                           This opinion will be unpublished and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
                                      A16-0569

                                Jesse John Susa, petitioner,
                                        Respondent,

                                             vs.

                              Commissioner of Public Safety,
                                      Appellant.

                               Filed December 12, 2016
                                       Affirmed
                                 Cleary, Chief Judge
                            Concurring specially, Ross, Judge

                                 Pine County District Court
                                  File No. 58-CV-15-498

Daniel J. Koewler, Charles A. Ramsay, Jay S. Adkins, Ramsay Law Firm, P.L.L.C.,
Roseville, Minnesota (for respondent)

Lori Swanson, Attorney General, Dominic J. Haik, Assistant Attorney General, St. Paul,
Minnesota (for appellant)

         Considered and decided by Ross, Presiding Judge; Cleary, Chief Judge; and Jesson,

Judge.

                          UNPUBLISHED OPINION

CLEARY, Chief Judge

         On appeal from the rescission of the revocation of respondent Jesse John Susa’s

driving privileges, the commissioner of public safety asserts that the district court erred by

concluding that the warrantless collection of respondent’s urine was unconstitutional.
Because we conclude that respondent’s right to due process was violated, we affirm the

district court’s rescission.

                                          FACTS

       In July 2015, respondent was arrested and transported to the Pine County Jail after

a deputy initiated a traffic stop and determined there was probable cause to believe

respondent was driving under the influence. The deputy read the implied-consent advisory

to respondent, provided respondent an opportunity to contact an attorney, and asked

respondent to provide either a blood or urine sample for laboratory analysis. The deputy

made no effort to obtain a search warrant before seeking a blood or urine sample.

Respondent provided a urine sample.         Analysis of the sample indicated an alcohol

concentration of 0.14. Respondent’s driver’s license was revoked. Respondent sought

judicial review of the revocation of his driving privileges, arguing before the district court

that his Fourth Amendment and due-process rights had been violated. The district court

rescinded the revocation.

                                      DECISION

       Appellant argues that the district court erred by concluding that the warrantless

collection of respondent’s urine was unconstitutional and asserts that the collection,

performed pursuant to Minnesota’s Implied Consent Law, was permissible under the

Fourth Amendment. Respondent argues that the district court’s order rescinding the




                                              2
revocation should be affirmed, because respondent was fundamentally misled by law

enforcement in violation of his right to due process.1

       Under Minnesota’s Implied Consent Law, any person who drives a motor vehicle

within the state consents to a chemical test of his blood, breath, or urine for the purpose of

determining the presence of alcohol, a controlled substance or its metabolite, or a hazardous

substance. Minn. Stat. § 169A.51, subd. 1 (2014). An officer who requires a test may

direct whether the test is blood, breath, or urine. Minn. Stat. § 169A.51, subd. 3 (2014).

Minnesota’s test-refusal statute makes it a crime to refuse to submit to a chemical test when

an officer has probable cause to believe that a person was driving, operating, or physically

controlling a motor vehicle while impaired and has read the person the implied-consent

advisory. Minn. Stat. §§ 169A.20, subd. 2, .51, subds. 1-2 (2014); State v. Thompson, 873

N.W.2d 873, 876 (Minn. App. 2015) (Thompson I), aff’d, 886 N.W.2d 224 (Minn. 2016).

However, no action may be taken against a person who refuses either a blood or urine test

unless an alternative test was offered. Minn. Stat. § 169A.51, subd. 3. If a person submits

to a test and the results indicate an alcohol concentration of 0.08 or more, those results


1
  Appellant urges us not to consider respondent’s due-process challenge, arguing that the
district court did not address it and that respondent waived the issue by failing to seek
review pursuant to Minnesota Rule of Civil Appellate Procedure 106. This rule provides,
“[a]fter an appeal has been filed, respondent may obtain review of a judgment or order
entered in the same underlying action that may adversely affect respondent by filing a
notice of related appeal.” Minn. R. Civ. App. P. 106. However, appellant’s argument is
without merit. “[W]here a party litigated two separate grounds for recovery and the district
court made its decision based on one and not the other, that party can stress any sound
reason for affirmance even if it is not the one assigned by the trial judge, in support of that
decision.” Day Masonry v. Indep. Sch. Dist. 347, 781 N.W.2d 321, 331 (Minn. 2010)
(quotations omitted). Because respondent raised both Fourth Amendment and due-process
challenges before the district court, he may stress either ground for affirmance.
                                              3
must be reported to the commissioner, and the commissioner shall revoke the person’s

license upon certification by the officer that there was probable cause to believe the person

was driving while impaired. Minn. Stat. § 169A.52, subds. 2, 4 (2014).

