                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1855

                              Rita Ann Stevens, petitioner,
                                      Appellant,

                                           vs.

                             Commissioner of Public Safety,
                                    Respondent.

                                 Filed July 14, 2014
                                      Affirmed
                                  Johnson, Judge
                         Concurring specially, Chutich, Judge

                             Hennepin County District Court
                               File No. 27-CV-12-25002


Shane C. Perry, Perry & Perry, PLLP, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, James E. Haase, Assistant Attorney General, St. Paul,
Minnesota (for respondent)


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

Chutich, Judge.

                                    SYLLABUS

       Minnesota’s implied-consent statute does not violate the unconstitutional-

conditions doctrine by authorizing the commissioner of public safety to revoke the

driver’s license of a person who has been arrested for driving while impaired and has

refused to submit to chemical testing.
                                         OPINION

JOHNSON, Judge

       The commissioner of public safety revoked Rita Ann Stevens’s driver’s license

after she was arrested for driving while impaired and refused to submit to chemical

testing. On judicial review, the district court sustained the commissioner’s revocation.

On appeal, Stevens makes two arguments.            First, she argues that the evidence is

insufficient to prove that she refused to submit to chemical testing. Second, she argues

that   the   implied-consent   statute   is   unconstitutional   because   it   violates   the

unconstitutional-conditions doctrine. We affirm.

                                          FACTS

       At noon on November 19, 2012, a police officer was dispatched to a possible hit-

and-run accident in a parking lot in the city of Minnetonka. The officer identified

Stevens as the driver of a Jeep that had hit a parked car multiple times. Because Stevens

appeared to be intoxicated, the officer asked her to perform field sobriety tests, which she

failed. The officer also asked Stevens to take a preliminary breath test (PBT), but she did

not cooperate. The officer arrested Stevens on suspicion of driving while impaired

(DWI) and brought her to the police station.

       At 12:47 p.m., the officer read Stevens the implied-consent advisory. Stevens

indicated that she did not wish to speak with an attorney. At 1:07 p.m., Stevens agreed to

take a breath test, but the breath-test equipment malfunctioned. The officer then re-read

the implied-consent advisory and offered Stevens the option of taking either a blood test

or a urine test. Stevens expressed verbal agreement to take a urine test, but Stevens did


                                               2
not provide a urine sample after the female officer who administered the urine test gave

her three opportunities to do so. The female officer told the arresting officer that she

believed that Stevens was not making a good-faith effort to provide a urine sample. The

arresting officer informed Stevens that he was deeming her to have refused to submit to

chemical testing. The arresting officer noted Stevens’s refusal on the implied-consent

form, which he signed at 2:52 p.m.

       The commissioner revoked Stevens’s driver’s license. In December 2012, Stevens

petitioned for judicial review of the commissioner’s revocation of her license. See Minn.

Stat. § 169A.53, subd. 2 (2012). In June 2013, Stevens amended her petition, and the

district court conducted an implied-consent hearing. Stevens was represented by counsel

and was present at the hearing. At the outset of the hearing, Stevens’s attorney identified

two issues that are relevant to this appeal: whether Stevens refused to submit to chemical

testing and “McNeely issues.”      The commissioner called one witness, the arresting

officer, and offered an exhibit consisting of the implied-consent peace-officer’s

certificate and the implied-consent advisory. Stevens did not testify.

       In August 2013, the district court issued a 13-page order and memorandum in

which it sustained the commissioner’s order of revocation. The district court found that

Stevens’s conduct properly was deemed to be a refusal to submit to chemical testing.

The district court rejected Stevens’s McNeely-based argument by concluding that the

implied-consent statute satisfies the reasonableness requirement of the Fourth

Amendment and, thus, is not unconstitutional. Stevens appeals.




                                             3
                                          ISSUES

       I.     Is the evidence in the record sufficient to allow the district court to find that

Stevens refused to submit to chemical testing?

       II.    Does Minnesota’s implied-consent statute violate the unconstitutional-

conditions doctrine by authorizing the commissioner of public safety to revoke the

driver’s license of a person who was arrested for DWI and refused to submit to chemical

testing?

                                        ANALYSIS

                                              I.

       Stevens first argues that the evidence in the record of the implied-consent hearing

is insufficient to allow the district court to find that she refused to submit to chemical

testing.

       A law-enforcement officer may request that a driver submit to a chemical test of

the person’s blood, breath, or urine, if the officer has “probable cause to believe the

person was driving, operating, or in physical control of a motor vehicle” while impaired.

Minn. Stat. § 169A.51, subd. 1(b) (2012). If a driver refuses to permit a test, “a test must

not be given,” Minn. Stat. § 169A.52, subd. 1 (2012), but the commissioner of public

safety shall revoke the person’s driver’s license for one year or more, id., subd. 3(a). If a

driver expresses verbal agreement to submit to chemical testing but does not provide an

adequate sample, his or her conduct may be deemed a refusal to submit to chemical

testing. Busch v. State, Comm’r of Pub. Safety, 614 N.W.2d 256, 259-60 (Minn. App.

