                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0076

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Ryan Mark Thompson,
                                      Appellant.

                                Filed December 28, 2015
                                       Reversed
                                      Smith, Judge

                               Steele County District Court
                                 File No. 74-CR-12-777

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

Daniel A. McIntosh, Steele County Attorney, Julia A. Forbes, Assistant County Attorney,
Owatonna, 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 Stauber, Presiding Judge; Kirk, Judge; and Smith,

Judge.

                                    SYLLABUS

         1.    Charging a driver with violating Minn. Stat. § 169A.20, subd. 2 (2010) for

refusing to submit to a urine test implicates a fundamental right because a warrantless

search of the driver’s urine would not have been constitutional under an exception to the

warrant requirement.
       2.     When applied to the refusal of a warrantless urine test, Minn. Stat.

§ 169A.20, subd. 2 violates a driver’s right to substantive due process under the United

States and Minnesota Constitutions because it is not narrowly tailored to serve a

compelling government interest.

                                      OPINION

SMITH, Judge

       Appellant challenges his conviction of second-degree test refusal following his

refusal to submit to a blood or urine test. We conclude that conducting a warrantless

blood or urine test would not have been constitutional under an exception to the warrant

requirement, charging appellant with criminal test refusal implicates his fundamental

right to be free from unconstitutional searches, and the test-refusal statute as applied to

warrantless blood and urine tests is not narrowly tailored to serve a compelling

government interest. We therefore reverse appellant’s conviction because the test-refusal

statute violates appellant’s right to substantive due process under the United States and

Minnesota Constitutions.

                                         FACTS

       On April 13, 2012, an Owatonna police officer was sitting outside a bar at closing

time when he saw a vehicle drive forward, jump a curb, and then stop quickly. After the

vehicle backed up and exited the bar parking lot, it “cut the corner short” and drove over

the center line. The officer conducted a traffic stop and identified the driver as appellant

Ryan Thompson. The officer “detected an overwhelming odor of an alcoholic beverage




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coming from the vehicle” and noticed that Thompson “had watery and glassy eyes.”

Thompson stated that he had consumed one beer.

       The officer then asked Thompson to submit to field sobriety tests, which

Thompson failed. Thompson also failed a preliminary breath test. The officer arrested

Thompson and drove him to the Steele County Detention Center, where he read

Thompson the implied-consent advisory. Thompson left a message for an attorney and

“stated that he was done” using the telephone. The officer then completed reading the

implied-consent advisory, and Thompson refused to take a blood or urine test.

       Thompson was charged with second-degree test refusal, third-degree driving while

under the influence, obstructing legal process, and driving over the centerline. At an

omnibus hearing, Thompson challenged the constitutionality of the test-refusal statute,

arguing that it violated his due-process rights and the unconstitutional-conditions

doctrine. The district court concluded that the test-refusal statute is constitutional. To

challenge the district court’s ruling on appeal, Thompson submitted the second-degree

test-refusal charge to the district court under Minn. R. Crim. P. 26.01, subd. 4. The other

charges were dismissed. The district court found Thompson guilty of second-degree test

refusal.

                                          ISSUE

       Does the test-refusal statute violate appellant’s right to substantive due process

under the United States and Minnesota Constitutions by criminalizing his refusal to

submit to a warrantless blood or urine test?




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                                       ANALYSIS

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

test of blood, breath, or urine in certain circumstances. Minn. Stat. § 169A.20, subd. 2.

These circumstances include when an officer has probable cause to believe that a person

was driving, operating, or physically controlling a motor vehicle while under the

influence of alcohol and has read the person the implied-consent advisory. Minn. Stat.

§ 169A.51, subds. 1-2 (2010).

       Thompson challenges the constitutionality of the test-refusal statute as applied to

him.1 “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). To successfully

challenge a statute’s constitutionality, “the challenger bears the very heavy burden of

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

Merrill, 450 N.W.2d 318, 321 (Minn. 1990).

       A. The Fourth Amendment

       Because Thompson’s due-process argument is based on a Fourth Amendment

violation, we must first analyze whether a warrantless search would have been

constitutional under the Fourth Amendment. See Bernard, 859 N.W.2d at 766. The

Fourth Amendment protects against unreasonable searches and seizures. U.S. Const.

