                         This opinion will be unpublished and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
                                    A14-1476

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                               Melvin Matthew Willems,
                                      Appellant.

                                   Filed May 18, 2015
                                        Affirmed
                                      Reyes, Judge

                            Kandiyohi County District Court
                                 File No. 34CR13796

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

Shane D. Baker, Kandiyohi County Attorney, Aaron P. Welch, Assistant County
Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate State Public Defender, Rachel F. Bond, Assistant
State Public Defender, St. Paul, Minnesota (for appellant)

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

Reyes, Judge.

                        UNPUBLISHED OPINION

REYES, Judge

      Appellant Melvin Willems argues that his test-refusal conviction must be reversed

because Minnesota’s test-refusal statute is unconstitutional. We affirm.
                                             FACTS

       On October 2, 2013, Deputy Josiah Puckett was driving northbound on Highway

71 when he noticed a vehicle driving 45 miles per hour in a 60 mile per hour zone. The

vehicle eventually slowed to 21 miles per hour and drove through an intersection while

partially positioned in a turn-only lane. The vehicle continued northbound at 30 miles

per hour and began weaving within the vehicle’s lane of traffic. These observations led

Deputy Puckett to initiate a traffic stop.

       Deputy Puckett identified the driver as Willems. When speaking with Willems,

Deputy Puckett detected the odor of alcohol from the interior of the vehicle and noted

that Willems had bloodshot, watery eyes and slurred speech. Willems told Deputy

Puckett that he was driving slowly because he was lost, but admitted that he had drank a

couple of beers, with the last one being consumed approximately one hour earlier.

       Suspecting that Willems was under the influence of alcohol, Deputy Puckett

requested that Willems participate in a Horizontal Gaze Nystagmus (HGN) test. Willems

failed the HGN test. Deputy Puckett explained and demonstrated the Walk and Turn test,

but Willems stated that he could not complete it. Deputy Puckett next asked Willems to

participate in a Preliminary Breath Test (PBT) and Willems agreed to provide a breath

sample. However, before the PBT could be administered, Willems attempted to complete

the Walk and Turn test despite the fact that Deputy Puckett was not in the process of

administering it. Deputy Puckett requested that Willems return to the patrol vehicle so

that the PBT could be completed. At that time, Willems refused to provide a sample.




                                               2
       Deputy Puckett arrested Willems on probable cause for driving while impaired

(DWI) and transported him to the Kandiyohi County Jail, where he read Willems

Minnesota’s Implied Consent Advisory. Willems stated that he understood the advisory

but would not participate in the breath test. After the refusal, Willems was charged with

one count of third-degree refusal to submit to chemical testing (count one) and one count

of fourth-degree DWI (count two).

       Willems moved to dismiss count one on the basis that Minnesota’s test-refusal

statute is unconstitutional. The district court denied the motion. Following a trial on

stipulated facts under Minn. R. Crim. P. 26.01, subd. 4 and State v. Lothenbach, 296

N.W.2d 854 (Minn. 1980), the district court found Willems guilty on count one. Count

two was dismissed as part of the Lothenbach agreement. This appeal follows.

                                      DECISION

       The constitutionality of a statute is a question of law that this court reviews de

novo. State v. Ness, 834 N.W.2d 177, 181 (Minn. 2013). The reviewing court presumes

that statutes are constitutional and will strike down a statute only if absolutely necessary.

State v. Wiseman, 816 N.W.2d 689, 692 (Minn. App. 2012). “[A] party challenging the

constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute

violates a constitutional provision.” State v. Cox, 798 N.W.2d 517, 519 (Minn. 2011).

“[T]o challenge successfully the constitutional validity of a statute, the challenger bears

the very heavy burden of demonstrating beyond a reasonable doubt that the statute is

unconstitutional.” State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990).




                                              3
       Willems was convicted of gross-misdemeanor test refusal, which is defined as the

“refus[al] to submit to a chemical test of the person’s blood, breath, or urine.” Minn.

Stat. § 169A.20, subd. 2 (2012). The test-refusal statute criminalizes refusal to submit to

testing authorized under the implied-consent statute, which states that anyone who drives

a motor vehicle 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)

(2012). The implied-consent and test-refusal statutes only take effect when police

officers have probable cause to believe a person was driving while impaired and the

person has been lawfully arrested for DWI. See id., subd. 1(b) (2012).

       The federal and state constitutions protect citizens against unreasonable searches

and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. The ultimate measure of

a permissible government search under the Fourth Amendment is “reasonableness.”

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

Blood, breath, and urine tests are searches under the Fourth Amendment. See Skinner v.

Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13 (1989); State v.

Brooks, 838 N.W.2d 563, 568 (Minn. 2013). “[W]arrantless searches are presumptively

unreasonable unless one of ‘a few specifically established and well-delineated

exceptions’ applies.” State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011) (quoting State

v. Licari, 659 N.W.2d 243, 250 (Minn. 2003)).

       Willems argues that Minnesota’s test-refusal statute—section 169A.20,

subdivision 2—violates his right to due process because it criminalizes his Fourth

Amendment right to refuse an unconstitutional, warrantless search. Because Willems


                                             4
bases his due-process argument on a Fourth Amendment violation, we first decide

whether a warrantless search of Willems’s breath would have been constitutional under

the Fourth Amendment. See State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015)

(“Because Bernard bases his due process argument on a Fourth Amendment violation, we

turn first to the question of whether a warrantless search of Bernard’s breath would have

been constitutional under the Fourth Amendment.”).