2000); see also State v. Ferrier, 792 N.W.2d 98, 100-02 (Minn. App. 2010) (affirming


                                              4
conviction of refusal to submit to chemical testing), review denied (Minn. Mar. 15, 2011).

To determine whether a driver’s failure to provide a sample constitutes refusal, a court

should look to the driver’s words and actions. Gabrick v. State, Comm’r of Pub. Safety,

393 N.W.2d 23, 25 (Minn. App. 1986). The question whether a driver has refused to

submit to chemical testing is a question of fact, to which this court applies a clear-error

standard of review. Lynch v. State, Comm’r of Pub. Safety, 498 N.W.2d 37, 38-39 (Minn.

App. 1993).

       Stevens does not dispute that she did not provide a urine sample, but she contends

that the evidentiary record is lacking because it does not reflect the amount of time that

the arresting officer gave her to provide a sample. Stevens asserts that, “to meet its

burden of proof, Respondent was obligated to establish the amount of time Appellant was

given to produce a urine sample before [the officer] deemed her to have refused.” She

cites no authority for the premise that a finding of refusal-by-conduct must include a

finding concerning the amount of time allowed for providing a test sample. The district

court rejected Stevens’s argument by citing State, Dep’t of Highways v. Lauseng, 289

Minn. 344, 183 N.W.2d 926 (1971), in which the supreme court stated that a driver’s

“election of one of the alternative chemical tests . . . presupposes the driver’s ability to

supply, within a reasonable time, a sample essential to that test,” and further stated that an

officer need not “await the driver’s convenience of a different time or place.” Id. at 345,

183 N.W.2d at 927. The district court correctly reasoned that neither the implied-consent

statute nor the caselaw requires the commissioner to prove that a driver had any particular

amount of time in which to provide a sample.


                                              5
       Even if we construe Stevens’s brief broadly to argue that she did not refuse

because she was not given a reasonable amount of time to produce a urine sample, her

argument still would fail. The district court found that the arresting officer read Stevens

the implied-consent advisory at 12:47 p.m., that she agreed to take a urine test shortly

after 1:07 p.m., and that the officer deemed her to have refused testing and completed the

implied-consent form at 2:52 p.m. These findings allow an inference that Stevens had a

reasonable amount of time to provide a urine sample such that the absence of a urine

sample was intentional. Moreover, the record includes the female officer’s observation

that Stevens was not making a good-faith effort to provide a urine sample. The district

court found that Stevens “was given three opportunities to provide a urine sample, but did

not do so.”

       In sum, the evidence is sufficient to support the district court’s finding that

Stevens refused to submit to chemical testing. Thus, the district court’s finding of refusal

is not clearly erroneous.

                                            II.

       Stevens also argues that the district court erred by rejecting her argument that

Minnesota’s implied-consent statute is unconstitutional. 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


                                             6
beyond a reasonable doubt that the statute is unconstitutional.” State v. Johnson, 813

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

       In the implied-consent statute, the Minnesota legislature declared that 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). A law-enforcement officer may impose this duty on a person if

the officer has probable cause that the person has committed the offense of DWI and if

the person has been arrested for DWI. Minn. Stat. § 169A.51, subd. 1(b). But if a person

refuses to submit to chemical testing, “a test must not be given.” Minn. Stat. § 169A.52,

subd. 1; 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). A consequence of such a refusal, however, is that the

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

Minn. Stat. § 169A.52, subd. 3. The authorization to revoke a driver’s license for test

refusal was enacted in 1961 and has remained in the statutes ever since. See 1961 Minn.

Laws ch. 454, § 4, at 715 (codified at Minn. Stat. § 169.121, subd. 4 (1962)).1


       1
        In addition, there are criminal penalties for refusing to submit to chemical testing.
In 1989, the legislature made test refusal a gross misdemeanor for certain repeat
offenders. See 1989 Minn. Laws ch. 290, art. 10, § 3, at 1659 (codified at Minn. Stat.
§ 169.121, subd. 3 (1990)). In 1992, the legislature made test refusal a misdemeanor for
all drivers. See 1992 Minn. Laws ch. 570, art. 1, § 7, at 1948 (codified at Minn. Stat.
§ 169.121, subd. 3 (1992)). In 2003, the legislature made test refusal a gross
misdemeanor for all drivers. See 2003 Minn. Laws. 1st Spec. Sess. ch. 2, art. 9, § 5, at
1446 (codified at Minn. Stat. § 169A.26 (Supp. 2003)).

