                           This opinion will be unpublished and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
                                       A16-0976

                                     State of Minnesota,
                                          Appellant,

                                              vs.

                                    Joshua David Gehloff,
                                         Respondent.

                                  Filed November 28, 2016
                                         Affirmed
                                      Halbrooks, Judge


                                Winona County District Court
                                  File No. 85-CR-15-2902

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Karin L. Sonneman, Winona County Attorney, George R. Kennedy, Assistant County
Attorney, Winona, Minnesota (for appellant)

Mark D. Nyvold, Fridley, Minnesota (for respondent)

         Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Johnson,

Judge.

                          UNPUBLISHED OPINION

HALBROOKS, Judge

         In this prosecution appeal, appellant state challenges the district court’s order to

suppress respondent’s urine test results and dismiss one count of driving while impaired
(DWI), arguing that the district court erred by suppressing the test results on the basis of a

due-process violation. We affirm.

                                          FACTS

       On November 17, 2015, a Winona County sheriff’s deputy and St. Charles police

officer stopped respondent Joshua David Gehloff in response to a report of a possible

domestic incident. As the deputy approached Gehloff’s vehicle, he observed that the

vehicle was warm to touch, suggesting that Gehloff had recently driven, and noticed that

Gehloff smelled of alcohol. Gehloff had watery, bloodshot eyes and slurred speech.

Gehloff informed the officers that he had not been drinking. The deputy conducted field

sobriety tests in which Gehloff demonstrated signs of impairment. Gehloff submitted a

preliminary breath test that indicated an alcohol concentration of 0.20. The deputy then

arrested Gehloff for DWI.

       The deputy transported Gehloff to the police department and read him the implied-

consent advisory. The advisory stated that “[r]efusal to take a test is a crime.” Gehloff

said that he understood the advisory and declined to speak with an attorney. The deputy

then requested that Gehloff submit to a urine test. After expressing confusion and initially

refusing to undergo the test, Gehloff agreed to provide a urine sample. Gehloff’s urine

sample registered an alcohol concentration of 0.16.

       The state charged Gehloff with (1) third-degree gross misdemeanor DWI, operating

a vehicle under the influence of alcohol and (2) third-degree gross misdemeanor DWI with

an alcohol concentration of 0.08 within two hours of driving. Minn. Stat. § 169A.20, subd.

1(1), (5) (2014). Gehloff moved the district court to suppress the urine test results, arguing


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that he did not consent to the test and that the reading of the implied-consent advisory

violated his due-process rights. The district court determined that Gehloff consented to the

urine test but suppressed the test results because the advisory, as it was read to Gehloff,

was an inaccurate statement of Minnesota’s test-refusal statute and violated his due-process

rights. The district court dismissed the second count of DWI for lack of probable cause.

This appeal follows.

                                       DECISION

       The state argues that the district court erred by suppressing Gehloff’s urine test

results on the basis that the implied-consent advisory violated his due-process rights.

“When reviewing a district court’s pretrial order on a motion to suppress evidence, the

district court’s factual findings are reviewed under a clearly erroneous standard.” State v.

Eichers, 853 N.W.2d 114, 118 (Minn. 2014), cert. denied, 135 S. Ct. 1557 (2015). But we

review de novo the district court’s legal determinations, including whether an implied-

consent advisory violates a driver’s due-process rights. Id.; Magnuson v. Comm’r of Pub.

Safety, 703 N.W.2d 557, 561 (Minn. App. 2005).

       We must first determine if an error in the district court’s order would have a critical

impact on the state’s ability to prosecute this case. See State v. Webber, 262 N.W.2d 157,

159 (Minn. 1977) (holding that a state may only appeal, and this court will only reverse, a

district court’s pretrial order if the state demonstrates that the district court clearly erred in

its judgment and the error will have critical impact on the outcome). It is clear that

suppression of Gehloff’s urine test results and dismissal of his second DWI charge will

have a critical impact by significantly reducing the state’s likelihood of a successful


                                                3
prosecution. See State v. McLeod, 705 N.W.2d 776, 784 (Minn. 2005) (describing the

circumstances in which critical impact may occur). Because critical impact is not at issue,

we move next to consider whether the district court erroneously applied its due-process

analysis to suppress the test results.

       Minnesota’s test-refusal statute makes it a crime for a person to refuse to submit to

a chemical test of blood, breath, or urine administered to detect the person’s alcohol content

under certain conditions. Minn. Stat. § 169A.20, subd. 2 (2014). These conditions include

when a police officer has probable cause to arrest the person for DWI and the officer reads

the implied-consent advisory to the person. Minn. Stat. §§ 169A.20, subd. 2, .51, subds.

