                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0301

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                             Ronald James Chasingbear,
                                    Respondent.

                              Filed August 4, 2014
                                    Reversed
                                   Ross, Judge
                        Concurring specially, Larkin, Judge


                              Clay County District Court
                               File No. 14-CR-13-3688

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

Brian J. Melton, Clay County Attorney, Heidi M. F. Davies, Assistant County Attorney,
Moorhead, Minnesota (for appellant)

Brian P. Toay, Wold Johnson, P.C., Fargo, North Dakota (for respondent)


      Considered and decided by Ross, Presiding Judge; Larkin, Judge; and Willis,

Judge.




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                         UNPUBLISHED OPINION

ROSS, Judge

       Ronald Chasingbear refused a breath test requested by a Moorhead police officer

under Minnesota’s implied-consent law after the officer arrested Chasingbear, suspecting

that he had been driving drunk. The state charged Chasingbear with the crime of test

refusal. The district court deemed the test-refusal statute unconstitutional based on

Chasingbear’s Fourth Amendment rights and dismissed the charge. We reverse because

Chasingbear has failed to meet his heavy burden of establishing that the statute is

unconstitutional on any of the theories raised.

                                          FACTS

       A little before midnight on Halloween 2013, Fargo police alerted Moorhead police

about an intoxicated domestic-assault suspect headed into Moorhead in a van registered

to Ronald Chasingbear. Moorhead officer Nicholas Wiedenmeyer spotted the van and

stopped it. Chasingbear was the driver. The officer saw that Chasingbear had minor

injuries consistent with the reported assault, and he noticed that Chasingbear smelled

strongly of alcoholic beverages and had slurred speech. Officer Wiedenmeyer

administered field sobriety tests, which Chasingbear failed.

       Officer Wiedenmeyer arrested Chasingbear and took him to the Clay County jail.

He read Chasingbear the implied-consent advisory. Chasingbear indicated that he

understood the advisory and asked to speak with an attorney, but he did not attempt to

contact one. Officer Wiedenmeyer asked Chasingbear to perform a breath test, and

Chasingbear refused. The state charged Chasingbear with test refusal under Minnesota


                                             2
Statutes section 169A.20, subdivision 2 (2012), and third-degree driving while impaired

under section 169A.26, subdivision 1 (2012).

       Chasingbear moved to dismiss the test-refusal charge, arguing that the test-refusal

statute is unconstitutional because it punishes him for exercising his constitutional right

to refuse to submit to a warrantless search. The parties submitted briefs on the motion,

and the district court held that the statute is unconstitutional under the “unconstitutional

conditions” doctrine and dismissed the test-refusal charge.

       The state appeals.

                                       ANALYSIS

       Our first question is what is the question? That is, we must determine the

framework of our constitutional review. This case offers three alternatives. First, the

district court deemed the test-refusal statute unconstitutional under the unconstitutional

conditions doctrine as discussed by the state supreme court after being variously applied

by the federal Supreme Court. See State v. Netland, 762 N.W.2d 202, 211–12 (Minn.

2009) (citing Frost v. R.R. Comm’n of Cal., 271 U.S. 583, 592, 46 S. Ct. 605, 606–07

(1926)), abrogated on other grounds by State v. Brooks, 838 N.W.2d 563 (Minn. 2013).

Our review of the record leads us to believe that the district court developed this reason to

deem the statute unconstitutional on its own; Chasingbear had not offered this theory, and

no party apparently suggested it to the district court. Second, although the state’s

appellate brief does not expressly frame its argument in terms of substantive due process,

in the district court it defended the constitutionality of the statute by relying on this

court’s substantive due process analysis as applied in State v. Wiseman, 816 N.W.2d 689,


                                             3
695 (Minn. App. 2012), cert. denied, 133 S. Ct. 1585 (2013), and its argument on appeal

also depends on the Wiseman analysis as revisited in State v. Bernard, 844 N.W.2d 41,

45–46 (Minn. App. 2014), review granted (Minn. May 20, 2014). Third, Chasingbear has

taken a different approach. He does not argue in direct support of the district court’s

unconstitutional conditions theory. Instead, he dismisses Wiseman as overruled law and

castigates Bernard as bad law. Then he elaborates on the position he took in the district

court and asks us to deem the statute unconstitutional under the approach the Supreme

Court took in Camara v. Municipal Court of San Francisco, 387 U.S. 523, 532–33, 87

S. Ct. 1727, 1732–33 (1967), because, Chasingbear argues, “the facts and legal issues are

identical to those set forth in Camara.” These ships pass in the night; neither of the

parties nor the district court ever attempts to explain why any one of these different

frameworks is more or less fitting than the others. So despite the position of the

concurring opinion that we can focus our opinion narrowly, we must address each one.

Starting Point: Statute Is Constitutional

      Before we assess the statute’s constitutionality under each alternative framework

before us, we first emphasize two substantial obstacles standing against our affirming the

district court’s decision regardless of which framework we apply. The first is that a

strong presumption of constitutionality accompanies each statute. Under this

presumption, we follow the supreme court’s approach and exercise our authority to

declare a statute unconstitutional only with extreme caution and when absolutely

necessary, after the challenger has demonstrated the statute’s unconstitutionality beyond

any reasonable doubt. Walker v. Zuehlke, 642 N.W.2d 745, 750 (Minn. 2002). The


                                            4
second is that this strong presumption as applied to Chasingbear’s challenge is elevated

by the reasoning of two recent drunk-driving, chemical-testing opinions—one issued by

the United States Supreme Court and one by the state supreme court.

       The United States Supreme Court recently restated its support for state penalties

against test refusal, and it did so in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the very

Fourth Amendment case on which the district court and Chasingbear rely as the

cornerstone of their different theories that the statute offends the Fourth Amendment. To

support its decision prohibiting Missouri from warrantlessly drawing blood from a

suspected drunk driver without his consent and without exigent circumstances, the

McNeely Court highlighted several alternatives to warrantless, nonconsensual blood

draws, and it expressly described these alternatives as “legal” (that is, constitutional). 133

S. Ct. at 1566. The Court reminded us that, among other constitutional penalties that

states can rely on to secure chemical-test evidence in drunk-driving cases, a state does not

violate a defendant’s Fifth Amendment rights by urging a criminal jury to infer from a

defendant’s refusal to submit to chemical testing that he is guilty of the crime of drunk

driving. Id. (citing South Dakota v. Neville, 459 U.S. 553, 563–64, 103 S. Ct. 916, 922–

23 (1983)). While the re-emphasized Neville decision is not a Fourth Amendment case,

McNeely certainly is. And it was in the Fourth Amendment context that McNeely

expressly reminds us through Neville that a state can constitutionally use the driver’s test

refusal (that is, the driver’s exercise of his Fourth Amendment right not to be tested

without consent) as inferential evidence to convict the driver of a crime, even though the

Constitution would have prohibited the state from forcing that driver to submit to an


                                              5
actual chemical test. This contrasts sharply with the general rule that due process bars

prosecutors from referring to a defendant’s refusal to consent to a warrantless search to

raise an inference of guilt. See, e.g., United States v. Runyan, 290 F.3d 223, 249 (5th Cir.