       Respondent asserts that his due-process rights were violated because the implied-

consent advisory contained a misleading statement. The United States and Minnesota

Constitutions provide that an individual may not be deprived of life, liberty, or property

without due process of law. U.S. Const. amend. XIV; Minn. Const. art 1 § 7. Whether a

due-process violation has occurred presents a question of constitutional law, which we

review de novo. State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012).

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

respondent specifically argues that his due-process rights were violated because the

implied-consent advisory included the misleading statement, “[r]efusal to take a test is a

crime.” Appellant does not directly respond to this assertion, but continues to argue that

the urine test was permissible under the Fourth Amendment or, alternatively, was within

the good-faith exception.

       Where a person bases a due-process claim solely on an alleged Fourth Amendment

violation, a court must review the claim under the Fourth Amendment rather than under

the more generalized notion of substantive due process. See State v. Thompson, 886

N.W.2d 224, 230 n.4 (Thompson II) (noting that the Court, in Birchfield v. North Dakota,

136 S. Ct. 2160 (2016), concluded that the warrantless blood test violated the Fourth

Amendment and did not engage in a due-process analysis); see also Albright v. Oliver, 510

U.S. 266, 273, 114 S. Ct. 807, 813 (1994) (explaining that where a particular amendment

                                             4
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). Here, however, respondent’s due-

process claim is not based on the Fourth Amendment. Rather, it is based on the theory that

the implied-consent advisory misled respondent regarding his legal obligation to submit to

a blood or urine test. Furthermore, respondent’s claim does not attempt to expand

substantive-due-process relief, as the Minnesota Supreme Court has granted the relief

respondent requests where a similar claim was asserted.2 See McDonnell, 473 N.W.2d at

853-55 (rescinding a license revocation where police threatened criminal charges that the

state was not authorized to impose). Because respondent’s challenge is based upon the

officer’s misleading advisory rather than on an alleged Fourth Amendment violation and

because it does not attempt to expand substantive due process, due-process analysis is

appropriate.3 See Johnson v. Comm’r of Pub. Safety, ___ N.W.2d ___, ___, 2016 WL


2
  “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.” Johnson
v. Comm’r of Pub. Safety, ___ N.W.2d ___, ___, 2016 WL 6570284, at *4 (Minn. App.
Nov. 7, 2016) (citing McDonnell, 473 N.W.2d at 855). A challenge seeking relief under
McDonnell is not an attempt to expand substantive due process. Id.
3
  In Thompson II, the Minnesota Supreme Court relied on the Fourth Amendment to hold
that the test-refusal statute was unconstitutional. Thompson II, 886 N.W.2d at 228-30, 230
n.4. The court used the framework set forth in Birchfield, in which the United States
Supreme Court was asked to determine whether laws criminalizing a motorist’s refusal to
be tested after being lawfully arrested for driving while impaired violate the Fourth
Amendment. Id. at 230-34. Birchfield, 136 S. Ct. at 2166-67. To answer this question,
the Supreme Court explained that a state may criminalize the refusal to submit to the
required testing if the warrantless searches comport with the Fourth Amendment.
                                             5
6570284, at *4-6 (Minn. App. Nov. 7, 2016) (holding a due-process challenge to an

inaccurate implied-consent advisory should be analyzed as a due-process claim).

       The Minnesota Supreme Court has recognized due-process claims similar to the one

that respondent asserts here. In McDonnell, the Minnesota Supreme Court was asked to

determine whether a driver’s due-process rights were violated where the implied-consent

advisory misinformed her that she might be prosecuted for test refusal. McDonnell, 473

N.W.2d at 853. In the portion of McDonnell addressing appellant-driver Moser, the court

explained that Moser was arrested on suspicion of driving while intoxicated. Id. at 851.

She was transported to the police headquarters and read the implied-consent advisory,

including a warning that refusal to submit to testing might expose her to criminal penalties.

Id. Moser concluded that she would be subject to criminal penalties for test refusal and

submitted to a breath test. Id. Based on the results of the test, Moser’s license was revoked.

