This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1603
Marsha Katherine Millonig, petitioner, Appellant,
vs.
Commissioner of Public Safety, Respondent.
Filed May 23, 2016 Affirmed Klaphake, Judge *
Dakota County District Court File Nos. 19WS-CV-15-431, 19HA-CR-15-1389
Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)
Lori Swanson, Attorney General, Peter D. Magnuson, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Schellhas, Presiding Judge; Jesson, Judge; and
Klaphake, Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
KLAPHAKE, Judge
Appellant Marsha Katherine Millonig challenges her driver’s license revocation,
arguing that the arresting officer did not have probable cause to arrest her and invoke
Minnesota’s implied-consent law, she did not consent to a breath test, and Minnesota’s
implied-consent law is unconstitutional. We affirm.
DECISION
Probable Cause for Arrest
Millonig argues that the district court erroneously concluded that Officer David
Streefland had probable cause to arrest her for driving while impaired (DWI) and invoke
Minnesota’s implied-consent law. Probable cause “exists whenever there are facts and
circumstances known to the officer which would warrant a prudent man in believing that
the individual was driving . . . a motor vehicle while impaired.” State v. Koppi, 798 N.W.2d
358, 362 (Minn. 2011) (quotation omitted). We review the district court’s probable cause
determination de novo because Millonig does not challenge the district court’s factual
findings. See Shane v. Comm’r of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998) (“When
the facts of a case are undisputed, probable cause is a question of law to be reviewed de
novo.”).
Officer Streefland initially observed Millonig’s vehicle enter an intersection on a
red light. Millonig also nearly completed a stop at a green light, and crossed over and
straddled the center-dividing line. After Officer Streefland activated his emergency lights,
Millonig turned twice before entering her garage. While standing near Millonig, Officer
2 Streefland noticed a strong odor of an alcoholic beverage, Millonig’s speech was “very
slurred,” her eyes were bloodshot and watery, and she leaned on her vehicle for balance.
Depending on the circumstances, probable cause may be based on a single objective
indication of intoxication. Martin v. Comm’r of Pub. Safety, 353 N.W.2d 202, 204 (Minn.
App. 1984). Officer Streefland observed numerous indicia of intoxication, and Millonig
admitted to consuming alcohol. See State v. Laducer, 676 N.W.2d 693, 698 (Minn. App.
2004) (“An admission of drinking, coupled with other indicators of intoxication, is
sufficient for probable cause to arrest.”). Therefore, the district court did not err when it
concluded that Officer Streefland had probable cause to arrest Millonig and invoke
Minnesota’s implied-consent law.
Consent to Test
Millonig next argues that she did not consent to a breath test. This court reviews
for clear error whether consent to search was voluntary. State v. Diede, 795 N.W.2d 836,
846 (Minn. 2011). “A finding is clearly erroneous when there is no reasonable evidence
to support the finding or when an appellate court is left with the definite and firm conviction
that a mistake occurred.” State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012).
Both the United States and Minnesota Constitutions provide that “[t]he right of the
people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures shall not be violated.” U.S. Const. amend IV; Minn. Const. art. I,
§ 10. Collecting a breath sample constitutes a search under the Fourth Amendment. Mell
v. Comm’r of Pub. Safety, 757 N.W.2d 702, 709 (Minn. App. 2008). A warrantless search
3 is presumptively unreasonable. Harrison v. Comm’r of Pub. Safety, 781 N.W.2d 918, 920
(Minn. App. 2010).
But a search warrant is not required “if the subject of the search consents.” State v.
Brooks, 838 N.W.2d 563, 568 (Minn. 2013). Consent must be made freely and voluntarily.
Id. This court determines whether consent is voluntary by considering the totality of the
circumstances. Id. This consideration includes “the nature of the encounter, the kind of
person the defendant is, and what was said and how it was said.” State v. Dezso, 512
N.W.2d 877, 880 (Minn. 1994). A person does not consent simply by acquiescing to a
claim of lawful authority. Brooks, 838 N.W.2d at 569.