1-2 (2014). In the advisory, the officer must inform the person that “refusal to take a test

is a crime.” Minn. Stat. § 169A.51, subd. 2(a)(2).

       The Due Process Clause prohibits the state from depriving a person of life, liberty,

or property, without due process of law, and also protects the person against government

infringement of certain fundamental rights. U.S. Const. amend. XIV, § 1; Minn. Const.

art. I, § 7; Chavez v. Martinez, 538 U.S. 760, 775, 123 S. Ct. 1994, 2005 (2003). One such

fundamental right is to be free from unreasonable searches and seizures. U.S. Const.

amend. IV; Minn. Const. art. 1, § 10; California v. Carney, 471 U.S. 386, 390, 105 S. Ct.

2066, 2069 (1985). On December 28, 2015, this court decided that a warrantless urine test

cannot be justified under the search-incident-to-arrest exception to the Fourth

Amendment’s warrant requirement. State v. Thompson, 873 N.W.2d 873, 879 (Minn. App.

2015), aff’d, ___ N.W.2d ___ (Minn. Oct. 12, 2016). Because no exception to the warrant

requirement could justify the urine test, this court concluded that the test-refusal statute


                                              4
violated the driver’s due-process rights by criminalizing the driver’s refusal to submit to a

warrantless and unreasonable test. Id. at 879-80.

       Applying this court’s decision in Thompson, the district court determined that

Gehloff’s due-process rights were violated because there was no exception, other than

Gehloff’s consent, that would justify the warrantless urine test. The district court reasoned

that regardless of whether Gehloff consented to the test, because the implied-consent

advisory inaccurately stated that refusal to take a urine test is a crime, the deputy had

threatened Gehloff with a criminal charge that the state was not constitutionally authorized

to impose. See McDonnell v. Comm’r v. Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991).

While this case’s appeal was pending, the Minnesota Supreme Court affirmed this court’s

decision in Thompson. State v. Thompson, ___ N.W.2d ___, ___, 2016 WL 5930162, at

*8 (Minn. Oct. 12, 2016). After concluding that a warrantless urine test would have

violated the Fourth Amendment, the supreme court held that the driver could not be

prosecuted under the test-refusal statute for refusing to submit to an unconstitutional urine

test; therefore, the test-refusal statute was unconstitutional as applied. Id.

       The district court relied on McDonnell in concluding that Gehloff’s due-process

rights were violated. In McDonnell, a driver was arrested for DWI and was read an

implied-consent advisory, which stated that she may be prosecuted for refusing to submit

to a breath test. 473 N.W.2d at 851. But under the applicable law at the time, the driver

could not have been prosecuted for test refusal because her license had not been previously

revoked. Id. The Minnesota Supreme Court rescinded her license revocation because the

advisory was inaccurate and unconstitutional as it applied to her. Id. at 854-55. The


                                               5
supreme court reasoned that “due process does not permit those who are perceived to speak

for the state to mislead individuals as to either their legal obligations or the penalties they

might face should they fail to satisfy those obligations.” Id. at 854.

       This court recently addressed whether the McDonnell analysis applies in a license-

revocation proceeding in which the driver refused to submit to a warrantless urine test.

Johnson v. Comm’r of Pub. Safety, ___ N.W.2d ___, 2016 WL 6570284 (Minn. App. Nov.

7, 2016). We concluded that because the search of the driver’s urine would have violated

the Fourth Amendment, the test-refusal charge was unconstitutional under Thompson. Id.

at *10. We also held that the implied-consent advisory violated the driver’s due-process

rights because the advisory threatened a criminal test-refusal charge that would have been

unconstitutional. Id. at *12.

       The state asserts that this case is distinguishable from McDonnell, arguing that

because this court did not decide Thompson until December 28, 2015, the advisory as it

was read to Gehloff on November 17, 2015 contained a correct and accurate statement of

the applicable test-refusal statute. But as articulated in Johnson, the state’s argument

regarding the temporal relationship between the challenged advisory and this court’s

Thompson decision is insufficient to persuade us that Gehloff is not entitled to due-process

under McDonnell. See id. at *11. And despite the state’s assertions to the contrary, the

district court properly applied a due-process analysis, rather than a Fourth Amendment

analysis, because Gehloff challenged the accuracy of the implied-consent advisory. See

id. at *6. Because the advisory threatened Gehloff with criminal penalties that the state

was not authorized to impose, Gehloff’s due-process rights were violated. We therefore


                                              6
conclude that the district court did not err in suppressing Gehloff’s urine test results. See

State v. Nelson, 479 N.W.2d 436, 436 (Minn. App. 1992) (applying the McDonnell due-

process rationale to affirm a district court’s suppression-of-alcohol test results).

       Affirmed.




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