State of Minnesota v. Zachary Michael McGowan ( 2015 )


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  •                           This opinion will be unpublished and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
    A14-1850
    State of Minnesota,
    Respondent,
    vs.
    Zachary Michael McGowan,
    Appellant.
    Filed July 13, 2015
    Affirmed
    Chutich, Judge
    Dakota County District Court
    File No. 19HA-CR-13-2979
    Lori Swanson, Attorney General, St. Paul, Minnesota; and
    Henry A. Schaeffer, III, Alina Schwartz, Campbell Knutson P.A., Eagan, Minnesota (for
    respondent)
    Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville,
    Minnesota (for appellant)
    Considered and decided by Kirk, Presiding Judge; Connolly, Judge; and Chutich,
    Judge.
    UNPUBLISHED OPINION
    CHUTICH, Judge
    Appellant Zachary McGowan appeals his conviction of third-degree driving while
    impaired, arguing that the district court clearly erred by finding that he voluntarily
    consented to a breath test. He further argues that the district court erred by concluding
    that a Wisconsin operating-while-impaired license revocation could be used to enhance
    the charge to third degree.     Because the totality of the circumstances shows that
    McGowan voluntarily consented to the test and because the Wisconsin and Minnesota
    impaired driving statutes are in conformity, we affirm.
    FACTS
    Around 3:30 a.m. on July 4, 2013, Lieutenant Adam Flynn of the Minnesota State
    Patrol saw a car weave in and out of the roadway, drive over several plastic cones
    dividing the highway, and cross over the fog line. Lieutenant Flynn conducted a traffic
    stop and identified the driver as appellant Zachary McGowan.
    Lieutenant Flynn immediately observed indicia of intoxication: he could smell
    alcohol and saw that McGowan had watery, glassy eyes. McGowan admitted that he had
    been drinking that night. He also told Lieutenant Flynn that he had previously been
    arrested for driving while impaired. While McGowan was still in his car, Lieutenant
    Flynn told him:
    What I’m going to have you do Zach . . . I’m going to have
    you hop out and do a couple tests. We’ll see if you’re okay.
    If you’re not, I mean, it is what it is. . . . I’m going to be
    straight with you, and a straight shooter with you.
    ***
    If you stay like you are and end up getting arrested again I
    don’t have any plans of holding you in jail, especially with
    the holiday tomorrow. I’m guessing you have better things to
    do than spend possibly until next Monday in jail. So long as
    you cooperate, I don’t have a problem doing that. You turn
    into a problem and that’s a different story.
    2
    McGowan failed the field sobriety tests and a preliminary breath test, and
    Lieutenant Flynn arrested him for driving under the influence.        Before handcuffing
    McGowan, Lieutenant Flynn told him:
    Your prior that you told me that you have . . . everything goes
    as is, that’d be a third-degree DWI. And, what that means is
    technically you could stay in jail, I mean it’s a gross
    misdemeanor. But as I told you up front at the car, you’ve
    been square with me the entire time, and I don’t think you’re
    going to change. But I have no intentions of keeping you in
    jail, so, as long as you stay like you are. If you act up—
    again, like I told you before—different story, different set of
    rules.
    Before taking McGowan to jail, Lieutenant Flynn retrieved McGowan’s phone
    and wallet from the car for him and moved McGowan’s car off the roadway so that
    McGowan could call someone to pick it up and thus avoid a towing fee. Although
    Lieutenant Flynn could have taken McGowan to the jail in Hastings, he instead brought
    McGowan to the jail in Lakeville because it was closer to McGowan’s residence.
    Once they arrived at the Lakeville facility, Lieutenant Flynn read McGowan the
    implied-consent advisory. McGowan said that he understood it, declined the opportunity
    to consult an attorney, and agreed to take a breath test. The results yielded an alcohol
    concentration of .15. Because McGowan had an impaired driving incident in Wisconsin
    in 2008, he was charged with two counts of third-degree driving while impaired and one
    count of failure to stay within a single lane of traffic. See 
    Minn. Stat. §§ 169.18
    , subd.
