This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-0399

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                  Tanya Lee Scheffler,
                                      Appellant.

                                 Filed October 6, 2014
                                       Affirmed
                                  Rodenberg, Judge

                              Meeker County District Court
                                File No. 47-CR-12-482

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony D. Spector, Meeker County Attorney, Litchfield, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant Tanya Lee Scheffler challenges her conviction of operating a motor

vehicle while under the influence of a controlled substance, after a court trial and after
her petition for postconviction relief was denied by the district court while her direct

appeal was stayed. We affirm.

                                          FACTS

       On November 12, 2011, the Meeker County Sheriff’s Office received a report of a

vehicle that was “all over the road,” traveling into the oncoming lane of traffic, and

weaving “from shoulder to shoulder” on the highway. Eden Valley Police Officer Brian

Peterka located the vehicle, observed it traveling below the speed limit, crossing the fog

line, and “weaving sharply within . . . its lane.” Officer Peterka stopped the vehicle at

approximately 1:12 a.m. and identified the driver as appellant. Officer Peterka, who had

dealt with appellant once before, noticed that her speech was slow, hard to follow, and

did not make sense. Officer Peterka also noticed that appellant “acted somewhat erratic”

and did not “seem to have her . . . wits about her.”

       Within ten minutes, Meeker County Deputy Sheriff Reggie Sandstrom arrived at

the scene. He did not smell any alcohol on appellant, but noticed that she held onto her

vehicle for balance as she exited.      Appellant was unsure of her location.     Deputy

Sandstrom conducted several standardized field sobriety tests, which appellant failed.

Based on his observations, Deputy Sandstrom concluded that appellant was under the

influence of a controlled substance, placed her under arrest, and transported her to the

Meeker County jail.

       Deputy Sandstrom testified that appellant was read the implied consent advisory

and agreed to submit to a blood test, which was taken at 3:04 a.m. at a nearby hospital.

According to a BCA lab report, appellant’s blood sample contained Oxycodone


                                              2
metabolytes, Clonazepam, and a metabolite of marijuana. Appellant had told Deputy

Sandstrom that she takes Clonazepam for anxiety, Paroxetine for depression, and

Trazodone to help her sleep, but she did not mention taking Oxycodone.

       Litchfield Police Officer Dennis Hanson, a certified Drug Recognition Evaluator

(DRE) who also testified at trial, was asked to evaluate appellant after the blood draw.

Hanson testified that appellant told him that the night before her arrest she had slept from

8 p.m. until 5:30 a.m., and had last eaten at 12:30 p.m. She stated that she had consumed

numerous caffeinated beverages, including one that she was drinking when she was

stopped at 1:00 a.m. Based on his training, past experience, and DRE evaluation of

appellant, Hanson believed that appellant was impaired by a depressant, although Hanson

also noted signs and symptoms of narcotic impairment. Evidence of both Oxycodone, a

narcotic, and Clonazepam, a depressant, were found in appellant’s blood sample. Hanson

further testified that to the best of his knowledge, the DRE evaluation and tests are not

affected by sleep deprivation. But Hanson could not opine concerning the effect that lack

of food for a 12-hour period might have on the evaluation.

       Appellant testified at trial that she did not take her full dose of Clonazepam for the

day because she was in the process of moving from Litchfield to Paynesville and knew

she would be “driving quite frequent[ly]” that day. She testified that she was under a lot

of stress and was anxious. She testified that she had “[v]ery little” to eat that day and was

drinking caffeinated beverages. She acknowledged that she was driving slower than she

should have been and that she focused on the semi in front of her for a while “because

[she] knew [that she] was very exhausted.” She remembered her vehicle “going off to the


                                             3
right, so it was going towards the right-hand ditch” and she “would feel it hit the gravel

on the side of the road” and she would “pull [her]self back up onto the road.” She

claimed that she “was getting very tired” and “was starting to nod off.”

       Appellant testified that after she was stopped, “everything kind of seemed to . . .

[go in] slow motion, and then it would all just be spinning really fast.” She claimed that

she did not have a clear memory of what took place from the time she was pulled over

“[u]ntil [she] woke up in the holding cell and they told [her that she] could leave.” She

testified that she remembered going to the hospital and that she “was in tears crying” and

that “[t]hey had to puncture [her] arm more than once to get blood.” She testified that she

was “so tired [she] could not function, and all [she] could do was laugh” not because the

situation was funny, but because, as she described it, she “just could not believe [she] was

so close to getting away from such a horrible place in [her] life, and [she] was stopped

just before [she] got back to [her] children.” She claimed that she “had been having an

anxiety attack for most of the day.”

