                           This opinion will be unpublished and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
                                      A16-0710

                                 Ryan Paul Jirik, petitioner,
                                       Respondent,

                                             vs.

                              Commissioner of Public Safety,
                                      Appellant.

                                 Filed November 21, 2016
                                         Affirmed
                                      Johnson, Judge

                                 Rice County District Court
                                  File No. 66-CV-15-2433

Charles A. Ramsay, Daniel J. Koewler, Jay S. Adkins, Ramsay Law Firm, Roseville,
Minnesota (for respondent)

Lori Swanson, Attorney General, Amy J. Tripp-Steiner, Dominic J. Haik, Assistant
Attorneys General, St. Paul, Minnesota (for appellant)

         Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Johnson,

Judge.

                          UNPUBLISHED OPINION

JOHNSON, Judge

         The commissioner of public safety revoked Ryan Paul Jirik’s driver’s license after

he was arrested for driving while impaired and failed a urine test. Jirik petitioned for the

rescission of the revocation on the ground that the arresting officer read him an implied-
consent advisory that inaccurately informed him that he would commit a crime if he refused

to submit to a urine test. The district court granted the petition on the grounds that the

advisory was misleading and that Jirik did not give valid consent to a warrantless urine test.

We conclude that the district court did not err by concluding that the advisory was

misleading. Therefore, we affirm.

                                          FACTS

       On July 10, 2015, Lonsdale police officer Anthony Malepsy stopped a vehicle that

appeared to be speeding. Jirik was the driver of that vehicle. Officer Malepsy arrested

Jirik for driving while impaired (DWI).

       At the county jail, Officer Malepsy used a form document prepared by the

department of public safety to provide Jirik with the statutorily required implied-consent

advisory. See Minn. Stat. § 169A.51, subd. 2(a) (2014). The advisory informed Jirik that

“Minnesota law requires you to take a test to determine if you are under the influence of

alcohol” and that “[r]efusal to take a test is a crime.” Officer Malepsy then asked Jirik to

submit to a urine test. Officer Malepsy had not obtained a warrant for a search of Jirik’s

urine. Jirik agreed to provide a urine sample and did so. The result of the urine test was

an alcohol concentration of 0.09.

       The commissioner of public safety revoked Jirik’s driver’s license, as required by

statute. See Minn. Stat. § 169A.52, subd. 4(a), (c) (2014). Jirik filed a petition in the

district court, seeking the rescission of the revocation of his driver’s license. See Minn.

Stat. § 169A.53, subd. 2 (2014). The district court conducted a hearing in December 2015

at which the commissioner called Officer Malepsy as a witness.


                                              2
       In a post-hearing memorandum, Jirik argued, in part, that the revocation of his

driver’s license should be rescinded on the ground that the implied-consent advisory

informed him that he would commit a crime if he did not submit to a urine test. Jirik argued

that the implied-consent advisory was misleading because, under the Fourth Amendment,

a law-enforcement officer may not conduct a search of a person’s urine without a warrant

and, consequently, the officer threatened a prosecution that the state could not lawfully

commence or pursue.

       In response, the commissioner argued that the district court should deny Jirik’s

petition on the grounds that Jirik expressed valid consent to the search, that Jirik impliedly

consented to the search as a condition of obtaining a driver’s license, and that a warrantless

urine test following a DWI arrest satisfies the Fourth Amendment’s reasonableness

requirement. The commissioner also argued that the results of the urine test should not be

suppressed because the implied-consent statute is not unconstitutional, because the

implied-consent advisory was not misleading, and because of the good-faith exception to

the exclusionary rule of the Fourth Amendment.

       In March 2016, the district court issued an order in which it granted Jirik’s petition

and rescinded the revocation of his driver’s license. The district court analyzed the parties’

respective arguments in an attached memorandum. The most pertinent part of the district

court’s analysis is as follows:

                     In the last year, implied consent law in Minnesota has
              been in a state of flux. In one of the most recent decisions the
              Minnesota Court of Appeals held that a warrantless urine test
              following an arrest for suspicion of driving while intoxicated
              cannot be justified under the search-incident to arrest


                                              3
              exception. State v. Thompson, ____ N.W.2d ____, 2015 WL
              9437538 (Minn. App. Dec. 28, 2015). Previously, the U.S.
              Supreme Court held that a warrantless test cannot be justified
              by a per se exigency exception. Missouri v. McNeely, 133 S.
              Ct. 1552 (2013). These cases in effect eliminated the two
              applicable exceptions to the Fourth Amendment’s warrant
              requirement, leaving consent as the only available justification
              for a warrantless search in this context.

