                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-0502

                               Tyler Lee Johnson, petitioner,
                                       Respondent,

                                             vs.

                              Commissioner of Public Safety,
                                      Appellant.

                                 Filed November 7, 2016
                                        Affirmed
                                      Larkin, Judge

                               Chisago County District Court
                                  File No. 13-CV-15-829


Brian M. Glodosky, Kelsey Law Office, P.A., Cambridge, Minnesota (for respondent)

Lori Swanson, Attorney General, Cory Beth Monnens, Assistant Attorney General,
St. Paul, Minnesota (for appellant)


       Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and

Rodenberg, Judge.

                                     SYLLABUS

       1.     If a person challenges the accuracy of an implied-consent advisory as a

violation of due process, the claim should be analyzed under the Due Process Clause,

consistent with Minnesota precedent.

       2.     An implied-consent advisory violates due process when it threatens a

criminal test-refusal charge that the state is not authorized to impose.
                                        OPINION

LARKIN, Judge

       Appellant challenges the district court’s order rescinding the revocation of

respondent’s license to drive under Minnesota’s implied-consent law. The district court

rescinded the revocation based on its conclusion that the implied-consent advisory in this

case misinformed respondent regarding the potential criminal penalty for refusing to

submit to a urine test and therefore violated his right to due process. We affirm.

                                           FACTS

       On November 9, 2015, a North Branch police officer responded to the scene of a

single-vehicle collision. Respondent Tyler Lee Johnson had driven through an intersection

and crashed into a tree. As Johnson exited the vehicle, the officer observed a large,

unmarked bottle between the driver’s seat and the vehicle’s center console, which appeared

to contain an assortment of pills. Johnson informed the officer that the pill bottle was his.

Based on Johnson’s performance on field sobriety tests, the officer suspected that Johnson

was under the influence of some kind of narcotic or medication, but the officer did not

suspect alcohol use. The officer arrested Johnson for driving while impaired (DWI).

       The officer transported Johnson to a local emergency room. At the hospital, the

officer read Johnson an implied-consent advisory, informing him that Minnesota law

required him to take a test to determine if he was under the influence of alcohol or a

hazardous or controlled substance and that he had the right to speak with an attorney before

deciding whether to take a test. The officer also informed Johnson that refusal to take a

urine test is a crime. The officer later testified that he specified urine testing when advising


                                               2
Johnson that failure to take a test is a crime “[b]ecause the new policy of refusal to take a

urine test was [the police department’s] guidance from the county attorney’s office at [the]

time.”

         Johnson spent over an hour attempting to contact an attorney before the officer

asked Johnson to submit to a urine test. Johnson indicated that he wanted to consult an

attorney. The officer asked Johnson if he would take a blood test. Johnson once again

indicated that he wanted to consult an attorney. The officer did not request a breath test

because he did not suspect that Johnson was under the influence of alcohol. Johnson did

not submit to either a urine or blood test.

         Appellant Commissioner of Public Safety revoked Johnson’s license to drive based

on his refusal to submit to a chemical test. Johnson petitioned the district court for

rescission of the license revocation. Johnson claimed that his right to due process was

violated because the officer did not properly inform him of the consequences of test refusal.

The district court rescinded the revocation of Johnson’s license to drive, relying on

McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991). The district

court reasoned that the implied-consent advisory violated Johnson’s right to due process

by inaccurately informing him that refusal to take a urine test is a crime when Johnson

“could not have been criminally charged for refusing an unconstitutional search.” This

appeal follows.




                                              3
                                           ISSUES

       I.     Should Johnson’s due-process challenge to the implied-consent advisory in

this case be analyzed as a due-process claim or a Fourth Amendment claim?

       II.    Did the district court correctly conclude that the implied-consent advisory

violated Johnson’s right to due process by threatening a criminal charge the state was not

authorized to impose and that he therefore is entitled to rescission of the revocation of his

license to drive?

                                          ANALYSIS

       Under Minnesota’s implied-consent law, 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, a controlled substance or its metabolite, or

a hazardous substance” when certain conditions are met. Minn. Stat. § 169A.51, subd. 1(a)

(2014). For example, a test is required if an officer has probable cause to believe that a

person was driving while impaired and the person has been lawfully arrested for DWI or

involved in a motor-vehicle accident or collision resulting in property damage or personal

injury. Id., subd. 1(b)(1), (2) (2014).

       If a test is requested under the implied-consent law, the person subject to testing

must be told that “Minnesota law requires the person to take a test . . . to determine if the

person is under the influence of alcohol, controlled substances, or hazardous substances.”

