                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-0931

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                   Todd Eugene Trahan,
                                        Appellant.

                                  Filed October 13, 2015
                                  Reversed and remanded
                                     Halbrooks, Judge
                                  Dissenting, Ross, Judge


                              Ramsey County District Court
                                File No. 62-CR-12-8574

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant)

         Considered and decided by Chutich, Presiding Judge; Halbrooks, Judge; and Ross,

Judge.

                                     SYLLABUS

         1.    When a warrantless search of a driver’s blood would not have been

constitutional under an exception to the warrant requirement, charging the driver with

violating Minn. Stat. § 169A.20, subd. 2 (2012), for refusing to submit to a blood test

implicates a fundamental right.
       2.     Because Minn. Stat. § 169A.20, subd. 2, as applied to refusal of a

warrantless blood test is not narrowly tailored to serve a compelling government interest,

it violates a driver’s right to due process under the United States and Minnesota

Constitutions.

                                      OPINION

HALBROOKS, Judge

       On remand from the Minnesota Supreme Court in this combined direct and

postconviction appeal, appellant challenges his conviction of first-degree test refusal,

arguing that criminalizing refusal to submit to a warrantless blood test is unconstitutional

under the rule announced in Missouri v. McNeely, 133 S. Ct. 1552 (2013). Because we

conclude that conducting a warrantless blood test would have been unconstitutional,

charging appellant with a crime based on his refusal to submit to the test implicates his

fundamental right to be free from unconstitutional searches. And because the test-refusal

statute as applied is not narrowly tailored to serve a compelling government interest, it

fails strict scrutiny and violates appellant’s right to due process under the United States

and Minnesota Constitutions. Accordingly, we reverse and remand for withdrawal of

appellant’s guilty plea.1

                                         FACTS

       Just after midnight on October 24, 2012, a Ramsey County sheriff’s deputy

stopped appellant Todd Trahan based on his erratic driving and speed. When the deputy

1
   We note that neither Minn. Stat. § 609.035 (2012) nor the double-jeopardy clause bars
retrial under an amended complaint. State v. Schmidt, 612 N.W.2d 871, 876 (Minn.
2000).

                                             2
approached the car, Trahan was screaming that he would be “looking at doing 67

months.” The deputy observed that Trahan was agitated, smelled strongly of alcohol, had

red and watery eyes, and had difficulty standing up. A check of Trahan’s driving record

revealed that his license was cancelled as inimical to public safety based on multiple

previous driving-while-impaired (DWI) convictions. Because Trahan was “so agitated

and unpredictable,” the deputy did not administer field sobriety tests.

       At the jail, Trahan was read the implied-consent advisory, and he asked for his cell

phone to contact an attorney. At 1:53 a.m., after making several phone calls, Trahan

stated that he was finished with the phone. The deputy offered Trahan a blood test or a

urine test, and Trahan chose urine. The parties’ accounts differ on Trahan’s compliance

with providing a urine sample. Trahan contends that he provided a valid urine sample,

but the deputy deemed his conduct a refusal.2 The deputy then asked Trahan to take a

blood test, which he refused.

       The state charged Trahan with first-degree refusal to submit to a chemical test in

violation of Minn. Stat. § 169A.20, subd. 2. The prosecutor agreed to a sentence at the

low end of the presumptive range, and Trahan pleaded guilty. Trahan testified in his plea

colloquy that he had provided an adequate urine sample, but acknowledged that the

deputy stated that the sample did not “look right” and that Trahan “must have tampered

with it.” Trahan further testified, “I did refuse the blood test, so I’m guilty of that.” The




2
  According to the complaint, after several attempts, Trahan failed to provide a sufficient
urine sample, and instead put water from the sink into the sample bottle.

                                             3
district court sentenced Trahan to 60 months in prison, a downward departure from the

presumptive sentencing range of 65-84 months.

         Trahan then filed a direct appeal but requested a stay pending postconviction

proceedings, which we granted. In his postconviction petition, Trahan argued that (1) his

plea was invalid because the factual basis did not support a refusal to test and (2) the test-

refusal statute is unconstitutional because it violates due process and the doctrine of

unconstitutional conditions. The district court denied Trahan’s petition, determining that

(1) Trahan’s acknowledged refusal to submit to an alternative test requested by the police

supported his guilty plea and (2) Trahan did not meet his burden of establishing the

unconstitutionality of the test-refusal statute beyond a reasonable doubt. After reinstating

Trahan’s appeal, we affirmed. State v. Trahan, No. A13-0931 (Minn. App. Sept. 29,

2014).

         On December 16, 2014, the supreme court granted Trahan’s petition for further

review with respect to the constitutionality of the test-refusal statute and stayed review

pending its decision in State v. Bernard, 859 N.W.2d 762 (Minn. 2015). On April 28,

2015, the supreme court reversed our holding on the constitutionality of the test-refusal

statute and remanded to this court for reconsideration of that issue in light of Bernard.

The parties then submitted supplemental briefing.         On remand, Trahan focuses his

constitutional argument on substantive due process.

                                           ISSUE

      Does the test-refusal statute violate appellant’s right to due process by
criminalizing his refusal to submit to a warrantless test of his blood?



                                              4
                                       ANALYSIS

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

test of blood, breath, or urine administered to detect the presence of alcohol under certain

conditions. Minn. Stat. § 169A.20, subd. 2. These conditions include when the person

has been lawfully placed under arrest for driving while impaired and an officer has read

the person the implied-consent advisory. Minn. Stat. §§ 169A.20, subd. 2, .51, subds. 1-2

(2012). Trahan argues that the test-refusal statute as applied to him violates his right to

substantive due process because it criminalizes his refusal of an unconstitutional search

of his blood.

