                        This opinion will be unpublished and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
                                   A16-0729

                         Joshua Lloyd Gangestad, petitioner,
                                    Respondent,

                                         vs.

                           Commissioner of Public Safety,
                                   Appellant.

                              Filed December 27, 2016
                                     Affirmed
                                    Reilly, Judge

                           Mille Lacs County District Court
                               File No. 48-CV-15-1907

Sharon R. Osborn, Kelli S. Jasper, Osborn Law Office, LLC, Princeton, Minnesota; and

Jay S. Adkins, Ramsay Law Firm, Roseville, Minnesota (for respondent)

Lori Swanson, Attorney General, Cory Beth Monnens, Assistant Attorney General, St.
Paul, Minnesota (for appellant)

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

Toussaint, Judge.*




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                          UNPUBLISHED OPINION

REILLY, Judge

       Appellant, the commissioner of public safety, revoked respondent Joshua Lloyd

Gangestad’s driver’s license for driving while impaired. Gangestad sought judicial review,

and the district court issued an order rescinding the revocation of his driver’s license. The

commissioner appealed, arguing that (1) Gangestad’s Fourth Amendment rights were not

violated by the warrantless urine test, (2) application of the exclusionary rule is

inappropriate, and (3) the district court erred by analyzing Gangestad’s claim as a

constitutional due-process violation. Because the misleading and inaccurate implied-

consent advisory violated Gangestad’s right to due process, we affirm.

                                       DECISION

       The state may not “deprive any person of life, liberty, or property, without due

process of law.” U.S. amend. XIV, § 1; see also Minn. Const. art. 1, § 7. A due-process

violation is a question of law that this court reviews de novo. State v. Beecroft, 813 N.W.2d

814, 836 (Minn. 2012).

       On July 18, 2015, at approximately 12:53 a.m., a Princeton police officer stopped a

vehicle driven by Joshua Lloyd Gangestad and arrested Gangestad for driving while

impaired (DWI).1 At the Mille Lacs County Jail, the officer read Gangestad the implied-

consent advisory. The advisory informed Gangestad that “Minnesota law requires you to

take a test to determine . . . if you are under the influence of alcohol” and that “[r]efusal to


1
  It is undisputed that the officer had probable cause to suspect that Gangestad was
operating a motor vehicle while impaired.

                                               2
take a test is a crime.” The officer offered Gangestad the opportunity to contact an attorney,

which he declined. The officer then asked Gangestad to submit to a urine test, Gangestad

consented. The officer did not obtain a warrant prior to requesting the urine sample. The

urine test results revealed that Gangestad’s alcohol concentration was 0.132.

       The commissioner of public safety subsequently revoked Gangestad’s driver’s

license, as mandated by Minnesota law. See Minn. Stat. § 169A.52, subd. 4(a), (c) (2014).

Gangestad timely filed an implied-consent petition, seeking rescission of the revocation of

his driver’s license. See Minn. Stat. § 169A.53, subd. 2 (2014). The district court held an

implied-consent hearing, at which the officer testified about the stop, arrest, advisory, and

urine test. At the hearing, the court granted leave to the parties to submit additional briefing

on the issues presented.

       In his post-hearing memorandum, Gangestad argued that, because the officer

obtained a sample of his urine in violation of his Fourth Amendment rights, the district

court must rescind the revocation of his driver’s license. Alternatively, Gangestad argued

that the misleading and inaccurate implied-consent advisory violated his right to due

process by threatening criminal charges the state was unauthorized to impose.

       The commissioner also submitted a memorandum, arguing that Gangestad

consented to the warrantless urine test, a valid exception to the warrant requirement, and

therefore the warrantless urine test did not violate Gangestad’s Fourth Amendment rights.

The commissioner also argued that the implied-consent advisory was not misleading

because the advisory was accurate at the time it was read to Gangestad. Finally, the




                                               3
commissioner argued that application of the exclusionary rule is inappropriate in

Gangestad’s case.

       In March 2016, the district court issued an order granting Gangestad’s petition and

rescinding the revocation of his driver’s license. The district court found that, under the

totality of the circumstances, Gangestad consented to the urine test. Because consent is a

valid exception to the warrant requirement, the district court concluded that the implied-

consent advisory did not violate Gangestad’s Fourth Amendment rights. However, the

district court determined the police officer violated Gangestad’s due-process rights by

reading the implied-consent advisory, which misstates Minnesota law and threatens

unauthorized charges.

       In McDonnell v. Commissioner of Public Safety, a police officer arrested the

appellant on suspicion of driving while intoxicated and transported her to police

headquarters. 473 N.W.2d 848, 851 (Minn. 1991). There an officer read the appellant the

implied-consent advisory, which informed the appellant that the state may prosecute her

for refusing to submit to chemical testing—even though the commissioner had not

previously revoked appellant’s driver’s license. Id. at 851, 853. At the time the officer

read the appellant the implied-consent advisory, prior revocation of her driver’s license

was a prerequisite for the refusal charge. Id. at 850 n.1, 853 (citing Minn. Stat. § 169.121,

subd. 1a (Supp. 1989)). Because the Minnesota Supreme Court reasoned that police

“threaten[ed] criminal charges the state was not authorized to impose, thereby violating

[the appellant’s] constitutional guarantee of due process,” the supreme court rescinded the

revocation of her driver’s license. Id. at 855.


                                              4
       Following McDonnell, this court noted that the “misleading and inaccurate

information [that the implied-consent advisory conveyed] to every first-time offender” was

“[t]he focus of the supreme court’s concern.” Steinolfson v. Comm’r of Pub. Safety, 478

N.W.2d 808, 809 (Minn. App. 1991).             We therefore declined to hold that “the

commissioner may benefit from an advisory which our supreme court has determined

misinformed the driver, and threatened criminal charges that were not actually authorized.”

Id. During the pendency of Gangestad’s appeal, this court extended the supreme court’s

holding in McDonnell. See Johnson v. Comm’r of Pub. Safety, ___ N.W.2d ___, 2016 WL

6570284 (Minn. App. Nov. 7, 2016). Applying McDonnell, we held that an implied-

consent advisory that threatened a criminal charge for a driver who refused to submit to an

unconstitutional urine test violated a driver’s due-process rights. Id. at *12-13.

       In State v. Thompson, the Minnesota Supreme Court held that the state may not

criminally punish a driver for refusing to submit to a warrantless urine test under the search-

incident-to-arrest exception. 886 N.W.2d 224, 233-34 (Minn. 2016). In this case, the

advisory read to Gangestad was misleading and inaccurate. The fact that Gangestad

consented to the urine test does not change the due-process analysis. Because the implied-

consent advisory was misleading and inaccurate, Gangestad’s due-process rights were

violated.    The district court therefore did not err by rescinding the revocation of

Gangestad’s license. See McDonnell, 473 N.W.2d at 853-55; Johnson, 2016 WL 6570284,

at *10-13.




                                              5
      Because Gangestad’s due-process rights were violated, we need not address the

parties’ Fourth Amendment claims.

      Affirmed.




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