                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1279

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                   Bryan John Rusco,
                                      Appellant.

                                   Filed July 13, 2015
                                        Affirmed
                                    Peterson, Judge

                             St. Louis County District Court
                                File No. 69VI-CR-13-470

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

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota; and

Leah A. Stauber, Assistant County Attorney, Virginia, Minnesota (for respondent)

Gordon C. Pineo, Deal & Pineo, P.A., Virginia, Minnesota (for appellant)

         Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Kirk,

Judge.

                        UNPUBLISHED OPINION

PETERSON, Judge

         Appellant challenges his conviction of third-degree driving while impaired

(refusal to submit to chemical test), in violation of Minn. Stat. §§ 169A.20, subd. 2, .26,
subd. 1(b) (2012), arguing that Minnesota’s test-refusal statute is unconstitutional. We

affirm.

                                            FACTS

          When appellant Bryan John Rusco was stopped for speeding, a strong smell of

alcohol came from his vehicle, and his eyes were red and glassy. After he performed

field sobriety tests, and took a preliminary breath test (PBT), Rusco was arrested for

driving while impaired.         At the police station, a police officer read the Minnesota

implied-consent advisory to Rusco. The advisory informed Rusco that Minnesota law

required him to take a test to determine whether he was under the influence of alcohol,

that refusing to take a test was a crime, and that he had the right to consult with an

attorney before making his decision about testing. Rusco stated that he understood the

implied-consent advisory and that he did not wish to consult with an attorney.

          The officer asked Rusco whether he would take a breath test, and Rusco responded

that he had already taken a breath test and that he would not take another test. The

officer showed Rusco the breath-test machine in the police station and explained that

Rusco was being asked to take a different test than the roadside PBT. Rusco continued to

refuse to take a breath test.

          Rusco was charged with third-degree driving while impaired (refusal to submit to

chemical test). He moved for dismissal of the charge, arguing that the criminalization of

a refusal to submit to a warrantless search is unconstitutional. When the district court

denied the motion, Rusco waived his right to a jury trial and agreed to submit the issue of




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his guilt to the district court based on stipulated facts. The district court found Rusco

guilty of the charged offense, and this appeal follows.

                                     DECISION

       Under Minn. Stat. § 169A.20, subd. 2, “[i]t is a crime for any person to refuse to

submit to a chemical test of the person’s blood, breath, or urine.” Rusco argues that the

criminalization of a refusal to submit to a warrantless chemical test is unconstitutional.

The constitutionality of a statute is a question of law that is reviewed de novo. State v.

Ness, 834 N.W.2d 177, 181 (Minn. 2013).           A court’s power to declare a statute

unconstitutional is exercised “with extreme caution and only when absolutely necessary,”

and a statute will be upheld “unless the challenging party demonstrates that it is

unconstitutional beyond a reasonable doubt.” Id. at 182 (quotations omitted).

       The United States and Minnesota Constitutions guarantee the right to be secure

against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. 1,

§ 10. Taking a blood, breath, or urine sample is an intrusion on the expectation of

privacy that constitutes a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-

17, 109 S. Ct. 1402, 1412-13 (1989).         Generally, a search is unreasonable unless

conducted pursuant to a warrant issued upon probable cause. Id. at 619, 109 S. Ct. at

1414. But there are established exceptions to the warrant requirement, one of which is a

search incident to a lawful arrest. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710,

1716 (2009).

       The Minnesota Supreme Court recently rejected a driver’s argument that

Minnesota’s test-refusal statute, Minn. Stat. § 169A.20, subd. 2, violated the driver’s


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right to substantive due process because it criminalized the exercise of his Fourth

Amendment right to refuse to submit to a warrantless search. State v. Bernard, 859

N.W.2d 762 (Minn. 2015), petition for cert. filed, No. 14-1470 (U.S. June 15, 2015).     In

Bernard, the supreme court held that a warrantless breath test of a driver arrested on

suspicion of driving while impaired “would have been constitutional under the search-

incident-to-arrest exception to the Fourth Amendment’s warrant requirement.” Id. at 772.

The supreme court then found that when the test-refusal statute was applied to the

arrested driver, no fundamental right was at issue because the driver did not have a

fundamental right to refuse a constitutional search. Id. at 773. Because the test-refusal

statute did not implicate a fundamental right, the supreme court used rational-basis

review to assess the statute’s constitutionality. Id. The supreme court concluded that

“criminalizing the refusal to submit to a breath test relates to the State’s ability to

prosecute drunk drivers and keep Minnesota roads safe” and, therefore, held “that the test

refusal statute is a reasonable means to a permissive object and that it passes rational

basis review.” Id. at 774.

       Like the driver in Bernard, 859 N.W. 2d at 764-65, Rusco was lawfully arrested

for driving while impaired, was read the implied-consent advisory, was offered a breath

test, and refused to take the test. Under the analysis in Bernard, a warrantless breath test

would have been constitutional as a search incident to arrest, Rusco did not have a

fundamental right to refuse the constitutional search, and the criminalization of Rusco’s




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refusal to take the test did not violate his right to due process and was not

unconstitutional.

       Affirmed.




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