                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A13-0931

Court of Appeals                                                           Gildea, C.J.
                                                    Took no part, Chutich, McKeig, JJ.

State of Minnesota,

                      Appellant,

vs.                                                            Filed: October 12, 2016
                                                             Office of Appellate Courts
Todd Eugene Trahan,

                      Respondent.

                              ________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
Saint Paul, Minnesota, for appellant.

Cathryn Middlebrook, Chief Appellate Public Defender, Saint Paul, Minnesota, for
respondent.

Daniel L. Gerdts, Minneapolis, Minnesota, for amici curiae Minnesota Association of
Criminal Defense Lawyers and Minnesota Society for Criminal Justice.

William A. Lemons, Minnesota County Attorneys Association, Saint Paul, Minnesota, for
amici curiae Minnesota County Attorneys Association and League of Minnesota Cities.

Bell Island, Island & Ruff, Attorneys at Law, PC, LLO, Gering, Nebraska; and

Barry S. Edwards, Barry S. Edwards Law Office, LLC, Minneapolis, Minnesota, for
amicus curiae National College of DUI Defense, Inc.
                             ________________________




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                                      SYLLABUS

       1.     Under Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016), the

Fourth Amendment does not permit the State to prosecute respondent for violating Minn.

Stat. § 169A.20, subd. 2 (2014), for refusing the blood test requested of him, absent the

existence of a warrant or exigent circumstances.

       2.     Exigent circumstances did not exist to support a warrantless search of

respondent’s blood.

       3.     Because the good-faith exception to the exclusionary rule is a rule of

evidence and respondent does not challenge the admission of any evidence, the good-faith

exception does not apply.

       4.     Because respondent cannot be prosecuted for refusing to consent to an

unconstitutional search, Minn. Stat. § 169A.20, subd. 2, which criminalizes an arrestee’s

refusal to take a warrantless blood test, is unconstitutional as applied.

       Affirmed.

                                        OPINION

GILDEA, Chief Justice.

       The question we are asked to decide in this case is whether Minnesota’s test refusal

statute, Minn. Stat. § 169A.20, subd. 2 (2014), is constitutional as applied to respondent

Todd Eugene Trahan. After Trahan was arrested on suspicion of driving while impaired,

he refused to submit to a warrantless blood test. Trahan pleaded guilty to first-degree test

refusal, but in postconviction proceedings, he sought to withdraw his plea, arguing that the

test refusal statute was unconstitutional as applied to him. The postconviction court denied


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relief, and the court of appeals affirmed. State v. Trahan (Trahan I), No. A13-0931, 2014

WL 4798876, at *1 (Minn. App. Sept. 29, 2014). We granted Trahan’s petition for further

review and stayed the appeal pending our decision in State v. Bernard, 859 N.W.2d 762

(Minn. 2015), aff’d sub nom. Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160,

2187 (2016). After deciding Bernard, we vacated the stay, reversed the court of appeals’

conclusion that the test refusal statute was constitutional as applied to Trahan, and

remanded for reconsideration.      On remand, the court of appeals reversed Trahan’s

conviction. State v. Trahan (Trahan II), 870 N.W.2d 396, 405 (Minn. App. 2015).

Because we conclude that the test refusal statute is unconstitutional as applied to Trahan’s

refusal to submit to a warrantless blood test, we affirm.

       On October 24, 2012, at 12:34 a.m., a Ramsey County deputy stopped Trahan

because he was speeding and driving erratically. As he approached the vehicle Trahan was

driving, the deputy saw Trahan throwing his shoulder into his locked car door in an attempt

to open it.   Trahan was “extremely agitated.”         Throughout the encounter, Trahan

continually screamed that he was going to have to do 67 months. Trahan smelled strongly

of alcohol, had red and watery eyes, and had difficulty standing. A check of Trahan’s

driving record revealed that his driver’s license had been canceled as inimical to public

safety due to multiple driving-while-impaired convictions. Due to Trahan’s “agitated and

unpredictable” state, the deputy elected to forgo standard field sobriety testing. The deputy

placed Trahan under arrest and transported him to a nearby jail.