Id., subd. 2(a)(1) (2014). The person also must be told that “refusal to take a test is a

crime” and that “the person has the right to consult with an attorney, but that this right is

limited to the extent that it cannot unreasonably delay administration of the test.” Id., subd.


                                              4
2(a)(2), (4) (2014). If there is probable cause to believe the person has violated the

criminal-vehicular-homicide-and-injury laws, the person must also be told that “a test will

be taken with or without the person’s consent.” Id., subd. 2(a)(3) (2014).

       “If a person refuses to permit a test” under Minnesota’s implied-consent law, “then

a test must not be given.” Minn. Stat. § 169A.52, subd. 1 (2014). However, if the person

refuses to submit to a test, the commissioner must revoke the person’s license to drive. Id.,

subd. 3 (2014).

       The issue in this case is whether an implied-consent advisory violates a person’s

right to due process by informing the person that refusal to take a urine test is a crime when

a criminal test-refusal charge would be unconstitutional. Resolution of this issue requires

us to answer the following questions: (1) is Johnson’s due-process challenge to the

advisory in this case properly analyzed as a due-process claim or a Fourth Amendment

claim and (2) was the advisory in this case misleading such that it violates due process

under McDonnell v. Comm’r of Pub. Safety, in which the Minnesota Supreme Court

concluded that an implied-consent advisory violated due process because it misinformed a

person subject to testing under Minnesota’s implied-consent law that she could be charged

with the crime of test refusal when such a charge was impossible. 473 N.W.2d at 855. We

address each issue in turn.

                                              I.

       We begin with the commissioner’s argument that the Fourth Amendment, and not

due process, provides the proper analytical framework for Johnson’s challenge to the

implied-consent advisory in this case. The commissioner asserts that Johnson has raised a


                                              5
substantive-due-process claim and that the claim is covered by the Fourth Amendment.

The commissioner therefore contends that we should analyze the claim only under the

Fourth Amendment.

        The commissioner relies on State v. Mellett, in which this court stated, “if a claim is

covered by a specific constitutional provision, that claim must be analyzed according to

the standards established by the specific provision, and not as a possible violation of the

claimant’s substantive-due-process rights.” 642 N.W.2d 779, 783 (Minn. App. 2002). The

quoted text from Mellett is based on a discussion in County of Sacramento v. Lewis, 523

U.S. 833, 118 S. Ct. 1708 (1998). Id. In Lewis, the United States Supreme Court explained

that:

               Because we have always been reluctant to expand the concept
               of substantive due process, . . . [w]here a particular
               Amendment provides an explicit textual source of
               constitutional protection against a particular sort of
               government behavior, that Amendment, not the more
               generalized notion of substantive due process, must be the
               guide for analyzing these claims.

523 U.S. at 842, 118 S. Ct. at 1714 (quotations omitted). For the reasons that follow, we

are not persuaded that the Lewis principle favors application of the Fourth Amendment

instead of the Due Process Clause.

        First, as the quoted text from Lewis indicates, the Lewis principle applies to

substantive-due-process claims. Id. The Lewis court described substantive due process as

“the exercise of power without any reasonable justification in the service of a legitimate

governmental objective” and procedural due process as the “denial of fundamental

procedural fairness.” Id. at 845-46, 118 S. Ct. at 1716.


                                               6
       In McDonnell v. Comm’r of Pub. Safety, the Minnesota Supreme Court concluded

that an implied-consent advisory violated due process because it misinformed a person

subject to testing under Minnesota’s implied-consent law that she could be charged with

the crime of test refusal when such a charge was impossible. The supreme court did not

specify whether its due-process holding was based on substantive or procedural due

process. 473 N.W.2d at 855. However, in subsequent cases, the supreme court described

due-process challenges to implied-consent advisories as procedural. For example, in Davis

v. Comm’r of Pub. Safety, the supreme court stated, “While we are troubled by the

deficiencies of the current advisory, we are unwilling at this time to say that the advisory

violates procedural due process under the Minnesota Constitution.” 517 N.W.2d 901, 904

(Minn. 1994). The Davis court rejected the suggestion that a Fourth Amendment analysis

is dispositive, explaining that:

              The fact that the state might allow police to obtain the sample
              they want pursuant to the Fourth Amendment, does not answer
              the question of what procedure is due an arrestee if the
              legislature decides to forego this approach and give the arrestee
              the option of not complying with the statutory obligation to
              submit to testing.
Id.

       Later, in State v. Melde, the supreme court framed the issue as follows: “whether

the Minnesota Implied Consent Advisory violates a driving-while-impaired (DWI)

arrestee’s procedural due process rights because it fails to adequately notify the arrestee of

the consequences of refusing to submit to chemical testing.” 725 N.W.2d 99, 101 (Minn.

