                        This opinion will be unpublished and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
                                   A13-1698

                           Brian Jeffrey Serber, petitioner,
                                    Respondent,

                                         vs.

                           Commissioner of Public Safety,
                                   Appellant.

                               Filed August 18, 2014
                                     Reversed
                                  Johnson, Judge

                            Dakota County District Court
                            File No. 19AV-CV-13-1432


Ryan M. Pacyga, Amber S. Thompson, Ryan Pacyga Criminal Defense, Minneapolis,
Minnesota (for respondent)

Lori Swanson, Attorney General, Kristi Nielsen, Assistant Attorney General, St. Paul,
Minnesota (for appellant)



      Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and

Chutich, Judge.

                       UNPUBLISHED OPINION

JOHNSON, Judge

      The commissioner of public safety revoked Brian Jeffrey Serber’s driver’s license

after he was arrested for driving while impaired and refused to consent to chemical
testing. The district court rescinded the revocation on the ground that it violated Serber’s

Fourth Amendment rights. We conclude that the district court erred in its legal analysis

and, therefore, reverse.

                                          FACTS

       In the early-morning hours of April 28, 2013, Officer Adam Stier of the Lakeville

Police Department observed a car make an illegal turn, in violation of Minn. Stat.

§ 169.19, subd. 1(a) (2012), and also noticed that the vehicle did not have an operating

license-plate light, in violation of Minn. Stat. § 169.50, subd. 2 (2012). Officer Stier

stopped the vehicle and made contact with the driver, Serber. Officer Stier detected a

“very strong odor of an alcoholic beverage emanating from inside the vehicle,” and he

also noticed that Serber’s eyes were bloodshot and watery and that his speech was

slurred. Serber admitted that he had been drinking. Serber failed several field sobriety

tests, and a preliminary breath test indicated an alcohol concentration of .166.

       Officer Stier arrested Serber for driving while impaired (DWI), transported him to

the police station, and followed the procedures of the implied-consent statute. See Minn.

Stat. § 169A.51 (2012).      Serber indicated that he understood the implied-consent

advisory. When Officer Stier asked Serber whether he wished to speak to an attorney,

Serber responded in the affirmative. Officer Stier provided Serber with a telephone and

telephone books. After Serber made contact with an attorney, he indicated that he was

“ready to proceed.” Officer Stier asked Serber whether he would submit to a breath test.

Serber responded, “At this time without [a] sufficient search warrant I do refuse the

breath test.” The commissioner of public safety revoked Serber’s driver’s license.


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       In May 2013, Serber petitioned the district court for judicial review of the

revocation. See Minn. Stat. § 169A.53, subd. 2 (2012). In June 2013, the district court

conducted an implied-consent hearing. Serber was represented by an attorney but was

not personally present. At the outset of the hearing, Serber’s attorney identified a single

issue, “the McNeely slash consent issue.” The parties stipulated to an exhibit consisting

of the implied-consent peace-officer’s certificate, the implied-consent advisory, and

Officer Stier’s police report. No testimony was offered during the hearing.

       In July 2013, the district court issued an order rescinding the commissioner’s order

of revocation on the ground that, in light of Missouri v. McNeely, 133 S. Ct. 1552 (2013),

the revocation of Serber’s driver’s license pursuant to the implied-consent statute is a

violation of his Fourth Amendment rights. The commissioner appeals.

                                      DECISION

       The commissioner argues that the district court erred by rescinding the revocation

of Serber’s driver’s license. The commissioner contends that McNeely does not preclude

the revocation of Serber’s driver’s license as a matter of law.

       The district court’s decision implicates the constitutionality of a statute, which is a

question of law that is subject to a de novo standard of review. State v. Ness, 834 N.W.2d

177, 181 (Minn. 2013). We presume that Minnesota statutes are constitutional and will

declare a statute unconstitutional “with extreme caution and only when absolutely

necessary.”    Id. at 182 (quotation omitted).       The party challenging a statute on

constitutional grounds must meet “the very heavy burden of demonstrating beyond a




                                              3
reasonable doubt that the statute is unconstitutional.” State v. Johnson, 813 N.W.2d 1, 11

(Minn. 2012) (quotation omitted).