2002) (“[T]he circuit courts that have directly addressed this question have unanimously

held that a defendant’s refusal to consent to a warrantless search may not be presented as

evidence of guilt.”); United States v. Thame, 846 F.2d 200, 206–07 (3rd Cir. 1988)

(holding the same and adding that a defendant’s decision to exercise his Sixth

Amendment right to counsel cannot serve as evidence of guilt); State v. Larson, 788

N.W.2d 23, 32–33 (Minn. 2010) (erroneous to admit defendant’s refusal of voluntary

DNA test as evidence of guilt); State v. Jones, 753 N.W.2d 677, 687 (Minn. 2008)

(noting that it would be improper for prosecutor to comment on defendant’s refusal to

give saliva sample). That the Supreme Court in McNeely buttressed its Fourth

Amendment holding on the states’ lawful authority to rely on test refusals to convict

drivers of a crime significantly undermines the district court’s conclusion that the

Minnesota test-refusal statute is infected by a fatal Fourth Amendment infirmity.

       In similar fashion, our state supreme court recently held that an officer’s warning

to a suspected drunk driver that a chemical test is required and that refusal is a crime does

not unconstitutionally coerce the driver to waive his Fourth Amendment rights and

consent to a test. State v. Brooks, 838 N.W.2d 563, 569–570 (Minn. 2013), cert. denied,

134 S. Ct. 1799 (2014). Chasingbear cites Brooks, but he does not attempt to answer the

question that arises from its holding as applied to this case: If the state threatens action

that is not unconstitutionally coercive in violation of a person’s Fourth Amendment


                                             6
rights, how can the state’s carrying out the threat violate the person’s Fourth Amendment

rights? Although Chasingbear does not offer an answer, the Brooks court, like the

McNeely Court, suggests one: “Although refusing the test comes with criminal penalties

in Minnesota, . . . [and] 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 to make difficult choices.’” Id. at 571 (quoting Neville, 459 U.S.

at 564, 103 S. Ct. at 923).

       With this background—that is, beginning with the strong presumption favoring the

statute’s constitutionality and with the highest state and federal courts heavily suggesting

constitutionality—we turn to whether Chasingbear has met his “very heavy burden” to

demonstrate beyond a reasonable doubt that the statute is unconstitutional under any of

the frameworks presented. See State v. Johnson, 813 N.W.2d 1, 11 (Minn. 2012)

(quotation omitted). He has not.

Unconstitutional Conditions

       The district court concluded that the statute falls invalid under the unconstitutional

conditions doctrine. We first comment on how the district court got to this theory before

addressing its merits. We have carefully reviewed the record, and we are left believing

that Chasingbear never argued to the district court that the statute is unconstitutional

under the unconstitutional conditions doctrine. And the state’s brief to the district court

did not address the doctrine, apparently having no reason to suppose that the district court

would introduce it sua sponte. The constitutional theory does not appear in the record

until the district court relies exclusively on it in its final order deeming the statute


                                             7
unconstitutional. In other words, rather than holding the constitutional challenger to his

heavy burden to prove the statute unconstitutional beyond a reasonable doubt in the face

of the strong presumption of constitutionality, the district court instead seems to have

joined the contest and carried the burden itself on the challenger’s behalf, invalidating the

statute as unconstitutional on a theory never presented or argued by either party. Judges

are not parties. They have a duty to remain neutral. See Minn. Code Jud. Conduct Rule

2.2. Our concern over the apparent lack of judicial neutrality here is aggravated by the

additional circumstance that the district court seems to have stepped into territory where

the separation of powers especially urges judicial restraint; the ultimate legal conclusion

sought here—the constitutional invalidation of a statute—requires the judicial branch to

decide whether the executive branch can enforce a law developed by the legislative

branch. Despite these concerns, the state has not based its challenge on the apparent lack

of judicial neutrality, and we will address the merits of the district court’s rationale.

       The district court first says that the state supreme court and this court previously

“skirted the issue of the constitutionality of the test refusal statute.” Then it maintains that

it can apply the unconstitutional conditions doctrine because, it asserts, the supreme court

nonetheless “has conceded that ‘the government may not grant a privilege on condition

that the recipient forfeits a constitutional right,’” quoting Netland, 762 N.W.2d at 211,

which quoted Frost, 271 U.S. at 593–94, 46 S. Ct. at 606–07. And then it concludes that

“this is exactly what the legislature has done” with the test-refusal statute. On that

rationale, it holds the statute unconstitutional. We believe that the district court erred as a

matter of law.


                                               8
       The district court’s first analytical error is suggesting that the supreme court has

already concluded that the unconstitutional conditions doctrine applies in this setting. By

stating that the supreme court first “skirted” the question of the constitutionality of the

test-refusal statute and then “has conceded” the quoted language from Netland, the

district court creates the impression that the supreme court has already concluded that the

unconstitutional conditions doctrine applies to the test-refusal statute. But the supreme

court’s express statement in Netland belies the conclusion that the district court has

inferred. After the supreme court’s so-called “concession,” it expressly chose not to

conclude that the doctrine applies where the district court now says it does: “[W]e need

not determine whether the unconstitutional conditions doctrine applies to Fourth

Amendment rights.” 762 N.W.2d at 212. This statement in Netland refusing to decide

whether the doctrine even applies here was the supreme court’s last word on the subject.

Neither this court nor the supreme court has ever held that the doctrine applies in this

setting. The district court erroneously began its analysis on a faulty premise.

       The district court’s second error was failing to accurately apply the doctrine here

even if it applies in the Fourth Amendment context. A look at the doctrine’s purpose

informs us that the district court wrongly decided that applying it here would result in

invalidating the test-refusal statute. At its core, the unconstitutional conditions doctrine

thwarts the government’s temptation to extort its citizens by conditioning the grant or

denial of some governmental privilege on the surrender of some constitutional right. It

arose to limit a legislative practice that wrongly supposes that, just because the

government has absolute discretion not to afford a particular privilege to anyone, it


                                             9
always has the authority to grant that privilege only to those who agree to give up

something in exchange—particularly, some constitutional right. As the judicial

application of the doctrine teaches, sometimes the practice is unconstitutional, sometimes

it is not. By not considering the reason that the doctrine arises to restrict the practice in

some situations, the district court apparently assumed the premise that the practice is

always unconstitutional. The purpose and historic application of the doctrine disprove

that premise.

       Although the doctrine long predates the Supreme Court’s 1926 decision in Frost,

we can begin with that case because Frost was the Supreme Court’s first unconstitutional

conditions case involving the license to operate motor vehicles. In Frost, the Supreme

Court invalidated a California law in which a state commission conditioned each private

commercial hauler’s right to use the public highways on the hauler’s agreement

effectively to “dedicate his [vehicle] to the business of public transportation and subject

himself to all the duties and burdens imposed by the act upon common carriers.” 271 U.S.

at 592, 46 S. Ct. at 606. Because the Due Process Clause does not allow the state to

convert “a private carrier . . . against his will into a common carrier by mere legislative

command,” the state also may not “bring about the same result by imposing the

unconstitutional requirement as a condition precedent to the enjoyment of a privilege,

which . . . [is] within the power of the state altogether to withhold if it sees fit to do so.”

