                         This opinion will be unpublished and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
                                    A13-2407

                             Leslie Jay Boyd, Jr., petitioner,
                                        Appellant,

                                            vs.

                                   State of Minnesota,
                                      Respondent.

                                 Filed August 18, 2014
                                       Affirmed
                                    Chutich, Judge

                              Scott County District Court
                               File No. 70-CR-05-25211

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for appellant)

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

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)


      Considered and decided by Chutich, Presiding Judge; Johnson, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

CHUTICH, Judge

      In this postconviction appeal, appellant Leslie Jay Boyd Jr. contends that

criminalizing test refusal is unconstitutional under Missouri v. McNeely, 133 S. Ct. 1552
(2013), and that the district court therefore erred by denying his postconviction petition.

Because Boyd’s petition is time-barred, we affirm.

                                          FACTS

       According to the complaint, on November 24, 2005, Shakopee police observed a

speeding car that turned without signaling. The police attempted to pull the car over, but

the car sped away and drove into a ditch. The driver, later identified as Boyd, ran away

from the scene. When the police officer caught up with Boyd, the officer saw that

Boyd’s eyes were bloodshot and watery, his speech was slurred, and he had poor balance.

Boyd admitted he drank alcohol before driving, but refused to submit to a preliminary

breath test. After arresting him and taking him to the Shakopee Police Department,

officers read Boyd the implied-consent advisory. Boyd spoke with an attorney on the

phone and then told the officers that he refused to submit to a breath test.

       The state charged Boyd with felony test refusal, first-degree driving while

impaired (driving under the influence), fleeing a police officer by motor vehicle, driving

after cancellation, and evading a police officer. See Minn. Stat. §§ 169A.20, subds. 1(1),

2, .24, 171.24, subd. 5, 609.487, subds. 3, 6 (2004).

       On October 8, 2008, Boyd pleaded guilty to felony test refusal and fleeing a police

officer by motor vehicle. The district court sentenced him to 63 months in prison and

five years of conditional release.

       Five years after his guilty plea, Boyd filed a petition for postconviction relief. He

argued that his conviction of test refusal “was based on an unconstitutional statute in light

of McNeely.” The district court denied Boyd’s petition without granting him a hearing,


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holding that his petition was time-barred and did not meet any exceptions. This appeal

followed.

                                      DECISION

       Boyd contends that, because a suspected drunk driver has a right to withhold

consent to a chemical test, the state cannot criminalize test refusal post-McNeely. He also

argues that he had “the right not to submit to testing because submitting to the test may

have incriminated himself.” The state asserts, and we agree, that the two-year statute of

limitations bars Boyd’s postconviction petition.

       “We review the denial of a postconviction petition for an abuse of discretion.”

Francis v. State, 829 N.W.2d 415, 419 (Minn. 2013). “In doing so, we review findings of

fact for clear error, and we review questions of law de novo.” Id. We review de novo

whether a statute is unconstitutional. State v. Wenthe, 839 N.W.2d 83, 87 (Minn. 2013).

A party challenging the constitutionality of a statute “bears the very heavy burden of

demonstrating beyond a reasonable doubt that the statute is unconstitutional.” State v.

Johnson, 813 N.W.2d 1, 11 (Minn. 2012) (quotation omitted).

       “No petition for postconviction relief may be filed more than two years after” a

judgment of conviction becomes final. Minn. Stat. § 590.01, subd. 4(a) (Supp. 2005). A

district court may consider the postconviction petition if a petitioner “asserts a new

interpretation of federal or state constitutional or statutory law by either the United States

Supreme Court or a Minnesota appellate court and the petitioner establishes that this

interpretation is retroactively applicable to the petitioner’s case” or if “the petition is not

frivolous and is in the interests of justice.” Id., subd. 4(b)(3), (5) (Supp. 2005).


                                               3
       Boyd was convicted in 2008 and filed his postconviction petition in 2013, five

years later. Boyd’s petition is therefore untimely, unless one of the delineated exceptions

applies. See Minn. Stat. § 590.01, subd. 4(a)–(b). As discussed below, we conclude that

no exception applies.

       Boyd was convicted of felony test refusal, which is defined as “refus[ing] to

submit to a chemical test of the person’s blood, breath, or urine.” Minn. Stat. § 169A.20,

subd. 2. The test-refusal statute criminalizes refusal to submit to testing authorized under

the implied-consent statute, which states that anyone who drives a motor vehicle consents

“to a chemical test of that person’s blood, breath, or urine for the purpose of determining

the presence of alcohol.” Minn. Stat. § 169A.51, subd. 1(a) (2004).

       Before McNeely, Minnesota law held that the “rapid, natural dissipation of alcohol

in the blood creates single-factor exigent circumstances that will justify the police taking

a warrantless, nonconsensual blood draw from a defendant.”           State v. Shriner, 751

N.W.2d 538, 549–50 (Minn. 2008), abrogated by Missouri v. McNeely, 133 S. Ct. 1552

(2013); see State v. Netland, 762 N.W.2d 202, 212 (Minn. 2009), abrogated in part by

McNeely, 133 S. Ct. 1552, as recognized in State v. Brooks, 838 N.W.2d 563, 567 (Minn.

2013), cert. denied, 134 S. Ct. 1799 (2014). But the Supreme Court held in McNeely that

the natural dissipation of alcohol in the bloodstream does not present “a per se exigency

that justifies an exception to the Fourth Amendment’s warrant requirement for

nonconsensual blood testing in all drunk-driving cases.” 133 S. Ct. at 1556.

       Contrary to Boyd’s contention, McNeely does not require us to conclude that

Minnesota’s test-refusal statute is unconstitutional. A plurality of the Supreme Court in


                                             4
McNeely described implied-consent laws as part of a state’s “broad range of legal tools to

enforce [its] drunk-driving laws and to secure [blood-alcohol-concentration] evidence

without undertaking warrantless nonconsensual blood draws.” Id. at 1566. In Brooks,

the Minnesota Supreme Court concluded that this description of implied-consent laws as

“legal tools” is inconsistent with the argument that Minnesota’s implied-consent statute is

unconstitutional. 838 N.W.2d at 572. Moreover, the Brooks court held that “a driver’s

decision to agree to take a test is not coerced simply because Minnesota has attached the

penalty of making it a crime to refuse the test.” Id. at 570. Boyd has not met his heavy

burden of showing that McNeely renders the test-refusal statute unconstitutional.

       Boyd’s argument that criminalizing test refusal violates his right against self-

incrimination is also unpersuasive. The state does not violate the Fifth Amendment when

it introduces into evidence a driver’s refusal to submit to a blood alcohol test. South

Dakota v. Neville, 459 U.S. 553, 564–66, 103 S. Ct. 916, 922–24 (1983). And in

McDonnell v. Commissioner of Public Safety, the Minnesota Supreme Court held that

Minnesota’s implied-consent law does not coerce a driver into testifying against himself.

473 N.W.2d 848, 855–56 (Minn. 1991); see also Brooks, 838 N.W.2d at 570 (following

McDonnell and Neville).

       In sum, because McNeely does not render the criminalization of test refusal

unconstitutional, Boyd’s petition does not meet the exceptions to the two-year time limit

listed in Minnesota Statutes section 590.01, subdivision 4(b), and his petition is therefore

time-barred.

       Affirmed.


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