                          This opinion will be unpublished and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
                                     A14-0572

                                   State of Minnesota,
                                        Appellant,

                                           vs.

                                 Brandon Joseph Poitra,
                                     Respondent.

                                 Filed August 11, 2014
                                Reversed and remanded
                                     Larkin, Judge

                               Clay County District Court
                                 File No. 14-CR-14-12


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

Brian J. Melton, Clay County Attorney, Heidi M.F. Davies, Assistant County Attorney,
Moorhead, Minnesota (for appellant)

Brian P. Toay, Wold Johnson, P.C., Fargo, North Dakota (for respondent)


         Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Smith,

Judge.

                         UNPUBLISHED OPINION

LARKIN, Judge

         In this pretrial prosecution appeal, appellant challenges the district court’s

dismissal of its charge against respondent under Minn. Stat. § 169A.20, subd. 2 (2012)
(driving while impaired, chemical test refusal).         Because respondent has failed to

demonstrate, beyond a reasonable doubt, that the test-refusal statute violates a

constitutional provision, we reverse and remand.

                                            FACTS

         A Moorhead police officer arrested respondent Brandon Joseph Poitra for driving

while impaired (DWI). The officer read Poitra Minnesota’s implied-consent advisory.

Poitra indicated that she understood the advisory and refused to submit to chemical

testing.1    Appellant State of Minnesota charged Poitra with refusal to submit to a

chemical test and operating a motor vehicle under the influence of alcohol.

         Poitra moved the district court to “exclude all products of the unconstitutional and

warrantless attempt to procure bodily fluids from [her].” At the omnibus hearing, the

following exchange occurred:

                DEFENSE: The issue is the test, Your Honor. And . . . we’re
                quite willing to proceed with the police reports, and draft a
                brief. . . . I want to read [a particular case] before I actually
                provide what is sort of a canned brief at this point. It may
                well raise some additional issues.
                COURT: Okay.
                THE STATE: So as I understand it, it’s a challenge to the
                constitutionality of 169A.20, subdivision 2 [(the test-refusal
                statute)]?
                DEFENSE: That’s correct.

         Later, Poitra submitted a brief in district court, arguing that “there were no exigent

circumstances present that allowed the warrantless seizure of bodily fluids” and that she

“did not consent to the search.” She therefore asserted that “[t]he [test-refusal] statute


1
    We use the same gender designation that the district court used.

                                               2
[(Minn. Stat. § 169.20, subd. 2] is unconstitutional herein as it applies to this defendant.”

She argued that “[t]he state had the duty of securing a warrant, or proving exigent

circumstances” and “[b]ecause the [s]tate did not procure a warrant for the search of [her]

breath, urine, or blood, or prove exigent circumstances, [the test-refusal charge] must be

dismissed.”

       The district court granted Poitra’s request for dismissal. It reasoned that the

officer “did not have a warrant or an exception that would have allowed a warrantless

search. Therefore the search would have been unreasonable. It follows that [Poitra]

cannot be convicted of the crime of test refusal.” However, the district court “decline[d]

to find the test refusal statute unconstitutional.” The district court relied on Camara v.

Mun. Court of City & Cnty. of San Francisco, 387 U.S. 523, 87 S. Ct. 1727 (1967) and

Frost Trucking Co. v. R.R. Comm’n of Cal., 271 U.S. 583, 46 S. Ct. 605 (1926), even

though Poitra did not cite either case as a basis for relief. The state appeals.

                                      DECISION

                                              I.

       The state may appeal from “any pretrial order” so long as “the district court’s

alleged error, unless reversed, will have a critical impact on the outcome of the trial.”

Minn. R. Crim. P. 28.04, subds. 1(1), 2(1). “[A] pretrial order will only be reversed if the

[s]tate demonstrates clearly and unequivocally that the [district] court has erred in its

judgment and that, unless reversed, the error will have a critical impact on the outcome of

the trial.” State v. Underdahl, 767 N.W.2d 677, 681 (Minn. 2009) (quotation omitted).

