                        This opinion will be unpublished and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
                                   A14-0083
                                   A14-0896

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                David Lamar Everett,
                                     Appellant,

                                         and

                           David Lamar Everett, petitioner,
                                    Appellant,

                                         vs.

                           Commissioner of Public Safety,
                                  Respondent.

                               Filed December 8, 2014
                                      Affirmed
                                    Larkin, Judge

                           Hennepin County District Court
                     File Nos. 27-CR-12-19417; 27-CV-12-3784


Lori Swanson, Attorney General, Elizabeth Oji, Jacob C. Fischmann, Assistant Attorneys
General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, Sarah Becker, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Melvin R. Welch, Welch Law Firm, St. Paul, Minnesota (for appellant)
         Considered and decided by Peterson, Presiding Judge; Hudson, Judge; and Larkin,

Judge.

                          UNPUBLISHED OPINION

LARKIN, Judge

         In this consolidated appeal, appellant challenges his criminal conviction of refusal

to submit to a chemical test and the civil revocation of his driving privileges. Appellant

argues that the test-refusal statute is unconstitutional and that the district court’s jury

instructions were erroneous. We affirm.

                                           FACTS

         Minnesota State Trooper Andrew Martinek stopped appellant David Lamar

Everett’s vehicle after observing the vehicle being driven at night without its rear lights

illuminated. During his interaction with Everett, Trooper Martinek noticed that Everett

slurred his words, smelled of alcohol, and had bloodshot, watery eyes. After conducting

field sobriety tests and obtaining Everett’s preliminary-breath-test result of .11, Trooper

Martinek arrested Everett for driving while impaired (DWI).

         Trooper Martinek placed Everett in the back of his squad car and read him

Minnesota’s implied-consent advisory. Next, Trooper Martinek transported Everett to

the Hennepin County Jail and provided Everett a telephone book and access to a

telephone. After ten minutes, Everett had placed one phone call. Trooper Martinek

reminded Everett that he had to make a decision regarding chemical testing within a

reasonable amount of time and that he would have to make his decision on his own if he

was unable to contact an attorney. Twenty additional minutes passed, and Everett did not


                                              2
make another phone call. Trooper Martinek informed Everett that his time to contact an

attorney had passed. Trooper Martinek told Everett that he would have to make a

decision whether to submit to chemical testing on his own and that failure to make a

decision would constitute test refusal. Trooper Martinek asked Everett if he would

submit to testing eight times and each time, Everett evaded the question or refused to

answer.

       Respondent State of Minnesota charged Everett with third-degree refusal to submit

to a chemical test and fourth-degree DWI. Everett filed a pretrial motion to “suppress

evidence and dismiss” arguing, in part, that Minnesota’s implied-consent law is

unconstitutional and that Trooper Martinek did not provide him a reasonable period of

time in which to contact an attorney.          The district court denied Everett’s motion,

concluding that the “Minnesota Implied Consent Law and refusal law are not

unconstitutional” and that Everett “was afforded a reasonable period of time to contact an

attorney.” The case was tried to a jury, and Everett was found guilty of test refusal. The

district court stayed execution of sentence.

       In a related civil case based on the same underlying events, respondent

Commissioner of Public Safety revoked Everett’s driver’s license under the implied-

consent law, based on his refusal to submit to chemical testing. Everett filed an implied-

consent petition, challenging the revocation of his driver’s license.      In his petition,

Everett asserted, among other things, that Minnesota’s implied-consent procedure

              violates state and federal constitutional provisions for due
              process of law, equal protection of the laws, the right to
              redress grievances, separation of powers, double jeopardy, the


                                               3
              state constitutional right to consult with an attorney, the
              court’s inherent power to supervise the court process, and the
              rules of professional conduct for attorneys and for judges.

The district court issued a written order, stating only “[t]hat the revocation of the driving

privileges of the petitioner under authority of Minnesota Statute 169A.53, be and hereby

is SUSTAINED.”

       Everett appealed from his criminal conviction, A14-0083, and from the district

court’s order sustaining the revocation of his driving privileges, A14-0896. This court

consolidated the appeals.

                                     DECISION

                                             I.

       We first address the issues raised in Everett’s appeal from his criminal conviction.

Everett’s statement of the case indicates that he “appeals the district court’s rulings that

the refusal statute is constitutional, that he was provided sufficient time to contact an

attorney as a matter of law, and challenges the trial court’s ruling on [his] proposed jury

instruction for driving while intoxicated—refusal.” However, Everett’s brief does not

contain any argument regarding the district court’s ruling that he was provided sufficient

time to contact an attorney. That issue is therefore waived, and we do not address it. See

State v. Jackson, 655 N.W.2d 828, 837 (Minn. App. 2003) (“An issue that is not

addressed in the ‘argument portion’ of a brief is deemed waived on appeal.”), review

denied (Minn. Apr. 15, 2003). Our analysis of Everett’s two remaining issues follows.




