                         This opinion will be unpublished and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
                                    A16-0610

                           Keith Charles Lexvold, petitioner,
                                      Appellant,

                                           vs.

                            Commissioner of Public Safety,
                                   Respondent.

                                Filed December 5, 2016
                                       Affirmed
                                   Rodenberg, Judge

                            Goodhue County District Court
                              File No. 25-CV-15-1855

Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)

Lori Swanson, Attorney General, Frederic J. Argir, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

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

Kirk, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

      On appeal from an order sustaining his driver’s-license revocation based on a

failed breath test, appellant argues that (1) his procedural due-process rights were

violated; (2) the field sobriety tests were warrantless searches and therefore illegal;

(3) the breath test was obtained in violation of appellant’s Fourth Amendment rights; and
(4) the test-refusal statute is unconstitutional and the implied-consent advisory therefore

violates his substantive due-process rights and the doctrine of unconstitutional conditions.

We affirm.

                                          FACTS

       At 1:23 a.m. on July 26, 2015, a police officer stopped an all-terrain vehicle

(ATV) operated by appellant Keith Charles Lexvold. The officer had witnessed appellant

operating the ATV without activated headlights and within a traffic lane. The ATV

appeared to be travelling at a high rate of speed and did not immediately stop after the

officer activated his emergency lights.

       After appellant stopped driving the ATV, the officer observed that appellant had

bloodshot and watery eyes and had an odor of alcohol on his breath. The officer asked

appellant if he had been drinking. Appellant replied that he had consumed ten beers since

11 a.m. the previous day. The officer had appellant perform three field sobriety tests: the

horizontal gaze nystagmus test, the one-leg stand test, and the walk-and-turn test. The

officer witnessed signs of impairment during the three tests.           Appellant took a

preliminary breath test (PBT) that indicated an alcohol concentration of 0.115. Appellant

was arrested for suspicion of driving while impaired (DWI) and was transported to a

detention center.

       At the detention center, appellant was read an implied-consent advisory and asked

to submit to a breath test. The implied-consent advisory was read from a form that

included the question, “Will you take the Breath test?” Appellant’s response,“Yep,” was

recorded by the officer. Lines are drawn through text on the form relating to a blood or


                                             2
urine test. Appellant confirmed that he understood the components of the implied-

consent advisory that (1) Minnesota law required him to take a test to determine if he was

under the influence of alcohol, (2) refusal to take the test would be a crime, (3) he had the

right to consult with an attorney before deciding whether to take the test, and

(4) unreasonable delay or indecision would constitute test refusal. Appellant declined to

speak with an attorney, agreed to take the breath test, and provided an adequate breath

sample.

        Analysis of his breath indicated that appellant had an alcohol concentration of

0.12.     The officer reported appellant’s test failure to Respondent Minnesota

Commissioner of Public Safety, certifying that probable cause existed to believe

appellant had violated Minnesota’s DWI laws. Appellant’s license was subsequently

revoked. A certified copy of appellant’s driving record contains a line for the July 26,

2015 implied-consent test failure, and the word “conviction” appears under the heading

“Event Type.”

        Appellant petitioned the district court for rescission of the license revocation. He

argued that the field sobriety tests and PBT were unlawful searches in violation of the

Fourth Amendment, that he did not validly consent to the warrantless breath test, that he

was unconstitutionally misled by the implied-consent advisory in violation of his due-

process rights, and that the Commissioner’s reporting of a “conviction” on his driving

record violated his due process rights. The district court sustained the revocation of

appellant’s driver’s license. This appeal follows.




                                             3
                                     DECISION

I.     Appellant lacks standing to make a procedural due-process claim.

       Appellant argues that respondent’s act of noting a “conviction” on his driving

record after receiving a police officer’s certification of probable cause unconstitutionally

deprived him of procedural due process.

       The United States and Minnesota Constitutions provide that no person shall be

deprived of life, liberty, or property without due process of law. U.S. Const. amend.

XIV, § 1; Minn. Const. art. I, § 7. We review procedural due-process challenges de

novo. Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 413 (Minn. 2007).

       “An appellant cannot assert a procedural due-process claim without first

establishing that he has suffered a direct and personal harm resulting from the alleged

denial of his constitutional rights.” Riehm v. Comm’r of Pub. Safety, 745 N.W.2d 869,

877 (Minn. App. 2008) (quotation omitted), review denied (Minn. May 20, 2008).

“Appellant must show that his claimed harm is personal, actual, or imminent; traceable to

respondent’s challenged actions; and likely to be remedied by this court.” Id. at 873.

The notation of “conviction” on appellant’s driving record may be premature or

erroneous, but appellant fails to show any personal, actual, or imminent harm that is

traceable to the notation for which there is a remedy under Minnesota’s implied-consent

process. Appellant lacks standing to make a due process challenge.1


1
  Even if appellant were able to sufficiently demonstrate harm resulting from the
commissioner’s use of the word “conviction” on his driving record, he has not provided
any authority for his proposed remedy. He argues that this erroneous notation converts
the driver’s-license revocation process into a criminal procedure, with all of its attendant

                                             4
II.   An arresting officer needs only reasonable suspicion of criminal activity to
      conduct field sobriety tests and a PBT.

