Alex Jeffrey Mayer, 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This opinion will be unpublished and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
A19-0797

Alex Jeffrey Mayer, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed February 10, 2020
Affirmed
Bryan, Judge

Olmsted County District Court
File No. 55-CV-18-7993

Jay S. Adkins, Godwin Dold, Rochester, Minnesota (for appellant)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Bryan, Judge.
U N P U B L I S H E D O P I N I O N
BRYAN, Judge
Appellant challenges a district court order sustaining the revocation of his driv ing
privileges. He argues that his right to counsel was not vindicated and that he did not
consent to a breath test. We affirm.

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F A C T S
In September 2018, an officer arrested appellant Alex Jeffrey Mayer for driving
while impaired ( DWI). The officer transported appellant to a detention center and read
him the breath -test advisory. The officer informed him of his right to speak with an
attorney before deciding whether to submit to testing. Appellant chose to speak with an
attorney.
The officer provided appellant with a phone and phonebooks and helped him locate
the number of a specific attorney, but appellant was unable to reach that attorney. The
officer recommended certain phonebooks with attorneys that would “answer 24 hours.”
Appellant flipped through the books , but he did not make further attempts to contact an
attorney. He asked the officer how much time he had, and the officer told him that he
would give him time to make calls. Appellant told the o fficer that he had “three books ”
and it was not “fair” to the officer for him to continue searching for a lawyer.
The officer then stated, “From what I’ve seen about any attorney in that book, he’s
probably going to give you the same advice.” Appellant asked, “What advice do you think
that is going to be?” The officer clarified:
Again, this is not legal advice coming from me. I don’t
think that I’ve ever had anybody contact an attorney and the
attorney tell them to not take a breath test. The attorney usually
tells them to take a breath test. Now what they say in their
conversation . . . I’m not sure exactly. But, t he majority of
people, pretty much everybody who contacts an attorney ends
up taking a breath test at the attorney’s advice.

The officer also gave appellant information about the levels of criminal offenses in
Minnesota. He told appellant that a first t ime DWI would be a misdemeanor so long as

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appellant blew under twice the legal limit, but test refusal would be a gross misdemeanor.
Appellant told the officer that he wanted to hear that information from an attorney, and the
officer encouraged him to contact an attorney.
Appellant told the officer, “Based off of what you said, I should probably take the
test.” The officer responded, “That’s what I see most people do, but . . . it’s your decision.”
Appellant expressed concern about finding a phone number for a local attorney . The
officer told him that, if he wanted to speak with an attorney, he should “forget about the
area code” and just get in touch with any attorney. Appellant stated, “The way that you’re
making it sound , it doesn’t seem beneficial.” Appellant indicated that he wanted to test
and stated, “They’re just going to tell me to take the test, most likely.” The officer
responded, “Most likely, yes, but, again, I’m not an attorney, so I don’t know for sure.”
Though he did not speak with an a ttorney, appellant chose to end his attorney time
and submit to a breath test. Appellant’s attorney time lasted approximately 11 minutes.
The breath test indicated an alcohol concentration above the legal limit, t he state revoked
appellant’s driver’s lic ense, and a ppellant petitioned for an implied -consent hearing to
challenge the revocation.
At the hearing, the officer and appellant testified, and the officer’s body -camera
footage was admitted into evidence. Following the hearing, the district court affirmed the
revocation of appellant’s license. The court concluded that appellant’s right to counsel was
vindicated. The court found that appellant “voluntarily chose to end his phone time,” and
though the officer provided appellant with information, it was neither coercive nor
misleading. The court also found that, under the totality of the circumstances, appellant

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voluntarily consented to the breath test. Specifically, the court found that the officer
subjected appellant to a routine DWI investigation, read appellant the breath-test advisory,
and provided appellant an opportunity to speak with an attorney. The court also found that
appellant voluntarily ended that attorney time, was a “typical driver,” and that the officer’s
statements were not coercive or threatening. This appeal followed.
D E C I S I O N
I. Vindication of Appellant’s Right to Counsel
Appellant first argues that the officer violated his right to counsel by giving him
improper legal advice , which dissuaded him from making further attemp ts to contact an
attorney.
A driver has the right to obtain legal advice prior to deciding whether to submit to
chemical testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).
Whether an officer vindicated a driver’s right to counsel presents a mixed question of fact
and law and requires an examination of the totality of the circumstances. Groe v. Comm’r
of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13,
2000). “Establishing the historical events is a question of fact. Once th ose facts are
established, their significance becomes a question of law.” Parsons v. Comm’r of Pub.
Safety, 488 N.W.2d 500, 501 (Minn. App. 1992). The right is generally vindicated if a
DWI arrestee “is provided with a telephone prior to testing and given a reasonable time to
contact and talk with counsel.” Friedman, 473 N.W.2d at 835 (citation omitted). We
consider the officer ’s efforts to comply with his duty to vindicate the driver’s right to
counsel and the driver’s diligence in exercising that right. Kuhn v. Comm’r of Pub. Safety,