       A.       The Fourth Amendment

       Because Trahan’s due-process argument is premised on a Fourth Amendment

violation, we first consider whether a warrantless blood test would have been reasonable

under the Fourth Amendment. See Bernard, 859 N.W.2d at 766. A blood draw is a

search. See Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402,

1412 (1989); State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134 S. Ct.

1799 (2014). The Fourth Amendment to the United States Constitution provides: “The

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation . . . .” U.S. Const. amend. IV.

       “The ultimate measure of a permissible government search under the Fourth

Amendment is reasonableness.” Bernard, 859 N.W.2d at 766 (quotation omitted). “A

warrantless search is generally unreasonable, unless it falls into one of the recognized


                                             5
exceptions to the warrant requirement.” Id. It is the state’s burden to establish an

exception to the warrant requirement. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).

When evaluating whether a warrant exception applies to a given search, courts assess “on

the one hand, the degree to which it intrudes upon an individual’s privacy and, on the

other, the degree to which it is needed for the promotion of legitimate governmental

interests.” Riley v. California, 134 S. Ct. 2473, 2484 (2014) (quotation omitted). Two

exceptions to the warrant requirement—search incident to a lawful arrest and exigent

circumstances—are relevant to our analysis.

              1.     Search Incident to Arrest

       “A search incident to a lawful arrest is a well-recognized exception to the warrant

requirement under the Fourth Amendment.” Bernard, 859 N.W.2d at 766. The search-

incident-to-arrest exception historically derives from concerns over officer safety and

evidence preservation. See Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716

(2009). This exception permits police “to conduct a ‘full search of the person’ who has

been lawfully arrested.”      Bernard, 859 N.W.2d at 767 (quoting United States v.

Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973)).

       Our supreme court recently applied the search-incident-to-arrest exception to

conclude that a warrantless breath test would be constitutional. Id. at 772. The supreme

court carefully limited its conclusion to breath tests:

              [T]he question of a blood or urine test incident to arrest is not
              before us, and we express no opinion as to whether a blood or
              urine test of a suspected drunk driver could be justified as a
              search incident to arrest. The differences between a blood



                                              6
              test and a breath test are material, and not the least of those
              differences is the less-invasive nature of breath testing.

Id. at 768 n.6.

       Trahan argues, and the state does not dispute, that a warrantless blood test would

not be justified under the search-incident-to-arrest exception. We agree. A blood draw is

undeniably intrusive: a needle is inserted into the skin to extract blood. In Schmerber v.

California, the United States Supreme Court explicitly recognized that the search-

incident-to-arrest exception has “little applicability with respect to searches involving

intrusions beyond the body’s surface.” 384 U.S. 757, 769, 86 S. Ct. 1826, 1835 (1966).

Again in McNeely, although not explicitly addressing the search-incident-to-arrest

exception, the Supreme Court reiterated the significance of review by a “neutral and

detached magistrate” before “invad[ing] another’s body in search of evidence of guilt.”

133 S. Ct. at 1558 (quotation omitted).

       As Bernard, Schmerber, and McNeely highlight, blood draws are serious

intrusions into the human body that implicate a person’s “most personal and deep-rooted

expectations of privacy.”     Id. (quotation omitted).      Unlike breath, blood does not

naturally and regularly exit the body. And under Minnesota’s DWI law, a blood draw

can only be performed by a qualified medical professional. Minn. Stat. § 169A.51, subd.

7(a) (2012). This physical penetration makes a blood test far more intrusive than a breath

test or other searches of the person that Minnesota courts have upheld as searches

incident to a valid arrest. See Bernard, 859 N.W.2d at 767 (listing searches of the person

justified under the search-incident-to-arrest exception).



                                             7
       Because a blood test here would have been highly intrusive, we conclude that a

warrantless search of Trahan’s blood would not have been constitutional under the

search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement.3

              2.     Exigent Circumstances

       We next consider whether police could have conducted a warrantless search of

Trahan’s blood under the exigent-circumstances exception to the warrant requirement.

The relevant inquiry in applying the exigent-circumstances exception “is whether, under

all of the facts reasonably available to the officer at the time of the search, it was

objectively reasonable for the officer to conclude that he or she was faced with an

emergency, in which the delay necessary to obtain a warrant would significantly

undermine the efficacy of the search.” State v. Stavish, ___ N.W.2d ___, ___, 2015 WL

4930090, at *6 (Minn. Aug. 19, 2015).

       In Schmerber, the Supreme Court applied the exigency exception to a warrantless,

nonconsensual blood draw from an injured driver who was suspected of driving under the

influence. 384 U.S. at 770-71, 86 S. Ct. at 1835-36. The Supreme Court held that the

warrantless blood draw was justified because exigent circumstances existed, particularly

because “time had to be taken to bring the accused to a hospital and to investigate the

scene of the accident” and police had “no time to seek out a magistrate and secure a

warrant.” Id. at 770-71, 86 S. Ct. at 1836.

3
  The state urges us to conclude that Trahan refused the urine test by conduct and that a
urine test would have been constitutional as a search incident to arrest. We decline to
consider on this record whether a nonconsensual urine test would have been
constitutional because the factual basis for Trahan’s guilty plea does not establish the
elements of first-degree test refusal in that regard.

