                          This opinion will be unpublished and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
                                     A13-0931

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                  Todd Eugene Trahan,
                                       Appellant.

                                Filed September 29, 2014
                                        Affirmed
                                    Halbrooks, Judge


                              Ramsey County District Court
                                File No. 62-CR-12-8574

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant)

         Considered and decided by Chutich, Presiding Judge; Halbrooks, Judge; and Ross,

Judge.

                         UNPUBLISHED OPINION

HALBROOKS, Judge

         In this combined direct and postconviction appeal, appellant challenges his

conviction of refusal to submit to a test required under the implied-consent law, arguing
that the factual basis for his guilty plea is invalid because it did not support the offense of

test refusal and that criminalizing test refusal is unconstitutional under Missouri v.

McNeely, 133 S. Ct. 1552 (2013). We affirm.

                                           FACTS

       Just after midnight on October 24, 2012, a Ramsey County sheriff’s deputy

stopped appellant Todd Eugene Trahan based on his erratic driving and speed, which the

deputy clocked at 52 m.p.h. in a 40 m.p.h. zone. When the deputy made contact with

Trahan, Trahan was screaming, agitated, smelled strongly of alcohol, and had red and

watery eyes and difficulty standing up. A check of Trahan’s driving record revealed that

his license was cancelled as inimical to public safety based on multiple previous driving

while impaired (DWI) convictions. Because Trahan was “so agitated and unpredictable,”

the deputy did not administer field sobriety tests. Trahan did not respond when offered a

preliminary breath test. After the deputy placed Trahan in the squad car, he kicked the

roof and windows and stated that he was not going to take any tests.

       At the jail, Trahan was read the Minnesota Implied Consent Advisory, and he

asked for his cell phone to contact an attorney. He then made several phone calls but did

not contact an attorney. At 1:53 a.m., Trahan stated that he was done with the phone.

The deputy offered Trahan a blood or urine test, and Trahan agreed to provide a urine

sample. Trahan testified at his plea hearing that he provided a urine sample, which was

diluted because he had recently received intravenous fluids at a local emergency

department.




                                              2
       According to Trahan’s plea testimony, the deputy told Trahan that the urine

sample “doesn’t look right” and that Trahan “must have tampered with it.”1 Trahan

acknowledged that the deputy deemed Trahan’s conduct to be a refusal to provide a urine

sample. The deputy then asked Trahan to take a blood test, which he refused. Trahan

testified, “I did refuse the blood test, so I’m guilty of that.”

       The state charged Trahan with first-degree refusal to submit to a chemical test in

violation of Minn. Stat. §§ 169A.20, subd. 2, .24, subds. 1(2), 2 (2012). Trahan pleaded

guilty, and the district court sentenced Trahan to 60 months in prison. Trahan then filed a

direct appeal but requested a stay pending postconviction proceedings. The stay was

granted. In his postconviction petition, Trahan argued that the test-refusal statute is

unconstitutional under Missouri v. McNeely because it violates due process and the

doctrine of unconstitutional conditions and that his plea was invalid because the factual

basis does not support a refusal to test.

       The district court denied Trahan’s petition, ruling that (1) Trahan had not met his

burden of establishing the unconstitutionality of the test-refusal statute beyond a

reasonable doubt and (2) Trahan’s plea was valid because failure to submit to an

alternative test requested by the police constitutes a violation of the test-refusal statute.

Trahan now appeals.




1
  According to the complaint, after several attempts, Trahan failed to provide a sufficient
urine sample, and instead put water from the sink into the sample bottle.

                                                3
                                      DECISION

                                              I.

       Trahan argues that his guilty plea is invalid because the factual basis supporting it

is insufficient to establish the elements of first-degree test refusal under Minn. Stat.

§§ 169A.20, subd. 2, .24, subds. 1(2), 2. We review de novo the denial of a post-

sentencing guilty-plea withdrawal motion under the manifest-injustice standard, which

requires withdrawal when the defendant shows that the guilty plea was invalid, i.e., not

accurate, voluntary, or intelligent. Minn. R. Crim. P. 15.05, subd. 1; State v. Raleigh, 778

N.W.2d 90, 94 (Minn. 2010). A party challenging the accuracy of a guilty plea bears the

burden of showing its invalidity. Lussier v. State, 821 N.W.2d 581, 588 (Minn. 2012).

       The elements of refusal to submit to testing are (1) probable cause to arrest for

driving while impaired, (2) a reading of the implied-consent advisory, (3) a request by a

police officer to submit to a chemical test, and (4) refusal to submit to the requested

chemical test. State v. Ouellette, 740 N.W.2d 355, 359-60 (Minn. App. 2007), review

denied (Minn. Dec. 19, 2007). Trahan does not challenge the first three elements. But he

argues that the factual basis for his plea is insufficient because he “did not admit that he

refused to submit to testing.” Specifically, Trahan argues that he only refused the blood

test because he “felt that he had complied with” the request for a urine test, and thus “the

factual basis calls into question the accuracy of the plea.” It is undisputed that Trahan

refused the alternative (blood) test requested by the deputy.

       Refusal to submit to an alternative chemical test constitutes a violation of the test-

refusal statute when a first sample is inadequate or the test itself is not valid or reliable.


                                              4
State, Dep’t of Highways v. Lauseng, 289 Minn. 344, 345, 183 N.W.2d 926, 927 (1971)

(holding that when a driver agrees to provide a urine sample but is unable to produce one,

his failure to submit to an alternative test constitutes a test refusal); see also Gunderson v.

