                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1813

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                   David Ray Bennett,
                                       Appellant.

                                Filed July 27, 2015
                                     Affirmed
                                  Johnson, Judge
                      Concurring specially, Cleary, Chief Judge

                              Ramsey County District Court
                               File No. 62SU-CR-13-3597

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

Thomas R. Hughes, Hughes & Costello, St. Paul, 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 Ross, Presiding Judge; Cleary, Chief Judge; and

Johnson, Judge.

                                    SYLLABUS

       Minnesota’s test-refusal statute does not violate the unconstitutional-conditions

doctrine by imposing a criminal penalty on a person who has been arrested for driving

while impaired and has refused to submit to a breath test.
                                       OPINION

JOHNSON, Judge

          David Ray Bennett was arrested on suspicion of driving while impaired and

refused to submit to a breath test. After a stipulated-evidence court trial, the district court

found Bennett guilty of third-degree refusal to submit to chemical testing, in violation of

Minnesota Statutes section 169A.20, subdivision 2. On appeal, Bennett argues that the

statute that criminalizes test-refusal violates the unconstitutional-conditions doctrine. We

affirm.

                                           FACTS

          During the afternoon of September 5, 2013, Bennett was involved in a two-vehicle

collision when he rear-ended another vehicle in stop-and-go traffic on interstate highway

35W in the city of New Brighton. When State Trooper Zachary Hill arrived at the scene,

he found Bennett lying across the front seat of his vehicle “in a hyper relaxed state.”

Bennett had difficulty finding his driver’s license, his speech was heavily slurred, he had

bloodshot and watery eyes, he smelled of alcohol, and he had difficulty standing.

Trooper Hill administered some road-side field sobriety tests while Bennett was seated,

and Bennett failed those tests. Trooper Hill believed that it would be unsafe to administer

field sobriety tests that would require Bennett to stand because of his unsteadiness. A

preliminary breath test indicated that Bennett’s alcohol concentration was .152. Trooper

Hill arrested Bennett, transported him to the Ramsey County jail, read him the implied-

consent advisory, and requested that he take a breath test. Bennett refused.




                                              2
       The state charged Bennett with one count of third-degree refusal to submit to

chemical testing, in violation of Minn. Stat. § 169A.20, subd. 2 (2012), and one count of

fourth-degree driving while impaired (DWI), in violation of Minn. Stat. § 169A.20, subd.

1(1) (2012). In November 2013, Bennett moved to suppress evidence and to dismiss the

charge of refusal to submit to chemical testing. In support of his motion to dismiss,

Bennett argued that the test-refusal statute is unconstitutional. In July 2014, the district

court issued an 18-page order in which it denied Bennett’s motion to dismiss.

       In September 2014, the parties agreed to a stipulated-evidence court trial. See

Minn. R. Crim. P. 26.01, subd. 4. The district court found Bennett guilty of third-degree

test refusal and dismissed the charge of fourth-degree DWI. The district court imposed a

sentence of 91 days in the workhouse but stayed execution of the sentence, placed

Bennett on probation for two years, and ordered a $300 fine. Bennett appeals.

                                           ISSUE

       Does Minnesota’s test-refusal statute violate the unconstitutional-conditions

doctrine by imposing a criminal penalty on a person who has been arrested for DWI and

has refused to submit to a breath test?

                                          ANALYSIS

       Bennett argues that the district court erred by denying his motion to dismiss the

charge of refusal to submit to chemical testing. More specifically, Bennett argues that the

test-refusal statute is unconstitutional because it violates the unconstitutional-conditions

doctrine.




                                             3
       The constitutionality of a statute is a question of law, to which this court applies a

de novo standard of review. State v. Ness, 834 N.W.2d 177, 181 (Minn. 2013). We

presume that Minnesota statutes are constitutional and will declare a statute

unconstitutional “with extreme caution and only when absolutely necessary.” Id. at 182

(quotation omitted). The party challenging a statute on constitutional grounds must meet

“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).

       In Minnesota, any person “who drives, operates, or is in physical control of a

motor vehicle within this state or on any boundary water of this state 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) (2012). A law-enforcement

officer may impose this duty on a person if the officer has probable cause to believe that

the person has committed the offense of DWI and the person has been arrested for DWI.