                                              8
       The Supreme Court revisited the exigency exception in the context of

nonconsensual blood draws in McNeely, holding that “in drunk-driving investigations, 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.

Instead, the Supreme Court concluded that the natural dissipation of alcohol was a factor

that could support a finding of exigent circumstances and that exigency “must be

determined case by case based on the totality of the circumstances.” Id. at 1556, 1563.

The Supreme Court was not asked to decide in McNeely whether the totality of the

circumstances of that case would justify a warrantless, nonconsensual blood draw under

the exigent-circumstances exception. Id. at 1567.

       Our supreme court recently addressed the exigency exception in the context of a

warrantless blood test of a suspected drunk driver and concluded that the search was

reasonable under the totality of the circumstances. Stavish, 2015 WL 4930090, at *6. In

Stavish, police had reason to believe that the driver of a vehicle involved in a rollover

crash had consumed alcohol and that alcohol had contributed to the crash. Id. It was

therefore important to draw his blood within the two-hour statutory time frame to ensure

the reliability and admissibility of the evidence. Id. (citing Minn. Stat. § 169A.20, subd.

1(5) (2012) (providing for measurement of alcohol concentration within two hours of

driving)).   The driver had sustained serious injuries requiring emergency medical

treatment and would potentially be airlifted to a different medical center. Id. Because

the driver’s “medical condition and need for treatment rendered his future availability for

a blood draw uncertain,” our supreme court concluded that “it was objectively reasonable


                                            9
for [the officer] to conclude that he was faced with an emergency in which the delay

necessary to obtain a warrant threatened the destruction of evidence.” Id. Exigent

circumstances therefore justified the warrantless blood draw. Id.

      Here, Trahan’s future availability for a blood draw was not in question. Rather,

the “exigency” was the expiration of the statutory time frame while Trahan was arrested,

taken to the jail, read the implied-consent advisory, made phone calls, and produced a

questionable urine sample. The state argues that under the particular facts of this case,

exigent circumstances would have justified a warrantless blood test. We disagree.

      Trahan’s lack of cooperation throughout the process, while understandably

frustrating to police, simply did not create an exigency. The exigent circumstances in

Schmerber and Stavish prevented police from seeking, or delaying the blood draw to

secure, a search warrant. See Schmerber, 384 U.S. at 770-771, 86 S. Ct. at 1836; Stavish,

2015 WL 4930090, at *6. In contrast, the totality of the circumstances here shows no

emergency that diminished the likelihood that a valid blood test could be performed after

securing a warrant.

      The circumstances here are more akin to a routine impaired-driving arrest: the

record indicates that Trahan was agitated and difficult. These circumstances fall within

“those drunk-driving investigations where police officers can reasonably obtain a warrant

before a blood sample can be drawn.” McNeely, 133 S. Ct. at 1561. Because no

exigency would have prevented police from seeking a warrant before conducting a blood

test, we conclude that a warrantless blood test would not have been constitutional under

the exigent-circumstances exception to the Fourth Amendment’s warrant requirement.


                                           10
      B.     Substantive Due Process

      Having determined that a warrantless search of Trahan’s blood would not have

been constitutional under the search-incident-to-arrest or exigent-circumstances

exceptions to the Fourth Amendment’s warrant requirement, we next turn to Trahan’s

substantive due-process challenge to the test-refusal statute. “The constitutionality of a

statute is a question of law that we review de novo.” State v. Ness, 834 N.W.2d 177, 181

(Minn. 2013) (quotation omitted).

      The Due Process Clauses of the United States and Minnesota Constitutions

prohibit the state from “depriv[ing] any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, § 1; see also Minn. Const. art. I, § 7. The Due

Process Clause protects against government infringement on certain fundamental rights,

“regardless of the procedures provided, unless the infringement is narrowly tailored to

serve a compelling state interest.” Chavez v. Martinez, 538 U.S. 760, 775, 123 S. Ct.

1994, 2005 (2003). Fundamental rights and liberties are “deeply rooted in this Nation’s

history and tradition and implicit in the concept of ordered liberty.” Id. (quotations

omitted).

      Every citizen has a fundamental right to be free from unreasonable searches. U.S.

Const. amend. IV; Minn. Const. art. I, § 10; see also New York v. Class, 475 U.S. 106,

123, 106 S. Ct. 960, 970-71 (1986) (“The Fourth Amendment guarantees the right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures. This fundamental right is preserved by a requirement that searches

be conducted pursuant to a warrant issued by an independent judicial officer.” (quotations


                                           11
omitted)).    Because a warrantless search of Trahan’s blood would have been

unconstitutional under these circumstances, Trahan’s fundamental right to be free from

unreasonable searches is implicated. Cf. Bernard, 859 N.W.2d at 773 (“Having decided

that the search of Bernard’s breath would have been constitutional, we find no

fundamental right at issue here, as Bernard does not have a fundamental right to refuse a

constitutional search.”).

       We therefore subject the test-refusal statute to strict scrutiny. When a statute is

subject to strict scrutiny, it is not entitled to any presumption of validity. In re Welfare of

Child of R.D.L., 853 N.W.2d 127, 133 (Minn. 2014) (applying strict-scrutiny review to

termination-of-parental-rights statute because right to parent is a fundamental right).

Rather, the state must meet a heavy burden of showing that the statute is narrowly

tailored to serve a compelling government interest. Id.

       It is well settled that the state has a compelling interest in highway safety that

justifies efforts to keep impaired drivers off the road. See Bernard, 859 N.W.2d at 773.