      Appellant argues that the evidence obtained from the field sobriety tests should

have been suppressed because those tests are searches subject to the warrant requirement

of the Fourth Amendment. We disagree.

      Appellant’s argument that field sobriety tests are searches that require a warrant is

contrary to existing Minnesota law. A police officer may initiate a limited investigative

seizure without a warrant if the officer has reasonable articulable suspicion of criminal

activity. State v. Klamar, 823 N.W.2d 687, 691 (Minn. App. 2012). The officer may use

several investigative techniques during a Terry-type stop. Id. at 696. If reasonable

suspicion exists, a warrant is not required before administering field sobriety tests. Id.

(holding that an officer’s observation of two indicia of intoxication justified further

intrusions in the form of field sobriety testing). The standard for administering a PBT is

also reasonable, articulable suspicion. State, Dep’t of Pub. Safety v. Juncewski, 308

N.W.2d 316, 321 (Minn. 1981) (stating that an officer has the authority to administer a

preliminary breath test where “specific and articulable facts” form the basis to believe

that a driver is impaired); State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986)

(“An officer need not possess probable cause to believe that a DWI violation has

occurred in order to administer a preliminary breath test.”), review denied (Minn.

May 16, 1986).


rights and remedies including the right to a public jury trial and other criminal due-
process protections. We see no basis in law for this argument, even if appellant had
standing.

                                            5
       Appellant’s reliance on Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013) and

State v. Brooks, 838 N.W.2d 563 (Minn. 2013), for his argument that law enforcement is

required to obtain a warrant in drunk-driving investigations is misplaced.        Neither

McNeely nor Brooks requires more than reasonable, articulable suspicion to permit an

officer to administer field sobriety tests.

       The district court correctly declined to suppress the evidence concerning

appellant’s field sobriety tests.

III.   The warrantless breath test was constitutional because appellant consented to
       the test.

       Appellant argues that the district court erred in admitting appellant’s breath-test

results because the results are the product of a warrantless search and because no

exception to the warrant requirement applies. Appellant argues his consent to the test

was not valid as it was “mere acquiescence” to the officer’s reading of the implied-

consent advisory and the threat of a criminal penalty for refusing the test.

       The United States and Minnesota Constitutions prohibit unreasonable searches and

seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A breath test is a search

subject to the Fourth Amendment. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602,

616-17, 109 S. Ct. 1402, 1412-13 (1989). “A search conducted without a warrant is per

se unreasonable unless an exception applies.” Ellingson v. Comm’r of Pub. Safety, 800

N.W.2d 805, 807 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011).

       Consent serves as an exception to the warrant requirement only if the state shows

by a preponderance of the evidence that a defendant’s consent to a search was free and



                                              6
voluntary. Brooks, 838 N.W.2d at 568. Voluntariness is a question of fact that this court

reviews under the clearly erroneous standard. State v. Diede, 795 N.W.2d 836, 846

(Minn. 2011). “Findings of fact are clearly erroneous if, on the entire evidence, we are

left with the definite and firm conviction that a mistake occurred.” Id. at 846-47.

       “Whether consent was voluntary is determined by examining the totality of the

circumstances, including the nature of the encounter, the kind of person the defendant is,

and what was said and how it was said.” Id. at 846 (quotation omitted). The “nature of

the encounter” includes such factors as how the police came to suspect a defendant of

driving under the influence, the request to take a chemical test, which includes whether

the implied-consent advisory was read, and whether the defendant had the right to consult

with an attorney. Brooks, 383 N.W.2d at 569.

       Appellant’s argument that his consent was the product of mere acquiescence to the

threat of criminal penalties included in the implied-consent advisory essentially ignores

the supreme court’s holding in Brooks. Brooks held that a driver’s decision to take a

breath test is not a product of coercion solely because Minnesota has attached a criminal

penalty to test refusal. Id. at 570; see also Poeschel v. Comm’r of Pub. Safety, 871

N.W.2d 39, 46 (Minn. App. 2015) (rejecting argument that appellant’s consent was

involuntary because the implied-consent advisory penalizes test refusals). Instead courts

look to the totality of the circumstances surrounding appellant’s consent to the breath test.

Brooks, 838 N.W.2d at 569.

       The district court determined that appellant voluntarily consented to a breath test.

The district court found that “there was nothing in the encounter or nature of [appellant]


                                             7
that points to any special circumstances that would render [his] consent involuntary.”

The record includes no evidence that appellant was coerced by officers to participate in

the breath test such that his “will had been overborne and his capacity for self-

determination critically impaired.” See id. at 571 (quotations omitted). Appellant was

not confronted with repeated police questioning nor asked to consent after spending days

in custody. See id. Appellant was given an opportunity to consult with an attorney and

informed through the implied-consent advisory that he had a choice of whether to submit

to testing. See id. at 571-72. Appellant stated that he understood the implied-consent

advisory and would submit to testing. The district court applied the Brooks standard and

determined appellant’s consent to have been voluntary.           The record supports that

determination.

       The district court did not clearly err in finding that appellant voluntarily consented

to a breath test.