Id. at 592–94, 46 S. Ct. at 607. This is because the Court believes that “[i]t is

inconceivable that guaranties embedded in the Constitution of the United States may thus

be manipulated out of existence.” Id. at 594, 46 S. Ct. at 607. This seemingly sweeping


                                              10
language in Frost was relied on expressly by the district court here to hold that, “[a]s

applied to Minnesota’s test refusal statute, this is exactly what the legislature has done.”

       But this is not what the Minnesota legislature has done. The district court’s

treatment of some of Frost’s language overlooks two related, fundamental elements of

the unconstitutional conditions doctrine as revealed in Frost and in virtually all thorough

analyses of the doctrine, and both of those fundamental elements are lacking here.

       The first overlooked element is the most obvious. The unconstitutional conditions

doctrine applies to invalidate legislation only when the state has conditioned its grant or

denial of some privilege on the recipient’s surrender of a constitutional right. Id. at 594,

46 S. Ct. at 607 (“If the state may compel the surrender of one constitutional right as a

condition of its favor, it may, in like manner, compel a surrender of all.” (emphasis

added)); Netland, 762 N.W.2d at 211 (“Principally, the unconstitutional conditions

doctrine reflects a limit on the state’s ability to coerce waiver of a constitutional right

where the state may not impose on that right directly.” (emphasis added)). As the United

States Supreme Court has explained in the implied-consent setting, the “right to refuse

the blood-alcohol test, by contrast [to a right rooted in the Constitution], is simply a

matter of grace bestowed by the [state] [l]egislature.” Neville, 459 U.S. at 565, 103 S. Ct.

at 923. So the only right Chasingbear surrendered in exchange for the privilege to drive in

Minnesota under the implied-consent scheme was a right afforded by statute, not by the

Minnesota or federal Constitution. And as demonstrated in McNeely, even in an implied-

consent setting a person who actually refuses a chemical test after having been reminded

of his “implied consent” obligation not to do so has not in fact surrendered the right to


                                             11
withhold actual consent; if he eventually does withhold actual consent, the Fourth

Amendment continues to limit the state’s constitutional authority to search his body and

seize a sample of his blood for chemical testing. See 133 S. Ct. at 1557–60 (considering

exigent circumstances, not consent, after suspected drunk driver refused to be tested after

having been read Missouri’s implied-consent advisory).

       In other words, according to the Supreme Court, a person suspected of drunk

driving has no constitutional right to refuse (that is, to withhold his consent) to be tested

without a warrant upon request even though, also according to the Supreme Court, he

retains the constitutional right not to actually be tested without a warrant or a valid

warrant exception. The somewhat competing notions may be difficult to comprehend

using linear reasoning, but this is simply a legal paradox. Legal paradoxes exist and make

some constitutional anomalies challenging, if not perplexing, but they do not render them

wrong or illogical. See, e.g., Trop v. Dulles, 356 U.S. 86, 105, 78 S. Ct. 590, 600 (1958)

(Brennan, J., concurring) (accepting that it is “paradoxical [but appropriate] to justify as

constitutional the expatriation of the citizen who has committed no crime by voting in a

Mexican political election, yet find unconstitutional a statute which provides for the

expatriation of a soldier guilty of the very serious crime of desertion in time of war”).

And in Minnesota, the suspected drunk driver who refuses a chemical test retains not

only the constitutional right not to be tested, he also has the additional statutory right not

to be tested. Minn. Stat. § 169A.52, subd. 1 (2012) (“If a person refuses to permit a test,

then a test must not be given.”). He nevertheless has neither the statutory nor

constitutional right to refuse testing without penalty. And because Chasingbear had no


                                             12
constitutional right to refuse to be tested, the district court erroneously concluded that the

state violated the principles of the unconstitutional conditions doctrine by punishing his

refusal.1

       The second element of Frost’s unconstitutional conditions explanation that was

overlooked by the district court does not depend on the first, but it is also dispositive.

That is, even if a person suspected of drunk driving does have a constitutional right to

refuse testing, this does not necessarily invalidate the statute under the unconstitutional

conditions doctrine. Despite Frost’s seemingly sweeping language quoted by the district

court, elsewhere the Frost Court revealed more narrowly an essential reason for deeming

California’s common-carrier law unconstitutional under the doctrine:

                     It is very clear that the act . . . is in no real sense a
              regulation of the use of the public highways. It is a regulation
              of the business of those who are engaged in using them. Its
              primary purpose evidently is to protect the business of those
              who are common carriers . . . by controlling competitive
              conditions.

271 U.S. at 591, 46 S. Ct. at 606. The district court missed this significant point of Frost,

and indeed, the significant point in the long line of unconstitutional conditions cases: The

unconstitutional conditions doctrine looks to the purpose of the challenged condition, and

it invalidates only those laws whose challenged condition bears no significant relevance



1
  As the concurring opinion indicates, this court has also recently concluded that the
unconstitutional conditions doctrine does not invalidate the implied-consent statute
because the statute does not authorize an unconstitutional search and because, even if it
did authorize an unconstitutional search, the statute is not coercive. Stevens v. Comm’r of
Pub. Safety, ___ N.W.2d ___ (Minn. App. July 14, 2014). We agree that the holding and
reasoning of Stevens provides an additional basis for our conclusion on this issue.

                                             13
to the governmental objective of the privilege that the government is conditionally

conferring.

       As one United States Justice recently and accurately summarized, “There is no

case of ours in which a condition that is relevant to a statute’s valid purpose and that is

not in itself unconstitutional (e.g., a religious-affiliation condition that violates the

Establishment Clause) has been held to violate the doctrine.” Agency for Int’l Dev. v.

Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2334 (2013) (Scalia, J., dissenting)

(emphasis added). The majority in that case clearly agreed, explaining, “By demanding

that funding recipients adopt—as their own—the Government’s view on an issue of

public concern, the condition by its very nature affects protected conduct outside the

scope of the federally funded program.” Id. at 2330 (quotation omitted). Commentators

have long understood this, identifying “the most significant” characteristic of invalidated

conditions as “the condition’s irrelevancy to the attainment of the governmental

objectives involved in the extension of the benefit.” Unconstitutional Conditions, 73

Harv. L. Rev. 1595, 1596 (1960); cf. Dolan v. City of Tigard, 512 U.S. 374, 386, 114

S. Ct. 2309, 2317 (1994) (“In evaluating petitioner’s [unconstitutional condition] claim,

we must first determine whether the essential nexus exists between the legitimate state

interest and the permit condition exacted by the city.” (quotations omitted)); Sherbert v.

Verner, 374 U.S. 398, 406, 83 S. Ct. 1790, 1795 (1963) (“We must next consider whether

some compelling state interest enforced in the eligibility provisions of the [challenged]

statute justifies the substantial infringement of appellant’s First Amendment right.”).