2006) (citation omitted). If a due-process challenge to Minnesota’s implied-consent




                                              7
advisory is procedural, as Davis and Melde suggest, the Lewis substantive-due-process

principle is inapplicable here.

       Second, as the quoted text from Lewis indicates, the Lewis principle applies when a

claimant attempts to “expand the concept of substantive due process.” 523 U.S. at 842,

118 S. Ct. at 1714 (quotation omitted). Assuming, without deciding, that the due-process

claim in McDonnell was substantive, McDonnell establishes substantive-due-process relief

when an implied-consent advisory misinforms a person subject to testing under

Minnesota’s implied-consent law that she could be charged with the crime of test refusal

when such a charge is impossible. 473 N.W.2d at 855. Thus, Johnson’s challenge under

McDonnell is not an attempt to “expand” substantive due process.

       Third, this is not a situation in which the Fourth Amendment provides an explicit

textual protection against the challenged government behavior. See U.S. Const. amend. IV

(“The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated . . . .”). In such circumstances,

this court has followed the Lewis principle. For example, in Poeschel v. Comm’r of Pub.

Safety, this court applied the Fourth Amendment, and not the Due Process Clause, when

analyzing a driver’s claim that “she had a fundamental, due-process right to a warrant

issued by a neutral magistrate.” 871 N.W.2d 39, 45 (Minn. App. 2015). But we reviewed

the driver’s challenge to the accuracy of the implied-consent advisory in that case for a

due-process violation. Id. at 47.

       Although Johnson’s due-process claim is related to a Fourth Amendment issue, his

request for relief is not based on the Fourth Amendment. Johnson does not argue that the


                                             8
government violated his Fourth Amendment rights by misinforming him that he could be

charged with the crime of test refusal. Instead, Johnson argues that the government

violated his right to due process by misinforming him that he faced a criminal penalty. The

Minnesota Supreme Court has repeatedly analyzed similar arguments under the Due

Process Clause. See, e.g., Melde, 725 N.W.2d at 103 (noting its prior holding in

McDonnell that “a misleading implied consent advisory violates federal due process” and

stating that “[a]s a corollary, an implied consent advisory that contains no misleading

assurances would not violate federal due process”); Davis, 517 N.W.2d at 901 (holding

that “[a]ppellants have failed to meet their burden of establishing that due process is

violated by . . . the standard implied consent advisory that police give DWI arrestees”);

McDonnell, 473 N.W.2d at 855 (holding that an implied-consent advisory violated due

process where it misinformed a person subject to testing under Minnesota’s implied-

consent law that she could be charged with the crime of test refusal when such a charge

was impossible).

       This court has similarly applied due-process standards when analyzing challenges

to implied-consent advisories. See, e.g., Poeschel, 871 N.W.2d at 47 (considering whether

an advisory violated due process where it informed driver that refusal to submit to a urine

test was a crime despite provision in statute allowing the driver to legally refuse a urine

test if she submitted to another chemical test); Magnuson v. Comm’r of Pub. Safety, 703

N.W.2d 557, 558 (Minn. App. 2005) (considering whether an advisory violated due process

where it did not inform driver that driving with an alcohol concentration of 0.20 or more

was an aggravating factor that could enhance a DWI charge); Moe v. Comm’r of Pub.


                                            9
Safety, 574 N.W.2d 96, 98-99 (Minn. App. 1998) (considering whether an advisory

violated due process where it did not offer an alternative test), review denied (Minn. Apr.

14, 1998); Catlin v. Comm’r of Pub. Safety, 490 N.W.2d 445, 446-47 (Minn. App. 1992)

(considering whether an advisory was misleading and violated due process because it

warned driver he may be subject to criminal prosecution for refusal if his license had been

revoked in the previous five years, but rescission of the driver’s previous revocation

precluded prosecution).

       The Minnesota Supreme Court’s recent decision in State v. Thompson, ___ N.W.2d

___ (Minn. Oct. 12, 2016), does not persuade us that reliance on the Due Process Clause

is inappropriate in this case. In Thompson, the supreme court held that Minnesota’s

criminal test-refusal statute is unconstitutional, as applied, where the state attempts to

prosecute a driver for refusing to consent to an unconstitutional search. 2016 WL 5930162,

at *8. In doing so, the supreme court relied on the Fourth Amendment, and not on due

process. Id. at *4 & n.4. The supreme court used the framework set forth in Birchfield v.

North Dakota, in which the United States Supreme Court considered whether criminal test-

refusal laws violate the Fourth Amendment’s prohibition against unreasonable searches.