Id. Moser appealed and asserted that her due-process rights had been violated because, as

a person without any previous license revocations, she could not be punished under the

criminal test-refusal statute then in effect. Id. at 851, 853. The court reasoned that “due

process does not permit those who are perceived to speak for the state to mislead



Birchfield, 136 S. Ct. at 2172. The use of the Fourth Amendment analysis in Birchfield
and the Minnesota Supreme Court’s Thompson II opinion does not change our conclusion
that due-process analysis is appropriate in this case. The constitutional protection at issue
in both Birchfield and Thompson II was the Fourth Amendment right to be free from
unreasonable searches and seizures. Here, the constitutional protection at issue is the right
to due process during an implied-consent procedure. Furthermore, this court has
previously determined that due-process analysis is appropriate under these circumstances.
Johnson, 2016 WL 6570284, at *3-6 (concluding that due-process analysis was appropriate
where a respondent asserted a similar claim).
                                              6
individuals as to either their legal obligations or the penalties they might face should they

fail to satisfy those obligations.” Id. at 854. The court concluded that the advisory was

unconstitutional as applied to Moser, because it “permitted police to threaten criminal

charges the state was not authorized to impose.” Id. at 855.

       Relying on McDonnell, we concluded that drivers who were misinformed by police

as to the potential consequences of their testing decisions were entitled to rescission of their

license revocations. See, e.g., Olinger v. Comm’r of Pub. Safety, 478 N.W.2d 806, 807-08

(Minn. App. 1991); Steinolfson v. Comm’r of Pub. Safety, 478 N.W.2d 808, 808-09 (Minn.

App. 1991). Furthermore, we determined that such drivers were entitled to relief regardless

of whether they submitted to or refused testing. Steinolfson, 478 N.W.2d at 809 (“The

advisory gives misleading and inaccurate information to every first-time offender, and the

driver’s subsequent decision regarding testing does not diminish the violation.”). Because

the improper threat of criminal charges itself constitutes the violation, no showing of actual

prejudice is required. Olinger, 478 N.W.2d at 808.

       Respondent asserts that recent holdings of this court and the United States Supreme

Court make clear that he could not have been criminally punished for test refusal and that

the deputy’s statement that test refusal was a crime was misleading. In State v. Trahan and

State v. Thompson, this court made clear that a driver cannot be criminally punished for his

refusal to submit to either a warrantless blood test or a warrantless urine test where no

exception to the warrant requirement applies. Thompson I, 873 N.W.2d at 878-80, aff’d,

886 N.W.2d 224 (Minn. 2016); State v. Trahan, 870 N.W.2d 396, 403-05 (Minn. App.

2015) (Trahan I), aff’d, 886 N.W.2d 216 (Minn. 2016). Our holdings in Thompson I and

                                               7
Trahan I have now been affirmed by the Minnesota Supreme Court and supported by the

United States Supreme Court’s decision in Birchfield. Birchfield, 136 S. Ct. at 2184-87;

Thompson II, 886 N.W.2d at 234; State v. Trahan, 886 N.W.2d 216, 224 (Minn. 2016)

(Trahan II). In Birchfield, the Court held that a warrantless blood test cannot be justified

under either the search-incident-to-arrest exception or on the basis of implied consent.

Birchfield, 136 S. Ct. at 2184-86. Concluding that a state cannot compel both blood and

breath tests, the Court determined that an officer’s advisory was partially inaccurate where

it stated that test refusal is a crime. Id. at 1272, 1286.

       Respondent explains that the deputy’s statement to him that “[r]efusal to take a test

is a crime” was similarly misleading, because he could not have been criminally punished

for exercising his right to refuse testing. Appellant asserts that all facets of the implied-

consent statute had been held to be constitutional with respect to urine testing when the

deputy read the implied-consent advisory. Appellant argues that we should reverse the

district court’s order rescinding respondent’s driving privileges, because the advisory was

accurate when read. Although the events at issue occurred before the Trahan, Thompson,

and Birchfield decisions were issued, we are not persuaded by appellant’s argument.

       This court has previously applied the holding of Thompson II to a case in which the

events at issue occurred prior to the issuance of the Thompson II decision. See Johnson,

2016 WL 6570284, at *12-13 (applying Thompson II and concluding that Johnson’s right

to due process was violated). In Johnson, an officer arrested Johnson for driving while

impaired (DWI) and transported him to a local emergency room. Id. at *1. At the hospital,

the officer read Johnson the implied-consent advisory and informed Johnson that refusal

                                                8
to take a urine test was a crime. Id. Johnson did not submit to either the urine test or blood

test offered by the officer, and his license was revoked on the basis of his test refusal. Id.

at *1-2. We determined that the advisory was inaccurate, because Johnson could not be

criminally prosecuted for refusing to consent to the unconstitutional urine test under

Thompson II. Id. at *13. As a result, we held that Johnson’s right to due process was

violated and affirmed the district court’s order rescinding the revocation of Johnson’s

license. Id.