       Appellant further testified that she is a recovering addict who had relapsed several

days before her arrest. She admitted that the bottle for her Clonazepam contains a

warning to “use care and caution when operating machinery” and that it “may cause

drowsiness” (quotation marks omitted). Appellant agreed that Clonazepam can affect a

person’s ability to drive a vehicle and that the warning explicitly cautions about taking

the medication “when driving cars” (quotation marks omitted). Despite its presence in

her blood, appellant denied having taken Oxycodone.




                                             4
       The district court found appellant guilty of operating a motor vehicle under the

influence of a controlled substance, in violation of Minn. Stat. § 169A.20, subd. 1(2)

(2012), and operating a motor vehicle when the body contains any amount of a schedule I

or II controlled substance, in violation of Minn. Stat. § 169A.20, subd. 1(7) (2012). The

district court later denied several posttrial motions filed by appellant, entered findings to

support the verdict, adjudicated appellant guilty of both counts, and imposed sentence.1

       Appellant filed a direct appeal and this court granted appellant’s motion to stay

and remand to allow appellant to challenge the validity of the warrantless blood draw

following Missouri v. McNeely, 

 (2013), and State v. Brooks, 

 (Minn. 2013), cert. denied, 

 (2014). In an order filed on December

17, 2013, the district court denied the petition and rejected appellant’s claim that she is

entitled to an evidentiary hearing on whether she withdrew her consent:

              Petitioner’s argument that officers Sandstrom and Hansen
              failed to give enough “detailed testimony” surrounding her
              decision to consent to a blood draw is just that: argument.
              There are insufficient facts to entitle her to relief. Petitioner
              provides no additional facts to show that she withdrew her
              consent at the hospital. There is no evidence at all of
              withdrawn consent. Petitioner’s own testimony never raised
              issues of withdrawing consent and her demeanor after the
              blood draw did not indicate that she withdrew or was upset
              about the blood test. All she said is it took two attempts to
              obtain a sample, and that it hurt. That some pain is associated
              with a blood draw must have been in the minds of every court
              that has addressed the issues presented in McNeely, including

1
  Appellant did not raise, and the parties’ briefing does not discuss, the impact or
propriety of multiple convictions arising from the same incident. We note that a person
may be convicted of either the crime charged or an included offense, but not both. 

, subd. 1 (2012). Because the issue was not raised by the briefing, we
merely note it in passing.

                                             5
              the Brooks court. Petitioner argues that the toxicology reports
              should be excluded under McNeely and Brooks; however,
              McNeely and Brooks only apply to unconsented-to blood
              draws. Since Petitioner consented to this blood draw and
              never communicated withdrawal of consent, law enforcement
              does not need to seek a separate warrant. McNeely and
              Brooks are not availing to Petitioner here.

       On December 30, 2013, appellant moved for reconsideration in the district court.

Appellant’s counsel submitted a letter to the district court in which she explained that

before the district court’s December 17 order, appellant “produced the enclosed affidavit

outlining the facts around [her] withdrawn consent.” The affidavit restates some of the

facts outlined in appellant’s trial testimony, and also includes the following additional

allegations: “I remember someone tied my arms to the chair with straps”; “I remember I

said, ‘Stop!’”; “I remember I told the nurse and police officer to stop because being tied

to the chair triggered an anxiety attack”; and “I do not believe that I willingly provided

the blood sample at the hospital.”

       In an order filed on January 10, 2014, the district court denied appellant’s motion

for reconsideration. The district court concluded that the affidavit was untimely and

should have been included with the relevant materials filed earlier with the court. The

district court further concluded that, even if it considered the affidavit, appellant would

not be entitled to relief. Appellant also appealed the denial of her postconviction petition.

       We thereafter dissolved the stay and reinstated the direct appeal, consolidating it

with appellant’s postconviction appeal.




                                             6
                                     DECISION

                                            I.

      Appellant argues that the district court erred in denying her postconviction petition

without an evidentiary hearing. We review the denial of postconviction relief for an

abuse of discretion. Sontoya v. State, 

 (Minn. 2013). A district

court need not hold an evidentiary hearing regarding allegations made in a petition when

those allegations are contrary to trial testimony and the district court is not “reasonably

well-satisfied” that the trial testimony was false. McDonough v. State, 

 (Minn. 2013).