136 S. Ct. 2160, 2166-67 (2016). In answering that question, the United States Supreme

Court explained that if a warrantless blood or breath test would comport with the Fourth

Amendment, a state “may criminalize the refusal to comply with a demand to submit to the

required testing.” Id. at 2172.

       In Birchfield and Thompson, the constitutional protection at issue was the Fourth

Amendment right to be free from unreasonable searches.           Here, the constitutional


                                            10
protection at issue is the established due-process right not to be misled by the government

regarding one’s legal obligations or the potential criminal penalties for failing to satisfy

those obligations. See McDonnell, 473 N.W.2d at 854 (“[D]ue process does not permit

those who are perceived to speak for the state to mislead individuals as to either their legal

obligations or the penalties they might face should they fail to satisfy those obligations.”).

Unlike the circumstances in Birchfield and Thompson, the Fourth Amendment does not

provide an explicit textual source of constitutional protection against the challenged

government behavior in this case, whereas McDonnell recognizes the Due Process Clause

as the source of the relevant constitutional protection. See id.

       In sum, Johnson’s due-process challenge to the language of the implied-consent

advisory is not a novel claim. The appellate courts of this state have considered the merits

of such claims for over 20 years. Moreover, analyzing Johnson’s challenge only under the

Fourth Amendment would be inconsistent with the Minnesota Supreme Court’s statement

in Davis that a constitutionally valid search “does not answer the question of what

procedure is due an arrestee if the legislature . . . give[s] the arrestee the option of not

complying with the statutory obligation to submit to testing.” 517 N.W.2d at 904. For

these reasons, we review Johnson’s challenge to the implied-consent advisory as a due-

process claim, consistent with precedent.

                                             II.

       We now consider the merits of Johnson’s due-process claim. The Due Process

Clause of the United States Constitution guarantees that no state shall “deprive any person

of life, liberty or property without due process of law.” U.S. Const. amend. XIV, § 1. The


                                             11
Minnesota Constitution similarly provides that no person shall “be deprived of life, liberty

or property without due process of law.” Minn. Const. art. I, § 7. The Minnesota Supreme

Court has declined to construe the Minnesota Constitution as affording greater due-process

protection than its federal counterpart when considering challenges to implied-consent

advisories. Melde, 725 N.W.2d at 104, 106; Davis, 517 N.W.2d at 902, 904. “Whether an

implied-consent advisory violates a driver’s due-process rights is a question of law, which

this court reviews de novo.” Magnuson, 703 N.W.2d at 561.

                                              A.

       In McDonnell, the Minnesota Supreme Court concluded that Minn. Stat. § 169.123,

subd. 2(b)(2) (1990), which required a law-enforcement officer to advise a person subject

to testing under the implied-consent law that the person may be subject to criminal

penalties if testing is refused, violated the due-process rights of a driver, Moser, because

she did not have a prior driver’s license revocation and test-refusal statute then in effect

applied only to drivers who had prior license revocations. 473 N.W.2d at 850-51, 853-55.

       The supreme court reasoned that “due process does not permit those who are

perceived to speak for the state to mislead individuals as to either their legal obligations or

the penalties they might face should they fail to satisfy those obligations.” Id. at 854. The

supreme court relied on Raley v. Ohio, in which the United States Supreme Court held that

due process did not permit the prosecution of individuals who refused to testify before a

legislative commission after being incorrectly led to believe by commission members that

they could do so under the protection of the privilege against compelled self-incrimination.

360 U.S. 423, 437-39, 79 S. Ct. 1257, 1266-67 (1959); McDonnell, 473 N.W.2d at 854.


                                              12
The supreme court concluded that the statute, as well as a portion of a commissioner-

approved standard “Implied Consent Advisory” based on the statute, were unconstitutional

as applied “[b]ecause they permitted police to threaten criminal charges the state was not

authorized to impose, thereby violating the constitutional guarantee of due process.” Id. at

850 n.2, 851 n.5, 855. The supreme court further concluded that Moser’s “interests were

prejudiced when law enforcement officials misinformed her as to her potential criminal

liability” and rescinded the revocation of Moser’s license to drive based on the due-process

violation. Id. at 855.

       Later, in Steinolfson v. Comm’r of Pub. Safety, this court concluded that a driver’s

due-process rights were violated under McDonnell because an implied-consent advisory

incorrectly advised that the driver may be subject to criminal penalties if he refused testing,

“regardless of whether he took or refused the test.” 478 N.W.2d 808 (Minn. App. 1991).

This court noted that the focus of the supreme court’s concern in McDonnell was the

inaccuracy of the advisory.      Id. at 809.        We stated that we would not allow the

commissioner to benefit “from an advisory which our supreme court has determined

misinformed the driver, and threatened criminal charges that were not actually authorized,”

merely because the driver refused testing. Id.

