                          This opinion will be unpublished and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
                                     A14-1223

                             Matthew Allan White, petitioner,
                                      Appellant,

                                             vs.

                              Commissioner of Public Safety,
                                     Respondent.

                                    Filed June 8, 2015
                                        Affirmed
                                       Reyes, Judge

                              Nicollet County District Court
                                  File No. 52CV13708

Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, Minnesota (for
appellant)

Lori Swanson, Attorney General, Rachel E. Bell, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

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

Bjorkman, Judge.

                         UNPUBLISHED OPINION

REYES, Judge

       In an appeal from a district court order sustaining the revocation of his driver’s

license under the implied-consent law after he failed an evidentiary breath test, appellant

argues that (1) the evidence from the field sobriety tests was obtained in violation of his
Fourth Amendment rights; (2) the evidence from the evidentiary breath test was obtained

in violation of his Fourth Amendment rights; and (3) Minnesota’s test-refusal statute is

unconstitutional. We affirm.

                                          FACTS

       On September 20, 2013 at 12:19 a.m. while on patrol in St. Peter, Officer Penning

observed appellant Matthew White staggering and swaying from side to side as he

walked along the sidewalk. He then observed White get into a pickup truck, exit a

parking lot, and drive through an intersection without obeying a stop sign. As Officer

Penning attempted to catch up to White’s truck, he observed the vehicle cross over the

centerline twice before being jerked back into its lane. After the truck crossed the

centerline for a third time, Officer Penning activated his emergency lights and initiated a

traffic stop.

       Officer Penning called another officer to the scene for backup. He identified

White as the driver. Officer Penning testified that he could smell an odor of alcohol

coming from inside White’s truck. He stated that White appeared to “sway his head from

side to side” and mumbled his speech. When Officer Penning asked White if he had

anything to drink, White replied that he had not. Officer Penning asked him to exit the

vehicle to perform field sobriety tests, but White refused. Officer Penning informed

White that if he did not get out of the truck, he would place White under arrest for

suspicion of drunk driving. White again refused, stating that he wanted another officer

present. After Officer Penning’s partner arrived, White agreed to get out of the vehicle.




                                             2
       As White exited and began walking toward the rear of his truck, Officer Penning

smelled an odor of alcohol coming from White. Officer Penning administered a

horizontal gaze nystagmus (HGN) test, a walk-and-turn test, and a one-legged stand test.

White failed all three of these tests. At that time, Officer Penning requested that White

take a preliminary breath test (PBT). White asked Officer Penning if he had to take the

test and whether the results would be admissible in court. Officer Penning replied no to

both questions, telling White that he only wanted to use the PBT to determine White’s

general level of impairment and that he would be arresting White anyway. After White

still refused, Officer Penning arrested White for suspicion of driving while impaired and

White was transported to the Nicollet County Jail.

       While at the jail, Officer Penning read Minnesota’s implied-consent advisory to

White, informing him that refusal to take a chemical test is a crime and that he had the

right to consult an attorney. White responded that he understood the advisory and that he

wished to consult with an attorney. Officer Penning provided White with multiple phone

books and White’s personal cell phone. After approximately 45 minutes, White was not

receiving any return calls, and Officer Penning informed White that he would need to

make a decision as to testing. White submitted to the breath test, and the result was an

alcohol concentration of .18.

       Based on the test results, the commissioner of public safety revoked White’s

driving privileges under the implied-consent law. White filed a petition seeking

reinstatement of his driving privileges, which the district court denied. This appeal

follows.


                                             3
                                      DECISION

       White makes three arguments on appeal: (1) the evidence from the field sobriety

tests was obtained in violation of his Fourth Amendment rights; (2) the evidence from the

evidentiary breath test was obtained in violation of his Fourth Amendment rights; and

(3) Minnesota’s test-refusal statute is unconstitutional.

I.     Did the district court err by concluding that the evidence from the field
       sobriety tests was obtained in accordance with the Fourth Amendment?

       The Fourth Amendment to the United States Constitution provides:

              The right of the people to be secure in their persons, houses,
              papers, and effects, against unreasonable searches and
              seizures, shall not be violated, and no Warrants shall issue,
              but upon probable cause, supported by Oath or affirmation,
              and particularly describing the place to be searched, and the
              persons or things to be seized.