IV.    Appellant’s substantive due-process rights were not violated, and there is no
       merit to his unconstitutional-conditions argument.

       Appellant argues that Minnesota’s test-refusal statute is unconstitutional because it

infringes on his fundamental right to refuse a warrantless search, and therefore the

implied-consent advisory violates his due-process rights by threatening a crime the state

cannot legally pursue. We review the constitutionality of a statute de novo. State v.

Ness, 834 N.W.2d 177, 181 (Minn. 2013). Whether an implied-consent advisory violates

a driver’s due-process rights is a question of law we review de novo. Magnuson v.

Comm’r of Pub. Safety, 703 N.W.2d 557, 561 (Minn. App. 2005).



                                             8
       We recently examined a due-process challenge to the implied-consent advisory on

the grounds that it threatened criminal penalties for refusal that the state could not legally

impose. Johnson v. Comm’r of Pub. Safety, ___ N.W.2d ___, 2016 WL 6570284 (Minn.

App. Nov. 7, 2016). We held that the implied-consent advisory violated Johnson’s rights

to due process because it instructed him that it was a crime to refuse to take a urine test

when, absent an exception to the warrant requirement, it would have been

unconstitutional to seize his urine without a warrant. Johnson, ___ N.W.2d at ___, WL

6570284 at *12. Because a warrantless search would have been impermissible, the

notification that he could be criminally charged for refusing the test was incorrect. Id. at

___, ___, 2016 WL 6570284 at *10, *12; see also Birchfield v. N. Dakota, 136 S. Ct.

2160, 2186 (2016) (holding that neither implied consent nor the search-incident-to-arrest

exception may justify a criminal penalty for refusing a warrantless blood test); State v.

Thompson, ___ N.W.2d ___, ___, 2016 WL 5930162, at *8 (Minn. Oct. 12, 2016)

(holding that test refusal statute was unconstitutional as applied to a driver prosecuted for

refusing a warrantless urine test); State v. Trahan, ___ N.W.2d ___, ___, 2016 WL

5930153, at *6 (Minn. Oct. 12, 2016) (holding that test refusal statute was

unconstitutional as applied to a driver prosecuted for refusing a warrantless blood test).

Cf. State v. Bernard, 859 N.W.2d 762, 772 (Minn. 2015) (holding that a breath test is a

constitutional search under the search-incident-to-arrest exception and that a driver may

be criminally penalized for test refusal), aff’d sub nom. Birchfield, 136 S. Ct. 2160.

Although we recognized a due process violation in Johnson, appellant in this case was

not asked to submit to a blood or urine test. He was read the implied-consent advisory


                                              9
and asked to submit to a breath test, to which he freely consented. Because appellant was

only offered a breath test, Johnson’s reasoning is inapplicable to appellant’s challenge.

The advisory to appellant that it was a crime to refuse breath testing was accurate.

       Appellant’s challenge to the breath test on the ground that the test-refusal statute is

unconstitutional fails under Bernard. In Bernard, the Minnesota Supreme Court held that

Minnesota’s test-refusal statute is constitutional as applied to a breath-test refusal. 859

N.W.2d at 767. The Minnesota Supreme Court stated, “having decided that the search of

Bernard’s breath would have been constitutional, we find no fundamental right at issue

here, as Bernard does not have a fundamental right to refuse a constitutional search.” Id.

at 773.   The supreme court performed a rational-basis review and determined that

Minnesota’s test-refusal statute “is a reasonable means to a permissive object and that it

passes rational basis review.”      859 N.W.2d at 774. Birchfield, likewise, held that,

pursuant to a lawful DWI arrest, a warrantless breath test is constitutional under the

search-incident-to-arrest exception and the driver has “no right to refuse [the breath

test].” 136 S. Ct. at 2165, 2186.

       Appellant’s constitutional challenge to a warrantless breath test and the test-refusal

statute fails under Birchfield and Bernard.           Because the test-refusal statute is

constitutional as applied to a breath test, the implied-consent advisory provided to

appellant was accurate and correctly stated that refusal to submit to the breath test is a

crime. The implied-consent advisory did not violate appellant’s rights to due process.

       Appellant also argues that the test-refusal statute violates the unconstitutional-

conditions doctrine because it “compels the surrender of the constitutional right to


                                             10
withhold consent to a warrantless search as a condition of driving.” The doctrine requires

appellant to establish that the challenged statute authorizes an unconstitutional search.

State v. Bennett, 867 N.W.2d 539, 543 (Minn. App. 2015), review denied (Minn. Oct. 28,

2015), cert. denied (U.S. June 28, 2016). In Birchfield and Bernard, a warrantless breath

test was held to be constitutional under the search-incident-to-arrest exception. 136 S. Ct.

at 2184; 859 N.W.2d at 767. In Bennett, we held that a warrantless breath test is a lawful

search incident to arrest and therefore it is not an unconstitutional search. 867 N.W.2d at

543. In light of these decisions, Minnesota’s test-refusal statute did not authorize an

unconstitutional search of appellant’s breath and the unconstitutional-conditions doctrine

does not apply.

       Affirmed.




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