                         This opinion will be unpublished and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
                                    A15-0177

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                                 Gatwech Yiek Thach,
                                     Appellant.

                                Filed February 1, 2016
                                       Reversed
                                    Johnson, Judge

                             Stearns County District Court
                               File No. 73-CR-14-6841

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

Matthew A. Staehling, St. Cloud City Attorney, Jennifer K. Rose, Assistant City Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea G. M. Barts, Assistant
State Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and Harten,

Judge.




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                         UNPUBLISHED OPINION

JOHNSON, Judge

       Gatwech Yiek Thach was convicted of second-degree test refusal because he

refused to submit to a chemical test of his blood or his urine. On appeal, he argues that his

conviction must be reversed on the ground that the test-refusal statute is unconstitutional

given the facts of this case. In light of recent precedential opinions of this court, Thach’s

constitutional argument has merit. Therefore, we reverse his conviction of second-degree

test refusal.

                                          FACTS

       Thach’s conviction of second-degree test refusal is based on an incident that

occurred in the city of St. Cloud on August 13, 2014. A woman called 911 to report that

her vehicle was rear-ended by another vehicle, that the driver of the other vehicle drove

away from the scene of the collision, and that she followed the other vehicle until she saw

it stop in the parking lot of an apartment building and saw a man exit the vehicle and enter

the apartment building. After performing an investigation, a St. Cloud police officer

arrested Thach for driving while impaired. The officer transported Thach to a hospital for

a medical examination. At the hospital, the officer read Thach the implied-consent

advisory four times. After the fourth reading of the advisory, the officer asked Thach

whether he would submit to a blood test or a urine test. Thach did not respond. The officer

construed the lack of a response to be a refusal.

       The state charged Thach with four offenses: (1) second-degree driving while

impaired, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .25, subd. 1(a) (2014);


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(2) second-degree refusal to submit to a chemical test, in violation of Minn. Stat.

§§ 169A.20, subd. 2, .25, subd. 1(b) (2014); (3) failure to stop for an accident, in violation

of Minn. Stat. § 169.09, subd. 2 (2014); and (4) driving after revocation, in violation of

Minn. Stat. § 171.24, subd. 2 (2014).

       In November 2014, the case was tried to a jury. At the outset of trial, the state

dismissed count 3 because the woman who reported the collision was unavailable to testify.

During trial, the district court allowed the state to introduce the testimony of the

investigating officer concerning the woman’s statements, despite Thach’s objection based

on the Confrontation Clause and the rule against hearsay. The jury found Thach guilty on

counts 1, 2, and 4. The district court sentenced Thach on count 2 by ordering him to serve

time in jail, by placing him on probation, and by imposing a $200 fine. Thach appeals.

                                      DECISION

       Thach argues that his test-refusal conviction must be reversed on the ground that the

test-refusal statute is unconstitutional as applied to him in this case because the statute

criminalizes his refusal to submit to an unconstitutional search of his blood or his urine in

violation of his right to substantive due process. In response, the state first argues that

Thach does not have a fundamental right to refuse to submit to a warrantless blood test or

a warrantless urine test. The state argues in the alternative that, even if Thach had such a

fundamental right, the test-refusal statute is not unconstitutional.

       We begin our analysis by considering whether Thach has a fundamental right to

refuse to submit to the chemical tests requested by the investigating officer. The answer

to that question depends on whether a warrantless blood test or a warrantless urine test


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would have been a valid search under the Fourth Amendment to the United States

Constitution. See State v. Thompson, ____ N.W.2d ____, ____, 2015 WL 9437538, at *2

(Minn. App. Dec. 28, 2015), pet. for review filed (Minn. Jan. 21, 2016); State v. Trahan,

870 N.W.2d 396, 400 (Minn. App. 2015), review granted (Minn. Nov. 25, 2015). In

arguing that a warrantless blood test or a warrantless urine test would have been a valid

search under the Fourth Amendment, the state relies heavily, if not solely, on the supreme

court’s opinion in State v. Bernard, 859 N.W.2d 762 (Minn.), cert. granted, 136 S. Ct. 615

(2015). In Bernard, the supreme court held that a warrantless breath test conducted

pursuant to the implied-consent statute would be a valid search incident to arrest for

purposes of the Fourth Amendment, so long as the arrest is valid. Bernard, 859 N.W.2d at

772. As a consequence, the appellant in Bernard did not have a fundamental right to refuse

to submit to the breath test that was requested of him. Id. at 773.

