2016) (holding that the states cannot
impose criminal penalties on the refusal to submit to a warrantless blood test); see also
State v. Thompson, 886 N.W.2d 224, 234 (Minn. 2016) (concluding that a person cannot
be prosecuted for refusing to submit to an unconstitutional warrantless blood or urine test).
However, we disagree that the “threat” of criminal charges made appellant’s con sent
involuntary, as the supreme court has previously rejected the notion that a driver’s consent
is coerced when a consequence exists for refusing to take a chemical test. See Brooks, 838
N.W.2d at 570 (“[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.”). Moreover,
the inaccurate advisory and threat of criminal charges are but factors to be considered under
the totality of the circumstances. See Harris, 590 N.W.2d at 102 (“Whether consent was
voluntary is determined by examining ‘the totality of the circumstances.’”).
Second, appellant contends the district court’s reasoning that appellant was not
coerced because she had previously been arrested for D WI and was therefore comfortable
around police is “opposed to real life.” The district court found that “this was the third

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occasion on which the [appellant] had been arrested for [DWI] rendering her less likely to
have been intimidated or frightened by the nature of the encounter.” Appellant does not
cite to any legal authority or evidence in the record to support her contention that the district
court’s reasoning is “opposed to real life” or contrary to appellant’s experience . The
district court’s findin gs regarding appellant’s previous experience with law enforcement
and DWI arrests are not clearly erroneous.
Third, appellant contends that the police protocols, including the protocol of
handcuffing appellant , rendered her consent involuntary. We are not persuaded. In
Poeschel v. Comm’r of Pub. Safety , this court addressed Poeschel’s contention that her
consent was involuntary because she was asked to perform field sobriety tests, handcuffed
during her arrest, and placed in a locked police car. 871 N.W.2d 39, 46 (Minn. App. 2015).
We rejected those arguments, finding that the facts of the case “show[ed] a routine arrest
for DWI” and concluded that Poeschel voluntarily consented to provide a urine sample.
Id. Here, the district court found that appellant’s arrest followed protocol and that nothing
in the record, “credibly suggests that [the deputy] was threatening or acted abusively
toward [appellant].” The district court’s finding that the deputy was not threatening toward
appellant is not clearly erroneous.
Finally, appellant contends that even though appellant was twice afforded
opportunities to speak with counsel, because appellant was not able to reach an attorney,
her consent was coerced. In Brooks, the supreme court noted that it has “recognized that
the ability to consult with counsel about an issue supports the conclusion that a defendant
made a voluntary decision.” 838 N.W.2d at 572. While the supreme court found that the

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ability to speak with an attorney weighs in favor of a voluntary consent, the court did not
otherwise conclude that the inability to speak with an attorney renders consent involuntary.
The district court’s finding that appellant was “afforded an adequate opportunity to consult
with an attorney” was not clearly erroneous.
The district court’s finding that appellant’s consent to testing was “freely and
voluntarily given” is not clearly erroneous based on the totality of the circumstances.
II. The district court did not apply the incorrect standard of proof.

Appellant argues that the district court applied the incorrect standard of proof
because the district court required a showing that appellant’s “will was not overborn [sic]
such that her consent was coerced.” In order for the consent exception to apply to a search,
the state must prove by a preponderance of the evidence that the consent was “given freely
and voluntarily.” Diede, 795 N.W.2d at 846.
The district court, after examining “the totality of the circumstances ” surrounding
the encounter between the deputy and the appellant was satisfied that appellant’s “consent
to testing was freely and voluntarily given.” The district court found that “[t]he encounter
was no doubt unpleasant for the [appellant] but her will was not overborn [sic] such that
her consent was coerced.”2 There is no indication that the district court erroneously shifted
the burden to appellant to show that her will was overborne or that the district court ever

2 This language mir rors the language in Brooks, 838 N.W.2d at 571. In Brooks, the
supreme court noted that the Hennepin County District Court found that nothing in the
record suggested that Brooks “was coerced in the sense that his will had been overborne
and his capacity for self-determination critically impaired.” Id. at 568.

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declared or implied that appellant was required to m ake a showing that her will was
overborne in order to succeed on her claim. As such, appellant’s claim is without merit.
III. The district court was not required to make an adverse inference against
the commissioner of public safety based on the commissioner’s failure to
submit into evidence video recordings of appellant’s arrest and the implied-
consent advisory.

Appellant argues that because the commissioner did not produce “the best evidence
available”—a video and audio recording of appellant’s arrest and testing—the district court
erred in not drawing an adverse inference against the commissioner. “Minnesota, like most
jurisdictions, permits an unfavorable inference to be drawn from failure to produce
evidence in the possession and under the control of a party to litigation . . . [the finder of
fact] may infer the evidence, if produced , would have been unfavorable to that party.”
Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc ., 456 N.W.2d 434, 436 -
37 (Minn. 1990) (quotations and citations omitted). While the district court is permitted to
draw an adverse inference if a party fails to produce evidence, it is not required to draw
such an inference. See Wajda v. Kingsbury , 652 N.W.2d 856, 861 (Minn. App. 2002)
(stating that Minnesota “permi ts” an adverse inference to be drawn and the factfinder
“may” infer that the eviden ce would have been unfavorable), review denied (Minn. Nov.
19, 2002). Because the district court was not required to draw an adverse inference based
on the commissioner’s failure to offer the video evidence, appellant’s argument fails.
Affirmed.