                                             7
       Stevens contends that Minnesota’s implied-consent statute violates the

unconstitutional-conditions doctrine because it imposes on a driver a choice between, on

the one hand, relinquishing the Fourth Amendment right to be free from an unreasonable

search and, on the other hand, relinquishing a license to drive a motor vehicle. The

unconstitutional-conditions doctrine is a creature of federal law that may, in some

situations, be invoked to protect or vindicate a constitutional right. See Frost v. Railroad

Comm’n of Cal., 271 U.S. 583, 592-93, 46 S. Ct. 605, 607 (1926). The Minnesota

Supreme Court has explained the doctrine in this way:

              [A]s a general rule, the state, having power to deny a
              privilege altogether, may grant it upon such conditions as it
              sees fit to impose. But the power of the state in that respect is
              not unlimited, and one of the limitations is that it may not
              impose conditions which require the relinquishment of
              constitutional rights. If the state may compel the surrender of
              one constitutional right as a condition of its favor, it may, in
              like manner, compel a surrender of all. It is inconceivable
              that guaranties embedded in the Constitution of the United
              States may thus be manipulated out of existence.

State v. Netland, 762 N.W.2d 202, 211 (Minn. 2009) (alteration in original) (quoting

Frost, 271 U.S. at 593-94, 46 S. Ct at 607), abrogated in part by Missouri v. McNeely,

133 S. Ct. 1552 (2013), as recognized in Brooks, 838 N.W.2d at 567. In essence, “the

unconstitutional conditions doctrine reflects a limit on the state’s ability to coerce waiver

of a constitutional right where the state may not impose on that right directly.” Id. The

supreme court in Netland also stated, “‘Although it has a long history, . . . the

“unconstitutional conditions” doctrine has for just as long suffered from notoriously

inconsistent application; it has never been an overarching principle of constitutional law



                                             8
that operates with equal force regardless of the nature of the rights and powers in

question.’” Id. (alteration in original) (quoting Dolan v. City of Tigard, 512 U.S. 374,

407 n.12, 114 S. Ct. 2309, 2328 n.12 (1994)). Despite uncertainty about the applicability

of the doctrine, the supreme court resolved the Netland case by stating that, if the

unconstitutional-conditions doctrine applies, it requires, at a minimum, that the driver

“establish that the criminal test-refusal statute authorizes an unconstitutional search.” See

id. at 212.

         We note that Stevens is asserting an unconstitutional-conditions argument in the

context of a civil action in which she seeks to rescind the temporary revocation of her

driver’s license. Because this is a civil action, we need not decide whether Stevens has

been subjected to an unconstitutional condition on her Fourth Amendment rights by the

criminal consequences of a refusal to submit to chemical testing.

         Stevens’s unconstitutional-conditions argument fails for four reasons, as described

below.

                                             A.

         First, Stevens’s unconstitutional-conditions argument fails because there is no

authority for the proposition that the unconstitutional-conditions doctrine applies to a

constitutional challenge based on the Fourth Amendment. The Minnesota Supreme Court

has not so held. In Netland, the supreme court specifically refrained from holding that

the doctrine applies to a Fourth Amendment challenge to the implied-consent statute. Id.

The supreme court noted that the unconstitutional-conditions doctrine has been applied

“in the context of privileges conditioned on infringement of individual liberty rights, such


                                              9
as First Amendment freedoms of speech, religious expression, and association” but that

“[t]he application of this doctrine to other constitutional rights is less clear.” Id. at 211.

The supreme court resolved Netland’s unconstitutional-conditions argument by reasoning

that, if the doctrine were to apply, Netland would not be able to satisfy a required element

of the doctrine, that the statute authorizes an unconstitutional search. See id. at 212-14.

The supreme court did not address the unconstitutional-conditions doctrine four years

later in Brooks, which focused on the case-specific, fact-bound question whether, in light

of the totality of the circumstances, the appellant’s consent was valid or was coerced. See

838 N.W.2d 567-73. Because the supreme court did not hold in either Netland or Brooks

that the unconstitutional-conditions doctrine applies to a Fourth Amendment challenge to

Minnesota’s implied-consent statute, Stevens cannot establish that the doctrine applies in

this case.2

       In addition, the United States Supreme Court has not held that the

unconstitutional-conditions doctrine may be invoked to protect Fourth Amendment

rights. As our supreme court has observed, the United States Supreme Court has applied

the doctrine only in connection with other constitutional rights. See Netland, 762 N.W.2d

at 211. In one case involving a Fourth Amendment challenge, the Court briefly alluded

to the unconstitutional-conditions doctrine but nonetheless declined to apply the doctrine.

       2
        We acknowledge that this court applied the unconstitutional-conditions doctrine
to a Fourth Amendment challenge in Netland. See State v. Netland, 742 N.W.2d 207,
213-14 (Minn. App. 2007), aff’d in part, rev’d in part, 762 N.W.2d 202 (Minn. 2009).
But on further review, the supreme court refrained from adopting the unconstitutional-
conditions doctrine. Netland, 762 N.W.2d at 212. We of course must look to the
supreme court’s interpretation and application of the unconstitutional-conditions doctrine
as the governing law on the issue.

