                          This opinion will be unpublished and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
                                     A15-1159

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   James Robert Stepke,
                                       Appellant.

                                   Filed April 11, 2016
                                        Affirmed
                                      Larkin, Judge

                              Ramsey County District Court
                               File No. 62SU-CR-14-1609


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

Robb L. Olson, Heather Ann Monnens, Luke McClure (certified student attorney), GDO
Law, PLLC, White Bear Lake, Minnesota (for respondent)

Charles A. Ramsay, Daniel J. Koewler, Suzula R. Bidon, Ramsay Law Firm, P.L.L.C.,
Roseville, Minnesota (for appellant)



         Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and Reilly,

Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges his conviction of second-degree test refusal, asserting several

constitutional challenges to Minnesota’s test-refusal statute. We affirm.

                                         FACTS

       On May 9, 2014, at approximately 11:30 p.m., White Bear Lake Police Officer Eric

Gadbois was dispatched to a McDonald’s restaurant to investigate a report that a driver

was asleep behind the wheel of a vehicle in the drive-thru. When Officer Gadbois made

contact with the driver, appellant James Robert Stepke, Officer Gadbois observed that his

breath smelled like alcohol, his eyes were bloodshot and watery, and his speech was

slightly slurred. Stepke performed field sobriety tests, and Officer Gadbois noticed

multiple signs of impairment. After Stepke refused to provide a preliminary breath test,

Officer Gadbois arrested Stepke for driving while impaired and transported him to the

White Bear Lake Police Department.

       Officer Gadbois read Stepke Minnesota’s implied-consent advisory, which

explained that Minnesota law required him to submit to a test, that test refusal is a crime,

and that he had the right to speak with an attorney before deciding whether to take a test.

Stepke stated that he understood his rights and asked to speak with an attorney. After

Stepke spoke with an attorney over the telephone for several minutes, Officer Gadbois

asked him if he would submit to a breath test. Stepke replied: “Officer I will take a breath

test with a warrant.” Officer Gadbois told Stepke that he did not need a warrant and was

not getting a warrant. He asked Stepke two more times if he would take a breath test. Each


                                             2
time, Stepke answered that he would take a breath test “with a warrant.” Officer Gadbois

asked Stepke if he would take a blood or urine test.       Stepke responded, “Yes, with a

warrant.” Officer Gadbois concluded that Stepke refused to submit to chemical testing.

       Respondent State of Minnesota charged Stepke with second-degree refusal to

submit to a chemical test. The complaint alleged that Stepke refused a breath test and

refused to provide a blood or urine sample. Stepke moved to dismiss the charge, arguing

that “criminalizing the right to test refusal is a violation of [his] substantive due process

rights.” The district court denied Stepke’s motion. Stepke stipulated to the state’s case

under Minnesota Rule of Criminal Procedure 26.01, subdivision 4, to obtain appellate

review of the district court’s order denying his motion to dismiss. The district court

concluded that Stepke’s “expressed agreement to submit to breath, blood, or urine testing

only if Officer Gadbois first obtained a warrant constituted a refusal to submit to testing.”

The district court found Stepke guilty, sentenced him to serve 180 days in jail, stayed

execution of the sentence for two years, and placed him on probation. Stepke appeals.

                                     DECISION

                                             I.

       Under Minnesota’s test-refusal statute, “[i]t is a crime for any person to refuse to

submit to a chemical test of the person’s blood, breath, or urine” after the person has been

lawfully arrested for driving while impaired and an officer has read the implied-consent

advisory. Minn. Stat. §§ 169A.20, subd. 2, .51, subds. 1-2 (2012). Stepke contends that

the “test refusal law is unconstitutional as applied in this case.” “The constitutionality of




                                             3
a statute is a question of law that we review de novo.”1 State v. Ness, 834 N.W.2d 177,

181 (Minn. 2013) (quotation omitted).