                                             4
       Constitutional Challenge to the Test-Refusal Statute

       The constitutionality of a statute presents a question of law, which appellate courts

review de novo. State v. Cox, 798 N.W.2d 517, 519 (Minn. 2011). “Minnesota statutes

are presumed constitutional and . . . [an appellate court’s] power to declare a statute

unconstitutional must be exercised with extreme caution and only when absolutely

necessary.” Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).

“The party challenging a statute has the burden of demonstrating, beyond a reasonable

doubt, that a constitutional violation has occurred.” Id.

       Everett contends that

               [t]he Minnesota Implied Consent Law as a whole violates due
               process of law because it makes the constitutional conduct of
               refusing to consent to a warrantless search, and otherwise
               requiring law enforcement [to] obtain a warrant or operate
               under an exception to the warrant requirement, as unlawful;
               and the implied consent laws unconstitutionally conditions
               the exercise of the privilege of driving on the waiver of an
               individual’s right to be free of unreasonable search and
               seizure of BAC evidence.

       Everett argues that “a person [has a] constitutional right to withhold consent

voluntarily under the Fourth Amendment,” and because “[t]he Minnesota implied consent

laws as it currently stands renders any refusal unlawful when a person is not required to

give consent, . . . it . . . violates a person’s due process of law.”

       The United States Constitution and the Minnesota Constitution provide that the

government cannot deprive a person of “life, liberty, or property, without due process of

law.” U.S. Const. XIV, § 1; Minn. Const. art. I, § 7. The due-process protections of the

United States Constitution and the Minnesota Constitution are coextensive. Sartori v.


                                                5
Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn. 1988). “[S]ubstantive due process

protects individuals from certain arbitrary, wrongful government actions regardless of the

fairness of the procedures used to implement them.” In re Linehan, 594 N.W.2d 867, 872

(Minn. 1999) (quotations omitted). Appellate courts will strictly scrutinize a challenged

law that implicates a fundamental right. Essling v. Markman, 335 N.W.2d 237, 239

(Minn. 1983). And we will uphold such a law under the strict-scrutiny test only if it

serves a compelling state interest and is narrowly tailored to serve that interest. See id.

But when a challenged statute does not implicate a fundamental right, appellate courts

will hold that it violates substantive due process only if, applying a rational-basis test, the

challenger has established that the statute is not reasonably related to a legitimate

governmental interest. In re Individual 35W Bridge Litigation, 806 N.W.2d 820, 830

(Minn. 2011).

       Everett does not identify the specific statute that he challenges. Because he was

convicted of refusal to submit to chemical testing and he refers to the “DWI-Refusal

Statute” in his brief, we presume he challenges Minn. Stat. § 169A.20, subd. 2 (2012),

which states: “Refusal to submit to chemical test crime. It is a crime for any person to

refuse to submit to a chemical test of the person’s blood, breath, or urine under section

169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation

of license).”

       Substantively, “the Due Process Clause specially protects those fundamental rights

and liberties which are, objectively, deeply rooted in this Nation’s history and tradition

. . . and implicit in the concept of ordered liberty, such that neither liberty nor justice


                                              6
would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21,

117 S. Ct. 2258, 2268 (1997) (quotations omitted). In substantive-due-process cases, the

Supreme Court has required “a ‘careful description’ of the asserted fundamental liberty

interest.” Id. at 721, 117 S. Ct. at 2268.

        Everett describes the purported fundamental right at stake in this case as a

“fundamental right to be free of unreasonable searches and seizures.”            But section

169A.20, subdivision 2 does not authorize a search or seizure. This court recently noted

that, “[i]n most situations, the plain language of the [implied-consent statutes] authorizes

a search of a driver’s blood, breath, or urine only if the driver gives express, valid consent

to such a search.” Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717, 725 (Minn. App.

2014) (footnote omitted). The implied-consent statutes authorize a search without the

driver’s express consent only when (1) there is probable cause to believe the driver

committed criminal vehicular homicide or criminal vehicle operation or (2) the driver is

unconscious or “otherwise in a condition rendering the [driver] incapable of refusal.”

Minn. Stat. §§ 169A.52, subd. 1, .51, subd. 6 (2012). Neither circumstance is applicable

here.