This interest is substantial. “Indeed, 30 percent of traffic deaths in Minnesota in 2013

were alcohol-related.” Id. But to survive strict scrutiny, the test-refusal statute—to the

extent it criminalizes the refusal to submit to a warrantless blood test—must also be

narrowly tailored. A narrowly tailored law is “neither overinclusive nor underinclusive;

rather, it must be precisely tailored to serve the compelling state interest.” R.D.L., 853

N.W.2d at 135 (quotation omitted).

       The state has other viable options to address drunk driving. Police may offer a

breath test to a suspected drunk driver and then, if the test is refused, the state may charge


                                              12
the person with the crime of test refusal. Bernard, 859 N.W.2d at 774. The state may

also prosecute a driver for driving under the influence without measuring the alcohol

concentration or amount of controlled substances in a person’s blood. See Minn. Stat.

§ 169A.20, subd. 1(1)-(2) (2014). And when time allows, police can secure a search

warrant to test the person’s blood.4 With a valid warrant in place (or an exception to the

warrant requirement), the requested test would be a constitutionally reasonable search.

U.S. Const. amend. IV; Minn. Const. art. I, § 10. Charging a suspected drunk driver with

refusing a constitutional search does not offend due process. Bernard, 859 N.W.2d at

772-73.

       We conclude that criminalizing the refusal to submit to a warrantless blood test

“relates to the state’s ability to prosecute drunk drivers and keep Minnesota roads safe,”

Bernard, 859 N.W.2d at 774, but it is not precisely tailored to serve that compelling state

interest. It therefore fails strict-scrutiny review.

       We recognize that the available alternatives may not be as efficient as the current

procedure under the test-refusal statute.           But these alternatives serve the state’s

compelling interest in securing the safety of its roadways without infringing on a driver’s

fundamental right to refuse an unreasonable search of his blood. Because the test-refusal

statute as applied fails strict scrutiny, Trahan’s right to due process under the Minnesota

and United States Constitutions was violated.




4
   We note that procedural rules permit search warrants to be secured remotely under
certain conditions. See Minn. R. Crim. P. 36.01-.08.

                                               13
       The state urges us to affirm Trahan’s conviction by applying the good-faith

exception to the exclusionary rule that our supreme court recently adopted in State v.

Lindquist, ___ N.W.2d ___, ___, 2015 WL 4928147, *11 (Minn. Aug. 19, 2015). We

decline to do so.

       The constitutionality of the test-refusal statute depends in part on whether a

warrantless, nonconsensual search would have violated the Fourth Amendment.

Bernard, 859 N.W.2d at 772. The exclusionary rule is a remedy, “which is a separate,

analytically distinct issue from whether a constitutional violation occurred.” Lindquist,

2015 WL 4928147, at *8 (quotation omitted). And Minnesota’s recently adopted good-

faith exception to the exclusionary rule is a narrow exception. Id. at *11. We decline to

extend the Bernard analysis to the admissibility of evidence that could have been

collected in an unconstitutional search that did not occur.

                                     DECISION

       Because the test-refusal statute as applied to appellant violates his right to

substantive due process by criminalizing his refusal of an unconstitutional search,

appellant’s conviction must be reversed.

       Reversed and remanded.




                                             14
ROSS, Judge (dissenting)

       I respectfully dissent from the majority’s conclusion that the test-refusal

statute violates substantive due process for two reasons, one fundamental and one

specific. First, I disagree fundamentally with the assumed premise that has been

accepted in some recent test-refusal cases, including Bernard, that the United

States Supreme Court decision in Missouri v. McNeely provides suspected drunk

drivers a legitimate substantive due process challenge to the state’s chemical test-

refusal criminal statute. Second, recognizing that we are nonetheless bound to

accept that premise in light of Bernard’s reasoning, I also disagree with the

majority’s conclusion that the test-refusal statute is not narrowly tailored to

achieve the state’s compelling interest.

Criminalizing a suspected impaired driver’s chemical test refusal does not
trigger strict scrutiny.

       Recognizing that we are bound to follow Bernard’s rationale, I merely note

that I fundamentally disagree that the United States Supreme Court decision in

Missouri v. McNeely elevates to the level of strict scrutiny a substantive due

process challenge to the state’s chemical test-refusal criminal statute.

       I am convinced that McNeely neither expressly nor implicitly stands for

anything beyond its two-tier holding. Its first-tier holding informs us that police

cannot, without a warrant or an exception to the warrant requirement, forcibly

draw blood from a suspected drunk driver under the Fourth Amendment. Missouri

v. McNeely, 133 S. Ct. 1552, 1558 (2013). And its second-tier holding establishes



                                           D-1
that the biological circumstance of alcohol naturally dissipating from an impaired

driver’s body is not iteslf an exigent circumstance that allows police to draw the

driver’s blood without a warrant. Id. at 1563. Reading more into McNeely—

particularly, the notion that a state violates the Due Process Clause if it punishes

suspected impaired drivers for refusing to submit to a chemical test under the

state’s impaired-driving law—exaggerates McNeely’s reach.