                      Based on this recent jurisprudence, refusing a
              warrantless urine test is no longer a crime. However, in spite
              of that fact, the advisory read to Mr. Jirik still stated,
              “Minnesota law requires you to take a test . . . . Refusal to take
              a test is a crime.” Thus, in this case, Mr. Jirik was threatened
              with a criminal charge if he refused the test which the State was
              not authorized to bring. The Minnesota Supreme Court has
              consistently noted its concern that law enforcement officials
              not mislead individuals with respect to their obligation to
              undergo blood and alcohol testing.                McDonnell v.
              Commissioner of Public Safety, 473 N.W.2d 848, 853 (Minn.
              1991). Indeed, in McDonnell, the court held that an implied
              consent advisory that allows police to threaten criminal
              charges the State cannot bring violates the constitutional
              guarantee of due process. Id. at 855. Based on the misleading
              advisory that was read to Mr. Jirik, this court finds Mr. Jirik
              could not have provided truly voluntary consent when
              confronted with a false dilemma between (1) consenting to a
              warrantless urine test that would incriminate him and (2) facing
              criminal penalties for refusing to consent to a test the State
              could not constitutionally take. The Commissioner has not met
              its burden of proving that the totality of the circumstances
              shows Mr. Jirik freely and voluntarily consented to the urine
              test. Consequently, the urine test obtained from Mr. Jirik was
              a warrantless search in violation of the Fourth Amendment.

The district court also rejected the commissioner’s request for application of the good-faith

exception to the exclusionary rule. The commissioner appeals.




                                              4
                                        DECISION

         The commissioner argues that the district court erred by granting Jirik’s petition for

the rescission of the revocation of his driver’s license.

                                               A.

         We begin by reciting the parties’ respective arguments and framing the appropriate

issue or issues for appellate review.

         In her principal brief, the commissioner makes two arguments. First, she argues

that the warrantless search of Jirik’s urine did not violate the Fourth Amendment because

the implied-consent statute is not unconstitutional, because Jirik consented to the

warrantless search, and because Jirik was not criminally prosecuted for refusing to submit

to a urine test. Second, she argues that the good-faith exception to the exclusionary rule

applies because Officer Malepsy “was acting in conformity with binding case law at the

time of the arrest.” The commissioner’s principal brief does not argue that the district court

erred by determining that the implied-consent advisory was misleading.

         In his responsive brief, Jirik makes two arguments. First, he argues that the implied-

consent advisory was misleading because he could not lawfully be criminally prosecuted

for refusing to submit to a urine test and that the misleading nature of the advisory violated

his right to due process. Second, he argues that the good-faith exception to the exclusionary

rule does not apply because the exclusionary rule itself applies only to a violation of the

Fourth Amendment and not to a violation of the right to due process. Jirik does not respond

to the commissioner’s argument that he validly consented to the warrantless search of his

urine.


                                               5
       In her reply brief, the commissioner makes two arguments. First, she argues that a

law-enforcement officer does not violate the Fourth Amendment by conducting a

warrantless search of an arrested person’s urine because such a search is within the search-

incident-to-arrest exception to the warrant requirement. Second, she argues that a recent

opinion of the United States Supreme Court suggests that the exclusionary rule does not

apply in a civil license-revocation proceeding. The commissioner’s reply brief does not

attempt to rebut Jirik’s argument that the district court properly determined that his right

to due process was violated because the implied-consent advisory was misleading.

       The parties’ arguments are incongruous. In general, the commissioner focuses on

the Fourth Amendment, while Jirik focuses on the right to due process. In deciding which

issue to address before the other, we note that Jirik is the party who commenced this action

by petitioning the district court for the rescission of the revocation of his driver’s license.

A person seeking judicial review under the implied-consent statute has an obligation to

identify the ground or grounds on which relief should be granted. Minn. Stat. § 169A.53,

subd. 2(b)(3) (2014); Eckstein v. Commissioner of Pub. Safety, 471 N.W.2d 114, 116

(Minn. App. 1991), review denied (Minn. Aug. 1, 1991). In Jirik’s petition, he alleged two

grounds for relief, including a claim that his right to due process was violated by a

misleading implied-consent advisory. He followed up by thoroughly briefing that issue to

the district court in his post-hearing memorandum, and he has thoroughly briefed that issue

in this court. This court recently stated that if a person challenges an implied-consent

advisory on due-process grounds, a court must consider the argument by applying the

caselaw concerning the right to due process, even if the opposing party has relied on Fourth


                                              6
Amendment principles. Johnson v. Commissioner of Pub. Safety, ___ N.W.2d ___, ___,

2016 WL 6570284, at *3-6 (Minn. App. Nov. 7, 2016). Thus, it is appropriate to first

consider Jirik’s argument that the implied-consent advisory was misleading. We do so by

applying a de novo standard of review. See id. at *6.

