                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1296


                          Shawn Michael O'Connell, petitioner,
                                     Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.


                                 Filed January 12, 2015
                                        Affirmed
                                    Bjorkman, Judge


                             Hennepin County District Court
                               File No. 27-CR-11-34298

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Torrie J. Schneider, Assistant Bloomington City Attorney, Bloomington, Minnesota (for
respondent)

       Considered and decided by Connolly, Presiding Judge; Halbrooks, Judge; and

Bjorkman, Judge.

                                     SYLLABUS

       The rule announced in Missouri v. McNeely, 133 S. Ct 1552 (2013), that natural

dissipation of alcohol in the blood does not constitute a per se exigency justifying a

warrantless search, does not retroactively apply on collateral review of a final conviction.
                                      OPINION

BJORKMAN, Judge

       Appellant challenges the denial of his petition for postconviction relief, arguing

that the district court’s refusal to suppress the urine-test results improperly compelled him

to plead guilty. We affirm.

                                          FACTS

       Early in the morning of June 28, 2011, Bloomington Police Officer Maria

Mulvihill stopped appellant Shawn O’Connell after observing his vehicle weaving in

traffic and traveling significantly under the speed limit.       During the stop, Officer

Mulvihill noticed that O’Connell’s pupils were dilated and he answered questions slowly.

Officer Mulvihill asked O’Connell to exit the vehicle to perform field sobriety tests,

during which he struggled to walk and maintain his balance. A preliminary breath test

revealed an alcohol concentration of .000, but Officer Mulvihill suspected that O’Connell

was under the influence of a controlled substance.

       Officer Mulvihill arrested O’Connell and transported him to the Bloomington

Police Department.     A drug-recognition exam indicated O’Connell was under the

influence of a central-nervous-system stimulant. Officer Mulvihill read O’Connell the

implied-consent advisory and he agreed to provide a urine sample. Testing revealed the

presence of amphetamines.

       Respondent State of Minnesota charged O’Connell with one count of driving

while impaired (DWI). O’Connell moved to suppress the urine-test results and dismiss




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the charge for lack of probable cause. The district court denied both motions. O’Connell

subsequently pleaded guilty to the original charge.

       In January 2014, O’Connell filed a petition for postconviction relief asking the

district court to reverse his conviction, allow him to withdraw his guilty plea, and grant

him a new trial. O’Connell argued that the district court’s failure to suppress the urine-

test results obtained without a warrant or voluntary consent compelled him to plead

guilty. The district court denied O’Connell’s petition. O’Connell appeals.

                                         ISSUE

       Did the district court err by declining to retroactively apply the new rule

announced in McNeely to O’Connell’s conviction?

                                       ANALYSIS

       This court reviews the denial of a postconviction petition for an abuse of

discretion. Francis v. State, 781 N.W.2d 892, 896 (Minn. 2010). A defendant does not

have an absolute right to withdraw a guilty plea. State v. Theis, 742 N.W.2d 643, 646

(Minn. 2007). After sentencing, a defendant is entitled to withdraw a guilty plea if

“withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05,

subd. 1.   A manifest injustice exists if the plea was not accurate, voluntary, and

intelligent. Theis, 742 N.W.2d at 646. The validity of a guilty plea is a question of law

that we review de novo. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).

       O’Connell contends that his plea was not voluntary because the district court’s

refusal to suppress urine-test results obtained without a warrant improperly compelled

him to plead guilty. O’Connell’s challenge to the district court’s suppression order is


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based on the rule announced in McNeely, that dissipation of alcohol in the blood does not

constitute a per se exigency justifying a warrantless search. 133 S. Ct. 1552, 1563

(2013).

       To determine whether O’Connell is entitled to the benefit of the rule announced in

McNeely, we first consider whether his conviction was final when McNeely was decided.

See Campos v. State, 816 N.W.2d 480, 488 (Minn. 2012) (recognizing finality of

conviction as threshold issue for retroactivity analysis).     A case is final when “the

availability of appeal has been exhausted, the time for a petition for certiorari has elapsed

or a petition for certiorari with the Supreme Court has been filed and finally denied.”

O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004), overruled on other grounds by

Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029 (2008). O’Connell pleaded guilty

on May 30, 2012. He did not file a direct appeal so his case was final on August 29,

2012. The United States Supreme Court decided McNeely on April 17, 2013.

       O’Connell argues his case was still pending when McNeely was decided because

the two-year period for seeking postconviction relief had not expired. We disagree. Our

supreme court rejected this contention in State v. Hughes, noting that a postconviction

petition seeks collateral review of a conviction, and a motion to withdraw a guilty plea

does not extend the direct appeal period because withdrawal is “discretionary with the

postconviction court.” 758 N.W.2d 577, 583 (Minn. 2008). Accordingly, we consider

whether McNeely applies retroactively.

       Minnesota courts follow the retroactivity analysis outlined in Teague v. Lane, 489

U.S. 288, 109 S. Ct. 1060 (1989), when considering whether a rule applies to a final


                                             4
conviction. See Danforth v. State, 761 N.W.2d 493, 499 (Minn. 2009). Under Teague,

we first determine whether the rule is new. 489 U.S. at 310, 109 S. Ct. at 1075. If so, the

rule does not apply unless it falls under an established exception to the general principle

that new rules do not have retroactive effect. Id. at 310-12, 109 S. Ct. at 1075-76.

