                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2016).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A16-0547

                            Amy Lynn-Ishwar Butani, petitioner,
                                       Appellant,

                                              vs.

                               Commissioner of Public Safety,
                                      Respondent.

                                   Filed January 9, 2017
                                  Reversed and remanded
                                       Stauber, Judge

                                Dakota County District Court
                                File No. 19AV-CV-15-1566

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

Lori Swanson, Attorney General, Frederic J. Argir, Peter Magnuson, Assistant Attorneys
General, St. Paul, Minnesota (for respondent)

         Considered and decided by Worke, Presiding Judge; Stauber, Judge; and Bratvold,

Judge.

                           UNPUBLISHED OPINION

STAUBER, Judge

         Appellant challenges the district court’s order sustaining the revocation of her

driving privileges, arguing that (1) evidence from field sobriety and preliminary breath

tests was obtained in violation of the Fourth Amendment; (2) evidence from a urine test

was obtained in violation of the Fourth Amendment; (3) Minnesota’s test-refusal statute
is unconstitutional, as applied, and appellant’s due-process rights were violated when she

was misinformed that refusing to take a urine test is a crime; (4) appellant’s due-process

rights were violated because of an untimely notice of revocation; and (5) the district court

erred by admitting evidence from appellant’s urine test despite a lack of evidentiary

foundation. We reverse and remand for reinstatement of appellant’s driver’s license

because appellant’s due-process rights were violated when she was misinformed that

refusing to take an unconstitutional urine test is a crime.

                                           FACTS

       On April 18, 2015, Officer Nicholas Jacobson was on patrol when he saw a

vehicle signal a left turn at an intersection where a left turn was prohibited. The vehicle's

signal was soon turned off, and the vehicle proceeded through the intersection. Officer

Jacobson then saw the vehicle fail to make a complete stop at an intersection. Officer

Jacobson stopped the vehicle and spoke with the driver, appellant Amy Lynn-Ishwar

Butani. Officer Jacobson observed indicia of intoxication. He then had appellant

perform field sobriety tests. Appellant failed those tests. Officer Jacobson administered

a preliminary breath test that indicated a reading above the legal limit, and appellant was

placed under arrest for driving while impaired.

       Officer Jacobson did not obtain a warrant to obtain a urine sample, but he read the

implied-consent advisory to appellant. Appellant was given an opportunity to contact an

attorney. Officer Jacobson informed appellant that refusal to take a test is a crime, and

offered her a urine test to which she agreed to submit. Her urine was tested and indicated

an alcohol concentration just above the legal limit.


                                              2
       Appellant’s license was revoked, and she petitioned for an implied-consent review

hearing. Following a hearing, the district court sustained the revocation, concluding that

there was probable cause to arrest appellant, Minnesota’s test-refusal statute does not

violate due process, no warrant was required, and the imposition of criminal

consequences for test refusal does not unlawfully compel a driver to submit to testing.

This appeal follows.

                                     DECISION

       Appellant raises a number of Fourth Amendment and due-process claims.

Appellant’s due-process claim that she was misled by an inaccurate advisory resolves this

case. We therefore address that claim first.

       Respondent Commissioner of Public Safety argues that we should instead analyze

this case under the Fourth Amendment. Generally, when both Fourth Amendment and

substantive due-process claims are raised, analysis under the Fourth Amendment is

proper if the Fourth Amendment provides protections against the claimed government

action. State v. Mellett, 642 N.W.2d 779, 783 (Minn. App. 2002), review denied (Minn.

July 16, 2002). However, a due-process analysis is proper here because (1) appellant’s

argument that she was misled by an inaccurate advisory likely implicates procedural

rather than substantive due process; (2) appellant does not seek to expand substantive due

process; (3) there is precedent in Minnesota for addressing such claims; and (4) the

Fourth Amendment does not provide explicit protection against the challenged

government behavior. Johnson v. Comm’r of Pub. Safety, ___ N.W.2d ___, ___, No.




                                               3
A16-0502, slip op. at 6-11 (Minn. App. Nov. 7, 2016), pet. for review filed (Minn. Dec.

7, 2016).

