                        This opinion will be unpublished and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
                                   A14-2069

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Dean William Crider,
                                     Appellant.

                               Filed November 2, 2015
                                      Affirmed
                                  Rodenberg, Judge

                             Todd County District Court
                               File No. 77-CR-14-410

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

Charles G. Rasmussen, Todd County Attorney, Long Prairie, Minnesota; and

Scott A. Hersey, Special Assistant Todd County Attorney, Minnesota County Attorneys
Association, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and

Rodenberg, Judge.
                          UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant argues that he must be permitted to withdraw his guilty plea to felony

test refusal because Minnesota’s criminal test-refusal statute is unconstitutional under

Missouri v. McNeely, 133 S. Ct. 1552 (2013), and federal and state due process

guarantees. We affirm.

                                            FACTS

       On April 26, 2014, Long Prairie Police arrested appellant Dean William Crider for

driving under the influence of alcohol. The implied-consent law was invoked and, at the

jail, the officer gave appellant a telephone and contact information for an attorney with

whom appellant said he was familiar. Appellant looked through the telephone directories

provided to him, but never called an attorney. Instead, he eventually stated that “he was

done with his phone time, and done incriminating himself.” The officer then asked

appellant to submit to a breath test, and appellant said “no.” The officer then asked if

appellant would submit to either a urine or blood test. Appellant declined.

       Appellant was charged with one count of first-degree driving while impaired

(DWI) in violation of Minn. Stat. § 169A.20, subd. 1(1) (2012), and one count of first-

degree test refusal in violation of Minn. Stat. § 169A.20, subd. 2. Appellant pleaded

guilty to first-degree test refusal in exchange for the state dismissing the DWI charge and

recommending a 51-month prison sentence.                   Appellant now challenges the

constitutionality of the test-refusal statute for the first time on appeal.




                                               2
                                     DECISION

                                             I.

       Appellant failed to challenge the constitutionality of the test-refusal statute to the

district court. 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). This rule applies

to questions about the constitutionality of criminal statutes. Id.; State v. Moore, 846

N.W.2d 83, 87 (Minn. 2014). Here, appellant pleaded guilty to the charges and never

raised any concerns about the constitutionality of the test-refusal statute. A counseled

guilty plea “operates as a waiver of all nonjurisdictional defects,” including claimed

constitutional violations.   State v. Iverson, 664 N.W.2d 346, 350 (Minn. 2003).

Appellant’s constitutional argument should have been evident at the time of his guilty

plea because the United States Supreme Court’s decision in Missouri v. McNeely, 133 S.

Ct. 1552 (2013), predated appellant’s offense and guilty plea.          For these reasons,

appellant’s constitutional challenge to Minn. Stat. § 169A.20, subd. 2 (2012) is

procedurally barred.

                                             II.

       Even were appellant’s arguments not procedurally barred, they fall squarely within

the holding of the Minnesota Supreme Court in State v. Bernard, 859 N.W.2d 762 (Minn.

2015). Bernard held that Minnesota’s test-refusal statute was constitutional as applied to

a breath-test refusal. Bernard, 859 N.W.2d at 767-68. Appellant nevertheless argues that

the test-refusal statute is unconstitutional, and that we should disregard Bernard and




                                             3
“instead should conclude, under McNeely, that a breath test is a constitutionally

unreasonable search.”

       Minn. Stat. § 169A.20, subd. 2, criminalizes refusal to submit to alcohol

concentration testing “of the person’s blood, breath, or urine.” The supreme court held in

Bernard that “the test refusal statute is a reasonable means to a permissive object and that

it passes rational basis review.” Bernard, 859 N.W.2d at 774. Bernard held that a breath

test is constitutionally permissible as a search incident to arrest, and a person “does not

have a fundamental right to refuse a constitutional search.” Id. at 772-73.

       Appellant refused the same alcohol-concentration test as was at issue in

Bernard—a breath test.1 Cf. State v. Trahan, __ N.W.2d __ (Minn. App. Oct. 13, 2015)

(holding that Minnesota’s test-refusal statute is unconstitutional as applied to a refusal to

submit to a warrantless blood test). Appellant argues that we are free to not follow

Bernard because there is a pending petition for certiorari at the United States Supreme

Court in that case. Appellant’s argument misconstrues our proper role. “This court, as an

error correcting court, is without authority to change the law.” Lake George Park, L.L.C.

v. IBM Mid-America Emps. Fed. Credit Union, 576 N.W.2d 463, 466 (Minn. App. 1998),

review denied (Minn. June 17, 1998). Because the supreme court’s holding in Bernard is

binding on this court, and because appellant refused a breath test, appellant’s argument

lacks merit.


1
  After refusing the breath test, the officer asked appellant to submit to a blood or urine
test, and appellant refused. The officer was not required to offer appellant alternative
tests, Minn. Stat. § 169A.51, subd. 3 (2012), and appellant has made no argument in his
brief that the refusal of those tests—and not the breath test—should control the analysis.

                                             4
       The test-refusal statute is constitutional, and appellant’s conviction for test refusal

is affirmed.

       Affirmed.




                                              5