       At the jail, the deputy read Trahan the Minnesota Implied Consent Advisory.

Trahan then asked to contact his attorney. Instead of calling an attorney, Trahan called


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several individuals whom he asked for bail. After completing these calls around 1:53 a.m.,

the deputy requested that Trahan submit to a blood or urine test. The deputy did not have

a warrant for either test. Trahan nevertheless agreed to provide a urine sample. Trahan

maintains he was able to provide the deputy with an appropriate urine sample around

2:40 a.m. The deputy, however, believed that Trahan tampered with the sample and

therefore treated Trahan’s conduct as a refusal. The deputy then requested that Trahan

submit to a blood test, which Trahan refused.

       The State charged Trahan with first-degree test refusal, in violation of Minn. Stat.

§§ 169A.20, subd. 2, 169A.24 (2014).1 Trahan pleaded guilty, admitting at the plea hearing

that after he was arrested on suspicion of driving while impaired, he refused to submit to a

blood test. The district court accepted Trahan’s plea, and convicted and sentenced Trahan.

       Trahan appealed his conviction. Following the release of Missouri v. McNeely, ___

U.S. ___, 133 S. Ct. 1552 (2013), he moved to stay his direct appeal to pursue

postconviction relief. The court of appeals granted Trahan’s motion.

       In a postconviction petition, Trahan argued that his guilty plea was not knowing,

voluntary, or intelligent because the test refusal statute was unconstitutional under



1
       Under the test refusal statute, “[i]t is a crime for any person to refuse to submit to a
chemical test of the person’s blood, breath, or urine under section 169A.51 (chemical tests
for intoxication), or 169A.52 (test refusal or failure; revocation of license).” Minn. Stat.
§ 169A.20, subd. 2. Minnesota law also provides that “[a]ny person who drives . . . a motor
vehicle within this state . . . consents . . . to a chemical test of that person’s blood, breath,
or urine for the purpose of determining the presence of alcohol, a controlled substance or
its metabolite, or a hazardous substance” and authorizes law enforcement to request that a
driver submit to a chemical test of their blood, breath, or urine in certain circumstances.
See Minn. Stat. § 169A.51, subd. 1 (2014).

                                               4
McNeely. Trahan also asserted that his plea was not valid because the factual basis at the

plea hearing did not support his conviction for test refusal. The postconviction court denied

relief, and the court of appeals affirmed. Trahan I, No. A13-0931, 2014 WL 4798876, at

*1.

       But following our post-Bernard remand, the court of appeals reversed and remanded

to the district court to allow Trahan to withdraw his guilty plea. Trahan II, 870 N.W.2d at

399. The court concluded, first, that the warrantless blood test implicated Trahan’s

fundamental right to be free from unreasonable searches under the Fourth Amendment. Id.

In particular, the court reasoned that the requested blood test was constitutionally

unreasonable because the deputy had not obtained a warrant and no exception to the

warrant requirement applied. Id. at 400-03. Having concluded that the test refusal statute

infringed upon Trahan’s fundamental right to be free from unreasonable searches, the court

next determined that the statute failed strict scrutiny review under a substantive due process

framework. Id. at 404. Last, the court rejected the State’s contention that the good-faith

exception to the exclusionary rule applied. Id. We granted the State’s petition for review.

       Following oral argument in our court in this case, the Supreme Court decided

Birchfield, ___ U.S. ___, 136 S. Ct. 2160. In Birchfield, the Court considered the search-

incident-to-arrest exception in analyzing the constitutionality of the application of North

Dakota’s and Minnesota’s test refusal statutes to warrantless breath and blood tests. 2 Id.