    7(a), 169A.20, subd. 1(1), (5) (2014).
    McGowan moved to dismiss the charges and suppress the evidence. Relevant to
    this appeal, McGowan argued that the results of his breath test should be suppressed
    3
    because he did not validly consent to the breath test and because his Wisconsin license
    revocation could not be used to enhance the charges. Lieutenant Flynn and McGowan
    testified at the hearing. The district court denied McGowan’s motions.
    McGowan agreed to stipulate to the prosecution’s case to obtain review of the two
    pretrial rulings under Minnesota Rule of Criminal Procedure 26.01, subdivision 4. In
    exchange, the state dismissed the charges of driving under the influence and failure to
    remain in a single lane. The district court convicted McGowan of one count of third-
    degree driving while impaired, alcohol concentration above .08. McGowan appealed.
    DECISION
    I.     Consent
    McGowan first makes several arguments as to why his consent to a breath test was
    not voluntary. Our review of the totality of the circumstances does not lead to the
    conclusion that the district court’s finding of voluntary consent was clearly erroneous.
    The United States and Minnesota Constitutions prohibit unreasonable searches.
    U.S. Const. amend. IV; Minn. Const. art. I, § 10. A warrantless search is presumptively
    unreasonable unless an exception to the warrant requirement applies. State v. Diede, 
    795 N.W.2d 836
    , 846 (Minn. 2011).
    One exception to the warrant requirement is consent. State v. Brooks, 
    838 N.W.2d 563
    , 568 (Minn. 2013), cert. denied, 
    134 S. Ct. 1799
     (2014). Whether consent was
    voluntary is a question of fact reviewed under the “clearly erroneous” standard: a finding
    of voluntariness is clearly erroneous if the court is left with the definite and firm
    conviction that a mistake occurred. Diede, 795 N.W.2d at 846-47. The voluntariness of
    4
    consent is determined by considering the totality of the circumstances. Brooks, 838
    N.W.2d at 568. The totality of the circumstances includes the nature of the encounter,
    what was said and how it was said, and the kind of person the defendant is. Diede, 795
    N.W.2d at 846.         Consent is not involuntary merely because the encounter is
    uncomfortable. Id.
    McGowan’s primary argument regarding consent involves the statements made by
    Lieutenant Flynn before and after the field sobriety tests. McGowan claims that these
    statements induced his submission to the later breath test. But viewing these statements
    in the full context of the stop, however, we conclude that they did not induce McGowan
    to submit to the tests. Lieutenant Flynn spoke in a respectful and professional tone
    throughout the entire transaction with McGowan. McGowan, a well-educated person,
    was equally respectful. Lieutenant Flynn explained the situation to McGowan and the
    possible outcomes. And after arresting McGowan, Lieutenant Flynn extended several
    unrequired courtesies to him: moving McGowan’s car to avoid a towing fee; retrieving
    McGowan’s cell phone and wallet from the car; and taking McGowan to a more
    convenient facility.
    As to the specific statements with which McGowan takes issue, Lieutenant Flynn
    testified that by “cooperate,” he meant that he did not want McGowan to attempt to
    assault him or to damage any property. Indeed, these statements occurred approximately
    half an hour before they arrived at the police station and the breath sample was taken.
    Although McGowan said that he understood “cooperate” to mean that he would be
    released if he complied with all of Lieutenant Flynn’s requests, the district court
    5
    implicitly rejected this testimony, finding that “it is highly speculative to conclude that
    McGowan thought cooperate meant he could not say no to the request to provide a breath
    sample.”   The district court noted that “Lieutenant Flynn was candid, honest, and
    respectful in the way he conducted himself throughout the encounter. In fact, based on
    the interaction with Lieutenant Flynn, McGowan could easily have clarified what
    ‘cooperate’ meant at any point in the process.” Our review of the video leads us to
    determine that this finding is not clearly erroneous, and accordingly this argument fails.