                                               B.

       Applying the reasoning of McDonnell, we consider whether the advisory in this case

permitted police to threaten criminal charges the state was not authorized to impose.

“It is a crime for any person to refuse to submit to a chemical test of the person’s blood,

breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test


                                               13
refusal or failure; revocation of license).”       Minn. Stat. § 169A.20, subd. 2 (2014).

However, in State v. Thompson, this court held that the criminal test-refusal statute violates

substantive due process, as applied, where it criminalizes refusal to submit to a urine test

that would have been unconstitutional under the Fourth Amendment. 873 N.W.2d 873

(Minn. App. 2015), aff’d, ___ N.W.2d ___ (Minn. Oct. 12, 2016). The district court relied

on this court’s decision in Thompson in concluding that Johnson could not have been

criminally charged for refusing the urine test in this case.

       While this appeal was pending, the Minnesota Supreme Court affirmed this court’s

decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that

Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to

prosecute a driver for refusing to consent to a search that would violate the Fourth

Amendment. Id. Given the supreme court’s recent affirmance of Thompson, we apply the

supreme court’s decision in this opinion.

       Under Thompson, Johnson could not be prosecuted for refusing to consent to the

urine test in this case if the test would have violated the Fourth Amendment. The Fourth

Amendment protects “[t]he right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.          “A

warrantless search is generally unreasonable, unless it falls into one of the recognized

exceptions to the warrant requirement.” State v. Bernard, 859 N.W.2d 762, 766 (Minn.

2015), aff’d sub nom. Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). “The state bears

the burden of establishing an exception to the warrant requirement.” State v. Ture, 632




                                              14
N.W.2d 621, 627 (Minn. 2001). We determine constitutional questions involving searches

and seizures de novo. State v. Anderson, 733 N.W.2d 128, 136 (Minn. 2007).

                                               1.

       The search-incident-to-arrest and exigent-circumstances exceptions to the warrant

requirement sometimes justify a warrantless search under the implied-consent law.

Birchfield, 136 S. Ct. at 2185 (concluding that “a breath test . . . may be administered as a

search incident to a lawful arrest for drunk driving”); Missouri v. McNeely, 133 S. Ct. 1552,

1563 (2013) (holding that the exigent-circumstances exception may apply based on the

particular circumstances of a case, but it does not apply categorically). But a warrantless

urine test does not fall within the search-incident-to-arrest exception to the warrant

requirement. Thompson, 2016 WL 5930162, at *7. As to exigent circumstances, “the

relevant inquiry is whether . . . it was objectively reasonable for the officer to conclude that

he or she was faced with an emergency, in which the delay necessary to obtain a warrant

would significantly undermine the efficacy of the search.” State v. Stavish, 868 N.W.2d

670, 676-77 (Minn. 2015). The officer in this case testified that nothing prevented him

from attempting to obtain a warrant, and the district court found that “no emergency was

shown.” In sum, the district court correctly concluded that search-incident-to-arrest and

exigent-circumstances exceptions do not apply here.

                                               2.

       The commissioner relies on the consent exception to the warrant requirement. In

State v. Brooks, the Minnesota Supreme Court concluded that the police did not violate

Brooks’s Fourth Amendment rights when they took blood and urine samples from him


                                              15
without a warrant after he expressly consented to the searches. 838 N.W.2d 563, 565-66

(Minn. 2013). Here, however, Johnson did not expressly consent to the urine test.

       The commissioner suggests that Johnson’s consent to the warrantless urine test may

be implied under the implied-consent law. The commissioner’s reliance on Brooks for

support is unavailing. Although the Minnesota Supreme Court held that Brooks had “not

demonstrated that Minnesota’s implied-consent statute is unconstitutional” after reasoning

that the state can condition “the privilege of driving” on agreeing to a warrantless search,

the supreme court did not consider or decide whether implied consent justifies a criminal

test-refusal charge. Id. at 572-73. Moreover, the supreme court stressed that “we do not

hold that Brooks consented because Minnesota law provides that anybody who drives in

Minnesota ‘consents . . . to a chemical test.’ Rather, we hold that Brooks consented based

on our analysis of the totality of the circumstances of this case.” Id. at 572 (quoting Minn.

Stat. § 169A.51, subd. 1(a) (2012)).