2
      In 2013, North Dakota adopted a law similar to Minnesota’s test refusal statute that
makes it a crime for a driver to refuse to submit to a test of their blood, breath, or urine to


                                              5
at ___, 136 S. Ct. at 2170-75. The Court affirmed our conclusion in Bernard that under

the search-incident-to-arrest exception to the warrant requirement, a breath test may be

required of a person lawfully arrested for suspicion of driving while impaired. Id. at ___,

136 S. Ct. at 2184, 2187.       The Court further held that the search-incident-to-arrest

exception did not authorize the police to take a blood sample from a person arrested for

suspicion of driving while impaired. Id. at ___, 136 S. Ct. at 2185. As a result, if the police

lawfully arrest a person for suspicion of driving while impaired, a blood test cannot be

required without a warrant or exigent circumstances, and the Fourth Amendment prohibits

a person from being convicted for refusing such a test when no warrant or exigent

circumstances are present. Id. at ___, 136 S. Ct. at 2184, 2186.3

       In light of this holding, we ordered supplemental briefing on the impact of Birchfield

to the question before us.4 In responding to this request, the State conceded that the

Supreme Court rejected its primary contention—raised prior to the Birchfield decision—

that criminalizing the refusal to take a warrantless blood test, even in the absence of exigent

circumstances, is generally “reasonable” under the Fourth Amendment. We agree with the

State’s reading of Birchfield in this respect, and accordingly hold that the Fourth




determine their alcohol concentration or the presence of other drugs. Birchfield, ___ U.S.
at ___, 136 S. Ct. at 2170; see also N.D. Cent. Code § 39-08-01(1)–(3) (2016).
3
       In Birchfield, the Court consolidated and considered three cases, Bernard and two
cases from North Dakota, Birchfield and Beylund. ___ U.S. at ___, 136 S. Ct. at 2170-72
(discussing three cases).
4
       The State has not argued that because Trahan pleaded guilty, he has waived his right
to argue that his test refusal conviction violates his Fourth Amendment rights.

                                              6
Amendment prohibits convicting Trahan for refusing the blood test requested of him absent

the existence of a warrant or exigent circumstances.

       Because there was no warrant obtained in this case, the State raises two alternative

arguments to support its theory that Trahan’s conviction satisfies the Fourth Amendment.

First, the State argues that the exigent circumstances exception to the warrant requirement

applies in Trahan’s case. Second, the State contends that the good-faith exception to the

exclusionary rule provides a basis for us to affirm Trahan’s conviction. We address each

argument in turn.

                                              I.

       We turn first to the State’s contention that Trahan’s conduct created an exigency

that justified the deputy’s request for a warrantless search. Specifically, the State argues

that it was “entirely [Trahan’s] fault that well more than two hours passed after his driving

conduct before the police became aware that he was not going to cooperate with testing,

and a warrant for a forced blood draw would be necessary to obtain evidence.”5 Had

Trahan “promptly refused testing,” the State argues, “[t]his would be a very different case,”

as prompt refusal “might have allowed the officers to obtain a warrant for his blood within

the two-hour statutory timeframe.” At a minimum, the State requests that we remand for

further fact-finding with respect to whether there were exigent circumstances, noting the

importance of determining “the availability of a warrant at or around 2:40 a.m. on


5
       It is a crime in Minnesota “for any person to drive, operate, or be in physical control
of any motor vehicle . . . when . . . the person’s alcohol concentration at the time, or as
measured within two hours of the time, of driving, operating, or being in physical control
of the motor vehicle is 0.08 or more.” Minn. Stat. § 169A.20, subd. 1(5) (2014).

                                              7
October 24, 2012,” and that it had “no reason to develop the record” due to Trahan’s guilty

plea. We need not remand this issue to the district court for fact-finding and a legal

determination regarding whether an exigency existed, however, because even if we accept

the State’s version of the facts, there was no exigency in this case. See State v. Stavish,

868 N.W.2d 670, 677 (Minn. 2015) (noting that in determining whether exigent

circumstances justified a warrantless blood draw, we review the district court’s findings of

fact for clear error but review the district court’s “ultimate determination of exigency de

novo”).