Minn. Stat. § 169A.51, subd. 1(b). If a person refuses to submit to chemical testing,

however, “a test must not be given.” Minn. Stat. § 169A.52, subd. 1 (2012); see also

State v. Brooks, 838 N.W.2d 563, 571 (Minn. 2013) (“If a driver refuses the test, the

police are required to honor that refusal and not perform the test.”), cert. denied, 134 S.

Ct. 1799 (2014). But there are consequences for such a refusal. One consequence is that

the commissioner of public safety will temporarily revoke the person’s driver’s license.

Minn. Stat. § 169A.52, subd. 3. Another consequence is that the state may charge the

person with the criminal offense of refusal to submit to chemical testing. Minn. Stat.

§ 169A.20, subd. 2.


                                             4
       Bennett contends that the statute criminalizing a person’s refusal to submit to

chemical testing is unconstitutional because it compels a person to relinquish Fourth

Amendment rights as a condition of maintaining a driver’s license and avoiding criminal

punishment. Bennett relies on the legal theory known as the unconstitutional-conditions

doctrine. “The unconstitutional-conditions doctrine is a creature of federal law that may,

in some situations, be invoked to protect or vindicate a constitutional right.” Stevens v.

Commissioner of Pub. Safety, 850 N.W.2d 717, 723 (Minn. App. 2014).

       In State v. Netland, the supreme court considered an argument that was essentially

the same as Bennett’s argument. 762 N.W.2d 202 (Minn. 2009), abrogated in part by

Missouri v. McNeely, 133 S. Ct. 1552 (2013), as recognized in Brooks, 838 N.W.2d at

567. The appellant in Netland invoked the unconstitutional-conditions doctrine as a

means of challenging the constitutionality of the statute that criminalizes test refusal. Id.

at 210-11. The supreme court began its analysis by summarizing the United States

Supreme Court caselaw on the unconstitutional-conditions doctrine. Id. at 211-12. The

supreme court noted that the doctrine might not apply to rights other than those protected

by the First Amendment to the United States Constitution. Id. at 211; see also Stevens,

850 N.W.2d at 724 (noting that Supreme Court has declined to apply unconstitutional-

conditions doctrine to Fourth Amendment rights). The supreme court observed that the

unconstitutional-conditions doctrine “is properly raised only when a party has

successfully pleaded the merits of the underlying unconstitutional government

infringement.” Netland, 762 N.W.2d at 211. Accordingly, the supreme court recognized

that, “in order to proceed with her claim, Netland must establish that the criminal test-


                                             5
refusal statute authorizes an unconstitutional search.” Id. at 212. The supreme court

resolved Netland’s challenge by reasoning that the “‘rapid, natural dissipation of alcohol

in the blood’” is sufficient to satisfy the “‘single-factor exigent circumstances’” exception

to the Fourth Amendment’s warrant requirement. Id. (quoting State v. Shriner, 751

N.W.2d 538, 549-50 (Minn. 2008)). The supreme court’s reliance on Shriner provided a

basis for concluding that a warrantless search of Netland’s breath would not have been an

unconstitutional search, which meant that imposing a criminal penalty for her refusal to

submit to a breath test would not violate the unconstitutional-conditions doctrine, if the

doctrine were to apply. See id. at 214.

       Bennett contends that the supreme court’s opinion in Netland no longer is good

law because Shriner was overruled by the United States Supreme Court in McNeely.

Bennett is correct insofar as the Supreme Court in McNeely held that the natural

dissipation of alcohol from a person’s bloodstream is not a per se exigency justifying a

warrantless blood test. See McNeely, 133 S. Ct. at 1560-63. Rather, the exigency

analysis is a fact-specific analysis that must consider the totality of the circumstances,

including, among other things, the natural dissipation of alcohol from a person’s

bloodstream. Id. at 1558-60. The Supreme Court in McNeely cited Shriner as a case that

had recognized the natural dissipation of alcohol from a person’s bloodstream as a per se

exigency justifying a warrantless blood test.      Id. at 1558 n.2.     Because Shriner is

inconsistent with McNeely, Netland also is inconsistent with McNeely, to the extent that

Netland depends on Shriner.