        Everett also describes the fundamental right at stake as “the right to withhold

consent from law enforcement without threat of prosecution.” But Everett does not

explain how that purported fundamental right is deeply rooted in our nation’s history and

tradition. Instead, he appears to rely on Missouri v. McNeely, 133 S. Ct. 1552 (2013),

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

as support for the proposition that “the right to withhold consent from law enforcement


                                              7
without threat of prosecution” is a fundamental right. That reliance is misplaced. Neither

McNeely nor Brooks suggest that implied-consent laws infringe on a fundamental right.

See McNeely, 133 S. Ct. at 1566 (endorsing “implied consent laws that require motorists,

as a condition of operating a motor vehicle within the State, to consent to BAC testing if

they are arrested or otherwise detained on suspicion of a drunk-driving offense” as one of

the “legal tools” states have “to enforce their drunk-driving laws and to secure BAC

evidence without undertaking warrantless nonconsensual blood draws”); Brooks, 838

N.W.2d at 573 (stating, in dictum, “that Brooks has not demonstrated that Minnesota’s

implied consent statute is unconstitutional” without addressing whether a fundamental

right is implicated).

       In sum, Everett has not established the existence of a fundamental right warranting

application of the strict-scrutiny standard. Thus, any substantive due-process challenge

must proceed under the rational-basis standard.       See In re Individual 35W Bridge

Litigation, 806 N.W.2d at 830. But Everett does not offer any argument under that

standard. Everett therefore has not shown that Minnesota’s test-refusal statute violates

substantive due process.

       Everett’s brief also intermittently refers to “the doctrine of unconstitutional

conditions.”    But he does not present a clear argument regarding the doctrine’s

application, if any, to this case. In Stevens, we noted that “there is no authority for the

proposition that the unconstitutional-conditions doctrine applies to a constitutional

challenge based on the Fourth Amendment” and that neither the Minnesota Supreme

Court nor the United States Supreme Court has ever held that it does. 850 N.W.2d at


                                            8
724-25. Because Everett does not offer argument or authority to support his assertion

that the test-refusal statute violates the unconstitutional-conditions doctrine, the issue is

waived.    See State v. Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006) (“An

assignment of error in a brief based on ‘mere assertion’ and not supported by argument or

authority is waived unless prejudicial error is obvious on mere inspection.”), aff’d, 728

N.W.2d 243 (Minn. 2007).

       Lastly, Everett asserts that “Minnesota’s implied consent laws exceeds its

authority under the Tenth Amendment by criminalizes lawful conduct when punishing a

defendant’s withholding of consent.” The Tenth Amendment states: “The powers not

delegated to the United States by the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.” U.S. Const. amend. X. Everett does

not explain how Minnesota’s test-refusal law violates the Tenth Amendment of the United

States Constitution, and the purported violation is not obvious to this court. This issue is

therefore waived. See Wembley, 712 N.W.2d at 795.

       In conclusion, Everett has not met his burden to show, beyond a reasonable doubt,

that his conviction of test refusal is based on an unconstitutional statute. We therefore

affirm his criminal conviction.

       Challenge to the District Court’s Jury Instructions

       We next consider Everett’s challenge to the district court’s jury instructions. “Jury

instructions, reviewed in their entirety, must fairly and adequately explain the law of the

case. A jury instruction is erroneous if it materially misstates the applicable law.” State

v. Koppi, 798 N.W.2d 358, 362 (Minn. 2011) (citation omitted). “[Appellate courts]


                                             9
review a district court’s decision to give a requested jury instruction for an abuse of

discretion.” Id. at 361.

       Everett argues that “the district court erred in its refusal jury instruction by

directing a finding of fact on a mixed question of law and fact and its error had a

significant effect on the jury’s verdict.” The state responds that the record on appeal is

inadequate to address Everett’s argument. The record contains a partial transcript that

includes the state’s rebuttal argument at trial and the district court’s instructions regarding

jury deliberation. There is no transcript of the remainder of the trial, specifically, the

witness testimony, the closing arguments, or the district court’s jury instructions

regarding the elements of the charged offenses.

       The partial transcript indicates that the district court asked both parties if they

“wish to call the court’s attention to any errors, omissions or corrections in the

instructions.” Everett’s attorney responded: “Nothing from the defense, Your Honor.”

But documents in the record indicate that Everett proposed an alternative instruction. On

this record, we do not know whether the district court expressly ruled on Everett’s

proposed instruction. Thus, we are not sure whether Everett preserved his objection to

the district court’s jury instructions for appeal. See State v. Cross, 577 N.W.2d 721, 726

(Minn. 1998) (“A defendant’s failure to propose specific jury instructions or to object to

instructions before they are given to the jury generally constitutes a waiver of the right to

appeal.”); State v. Tayari-Garrett, 841 N.W.2d 644, 655-56 (Minn. App. 2014) (stating

that an appellate court generally will not consider matters that the district court did not

consider), review denied (Minn. Mar. 26, 2014).