Millonig agreed to take a breath test after Officer Streefland read her the implied-
consent advisory and informed her that refusal to take the test constituted a crime. “[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. at 570; Poeschel v. Comm’r
of Pub. Safety, 871 N.W.2d 39, 46 (Minn. App. 2015) (rejecting argument that consent was
involuntary because the appellant told the officers she would take the test only because the
law required it). In Brooks, the supreme court concluded that the driver voluntarily
consented to testing, considering that: (1) he was not confronted with repeated questioning
nor asked to consent after spending “days in custody,” (2) he consulted with an attorney
before submitting to testing, and (3) law enforcement read the implied-consent advisory to
him prior to testing. Id. at 571–72.
Similarly here, Millonig was not confronted with repeated questioning or asked to
consent after a lengthy period in custody; Officer Streefland began the implied-consent
4 advisory approximately 26 minutes after stopping Millonig’s vehicle, and Millonig agreed
to take the test shortly thereafter. Officer Streefland also read the implied-consent advisory
to Millonig before the test, and Millonig consulted with an attorney before taking the test.
Millonig asserts that Brooks is distinguishable because the driver in Brooks had been
arrested on numerous occasions for DWI. The fact that Brooks was a “veteran drunk
driver” was but one factor that was considered. See id. at 569–72. Moreover, because
Millonig was also previously convicted of DWI, this consideration also supports the district
court’s decision here. Therefore, the district court did not err by concluding that Millonig
validly consented to the breath test.
Constitutionality of Statute
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1603
Marsha Katherine Millonig, petitioner, Appellant,
vs.
Commissioner of Public Safety, Respondent.
Filed May 23, 2016 Affirmed Klaphake, Judge *
Dakota County District Court File Nos. 19WS-CV-15-431, 19HA-CR-15-1389
Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)
Lori Swanson, Attorney General, Peter D. Magnuson, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Schellhas, Presiding Judge; Jesson, Judge; and
Klaphake, Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
KLAPHAKE, Judge
Appellant Marsha Katherine Millonig challenges her driver’s license revocation,
arguing that the arresting officer did not have probable cause to arrest her and invoke
Minnesota’s implied-consent law, she did not consent to a breath test, and Minnesota’s
implied-consent law is unconstitutional. We affirm.
DECISION
Probable Cause for Arrest
Millonig argues that the district court erroneously concluded that Officer David
Streefland had probable cause to arrest her for driving while impaired (DWI) and invoke
Minnesota’s implied-consent law. Probable cause “exists whenever there are facts and
circumstances known to the officer which would warrant a prudent man in believing that
the individual was driving . . . a motor vehicle while impaired.” State v. Koppi, 798 N.W.2d
358, 362 (Minn. 2011) (quotation omitted). We review the district court’s probable cause
determination de novo because Millonig does not challenge the district court’s factual
findings. See Shane v. Comm’r of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998) (“When
the facts of a case are undisputed, probable cause is a question of law to be reviewed de
novo.”).
Officer Streefland initially observed Millonig’s vehicle enter an intersection on a
red light. Millonig also nearly completed a stop at a green light, and crossed over and
straddled the center-dividing line. After Officer Streefland activated his emergency lights,
Millonig turned twice before entering her garage. While standing near Millonig, Officer
2 Streefland noticed a strong odor of an alcoholic beverage, Millonig’s speech was “very
slurred,” her eyes were bloodshot and watery, and she leaned on her vehicle for balance.
Depending on the circumstances, probable cause may be based on a single objective
indication of intoxication. Martin v. Comm’r of Pub. Safety, 353 N.W.2d 202, 204 (Minn.
App. 1984). Officer Streefland observed numerous indicia of intoxication, and Millonig
admitted to consuming alcohol. See State v. Laducer, 676 N.W.2d 693, 698 (Minn. App.
2004) (“An admission of drinking, coupled with other indicators of intoxication, is
sufficient for probable cause to arrest.”). Therefore, the district court did not err when it
concluded that Officer Streefland had probable cause to arrest Millonig and invoke
Minnesota’s implied-consent law.
Consent to Test
Millonig next argues that she did not consent to a breath test. This court reviews
for clear error whether consent to search was voluntary. State v. Diede, 795 N.W.2d 836,
846 (Minn. 2011). “A finding is clearly erroneous when there is no reasonable evidence
to support the finding or when an appellate court is left with the definite and firm conviction
that a mistake occurred.” State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012).
Both the United States and Minnesota Constitutions provide that “[t]he right of the
people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures shall not be violated.” U.S. Const. amend IV; Minn. Const. art. I,
§ 10. Collecting a breath sample constitutes a search under the Fourth Amendment. Mell
v. Comm’r of Pub. Safety, 757 N.W.2d 702, 709 (Minn. App. 2008). A warrantless search
3 is presumptively unreasonable. Harrison v. Comm’r of Pub. Safety, 781 N.W.2d 918, 920
(Minn. App. 2010).