                                             14
       Nothing in the district court’s reasoning here indicates that it attempted to assess

or apply this essential element of the unconstitutional conditions doctrine in the implied-

consent setting. That is, it seems never to have considered the significance of the

relationship between the condition and the state’s objectives in conferring the privilege to

drive a car. But the significance of the relationship is readily apparent. The conditional

bargain of the implied-consent scheme can be summarized this way: Minnesota confers

on drivers the privilege of soberly operating inherently dangerous motorized vehicles on

the state’s roadways—vehicles that accounted for about 400 deaths statewide in 2012

(approximately one-fourth of which were alcohol-related), Minn. Dep’t of Pub. Safety,

Minnesota Impaired Driving Facts 2012 ii (2013)—and, in exchange, each driver accepts

a statutory choice. In that choice, if he is arrested on probable cause of driving while

impaired, he will either agree (actually consent) to undergo a noninvasive chemical test

for scientific evidence of his precise intoxication level, or he will face civil and criminal

penalties substantially equivalent to penalties that await those convicted of driving drunk.

Unlike those cases in which the Supreme Court has invalidated laws under the

unconstitutional conditions doctrine, the condition imposed here tightly relates to the

privilege conferred. The statutory condition that every arrested, apparently drunk, driver

agrees to submit to a chemical test or be penalized for refusing the test directly and only

furthers the state’s interest in the sober use of public highways.

       In sum, we believe that the district court erred by failing to recognize that, despite

a driver’s having the constitutional right not to be tested without a warrant or a valid

warrant exception, suspected drunk drivers have no constitutional right to refuse to be


                                             15
tested or to avoid prosecution for that refusal. Because Chasingbear’s test-refusal

prosecution does not implicate any constitutional right, the district court’s

unconstitutional conditions conclusion must fail. And even if a suspected drunk driver

does have a general constitutional right to refuse testing, the limited encroachment on that

right by the state’s conditioning his privilege to soberly drive on his consent either to

submit to testing or to face criminal penalties is tightly related to the statute’s valid

purpose. For these independent reasons, in addition to our holding in Stevens, we hold

that the district court erroneously applied the unconstitutional conditions doctrine to

invalidate the test-refusal statute. We next decide whether the statute survives under

substantive due process.

Substantive Due Process

       Chasingbear implicitly argued to the district court and to this court that the test-

refusal statute violates his substantive due process rights because, he maintains, this

court’s holding to the contrary in Wiseman is undermined by McNeely. We believe that

he overstates McNeely’s effect. If this appeal had presented a challenge to the state’s

authority to collect evidence, our review would specifically follow the Fourth

Amendment and the corollary Minnesota constitutional provision of article I, section 10,

which provide the express limits on the state’s authority to “search” persons and to

“seize” evidence. See, e.g., McNeely, 133 S. Ct. at 1568 (applying Fourth Amendment

analysis to prohibit state from searching a suspected drunk driver’s body by hypodermic

extraction of blood for chemical testing without a warrant or a valid warrant exception).

This is because the specific constitutional amendment that defines the protection


                                            16
prohibiting the specific governmental action, not the general notion of substantive due

process, provides the framework for a substantive constitutional challenge. Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 842, 118 S. Ct. 1708, 1714 (1998); Mumm v.

Mornson, 708 N.W.2d 475, 482 (Minn. 2006); see also Graham v. Connor, 490 U.S. 386,

395, 109 S. Ct. 1865, 1871 (1989) (“Because the Fourth Amendment provides an explicit

textual source of constitutional protection against this sort of physically intrusive

governmental conduct [of alleged excessive force], that Amendment, not the more

generalized notion of ‘substantive due process’ must be the guide for analyzing these

claims.”).

       But Chasingbear’s challenge relies only indirectly on the Fourth Amendment. He

does not challenge the state’s authority to collect evidence, nor do the facts allow him to

do so. See Lewis, 523 U.S. at 843, 118 S. Ct. at 1715 (“Substantive due process analysis

is therefore inappropriate in this case only if respondents’ claim is ‘covered by’ the

Fourth Amendment. It is not. The Fourth Amendment covers only ‘searches and

seizures,’ neither of which took place here.”). Unlike in McNeely, where the Supreme

Court addressed Missouri’s authority to collect a suspected drunk driver’s blood against

his will (both a search and a seizure), here the state never actually searched for nor seized

evidence. Indeed, Chasingbear refused to provide an evidentiary breath sample for

testing, and, by operation of the implied-consent statute, once a person refuses a

requested test, “a test must not be given.” See Minn. Stat. § 169A.52, subd. 1. So instead

of challenging the state’s authority to search him and seize evidence, Chasingbear

actually challenges the state’s authority to enforce a statute that punishes him for refusing


                                             17
to provide an evidentiary sample of his breath after his arrest for drunk driving. We

therefore turn to the due process analysis.

       The due process clauses of the Minnesota and United States Constitutions prohibit

the state from depriving a person of “life, liberty, or property, without due process of

law.” U.S. Const. amends. V, XIV; Minn. Const. art. I, § 7. The Due Process Clause has

been held to include an implicit substantive component, protecting individual liberty from

“certain government actions regardless of the fairness of the procedures used to

implement them.” Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665 (1986).

Chasingbear’s challenge to the state’s authority to punish him criminally for refusing to

provide a sample of his breath after his arrest for drunk driving implicates his liberty

interest. See Kansas v. Hendricks, 521 U.S. 346, 356, 117 S. Ct. 2072, 2079 (1997)

(describing the freedom from physical restraint as part of “the core of the liberty

protected by the Due Process Clause” (quotation omitted)). Before we can assess the

state’s authority to take Chasingbear’s liberty for refusing to provide a breath sample, we

must first characterize the nature of the alleged right as either fundamental or not.

       We will strictly scrutinize a challenged law that implicates a fundamental right.

Essling v. Markman, 335 N.W.2d 237, 239 (Minn. 1983). And we will uphold such a law

under this strict scrutiny only if it serves a compelling state interest and is narrowly

tailored to serve that interest. See id. But when a challenged statute does not implicate a

fundamental right, we will hold that it violates substantive due process rights only if,

applying a rational-basis test, the challenger has established that the statute is not

reasonably related to a legitimate governmental interest. See Reno v. Flores, 507 U.S.


                                              18
292, 305, 113 S. Ct. 1439, 1448–49 (1993); In re Individual 35W Bridge Litigation, 806

N.W.2d 820, 830 (Minn. 2011).

      In Wiseman, we applied only the rational-basis standard to a substantive due

process challenge to the test-refusal statute. 816 N.W.2d at 695. We refused to apply the

higher, strict-scrutiny standard, rejecting Wiseman’s argument that the refusal statute

infringed his fundamental right to refuse a warrantless search. Id. We did so by first

joining the parties’ assumptions that probable cause and exigent circumstances existed at

the time of the request and then recognizing that a suspected drunk driver has no

fundamental right to refuse a warrantless search under those circumstances. Id. at 694–

95.

      Questioning the viability of Wiseman, Chasingbear accurately observes that

Wiseman predates McNeely. But he wrongly concludes that McNeely overrules Wiseman.

McNeely was a warrantless search case, not a warrantless test-refusal case like Wiseman.