U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. As a general rule, a search

requires either a warrant or an exception to the warrant requirement, such as the person’s

consent, State v. Brooks, 838 N.W.2d 563, 567 (Minn. 2013), cert. denied, 134 S. Ct.

1799 (2014), or the existence of exigent circumstances, Missouri v. McNeely, 133 S. Ct.

1552, 1558 (2013). A challenge to a license revocation based on an assertion of a

violation of the Fourth Amendment is reviewed de novo. Harrison v. Comm’r of Pub.

Safety, 781 N.W.2d 918, 920 (Minn. App. 2010); see also Haase v. Comm’r of Pub.

Safety, 679 N.W.2d 743, 745 (Minn. App. 2004) (“When the facts are not in dispute, the

validity of a search is a question of law subject to de novo review.”).




                                              4
       A.     Justification required to initiate field sobriety tests

       White first argues that field sobriety tests are full searches under the Fourth

Amendment subject to the probable-cause standard and that evidence resulting from such

tests is inadmissible absent a warrant or a valid exception to the warrant requirement.

       White’s argument is inconsistent with the relevant caselaw. In State, Dep’t of

Pub. Safety v. Juncewski, the supreme court held that an officer may request a

preliminary breath test if he possesses “specific and articulable facts” that form a basis to

believe that a person has been driving a motor vehicle while under the influence. 308

N.W.2d 316, 321 (Minn. 1981). Since Juncewski, this court has applied a reasonable-

and-articulable-suspicion test in evaluating the administering of field sobriety tests. See,

e.g., State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (determining that the

trooper developed reasonable articulable suspicion to perform an initial stop and

concluding that two indicia of intoxication reasonably justified field sobriety tests and

preliminary breath testing). Moreover, this court has specifically rejected White’s

argument that field sobriety tests and PBTs must be predicated on probable cause. State

v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (“An officer need not possess

probable cause to believe that a DWI violation has occurred in order to administer a

preliminary breath test.”), review denied (Minn. May 16, 1986).

       White contends that Juncewski and its progeny are no longer good law given

McNeely’s determination that “[i]n those drunk-driving investigations where police

officers can reasonably obtain a warrant before a blood sample can be drawn without

significantly undermining the efficacy of the search, the Fourth Amendment mandates


                                              5
that they do so.” 133 S. Ct. at 1561. White misinterprets McNeely. McNeely stemmed

from an unwarranted, nonconsensual blood sample improperly premised on the exigency

created by the natural dissipation of alcohol. Id. at 1558. Because McNeely addressed

only a single-factor exigency exception to the warrant requirement, it is not so far

reaching as to require probable cause prior to an issuing of a field sobriety test or PBT.

Because McNeely did not abrogate Juncewski and its progeny, Officer Penning was only

required to have a reasonable, articulable suspicion that White was driving under the

influence to initiate field sobriety tests.

       Reasonable, articulable suspicion exists “when an officer observes unusual

conduct that leads the officer to reasonably conclude in light of his or her experience that

criminal activity may be afoot.” In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn.

1997). The reasonable-suspicion standard is not high, but the suspicion must be based on

particularized and objective facts rather than on a mere hunch. State v. Timberlake, 744

N.W.2d 390, 393 (Minn. 2008).

       The facts here support the district court’s conclusion that Officer Penning had a

reasonable, articulable suspicion that White was driving under the influence. Officer

Penning observed White (1) staggering and swaying from side to side prior to getting into

his truck; (2) running a stop sign through an intersection; (3) driving over the centerline

three times; (4) smelling of alcohol; (5) having slurred speech and swaying his head; and

(6) being uncooperative when he was asked to exit the vehicle. See State v. Prax, 686

N.W.2d 45, 48-49 (Minn. App. 2004) (analyzing appellant’s driving conduct—crossing

over a lane divider and committing other traffic violations—as indicators of intoxication),


                                              6
review denied (Minn. Dec. 14, 2004); State v. Kier, 678 N.W.2d 672, 678 (Minn. App.

2004) (“Common indicia of intoxication include an odor of alcohol, . . . , slurred speech,

and an uncooperative attitude.”). Moreover, the fact that White’s conduct occurred

during the middle of the night provides further suspicion of intoxication. See State v.