Comm’r of Pub. Safety, 351 N.W.2d 6, 7 (Minn. 1984) (holding that a driver who submits

to a breath test is obligated to submit to a blood or urine test if the breath testing machine

malfunctions); Nelson v. Comm’r of Pub. Safety, 779 N.W.2d 571, 576-77 (Minn. App.

2010) (holding that a request for a second blood test was proper when it was determined

post-test that the first blood-test kit was expired).

       Here, the district court determined that, “once the officer had reason to question

the sufficiency of the sample for testing purposes, even where a suspect acts in good faith

as did the suspect in Lauseng, the officer properly offered [Trahan] an alternative test.”

Because Trahan concedes on appeal that the sample he provided “looked like water and

appeared inadequate,” which is consistent with his plea testimony that his urine sample

“looked kind of watery” and “came up looking like water,” and because he testified

unambiguously that he refused to submit to the alternative test requested by the deputy,

we conclude that Trahan has not met his burden of demonstrating the invalidity of his

guilty plea. The district court therefore properly denied Trahan’s motion to withdraw his

guilty plea.

                                               II.

       Appellant argues that Minnesota’s test-refusal statute is unconstitutional based on

Missouri v. McNeely, 133 S. Ct. 1552 (2013), and Camara v. Municipal Court, 387 U.S.

523, 87 S. Ct. 1727 (1967). He therefore argues that his guilty plea must be vacated and


                                               5
his conviction reversed. We review the constitutionality of a statute de novo. SooHoo v.

Johnson, 731 N.W.2d 815, 821 (Minn. 2007).             “Minnesota statutes are presumed

constitutional[,] and . . . our 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). “[A] party challenging the constitutionality

of a statute must demonstrate beyond a reasonable doubt that the statute violates a

constitutional provision.” State v. Cox, 798 N.W.2d 517, 519 (Minn. 2011).

       This court has recently rejected Trahan’s argument that prosecution for refusing to

submit to a chemical test is unconstitutional. State v. Bernard, 844 N.W.2d 41, 45 (Minn.

App. 2014), review granted (Minn. May 20, 2014). In Bernard, this court upheld the

constitutionality of an appellant’s conviction for test refusal, concluding that “[t]he state

is not constitutionally precluded from criminalizing a suspected drunk driver’s refusal to

submit to a breath test.” Id. at 47. This court reasoned that penalizing the driver’s

decision to forego taking a chemical test is not unconstitutional when “the requesting

officer had a constitutionally viable alternative” to pursue a nonconsensual test. Id. at 46.

Because the officer had a “constitutionally viable alternative” to obtain a warrant when

he asked the driver to voluntarily take a chemical test, penalizing the driver’s decision to

refuse to submit to the test did not implicate any fundamental due-process rights because

“the consequent testing under either approach would have been constitutionally

reasonable.” Id. To be clear, Bernard recognizes the state’s constitutional authority to

punish test refusal; it does not suggest or provide that the state may conduct a

warrantless, nonconsensual test. See id. at 45-47.


                                             6
       We conclude that Bernard controls the resolution of Trahan’s due-process

argument. See State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010) (stating that we

are “bound by supreme court precedent and the published opinions of the court of

appeals” and must apply precedent to factually similar cases), review denied (Minn. Sept.

21, 2010). Applying Bernard, we conclude that the district court properly ruled that

Trahan has not met his burden of showing that the test-refusal statute violates due process

or the Fourth Amendment.

       Trahan also contends that the test-refusal statute violates the doctrine of

unconstitutional conditions.     This court has recently rejected an unconstitutional-

conditions argument in the license-revocation context. Stevens v. Comm’r of Pub. Safety,

850 N.W.2d 717, 731 (Minn. App. 2014). In Stevens, we held that the appellant’s

unconstitutional-conditions argument failed because (a) “there is no authority for the

proposition that the . . . doctrine applies to a constitutional challenge based on the Fourth

Amendment,” id. at 724; (b) the statute does not authorize a search if the driver refuses,2

id. at 725; (c) “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,” id. at 730; and (d) under State v. Brooks, 838 N.W.2d 563, 571 (Minn. 2013),

the test-refusal statute does not “coerce[] a driver into surrendering a Fourth Amendment

right in a manner that is offensive to the unconstitutional-conditions doctrine,” id. at 731.

Although Stevens analyzes the civil consequences of test refusal, its reasoning relies in


2
   “If a person refuses to permit a test, then a test must not be given.” Minn. Stat.
§ 169A.52, subd. 1 (2012).

                                             7
part on criminal DWI cases, in particular with respect to the non-coercive effect of

criminal penalties. See id. at 731. We conclude based on the reasoning in Stevens that

Trahan’s unconstitutional-conditions argument also fails.

                                           III.

       In a pro se supplemental brief, Trahan recounts his version of the events

surrounding his arrest and the implied-consent process and also asserts that the attorney

who represented him through sentencing failed to address what Trahan believes to be a

mistake with his criminal-history score. His supplemental assertions are unsupported by

legal citation and therefore need not be considered on appeal. State v. Bartylla, 755

N.W.2d 8, 22 (Minn. 2008).

       We have nevertheless reviewed the record, which reveals that Trahan’s counsel

did alert the district court to Trahan’s challenge to one of the convictions underlying his

criminal-history score at the plea hearing and again at sentencing. The sentencing court

addressed the calculation of Trahan’s criminal-history score at some length and

determined that the score was technically correct. We therefore conclude that this claim

is without merit.

       Affirmed.




                                            8