       Three cases inform our analysis. First, in State v. Bernard, the supreme court held

that the test-refusal statute does not violate substantive due process as applied to a request

for a breath sample. 859 N.W.2d 762, 774 (Minn. 2015), cert. granted, 136 S. Ct. 615

(2015). The supreme court reasoned that no fundamental right was at issue because the

requested breath test was constitutional given that “a warrantless breath test . . . would not

have violated the Fourth Amendment because it is a search incident to [a] valid arrest.” Id.

at 767, 773. The supreme court concluded that “criminalizing the refusal to submit to a

breath test[.] . . . is a reasonable means to a permissive object and that it passes rational

basis review.” Id. at 774.

       Second, in State v. Trahan, this court held that the test-refusal statute violated

substantive due process as applied to a request for a warrantless blood draw by

“criminalizing [the] refusal of an unconstitutional search.” 870 N.W.2d 396, 405 (Minn.

App. 2015), review granted (Minn. Nov. 25, 2015).             This court reasoned that the

warrantless blood draw would have been unconstitutional because a blood test is too

intrusive to fall under the search-incident-to-arrest exception to the Fourth Amendment’s

warrant requirement and “no exigency would have prevented police from seeking a warrant

before conducting a blood test.” Id. at 402-03.




1
  Because our review is de novo, we do not address Stepke’s arguments specifically
assigning error to the district court’s legal analysis.

                                              4
          And third, in State v. Thompson, this court similarly held that the test-refusal statute

violated substantive due process as applied to a request for a warrantless urine sample by

“criminalizing [the] refusal to submit to [the] warrantless . . . urine test.” ___ N.W.2d ___,

___ No. A15-0076, slip op. at 12 (Minn. App. Dec. 28, 2015), review granted (Minn. Feb.

24, 2016). This court reasoned that “[b]ecause a warrantless search of [appellant’s] urine

would invade one of the most private of human activities, it would not have been

constitutional under the search-incident-to-arrest exception to the warrant requirement.”

Id. at 9 (citation omitted). In both Trahan and Thompson, this court reasoned that the

refusal statute does not survive strict-scrutiny review because there are alternatives to the

collection of warrantless blood and urine samples, including asking for a warrantless breath

sample and charging refusal on that basis. Thompson, slip op. at 11; Trahan, 870 N.W.2d

at 404.

          In sum, a test-refusal charge does not violate substantive due process if the

defendant refused a warrantless request for a breath sample. But such a charge violates

substantive due process if the defendant refused a warrantless request for a blood or urine

sample.

          Stepke relies on Trahan and Thompson, but in this case, the police requested breath,

blood, and urine samples from Stepke for chemical testing. Stepke refused all three forms

of testing. In finding Stepke guilty, the district court concluded: “His expressed agreement

to submit to breath, blood or urine testing only if Officer Gadbois first obtained a warrant

constituted a refusal to submit to testing.” (Emphasis added.) Thus, Stepke’s test-refusal

conviction is based on three separate acts: refusing to provide a breath sample, refusing to


                                                 5
provide a blood sample, and refusing to provide a urine sample. Any one of those acts is

sufficient to sustain a conviction under section 169A.20, subdivision 2, which criminalizes

the refusal “to submit to a chemical test of . . . blood, breath, or urine.” Moreover, Stepke’s

criminal refusal was complete once he refused the breath test. Because Stepke refused a

breath test, application of the test-refusal statute does not violate substantive due process

in this case. See Bernard, 859 N.W.2d at 774.

       Stepke’s brief asserts that Officer Gadbois “erroneously told [him] that he did not

need a warrant to require a blood or urine test in a criminal DWI investigation.” At oral

argument, Stepke argued that the officer’s now-erroneous statement results in a due-

process violation, relying on McDonnell v. Comm’r of Pub. Safety and Steinolfson v.

Comm’r of Pub. Safety. 473 N.W.2d 848, 855 (Minn. 1991) (holding that “[b]ecause

[Minn. Stat. § 169.123, subd. 2(b)(2) (1990) and that portion of the implied-consent

advisory that is based on it] permitted police to threaten criminal charges the state was not

authorized to impose, thereby violating the constitutional guarantee of due process, [they]

are unconstitutional as applied to appellant”); 478 N.W.2d 808, 808 (Minn. App. 1991)

(holding that “[a] driver’s due process rights were violated . . . when he was incorrectly

advised that if he refused testing he may be subject to criminal penalties”).