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488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). On one
hand, officers must not obstruct the driver’s efforts. See Mulvaney v. Comm’r of Pub.
Safety, 509 N.W.2d 179, 180, 82 (Minn. App. 1993) (concluding that the driver’s right to
counsel not vindicated where the officer retained control of the telephone, provided the
driver with only six minutes to contact an attorney, and hung up the phone without redialing
the number even though the driver again stated that he wanted that specific attorney). On
the other hand, a driver must make diligent efforts to contact an attorney. See Mell v.
Comm’r of Pub. Safety , 757 N.W.2d 702, 713 (Minn. App. 2008) ( concluding that t he
driver’s right to counsel was vindicated even though the driver spent less than three minutes
with the telephone, never attempted to call an attorney, called his spouse instead, and
walked away from the telephone).
Here, appellant does not challenge the district court’s findings that t he officer
provided him with a phone, phonebooks, and an opportunity to contact an attorney. Rather,
he challenges the district court’s conclusion that he voluntarily ended his attorne y time,
arguing that he was coerced by the officer’s statements. We are not persuaded. There is
no dispute that the officer expressed to appellant that, in his experience, attorneys advise
their clients to take the test. This statement, however, must be considered in context of the
officer’s other undisputed conduct and statements. For instance, the officer provided this
opinion in response to appellant’s questions and statements. More importantly, the officer
repeatedly qualified his statements to appellant by explaining that he was not an attorney
and was not providing legal advice. At no time did the officer directly or expressly obstruct
or impede appellant’s opportunity to contact and consult with an attorney. In stead, the

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officer repeatedly encouraged appellant to contact an attorney and made specific efforts to
help appellant contact counsel, such as locating the phone number for his preferred attorney
and suggesting that he call attorneys who are not in the surrounding area code in order to
have a better chance of speaking with an attorney. The officer made no threats or promises
to induce appellant to e nd his consultation time. On this record and u nder the se
circumstances, the district court did not err in concluding that appellant’s right to counsel
was vindicated.
II. Voluntariness of Appellant’s Consensual Breath Test
Appellant next argues that he was coerced into consenting to the breath test.1 The
Fourth Amendment protects against unreasonable searches. U.S. Const. amend. IV .
A breath test is a search under the Fourth Amendment. Birchfield v. North Dakota ,
136 S. Ct. 2160, 2173 (2016) . Searches conducted without a warrant are generally
unreasonable, unless an exception to the warrant requirement applies. State v. Flowers ,
734 N.W.2d 239, 248 (Minn. 2007) (“[T]he search is unreasonable unless the state proves
that the search fell within one of the exceptions to the warrant requirement.”). Consent is
one such exception.2 State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011).

1 In his brief, appellant references both due process and the Fourth Amendment. We see
no basis for a due -process argument, and therefore analyze hi s claim under the Fourth
Amendment. Minnesota recognizes a due -process violation if a driver is misinformed to
their detriment of the consequences of test refusal by an inaccurate advisory. See
McDonnell v. Comm’r of Pub. Safety , 473 N.W.2d 848, 855 (Minn. 1991). But t his case
does not involve an inaccurate or incomplete advisory, and appellant fails to point to any
of the officer’s statements as being inaccurate or incomplete.
2 A breath test may be administered as a search incident to arrest. Birchfield, 136 S. Ct. at
2185. The state did not advance an argument that the search -incident-to-arrest exception
is applicable and confirmed at oral argument that the issue is not before this court.

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The state must show by a preponderance of the evidence that the defendant fr eely
and voluntarily consented to a search. Id. Courts consider the “totality of the
circumstances” to determine w hether consent is voluntary . State v. Harris , 590 N.W.2d
90, 102 (Minn. 1999) (citation omitted). The relevant circumstances include “the nature
of the encounter, the kind of person the [suspect] is, and what was said and how it was
said.” State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). For example, an officer’s body
language and movement, as well as the manner of his questions, factor into a court’s
consideration of voluntariness. See id. at 881 (“The officer’s questions, though couched in
nonauthoritative language, were official and persistent, and were accompanied by the
officer’s body movement in leaning over towards the defendant seated next to him.”). In
addition, courts look to an o fficer’s representations and omissions , State v. Bunce , 669
N.W.2d 394, 399 (Minn. App.) , review denied (Minn. 2003), and whether a suspect
understood the representations and statements of the requesting officer , State v. Barajas ,
817 N.W.2d 204, 218 (Minn. App. 2012).
“[T]he question whether a consent to a search was in fact ‘voluntary’ or was the
product of duress or coercion, express or implied, is a question of fact.” Diede, 795 N.W.2d
at 846 (citation omitted). Therefore, the “clearly erroneous” standard controls our review
of a district court’ s finding of voluntary consent. State v. Hummel , 483 N.W.2d 68, 73
(Minn. 1992); State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990). Findings of fact are
clearly erroneous if, on the entire evidence, “we are le ft with the definite and firm
conviction that a mistake occurred. ” State v. Andersen , 784 N.W.2d 320, 334 (Minn.
2010).

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Here, the district court con sidered the totality of the circumstances and concluded
that appellant’s consent to testing was voluntary. The court found that the officer subjected
appellant to a routine DWI investigation, read appellant the breath -test advisory, and
provided appellant an opportunity to speak with an attorney . The court also found that
appellant voluntarily ended that attorney time, was a “typical driver,” and that the officer’s
statements were not coercive or threatening. The district court’s finding of voluntariness
is supported by the record and is not clearly erroneous.
Affirmed.