       Thach acknowledges the supreme court’s opinion in Bernard but argues that it “does

not extend to the much more invasive search of a person’s blood or urine.” Thach’s

argument finds support in this court’s opinions in Trahan and Thompson, which were

released by this court after counsel filed their respective briefs in this case. In Trahan, this

court held, based on the state’s concession, that Bernard does not apply to a blood test and

that a warrantless blood test cannot be justified by the search-incident-to-arrest doctrine.

870 N.W.2d at 401. Similarly, in Thompson, this court held that Bernard does not apply

to a urine test and that a warrantless urine test cannot be justified by the search-incident-

to-arrest doctrine. 2015 WL 9437538, at *4. Collectively, Trahan and Thompson compel

the conclusion that, in Thach’s case, the administration of a warrantless blood test or a


                                               4
warrantless urine test would not have been a valid search incident to his arrest. Because

the state relies only on the search-incident-to-arrest doctrine, we must conclude that Thach

had a fundamental right to refuse to submit to both chemical tests.

       We continue the analysis by considering whether the statute is constitutional in light

of Thach’s fundamental right to refuse to submit to the requested chemical tests. See id. at

*5; Trahan, 870 N.W.2d at 403. If a statute implicates a fundamental right, the statute is

subject to strict scrutiny, which requires that the statute be narrowly tailored to serve a

compelling state interest. Trahan, 870 N.W.2d at 404. This court applied strict scrutiny

to the test-refusal statute in Trahan and Thompson. Thompson, 2015 WL 9437538, at *5;

Trahan, 870 N.W.2d at 404. In each case, this court concluded that the state has a

compelling interest in keeping highways safe from drunken drivers but that the test-refusal

statute was not narrowly tailored to serve that compelling interest. Thompson, 2015 WL

9437538, at *5; Trahan, 870 N.W.2d at 404. Thus, in each case, this court concluded that

the test-refusal statute was unconstitutional as applied. Thompson, 2015 WL 9437538, at

*5; Trahan, 870 N.W.2d at 405. Trahan and Thompson compel the same conclusion in

this case. Accordingly, we conclude that the test-refusal statute is unconstitutional as

applied to Thach in this case. Therefore, Thach’s conviction of second-degree test-refusal

must be reversed.

       Thach also argues that the district court erred by admitting the state’s evidence

concerning the complainant’s statements in violation of the Confrontation Clause and the

rule against hearsay. Because we have reversed Thach’s conviction of second-degree test-

refusal, Thach’s argument concerning the admissibility of the state’s evidence could be


                                             5
relevant only to the other two charges that were tried, second-degree driving while

impaired and driving after revocation. But the district court did not adjudicate Thach on

either of those two charges. Without an adjudication, there is no conviction, and without

a conviction, there is no appealable judgment. See State v. Hoelzel, 639 N.W.2d 605, 609

(Minn. 2002) (holding that verdict of guilt, without recorded judgment of conviction, is not

final, appealable judgment); State v. Ashland, 287 N.W.2d 649, 650 (Minn. 1979)

(declining to address sufficiency-of-evidence argument with respect to counts on which

defendant was found guilty but not formally adjudicated or sentenced). Therefore, we do

not consider Thach’s additional argument. If Thach were convicted and sentenced on count

1 or count 4, he would have an opportunity at that time to take a direct appeal from a final,

appealable judgment. See Minn. R. Crim. P. 27.03, subd. 8, 28.02, subd. 2(1); State v.

LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).

       Reversed.




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