                                             10
See United States v. Knights, 534 U.S. 112, 118 & n.4, 122 S. Ct. 587, 591 & n.4 (2001)

(upholding condition of probation that required probationer to consent to warrantless

searches of home).        Similarly, the Supreme Court declined to address the

unconstitutional-conditions doctrine in a case concerning the Fifth Amendment right

against self-incrimination, even though the court of appeals had rested its decision on that

concept and the respondent had urged the Supreme Court to rely on the doctrine. See

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 285-88, 118 S. Ct. 1244, 1252-53

(1998) (upholding procedure that allowed clemency applicant to request interview with

parole board). These cases indicate that the Supreme Court is disinclined to adopt the

unconstitutional-conditions doctrine in the context of the Fourth Amendment.

                                            B.

       Second, even if the unconstitutional-conditions doctrine were to apply, we

nonetheless would conclude that Stevens’s unconstitutional-conditions argument fails

because she would not be able to satisfy the requirement that the implied-consent statute

“authorizes an unconstitutional search.” See Netland, 762 N.W.2d at 212.

       Stevens cannot show that the implied-consent statute authorizes a search that

violates the Fourth Amendment because the implied-consent statute, by itself, does not

authorize any search given the facts of this case. Contrary to its common title, the

implied-consent statute does not authorize a warrantless search of a person’s blood,

breath, or urine by implying, as a matter of law, that every licensed driver has consented

to such a search. The supreme court made this clear in Brooks by stating, “we do not

hold that Brooks consented because Minnesota law provides that anybody who drives in


                                            11
Minnesota ‘consents . . . to a chemical test.’” 838 N.W.2d at 572 (alteration in original)

(quoting Minn. Stat. § 169A.51, subd. 1(a)). In most situations,3 the plain language of the

statute authorizes a search of a driver’s blood, breath, or urine only if the driver gives

express, valid consent to such a search. See Minn. Stat. §§ 169A.51-.52. But if a driver

refuses to consent to chemical testing under the implied-consent statute, the law-

enforcement officer must refrain from proceeding with a test. See Minn. Stat. § 169A.52,

subd. 1; Brooks, 838 N.W.2d at 569. Express consent is a recognized exception to the

warrant requirement. Brooks, 838 N.W.2d at 568. Thus, the implied-consent statute does

not authorize a search of a driver such as Stevens in a manner that is inconsistent with the

Fourth Amendment; to the contrary, the implied-consent statute respects the requirements

of the Fourth Amendment.

                                            C.

       Third, even if (a) the unconstitutional-conditions doctrine were to apply, and

(b) the implied-consent statute were to authorize a search, we nonetheless would

conclude that Stevens would not be able to establish that the implied-consent statute

authorizes a search that violates the Fourth Amendment. See Netland, 762 N.W.2d at

212.

       3
        The implied-consent statute authorizes a search of a driver’s blood, breath, or
urine without the driver’s express consent in two circumstances. The first is when there
is probable cause to believe that the driver has committed the offenses of criminal
vehicular homicide or criminal vehicular operation. Minn. Stat. § 169A.52, subd. 1; see
also Minn. Stat. § 609.21, subd. 1 (2012); Brooks, 838 N.W.2d at 569 n.3. In that
situation, an officer may require a test “despite the person’s refusal.” Minn. Stat.
§ 169A.52, subd. 1; see also Brooks, 838 N.W.2d at 569 n.3. The second circumstance is
when the driver is unconscious or otherwise incapable of consenting to chemical testing
or refusing to consent. Minn. Stat. § 169A.51, subd. 6.

                                            12
       The commissioner contends that Stevens’s constitutional challenge fails because

the implied-consent statute is a reasonable means of promoting the state’s interest in

enforcing its DWI laws. The Fourth Amendment protects “[t]he right of the people to be

secure in their persons . . . against unreasonable searches and seizures.” U.S. Const.

amend. IV. As a general rule, a search of a person requires a search warrant. See Terry

v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879 (1968). But a warrantless search of a

person is valid under the Fourth Amendment if the search is justified by a recognized

exception to the warrant requirement, such as consent or exigent circumstances. See

McNeely, 133 S. Ct. at 1558.

       Notwithstanding the above-stated general rule, the United States Supreme Court

sometimes analyzes the validity of a warrantless search simply by asking whether the

search was reasonable. “As the text of the Fourth Amendment indicates, the ultimate

measure of the constitutionality of a governmental search is ‘reasonableness.’” Vernonia

Sch. Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S. Ct. 2386, 2390 (1995). A general

reasonableness analysis may be appropriate “when special needs, beyond the normal need

for law enforcement, make the warrant and probable-cause requirement impracticable.”