       McNeely involved an actual nonconsensual search. As such, it answers

whether the search in that case—a nonconsensual blood draw—was permissible

under the Fourth Amendment. It answers nothing more. And its reasoning does not

undermine the Supreme Court’s consistent recognition that states can punish

suspected drunk drivers for refusing to be tested for drug and alcohol use. Even

while the McNeely Court was declaring that states cannot conduct a forced search

after a chemical-test refusal, it paradoxically reaffirmed the idea that states can

nevertheless punish a suspected drunk driver who refuses to comply with a lawful

request for a chemical test. Supporting its holding that the Fourth Amendment

prohibits Missouri from warrantlessly drawing blood from a suspected drunk

driver without his consent and without exigent circumstances, the McNeely Court

highlighted several alternatives to warrantless, nonconsensual blood draws, and it

expressly described these alternatives as “legal” (that is, constitutional). Id. at

1566. The Court reminded us that, among other constitutional penalties that states

can employ to secure chemical-test evidence in drunk-driving cases, a state does

not violate a defendant’s Fifth Amendment rights by urging a jury to infer from a


                                        D-2
defendant’s refusal to submit to chemical testing that he is guilty of the crime of

drunk driving. Id. The McNeely Court approvingly cited South Dakota v. Neville,

459 U.S. 553, 563–64, 103 S. Ct. 916, 922–23 (1983). Although Neville is not a

Fourth Amendment case, McNeely certainly is. And it is in applying the Fourth

Amendment that McNeely expressly reminds us through Neville that a state can

constitutionally rely on the driver’s test refusal (that is, the driver’s exercise of his

Fourth Amendment right not to be blood-tested without consent and without a

warrant) as circumstantial evidence on which a jury could convict the driver of a

crime. In other words McNeely establishes that a criminal conviction arising in

part from a driver’s chemical-test refusal is not unconstitutional simply because

the Fourth Amendment would have prohibited the state from forcing that same

driver to submit to the chemical test.

       The Supreme Court’s recognition that states can constitutionally rely on a

driver’s test refusal to convict that driver of the crime of drunk driving implies

strongly that, even though a nonconsensual chemical test is a “search” under the

Fourth Amendment, due process is not offended when the state criminally

punishes test refusal as a crime in itself. This recognizes that the right to refuse

testing for drunk driving is different in nature from other rights. Notice for

example that, by contrast, due process would never allow a jury to infer a

defendant’s guilt for refusing to consent to a search in the traditional, non-drunk-

driving setting. See, e.g., United States v. Runyan, 290 F.3d 223, 249 (5th Cir.

2002) (“[T]he circuit courts that have directly addressed this question have


                                          D-3
unanimously held that a defendant’s refusal to consent to a warrantless search may

not be presented as evidence of guilt.”); United States v. Thame, 846 F.2d 200,

206–07 (3rd Cir. 1988) (holding the same but adding by contrast that a defendant’s

decision to exercise his Sixth Amendment right to counsel cannot serve as

evidence of guilt); State v. Larson, 788 N.W.2d 25, 32–33 (Minn. 2010) (holding

that a court erroneously admits as evidence of guilt a defendant’s refusal to

undergo voluntary DNA testing); State v. Jones, 753 N.W.2d 677, 687 (Minn.

2008) (noting that it would be improper for prosecutor to comment on defendant’s

refusal to give saliva sample). That the Supreme Court in McNeely buttressed its

Fourth Amendment holding on the states’ “legal” authority to rely on test refusals

to convict drivers of a crime significantly undermines the notion that the

Minnesota criminal test-refusal statute is subject to invalidation by the Fourth

Amendment’s intersection with the Due Process Clause. It is an anomaly in law

that the right to refuse chemical testing does not include the right not to be

penalized for the refusal, but it is a reasonable anomaly given the unique nature of

the underlying crime.

       For the reasons I stated previously in our unpublished opinion in State v.

Chasingbear, given the Supreme Court’s deferential approach to the states’

authority to penalize suspected impaired drivers for test refusals, I do not agree

that Minnesota’s test-refusal statute invites a strict-scrutiny analysis. No. A14-

0301, 2014 WL 3802616 (Minn. App. Aug. 4, 2014), review denied (Minn. Apr.

14, 2015). It is true that we strictly scrutinize a challenged law that implicates a


                                        D-4
fundamental right. Essling v. Markman, 335 N.W.2d 237, 239 (Minn. 1983). And

we will uphold such a law under strict scrutiny 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, it violates substantive

due process rights only if, under a rational-basis test, the challenger establishes

that the statute is not reasonably related to a legitimate governmental interest. See

Reno v. Flores, 507 U.S. 292, 305, 113 S. Ct. 1439, 1448–49 (1993); In re

Individual 35W Bridge Litigation, 806 N.W.2d 820, 830 (Minn. 2011).

       Applying the reasoning of the state supreme court decision in Bernard, the

majority concludes that a fundamental, Fourth Amendment right is at stake here.

As I have stated, I believe that no Fourth Amendment right is implicated here

because, unlike in McNeely, no search occurred. I think we should instead decide

more specifically whether a suspected impaired-driver’s refusal to submit to

chemical testing is itself a fundamental right. The caselaw informs us how to

approach that question. The United States Supreme Court has explained, “[W]e

have regularly observed that 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 would exist if they were sacrificed.”

Washington v. Glucksberg, 521 U.S. 702, 720–21, 117 S. Ct. 2258, 2268 (1997)

(quotations omitted). If one accepts the reasoning of Bernard, the question would

be very broadly stated—Does a person have a fundamental right to refuse to


                                        D-5
consent to a warrantless search? And if this is the question, I would agree the

answer is, yes, a fundamental right is at stake even if the Fourth Amendment is not

directly implicated. If, however, the question is more narrowly stated—Does a

suspected impaired driver have a fundamental right to refuse a chemical test that

will reveal the precise quantity of alcohol and drugs in his body?—I am convinced

that one must say no, a fundamental right is not at stake.