       But Stepke’s brief does not cite or discuss those cases—or any other due-process

caselaw—as support for his assertion of error. Instead, he cites Fourth Amendment

caselaw. Appellate courts may decline to consider issues that were not fully developed in

an appellant’s brief when it is possible that appellant’s failure to argue it thoroughly may

inhibit the respondent’s ability to argue the issue. State v. Myhre, ___, N.W.2d ___, ___,


                                              6
2016 WL 626048, at *6 (Minn. Feb. 17, 2016). Because Stepke failed to adequately brief

his assertion that Officer Gadbois violated his right to due process by stating that the officer

did not need a warrant to collect blood or urine samples, we do not address this issue any

further, except to note that Stepke does not assert that the officer misspoke when he stated

that he did not need a warrant to request a breath sample. See Bernard, 859 N.W.2d at 767.

                                              II.

       Stepke also argues that the “test refusal law is unconstitutional on its face because

it criminalizes the exercise of the Fifth Amendment right to due process of law, including

the right to remain silent and the protection against compelled self-incrimination, and the

Sixth Amendment right to the presence of an attorney during custodial interrogation and

any ‘critical stage’ of the criminal proceedings.” The state argues that we should not

consider these arguments because Stepke did not adequately raise them in district court.

Generally, an appellate court will not consider matters not argued to and considered by the

district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

       In district court, Stepke filed a boilerplate motion to dismiss, asserting that his right

to substantive due process was violated, that he “was denied his right to counsel under both

the [Fifth] and [Sixth] Amendments of the United States Constitution and under the

Minnesota Constitution,” and that the police obtained evidence and statements “in violation

of [his] [Fifth] and [Fourteenth] Amendment rights against self-incrimination and right to

remain silent.” But at a hearing on the motion, Stepke’s attorney narrowed the issues to

whether there was probable cause to proceed to trial and “whether the criminal DWI test

refusal law is constitutional.” Later, Stepke filed a memorandum of law in support of his


                                               7
motion, explaining that he challenged “(1) whether criminalizing the right to test refusal is

a violation of Stepke’s substantive due process rights; and (2) whether there is probable

cause to charge Stepke [with] refusal . . . .”

       In sum, Stepke did not make any Fifth or Sixth Amendment arguments at the motion

hearing or in his memorandum. Thus, the district court’s order denying Stepke’s motion

to dismiss did not address any Fifth or Sixth Amendment claim. Moreover, although

Stepke argues that “law enforcement violated [his] Sixth Amendment right to refuse to

answer questions without the presence of counsel,” he fails to acknowledge supreme court

caselaw holding that a person under suspicion of driving while impaired has only a “limited

right to counsel within a reasonable time before submitting to testing,” which is

“considered vindicated if the person is provided with a telephone prior to testing and given

a reasonable time to contact and talk with counsel.” State v. White, 504 N.W.2d 211, 213

(Minn. 1993) (quotations omitted).

       And although Stepke argues that the test-refusal statute violates the Fifth

Amendment, he does not address supreme court caselaw holding that

              where an individual is requested to submit to blood alcohol
              content testing and potentially faces criminal penalties for
              refusing to do so, and where that individual is provided a
              reasonable opportunity to consult an attorney before deciding
              whether to submit as requested—neither the state nor the
              federal privilege against compelled self-incrimination is
              violated.

McDonnell, 473 N.W.2d at 856.

       We once again note that an appellate court may “decline[] to address issues that

were raised in a brief to [the appellate] court, but were not adequately argued or explained.”


                                                 8
Myhre, 2016 WL 626048, at *6. An appellant must preserve issues for review and

adequately brief those issues on appeal. Failure to do so will likely result in an appellate

court’s refusal to consider the issues. See id. Because Stepke’s Fifth and Sixth Amendment

claims were not argued to, or considered by, the district court, and because the claims are

not adequately argued or explained on appeal, we do not address them any further.

       Affirmed.




                                             9