                                            B.

       Jirik’s argument that the implied-consent advisory was misleading is based on the

right to due process. A state shall not “deprive any person of life, liberty, or property,

without due process of law.” U.S. Const. amend. XIV, § 1; see also Minn. Const. art. I,

§ 7. In Raley v. Ohio, 360 U.S. 423, 79 S. Ct. 1257 (1959), four persons were convicted

of crimes for refusing to answer questions asked of them by a legislative commission. Id.

at 426-31, 437-39, 79 S. Ct. at 1260-63, 1266-67. They refused to answer questions after

members of the legislative commission informed them that they could assert the right

against self-incrimination. Id. at 437-39, 79 S. Ct. at 1266-67. The United States Supreme

Court reasoned that the convictions arose from “the most indefensible sort of entrapment

by the State—convicting a citizen for exercising a privilege which the State clearly had

told him was available to him.” Id. at 438, 79 S. Ct. at 1266. The Court concluded, “We

cannot hold that the Due [P]rocess Clause permits convictions to be obtained under such

circumstances.” Id. at 439, 79 S. Ct. at 1267.

       In McDonnell v. Commissioner of Public Safety, 473 N.W.2d 848 (Minn. 1991), the

Minnesota Supreme Court applied Raley to a driver’s claim that she had received a

misleading implied-consent advisory. Id. at 854-55. The driver argued that her right to

due process was violated because “she was threatened with potential criminal penalties that


                                             7
could not possibly have been imposed on her.” Id. at 853. Specifically, she argued that

the advisory was inaccurate “because her drivers license had not previously been revoked,”

which, at that time, was a prerequisite for a prosecution for refusing to submit to chemical

testing. Id. (citing Minn. Stat. § 169.123, subd. 2(b)(2) (1990)). The supreme court

analyzed her argument by stating the general principle that “due process does not permit

those who are perceived to speak for the state to mislead individuals as to either their legal

obligations or the penalties they might face should they fail to satisfy those obligations.”

Id. at 854. The supreme court reasoned that the driver’s right to due process was violated

because the advisory “permitted police to threaten criminal charges the state was not

authorized to impose.” Id. at 855. As a consequence, the supreme court concluded that

the commissioner’s revocation of the woman’s driver’s license should be rescinded. Id.

The supreme court and this court have applied McDonnell on several occasions to

arguments challenging the accuracy of an implied-consent advisory. See, e.g., Davis v.

Commissioner of Pub. Safety, 517 N.W.2d 901, 903-04 (Minn. 1994); Poeschel v.

Commissioner of Pub. Safety, 871 N.W.2d 39, 47 (Minn. App. 2015); Magnuson v.

Commissioner of Pub. Safety, 703 N.W.2d 557, 562 (Minn. App. 2005); Moe v.

Commissioner of Pub. Safety, 574 N.W.2d 96, 98 (Minn. App. 1998), review denied (Minn.

Apr. 14, 1998); Catlin v. Commissioner of Pub. Safety, 490 N.W.2d 445, 446-47 (Minn.

App. 1992).

       This court applied McDonnell most recently in a case in which the driver made the

same argument that Jirik makes in this case. In Johnson, the driver argued that the implied-

consent advisory that he received was misleading because it threatened criminal charges if


                                              8
he refused to submit to a urine test. 2016 WL 6570284, at *2. Johnson’s argument was

based on State v. Thompson, in which both this court and the supreme court held that a

warrantless search of the urine of a driver who has been arrested for DWI is not within the

search-incident-to-arrest exception to the warrant requirement.        See Thompson, 873

N.W.2d 873, 877-79 (Minn. App. 2015), aff’d, ___ N.W.2d ____, ____, 2016 WL

5930162, at *2-8 (Minn. Oct. 12, 2016). In Johnson, we held that, in light of Thompson,

the implied-consent advisory was misleading because the state could not lawfully prosecute

the driver for refusing to submit to a warrantless urine test. Johnson, 2016 WL 6570284,

at *7-10. As a consequence, we affirmed the district court’s rescission of the revocation

of Johnson’s driver’s license. Id. at *10-13.