                                             6
       Even if a warrantless search cannot be justified by Shriner, the search may be

justified by another exception to the warrant requirement. In its responsive brief, the

state contends that a warrantless search of a person’s breath now is justified by the

exception for a search incident to arrest. The state cites State v. Bernard, 859 N.W.2d

762 (Minn. 2015),1 in which the supreme court recently held that the search-incident-to-

arrest exception would have justified the warrantless administration of a breath test

following a valid arrest for DWI. Id. at 767. Even though the appellant in Bernard

challenged the constitutionality of the criminal test-refusal statute with a different legal

theory (substantive due process), the holding in Bernard nonetheless is relevant to the

unconstitutional-conditions doctrine because that doctrine requires this court to determine

whether the search that Bennett refused, a breath test, would have been an

unconstitutional search. See Netland, 762 N.W.2d at 212. That is essentially the same

question that was presented in Bernard, in which the supreme court considered “whether

a warrantless search of Bernard’s breath would have been constitutional under the Fourth

Amendment.” 859 N.W.2d at 766. In short, the Bernard holding may be inserted into

the Netland analysis in lieu of the Shriner holding.




       1
        At oral argument, Bennett’s attorney argued that the state failed to preserve its
Bernard-based argument by not presenting it to the district court. But it is well-
established that the respondent on appeal in a criminal case may present to this court an
alternative reason for affirming the district court, if the alternative reason is permitted by
both the law and the factual record and would not expand the relief granted. See Minn.
R. Crim. P. 29.04, subd. 6; State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003) (applying
Minn. R. Crim. P. 29.04, subd. 6, to state’s alternative ground for affirmance). In this
case, the prerequisites of the Grunig principle are satisfied.

                                              7
       In light of Bernard, Bennett’s unconstitutional-conditions-doctrine argument is

easily resolved. The warrantless breath test that Bennett refused would not have been an

unconstitutional search because it would have been a valid search incident to a lawful

arrest. See Bernard, 859 N.W.2d at 767; Netland, 762 N.W.2d at 212. Because Bennett

cannot “establish that the criminal test-refusal statute authorizes an unconstitutional

search,” he cannot “proceed with [his] claim” that the criminal-refusal statute violates the

unconstitutional-conditions doctrine.       See Netland, 762 N.W.2d at 212.      Therefore,

Bennett’s constitutional challenge fails.

                                     DECISION

       The district court did not err by denying Bennett’s motion to dismiss the charge of

refusal to submit to chemical testing.

       Affirmed.




                                               8
CLEARY, Chief Judge (concurring specially)

       While I agree with the majority as to the result in this case, I concur specially to

emphasize the limited purview of this decision. Specifically, I believe that the search-

incident-to-arrest exception found in State v. Bernard, 859 N.W.2d 762 (Minn. 2015) is

limited to providing that a warrantless breath test is constitutional under these facts. The

Bernard court noted that other courts have refused to apply the search-incident-to-arrest

exception to warrantless blood tests and that the supreme court itself had previously

“determined that a warrantless blood sample search was unconstitutional” in a non-DWI

context.   Bernard, 859 N.W.2d at 768 n.6.          Putting aside my continuing concerns

regarding the taking of a breath sample from an individual’s body as part of a search

incident to arrest, see id. at 774 (Page and Stras, JJ., dissenting jointly) (“[T]he Supreme

Court has never implied, much less stated, that the search-incident-to-arrest exception

extends to the forcible removal of substances from within a person’s body.”), even the

majority in Bernard drew a line by expressing “no opinion as to whether a blood or urine

test of a suspected drunk driver could be justified as a search incident to arrest.” Id.

       Consequently, in a blood or urine test-refusal case, the majority could not simply

insert the Bernard holding “into the Netland analysis in lieu of the Shriner holding,” to

determine whether there is an underlying unconstitutional government infringement for

the purpose of deciding whether the test-refusal statute imposes unconstitutional

conditions on a person’s exercise of Fourth Amendment rights.        Because the test-refusal

statute penalizes the refusal of all types of chemical alcohol concentration testing, and

because no Minnesota precedent holds that warrantless blood and urine tests are justified

                                            CS-1
under the search-incident-to-arrest exception, I write separately to posit that the test-

refusal statute may well violate the unconstitutional-conditions doctrine as it pertains to

warrantless blood and urine tests.




                                          CS-2