1
  Thompson argues in his reply brief that the test-refusal statute is unconstitutional on its
face, but his principal brief argues that the statute is unconstitutional as applied to him.
Generally, issues not raised or argued in an appellant’s principal brief cannot be revived
in a reply brief. McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review
denied (Minn. Sept. 28, 1990). As in Bernard, we construe Thompson’s argument as an
as-applied challenge to the test-refusal statute. See State v. Bernard, 859 N.W.2d 762,
765 n.2 (Minn. 2015).

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amend. IV; see Minn. Const. art. I, § 10. The collection and testing of both blood and

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

1402, 1412-13 (1989). “A warrantless search is generally unreasonable, unless it falls

into one of the recognized exceptions to the warrant requirement.” Bernard, 859 N.W.2d

at 766.   “The state bears the burden of establishing an exception to the warrant

requirement.” State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).

       Citing Bernard, the state argues that the search-incident-to-arrest exception applies

here. The search-incident-to-arrest exception allows police “to conduct a full search of

the person who has been lawfully arrested” and to search “the area within the immediate

control of the arrestee.” Bernard, 859 N.W.2d at 767-69 (quotation omitted). The

exception traditionally seeks to protect arresting officers and to preserve any evidence

that an arrestee might conceal or destroy. Arizona v. Gant, 556 U.S. 332, 338-39, 129 S.

Ct. 1710, 1716 (2009). But the supreme court has determined that these concerns apply

only to a warrantless search of the area around the arrestee, not to a search of the

arrestee’s body. Bernard, 859 N.W.2d at 768-69. In Bernard, the supreme court held

that a warrantless breath test was “constitutional under the search-incident-to-arrest

exception to the Fourth Amendment’s warrant requirement.” Id. at 772. The supreme

court declined to address whether a warrantless blood or urine test would also be

constitutional under this exception. Id. at 768 n.6.

       Thompson argues that the search-incident-to-arrest exception cannot apply here

because any search would have occurred well after his arrest at the traffic stop. But the

timing is no different than in Bernard, where the driver was arrested, taken to a police


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station, and read the implied-consent advisory before placing one phone call and refusing

the breath test. See id. at 764-65. The timing of any potential search did not affect the

supreme court’s determination that the search-incident-to-arrest exception applied. See

id. at 767.   Similarly, the timing of any potential test here does not preclude the

application of the search-incident-to-arrest exception. See State v. Riley, 303 Minn. 251,

254, 226 N.W.2d 907, 909-10 (1975) (explaining that there is no difference “between

searches of a defendant immediately incident in time to the custodial arrest and searches

made of a defendant later during his custody”).

       After the parties submitted their briefs, we released an opinion analyzing whether

the search-incident-to-arrest exception applies to warrantless blood tests. In State v.

Trahan, a driver was offered a blood or urine test, consented to a urine test, could not

produce a sample, and then refused a blood test. 870 N.W.2d 396, 399 (Minn. App.

2015), review granted (Minn. Nov. 25, 2015). The driver pleaded guilty to first-degree

test refusal regarding the blood test. Id. at 399-400. We concluded that a warrantless

blood test could not be justified under the search-incident-to-arrest exception because

“[a] blood draw is undeniably intrusive” and “[u]nlike breath, blood does not naturally

and regularly exit the body.” Id. at 401.

       Thompson was offered both a blood test and a urine test and refused both tests.

Because Trahan determined that a warrantless blood test would not have been

constitutional under the search-incident-to-arrest exception, we must only determine the

constitutionality of a warrantless urine test. See id. at 402 n.3 (rejecting consideration of

this issue because the driver’s guilty plea was based on his blood test refusal only).


                                              6
       We conclude that, as with a warrantless blood test, a warrantless urine test cannot

be justified under the search-incident-to-arrest exception. “There are few activities in our

society more personal or private than the passing of urine.” Skinner, 489 U.S. at 617, 109

S. Ct. at 1413 (quotation omitted). Because a driver must produce a urine sample in front

of an officer, a urine test is unquestionably more intrusive than a breath test.        See

Bernard, 859 N.W.2d at 768 n.6 (explaining that a breath test is less invasive than a

blood or urine test). A urine test “intrudes upon expectations of privacy that society has

long recognized as reasonable.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413.