       The narrow approach to defining the right is the correct approach. The

Supreme Court has “required in substantive-due-process cases a ‘careful

description’ of the asserted fundamental liberty interest.” Id. at 721, 117 S. Ct. at

2268; see also McDonald v. City of Chicago, 561 U.S. 742, 797, 130 S. Ct. 3020,

3053–54 (2010) (Scalia, J., concurring) (explaining that under the due process

framework the Supreme Court has “sought a careful, specific description of the

right at issue in order to determine whether that right, thus narrowly defined, was

fundamental”). In Glucksberg, the Supreme Court rejected the court of appeals’

framing of the issue broadly as “‘whether there is a liberty interest in determining

the time and manner of one’s death’” or “‘is there a right to die?’” and instead

framed it narrowly as “whether the ‘liberty’ specially protected by the Due Process

Clause includes a right to commit suicide which itself includes a right to assistance

in doing so.” Glucksberg, 521 U.S. at 722–23, 117 S. Ct. at 2268–69.

       I believe we should follow the Supreme Court’s lead, narrowly rather than

broadly construing the right to be tested here. And narrowly construed, the right at

stake is the right of suspected impaired drivers to refuse to submit to chemical


                                        D-6
testing for alcohol content. No one can say that this is a right deeply rooted in

national history and tradition. Far from it: to the extent history and tradition

illuminate the subject, they embrace state impaired-driving laws that prohibit

impaired-driving suspects from refusing police requests for chemical testing, and

they do so in the implied-consent setting without any regard to whether exigent

circumstances exist to support a warrantless blood draw, penalizing those who

refuse to be tested. See McNeely, 133 S. Ct. at 1566. McNeely itself looks

favorably on this method of chemical-test enforcement, explaining that “all 50

States have adopted implied consent laws that require motorists, as a condition of

operating a motor vehicle within the State, to consent to [chemical] testing if they

are arrested or otherwise detained on suspicion of a drunk-driving offense.” Id.

       The short history and tradition of automobile regulation indicate that laws

regulating automobile use have existed since the advent of the automobile.

Automobile history is short; just over one hundred years ago, auto travel was so

rare that operators of horse-drawn vehicles had the statutory authority to

demand—by a mere wave of the hand—that any passing motor vehicle must yield

until the horse-drawn vehicle passed, and an automobile driver’s failure to stop

when so signaled was illegal. See Mahoney v. Maxfield, 102 Minn. 377, 378–81,

113 N.W. 904, 905–06 (1907) (applying a 1903 Minnesota statute and surveying

similar laws in other states). Even by the 1920s, cars remained so rare that police

officers did not use them on patrol, relying instead on horses, bicycles, and the

newly introduced motorized cycles. See Edberg v. Johnson, 149 Minn. 395, 398,


                                        D-7
184 N.W. 12, 13 (1921) (“As an aid to officers on patrol duty no vehicle more

serviceable than the motorcycle has as yet been invented. Of course it is possible

for such officers to use automobiles instead of motorcycles, but their use would be

equally if not more dangerous to others if driven at a high rate of speed.”).

       But while relatively few cars were on the road at the advent of automobile

transportation, the statutory prohibition against operating a motor vehicle while

intoxicated developed in unison with the state’s restrictions on issuing driver’s

licenses. See, e.g., Mannheimer Bros. v. Kan. Cas. & Sur. Co., 147 Minn. 350,

353, 180 N.W. 229, 230 (1920) (discussing Minnesota statute that “directs that no

license shall be issued to excessive users of intoxicating liquors, and in another

section expressly declares that it shall be a misdemeanor for anyone to drive while

intoxicated”). In 1939 no “habitual drunkard” could be licensed to drive in

Minnesota. See Minn. Laws. ch. 401, § 4(4), at 783 (codified at Mason’s Minn.

Stat. § 2720–144a(4) (Supp. 1940)). Within just 40 years of the onset of

automobile-operator licensing, the United States Supreme Court recognized that

chemical testing of suspected drunk drivers provides “a scientifically accurate

method of detecting alcoholic content in the blood, thus furnishing an exact

measure upon which to base a decision as to intoxication.” Breithaupt v. Abram,

352 U.S. 432, 439, 77 S. Ct. 408, 412 (1957). And it observed that “[m]odern

community living requires modern scientific methods of [drunk-driving] detection

lest the public go unprotected.” Id. at 439, 77 S. Ct. at 512. As recently as the

1980s, the Supreme Court saw no fundamental right for a suspected drunk driver


                                         D-8
to refuse to be tested in the implied-consent setting, declaring bluntly,

“Respondent’s right to refuse the blood-alcohol test, by contrast [to a right rooted

in the Constitution], is simply a matter of grace bestowed by the [state]

[l]egislature.” Neville, 459 U.S. at 565, 103 S. Ct. at 923.

       Given the relevant history, it is clear to me that a suspected impaired

driver’s right to refuse drug and alcohol testing is not among those “fundamental

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

and tradition.” In my view, nothing in this claimed right is “implicit in the concept

of ordered liberty such that neither liberty nor justice would exist if [it] were

sacrificed.” This would lead us to test the statute under a rational-basis analysis,

not a strict-scrutiny analysis, and the statute would easily pass muster.

Even under strict scrutiny, the statute criminalizing a suspected impaired
driver’s refusal to undergo a chemical test is not unconstitutional.

       Of course, this court is bound to faithfully follow supreme court precedent,

including Bernard. Although I therefore reluctantly join the majority in accepting

that Bernard implies that the United States Supreme Court decision in Missouri v.