Id. at 653, 115 S. Ct. at 2391 (quotation omitted). Whether a particular search satisfies

the reasonableness standard “is judged by balancing its intrusion on the individual’s

Fourth Amendment interests against its promotion of legitimate governmental interests.”

Id. at 652-53, 115 S. Ct. at 2390 (quotation omitted).

       The Supreme Court opinion in Skinner v. Railway Labor Execs.’ Ass’n, 489 U.S.

602, 109 S. Ct. 1402 (1989), is helpful in resolving this issue. In that case, the Court


                                            13
considered federal regulations that required railroads to administer suspicionless drug and

alcohol tests to any railroad employee who was involved in a major accident. Id. at 609-

10, 109 S. Ct. at 1409. The regulations provided, among other things, that employees

who refused to provide blood or urine samples may be disqualified from work for nine

months. Id. at 610-11, 109 S. Ct. at 1409. The question before the Court was whether

the warrantless, suspicionless searches conducted pursuant to the regulations violated the

railroad employees’ Fourth Amendment rights. Id. at 606, 109 S. Ct. at 1407. The Court

invoked the special-needs exception to the warrant requirement and balanced the

intrusion on the employees’ privacy interests against the government’s need to conduct

the searches. Id. at 620, 109 S. Ct. at 1415. The Court reasoned that “the expectations of

privacy of covered employees are diminished by reason of their participation in an

industry that is regulated pervasively,” id. at 627, 109 S. Ct. at 1418, and that the tests do

not constitute “an unduly extensive imposition on an individual’s privacy and bodily

integrity,” id. at 625, 109 S. Ct. at 1417 (quotation omitted). The Court also reasoned

that the government’s need to conduct the searches was great because it has a compelling

interest in “ensuring the safety of the traveling public and of the employees themselves,”

id. at 621, 109 S. Ct. 1415, and that this goal is dependent on the sobriety of railroad

employees, id. at 627, 109 S. Ct. 1418-19. The Court noted evidence that on-the-job

intoxication was a significant problem in the railroad industry, that a significant number

of railway accidents involved drugs or alcohol, and that a significant number of accidents

resulted in fatalities, non-fatal injuries, and millions of dollars in property damage. Id. at

606-07, 109 S. Ct. 1407-08. Ultimately, the Court concluded that the government’s


                                             14
compelling interests outweighed the individuals’ privacy interests such that the

regulations were reasonable and, thus, constitutional. Id. at 633, 109 S. Ct. at 1421-22.

       For similar reasons, the implied-consent statute also satisfies the general

reasonableness requirement of the Fourth Amendment. The first factor we must consider

is the “promotion of legitimate governmental interests.” See Vernonia Sch. Dist., 515

U.S. at 653, 115 S. Ct. at 2390 (quotation omitted). These interests are especially strong

in this case. For decades, the harms caused by drunken driving have been a matter of

serious concern. See, e.g., State v. Hanson, 543 N.W.2d 84, 89-90 (Minn. 1996); State v.

Willis, 332 N.W.2d 180, 186 (Minn. 1983) (Peterson, J., concurring specially); see also

South Dakota v. Neville, 459 U.S. 553, 558, 103 S. Ct. 916, 920 (1983) (noting that

“carnage caused by drunk drivers is well documented”); Breithaupt v. Abram, 352 U.S.

432, 439, 77 S. Ct. 408, 412 (1957) (noting “increasing slaughter on our highways”);

State v. Henning, 666 N.W.2d 379, 386-91 (Minn. 2003) (Meyer, J., dissenting)

(reasoning that suspicionless stop of driver with special license plates, conducted

pursuant to statute, was reasonable). In 2000, the legislature enacted a new chapter of the

Minnesota Statutes to address drunken driving in a more extensive manner. See 2000

Minn. Laws. ch. 478, art. I, § 7 (codified at Minn. Stat. §§ 169A.01-.76 (2000)); compare

Minn. Stat. §§ 169A.01-.76 (2000) with Minn. Stat. § 169.121-.123 (1998).            Yet a

significant number of persons still are killed or injured each year in Minnesota in motor-

vehicle accidents involving alcohol.4     The frequency and extent of the problem of


       4
       In 2012, 131 persons were killed, and 2,644 were injured, in motor-vehicle
accidents involving alcohol in Minnesota. Office of Traffic Safety, Minn. Dep’t of Pub.

                                            15
drunken driving in Minnesota appears to be greater than the situation that justified the

federal regulations at issue in Skinner, in which, over a 12-year period, “the nation’s

railroads experienced at least 21 significant train accidents involving alcohol or drug use

as a probable cause or contributing factor,” resulting in “25 fatalities [and] 61 non-fatal

injuries.” See 489 U.S. at 607, 109 S. Ct. at 1408 (quotation omitted). These statistics

indicate that the state’s interest in removing a driver from the roads after an arrest for

DWI is at least as strong, if not stronger, than the government’s interest in removing a

railroad employee from the workplace if the employee failed a drug or alcohol test.