But a search warrant is not required “if the subject of the search consents.” State v.
Brooks, 838 N.W.2d 563, 568 (Minn. 2013). Consent must be made freely and voluntarily.
Id. This court determines whether consent is voluntary by considering the totality of the
circumstances. Id. This consideration includes “the nature of the encounter, the kind of
person the defendant is, and what was said and how it was said.” State v. Dezso, 512
N.W.2d 877, 880 (Minn. 1994). A person does not consent simply by acquiescing to a
claim of lawful authority. Brooks, 838 N.W.2d at 569.
Millonig agreed to take a breath test after Officer Streefland read her the implied-
consent advisory and informed her that refusal to take the test constituted a crime. “[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. at 570; Poeschel v. Comm’r
of Pub. Safety, 871 N.W.2d 39, 46 (Minn. App. 2015) (rejecting argument that consent was
involuntary because the appellant told the officers she would take the test only because the
law required it). In Brooks, the supreme court concluded that the driver voluntarily
consented to testing, considering that: (1) he was not confronted with repeated questioning
nor asked to consent after spending “days in custody,” (2) he consulted with an attorney
before submitting to testing, and (3) law enforcement read the implied-consent advisory to
him prior to testing. Id. at 571–72.
Similarly here, Millonig was not confronted with repeated questioning or asked to
consent after a lengthy period in custody; Officer Streefland began the implied-consent
4 advisory approximately 26 minutes after stopping Millonig’s vehicle, and Millonig agreed
to take the test shortly thereafter. Officer Streefland also read the implied-consent advisory
to Millonig before the test, and Millonig consulted with an attorney before taking the test.
Millonig asserts that Brooks is distinguishable because the driver in Brooks had been
arrested on numerous occasions for DWI. The fact that Brooks was a “veteran drunk
driver” was but one factor that was considered. See id. at 569–72. Moreover, because
Millonig was also previously convicted of DWI, this consideration also supports the district
court’s decision here. Therefore, the district court did not err by concluding that Millonig
validly consented to the breath test.
Constitutionality of Statute
Millonig next argues that Minnesota’s test-refusal statute violates her constitutional
right to due process because it criminalizes the exercise of her right to withhold consent to
a warrantless search. The constitutionality of a statute is a question of law that this court
reviews de novo. State v. Ness, 834 N.W.2d 177, 181 (Minn. 2013). Minnesota statutes
are presumed constitutional, and a reviewing court will declare a statute unconstitutional
“only when absolutely necessary.” State v. Melde, 725 N.W.2d 99, 102 (Minn. 2006)
(quotation omitted). Minnesota’s test-refusal statute provides that “[i]t is a crime for any
person to refuse to submit to a chemical test of the person’s blood, breath, or urine under
section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure;
revocation of license).” Minn. Stat. § 169A.20, subd. 2 (2014).
In State v. Bernard, the supreme court held that a warrantless breath test was
constitutional under the search-incident-to-arrest exception to the Fourth Amendment’s
5 warrant requirement. 859 N.W.2d 762. 772 (Minn. 2015), cert. granted, 136 S. Ct. 615
(Dec. 11, 2015). While Bernard is currently under review in the Supreme Court, it remains
the law in this state until and unless overturned. See State v. M.L.A., 785 N.W.2d 763, 767
(Minn. App. 2010) (“[T]his court[] is bound by supreme court precedent . . . .”), review
denied (Minn. Sept. 21, 2010). Thus, following Bernard, we conclude that Minnesota’s
test-refusal statute does not violate Millonig’s constitutional right to due process of law.
Unconstitutional-Conditions Doctrine
Millonig also argues that the test-refusal statute violates the unconstitutional-
conditions doctrine. “Minnesota’s test-refusal statute does not violate the unconstitutional-
conditions doctrine by imposing a criminal penalty on a person who has been arrested for
driving while impaired and has refused to submit to a breath test.” State v. Bennett, 867
N.W.2d 539, 540 (Minn. App. 2015), review denied (Minn. Oct. 28, 2015). We therefore
reject this challenge to the test-refusal statute.
Affirmed.