    McGowan’s remaining arguments regarding consent have been foreclosed by
    Brooks. McGowan claims that he did not consent because he merely submitted to legal
    authority, relying on Bumper v. North Carolina, 
    391 U.S. 543
    , 
    88 S. Ct. 1788
     (1968).
    But this precise argument was rejected in Brooks and fails here as well. See 838 N.W.2d
    at 571 (“Bumper therefore does not support Brooks’s argument that the State unlawfully
    coerced his consent.”).
    McGowan next argues that his arrest weighs against a finding of voluntary
    consent. Courts are less willing to find that a defendant voluntarily consented to a search
    after an arrest because a person in custody “becomes more susceptible to police duress
    and coercion.” Id. at 571 (quotation omitted). McGowan supports this argument by
    relying on State v. High, 
    287 Minn. 24
    , 
    176 N.W.2d 637
     (1970). But the supreme court
    in Brooks distinguished High with reasoning that applies here: “[T]he fact that [the
    defendant] was under arrest is not dispositive here.         [The defendant] was neither
    confronted with repeated police questioning nor was he asked to consent after having
    6
    spent days in custody.” 838 N.W.2d at 571. McGowan was also not confronted with
    repeated questioning or confined for days, and therefore this argument fails.
    McGowan further contends that his consent was involuntary because he was not
    informed that he could refuse the search. But “an individual does not necessarily need to
    know he or she has a right to refuse a search for consent to be voluntary.” Id. at 572.
    Although Lieutenant Flynn did not explicitly tell McGowan that he could refuse, the
    implied-consent advisory informed McGowan four times that he had a “decision” to
    make. A reading of the implied-consent advisory makes clear to a suspect that he has a
    choice of whether to submit to testing. Id. Although McGowan testified that he did not
    understand that he could make a decision, the district court did not credit this testimony.
    McGowan finally seeks to distinguish his situation from that in Brooks by noting
    that Brooks was a repeat offender who had the benefit of counsel. This argument is
    meritless. To be sure, Brooks may have had more previous driving-while-impaired
    charges than McGowan. See id. at 565 (noting that the case involved three separate
    incidents). But McGowan himself is a repeat offender: his charge was enhanced to third-
    degree driving while impaired based on a previous operating-while-intoxicated
    conviction in Wisconsin. He was familiar with the legal process following an arrest on
    charges of drunk driving. And while Brooks may have consulted with counsel where
    McGowan did not, that fact was not dispositive in Brooks; it merely reinforced the
    finding of voluntary consent. Id. at 571.
    7
    Because the totality of the circumstances does not give rise to a definite and firm
    conviction that a mistake was made, the district court’s finding of voluntary consent is
    not clearly erroneous.
    II.    Enhancement
    McGowan next argues that the district court erred by concluding that his prior
    Wisconsin license revocation could be used as an aggravating factor to enhance his
    current driving-while-impaired charge to third degree. He claims that the two states’
    statutes are not in conformity. We disagree.
    Applying the driving-while-impaired statutes to undisputed facts involves a
    question of law and is reviewed de novo. State v. Loeffel, 
    749 N.W.2d 115
    , 116 (Minn.
    App. 2008), review denied (Minn. Aug. 5, 2008). Under Minnesota law, a person is
    guilty of third-degree driving while impaired if one aggravating factor was present when
    the current offense occurred. Minn. Stat. § 169A.26, subd. 1 (2014). A “qualified prior
    impaired driving incident” within 10 years of the current offense is considered an
    aggravating factor. Minn. Stat. § 169A.03, subd. 3 (2014).
    A “qualified prior impaired driving incident” includes an earlier impaired driving
    conviction and loss of license under Minnesota law or a statute or ordinance from another
    state in conformity with Minnesota law. Id., subds. 20-22 (2014). To determine whether
    another state’s statute is in conformity with Minnesota law, “[i]t is the prohibited
    behavior which must be in conformity, not the evidentiary standards by which that act is
    proven.” State v. Geyer, 
    355 N.W.2d 460
    , 461 (Minn. App. 1984).