McNeely requires us to apply strict scrutiny in a substantive due process challenge

to the state’s chemical test-refusal criminal statute when blood has been requested,

I believe the statute nonetheless survives strict scrutiny. I therefore dissent on this

specific ground.

       The majority recognizes that the state has a compelling interest at stake

here, but I believe that it too broadly identifies that interest and, therefore,



                                         D-9
mistakenly holds that the test-refusal statute fails to be sufficiently narrowly

tailored. The majority correctly identifies only part of the state’s compelling

interest, which is its “compelling interest in highway safety that justifies efforts to

keep impaired drivers off the road.” But examining the statutory scheme more

closely, I believe that the state’s interest goes deeper because it contains a related

complementary component. The statutory scheme evidences the state’s interest not

only in obtaining scientific evidence of the suspected impaired drivers’ chemical

impairment to facilitate accurate convictions to keep them off the road; it also

evidences the state’s strong interrelated interest in protecting suspected impaired

drivers from being customarily subjected to forced blood draws by police, who

have the constitutional authority to easily obtain a warrant and draw blood from

every suspect.

       Chemical tests are essential to securing impaired-driving convictions,

which in turn allow the state to incarcerate offenders and keep them off the road.

And as a practical matter, the only way the state can subject an unwilling

suspected impaired driver to a chemical test is to draw the driver’s blood; police

have no apparatus to forcibly extract a person’s breath or urine. The legislature is

aware that, unless constrained by statute, police could draw blood after every

traffic stop during which the officer develops probable cause (a very low standard)

to believe that the driver may be impaired by drugs or alcohol. All the officer must

do is smell an alcoholic beverage on the driver’s breath or notice a slur in the

driver’s speech and redness in his eyes, and the officer could quickly obtain the


                                        D-10
obligatory warrant. See U.S. Const. amend. IV (requiring probable cause for

search warrants); Minn. Stat. § 626.11(a) (2012) (“If the judge is satisfied . . . that

there is probable cause . . . the judge must issue a signed search warrant . . . .”);

Minn. Stat. § 169A.20, subd. 1 (2012) (“It is a crime for any person to drive . . .

any motor vehicle . . . when . . . the person is under the influence of alcohol.”).

The statute informs us that the legislature at once wants both a means to remove

drunk drivers from the roadways and to avoid a police-state atmosphere where

police, supported by an easily obtained warrant, routinely cart unwilling drivers to

nearby hospitals or jails and direct the extraction of a blood sample for testing.

       The state achieves its first objective of removing drunk drivers from the

roadways by that part of the impaired-driving law that criminalizes both impaired

driving and a suspected impaired driver’s refusing to submit to chemical testing.

Minn. Stat. § 169A.20, subds. 1, 2 (2012). The state achieves its related second

objective of preventing police from routinely invading the bodily integrity of

drivers by prohibiting police from drawing blood from unwilling suspects. The

test-refusal law declares bluntly, “If a person refuses to permit a test, then a test

must not be given.” Minn. Stat. § 169A.52, subd. 1 (2012).

       I would have no difficulty concluding that the state’s interest in protecting

its citizens from constitutionally permitted but legislatively intolerable police

intrusion is a compelling interest. The nation’s founders pledged their lives and

fortunes and fought a revolution primarily to resist oppressive governmental

power. See The Declaration of Independence para. 2 (U.S. 1776) (objecting to “a


                                        D-11
long train of abuses and usurpations” in order “to provide new Guards for their

future security”). Both the federal and state constitutional framers fortified “the

right of the people to be secure in their persons . . . against unreasonable

searches.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. And the people have

perpetually negotiated the border between the public commitment to liberty and

the law enforcement tendency to expand its policing power. The federal

constitution establishes only the outer edge of that border and allows states to

more tightly restrain police activity through constitutional and statutory law. See

California v. Greenwood, 486 U.S. 35, 43, 108 S. Ct. 1625, 1630 (1988)

(“Individual states may surely construe their own constitutions as imposing more

stringent constraints on police conduct than does the Federal Constitution.”);

Atwater v. City of Lago Vista, 532 U.S. 318, 352, 121 S. Ct. 1536, 1556 (2001)

(noting approvingly that many states “have chosen to impose more restrictive

safeguards through statutes limiting warrantless arrests for minor offenses”).

       This state has exercised that right to restrain its police more tightly than the

federal Constitution. The supreme court has, on several occasions, interpreted the

state constitutional language that echoes the Fourth Amendment more restrictively

than the way the United States Supreme Court interprets the Fourth Amendment.

See, e.g., Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 187 (Minn. 1994)

(holding that the Minnesota constitution prevents the operation of suspicionless

road blocks despite the U.S. Supreme Court’s holding in Michigan Department of

State Police v. Sitz); State v. Askerooth, 681 N.W.2d 353, 362–63 (Minn. 2004)


                                        D-12
(declining to follow the U.S. Supreme Court’s decision in Atwater v. City of Lago

Vista, and holding that the Minnesota Constitution requires a reasonableness

limitation on the scope and duration of a Terry detention); In re E.D.J., 502

N.W.2d 779, 783 (Minn. 1993) (declining to follow the U.S Supreme Court’s

decision in California v. Hodari D. and holding that under the Minnesota

Constitution a totality of the circumstances test applies to determining whether a

seizure has occurred). And the people of the state, through their elected

representatives, have here enacted a statute that restrains police activity even more

restrictively than the principles of their constitutions. Particularly, in the same

chapter the legislature requires each suspected drunk driver to submit to a

chemical test when an officer requests one, Minn. Stat. § 169A.51, subd. 1(a)

(2012), it correspondingly establishes that “[i]f a person refuses to permit a test,

then a test must not be given.” Minn. Stat. § 169A.52, subd. 1. The two linked

provisions, only working together, serve the compelling complementary state

interests of keeping drunk drivers off the road and keeping police from carting off

every driver who smells like beer for forced, truly nonconsensual blood extraction.