Lee, 585 N.W.2d 378, 383 (Minn. 1998) (incorporating the time of day into the probable

cause determination and recognizing that drinking is often involved later at night).

       B.     White’s arrest

       Even if we do not consider the results of the field sobriety tests, there is enough

evidence to rise to the level of probable cause to effectuate an arrest. Probable cause

exists when a “person of ordinary care and prudence, viewing the totality of

circumstances objectively, would entertain an honest and strong suspicion that a specific

individual has committed a crime.” State v. Ortega, 770 N.W.2d 145, 150 (Minn. 2009)

(emphasis omitted). “Probable cause is something more than a mere suspicion and

something less than evidence that would sustain a conviction.” State v. Evans, 373

N.W.2d 836, 838 (Minn. App. 1985), review denied (Minn. Nov. 1, 1985).

       Again, the totality of the circumstances reveals that Officer Penning observed

White (1) staggering prior to getting into his truck; (2) running a stop sign; (3) driving

over the centerline; (4) smelling of alcohol; (5) having slurred speech and swaying his

head; and (6) being uncooperative when asked to exit the vehicle. All of which occurred

late at night. Even before failing the field sobriety tests, White’s conduct rose to the level

of probable cause, thereby justifying his arrest for suspicion of driving while intoxicated.

The failed field sobriety tests only further supported probable cause to arrest White.


                                              7
   II.      Did the district court err by concluding that the evidence from the
            evidentiary breath test was obtained in accordance with the Fourth
            Amendment?

         White next argues that the evidence from the evidentiary breath test was obtained

in violation of his Fourth Amendment rights. Generally, evidence seized in violation of

the Constitution is inadmissible for criminal prosecution. State v. Jackson, 742 N.W.2d

163, 177-78 (Minn. 2007). Although civil in nature, we still apply the exclusionary rule

to implied-consent license-revocation proceedings. Harrison, 781 N.W.2d at 920. White

argues that the test results must be excluded because they were obtained by a warrantless

search, and the commissioner did not show that an exception to the warrant requirement

applied. We disagree.

         White’s evidentiary breath test was administered after his arrest pursuant to the

search-incident-to-arrest exception to the warrant requirement. Under this exception, an

officer may search a suspect when the officer has probable cause to arrest the suspect.

Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716 (2009). In State v. Bernard,

the Minnesota Supreme Court upheld the constitutionality of Minnesota’s test-refusal

statute as it applied to Bernard’s case, concluding that a warrantless breath test did not

violate the Fourth Amendment because it was a search incident to Bernard’s valid arrest.

859 N.W.2d 762, 766-67 (Minn. 2015). We reach the same conclusion here as Officer

Penning had probable cause to arrest White for suspicion of driving while intoxicated.

And because Officer Penning had probable cause to arrest, White’s warrantless breath

test was constitutional as a search incident to a valid arrest. See id. at 767.




                                               8
       White argues that the search-incident-to-arrest exception does not apply because

there was no concern for officer safety or the preservation of evidence. Once again,

however, Bernard is dispositive. There, the supreme court acknowledged that a concern

for officer safety or preservation of evidence is required to support the constitutionality of

a warrantless search of the area where a defendant was arrested. Id. at 768. The court

refused, however, to extend this requirement to warrantless searches of the body of a

person validly arrested. Id. at 770-71. Instead, the court determined that warrantless

searches of a person validly arrest were “categorically reasonable under the Fourth

Amendment.” Id. at 769. Therefore, the commissioner did not need to prove the

existence of concerns for officer safety or preservation of evidence because “[i]n a

custodial arrest situation, those concerns are always present and do not need to be

specifically identified or proven to justify a search.” Id. at 770. Thus, the results of

White’s evidentiary breath test are admissible because they were obtained by a search

incident to a valid arrest.

III.   Is Minnesota’s test-refusal statute unconstitutional?

       White argues that Minnesota’s test-refusal statute is unconstitutional because it

violates both his substantive due-process rights and the doctrine of unconstitutional

conditions. This argument implicates a discussion of both Minnesota’s implied-consent

statute, Minn. Stat. § 169A.50-.53 (2012), and Minnesota’s test-refusal statute, Minn.

