                        This opinion will be unpublished and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
                                   A14-1387

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                  Gary Lynn Lippy,
                                     Appellant.

                                Filed August 10, 2015
                                      Affirmed
                                    Reilly, Judge

                             Anoka County District Court
                              File No. 02-CR-13-6265

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

Anthony C. Palumbo, Anoka County Attorney, Jon C. Audette, Marcy S. Crain, Assistant
County Attorneys, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reilly, Presiding Judge; Rodenberg, Judge; and Willis,

Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

REILLY, Judge

       Appellant challenges his conviction of first-degree driving while impaired (DWI)

for refusal to submit to a chemical test, arguing that the district court erred by denying his

motion for dismissal of the charge because Minnesota’s criminalization of chemical-test

refusal is unconstitutional. Because appellant’s argument was rejected by the supreme

court in State v. Bernard, 859 N.W.2d 762 (Minn. 2015), we affirm.

                                          FACTS

       In September 2013, Officer Robert Strub of the Lino Lakes Police Department

was dispatched to investigate a report of a suspicious vehicle in a parking lot. When

Officer Strub approached the vehicle, he discovered appellant Gary Lynn Lippy asleep in

the vehicle’s driver’s seat. Officer Strub was able to awaken and speak with Lippy.

After Lippy displayed indicia of intoxication, confirmed that he had been drinking,

performed field sobriety testing, and took a preliminary breath test which indicated a .303

alcohol concentration, Officer Strub arrested him for DWI. At the police station, Officer

Strub read Lippy Minnesota’s implied-consent advisory. Lippy stated that he understood

the advisory and did not wish to speak with an attorney. He then refused to submit to a

breath test.

       Lippy was subsequently charged with first-degree DWI for his refusal to submit to

a chemical test. He moved for dismissal of the charge, arguing that the criminalization of

refusal to submit to a warrantless search is unconstitutional. When the district court

denied the motion, Lippy waived his right to a contested trial, agreed that the pretrial


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ruling was dispositive of the case, and stipulated to the presentation of the prosecution’s

evidence to the district court, in accordance with Minn. R. Crim. P. 26.01, subd. 4. The

district court found Lippy guilty of the charged offense, and this appeal follows.

                                     DECISION

        Under Minn. Stat. § 169A.20, subd. 2 (2012), “[i]t is a crime for any person to

refuse to submit to a chemical test of the person’s blood, breath, or urine.” Lippy

contends that the criminalization of refusal to submit to a warrantless chemical test is

unconstitutional. The constitutionality of a statute is a question of law, which is reviewed

de novo. State v. Ness, 834 N.W.2d 177, 181-82 (Minn. 2013).

        The United States and Minnesota Constitutions guarantee the right to be secure

against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I,

§ 10.   The taking of a blood, breath, or urine sample is a physical intrusion that

constitutes a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S.

Ct. 1402, 1412-13 (1989). A search is generally unreasonable unless conducted pursuant

to a warrant issued upon probable cause. Id. at 619, 109 S. Ct. at 1414. But there are

established exceptions to the warrant requirement, one of which is a search incident to a

lawful arrest. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716 (2009).

        In Bernard, the Minnesota Supreme Court determined that “a warrantless breath

test does not violate the Fourth Amendment because it falls under the search-incident-to-

a-valid-arrest exception.” 859 N.W.2d at 766-67 (reasoning that the exception allows the

police “to conduct a full search of the person who has been lawfully arrested” (quotation

omitted)). Responding to the defendant’s contention that Minnesota’s criminalization of


                                             3
test refusal violates the right to substantive due process under the United States and

Minnesota Constitutions, the supreme court stated that there is no fundamental right to

refuse a constitutional search. Id. at 773. The supreme court therefore applied rational-

basis review to the defendant’s due-process challenge, explaining that the test-refusal

statute would be upheld if it is not arbitrary or capricious and is a reasonable means to a

permissive government objective. Id. The supreme court determined that Minnesota has

a “compelling” public-safety interest in keeping impaired drivers off of roadways, that

securing chemical tests to determine alcohol concentration is “reasonably related” to that

interest, and that criminalizing test refusal to encourage submission to chemical tests also

furthers that interest. Id. at 773-74 (quotation omitted). The supreme court concluded

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

rational basis review” and is therefore constitutional. Id. at 774.

       As in Bernard, Lippy was lawfully arrested for DWI, was read the implied-

consent advisory, was offered a breath test, and refused to take the test. Under the

principles announced in Bernard, a warrantless breath test is constitutional as a search

incident to arrest, and the criminalization of Lippy’s refusal to take the test does not

violate the right to substantive due process and is not unconstitutional.

       Affirmed.




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