       At oral argument, the state cited three cases discussed in Bernard to support its

argument that a warrantless urine test would be constitutional under the search-incident-

to-arrest exception.    In State v. Emerson, medical professionals took X-rays and

photographs of an arrestee and performed a medical examination. 266 Minn. 217, 218-

19, 123 N.W.2d 382, 384 (1963). The supreme court determined that these actions did

not violate the arrestee’s due-process rights. Id. at 221, 123 N.W.2d at 385. In Maryland

v. King, the United States Supreme Court upheld a warrantless buccal swab of an

arrestee’s cheek for DNA by jail officials, comparing it to fingerprinting and

photographing an arrestee.     133 S. Ct. 1958, 1965, 1980 (2013).        These cases are

distinguishable by the much more invasive nature of a urine test. See Skinner, 489 U.S.

at 617, 109 S. Ct. at 1413 (explaining that the passing of urine is generally private and

that “its performance in public is generally prohibited by law as well as social custom”

(quotation omitted)).




                                             7
       The state also cited State v. Riley, in which the supreme court determined that the

search-incident-to-arrest exception justified a warrantless visual inspection of an

arrestee’s penis in a prison cell. 303 Minn. 251, 253-55, 226 N.W.2d 907, 909-10

(1975). But Riley is also distinguishable. In Riley, the officer conducted a brief visual

inspection after the victim told police that “her assailant had unusual markings on the left

side of his penis.” Id. at 253, 266 N.W.2d at 908-09. In contrast to the brief nature of

this inspection, producing a urine sample can take a long time due to the anxiety and

stress of the situation and a person can remain exposed to the officer for a considerable

length of time. See State, Dep’t of Highways v. Lauseng, 289 Minn. 344, 345 n.1, 183

N.W.2d 926, 926-27 n.1 (1971) (stating that an arrestee may be unable to produce urine

due to “the emotional disturbance created by arrest or accident” (quotation omitted));

State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010) (commenting that an arrestee

was unable to produce a urine sample after several glasses of water and three

opportunities to do so in more than one hour), review denied (Minn. Mar. 15, 2011).

       Moreover, the visual inspection in Riley was performed for the limited purpose of

identifying whether the suspect had the “unusual markings” identified by the victim. See

303 Minn. at 253, 266 N.W.2d at 908-09. The supreme court explained that there was

both “overwhelming independent justification” for the search and “ample probable

cause” for the arrest. Id. at 255, 266 N.W.2d at 910. Unlike the identification rationale

in Riley, a urine sample is used to collect evidence against the arrestee. See Minn. Stat.

§ 169A.45, subd. 1 (2010) (stating that the results of a blood, breath, or urine test may be

admitted in a prosecution for driving while impaired). In addition, a urine test “can


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reveal a host of private medical facts,” including whether someone is “epileptic,

pregnant, or diabetic.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413. Although officers

do not analyze an arrestee’s urine to learn sensitive medical information, we cannot

ignore the potentially broad scope of a urine test. See Bernard, 859 N.W.2d at 771 n.8

(stating that a breath test reveals only “the level of alcohol in the arrestee’s

bloodstream”).

       We acknowledge that a urine test is less intrusive than a blood draw, which

requires inserting a needle into the arrestee’s skin. See Trahan, 870 N.W.2d at 401. But

a urine test is far more intrusive than a breath test and other searches that have been

upheld under the search-incident-to-arrest exception. See Bernard, 859 N.W.2d at 772

(breath); State v. Bonner, 275 Minn. 280, 287, 146 N.W.2d 770, 775 (1966) (photographs

and fingerprints); Emerson, 266 Minn. at 221, 123 N.W.2d at 385 (photographs, X-rays,

and medical examination); see also King, 133 S. Ct. at 1980 (buccal swab of cheek for

identification under reasonableness-in-the-circumstances standard).       In addition, our

legislature treats both blood and urine tests differently than breath tests. See Minn. Stat.

§ 169A.51, subd. 3 (2010) (requiring an officer to offer an alternative test before a driver

can be charged with refusing a blood or urine test but not a breath test). Because a

warrantless search of Thompson’s urine would invade one of the most private of human

activities, see Skinner, 489 U.S. at 617, 109 S. Ct. at 1413, it would not have been

constitutional under the search-incident-to-arrest exception to the warrant requirement,

see Trahan, 870 N.W.2d at 402.