Stat. § 169A.20, subd. 2 (2012). Under the implied-consent statute, any person who

drives a motor vehicle in the state consents “to a chemical test of that person's blood,

breath, or urine for the purpose of determining the presence of alcohol.” Minn. Stat.


                                              9
§ 169A.51, subd. 1(a). A law-enforcement officer may request a test of a person if the

officer has probable cause to believe that the person has committed the offense of DWI

and if, among other things, the person has been arrested for DWI. Minn. Stat. § 169A.51,

subd. 1(b)(1) (2012). The test-refusal statute makes it a crime to refuse this test. Minn.

Stat. § 169A.20, subd. 2. Refusal can also result in the commissioner of public safety

temporarily revoking the person’s driver’s license. Minn. Stat. § 169A.52, subd. 3

(2012).

       The constitutionality of a statute is a question of law to which this court applies a

de novo standard of review. State v. Ness, 834 N.W.2d 177, 181 (Minn. 2013). We

presume that Minnesota statutes are constitutional and will declare a statute

unconstitutional “with extreme caution and only when absolutely necessary.” Id. at 182

(quotation omitted). The party challenging a statute on constitutional grounds must meet

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

unconstitutional.” State v. Johnson, 813 N.W.2d 1, 11 (Minn. 2012) (quotation omitted).

       A.     Substantive due-process challenge

       White argues that the implied-consent advisory violates his due-process rights

because it improperly threatens criminal charges under an unconstitutional criminal

statute that the state is not authorized to impose. The due-process clauses of the United

States and Minnesota Constitutions “prohibit ‘certain arbitrary, wrongful government

actions, regardless of the fairness of the procedures used to implement them.’” Boutin v.

LaFleur, 591 N.W.2d 711, 716 (Minn. 1999) (quoting Zinermon v. Burch, 494 U.S. 113,

125, 110 S. Ct. 975, 983 (1990)). White argues that a fundamental right has been


                                             10
implicated here—the fundamental right to refuse a constitutionally unreasonable search.

The Minnesota Supreme Court rejected such an argument in Bernard. It determined that

when a warrantless breath test would be constitutional under the search-incident-to-arrest

exception, no fundamental right is implicated. Bernard, 859 N.W.2d at 773.

       Because no fundamental right is implicated, we assess the constitutionality of the

test-refusal statute using rational-basis review. See State v. Behl, 564 N.W.2d 560, 567

(Minn. 1997). The Minnesota Supreme Court has held that “the state has a compelling

interest in highway safety justifying efforts to keep impaired drivers off the road.”

Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 417 (Minn. 2007). The supreme

court has also held that “it is rational to conclude that criminalizing the refusal to submit

to a breath test relates to the [s]tate’s ability to prosecute drunk drivers and keep

Minnesota roads safe.” Bernard, 859 N.W.2d at 774. Because the test-refusal statute is a

reasonable means to a permissive object, White’s due-process rights were not violated.

       B.     Unconstitutional-conditions doctrine

       The unconstitutional-conditions doctrine prevents the state from conditioning

privileges on the relinquishment of constitutional rights. Frost v. R.R. Comm’n, 271 U.S.

583, 592-94, 46 S. Ct. 605, 606-07 (1926). This court has previously concluded that the

implied-consent statute does not violate the unconstitutional-conditions doctrine. Stevens

v. Comm’r of Public Safety, 850 N.W.2d 717, 723-25 (Minn. App. 2014). We based our

conclusion on several factors, including the fact that (1) the unconstitutional-conditions

doctrine has not been applied to the Fourth Amendment; (2) the implied-consent statute

does not authorize a search inconsistent with the Fourth Amendment because the statute


                                              11
requires the driver to expressly consent to testing before a test is given; (3) any search

authorized by the implied-consent statute does not violate the Fourth Amendment

because the statute is a reasonable method of promoting the state’s interest in enforcing

its DWI laws; and (4) the implied-consent statute does not coerce a driver into

surrendering his or her Fourth Amendment rights. Id. at 723-31. Appellant has not

shown why the same reasoning does not apply here.

       In sum, because White has failed to satisfy his “very heavy burden of

demonstrating beyond a reasonable doubt that the statute is unconstitutional,” his

constitutional argument fails. Johnson, 813 N.W.2d at 11 (quotation omitted).

       Affirmed.




                                             12