“The critical impact requirement has evolved into a threshold issue, so that in the absence


                                              3
of critical impact we will not review a pretrial order.” Id. (quotations omitted). Because

the district court dismissed Poitra’s test-refusal charge, the critical impact standard is

satisfied. See State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (stating that critical

impact is present when suppression of evidence leads to the dismissal of charges); see

also State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001) (concluding that “[d]ismissal

of a complaint satisfies the critical impact requirement” in a case where only one count of

a multi-count complaint was dismissed), review dismissed (Minn. June 22, 2001).

                                               II.

       The constitutionality of a statute presents a question of law, which appellate courts

review de novo. State v. Cox, 798 N.W.2d 517, 519 (Minn. 2011). “[An appellate court]

presume[s] that Minnesota statutes are constitutional and will strike down a statute as

unconstitutional only if absolutely necessary.” Id. “To prevail, a party challenging the

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

violates a constitutional provision.” Id.

       In this case, the district court “decline[d] to find the test refusal statute

unconstitutional.” It nonetheless dismissed the test-refusal charge because “a [d]efendant

cannot be constitutionally convicted for refusing an unreasonable search.” Even though

the district court did not expressly rule that the test-refusal statute is unconstitutional, that

is the effect of its ruling. We therefore apply the principles in the preceding paragraph

when reviewing the dismissal.




                                               4
                                           III.

      Following the district court’s lead, Poitra relies on Camara as support for the

dismissal of her test-refusal charge.2 She argues that under Camara, “[p]assive refusal to

consent to a warrantless search is privileged conduct which cannot be considered a

crime.”

      In Camara, Roland Camara had been criminally charged with “refusing to permit

a lawful inspection” after he repeatedly refused to let inspectors from the Division of

Housing Inspection into his apartment to make a routine annual inspection, because the

inspectors did not have a search warrant. Camara, 387 U.S. at 526-27, 87 S. Ct. at 1729-

30. The inspectors were acting under the authority of section 503 of the city housing

code, which provided that “[a]uthorized employees . . . shall, upon presentation of proper

credentials, have the right to enter, at reasonable times, any building, structure, or

premises in the [c]ity to perform any duty imposed upon them by the Municipal Code.”

Id. at 526, 87 S. Ct. at 1729. Camara argued that section 503 was “contrary to the Fourth

and Fourteenth Amendments in that it authorize[d] municipal officials to enter a private

dwelling without a search warrant and without probable cause to believe that a violation

of the [h]ousing [c]ode exist[ed] therein.”3 Id. at 527, 87 S. Ct. at 1730. Camara



2
  Poitra does not rely on Frost, 271 U.S. at 593-94, 46 S. Ct. at 607 (discussing the
unconstitutional-conditions doctrine).
3
  Unlike the regulation in Camara, Minnesota’s implied-consent law does not authorize
chemical testing unless “an officer has probable cause to believe the person [to be tested]
was driving, operating, or in physical control of a motor vehicle in violation of section
169A.20 (driving while impaired).” Minn. Stat. § 169A.51, subd. 1(b) (2012); see also
Minn. Stat. § 169A.51, subd. 1(c) (2012) (“The test may also be required of a person

                                            5
contended that he could not be prosecuted for refusing to allow an inspection

unconstitutionally authorized by section 503. Id.

       The Supreme Court explained that it granted review “to re-examine whether

administrative inspection programs, as presently authorized and conducted, violate

Fourth Amendment rights.” Id. at 525, 87 S. Ct. at 1729. The Supreme Court held

               that administrative searches of the kind at issue here are
               significant intrusions upon the interests protected by the
               Fourth Amendment, that such searches when authorized and
               conducted without a warrant procedure lack the traditional
               safeguards which the Fourth Amendment guarantees to the
               individual, and that the reasons put forth in Frank v.
               Maryland and in other cases for upholding these warrantless
               searches are insufficient to justify so substantial a weakening
               of the Fourth Amendment’s protections.