      Based on the testimony at trial, including appellant’s testimony, the district court

concluded that appellant voluntarily consented to the blood draw and that the seizure of

her blood was therefore constitutionally permissible despite the absence of a search

warrant authorizing the seizure. For the consent exception to the warrant requirement to

apply, the state must show by a preponderance of the evidence that a driver “freely and

voluntarily” consented to the search. Brooks, 

. To determine whether

consent was voluntary, a district court must examine the totality of the circumstances,

including “the nature of the encounter, the kind of person the defendant is, and what was

said and how it was said.” State v. Dezsos, 

 (Minn. 1994). The

nature of the encounter includes how police came to suspect the driver was under the

influence, whether police read the driver the implied consent advisory, and whether the

driver was given an opportunity to consult with an attorney. Brooks, 

.




                                            7
Whether a person has voluntarily consented is a factual question, which we review for

clear error. State v. Diede, 

 (Minn. 2011).

       In this case, the consent issue was raised and considered by the district court in

postconviction proceedings.     The district court had already heard and considered

appellant’s testimony at the court trial. The district court found that appellant was read

the implied consent advisory, answered “No” when asked if she wanted to speak to an

attorney, and agreed to submit to a blood test. The district court further found that

appellant could not remember all of the events on the night in question but that she did

recall being in the hospital and crying because the nurse had to poke her twice to get a

good sample. The district court found that following the blood draw, and during her

interview with DRE Officer Hanson, appellant was asked how the blood draw went and

responded that she was “being helpful” and tried to help them “find the ones that don’t

run,” and then she laughed. The district court concluded that there was no evidence that

appellant withdrew her consent at the hospital, that her own trial testimony raised no

issues of withdrawing consent, and that her demeanor after the blood draw did not

indicate that she was upset about the test. It concluded that, because appellant “consented

to this blood draw and never communicated withdrawal of consent,” a warrant was not

required.

       In Brooks, the Minnesota Supreme Court concluded that nothing in the record

suggested that the defendant was “coerced in the sense that his will had been overborne

and his capacity for self-determination critically impaired.”       

(quotation omitted). The Brooks court identified some circumstances that might suggest


                                            8
coercion, including when a suspect is “confronted with repeated police questioning” or

“asked to consent after having spent days in custody.”             

   Here, appellant’s

supplemental allegations, even if believed, suggest that “being tied to the chair” triggered

an anxiety attack. But she did not claim to have revoked her earlier consent to the blood

draw, nor even to have had any second thoughts about that consent. And as noted by the

district court, which had heard her trial testimony and that of the police officers,

appellant’s conduct and interactions with the DRE officer after the blood draw showed

that any anxiety attack she may have had was fleeting. By the time she returned to the

jail, appellant stated that she tried to be “helpful” during the blood draw and assist the

nurse, and she was laughing and apparently in good spirits.

       Because the evidence clearly supports the district court’s findings and conclusions

that appellant freely and voluntarily consented to submit to a blood test and that her

consent was not “coerced” or withdrawn, the district court acted within its discretion in

denying the postconviction petition without an evidentiary hearing.

                                            II.

       Appellant argues that the evidence is insufficient to prove that she was driving

while impaired because her demeanor and physical movements, which formed the basis

for the officers’ opinions that she was impaired, were caused by her anxiety, lack of food,

and sleep deprivation. On appeal, we view the evidence in the light most favorable to the

verdict. Davis v. State, 

 (Minn. 1999). We assume that the fact-

finder “believed the state’s witnesses and disbelieved any evidence to the contrary.”

State v. Moore, 

 (Minn. 1989).


                                             9
       Appellant asserts that without the BCA lab report showing the presence of

controlled substances or Schedule I or II drugs in her system, the only admissible

evidence that she was operating her vehicle under the influence of drugs or that her body

contained a Schedule I or II drug was the opinion of the DRE officer that appellant was

under the influence of a depressant and possibly a narcotic. Opinion testimony by a drug

recognition expert that a person is impaired may not be sufficient, without more, to

support a guilty verdict. See State v. Klawitter, 

 (Minn. 1994)

(Wahl, J., dissenting).

       The DRE officer’s testimony, however, was not the only evidence of impairment

presented at trial.       Appellant’s driving conduct caused another driver to call law

enforcement to report it. And Officer Peterka followed appellant and observed additional

evidence of impaired driving, including driving too slow, crossing the fog line, and

weaving. Once stopped, appellant failed field sobriety tests, had difficulty walking and

balancing, exhibited slow speech, and could not remember where she was. The officers,

all experienced in identifying impaired drivers, believed that appellant was impaired by

more than anxiety, fatigue, and lack of food. The district court weighed all of the

evidence presented, including appellant’s claims that she was impaired by factors other

than a controlled substance, and determined that she was guilty of operating a motor

vehicle while under the influence of a controlled substance. The evidence is more than

sufficient to sustain the conviction here.

       Affirmed.




                                             10