       The exigent circumstances exception to the warrant requirement “applies when ‘the

exigencies of the situation make the needs of law enforcement so compelling that the

warrantless search is objectively reasonable under the Fourth Amendment.’ ” Id. at 675

(quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)). In determining whether exigent

circumstances exist, courts follow a totality-of-the-circumstances approach. McNeely, ___

U.S. ___, 133 S. Ct. 1552, 1559 (2013). More specifically, in the context of a warrantless,

nonconsensual blood test of a suspected drunk driver, we examine whether “it was

objectively reasonable for the officer to conclude that he or she was faced with an

emergency, in which the delay necessary to obtain a warrant would significantly undermine

the efficacy of the search,” based on all of the facts “reasonably available to the officer at

the time of the search.” Stavish, 868 N.W.2d at 676-77. The government has the burden to

show that exigent circumstances existed. Welsh v. Wisconsin, 466 U.S. 740, 749-50

(1984).




                                              8
       In Stavish, we discussed the importance of drawing a suspected drunk driver’s blood

within 2 hours of an accident. 868 N.W.2d at 678. We said that drawing blood within the

2-hour window was important “to ensure the reliability and admissibility of the alcohol

concentration evidence.” Id. And specifically with respect to the exigency inquiry, we

said that “the 2-hour window is relevant . . . because collecting a blood sample within that

window best ensures that the sample can be used to prove impairment.” Id. at n.2;

cf. McNeely, ___ U.S. at ___, 133 S. Ct. at 1563 (noting that experts can “work backwards”

from the time of sampling to determine alcohol concentration at the time of the alleged

offense, but explaining that “longer intervals may raise questions about the accuracy of the

calculation”).

       We concluded in Stavish that the State proved the existence of exigent

circumstances because it was objectively reasonable for the police to conclude that they

would not be able to secure a blood sample within the 2-hour window. 868 N.W.2d at 678.

We based this conclusion on the fact that Stavish “sustained serious injuries that

necessitated emergency medical treatment at a hospital and potentially required that he be

transported by helicopter to another hospital.” Id. We said that “Stavish’s medical

condition and need for treatment rendered his future availability for a blood draw

uncertain,” and as a result, police could proceed with the warrantless blood draw based on

the emergency. Id.

       Unlike in Stavish, our assessment of the circumstances presented here convinces us

that there was no exigency. The police stopped Trahan for driving while impaired at

12:34 a.m., but Trahan’s refusal to take a blood test did not occur until 2:40 a.m. As the


                                             9
State acknowledged at oral argument, the window for proving that Trahan had a blood-

alcohol content of .08 or more within 2 hours of operating a motor vehicle had already

expired by the time Trahan refused to submit to a blood test. Minn. Stat. § 169A.20,

subd. 1(5) (2014).

       Additionally, there were no concerns about Trahan’s immediate availability for

testing. Indeed, Trahan was still at the jail when the officers requested that he submit to a

blood test. Moreover, if blood were to be drawn, officers would have had to transport

Trahan to a hospital to have his blood drawn by a medical professional, meaning that there

would have been some delay during which law enforcement could have attempted to secure

a warrant. Cf. McNeely, ___ U.S. at ___, 133 S. Ct. at 1561 (noting that the officer can

take steps to secure a warrant during the inevitable delay that will occur in the time that it

takes to transport the suspect to a hospital for testing).

       In short, given the expiration of the 2-hour statutory window, Trahan’s accessibility

to police, and the time available for police to secure a warrant while transporting Trahan

to a hospital, the circumstances here do not indicate that obtaining a warrant would have

“significantly undermine[d] the efficacy of the search.” Stavish, 868 N.W.2d at 677.