Id. at 534, 87 S. Ct. at 1733.

       After   concluding        that   code-enforcement   inspection   programs   must   be

circumscribed by a warrant procedure, the Supreme Court determined the standard that

should govern the issuance of such warrants. Id. at 534-38, 87 S. Ct. at 1733-36. Lastly,

the Court concluded that Camara “had a constitutional right to insist that the inspectors

obtain a warrant to search and that [he could] not constitutionally be convicted for

refusing to consent to the inspection.” Id. at 540, 87 S. Ct. at 1737. However, unlike its

approach to the first two issues, the Supreme Court offered no analysis to explain its

conclusion that the criminal charge was impermissible. See id. The Supreme Court’s

conclusion regarding the criminal charge appears to be based on the Fourth Amendment.


when an officer has probable cause to believe the person was driving, operating, or in
physical control of a commercial motor vehicle with the presence of any alcohol.”).

                                                6
      Poitra argues that “[t]he result of this case should be the same as Camara, and the

[t]est [r]efusal charge against [him] was rightfully dismissed.” Poitra’s argument fails

because the Supreme Court’s conclusion regarding Camara’s criminal charge was based

on its underlying determination that the attempted search would have violated the Fourth

Amendment.     The same cannot be said of the attempted search under Minnesota’s

implied-consent law in this case.

      This court recently considered whether warrantless chemical testing under

Minnesota’s implied-consent law violates the Fourth Amendment’s reasonableness

standard. Stevens v. Comm’r of Pub. Safety, ___ N.W.2d ___, ___, 2014 WL 3396522, at

*6 (Minn. App. July 14, 2014). We concluded that

             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.
             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 *10. We reasoned, in part, that “Minnesota’s implied-consent statute contains even

more safeguards than the suspicionless-search procedures that were upheld in [Skinner v.

Railway Labor Execs.’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402 (1989)] and, thus, is at least

as reasonable, if not more reasonable, for Fourth Amendment purposes than the

procedures in Skinner.” Id. at *9. Because a search under Minnesota’s implied-consent

law would not violate the Fourth Amendment, Camara is not apposite.

      Moreover, even if the Camara rule were applicable, to the extent that the Supreme

Court concluded that the criminal charge in Camara was impermissible under the Fourth



                                           7
Amendment, we question the continued validity of that approach. In Cnty. of Sacramento

v. Lewis, the United States Supreme Court considered whether a claim under 42 U.S.C.

§ 1983, which stemmed from a death that occurred during a high-speed police chase, was

properly analyzed as a substantive-due-process claim or a Fourth Amendment claim. 523

U.S. 833, 842-44, 118 S. Ct. 1708, 1714-15 (1998); see Graham v. Connor, 490 U.S.

386, 393-94, 109 S. Ct. 1865, 1870 (1989) (explaining that section 1983 “is not itself a

source of substantive rights, but merely provides a method for vindicating federal rights

elsewhere conferred” (quotation omitted)).

       The Supreme Court stated that “where a particular Amendment provides an

explicit textual source of constitutional protection against a particular sort of government

behavior, that Amendment, [and] not the more generalized notion of substantive due

process,” guides the analysis. Lewis, 523 U.S. at 842, 118 S. Ct. at 1714 (emphasis

added) (quotation omitted).     The Supreme Court explained that “[s]ubstantive due

process analysis is . . . inappropriate . . . only if respondent’s claim is ‘covered by’ the

Fourth Amendment.       It is not.   The Fourth Amendment covers only ‘searches and

seizures,’ neither of which took place here.” Id. at 843, 118 S. Ct. at 1715. The Supreme

Court reasoned that “a police pursuit in attempting to seize a person does not amount to a

‘seizure’ within the meaning of the Fourth Amendment.” Id. at 844, 118 S. Ct. at 1715.

The Supreme Court therefore concluded that because there was no seizure, the claim was

properly analyzed as a due-process claim. Id. at 843-44, 118 S. Ct. at 1715.

