This opinion will be unpublished and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
                                    A15-0874

                            Andrew Joseph Sauter, petitioner,
                                      Appellant,

                                           vs.

                             Commissioner of Public Safety,
                                    Respondent.

                               Filed December 28, 2015
                                      Affirmed
                                     Kirk, Judge

                              Carver County District Court
                                File No. 10-CV-14-1260


Adam W. Klotz, Minneapolis, Minnesota; and Richard L. Swanson, Chaska, Minnesota
(for appellant)

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota (for respondent)


      Considered and decided by Stauber, Presiding Judge; Kirk, Judge; and Smith, Judge.

                        UNPUBLISHED OPINION

KIRK, Judge

      The commissioner of public safety revoked appellant’s driver’s license after he was

arrested for driving while impaired and a urine test showed that his alcohol concentration

exceeded 0.08. Appellant sought judicial review of the commissioner’s revocation. The
district court denied his petition to rescind the revocation, finding that appellant voluntarily

consented to chemical testing. We affirm.

                                            FACTS

         On October 5, 2014, at approximately 2:30 a.m., a Chaska Police Department

sergeant observed a vehicle traveling without its headlights illuminated and initiated a

traffic stop. The driver, appellant Andrew Joseph Sauter, showed signs of impairment.

After administering field sobriety tests, the sergeant arrested appellant for driving while

impaired.

         At the Carver County jail, the sergeant read appellant the implied-consent advisory.

Appellant stated that he understood the advisory and indicated that he did not wish to

consult with an attorney. The sergeant requested that appellant submit to a breath test.

Appellant agreed and provided samples of his breath, but the breath-testing device

repeatedly malfunctioned. The sergeant then re-read the portion of the implied-consent

advisory pertaining to testing and requested that appellant submit to a urine test. Appellant

agreed and provided a sample of his urine, which revealed an alcohol concentration of

0.102.

         The commissioner of public safety revoked appellant’s driver’s license pursuant to

Minn. Stat. § 169A.52, subd. 4 (2014). Appellant petitioned the district court to rescind the

revocation. After a hearing the district court found that, “Based on the totality of the

circumstances presented in this case, in consideration of Brooks, [appellant] voluntarily

consented to provide a urine sample.”         Accordingly, it sustained the revocation of

appellant’s license. This appeal follows.


                                               2
                                      DECISION

       The Fourth Amendment to the United States Constitution prohibits unreasonable

searches and seizures. U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. A test of

a person’s urine constitutes a search for purposes of the Fourth Amendment. Skinner v.

Ry. Labor Execs.’ Ass’n, 

, 

 (1989). A

warrantless search is reasonable only if an exception to the warrant requirement applies.

Missouri v. McNeely, 

 (2013); State v. Brooks, 

(Minn. 2013).

       Consent of the subject of the search is an exception to the warrant requirement.

Brooks, 

. In an implied-consent case, the commissioner of public safety

bears the burden of proving by a preponderance of the evidence that a driver consented to

chemical testing. See Johnson v. Comm’r of Pub. Safety, 

 (Minn.

App. 1986). This court applies a clear-error standard of review to a district court’s finding

that a person consented to a search. See State v. Diede, 

 (Minn. 2011).

“We hold findings of fact as clearly erroneous only when we are left with a definite and

firm conviction that a mistake has been committed.” Jasper v. Comm’r of Pub. Safety, 

 (Minn. 2002) (quotation omitted).

       A person’s consent to a search is valid if the consent is freely and voluntarily given.

State v. George, 

 (Minn. 1997). Whether consent is voluntary is

determined by examining the totality of the circumstances. State v. Harris, 

 (Minn. 1999). The relevant circumstances include “‘the nature of the encounter,

the kind of person the [subject] is, and what was said and how it was said.’” Brooks, 838


                                              3
N.W.2d at 569 (quoting State v. Dezso, 

 (Minn. 1994)). The nature

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

whether police read the driver the implied-consent advisory, and whether the driver had an

opportunity to consult with an attorney. 

       In Brooks, the supreme court identified three primary reasons why the driver’s

consent was voluntary and not coerced. First, the driver was read the implied-consent

advisory, which “made clear to him that he had a choice of whether to submit to testing.”

Id. at 572. “While an individual does not necessarily need to know he or she has a right to

refuse a search for consent to be voluntary, the fact that someone submits to the search

after being told that he or she can say no to the search supports a finding of voluntariness.”

Id. Second, the driver had “the ability to consult with counsel.” Id. Third, the driver “was

neither confronted with repeated police questioning nor was he asked to consent after

having spent days in custody.” Id. at 571. The supreme court reasoned that “nothing in

the record suggests that the driver was coerced in the sense that his will had been overborne

and his capacity for self-determination critically impaired.” Id. (quotation omitted).

       Appellant argues that the district court erred by finding that he provided valid

consent to the urine test. We disagree. The totality of the circumstances indicates that

appellant’s consent to chemical testing was voluntary. Like the driver in Brooks, appellant

was read the implied-consent advisory and given the opportunity to consult with counsel.

See id. at 572. Also as in Brooks, appellant was not confronted with repeated police

questioning or asked to consent after days in custody. Id. at 571. There is nothing in the

record indicating that appellant’s “will [was] overborne” or “his capacity for self-


                                               4
determination critically impaired.” See id. (quotation omitted). These circumstances

support the district court’s conclusion that appellant voluntarily consented to the urine test.

       Appellant also argues that a search warrant is required before law enforcement may

lawfully request a urine sample from a suspected drunk driver, asserting that State v.

Bernard, 

 (Minn. 2015), is distinguishable in the case of a urine test.

Bernard held that a warrantless breath test is constitutionally permissible as a search

incident to arrest, and a person “does not have a fundamental right to refuse a constitutional

search.” 

. While it is true that the holding in Bernard was limited to breath

tests, it is also limited to cases where the driver was charged with test refusal. 

 at 764-

65, 768 n.6. Therefore, it is inapplicable here.

       The district court properly denied appellant’s petition to rescind the revocation of

his driver’s license.

       Affirmed.




                                              5