Accordingly, we hold that the State cannot meet its burden to prove exigent circumstances.

                                               II.

       We turn next to the State’s contention that the good-faith exception to the

exclusionary rule, see State v. Lindquist, 869 N.W.2d 863, 865 (Minn. 2015), requires us

to affirm Trahan’s test refusal conviction. Specifically, the State argues that because the

deputy objectively relied in good faith on binding appellate precedent in opting not to


                                              10
obtain a warrant, we should decline to suppress evidence of Trahan’s test refusal and

uphold his conviction. We are unpersuaded.

       The exclusionary rule is a “judicially created rule of evidence” that bars the

admission of evidence obtained in violation of the Fourth Amendment.                Lindquist,

869 N.W.2d at 874; see United States v. Calandra, 414 U.S. 338, 348 (1974). The good-

faith exception, in turn, does not require the suppression of illegally obtained evidence

when the evidence is obtained in “ ‘reasonable reliance’ ” on “ ‘binding appellate

precedent’ ” that “ ‘specifically authorizes a particular police practice’ ” at the time of the

search. Lindquist, 869 N.W.2d at 869 (quoting Davis v. United States, 564 U.S. 229, 241

(2011)). Here, however, the State has not used any alcohol-concentration evidence to

convict Trahan. Rather, under the facts of his case, Trahan is challenging the constitutional

validity of his conviction, which did not result from the admission of any illegally obtained

evidence.   Because Trahan is not seeking to suppress any evidence, the good-faith

exception has no applicability.

       But, according to the State, Birchfield supports the application of the good-faith

exception here.    In Birchfield, the Court reversed appellant Birchfield’s test refusal

conviction, which involved the refusal of a warrantless blood test. ___ U.S. at ___,

136 S. Ct. at 2186. On the other hand, the Court vacated the suspension of appellant

Beylund’s driver’s license, who consented to a blood test following an advisory that refusal

was a crime. Id. at ___, 136 S. Ct. at 2186. The Court remanded his case for a

determination of whether his consent was voluntary and if not, whether the evidence “must




                                              11
be suppressed when the search was carried out pursuant to a state statute.” Id. at ___,

136 S. Ct. at 2186 n.9.

       The State relies on Beylund’s case and the above-quoted language to contend that

Birchfield supports the application of the good-faith exception here. But Beylund’s case

is plainly inapposite. Beylund agreed to take a blood test, and the State determined his

alcohol concentration from the blood sample it took. Id. at ___, 136 S. Ct. at 2186. The

good-faith exception had potential applicability to Beylund’s case because the government

actually offered evidence of Beylund’s alcohol concentration, which was determined from

the blood test, at an administrative proceeding to suspend Beylund’s license. See id. at

___, 136 S. Ct. at 2186. By contrast, as in Birchfield’s case, the State has not used any

blood-test evidence to convict Trahan, and Trahan has not sought to exclude any evidence.

Accordingly, the State’s attempt to argue that the test refusal statute is constitutional, as

applied to Trahan by means of the good-faith exception, fails.

                                            III.

       Having concluded that a warrantless blood test of Trahan would have violated the

Fourth Amendment, the question remains whether the State can prosecute Trahan for

refusing to submit to an unconstitutional search. Birchfield is dispositive. There, the

Supreme Court held that under the Fourth Amendment, North Dakota could not prosecute

Birchfield for refusing to submit to an unconstitutional blood test. Id. at ___, 136 S. Ct.

at 2186. We reach the same conclusion here and hold that Trahan cannot be prosecuted




                                             12
for refusing to submit to an unconstitutional warrantless blood test, and that Minn. Stat.

§ 169A.20, subd. 2, is unconstitutional as applied.

       Affirmed.



       CHUTICH, J., took no part in the consideration or decision of this case.

       MCKEIG, J., not having been a member of this court at the time of submission, took

no part in the consideration or decision of this case.




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