                          This opinion will be unpublished and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
                                     A15-0423

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                   David Lee Clifton,
                                      Appellant.

                                Filed November 23, 2015
                                       Affirmed
                                     Larkin, Judge

                              Beltrami County District Court
                                 File No. 04-CR-14-1590


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

Annie Claesson-Huseby, Beltrami County Attorney, Wyatt T. Arneson, Assistant County
Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)



         Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Bjorkman,

Judge.
                           UNPUBLISHED OPINION

LARKIN, Judge

          Appellant challenges his conviction of third-degree driving while impaired (test

refusal), arguing that Minnesota’s criminal test-refusal statute is unconstitutional. We

affirm.

                                           FACTS

          In May 2014, respondent State of Minnesota charged appellant David Lee Clifton

with third-degree driving while impaired (test refusal). Clifton requested an omnibus

hearing but later withdrew that request and decided to plead guilty.         When Clifton

informed the district court of his plea decision, the district court mentioned that the

Minnesota Supreme Court had recently heard arguments regarding whether the criminal

test-refusal statute is unconstitutional. The district court suggested that Clifton proceed

with a stipulated trial so he could preserve the constitutional issue for appeal. Clifton

agreed to do so.

          The district court conducted a bench trial under Minn. R. Crim. P. 26.01, subd. 3,

based on stipulated facts including the following:

                       Based on [field sobriety] tests and on multiple indicia
                of intoxication, Deputy [Josh] Cook arrested [Clifton] for
                driving while impaired.

                        Once at the Beltrami County jail, [Clifton] was taken
                to the Intoxilyzer room, where Deputy Cook read the implied
                consent advisory to him. [Clifton] was hostile and aggressive
                throughout, calling the deputy racist and telling him to go to
                hell.




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                      Deputy Cook advised [Clifton] of his right to talk with
               an attorney and that a phone book would be made available to
               him. Defendant replied that he wasn’t going to call anyone.

                       When Deputy Cook asked [Clifton] if he would submit
               to a breath test, [Clifton] remained silent.

       The district court found Clifton guilty of third-degree refusal, sentenced him to

one year in jail, and stayed execution of all but 15 days.         The district court never

considered    or   decided   whether    Minnesota’s     criminal   test-refusal   statute   is

unconstitutional. Clifton appeals, attempting to challenge the constitutionality of the test-

refusal statute.

                                     DECISION

       Clifton contends that Minnesota’s test-refusal statute, Minn. Stat. § 169A.20,

subd. 2 (2012), “violates the state and federal constitutional rights to due process of law

and the doctrine of unconstitutional conditions by criminalizing a driver’s refusal to

consent to a presumptively unreasonable, warrantless search.”

       Clifton states that he “waived his right to a jury trial and submitted his case to the

district court pursuant to Minn. R. Crim. P. 26.01, subd. 3, in order to preserve his right

to challenge the constitutionality of the test-refusal statute.”             However, the

constitutionality of the test-refusal statute was not considered or decided in the district

court. In fact, Clifton withdrew his request for an omnibus hearing, where he could have

raised that issue. See Minn. R. Crim. P. 11.02 (providing that on demand, the district

court must conduct an omnibus hearing and hear all motions relating to constitutional

issues). Clifton does not cite any authority supporting his suggestion that proceeding



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with a stipulated facts trial under Minn. R. Crim. P. 26.01, subd. 3, preserves a

constitutional challenge for appeal when the district court does not decide the merits of

the constitutional challenge. Although Minn. R. Crim. P. 26.01, subd. 4, sets forth a

procedure under which a defendant may stipulate to the prosecution’s case to obtain

review of a pretrial ruling, that rule was not used here, and there is no pretrial ruling for

this court to review.

       An appellate court will not consider matters not argued to and considered by the

district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). We therefore hold that

Clifton’s constitutional challenge to the criminal test-refusal statute is not properly before

this court.

       Even if Clifton’s constitutional challenge were properly before this court, we

would reject it on the merits.         This court reviews questions of law, including

constitutional challenges, de novo. State v. Ness, 834 N.W.2d 177, 181 (Minn. 2013).

However, “[t]his court, as an error correcting court, is without authority to change the

law.” Lake George Park, L.L.C. v. IBM Mid-Am. Emps. Fed. Credit Union, 576 N.W.2d

463, 466 (Minn. App. 1998), review denied (Minn. June 17, 1998).

       Clifton acknowledges that this court is “plainly bound by the Minnesota Supreme

Court” and its recent decision in State v. Bernard, 859 N.W.2d 762 (Minn. 2015),

regarding the constitutionality of the test-refusal statute as applied to breath tests. In

Bernard, the supreme court held that breath tests of persons lawfully arrested on

suspicion of drunk driving are constitutional under the search-incident-to-arrest exception

to the warrant requirement. Bernard, 859 N.W.2d at 772. The supreme court concluded


                                              4
that there is no fundamental right to refuse such a constitutional search and therefore

reviewed the test-refusal statute, as applied to breath tests, under the rational-basis test.

Id. at 773-74. The court held that because the test-refusal statute “is a reasonable means

to a permissive object, it does not violate [a driver’s] right to due process under the

United States or Minnesota Constitutions.” Id. at 763. Clifton’s due-process argument

fails under Bernard.

       Clifton also contends that Minnesota’s criminal test-refusal statute violates the

doctrine of unconstitutional conditions because “it compels the surrender of the

constitutional right to withhold consent to a Fourth Amendment search as a condition of

driving.” This court recently held that the test-refusal statute, as applied to breath tests,

does not violate the unconstitutional-conditions doctrine because breath tests given

pursuant to the implied-consent statute are valid searches incident to arrest under

Bernard. State v. Bennett, 867 N.W.2d 539, 542-43 (Minn. App. 2015), review denied

(Minn. Oct. 28, 2015). Clifton’s unconstitutional-conditions argument therefore fails

under Bennett.

       Affirmed.




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