       More specifically, there is no dispute that the state has a strong interest in ensuring

the safety of its roads and highways or that the state serves that goal by temporarily

revoking the driver’s licenses of persons who have been arrested for DWI.              These

principles are clearly stated in two Supreme Court opinions that analyzed implied-

consent statutes under the Due Process Clause. In Mackey v. Montrym, 443 U.S. 1, 99 S.

Ct. 2612 (1979), the state of Massachusetts suspended a man’s driver’s license pursuant

to its implied-consent statute because he refused to consent to chemical testing. Id. at 5-

6, 99 S. Ct. at 2614-15. The driver argued that his right to due process was denied

because his license was suspended administratively, without a pre-suspension hearing.

Id. at 8, 99 S. Ct. at 2616. The Court rejected the argument. Id. at 19, 99 S. Ct. at 2621.

In the course of analyzing the state’s interests in its implied-consent procedures, the

Safety, Minnesota Impaired Driving Facts 37, 39 (2013), available at
https://dps.mn.gov/divisions/ots/educational-materials/Documents/IMPAIRED-
DRIVING-FACTS-2012.pdf. Furthermore, 26% of traffic fatalities in Minnesota in 2012
involved drivers with an alcohol concentration of more than .08. Id. at 37. Moreover, in
2012, 28,418 persons were arrested for DWI in Minnesota. Id. at 4.

                                             16
Court noted that states have an interest “in removing drunken drivers from their

highways” and that it has “traditionally accorded the states great leeway in adopting

summary procedures to protect public health and safety.” Id. at 17, 99 S. Ct. at 2620.

Likewise, in Illinois v. Batchelder, 463 U.S. 1112, 103 S. Ct. 3513 (1983), a man’s

driver’s license was suspended pursuant to an implied-consent statute because he refused

to consent to chemical testing, and the driver argued that his right to due process was

denied because the law-enforcement officer did not set forth in writing the particular

circumstances that caused the officer to believe that he was driving while intoxicated. Id.

at 1115-16, 103 S. Ct. at 3515. The Court rejected this argument as well, noting, “The

interest of the States in depriving the drunk driver of permission to continue operating an

automobile is particularly strong.” Id. at 1118, 103 S. Ct. at 3516.

       We also must consider a second factor, the “intrusion on the individual’s Fourth

Amendment interests.”      Vernonia Sch. Dist., 515 U.S. at 653, 115 S. Ct. at 2390

(quotation omitted). The Skinner Court reasoned that the intrusion on a person’s privacy

interests is diminished if the person is participating in a highly regulated activity. 489

U.S. at 625-27, 109 S. Ct. at 1417-19. The Skinner Court concluded that, in such a

context, chemical testing does not constitute “an undue infringement on the justifiable

expectations of privacy” of the individual.      489 U.S. at 633, 109 S. Ct. at 1422.

Similarly, a licensed driver in Minnesota is subject to a multitude of traffic regulations

that govern his or her driving. See generally Minn. Stat. §§ 169.011-169A.78 (2012). In

addition, a licensed driver in Minnesota is presumed to be familiar with the laws

governing the operation of a motor vehicle. See Seitzer v. Halverson, 231 Minn. 230,


                                            17
236, 42 N.W.2d 635, 639 (1950). Accordingly, a licensed driver is presumed to be aware

that he or she may be asked to submit to chemical testing upon being arrested for DWI.

See Minn. Stat. § 169A.51, subd. 1(a). Furthermore, a licensed driver is likely to be

aware that law-enforcement officers regularly patrol the state’s roads and highways and

will stop a vehicle to investigate suspected violations of laws.       See, e.g., State v.

Anderson, 683 N.W.2d 818, 823 (Minn. 2004). Thus, a licensed driver in Minnesota has

a diminished expectation of privacy with respect to enforcement of the state’s DWI laws.

       Furthermore, the implied-consent statute contains numerous prerequisites that

must be satisfied before an officer may request that a driver submit to chemical testing.

As the district court observed:

              The process is only invoked after there is probable cause to
              arrest a person for DWI, a legislatively prescribed notice is
              read to the arrested person, and the person has the right to
              consult with an attorney. The police may only use approved
              testing procedures and methods, and the person has a right to
              get their own second test. In addition, if the police request a
              breath sample, and a person declines, the police must offer an
              alternative test method, such as a urine test. If a person
              declines to cooperate (i.e. refuses), the police do not take a
              BAC sample without a warrant. The entire Implied Consent
              process is typically recorded to help insure that the police
              officer follows the specific statutory requirements and to
              permit later judicial review. Deviation from these clearly and
              narrowly prescribed requirements results in suppression of the
              test results and reinstatement of suspended driving privileges.

