                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2016).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-0628

                        Victor Christopher De Los Reyes, petitioner,
                                        Respondent,

                                             vs.

                              Commissioner of Public Safety,
                                      Appellant.

                                 Filed February 13, 2017
                                        Affirmed
                                       Ross, Judge

                              Sherburne County District Court
                                  File No. 71-CV-15-904

Thomas H. Shiah, Law Office of Thomas H. Shiah, Minneapolis, Minnesota (for
respondent)

Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul,
Minnesota (for appellant)

         Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and Jesson,

Judge.

                          UNPUBLISHED OPINION

ROSS, Judge

         The state revoked Victor De Los Reyes’s driver’s license after police arrested him

for driving while impaired and he submitted to a blood test that indicated his intoxication.

The district court rescinded the license revocation, concluding that the implied-consent
advisory given to De Los Reyes was inaccurate and violated his right to due process.

Because the general advisory that “refusal to submit to testing is a crime” was inaccurate

and misleading with regard to blood testing, the advisory violated De Los Reyes’s right to

due process. We therefore affirm.

                                          FACTS

       Sherburne County Deputy Sheriff Daniel Ethen pulled Victor De Los Reyes’s car

over in July 2015 after he saw De Los Reyes drop garbage from the window. The deputy

noticed that De Los Reyes’s eyes were bloodshot and watery and that his speech was

slurred. He administered field sobriety tests and arrested De Los Reyes. He took him to the

county jail and read him the standard implied-consent advisory which, at the time, informed

De Los Reyes that Minnesota law required him to take an alcohol-concentration test, that

“[r]efusal to take a test is a crime,” and that he had the right to consult with an attorney.

De Los Reyes said he understood the advisory and did not contact an attorney.

       De Los Reyes agreed to take a breath test, but the deputy discovered that the breath-

testing machine was broken. He asked De Los Reyes to submit to a urine test instead, but

De Los Reyes tried but failed to give a sample. Deputy Ethen finally asked De Los Reyes

to submit to a blood test. De Los Reyes complied. He provided a blood sample that revealed

an alcohol concentration of 0.087.

       The Minnesota Department of Public Safety revoked De Los Reyes’s driving

privileges and De Los Reyes petitioned for an implied-consent hearing. De Los Reyes

urged the district court to rescind the revocation because the blood draw constituted a

warrantless search without valid consent and because the advisory violated his due-process


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rights by misinforming him of the criminal consequences of refusing to submit to a

warrantless blood test. The commissioner argued that revocation was proper because

De Los Reyes consented to the testing and because the search was reasonable and did not

require a warrant. The district court agreed with De Los Reyes and rescinded the

revocation.

         The commissioner appeals.

                                     DECISION

         The district court rescinded the license revocation because the implied-consent

advisory was inaccurate and misleading, violating De Los Reyes’s right to due process.

The commissioner asks us to hold that the blood testing was constitutional under the Fourth

Amendment, which the commissioner urges us to apply rather than the Due Process Clause.

Our recent decision of Johnson v. Commissioner of Public Safety forecloses the

commissioner’s urging. 887 N.W.2d 281 (Minn. App. 2016), review granted (Minn.

Jan. 25, 2017). In Johnson, we held that the Due Process Clause rather than the Fourth

Amendment provides the proper framework to address a driver’s challenge to an implied-

consent advisory on due-process grounds. Id. at 288. We must follow that precedent. See

State v. M.L.A., 735 N.W.2d 763, 767 (Minn. App. 2010), review denied (Minn. Sept. 21,

2010).

         We therefore consider only whether the implied-consent advisory given here

violated De Los Reyes’s due-process rights. The Johnson court answered that question

also. Addressing the issue in the context of a urine test, Johnson concluded as follows:




                                             3
              Because a criminal test-refusal charge would be
              unconstitutional, the implied-consent advisory inaccurately
              informed Johnson that refusal to take a urine test is a crime.
              When the state provided that inaccurate advisory, it
              misinformed Johnson regarding the penalties he would face if
              he refused to submit to testing, in violation of his right to due
              process, as established in McDonnell [v. Commissioner of
              Public Safety, 473 N.W.2d 848 (Minn. 1991)].

887 N.W.2d at 294.

       The commissioner argues that De Los Reyes consented to testing. The district court

rejected consent as a valid exception to the warrant requirement and said, “[I]f a driver

consents to the test he has not refused the test and cannot be prosecuted for test refusal.”

We agree because De Los Reyes’s consent, the only exception the commissioner offers to

the warrant requirement, came after the deputy read the advisory to him. At that time, the

deputy had no warrant or valid exception to the warrant requirement for blood testing, and

the implied-consent advisory was consequently misleading as to criminal penalties for

refusing that test. The commissioner implies that De Los Reyes’s breath-testing consent

carries over as consent to the eventual blood test. We reject this argument because blood

testing and breath testing entail different degrees of intrusion. See Birchfield v. North

Dakota, 136 S. Ct. 2160, 2176–78 (2016). Consent to a minimally intrusive breath test does

not transform into consent to a substantially intrusive blood test.

       Applying Johnson here, we hold that the district court correctly reasoned that, under

the then-binding precedent of State v. Bernard, 859 N.W.2d 762 (Minn. 2015), aff’d, 136

S. Ct. 2160 (2016), State v. Trahan, 870 N.W.2d 396 (Minn. App. 2015), aff’d, 886 N.W.2d

216 (Minn. 2016), and State v. Thompson, 873 N.W.2d 873 (Minn. App. 2015), aff’d, 886



                                              4
N.W.2d 224 (Minn. 2016), the advisory read to De Los Reyes inaccurately assumed the

state’s authority to prosecute him for refusing to submit to a blood test. See also Birchfield,

136 S. Ct. at 2185 (holding that breath testing is a categorically valid search incident to

arrest under the Fourth Amendment but blood testing is not); State v. Thompson, 886

N.W.2d 224, 233 (Minn. 2016) (holding that urine testing is not a valid search incident to

arrest under the Fourth Amendment); State v. Trahan, 886 N.W.2d 216, 224 (Minn. 2016)

(holding that the Fourth Amendment does not permit prosecution for refusal to submit to a

blood test absent a warrant or valid exception to the warrant requirement).

       Because De Los Reyes could not have been criminally penalized for refusing to

submit to a urine or blood test, the implied-consent advisory inaccurately advised him that

refusing to submit to a blood test was a crime. Under Johnson, we apply a due-process

analysis exclusively and conclude that the implied-consent advisory violated De Los

Reyes’s rights. We hold that the district court properly rescinded the license revocation.

       Affirmed.




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