Nothing in McNeely undercuts the due process analysis in Wiseman; it merely

incidentally narrows that class of cases to which Wiseman directly applies. Based on the

then-widely accepted, pre-McNeely understanding that the human body’s natural

metabolization of consumed alcohol alone establishes exigent circumstances to justify a

warrantless chemical test whenever an officer has probable cause to suspect drunk

driving, id. at 694, the Wiseman parties framed their constitutional arguments assuming

that “the police [would have been] justified in collecting a sample for chemical testing

under the exigent-circumstances exception to the warrant requirement,” id. at 693. Based

on that assumption, we analyzed Wiseman’s constitutional challenge to the test-refusal


                                           19
statute by likewise assuming that exigent circumstances existed—circumstances that

would have justified a hypothetical nonconsensual warrantless search. Id. at 694.

McNeely holds only that exigent circumstances cannot rest entirely on the human body’s

natural metabolization of alcohol. 133 S. Ct. at 1568. It does not hold that when exigent

circumstances are in fact present an officer would lack constitutional authority to test a

noncompliant driver without a warrant. So McNeely only limits Wiseman’s holding, and

it does so only to the extent McNeely’s rationale bears on test refusals in cases in which

alcohol metabolization alone is the proffered basis for claimed exigency. Although

McNeely limits those cases to which Wiseman’s due process analysis applies, we reject

Chasingbear’s premise that Wiseman has no precedential authority.

      While the due process analysis in Wiseman remains intact, Chasingbear correctly

observes that, here, as in Bernard, no exigent circumstances were assumed or proved,

and, for our purposes, they are assumed not to have existed at the time Officer

Wiedenmeyer asked Chasingbear to submit to testing. See Bernard, 844 N.W.2d at 46

(discussing the hypothetical impact of exigent circumstances). Based on this lack of

exigent circumstances, Chasingbear argues at length that “[a] warrant was required to

obtain a sample of [his] blood.” That argument is compelling; under these circumstances

a warrant would indeed have been required “to obtain a sample of Chasingbear’s blood”

against his will, because McNeely would apply directly and the test results would be

suppressed by direct application of the Fourth Amendment and the exclusionary rule. But

again, police did not obtain a sample of Chasingbear’s blood or even attempt to do so.

Our question now is whether substantive due process rights prohibit the state from


                                           20
punishing Chasingbear for refusing to submit to a breath test under the implied-consent

law under circumstances in which police would have needed a warrant to force an

involuntary chemical test.

       Given that no direct Fourth Amendment right is at stake for the reasons stated, we

must decide whether a suspected drunk driver’s refusal to submit to chemical testing is a

fundamental right or something less. The Supreme Court has explained, “[W]e have

regularly observed [in a substantive-due-process analysis] that the Due Process Clause

specially protects those fundamental rights and liberties which are, objectively, deeply

rooted in this Nation’s history and tradition . . . and implicit in the concept of ordered

liberty, such that neither liberty nor justice would exist if they were sacrificed.”

Washington v. Glucksberg, 521 U.S. 702, 720–21, 117 S. Ct. 2258, 2268 (1997)

(quotations omitted). If the question here is very broadly stated—Does a person have a

fundamental right to refuse to consent to a warrantless search?—one may say yes, a

fundamental right is at stake even if the Fourth Amendment is not directly implicated. If,

however, the question is more narrowly stated—Does a suspected drunk driver have a

fundamental right to refuse to provide a breath sample to reveal the precise quantity of

alcohol in his body?—one could say no, a fundamental right is not at stake.

       Precedent leads us to believe that the narrow approach to defining the right is the

correct approach. The Supreme Court has “required in substantive-due-process cases a

‘careful description’ of the asserted fundamental liberty interest.” Id. at 721, 117 S. Ct. at

2268. In Glucksberg, the Supreme Court rejected the court of appeals’ framing of the

issue broadly as ‘“whether there is a liberty interest in determining the time and manner


                                             21
of one’s death’” or “‘is there a right to die?’” and instead framed it as “whether the

‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide

which itself includes a right to assistance in doing so.” Id. at 722–23, 117 S. Ct. at 2268–

69. The Court has also explained that the “Substantive due process analysis must begin

with a careful description of the asserted right.” Flores, 507 U.S. at 302, 113 S. Ct. at

1447 (quotation omitted); see also McDonald v. City of Chi., 561 U.S. 742, 130 S. Ct.

3020, 3053–54 (2010) (Scalia, J., concurring) (explaining that under the due process

framework the Supreme Court has “sought a careful, specific description of the right at

issue in order to determine whether that right, thus narrowly defined, was fundamental”).

       Following the Supreme Court’s lead, we narrowly rather than broadly construe the

right at issue here. And narrowly construed, the right at stake is the right of suspected

drunk drivers to refuse to submit to chemical testing for alcohol content. This is not a

right that is deeply rooted in national history and tradition. To the contrary: to the extent

history and tradition on the subject exist, we think they embody state drunk-driving laws

that prohibit drunk-driving suspects from refusing police requests for chemical testing,

and they have done so in the implied-consent setting without any regard to whether

exigent circumstances exist to support a warrantless blood draw, penalizing those who

refuse to be tested. See McNeely, 133 S. Ct. at 1566 (explaining favorably that “all 50

States have adopted implied consent laws that require motorists, as a condition of

operating a motor vehicle within the State, to consent to [alcohol] testing if they are

arrested or otherwise detained on suspicion of a drunk-driving offense”).




                                             22
       The short history and tradition of automobile regulation teach us that laws

regulating automobile use have existed since their advent. Just over one hundred years

ago, auto travel was so rare that operators of horse-drawn vehicles had the statutory

authority to demand—by a mere wave of the hand—that any passing motor vehicle must

immediately stop and yield until the horse-drawn vehicle passed, and an automobile

driver’s failure to stop when so signaled was illegal. See Mahoney v. Maxfield, 102 Minn.

377, 378–81, 113 N.W. 904, 905–06 (1907) (applying a 1903 Minnesota statute and

surveying similar laws in other states). Even by the 1920s, when automobile

manufacturing was in its infancy, cars remained so rare that police officers did not use

them on patrol, relying instead on horses, bicycles, and the newly introduced motorized

cycles. See Edberg v. Johnson, 149 Minn. 395, 398, 184 N.W. 12, 13 (1921) (“As an aid

to officers on patrol duty no vehicle more serviceable than the motorcycle has as yet been

invented. Of course it is possible for such officers to use automobiles instead of

motorcycles; but their use would be equally if not more dangerous to others if driven at a

high rate of speed.”).

       Even as relatively few cars were on the road at that time, the statutory prohibition

against operating a motor vehicle while intoxicated developed in conjunction with the

state’s restrictions on issuing drivers licenses. See, e.g., Mannheimer Bros. v. Kan. Cas.

