                         This opinion will be unpublished and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
                                    A14-0136

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Leslie Jay Boyd, Jr.,
                                       Appellant.

                                Filed December 8, 2014
                                       Affirmed
                                     Reyes, Judge

                            Hennepin County District Court
                               File No. 27CR1327062

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Kirk M. Anderson, Anderson Law Firm, P.L.L.C., Minneapolis, Minnesota (for
appellant)

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

Reyes, Judge.

                        UNPUBLISHED OPINION

REYES, Judge

      Appellant Leslie Jay Boyd Jr. contends that Minnesota statute criminalizing test

refusal is unconstitutional under 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), and that the

district court erred in denying appellant’s request to dismiss the charges. We affirm.

                                           FACTS

       In the early morning hours of August 17, 2013, a Brooklyn Center police officer

observed a vehicle traveling below the posted speed limit. The officer followed the

vehicle and observed the vehicle weaving within its lane of travel before crossing over a

median divider. After observing this, the officer initiated a traffic stop.

       The officer identified the driver as appellant Leslie Boyd, Jr. Appellant’s behavior

indicated to the officer that he was impaired. The officer administered a field sobriety

test called the horizontal gaze nystagmus test, and observed that appellant lacked a

smooth pursuit in both eyes. Appellant refused to perform the remaining field sobriety

tests and refused to submit to a preliminary breath test. Appellant was placed under

arrest and taken to jail. Appellant again refused to submit to testing after being read the

implied-consent advisory.

       Appellant was charged with refusal to submit to a chemical test pursuant to Minn.

Stat. § 169A.20, subd. 2 (2012). Appellant moved to dismiss the test-refusal charge,

arguing that section 169A.20, subdivision 2, is unconstitutional. The district court issued

an order denying appellant’s motion to dismiss. The court concluded that “because the

criminalization of refusing to submit to chemical testing under § 169A.02,

subd. 2 . . . remains constitutional today, the [appellant’s] motion to dismiss is denied.”




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       On January 2, 2014, appellant submitted to a Lothenbach proceeding1 and was

found guilty. This appeal follows.

                                      DECISION

       Appellant argues that the state cannot constitutionally criminalize a person’s

refusal to submit to chemical testing and that the district court erred by finding the refusal

statute constitutional.

       “Minnesota statutes are presumed constitutional[,] and . . . our 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). A

party challenging the constitutionality of a statute must show beyond a reasonable doubt

that the statute violates a constitutional provision. State v. Cox, 798 N.W.2d 517, 519

(Minn. 2011). We review the constitutionality of a statute de novo. SooHoo v. Johnson,

731 N.W.2d 815, 821 (Minn. 2007).

       The Fourth Amendment and article I, section 10 of the Minnesota Constitution

protect the “right of the people to be secure . . . against unreasonable searches and

seizures.” U.S. Const. amend. IV; accord Minn. Const. art. I, § 10. A search conducted

without a warrant issued upon probable cause is generally unreasonable. Skinner v. Ry.

Labor Execs.’ Ass’n, 489 U.S. 602, 619, 109 S. Ct. 1402, 1414 (1989). A warrant is


1
 Stipulation to the prosecution’s case to obtain review of a pretrial ruling, governed by
Minn. R. Crim. P. 26.01, subd. 4, preserves the defendant’s right to appeal a dispositive
pretrial ruling. Proceedings under subdivision 4, commonly called “Lothenbach
proceedings” take their name from State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980),
which authorized this procedure until it was superseded by subdivision 4. Minn. R. Crim.
P. 26.01 cmt.

                                              3
necessary for such a search unless an exception to the warrant requirement applies.

Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013).

      The taking of a blood, breath, or urine sample is a physical intrusion that

constitutes a search under the Fourth Amendment. Skinner, 489 U.S. at 616-17, 109

S. Ct. at 1412–13. For such a search to be reasonable, it must be conducted pursuant to a

valid search warrant or an exception to the warrant. State v. Othoudt, 482 N.W.2d 218,

222 (Minn. 1992). Before McNeely, Minnesota law held that a warrantless blood draw

was constitutionally reasonable because the natural dissipation of alcohol in the blood

created a single-factor exigent circumstance. See, e.g., State v. Netland, 762 N.W.2d 202,

213-14 (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);

State v. Shriner, 751 N.W.2d 538, 549-50 (Minn. 2008), abrogated by McNeely, 133

S. Ct. 1552. However, in McNeely, the Supreme Court held that the natural dissipation of

alcohol in the bloodstream no longer presented “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. The Court concluded that

“exigency . . . must be determined case by case based on the totality of the

circumstances.” Id. This holding was followed by our supreme court in Brooks. 838

N.W.2d at 572.

      Appellant argues that “Post-McNeely (and now Post-Brooks), refusing to submit to

a warrantless search cannot be criminally prosecuted.” We are not persuaded. To the

contrary, McNeely does not require us to conclude that Minnesota’s test-refusal statute is


                                            4
unconstitutional.   A plurality of the Supreme Court in 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.” 133 S. Ct. at 1566. Likewise in Brooks, our

supreme 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.” 838

N.W.2d at 570.

       Moreover, both the Minnesota and the United States Supreme Courts have

discussed the test-refusal statute with approval. In South Dakota v. Neville, the Supreme

Court explained that while “the choice to submit or refuse to take a blood-alcohol test

will not be an easy or pleasant one for a suspect to make . . . . the criminal process often

requires suspects and defendants to make difficult choices.” 459 U.S. 553, 564 (1982).

In McDonnell v. Comm. of Pub. Safety, the Minnesota Supreme Court articulated the

same sentiment, finding “the fact that certain individuals may face criminal charges for

refusing to undergo testing in no way compels those individuals to refuse.” 473 N.W.2d

848, 855-56 (Minn. 1991). Similarly, this court has also discussed the test-refusal statute

in a positive light holding that “Minnesota’s chemical-test-refusal statute reflects

permissible state objectives” as the state has a “compelling interest in highway safety that

justifies efforts to keep impaired drivers off the road.” State v. Wiseman, 816 N.W.2d

689, 695-96 (Minn. App. 2012), cert. denied, 133 S. Ct. 1585 (2013). Appellant has not

met his heavy burden of showing that McNeely renders the test-refusal statute

unconstitutional.


                                             5
       Appellant also argues that criminalizing test refusal violates his right against self-

incrimination. This argument is not persuasive. The United States Supreme Court has

held that a state does not violate the Fifth Amendment when it introduces into evidence a

driver’s refusal to submit to a blood-alcohol-concentration test. Neville, 459 U.S. at 564-

66, 103 S. Ct. at 922-24.      Similarly, in McDonnell, our supreme court held that

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

473 N.W.2d at 855-56; see also Brooks, 838 N.W.2d at 570 (following McDonnell and

Neville and holding 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”).

       Affirmed.




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