       Although Lewis involved a claim under 42 U.S.C. § 1983, this court utilized the

Lewis approach when considering a constitutional challenge to the test-refusal statute in


                                             8
State v. Wiseman. 816 N.W.2d 689, 693 (Minn. App. 2012), cert. denied, 133 S. Ct.

1585 (2013), and abrogated on other grounds by Missouri v. McNeely, 133 S. Ct. 1552

(2013).   We cited Lewis stating, “when there exists ‘an explicit textual source of

constitutional protection’ against a particular government action, we must analyze the

challenged action under the specific constitutional provision rather than as a possible

violation of substantive-due-process rights.” Id. (citing Lewis, 523 U.S. at 842, 118 S. Ct.

at 1714). This court concluded that Wiseman’s constitutional challenge did not implicate

a specific constitutional provision, that is, the Fourth or Fifth Amendment, and analyzed

the challenge as a substantive-due-process claim. Id.

       Based on the approaches in Lewis and Wiseman, we hold that Minnesota’s test-

refusal statute is not unconstitutional under the Fourth Amendment for the simple reason

that the statute does not authorize a search.4 Instead, it criminalizes an individual’s

refusal to submit to a search. See Minn. Stat. § 169A.20, subd. 2. (“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 refusal or failure;

revocation of license).”). Thus, the “particular sort of government behavior” at issue here

is the legislature’s criminalization of a refusal to submit to a search. See Lewis, 523 U.S.


4
  Under Minnesota’s implied-consent law, if a person refuses to permit a test, generally,
“a test must not be given.” Minn. Stat. § 169A.52, subd. 1 (2012). But there are two
exceptional circumstances in which the implied-consent statute authorizes a warrantless
search without the driver’s express consent: when there is probable cause to believe that
the person has violated the criminal vehicular homicide and injury laws and when the
person is unconscious or otherwise incapable of consenting to chemical testing or
refusing to consent. Minn. Stat. §§ 169A.52, subd. 1, .51, subd. 6 (2012). Neither
circumstance is present here.

                                             9
at 842, 118 S. Ct. at 1714. It is not the execution of a search; there was no search. See

Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (stating a search occurs within the

meaning of the Fourth Amendment “[w]hen the Government obtains information by

physically intruding on persons, houses, papers, or effects” (quotation omitted)).

       Because there was no search, Poitra’s constitutional challenge to the refusal statute

is not “covered by” the Fourth Amendment. See Lewis, 523 U.S. at 843-44, 118 S. Ct. at

1715. Instead, Poitra’s challenge sounds in substantive due process. See Wiseman, 816

N.W.2d at 693. “[S]ubstantive due process protects individuals from certain arbitrary,

wrongful government actions regardless of the fairness of the procedures used to

implement them.”     In re Linehan, 594 N.W.2d 867, 872 (Minn. 1999) (quotations

omitted). And it limits what the government may do in its legislative capacity. Lewis,

523 U.S. at 845-46, 118 S. Ct. at 1716. The conclusion section of Poitra’s brief hints at

the substantive-due-process framework stating, “[b]ecause [Poitra] has a constitutionally

guaranteed right to be free from unreasonable searches, the [s]tate cannot criminalize

[her] refusal to submit to this warrantless unreasonable search.” Yet, Poitra does not

offer substantive-due-process analysis or argument.

       In sum, Poitra’s reliance on Camara is unavailing and Poitra has not otherwise

met her burden to demonstrate, beyond a reasonable doubt, that the test-refusal statute

violates a constitutional provision. See State v. Merrill, 450 N.W.2d 318, 321 (Minn.

1990) (stating that “the challenger bears the very heavy burden of demonstrating beyond




                                            10
a reasonable doubt that the statute is unconstitutional”).     We therefore reverse the

dismissal of Poitra’s test-refusal charge and remand for further proceedings.

       Reversed and remanded.




                                            11