The majority’s framing of the state’s interest does not take into account the

interrelated second component of the law.

       I also would have no difficulty concluding that the state’s complementary

law is narrowly tailored to further the state’s interest in protecting citizens from

constitutionally permitted but intolerable police intrusion while most effectively

removing impaired drivers from the roadways. I see no other means for the state to


                                       D-13
accomplish this dual objective. The majority suggests three alternatives, but they

are clearly inadequate.

       Of course the state could, as the majority first suggests, “offer a breath test

[instead of a blood test] to a suspected drunk driver and then, if the [breath] test is

refused, the state may charge the person with the crime of test refusal.” But a

breath test reveals only the presence of alcohol, not any of the myriad controlled

substances that also cause the impairment that the impaired-driving statute

criminalizes. See Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 625, 109 S. Ct.

1402, 1418 (1989) (observing that “breath tests reveal the level of alcohol in the

employee’s blood stream and nothing more”). The majority’s first alternative to

the current statute therefore does not meet even the majority’s partially framed

compelling state objective of keeping impaired drivers off the road.

       The majority suggests second that the state could instead prosecute the

arrested driver without the benefit of any chemical test at all. This also is no

solution because it both weakens prosecutions and jeopardizes the innocent.

Chemical test results arm the jury with forensic evidence without which more

innocent drivers would likely be convicted and more guilty drivers would certainly

be acquitted. Over half a century ago the Supreme Court recognized this,

observing that, as to the guilty, a blood test “is a scientifically accurate method of

detecting alcoholic content in the blood, thus furnishing an exact measure upon

which to base a decision as to intoxication,” and as to the innocent, “the [blood]

test likewise may establish innocence, thus affording protection against the


                                        D-14
treachery of judgment based on one or more of the senses.” See Breithaupt, 352

U.S. at 439, 77 S. Ct. at 412. The majority’s second suggestion would at once

make Minnesota’s roadways less safe and the evidence admitted in its impaired-

driving trials less accurate.

       The majority’s third suggested substitute for the criminal test-refusal statute

is simply that “police can secure a search warrant to test the person’s blood.” The

majority is correct that police can indeed secure a search warrant to test every

nonconsenting, suspected impaired driver’s blood. The majority fails to notice,

however, that this is exactly the harm the statute attempts to avoid. Police could

obtain a warrant in every stop in which the statute authorizes an officer to request

a blood test because the same low standard—probable cause—allows police to

either request a test under the statute or to obtain a warrant to draw blood. See U.S.

Const. amend. IV (requiring probable cause for search warrants); Minn. Stat.

§ 169A.51, subd. 1(b) (2012) (requiring probable cause of impaired driving for

officer to request a chemical test). So although the majority’s urging police to use

the full measure of their constitutional authority to obtain an easily secured

chemical-test warrant continues to facilitate impaired driving prosecutions, it

undermines rather than furthers the other component of the compelling interest

that the statute protects. The difference between the current scheme that the

legislature has adopted and the scheme that the majority now suggests to replace it

is that, under the legislative scheme, the suspected impaired driver always has the

choice to refuse a blood test, but under the majority’s scheme, the driver never has


                                        D-15
the choice to refuse a blood test. We can predict that prosecutors and police will

soon follow the majority’s suggestion in every case, because it will be the only

remaining reliable means to always secure the evidence necessary to incarcerate

impaired drivers and protect Minnesota’s roadways.

       To understand why the majority’s three alternatives to the test-refusal

statute fail to satisfy both aspects of the state’s compelling interest is to understand

why the statute is precisely tailored to achieve the dual interests it addresses. I

cannot conceive of any arrangement more tightly fitted to the statute’s objective to

remove impaired drivers from the road by potential incarceration and at the same

time to protect suspected impaired drivers from being routinely subjected to

forced, nonconsensual blood draws by police. Under the statute, the public is best

protected from the dangers of impaired drivers because in every case the state will

obtain either the necessary evidence to pursue an impaired-driving conviction or

the necessary evidence to pursue a similarly weighted test-refusal conviction. And

this protection occurs while every driver retains the absolute liberty to reject a

blood test altogether, because, if he does, “no test shall be given.” Everyone wins.

       But after today’s decision, police should never merely request a blood test,

because if they do, upon refusal, not only is no test permitted, but also conviction

is far less likely. Every police officer doing her duty to gather evidence to ensure

the criminal conviction of apparently drug-impaired drivers has but one remaining

course: give the driver no choice; call a judge every time; get a warrant every

time; and administer a blood draw (the most invasive and costly of the three types


                                         D-16
of chemical tests) if necessary by force, every time. The state will continue to

obtain its evidence to convict and remove impaired drivers from the road, but it

will cost the people their significant statutory restraint on police power.

       The majority therefore gives the defense bar a hollow victory: today one

suspected impaired driver escapes his conviction for exercising his supposedly

constitutional right to refuse to consent to a blood test, and tomorrow every

suspected impaired driver has effectively lost the right to refuse to consent to a

blood test.




                                        D-17