       More recently, in Birchfield, the United States Supreme Court considered whether

the warrantless taking of a blood sample under an implied-consent law is justified “based

on the driver’s legally implied consent to submit.” 136 S. Ct. at 2185. The Court

acknowledged that its prior opinions had “referred approvingly to the general concept of

implied-consent laws that impose civil penalties and evidentiary consequences on

motorists who refuse to comply.” Id. But the Supreme Court stated that “[i]t is another

matter, however, for a State not only to insist upon an intrusive blood test, but also to

impose criminal penalties on the refusal to submit to such a test.” Id. It noted that “[t]here

must be a limit to the consequences to which motorists may be deemed to have consented


                                             16
by virtue of a decision to drive on public roads” and concluded that “motorists cannot be

deemed to have consented to submit to a blood test on pain of committing a criminal

offense.” Id. at 2185-86.

       Although Birchfield involved a blood test and not a urine test, its reasoning is

persuasive for three reasons. First, Minnesota’s implied-consent statute treats blood and

urine tests similarly, as compared to breath tests. Minn. Stat. § 169A.51, subd. 3 (2014)

(requiring an officer to offer an alternative test before a driver can be charged with refusing

a blood or urine test but not a breath test). Second, the Minnesota Supreme Court recently

concluded, in Thompson, that “in terms of the impact on an individual’s privacy, a urine

test is more like a blood test than a breath test.” Thompson, 2016 WL 5930162, at *6.

Third, the Minnesota Supreme Court applied portions of Birchfield’s blood-test analysis

when assessing the constitutionality of warrantless urine tests in Thompson, reasoning that

“[a]lthough Birchfield addressed the availability of breath tests as an alternative to

warrantless blood tests, the same logic applies with equal force to warrantless urine tests.”

See id. at *7.

       Applying the reasoning of Birchfield, we conclude that consent to a urine test cannot

be implied under Minnesota’s implied-consent law for the purpose of imposing a criminal

test-refusal charge.    The consent exception therefore does not justify the proposed

warrantless urine test in this case.

                                              3.

       The commissioner also argues that under Stevens v. Comm’r of Pub. Safety,

warrantless testing under Minnesota’s implied-consent law is constitutionally reasonable.


                                              17
850 N.W.2d 717 (Minn. App. 2014). In Stevens, this court held that “Minnesota’s implied-

consent statute does not violate the unconstitutional-conditions doctrine by authorizing the

commissioner of public safety to revoke the driver’s license of a person who has been

arrested for driving while impaired and has refused to submit to chemical testing.” Id. at

720. The court rejected Stevens’s unconstitutional-conditions challenge for four reasons,

the third being that “Stevens would not be able to establish that the implied-consent statute

authorizes a search that violates the Fourth Amendment.” Id. at 724, 726. In reaching that

conclusion, this court engaged in a general reasonableness analysis and determined that:

              [T]he 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.

Id. at 730.

       However, this court’s determination that a warrantless urine search under the

implied-consent statute would not violate the Fourth Amendment is expressly limited to “a

civil action in which [Stevens sought] to rescind the temporary revocation of her driver’s

license.” Id. at 724. This court stated, “[b]ecause this is a civil action, we need not decide

whether Stevens has been subjected to an unconstitutional condition on her Fourth

Amendment rights by the criminal consequences of a refusal to submit to chemical testing.”

Id.

       Although this is a civil action in which Johnson seeks to rescind the revocation of

his license to drive, the relevant underlying issue is whether the state could have criminally



                                             18
prosecuted Johnson for refusing to submit to a urine test. Stevens does not answer that

question.

                                               4.

       In sum, the commissioner has not established that the warrantless search of

Johnson’s urine would have been constitutionally reasonable for the purpose of charging

him with criminal test refusal. We therefore conclude that the search would have violated

the Fourth Amendment and that, under Thompson, a test-refusal charge would be

unconstitutional.

                                               C.

       Having determined that a criminal-test-refusal charge would be unconstitutional in

this case, we next consider whether the implied-consent advisory violated Johnson’s right

to due process, such that he is entitled to rescission of the revocation of his license to drive.

The advisory in this case is a modified version of the advisory mandated under Minn. Stat.

§ 169A.51, subd. 2 (2014), which requires an officer to inform a person “that refusal to

take a test is a crime.” We therefore focus our analysis on the constitutionality of the

advisory that was given, and not on the constitutionality of the statute. See McDonnell,

473 N.W.2d at 849 (finding both the statute, as well as the portion of an advisory based on

it, unconstitutional as applied). The commissioner makes several arguments that relief is

not available under McDonnell. We address each in turn.

                                               1.

