                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2016).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-0578

                             Garrett Kelly Erickson, petitioner,
                                       Respondent,

                                             vs.

                              Commissioner of Public Safety,
                                      Appellant.

                                  Filed January 17, 2017
                                         Reversed
                                   Smith, John, Judge *

                               St. Louis County District Court
                                File No. 69DU-CV-15-2618


Andrew T. Poole, Duluth, Minnesota (for respondent)

Lori Swanson, Attorney General, Dominic J. Haik, Assistant Attorney General, St. Paul,
Minnesota (for appellant)


         Considered and decided by Larkin, Presiding Judge; Jesson, Judge; and Smith, John,

Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

SMITH, JOHN, Judge

       We reverse the district court’s order rescinding the revocation of respondent’s

driver’s license because respondent failed to show a violation of the unconstitutional-

conditions doctrine and because he did not make a procedural-due-process claim.

                                          FACTS

       St. Louis County Sheriff’s Deputy Olsen responded to a report of a single vehicle

accident. The vehicle’s only occupant, respondent Garrett Kelly Erickson, was taken to a

hospital for medical treatment.

       At the hospital, Olsen arrested Erickson for driving while impaired (DWI) and read

him the implied-consent advisory. Olsen informed Erickson that Minnesota law required

him to take a test to determine if he was under the influence of alcohol, that refusal to take

a test is a crime, and that he had the right to consult with an attorney before deciding

whether to take a test. Erickson indicated that he wanted to consult with an attorney, a

telephone was made available to him, and he made one phone call to his father.

       Erickson then asked Olsen, “What would you like?”            Olsen asked, “Blood?”

Erickson replied “no.” Olsen asked, “Urine?” Erickson replied “no.” Olsen deemed

Erickson to have declined to take a blood or urine test.

       Appellant Commissioner of Public Safety revoked Erickson’s driver’s license for

refusing to submit to a blood or urine test, and Erickson petitioned the district court for

rescission of the license revocation. Erickson argued that he was entitled to rescission

because “a warrantless search of [his] blood or urine would have been unconstitutional,


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thereby implicating his fundamental right to be free from unreasonable searches” and

violating his right to due process. Erickson’s district court brief does not specify whether

he is referring to substantive or procedural due process or both, but, in the petition for

rescission of his license revocation, he cited State v. Trahan, which applied a substantive

due-process analysis to the issue in the criminal context. 870 N.W.2d 396, 403-04 (Minn.

App. 2015), aff’d, 886 N.W.2d 216 (Minn. 2016). He also argued that the implied-consent

law violates the unconstitutional-conditions doctrine.

       The district court granted Erickson’s petition. The court reasoned that a warrantless

blood or urine test would not have been constitutional under any of the exceptions to the

Fourth Amendment’s warrant requirement. Therefore, the court determined that the

revocation of Erickson’s driver’s license violated his right to substantive due process

because it was based on Erickson’s refusal to consent to an unconstitutional search.

       The Commissioner appealed. Erickson did not file a brief, so this court directed the

appeal to proceed under Minn. R. Civ. App. P. 142.03.

                                      DECISION

       Under Minnesota’s implied-consent law, any person who drives a motor vehicle in

the state consents “to a chemical test of that person’s blood, breath, or urine for the purpose

of determining the presence of alcohol.” Minn. Stat. § 169A.51, subd. 1(a) (2014). A test

may be required when an officer has probable cause to believe a person was driving while

impaired and the person has been lawfully arrested for DWI or involved in a motor-vehicle

accident resulting in property damage or personal injury. Id., subd. 1(b)(1), (2) (2014).

When “a test is requested, the person must be informed: (1) that Minnesota law requires


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the person to take a test . . . to determine if the person is under the influence of alcohol . . .

[and] (2) that refusal to take a test is a crime.” Id., subd. 2(a)(1)(i), (a)(2) (2014). If a

person refuses a test, “a test must not be given.” Minn. Stat. § 169A.52, subd. 1 (2014).

But the commissioner must revoke the person’s driver’s license. Id., subd. 3(a) (2014).

       The supreme court recently held that a driver “cannot be prosecuted for refusing to

submit to an unconstitutional warrantless blood or urine test.” State v. Thompson, 886

N.W.2d 224, 234 (Minn. 2016). The United States and Minnesota Constitutions protect

individuals from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const.

art. I, § 10. Taking a blood or urine sample is a search under the Fourth Amendment. State

v. Brooks, 838 N.W.2d 563, 567-68 (Minn. 2013).

        Citing Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717 (Minn. App. 2014), the

 commissioner argues that the rescission of Erickson’s driver’s license should be

 reversed. Stevens involved a challenge to the revocation of a driver’s license under the

 implied-consent law for refusing to submit to a urine test. 850 N.W.2d at 720-21. The

 driver argued “that Minnesota’s implied-consent statute violates the unconstitutional-

 conditions doctrine because it imposes on a driver a choice between, on the one hand,

 relinquishing the Fourth Amendment right to be free from an unreasonable search and,

 on the other hand, relinquishing a license to drive a motor vehicle.” Id. at 723.

       The Stevens court stated, “Because this is a civil action, we need not decide

 whether [the driver] has been subjected to an unconstitutional condition on her Fourth

 Amendment rights by the criminal consequences of a refusal to submit to chemical

 testing.” Id. at 724. The court then concluded that the driver’s unconstitutional-

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 conditions argument failed for several reasons, including that “there is no authority for

 the proposition that the unconstitutional-conditions doctrine applies to a constitutional

 challenge based on the Fourth Amendment.” Id.

       Under Stevens, Erickson’s challenge to the revocation of his driver’s license based

on the unconstitutional-conditions doctrine fails.      Because Erickson did not raise a

procedural-due-process claim, he is not entitled to rescission of the revocation on that basis.

Accordingly, we reverse the district court’s order rescinding the revocation of Erickson’s

driver’s license.

       Reversed.




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