       In this case, Officer Malepsy advised Jirik that refusal to submit to chemical testing

is a crime and asked him to submit to a urine test. But a urine test was not permitted by

the Fourth Amendment, absent Jirik’s consent, because Officer Malepsy had not obtained

a search warrant. See Thompson, 2016 WL 5930162, at *4-8. Because Officer Malepsy

could not lawfully conduct a warrantless search of Jirik’s urine, Jirik could not have been

criminally prosecuted for refusing to submit to such a test. See Thompson, 2016 WL

5930162, at *8. The district court recognized as much, stating that Jirik “was threatened

with a criminal charge . . . which the State was not authorized to bring.” The district court

was correct in determining that the implied-consent advisory that Jirik received was

misleading. See McDonnell, 473 N.W.2d at 855; Johnson, 2016 WL 6570284, at *13.

Because the advisory was misleading, Jirik’s right to due process was violated. See

McDonnell, 473 N.W.2d at 855; Johnson, 2016 WL 6570284, at *13. The remedy for the


                                                9
violation of Jirik’s right to due process is the rescission of the revocation of his driver’s

license. See McDonnell, 473 N.W.2d at 855; Johnson, 2016 WL 6570284, at *13.

                                             C.

       We next turn to the first argument in the commissioner’s principal brief, in which

she argues that the warrantless search of Jirik’s urine complied with the Fourth

Amendment. Before considering the merits of that argument, we consider whether the

argument is material in light of our conclusion that Jirik’s right to due process was violated

and that the remedy for that due-process violation is the rescission of the revocation of his

driver’s license.

       If we were to conclude that the district court erred by determining that the urine test

was conducted in violation of the Fourth Amendment, Jirik nonetheless would be entitled

to rescission because of the violation of his right to due process. And if we were to

conclude that the district court correctly determined that the urine test was conducted in

violation of the Fourth Amendment, Jirik also would be entitled to rescission because of

the violation of his right to due process and presumably also because of the violation of his

Fourth Amendment rights. In either event, Jirik would be entitled to the rescission of the

revocation of his driver’s license. Thus, we need not analyze the commissioner’s argument

that the warrantless search of Jirik’s urine complied with the Fourth Amendment.1


       Although we need not review the district court’s Fourth Amendment analysis, we
       1

question whether it is consistent with supreme court caselaw. In State v. Brooks, 838
N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014), the supreme court stated,
“Whether consent is voluntary is determined by examining the totality of the
circumstances,” which include “the nature of the encounter, the kind of person the
defendant is, and what was said and how it was said.” Id. at 568-69 (quotations omitted).

                                             10
                                             D.

       We last turn to the commissioner’s argument that the exclusionary rule does not

apply in this case. The commissioner asserts two reasons. First, she argues that the

exclusionary rule generally does not apply in a civil license-revocation proceeding in light

of Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). Second, she argues that the good-

faith exception to the exclusionary rule is triggered in this case because Officer Malepsy

“was acting in conformity with binding case law at the time of the arrest.”

       The commissioner’s arguments concerning the exclusionary rule are inapplicable in

light of our resolution of the parties’ respective arguments concerning whether Jirik’s rights

were violated. The exclusionary rule is a judicially created remedy for a violation of the

Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 655-56, 81 S. Ct. 1684, 1691-92 (1961);

State v. Lindquist, 869 N.W.2d 863, 868-69 (Minn. 2015). If we were to recognize a

violation of the Fourth Amendment, the commissioner’s arguments would be pertinent.

But we have affirmed the district court’s grant of relief on the ground that Jirik’s right to

due process was violated. The remedy for a violation of the right to due process in a civil

license-revocation case is not the exclusion of evidence but, rather, the rescission of the




The district court in this case did not perform a totality analysis. The district court noted
the misleading nature of the implied-consent advisory and the right to due process and then
made a finding that Jirik “could not have provided truly voluntary consent when confronted
with a false dilemma between (1) consenting to a warrantless urine test that would
incriminate him and (2) facing criminal penalties for refusing to consent to a test the State
could not constitutionally take.” It appears that the district court combined due-process
principles with Fourth Amendment principles and concluded that Jirik’s consent was
invalid as a matter of law, without making a finding as to whether the misleading nature of
the advisory caused Jirik’s consent to be involuntary as a matter of fact.

                                             11
revocation of the petitioner’s driver’s license. See McDonnell, 473 N.W.2d at 855;

Johnson, 2016 WL 6570284, at *13. The good-faith exception to the exclusionary rule is

inapplicable because the exclusionary rule itself is inapplicable.

       In sum, the district court did not err by finding that the implied-consent advisory

that Jirik received was misleading, by determining that the misleading advisory violated

Jirik’s right to due process, and by concluding that Jirik is entitled to the rescission of the

commissioner’s revocation of his driver’s license.

       Affirmed.




                                              12