Whether a decision applies retroactively is a legal question that we review de novo.

O’Meara, 679 N.W.2d at 338.

I.     McNeely established a new rule of law.

       Both parties proceed under the assumption that McNeely announced a new rule of

law. The United States Supreme Court did not definitively so state, and Minnesota courts

have not addressed this issue. But the law supports this interpretation. A case announces

a new rule if the result was not “‘dictated’ by precedent existing at the time the

defendant’s conviction became final.” State v. Petschl, 692 N.W.2d 463, 471 (Minn.

App. 2004), review denied (Minn. Jan. 20, 2005). Likewise, a case announces a new rule

if “it breaks new ground or imposes a new obligation on the government.” Chaidez v.

United States, 133 S. Ct. 1103, 1107 (2013) (quotations omitted). In the alternative, a

case restates an old rule when it is “merely an application of the principle that governed a

prior decision to a different set of facts.” Id. (quotation omitted).

       Prior to McNeely, many jurisdictions, including Minnesota, recognized that the

natural dissipation of alcohol in the blood constituted a per se exigency justifying a

warrantless search. McNeely, 133 S. Ct. at 1558 n.2 (citing State v. Shriner, 751 N.W.2d

538, 545 (Minn. 2008)).        McNeely changed the law in these jurisdictions.         Law

enforcement can no longer rely on natural dissipation alone to create an exigent


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circumstance. McNeely, 133 S. Ct. at 1563. Rather, law enforcement is now obligated to

obtain a warrant or establish a valid exception to the warrant requirement based on the

totality of the circumstances.      Id.   And the split in authority prior to McNeely

demonstrates its holding was not dictated by existing precedent.          See id. at 1558

(explaining that the court granted certiorari “to resolve a split of authority”).      We

conclude that McNeely announced a new rule that would generally not apply to final

convictions on collateral review.

II.    McNeely is not a watershed rule of criminal procedure.

       A new rule applies retroactively to final convictions only if (1) the rule places an

entire category of conduct beyond the reach of the criminal law or (2) the new rule is a

watershed rule of criminal procedure that implicates the fundamental fairness of the

criminal proceeding. Teague, 489 U.S. at 311-12, 109 S. Ct. at 1075-76.

       The rule announced by McNeely is clearly procedural as it modified the process

law enforcement must follow before administering a blood, breath, or urine test. Schriro

v. Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 2523 (2004) (defining procedural rules

as those that regulate only the manner of determining guilt). As such, McNeely only

applies retroactively if it is a watershed rule. Campos, 816 N.W.2d at 497 (stating only

the watershed-rule exception applies to new procedural rules). A watershed rule “must

both be necessary to prevent an impermissibly large risk of an inaccurate conviction and

alter our understanding of the bedrock procedural elements essential to the fairness of a

proceeding.” Id. at 498 (quotation omitted). This exception is extremely narrow because

applying a new rule to a final conviction “seriously undermines the principle of finality


                                             6
which is essential to the operation of our criminal justice system.” Teague, 489 U.S. at

309, 109 S. Ct. at 1074. Since Teague, the United States Supreme Court has identified

only one rule that meets this standard—the rule announced in Gideon v. Wainwright, 372

U.S. 335, 83 S. Ct. 792 (1963), that counsel must be appointed for any indigent defendant

charged with a felony. Whorton v. Bockting, 549 U.S. 406, 419, 127 S. Ct. 1173, 1182

(2007).

       Minnesota courts have also uniformly declined to recognize new rules of criminal

procedure as watershed rules. See, e.g., Campos, 816 N.W.2d at 498-99 (concluding

Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), did not announce a watershed

rule because its “new interpretation of the right to effective assistance of counsel does not

qualify as a rule that goes to the heart of a fair proceeding”); Danforth v. State, 718

N.W.2d 451, 460 (Minn. 2006) (holding that Crawford v. Washington, 541 U.S. 36, 124

S. Ct. 1354 (2004), did not announce a watershed rule), rev’d on other grounds, 552 U.S.

264, 128 S. Ct. 1029 (2008); State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005)

(determining that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), was not a

watershed rule because it did not “impact the accuracy of an underlying determination of

guilt or innocence,” but instead only “modifie[d] the manner in which certain factors . . .

justifying upward departures . . . must be treated”).

       Based on the watershed-rule exception’s narrow scope and the nature of the rule

announced by McNeely, we conclude that retroactive application is not warranted. The

requirement that law enforcement secure a warrant, or establish an exception to the

warrant requirement, before administering a breath, blood, or urine test has little bearing


                                              7
on the accuracy of the underlying determination of guilt. Rather, it merely addresses the

procedural requirements law enforcement must follow when gathering evidence against a

suspect. And McNeely does not address matters that go to the heart of a fair proceeding,

as the rule only applies to a limited class of cases (DWIs) and “does not have a

fundamental and profound impact on criminal proceedings generally.” See Campos, 816

N.W.2d at 499.

       On this record, we conclude that O’Connell is not entitled to the benefit of

McNeely and the district court did not abuse its discretion when it denied O’Connell’s

postconviction petition.1

                                    DECISION

       Because the rule announced in McNeely is not a watershed rule, it does not

retroactively apply on collateral review of O’Connell’s conviction.

       Affirmed.




1
 Because we conclude that McNeely does not apply retroactively to O’Connell’s case, we
need not examine the district court’s alternative ruling that O’Connell consented to the
urine test.

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