                                             9
       B. Substantive Due Process

       Having concluded that no exception to the warrant requirement would have

justified a warrantless search of Thompson’s blood or urine, we next consider

Thompson’s substantive due-process argument. See Trahan, 870 N.W.2d at 403. The

Due Process Clauses of the United States and Minnesota Constitutions prohibit arbitrary

and wrongful government actions, “regardless of the fairness of the procedures used to

implement them.” Bernard, 859 N.W.2d at 773 (quotation omitted); see U.S. Const.

amend. XIV, § 1; Minn. Const. art. I, § 7.           If the challenged statute implicates a

fundamental right, it is subject to strict-scrutiny review. See In re Welfare of Child of

R.D.L., 853 N.W.2d 127, 133 (Minn. 2014) (applying strict scrutiny because the statute

implicated a fundamental right, the right to parent). But if the statute does not implicate a

fundamental right, it is subject to rational-basis review. Bernard, 859 N.W.2d at 773.

       “Every citizen has a fundamental right to be free from unreasonable searches.”

Trahan, 870 N.W.2d at 403. In Trahan, we determined that the driver’s fundamental

right to be free from unreasonable searches was implicated because a warrantless blood

test would have been unconstitutional. Id. at 404. As in Trahan, because a warrantless

search of Thompson’s blood or urine would have been unconstitutional, Thompson’s

fundamental right to be free from unreasonable searches is implicated. See id.

       We therefore apply strict-scrutiny review to assess the constitutionality of the test-

refusal statute. See R.D.L., 853 N.W.2d at 133; Trahan, 870 N.W.2d at 404. “Once a

statute is subject to strict scrutiny, it is not entitled to the usual presumption of validity.”




                                              10
R.D.L., 853 N.W.2d at 133 (quotation omitted). The state must show that the statute is

“narrowly tailored to serve a compelling government interest.” Id.

       As noted in Bernard and Trahan, the state has a compelling interest in keeping

impaired drivers off its roads. See Bernard, 859 N.W.2d at 773; Trahan, 870 N.W.2d at

404. But in Trahan, we determined that criminalizing the refusal of a warrantless blood

test was not narrowly tailored because the state had “other viable options to address

drunk driving,” including (1) offering a breath test and charging a driver with refusing

that test; (2) prosecuting the driver without measuring the alcohol concentration; and

(3) securing a search warrant. 870 N.W.2d at 404; see Missouri v. McNeely, 133 S. Ct.

1552, 1562 (2013) (suggesting that, today, search warrants are often easy to obtain via

telephone or electronic communication).           Because these alternatives are similarly

available in the context of a warrantless urine test, we conclude that the test-refusal

statute is not narrowly tailored to serve the state’s compelling interest in keeping its roads

safe. See Trahan, 870 N.W.2d at 404. The test-refusal statute therefore fails strict

scrutiny as applied to Thompson, and Thompson’s right to substantive due process under

the United States and Minnesota Constitutions was violated. See id.

       The state suggests that we should nevertheless apply the good-faith exception to

the exclusionary rule to affirm Thompson’s conviction. The supreme court recently

adopted the good-faith exception in the narrow situation where “law enforcement acts in

objectively reasonable reliance on binding appellate precedent.” State v. Lindquist, 869

N.W.2d 863, 876 (Minn. 2015).          In Trahan, we declined to apply the good-faith

exception to affirm the driver’s conviction for refusing a blood test, in part because the


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exception applies only to Fourth Amendment violations and no unconstitutional search

actually occurred. See 870 N.W.2d at 405; see also Lindquist, 869 N.W.2d at 876.

Accordingly, we also decline to apply the good-faith exception to affirm Thompson’s

conviction for refusing blood and urine tests.

       Finally, because we reverse Thompson’s conviction on due-process grounds, we

need not address Thompson’s other arguments regarding the constitutionality of the test-

refusal statute.

                                     DECISION

       The test-refusal statute violates appellant’s right to substantive due process under

the United States and Minnesota Constitutions by criminalizing his refusal to submit to a

warrantless blood or urine test. We therefore reverse appellant’s conviction.

       Reversed.




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