I.     Constitutionality of a warrantless search of Willems’s breath

       The Minnesota Supreme Court’s opinion in Bernard is dispositive. In Bernard,

the defendant was charged with two counts of first-degree test refusal for his refusal to

submit to a breath test subsequent to his arrest for suspicion of DWI. Id. at 764-65. The

supreme court upheld the constitutionality of Minnesota’s test-refusal statute as it applied

to Bernard’s case, concluding that a warrantless breath test would not have violated the

Fourth Amendment because it would have qualified as a search incident to Bernard’s

valid arrest. Id. at 767. The same reasoning applies here.

       Under the search-incident-to-arrest exception, an officer may search a suspect

when the officer has probable cause to arrest the suspect. Arizona v. Gant, 556 U.S. 332,

338, 129 S. Ct. 1710, 1716 (2009). Probable cause to arrest exists when “the objective

facts are such that under the circumstances a person of ordinary care and prudence

[would] entertain an honest and strong suspicion that a crime has been committed.” State

v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (quotation omitted). Here, Deputy

Puckett observed Willems drive exceedingly slow, use a turn-only lane when driving

through an intersection, and weave within his lane of traffic. Deputy Puckett then


                                             5
detected the odor of alcohol, bloodshot and watery eyes, and slurred speech. Willems

subsequently admitted to drinking a couple of beers and failed the HGN test.

Accordingly, Deputy Puckett possessed the requisite probable cause to arrest Willems for

suspicion of DWI, and Willems does not contend otherwise.

       Because Deputy Puckett had probable cause to arrest Willems, a warrantless

breath test would have been constitutional as a search incident to a valid arrest. Bernard,

859 N.W.2d at 767. Moreover, Willems’s reliance on Missouri v. McNeely, 133 S. Ct.

1552, 1556 (2013), is misplaced because McNeely only addressed the single-factor

exigency exception to the warrant requirement and the Minnesota Supreme Court

declined to extend McNeely to the search-incident-to-arrest exception. Id. at 772

(“McNeely does not foreclose our decision regarding the search-incident-to-arrest

exception to the warrant requirement.”).

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

conditions doctrine. The unconstitutional-conditions doctrine prevents the state from

conditioning privileges on the relinquishment of constitutional rights. Frost v. Railroad

Comm’n, 271 U.S. 583, 592-94, 46 S. Ct. 605, 606-07 (1926). The test-refusal statute

does not violate the unconstitutional-conditions doctrine because “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.” Brooks, 838 N.W.2d at 570. “Although refusing the

test comes with criminal penalties . . . the [s]upreme [c]ourt has made [it] clear that while

the choice to submit or refuse to take [a] chemical test ‘will not be an easy or pleasant

one for a suspect to make,’ the criminal process ‘often requires suspects and defendants


                                              6
to make difficult choices.’” Id. at 571 (citing South Dakota v. Neville, 459 U.S. 553, 564,

103 S. Ct. 916, 923 (1983)). The fact that refusal is a crime does not render the

Minnesota implied-consent law unconstitutional. Id. at 572-73; see also Stevens v.

Comm’r of Pub. Safety, 850 N.W.2d 717, 731 (Minn. App. 2014) (concluding, in a civil

context, that Minnesota’s implied-consent law does not violate the unconstitutional-

conditions doctrine). Thus, the unconstitutional-conditions doctrine does not apply.

II.    Willems’s substantive due-process challenges

       The Due Process Clauses of the United States and Minnesota Constitutions

“prohibit ‘certain arbitrary, wrongful government actions, regardless of the fairness of the

procedures used to implement them.’” Boutin v. LaFleur, 591 N.W.2d 711, 716 (Minn.

1999) (quoting Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990)).

Because a search of Willems’s breath would have been constitutional under the search-

incident-to-arrest exception, no fundamental right is implicated here. See Bernard, 859

N.W.2d at 773 (concluding that Bernard did not have a fundamental right to refuse a

constitutional search).

       Because no fundamental right is implicated, we apply a rational-basis review to

assess the constitutionality of the test-refusal statute. Id. at 773 (“If a statute does not

implicate a fundamental right, we assess its constitutionality using rational basis

review.”). To survive rational-basis review, a statute must not be “arbitrary or

capricious” and will be upheld so long as it is “a reasonable means to a permissive

object.” Id. The Minnesota Supreme Court has held that “the state has a compelling

interest in highway safety justifying efforts to keep impaired drivers off the road.”


                                               7
Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 417 (Minn. 2007). The supreme

court has also held that “it is rational to conclude that criminalizing the refusal to submit

to a breath test relates to the [s]tate’s ability to prosecute drunk drivers and keep

Minnesota roads safe.” Bernard, 859 N.W.2d at 774. Because the test-refusal statute is a

reasonable means to a permissive object, it passes rational-basis review. State v. Behl,

564 N.W.2d 560, 567 (Minn. 1997). Thus, Willems’s due-process rights were not

violated.

       Affirmed.




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