& Sur. Co., 147 Minn. 350, 353, 180 N.W. 229, 230 (1920) (discussing Minnesota statute

that “directs that no license shall be issued to excessive users of intoxicating liquors, and

in another section expressly declares that it shall be a misdemeanor for anyone to drive

while intoxicated”). In 1939 no “habitual drunkard” could be licensed to drive in


                                             23
Minnesota. See Minn. Laws. ch. 401, § 4(4), at 783 (codified at Mason’s Minn. Stat.

§ 2720–144(a)(4) (Supp. 1940)). Within 40 years of the onset of automobile-operator

licensing, the United States Supreme Court recognized that chemical testing of suspected

drunk drivers provides “a scientifically accurate method of detecting alcoholic content in

the blood, thus furnishing an exact measure upon which to base a decision as to

intoxication.” Breithaupt v. Abram, 352 U.S. 432, 439, 77 S. Ct. 408, 412 (1957). And it

recognized that “[m]odern community living requires modern scientific methods of

[drunk-driving] detection lest the public go unprotected.” Id., 77 S. Ct. at 412. As late as

the 1980s, the Supreme Court saw no fundamental right for a suspected drunk driver to

refuse to be tested in the implied-consent setting, declaring bluntly, as already noted,

“Respondent’s right to refuse the blood-alcohol test, by contrast [to a right rooted in the

Constitution], is simply a matter of grace bestowed by the [state] [l]egislature.” Neville,

459 U.S. at 565, 103 S. Ct. at 923.

       Chasingbear has provided no caselaw, and we have found none, suggesting that a

suspected drunk driver’s right to refuse alcohol testing is among those “fundamental

rights and liberties which are, objectively, deeply rooted in this Nation’s history and

tradition.” And we discern nothing in this claimed right that is “implicit in the concept of

ordered liberty such that neither liberty nor justice would exist if [it] were sacrificed.”

Chasingbear has not asserted a fundamental right.

       The state relies heavily on our decisions in Wiseman and Bernard to ask us to

reverse the district court’s decision. In addition to questioning the continued viability of

Wiseman after McNeely, Chasingbear denounces Bernard. He insists that Bernard “is not


                                            24
good law and is not binding on this or any other Court.” He assails it as “directly and

impermissibly contradict[ing] the longstanding jurisprudence” of the Supreme Court.

Given that no search occurred in Bernard, however, and its holding is expressly limited

to the constitutionality of the state’s authority to criminalize test refusals, 844 N.W.2d at

46–47, he has misinterpreted Bernard as holding that an officer can obtain a warrantless,

nonconsensual sample of a suspected drunk driver’s blood even when exigent

circumstances are lacking. Despite this misread, we do not defend Bernard here. That

case is under supreme court review; and, more important, we do not rely on it for our

holding today. Although we have agreed with our premise in Bernard that the state’s

prosecution of a driver’s test refusal does “not implicate any fundamental due process

rights,” we come to that conclusion for different reasons, as outlined above.

       We turn to the state’s interest in criminalizing test refusals and repeat that it is

legitimate. As we held in Wiseman: “Impaired drivers pose a severe threat to the health

and safety of motorists in Minnesota, and the state has a compelling interest in highway

safety that justifies efforts to keep impaired drivers off the road.” 816 N.W.2d at 695

(citing Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 416–17 (Minn. 2007)). And

more particularly, “the state has a legitimate, time-sensitive interest in obtaining a blood,

breath, or urine sample for chemical testing from an individual when the police have

probable cause to believe that the individual committed criminal vehicular operation” as

well as “an interest in preventing . . . obstruction of a criminal investigation.” Id. at 695–

96; see also Neville, 459 U.S. at 563, 103 S. Ct. at 922 (“Given, then, that the offer of

taking a blood-alcohol test is clearly legitimate, the action becomes no less legitimate


                                             25
when the State offers a second option of refusing the test, with the attendant penalties for

making that choice.”).

       We differ from Wiseman’s explanation as to why criminalizing test refusal is a

reasonable means to accomplish the state’s legitimate objective because the

circumstances here call for a different analysis. In Wiseman, we considered that the state

has a legitimate objective in encouraging the driver to peacefully agree to testing so as to

avoid putting the requesting “officer in the unfortunate and dangerous situation of having

to physically restrain a potentially intoxicated suspect in order to timely obtain a sample

against the suspect’s will.” 816 N.W.2d at 696. In this case, however, where exigent

circumstances do not exist, in light of McNeely, the officer would have no authority to

obtain a sample against the suspect’s will. But the test-refusal statute is not reasonable

merely because it tends to prevent possible confrontations between police and suspected

drunk drivers in involuntary testing. It is also reasonable because it is an efficient tool in

discouraging drunk driving. The state has imposed a bright-line limit on a driver’s

alcohol content, thereby avoiding the need in impaired-driving trials for complicated and

confusing disputes over the driver’s intoxication level based on competing, highly

subjective testimony about driving behavior, number of drinks, time of consumption, and

performance of physical sobriety testing. As a companion to the impaired-driving crime,

the test-refusal statute is another efficient, bright-line means of conviction in the same

context. The Supreme Court long ago recognized and emphasized the legitimacy of these

deterrent interests:




                                             26
              As against the right of an individual that his person be held
              inviolable, even against so slight an intrusion as is involved in
              applying a blood test of the kind to which millions of
              Americans submit as a matter of course nearly every day,
              must be set the interests of society in the scientific
              determination of intoxication, one of the great causes of the
              mortal hazards of the road. And the more so since the test
              likewise may establish innocence, thus affording protection
              against the treachery of judgment based on one or more of the
              senses. Furthermore, since our criminal law is to no small
              extent justified by the assumption of deterrence, the
              individual's right to immunity from such invasion of the body
              as is involved in a properly safeguarded blood test is far
              outweighed by the value of its deterrent effect due to public
              realization that the issue of driving while under the influence
              of alcohol can often by this method be taken out of the
              confusion of conflicting contentions.

Breithaupt, 352 U.S. at 439–40, 77 S. Ct. at 412. Criminally penalizing test refusal

therefore not only provides an efficiency, it also reduces the likelihood that drunk drivers

will avoid a criminal penalty. This is particularly important under Minnesota’s scheme, in

which the statute prohibits officers from obtaining any chemical test if the driver elects to

refuse testing on request. See Minn. Stat. § 169A.52, subd. 1. Without test-refusal

criminal penalties, the state could secure a drunk-driving conviction only based on “the

confusion of conflicting contentions.” Breithaupt, 352 U.S. at 440, 77 S. Ct. at 412.

Given that the right to refuse testing is not a fundamental right, the state’s legitimate

interest in criminally penalizing drunk driving and its interest in doing so efficiently are

both grounds enough to satisfy our rational-basis inquiry.

       Although we have treated Chasingbear’s constitutional challenge as one calling

only for a rational-basis assessment, we conclude that even if Chasingbear has asserted a

fundamental right, still the statute is not unconstitutional under the strictest substantive


                                             27
due process analysis. The state’s interest is not merely legitimate, it is compelling. The

Supreme Court had no trouble recognizing and colorfully describing the compelling

significance of the state’s interest in chemical testing the first time it considered the

question half a century ago:

              The test upheld here is not attacked on the ground of any
              basic deficiency or of injudicious application, but admittedly
              is a scientifically accurate method of detecting alcoholic
              content in the blood, thus furnishing an exact measure upon
              which to base a decision as to intoxication. Modern
              community living requires modern scientific methods of
              crime detection lest the public go unprotected. The increasing
              slaughter on our highways, most of which should be
              avoidable, now reaches the astounding figures only heard of
              on the battlefield.