See Minn. Stat. §§ 169A.51-.52. In these ways, Minnesota’s implied-consent statute

contains even more safeguards than the suspicionless-search procedures that were upheld

in Skinner and, thus, is at least as reasonable, if not more reasonable, for Fourth

Amendment purposes than the procedures in Skinner.


                                            18
       In two criminal cases, the Supreme Court has commented favorably on the

efficacy of implied-consent statutes that impose civil consequences. In Neville, the

Supreme Court rejected a Fifth Amendment challenge to an implied-consent statute that

allowed a person’s test refusal to be admitted into evidence in a subsequent criminal

prosecution. 459 U.S. at 562, 103 S. Ct. at 921; see also McDonnell v. State, Comm’r of

Pub. Safety, 473 N.W.2d 848, 853-56 (Minn. 1991) (applying Neville). The Neville

Court commented on the provision of the state law that required the revocation of a

driver’s license, stating, “Such a penalty for refusing to take a blood-alcohol test is

unquestionably legitimate, assuming appropriate procedural protections.” 459 U.S. at

560, 103 S. Ct. at 920. Most recently, in McNeely, the Court noted with apparent

approval that “all 50 States have adopted implied consent laws that require motorists, as a

condition of operating a motor vehicle within the State, to consent to BAC testing if they

are arrested or otherwise detained on suspicion of a drunk-driving offense.” 133 S. Ct. at

1566 (plurality opinion).     The Court stated that these laws “impose significant

consequences when a motorist withdraws consent” in that “typically the motorist’s

driver’s license is immediately suspended or revoked.” Id.; see also Brooks, 838 N.W.2d

at 572 (quoting McNeely, 133 S. Ct. at 1566). These comments support the conclusion

that Minnesota’s implied-consent statute is reasonable.

       The reasonableness of Minnesota’s implied-consent statute is bolstered by

Supreme Court caselaw in which individuals have faced civil consequences for a refusal

to waive their Fourth Amendment rights. One pertinent case is Wyman v. James, 400

U.S. 309, 91 S. Ct. 381 (1971), which concerned a person’s Fourth Amendment right to


                                            19
be free from unreasonable searches of her home. Id. at 316, 91 S. Ct. at 385. The state of

New York sought to discontinue a woman’s welfare benefits after she refused to permit a

home visit, which was a statutory condition of receiving benefits. Id. at 313-14, 91 S. Ct.

at 384. The Court considered whether the statutory condition violated the woman’s

Fourth Amendment rights. Id. at 316, 91 S. Ct. at 385. The Court reasoned that, if the

home visits were a search for Fourth Amendment purposes, the statutory condition would

be reasonable and, therefore, not unconstitutional. Id. at 318, 91 S. Ct. at 386. The Court

stated that the woman “has the ‘right’ to refuse the home visit, but a consequence in the

form of cessation of aid . . . flows from that refusal. The choice is entirely hers, and

nothing of constitutional magnitude is involved.” Id. at 324, 91 S. Ct. at 389. Stevens’s

reliance on the unconstitutional-conditions doctrine in this case is inconsistent with the

Court’s reasoning in Wyman.

       The reasonableness of Minnesota’s implied-consent statute is buttressed by

Supreme Court caselaw concerning laws that authorize searches as a condition of a

license issued pursuant to a regulatory scheme. In New York v. Burger, 482 U.S. 691,

107 S. Ct. 2636 (1987), the Court held that a state statute authorizing warrantless

inspections of automobile junkyards satisfied the Fourth Amendment’s reasonableness

test. See id. at 718, 107 S. Ct. at 2652. In Donovan v. Dewey, 452 U.S. 594, 101 S. Ct.

2534 (1981), the Court held that a federal statute authorizing warrantless inspections of

underground mines satisfied the Fourth Amendment’s reasonableness test. Id. at 606,

101 S. Ct. at 2542. And in United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593 (1972),

the Court held that a federal statute authorizing warrantless inspections of firearms


                                            20
dealers satisfied the Fourth Amendment’s reasonableness test. Id. at 317, 92 S. Ct. at

1597. This body of caselaw suggests that the unconstitutional-conditions doctrine does

not invalidate state laws that authorize warrantless searches as a reasonable means of

exercising control over a highly regulated activity.5 The caselaw is relevant because, in

Minnesota, operating a motor vehicle “is in the nature of a license or privilege,” which

“depends upon compliance with conditions prescribed by law.”           Anderson v. State,

Comm’r of Highways, 267 Minn. 308, 317, 126 N.W.2d 778, 784 (1964).

      Therefore, we conclude that the state’s strong interest in ensuring the safety of its

roads and highways outweighs a driver’s diminished privacy interests in avoiding a

search following an arrest for DWI. Thus, if we assume that the implied-consent statute

authorizes a search of a driver’s blood, breath, or urine, such a search would not violate

the Fourth Amendment.