                                              10
       Because the record does not contain a transcript of all of the instructions that were

read to the jury, we cannot determine if there was an error. Moreover, if there was an

error, Everett would have to show prejudice to obtain a new trial. If Everett objected to

the jury instruction, a new trial would be required “only if it cannot be said beyond a

reasonable doubt that the error had no significant impact on the verdict.” Koppi, 798

N.W.2d at 364 (quotations omitted). If Everett did not object, we would review the jury

instructions for plain error and ask whether the error affected substantial rights in that it

“was prejudicial and affected the outcome of the case.” State v. Griller, 583 N.W.2d 736,

740-41 (Minn. 1998). But because we do not have a complete trial transcript we cannot

determine whether the purported error—if any—affected the outcome of the case. See

Koppi, 798 N.W.2d at 365 (stating that appellate courts “must evaluate the evidence

presented at trial to determine whether the instructional error was harmless beyond a

reasonable doubt”); Griller, 583 N.W.2d at 742 (analyzing trial testimony to determine

whether “any erroneous instruction significantly affected the verdict”).

       It is the appellant’s duty to order a transcript “of those parts of the proceedings not

already part of the record which are deemed necessary for inclusion in the record.”

Minn. R. Civ. App. P. 110.02, subd. 1(a). An appellate court cannot presume error in the

absence of an adequate record. See Custom Farm Servs., Inc. v. Collins, 306 Minn. 571,

572, 238 N.W.2d 608, 609 (1976) (declining to consider an allegation of error in the

absence of a transcript). When an appellant fails to provide this court with a transcript

necessary for review of the issues raised on appeal, “the decision below must be




                                             11
affirmed.” State v. Heithecker, 395 N.W.2d 382, 383 (Minn. App. 1986). Such is the

case here.

                                              II.

       We next address Everett’s appeal of the district court’s order sustaining the

revocation of his driving privileges in the civil implied-consent case. He contends that

“[t]he Minnesota Implied Consent Law violates due process of law by making

constitutional conduct, of declining to consent to testing, unlawful.” He argues that

“Minnesota’s implied consent laws exceeds its authority under the Tenth Amendment by

criminalizes lawful conduct when punishing a defendant’s withholding of consent,” and

that “the DWI-Refusal statute violates [his] fundamental right to be free of unreasonable

searches and seizures.” His briefing on this issue is identical to the briefing in his

criminal appeal. Thus, it focuses on the constitutionality of the criminal test-refusal

statute.

       Everett’s argument is entirely unpersuasive because his civil implied-consent case

does not involve a criminal test-refusal charge. The dispositive order in the implied-

consent case is the civil order sustaining the commissioner’s revocation of Everett’s

driving privileges. As to the constitutionality of that order, Everett argues:

                      The Minnesota’s legislature may make it a condition
              of licensure that drivers waive their constitutional right to
              privacy with regard to their alcohol concentration while
              driving, but the permissible remedy for refusal or
              withdrawing that consent is, and always has been, the loss of
              that license—not jail. . . .

                     . . . To decree that it is a crime to refuse testing is quite
              a different thing than to provide that one’s license to drive


                                              12
              will be revoked. The latter is a civil, administrative
              compulsion, well within the authority of the legislature,
              which has made licensing conditional on the “implied”
              “consent” to this type of search. It is reasonable and
              constitutionally acceptable for a majority of society to say,
              through its representatives, that as a condition of driving
              lawfully, a citizen must relinquish his or her privacy to this
              extent. It is altogether another, absolutely unconstitutional
              thing to say that a breach of the “implied contract” will have
              criminal consequences.

(Emphasis added.)

       Everett’s brief concludes with a request that this court “reverse the district court’s

decision.” But the only decision before us for review in the civil implied-consent case is

the district court’s decision sustaining the revocation of Everett’s driving privileges under

the implied-consent law, and Everett agrees that the civil revocation consequence is

constitutionally reasonable. His concession is consistent with this court’s recent holding

in Stevens. See Stevens, 850 N.W.2d at 727 (concluding that “the implied-consent statute

. . . satisfies the general reasonableness requirement of the Fourth Amendment”).

       In conclusion, Everett has not provided a basis for this court to reverse the district

court’s order sustaining the revocation of his driving privileges in his civil implied-

consent case. We therefore affirm the order.

       Affirmed.




                                             13