       “Whether an implied-consent advisory violates a driver’s due-process rights is a

question of law, which this court reviews de novo.” Magnuson v. Comm’r of Pub. Safety,

703 N.W.2d 557, 561 (Minn. App. 2005). Here, appellant’s due-process rights were

violated when she was informed via the implied-consent advisory that refusing to take a

urine test is a crime.

       Without first obtaining a warrant, Officer Jacobson informed appellant that refusal

to take a test is a crime, and Officer Jacobson offered appellant a urine test. The

collection and testing of urine is a search. State v. Brooks, 838 N.W.2d 563, 568 (Minn.

2013). The United States and Minnesota constitutions prohibit unreasonable searches of

a person. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A warrantless search is

presumed unreasonable unless it falls under an exception to the warrant requirement.

State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).

       Respondent offers two warrant exceptions, consent and search-incident-to-arrest.

This court held in State v. Thompson, issued after appellant’s arrest, that a warrantless

urine test could not “be justified under the search-incident-to-arrest exception.” 873

N.W.2d 873, 878 (Minn. App. 2015), aff’d, 886 N.W.2d 224 (Minn. 2016). The

Minnesota Supreme Court affirmed this court’s decision, on Fourth Amendment grounds.

Thompson, 886 N.W.2d at 233. Thus, the only valid warrant exception offered to justify

the search of appellant’s urine is consent.




                                              4
       Despite appellant’s ultimate submission to urine testing, consent does not validate

Officer Jacobson’s misstatement that test refusal is a crime. When Officer Jacobson read

the implied-consent advisory, he had not obtained a warrant, and there was no applicable

warrant exception. As such, appellant’s refusal was not a crime when the advisory was

read because appellant could have lawfully refused the unconstitutional search; the

implied-consent advisory was therefore inaccurate. Id. at 234.

       Given the inaccuracy of the implied-consent advisory in this case, appellant relies

on McDonnell v. Comm’r of Pub. Safety to argue that her due-process rights were

violated. 473 N.W.2d 848 (Minn. 1991). In McDonnell, the supreme court concluded

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

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

impossible. Id. at 853-55.

       Relying on McDonnell, this court recently held that when the state misinforms a

driver regarding the penalties for refusal of an unconstitutional urine test, the driver’s

due-process rights are violated, and rescission is an appropriate remedy. Johnson, slip

op. at 25. Respondent argues that the advisory was accurate when given because

Thompson had not yet been decided. However, the timing of the Thompson decision does

not affect the advisory’s inaccuracy. Id. at 19-22. Further, appellant’s argument that the

good-faith exception is applicable is unpersuasive; the good-faith exception is a Fourth

Amendment doctrine, not a due-process issue. See State v. Lindquist, 869 N.W.2d 863,

868-70 (Minn. 2015) (outlining the evolution of the good-faith exception as a limitation

on the Fourth Amendment exclusionary rule).


                                              5
       Unlike Johnson, in this case appellant arguably consented to the search of her

urine after the advisory was read. See Johnson, slip op. at 3. However, the focus of a

due-process analysis under McDonnell is whether an advisory is misleading, not whether

a driver ultimately consents to or refuses testing. See Olinger v. Comm’r of Pub. Safety,

478 N.W.2d 806, 808 (Minn. App. 1991) (noting an “improper threat constitutes the

violation, and no showing of actual prejudice is required”); Steinolfson v. Comm’r of Pub.

Safety, 478 N.W.2d 808, 809 (Minn. App. 1991) (noting that drivers were entitled to

relief under McDonnell “without regard to their decision regarding testing”). Rescission

of revocation is therefore the proper remedy in this case. Olinger, 478 N.W.2d at 808;

Steinolfson, 478 N.W.2d at 809.

       In sum, because appellant was misinformed that refusal to submit to an

unconstitutional urine test is a crime, appellant’s due-process rights were violated, and

the revocation of appellant’s license must be rescinded.

       Reversed and remanded.




                                             6