       We begin by noting that the holding in McNeely is relatively narrow.              The

Supreme Court held that “the natural dissipation of alcohol in the bloodstream does not

constitute an exigency in every case sufficient to justify conducting a blood test without a

warrant.” 133 S. Ct. at 1568. Accordingly, the Court concluded that the evidence in that

case arising from a forcible, warrantless blood test (which was not performed pursuant to

Missouri’s implied-consent statute) was properly suppressed by the Missouri trial court.

Id. at 1557, 1568. The Court did not hold or suggest that the Missouri implied-consent

statute was constitutionally infirm. In fact, the Court spoke approvingly of implied-

consent statutes by noting that its opinion does not “undermine the governmental interest

in preventing and prosecuting drunk-driving offenses” through the use of “legal tools”

such as “implied consent laws that require motorists, as a condition of operating a motor

vehicle within the State, to consent to BAC testing.” Id. at 1566 (plurality opinion).

       The Minnesota Supreme Court emphasized this portion of McNeely in State v.

Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014), a criminal

case concerning the validity of a person’s consent to chemical testing pursuant to the

implied-consent statute:

              Brooks’s argument is inconsistent with the Supreme Court’s
              discussion of implied consent laws in McNeely. As the
              Supreme Court recognized in McNeely, implied consent laws,
              which “require motorists, as a condition of operating a motor
              vehicle within the State, to consent to blood alcohol
              concentration testing if they are arrested or otherwise
              detained on suspicion of a drunk-driving offense,” are “ legal


                                             4
             tools” states continue to have to enforce their drunk driving
             laws. The Court noted that these laws typically require
             suspected drunk drivers to take a test for the presence of
             alcohol and mandate that a driver’s license will be revoked if
             they refuse a test. By using this “legal tool” and revoking a
             driver’s license for refusing a test, a state is doing the exact
             thing Brooks claims it cannot do -- conditioning the privilege
             of driving on agreeing to a warrantless search.

Id. at 572 (alteration in original) (citations omitted) (quoting McNeely, 133 S. Ct. at

1566). Although the statements about implied-consent statutes in McNeely and Brooks

were not essential to the decision in either case, the statements tend to show that the

revocation of a person’s driver’s license pursuant to Minnesota’s implied-consent law

does not violate the person’s Fourth Amendment rights.

      Furthermore, the district court’s decision is inconsistent with a recent opinion of

this court. In Stevens v. Commissioner of Pub. Safety, ___ N.W.2d ___, 2014 WL

3396522 (Minn. App. July 14, 2014), this court concluded that the implied-consent

statute “does not violate the unconstitutional-conditions doctrine by authorizing the

commissioner of public safety to revoke the driver’s license of a person who has been

arrested for DWI and has refused to submit to chemical testing.” Id. at *12. Serber

included an unconstitutional-conditions argument in his memorandum to the district

court, but the district court did not address it. It appears that Serber has abandoned the

unconstitutional-conditions argument on appeal.        Nonetheless, Stevens is relevant

because we reasoned, in part, that if the implied-consent statute authorizes a search of a

person’s blood, breath, or urine, such a search would satisfy the reasonableness

requirement of the Fourth Amendment. Id. at *6-10.



                                            5
       Serber also argues that his refusal was reasonable. This argument apparently is an

attempt to invoke the statutory affirmative defense that, “at the time of the refusal, the

petitioner’s refusal to permit the test was based upon reasonable grounds.” See Minn.

Stat. § 169A.53, subd. 3(c). Serber did not assert this defense in the district court; he is

making the argument for the first time on appeal. This court generally will not consider

issues that were not presented to the district court. Thiele v. Stich, 425 N.W.2d 580, 582

(Minn. 1988); LaBeau v. Commissioner of Pub. Safety, 412 N.W.2d 777, 780 (Minn.

App. 1987). Thus, we will not consider Serber’s reasonable-refusal argument.

       In sum, the district court erred by rescinding the revocation of Serber’s driver’s

license on the ground that the revocation violated Serber’s Fourth Amendment rights. In

light of that conclusion, we need not consider the commissioner’s other arguments for

reversal or Serber’s responses to the commissioner’s other arguments.

       Reversed.




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