       We first address the commissioner’s argument that the circumstances here are

distinguishable from those in McDonnell. Specifically, the commissioner argues that


                                               19
because the advisory in this case was given before Thompson was decided, the advisory

was accurate and therefore not misleading. The commissioner does not cite precedential

authority to support this argument.      Instead, the commissioner relies on two recent

unpublished decisions of this court, in which the court rejected McDonnell due-process

challenges to implied-consent advisories on the grounds that the advisories were accurate

when they were given. See O’Gara v. Comm’r of Pub. Safety, No. A16-0028, 2016 WL

4596555, at *2 (Minn. App. Sept. 6, 2016); Morehouse v. Comm’r of Pub. Safety, No. A16-

0277, 2016 WL 4497470, at *1 (Minn. App. Aug. 29, 2016).

       Although unpublished cases are not precedential, they may be persuasive. Sarber

v. Comm’r of Pub. Safety, 819 N.W.2d 465, 469 n.3 (Minn. App. 2012). As to the

persuasive value of the unpublished cases, on one hand, this court rejected the drivers’ due-

process claims under McDonnell based on its determinations that the advisories were

accurate when they were given. O’Gara, 2016 WL 4596555, at *2 (“But this case is

distinguishable from McDonnell because the advisory given in McDonnell was actively

misleading at the time it was given. Here, at the time of his arrest, the trooper accurately

informed O’Gara that he could be criminally prosecuted for refusing a blood draw.”

(citation omitted)); Morehouse, 2016 WL 4497470, at *1 (“Unlike the situation in

McDonnell, Trooper Koenen did not actively mislead Morehouse regarding his statutory

obligation to undergo chemical testing. Indeed, the advisory Morehouse received was

legally accurate at the time it was given.” (citation omitted)).

       On the other hand, this court remanded for the district court to reassess the validity

of the drivers’ consent to blood testing under the Fourth Amendment, based on its


                                             20
determinations that the same advisories were inaccurate. See O’Gara, 2016 WL 4596555,

at *2 (“Because Birchfield established that O’Gara could not be criminally prosecuted for

refusing to submit to a blood test in this situation, the trooper’s advisory was partially

inaccurate.”); Morehouse, 2016 WL 4497470, at *3 (“Because Birchfield established that

Morehouse could not be criminally prosecuted for refusing to submit to a blood test in this

situation, Trooper Koenen’s advisory was partially inaccurate.”). In determining that the

advisories were inaccurate for the purpose of a Fourth Amendment analysis, this court

relied on Birchfield, which was decided after the state provided the challenged advisories.1

O’Gara, 2016 WL 4596555, at *2; Morehouse, 2016 WL 4497470, at *2-3.

       The temporal relationship between the challenged advisories in the unpublished

cases and Birchfield mirrors the temporal relationship between the challenged advisory in

this case and Thompson. The post-advisory timing of the Birchfield decision did not

prevent this court from concluding that the advisories in the unpublished cases were

inaccurate based on Birchfield. We do not discern a reason to reach a different conclusion

regarding the accuracy of the advisory in this case based on the post-advisory timing of the

Thompson decision. Moreover, we do not discern a reason to deem the same advisory

accurate for the purpose of a due-process analysis and inaccurate for the purpose of a



1
  One of the petitioners in Birchfield had “submitted to a blood test after police told him
that the law required his submission.” 136 S. Ct. at 2186. The Supreme Court noted that
“[t]he North Dakota Supreme Court held that [the petitioner’s] consent was voluntary on
the erroneous assumption that the State could permissibly compel both blood and breath
tests,” which was contrary to Birchfield’s holding. Id. The Supreme Court remanded the
consenting petitioner’s case to the state court “to reevaluate [the petitioner’s] consent given
the partial inaccuracy of the officer’s advisory.” Id.

                                              21
Fourth Amendment analysis. The unpublished cases therefore do not persuade us that the

advisory in this case was accurate when it was given.

                                              2.

       We next address the commissioner’s argument that the officer here had no reason

to know that this court would declare the test-refusal statute unconstitutional as applied in

Thompson and that the advisory was intended to comply with statutory requirements. See

Minn. Stat. § 169A.51, subd. 2 (requiring an officer to inform a person “that refusal to take

a test is a crime”).    Essentially, the commissioner argues that the officer did not

intentionally mislead Johnson. This argument is unavailing because the circumstances here

are similar to those in McDonnell. The McDonnell court did not reason or conclude that

the police intentionally misled Moser. The supreme court recognized that the police

provided the challenged advisory under Minn. Stat. § 169.123, subd. 2(b)(2) (1990), and

used a standard advisory approved by the commissioner. McDonnell, 473 N.W.2d at 850

n.2, 851 & n.5, 853.