      5
        The Court has, however, invalidated some warrantless searches authorized by
regulatory schemes. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816 (1978)
(routine OSHA inspection of premises of electrical- and plumbing-installation business);
Camara v. Municipal Court of San Francisco, 387 U.S. 523, 87 S. Ct. 1727 (1967)
(request to search portion of apartment building); See v. City of Seattle, 387 U.S. 541, 87
S. Ct. 1737 (1967) (request to conduct routine inspection of commercial warehouse). In
those cases, however, the searches were conducted pursuant to government regulatory
schemes that were not sufficiently pervasive, considering, among other things, the history
of that type of regulation. See Donovan, 452 U.S. at 605-06, 101 S. Ct. at 2541-42. In
Minnesota, driving a motor vehicle has required a license since 1939. See 1939 Minn.
Laws ch. 401, § 2, at 782 (codified at Mason’s Minn. Stat. § 2720-143 (Supp. 1940)). At
that time, a person was ineligible to possess a driver’s license if he or she was “an
habitual drunkard.” See 1939 Minn. Laws ch. 401, § 4(4), at 783 (codified at Mason’s
Minn. Stat. § 2720-144(a)(4) (Supp. 1940)).

                                            21
                                             D.

       Fourth, even if (a) the unconstitutional-conditions doctrine were to apply; (b) the

implied-consent statute were to authorize a search; and (c) a search of a driver’s blood,

breath, or urine pursuant to the implied-consent statute would violate the Fourth

Amendment, we nonetheless would conclude that Stevens’s unconstitutional-conditions

argument fails because she would not be able to show that the implied-consent statute is

sufficiently coercive.

       As the supreme court noted in Netland, the unconstitutional-conditions doctrine is

concerned with coercion and its tendency to deter individuals from asserting

constitutional rights. See 762 N.W.2d at 211 (citing Richard A. Epstein, Unconstitutional

Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 6-7 (1988)). In

Netland, the supreme court did not attempt to provide a comprehensive statement of the

unconstitutional-conditions doctrine. See id. at 211-12. For that reason, the supreme

court did not determine whether proof of coercion is an essential element of a claim

under the unconstitutional-conditions doctrine or, if so, what type or degree of coercion is

necessary. See id. It appears that the United States Supreme Court “has never developed

a coherent rationale for determining when [the availability of choices] rise[s] to the level

of ‘coercion.’” Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev.

1415, 1428 (1989).       Furthermore, because there are no clear rules for applying the

unconstitutional-conditions doctrine, it has been suggested that coercion “begins rather

than ends the inquiry.”      Id. at 1456.   Despite the lack of clarity, we interpret the

applicable caselaw concerning the unconstitutional-conditions doctrine to require a


                                             22
showing that the implied-consent statute coerces a driver into waiving a Fourth

Amendment right.

       The supreme court stated in Brooks that “the choice to submit or refuse to take a

chemical test ‘will not be an easy or pleasant one for a suspect to make.’” 838 N.W.2d at

571 (quoting Neville, 459 U.S. at 564, 103 S. Ct. at 922). Nonetheless, the supreme court

stated 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.

The supreme court considered the potential coercion of the criminal penalties for test

refusal, not the potential coercion of the civil consequences of test refusal. See id. But

the supreme court’s reasoning extends to civil consequences because the supreme court

stated that the implied-consent statute does “the exact thing Brooks claims it cannot do –

condition[] the privilege of driving on agreeing to a warrantless search.” Id. at 572.

Furthermore, there is no apparent reason for this court to presume that the civil

consequences of test refusal are more coercive than the criminal penalties for test refusal.

Thus, the supreme court’s opinion in Brooks forecloses Stevens from establishing that the

implied-consent statute coerces a driver into surrendering a Fourth Amendment right in a

manner that is offensive to the unconstitutional-conditions doctrine.

       For all of the reasons stated above, we conclude that Minnesota’s implied-consent

statute does not violate the unconstitutional-conditions doctrine by authorizing the

commissioner of public safety to revoke the driver’s license of a person who has been

arrested for DWI and has refused to submit to chemical testing.




                                            23
                                     DECISION

       The evidence in the record supports the district court’s finding that Stevens

refused to submit to chemical testing. Stevens has not established that the implied-

consent statute violates the unconstitutional-conditions doctrine.

       Affirmed.




                                            24
CHUTICH, Judge (concurring specially).

      I agree with the majority’s conclusion that sufficient evidence supports the district

court’s finding that Stevens refused to submit to chemical testing and that her

unconstitutional-conditions argument fails.       I write separately concerning the

unconstitutional-conditions discussion because I would base my rejection of that doctrine

solely on the rationale stated in Part D of the majority’s opinion. I agree with the

majority that the Minnesota Supreme Court’s decision in State v. Brooks, 838 N.W.2d

563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014), prevents Stevens from

establishing that the implied-consent statute coerced her into surrendering her Fourth

Amendment right in a way that offends the unconstitutional-conditions doctrine.




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