    8
    McGowan does not argue that his Wisconsin license revocation is not a prior loss
    of license for impaired driving. Instead, he claims that the Wisconsin statute is not in
    conformity with Minnesota law because Wisconsin does not provide a statutory right to
    counsel before a chemical test.
    In Minnesota, a person has the right to a reasonable opportunity to obtain legal
    advice before submitting to chemical testing. Friedman v. Comm’r of Pub. Safety, 
    473 N.W.2d 828
    , 835 (Minn. 1991); see also Minn. Stat. § 169A.51, subd. 2 (2014) (stating
    that a person must be informed of the right to consult with an attorney). But, even though
    Wisconsin does not provide such a right, the Minnesota Supreme Court addressed and
    rejected a similar assertion in State v. Schmidt, 
    712 N.W.2d 530
     (Minn. 2006),
    concerning a South Dakota law.
    In Schmidt, the defendant argued that his South Dakota convictions of impaired
    driving could not be used to enhance his Minnesota driving-while-impaired conviction
    because he was not given the opportunity in South Dakota to consult with an attorney
    before deciding whether to submit chemical tests. 
    Id. at 532
    . The supreme court rejected
    this argument, stating that “Minnesota’s interest in preserving the Friedman right is not
    sufficient to prohibit the use of the South Dakota convictions to enhance Schmidt’s DWI
    offenses in Minnesota even though the South Dakota convictions were based on
    uncounseled test decisions.” 
    Id. at 539
    . We rejected a similar argument in Loeffel,
    holding that a driving-while-impaired charge could be enhanced with a Wisconsin license
    revocation, even though the defendant was not given the opportunity to consult with an
    attorney before the Wisconsin testing. 
    749 N.W.2d at 117
    .
    9
    McGowan claims that neither Schmidt nor Loeffel control because neither
    considered whether the foreign statutes were in conformity with Minnesota law. He
    attempts to distinguish between the constitutional right to counsel and the statutory right
    to counsel. Yet his claim still relies on the argument that driving while impaired cannot
    be enhanced by offenses committed in states that did not permit a pre-chemical test right
    to counsel, an argument that the Schmidt and Loeffel courts rejected.
    Furthermore, we considered and rejected an argument identical to McGowan’s in
    State v. Geyer. In Geyer, the defendant argued that an Ohio driving-while-impaired
    conviction could not be used to enhance a Minnesota driving-while-impaired conviction
    because the states’ implied consent statutes were not in conformity: “Minnesota’s implied
    consent statute requires that a person be advised that he may consult with an attorney
    before taking a breath, blood or urine test. Ohio’s implied consent statute has no such
    requirement.” 355 N.W.2d at 461. But we rejected the defendant’s argument, noting that
    other than this difference, the statutes prohibit identical behavior. Id. “It is the prohibited
    behavior which must be in conformity, not the evidentiary standards by which that act is
    proven.” Id.
    Here, the Wisconsin and Minnesota statutes are in conformity because they
    prohibit the same behavior: operating a motor vehicle while under the influence or with
    an alcohol concentration above the legal limit. Compare 
    Wis. Stat. § 346.63
    (1)(a), (b)
    (2011-12), with Minn. Stat. § 169A.20, subd. 1. And this court has previously stated that
    Wisconsin and Minnesota impaired driving statutes are in conformity. See Dempski v.
    10
    Comm’r of Pub. Safety, 
    520 N.W.2d 532
    , 533 (Minn. App. 1994); State v. Friedrich, 
    436 N.W.2d 475
    , 477 (Minn. App. 1989).
    McGowan also argues that the Wisconsin offense cannot be used as an
    aggravating factor because he was denied certain fundamental rights, including the right
    to a unanimous jury and the right to be proven guilty beyond a reasonable doubt only
    upon a plea with a sufficient factual basis. But Schmidt foreclosed this argument when
    the supreme court declined to consider the collateral attack of a foreign conviction under
    Minnesota law. 712 N.W.2d at 539.
    Affirmed.
    11