Briethaupt, 352 U.S. at 439, 77 S. Ct. at 412. Despite decades of vigorous enforcement

and stricter drunk-driving laws, in Minnesota still about 25 percent of about 400 annual

highway deaths result from impaired driving. Impaired Driving Facts, supra, at ii. And

because the test-refusal statute implicates only those drivers who are suspected of driving

drunk (and, of those, it implicates only those suspected drunk drivers who seek to

withhold scientific evidence of their intoxication level and punishes them to the same

degree as one convicted of being a drunk driver), it is sufficiently narrowly tailored to

achieve the state’s compelling objective.

       The statute does not fail under substantive due process scrutiny.

Fourth Amendment as Applied in Camara.

       Having found no constitutional deficiency in the statute under either the

unconstitutional conditions doctrine or substantive due process, we turn to Chasingbear’s



                                            28
argument that we should rely on the Supreme Court’s opinion in Camara, 387 U.S. at

532–33, 87 S. Ct. at 1732–33, and affirm the district court’s holding that the test-refusal

statute is unconstitutional. Chasingbear argues simply that “the facts and legal issues are

identical to those set forth in Camara.” We see three problems with Chasingbear’s

reliance on Camara.

       The first problem with Chasingbear’s reliance on Camara has already been

alluded to. In Camara, the Supreme Court held that the Fourth Amendment precluded the

state from prosecuting a resident for refusing to allow a housing-code inspector to enter

his home without a warrant. 387 U.S. at 540, 87 S. Ct. at 1736–37. That holding required

a preliminary determination that the resident had a constitutional right under the Fourth

Amendment to refuse entry in non-emergency situations. Id., 87 S. Ct. at 1737. But as we

have already seen, 16 years after the Supreme Court decided Camara on the indisputable

ground that a resident has a constitutional right to refuse an inspector’s non-emergency

request for home entry, it informed us in Neville that a suspected drunk driver’s “right to

refuse the blood-alcohol test . . . is simply a matter of grace bestowed by the [state]

[l]egislature” and does not arise from the Constitution. Neville, 459 U.S. at 565, 103

S. Ct. at 923. To the extent Chasingbear is correct that Camara stands for the broad

proposition that a state cannot prosecute a person for exercising a Fourth Amendment

right to refuse a request for a search, Camara is of little bearing here because

Chasingbear has no Fourth Amendment right to refuse a request for an alcohol test.

       The second problem with Chasingbear’s reliance on Camara is that Minnesota

imposes the implied-consent statute on every driver. And that statute mandates the


                                            29
condition that drivers accept the difficult choice either to submit to chemical testing if

requested after being found by police to have apparently been driving while intoxicated

or to be subject to civil and criminal penalties. As we have already discussed, this

condition is not unconstitutional even if Chasingbear has a Fourth Amendment right to

refuse. By contrast, there is no indication in Camara that Camara had conditionally

received some privilege conditioned on the waiver of his right not to be punished for

refusing entry into his home. More important, even if he had, by applying the same

unconstitutional conditions principles that we have applied to Minnesota’s scheme, we

cannot imagine that the home-search scheme in Camara could survive the test.

      And the third problem with Chasingbear’s reliance on Camara is that it overlooks

the apparent difference between the way the Supreme Court treats cases in which the

Fourth Amendment affects searching individuals by testing in the drunk-driving context

and those where it affects a home search in any context. See Florida v. Jardines, 133

S. Ct. 1409, 1414 (2013) (“But when it comes to the Fourth Amendment, the home is first

among equals.”); Kyllo v. United States, 533 U.S. 27, 37, 121 S. Ct. 2038, 2045 (2001)

(prohibiting police use of thermal imaging based on “the Fourth Amendment sanctity of

the home”); Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 683 (1961)

(“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his

own home and there be free from unreasonable governmental intrusion.”); and cf.

Marshall v. Barlow’s, Inc., 436 U.S. 307, 314–15, 98 S. Ct. 1816, 1820 (1978) (applying

Camara to a business building). By contrast, we repeat the Supreme Court’s observation

in McNeely—the case built on the drunk driver’s Fourth Amendment right not to be


                                           30
tested without a warrant or a valid exception—that states can, instead of actually testing a

driver, involuntarily require testing by statute and then impose substantial penalties for a

driver’s refusing to be tested. 133 S. Ct. at 1566. Given McNeely’s factual context, the

Court was necessarily referring to penalties arising from a drunk-driving suspect’s

refusing a chemical test when, like here, exigent circumstances are not present. This leads

us to conclude either that the Supreme Court necessarily continues to see the drunk

driver’s right to refuse a request for chemical testing as something less than a Fourth

Amendment right, or that it sees it as a right that does not warrant the same protection as

the right to refuse home searches, such as occurred in Camara. And especially significant

here, the constitutional tools that the McNeely Court specifically endorsed include the

state’s authority to urge a criminal jury to infer from a defendant’s refusal to submit to

chemical testing that he is guilty of the crime of drunk driving. Id. We discern no reason

to hold that it is unconstitutional to impose criminal guilt for a test refusal while it is

constitutional to infer criminal guilt from the test refusal.

       We disagree that allowing the state to criminalize a suspected drunk driver’s

chemical-test refusal somehow authorizes the state to criminalize a person’s refusal of a

home search, or even an automobile search, particularly in light of Camara. Our holding

applies to the specific circumstances here. Even if the Fourth Amendment is somewhat

implicated by the state’s criminal punishment of test refusals, we have not upset the

balance implied by Justice Powell’s reasoning in Jenkins v. Anderson: “[T]he

Constitution does not forbid every government-imposed choice in the criminal process




                                              31
that has the effect of discouraging the exercise of constitutional rights.” 447 U.S. 231,

236, 100 S. Ct. 2124, 2128 (1980) (quotation omitted).

Liberty and the Fourth Amendment

       None of the legal bases discussed by the district court or the parties supports the

district court’s holding that the test-refusal statute is unconstitutional under either the

Fourth Amendment or the similar search-and-seizure restrictions in the state constitution.

We add that our holding is also practical. These constitutional provisions are intended to

guard against real governmental intrusions into personal privacy and liberty. If we were

to affirm the district court’s invalidation of the test-refusal statute, police officers would

have almost no incentive to ask (and a great deal of incentive never to ask) suspected

drunk drivers whether they are willing to take a chemical test. This is because every

officer knows that the driver will more likely refuse to take the test if the criminal

penalties are invalid. And the officer knows that, after a refusal, the officer could not

obtain any test. But because the officer wants the chemical evidence, she would always

seek, and virtually always obtain, a search warrant for a forced blood draw. She would

then draw blood with no regard for the driver’s unwillingness. In other words, while

Justice O’Connor recognized that “the criminal process often requires suspects and

defendants to make difficult choices,” including the choice whether to submit to a

chemical test or face statutory penalties, Neville, 459 U.S. at 564, 103 S. Ct. at 923,

Minnesota suspected drunk drivers would no longer have any choice. This practical

concern is not the basis of our opinion today, but it informs us that the liberty arguments

advanced in this case would not meaningfully produce any real liberty results.