       Even though the supreme court did not note any intentional or bad-faith police

conduct and the police provided an approved, standard advisory pursuant to a statutory

directive, the supreme court held that the advisory was unconstitutional as applied because

it “permitted police to threaten criminal charges the state was not authorized to impose,

thereby violating the constitutional guarantee of due process.” Id. at 855. Because the

due-process violation in McDonnell was based on the inaccuracy of the advisory, and not

on any intentionally misleading police conduct, the facts that the officer here did not intend




                                             22
to mislead Johnson and provided an advisory that was consistent with statutory

requirements do not persuade us that due-process relief is unavailable under McDonnell.

                                              3.

       We next address the commissioner’s argument regarding application of the principle

that “if [a] court finds a statute unconstitutional, the statute is not a law; it is just as

inoperative as had it never been enacted.” McGuire v. C & L Rest., Inc., 346 N.W.2d 605,

614 (Minn. 1984). When this court questioned the commissioner regarding application of

the principle, the commissioner argued that the principle applies only if a statute has been

found unconstitutional on its face and noted that Thompson held the test-refusal statute

unconstitutional as applied. 873 N.W.2d at 876 n.1 (construing Thompson’s argument as

an as-applied challenge); see Thompson, 2016 WL 5930162 (holding that Minn. Stat. §

169A.20, subd. 2, was unconstitutional as applied). The commissioner did not cite legal

authority to support this argument, and we are not aware of precedent requiring us to limit

application of the principle as the commissioner suggests. Although Thompson held that

the test-refusal statute was unconstitutional as applied, the circumstances here are squarely

within Thompson’s holding. See Thompson, 2016 WL 5930162, at *8. And as to those

cases falling within Thompson’s holding, we conclude that the test-refusal statute is

unconstitutional as applied. It is not law, and it is just as inoperative as if it had not been

enacted.2

                                              4.


2
  In Thompson, the supreme court refused to consider the state’s request that the court limit
the retroactive application of the court’s decision. Id. at *8 n.8.

                                              23
       We next address the commissioner’s argument that “the evidence of refusal” should

not be suppressed. In Thompson, the Minnesota Supreme Court held that “[b]ecause the

good-faith exception to the exclusionary rule is a rule of evidence and respondent does not

challenge the admission of any evidence, the good-faith exception does not apply.” Id. at

*7. Like the circumstances in Thompson, Johnson does not challenge the admissibility of

any evidence and the good-faith exception does not apply.

                                             5.

       In conclusion, the commissioner’s arguments do not persuade us that due-process

relief under McDonnell is unavailable to Johnson. Thompson holds that Minnesota’s

criminal test-refusal statute is unconstitutional as applied to an individual who refuses to

take an unconstitutional urine test. Id. at *8. The circumstances of this case fall squarely

within Thompson’s holding, and the refusal statute is therefore unconstitutional as applied

to Johnson. Because a criminal test-refusal charge would be unconstitutional, the implied-

consent advisory inaccurately informed Johnson that refusal to take a urine test is a crime.

When the state provided that inaccurate advisory, it misinformed Johnson regarding the

penalties he would face if he refused to submit to testing, in violation of his right to due

process, as established in McDonnell.

       We recognize that DWI and implied-consent laws have changed since McDonnell

was decided and that the Minnesota Supreme Court might view the challenge to the

advisory in this case differently under the current legal landscape. But as an error-

correcting court, we are not at liberty to reconsider McDonnell’s reasoning or depart from

its holding. See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (noting that


                                            24
the task of extending existing law falls to the supreme court and not this court), review

denied (Minn. Dec. 18, 1987). We are required to follow supreme court precedent and

published opinions of this court. See State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App.

2010) (noting that the district court and the court of appeals are bound by supreme court

precedent and the published opinions of the court of appeals), review denied (Minn. Sept.

21, 2010). Under McDonnell and Steinolfson, rescission is the appropriate remedy for the

violation of Johnson’s right to due process. See McDonnell, 473 N.W.2d at 855 (rescinding

license revocation based on due-process violation); Steinolfson, 478 N.W.2d at 809 (same

where driver refused testing). The district court therefore did not err by rescinding the

revocation of Johnson’s license to drive.

                                      DECISION

       Under Thompson, Johnson cannot be criminally prosecuted for refusing to consent

to the unconstitutional urine test in this case. Thus, the implied-consent advisory, which

stated that refusal to take a urine test is a crime, inaccurately advised Johnson that he faced

a criminal penalty if he refused to take a urine test. By providing the inaccurate advisory,

the state misinformed Johnson regarding the potential penalty for refusing to submit to a

urine test and violated his right to due process, as established in McDonnell. We therefore

affirm the district court’s order rescinding the revocation of Johnson’s license to drive.

       Affirmed.




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