                                             32
Concurring Opinion

       We agree with the concern stated in the concurring opinion that this case could be

reversed for two “simple reasons,” specifically that “respondent has not met his burden to

demonstrate that the statute is unconstitutional” and that “the district court did not honor

the legal principles and standards that should have governed its decision regarding

respondent’s constitutional challenge.” But we cannot take that simple approach. We

have given our reasons why the respondent’s undeveloped reliance on Camara alone falls

far short of establishing beyond a reasonable doubt that the test-refusal statute is

unconstitutional. Because other constitutional theories were raised, we have also found it

necessary to address the doctrine of unconstitutional conditions, which is the theory

relied on by the district court in deeming the statute unconstitutional, and substantive due

process, which is the theory relied on by the state to contend that the statute is

constitutional.

       Reversed.




                                            33
LARKIN, Judge (concurring specially)

       Although I concur with the majority’s decision to reverse the district court’s ruling

that Minn. Stat. § 169A.20, subd. 2 (2012) (the test-refusal statute), is unconstitutional, I

would limit the analysis as follows.

       The constitutionality of a statute presents a question of law, which appellate courts

review de novo. State v. Cox, 798 N.W.2d 517, 519 (Minn. 2011). “Minnesota statutes

are presumed constitutional and . . . [an appellate court’s] power to declare a statute

unconstitutional must be exercised with extreme caution and only when absolutely

necessary.” Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).

“The party challenging a statute has the burden of demonstrating, beyond a reasonable

doubt, that a constitutional violation has occurred.” Id. In this case, the district court

failed to apply those standards when it summarily declared the test-refusal statute

unconstitutional based on the unconstitutional-conditions doctrine, even though that

theory was not raised or argued by respondent as a basis for relief.

       As to the merits of respondent’s constitutional claim, respondent does not

specifically identify the basis for his challenge. Instead, he generally argues that the test-

refusal statute unconstitutionally criminalizes the refusal to consent to a warrantless

search, contending that passive refusal to consent to a warrantless search cannot be

considered a crime. Respondent relies on Camara v. Mun. Court of City & Cnty. of San

Francisco, 387 U.S. 523, 87 S. Ct. 1727 (1967), a Fourth Amendment case, for support.

       Camara was criminally charged with “refusing to permit a lawful inspection” after

he repeatedly refused to let inspectors from the Division of Housing Inspection into his


                                            CS-1
apartment to make a routine annual inspection, because the inspectors did not have a

search warrant. Id. at 526-27, 87 S. Ct. at 1729-30. The inspectors were acting under the

authority of section 503 of the city housing code, which provided that “[a]uthorized

employees . . . shall, upon presentation of proper credentials, have the right to enter, at

reasonable times, any building, structure, or premises in the [c]ity to perform any duty

imposed upon them by the Municipal Code.” Id. at 526, 87 S. Ct. at 1729. Camara

argued that section 503 was “contrary to the Fourth and Fourteenth Amendments in that it

authorize[d] municipal officials to enter a private dwelling without a search warrant and

without probable cause to believe that a violation of the [h]ousing [c]ode exist[ed]

therein.”2   Id. at 527, 87 S. Ct. at 1730.    Camara contended that he could not be

prosecuted for refusing to allow an inspection unconstitutionally authorized by section

503. Id.

       The Supreme Court granted review in Camara “to re-examine whether

administrative inspection programs, as presently authorized and conducted, violate

Fourth Amendment rights.” Id. at 525, 87 S. Ct. at 1729. The Supreme Court held

              that administrative searches of the kind at issue here are
              significant intrusions upon the interests protected by the
              Fourth Amendment, that such searches when authorized and
              conducted without a warrant procedure lack the traditional
              safeguards which the Fourth Amendment guarantees to the

2
  Minnesota’s implied consent law does not authorize chemical testing unless “an officer
has probable cause to believe the person [to be tested] was driving, operating, or in
physical control of a motor vehicle in violation of section 169A.20 (driving while
impaired).” Minn. Stat. § 169A.51, subd. 1(b) (2012); see also Minn. Stat. § 169A.51,
subd. 1(c) (2012) (“The test may also be required of a person when an officer has
probable cause to believe the person was driving, operating, or in physical control of a
commercial motor vehicle with the presence of any alcohol.”).

                                          CS-2
               individual, and that the reasons put forth in Frank v.
               Maryland and in other cases for upholding these warrantless
               searches are insufficient to justify so substantial a weakening
               of the Fourth Amendment’s protections.

Id. at 534, 87 S. Ct. at 1733.

       After   concluding        that   code-enforcement   inspection    programs   must   be

circumscribed by a warrant procedure, the Supreme Court determined the standard that

should govern the issuance of such warrants. Id. at 534-38, 87 S. Ct. at 1733-36. Lastly,

the Court concluded that Camara “had a constitutional right to insist that the inspectors

obtain a warrant to search and that [he could] not constitutionally be convicted for

refusing to consent to the inspection.” Id. at 540, 87 S. Ct. at 1737.

       Respondent argues that “[t]he result of this case should be the same as Camara,

and the charges against [him] were rightfully dismissed.” Respondent’s argument fails

because the Supreme Court’s conclusion regarding Camara’s criminal charge was based

on its underlying determination that the attempted search would have violated the Fourth

Amendment. The same cannot be said of the attempted search in this case.

       This court recently considered whether warrantless chemical testing under

Minnesota’s implied consent law violates the Fourth Amendment’s reasonableness

standard. Stevens v. Comm’r of Pub. Safety, ___ N.W.2d ___, ___, 2014 WL 3396522, at

*6 (Minn. App. July 14, 2014). We concluded that

               the state’s strong interest in ensuring the safety of its roads
               and highways outweighs a driver’s diminished privacy
               interests in avoiding a search following an arrest for DWI.
               Thus, if we assume that the implied-consent statute authorizes
               a search of a driver’s blood, breath, or urine, such a search
               would not violate the Fourth Amendment.


                                              CS-3
Id. at *10. We reasoned, in part, that “Minnesota’s implied-consent statute contains even

more safeguards than the suspicionless-search procedures that were upheld in [Skinner v.

Railway Labor Execs.’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402 (1989)] and, thus, is at least

as reasonable, if not more reasonable, for Fourth Amendment purposes than the

procedures in Skinner.” Id. at *9.

       Because a search under Minnesota’s implied consent law would not violate the

Fourth Amendment, Camara is not apposite. Respondent’s reliance on Camara therefore

is unavailing, and he has not otherwise met his burden to demonstrate, beyond a

reasonable doubt, that the test-refusal statute violates a constitutional provision. See State

v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990) (stating that “the challenger bears the very

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

unconstitutional”).

       In conclusion, I would reverse for two simple reasons. First, the district court did

not honor the legal principles and standards that should have governed its decision

regarding respondent’s constitutional challenge to the test-refusal statute.         Second,

respondent has not met his burden to demonstrate that the statute is unconstitutional. It is

unnecessary for this court to further justify the constitutional validity of the statute. See

Hamilton, 600 N.W.2d at 722 (“Minnesota statutes are presumed constitutional . . . .”)..




                                            CS-4