       That respondent submitted to the urine test does not compel us to depart from our

reasoning in Johnson. As we have previously recognized, it is the improper threat that

constitutes the violation. Olinger, 478 N.W.2d at 808. An advisory that gives misleading

information violates a driver’s right to due process, and the violation is not diminished by

the driver’s subsequent decision regarding testing. Steinolfson, 478 N.W.2d at 809. For

these reasons, we conclude that respondent is entitled to claim the benefit of the holding

announced in Thompson II.4


4
  At oral argument, respondent asserted that new substantive rules of federal constitutional
law were announced in the Trahan, Thompson, and Birchfield decisions and must be given
retroactive effect under Montgomery v. Louisiana, 136 S. Ct. 718 (2016). In Montgomery,
the Court explained that Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989), recognized
that new substantive rules of federal constitutional law are not subject to the general
retroactivity bar, which bars courts from applying new constitutional rules of criminal
procedure to convictions that were final when the new rule was announced. Montgomery,
136 S. Ct. at 728; see also Danforth v. State, 761 N.W.2d 493, 498-99 (Minn. 2009)
(adopting the federal Teague test to determine retroactivity). However, respondent’s brief
included neither this argument nor any citation to Montgomery. Issues not briefed on
appeal are not properly before the appellate court. Melina v. Chaplin, 327 N.W.2d 19, 20
(Minn. 1982). Because respondent failed to properly brief the issue and because no final
conviction is at issue here, we decline to address whether new substantive rules of federal
constitutional law were announced.
                                              9
       In this case, the deputy informed respondent that “[r]efusal to take a test is a crime.”

At the implied-consent hearing, the deputy testified that there was no emergency or need

to perform an exigent search. Recent holdings of the Minnesota Supreme Court and the

United States Supreme Court make clear that the state cannot criminally punish respondent

for his refusal to submit to either the blood or urine tests offered by the deputy. See

Birchfield, 136 S. Ct. at 2186 (concluding that North Dakota could not prosecute a driver

for refusing to submit to an unconstitutional blood test); Thompson II, 886 N.W.2d at 234

(holding that a driver cannot be prosecuted for refusing to submit to an unconstitutional

warrantless blood or urine test); Trahan II, 886 N.W.2d at 224 (holding that a driver cannot

be prosecuted for refusing to submit to an unconstitutional warrantless blood test). Because

the deputy threatened respondent with criminal penalties that the state was not authorized

to impose, respondent’s due-process rights were violated. The district court did not err by

rescinding the revocation of respondent’s license, because respondent was entitled to such

relief under McDonnell.

       Appellant makes no argument regarding what relief is appropriate in due-process

challenges. Rather, appellant continues to argue that the urine test is admissible under the

Fourth Amendment.         First, appellant argues that the good-faith exception to the

exclusionary rule applies, because the deputy reasonably relied on binding precedent. The

exclusionary rule and good-faith exception are Fourth Amendment doctrines.                The

Minnesota Supreme Court explained in State v. Lindquist, 869 N.W.2d 863, 868-70 (Minn.




                                             10
2015), that the exclusionary rule to the Fourth Amendment is a prudential doctrine and that

the good-faith exception permits the admission of certain evidence obtained in violation of

a defendant’s Fourth Amendment rights against unreasonable searches and seizures.

Appellant fails to provide any legal authority to support the application of the good-faith

exception to due-process violations. Absent such authority, we decline to extend the good-

faith exception.

       Next, appellant argues that the exclusionary rule should not be applied, because the

revocation of respondent’s driver’s license occurred by administrative rather than criminal

processes. Again, appellant continues to focus on Fourth Amendment doctrine and does

not address respondent’s due-process arguments. Appellant fails to cite to any binding,

legal authority to support the assertion that we must distinguish between criminal and civil

proceedings when considering a due-process challenge.5 In Birchfield, the United States

Supreme Court addressed only whether the Fourth Amendment permits warrantless

chemical testing and did not consider a due-process challenge. 136 S. Ct. at 2160-87.

Similarly, the Court’s analysis in Pennsylvania Bd. of Prob. & Parole v. Scott focused on

the Fourth Amendment. 524 U.S. 357, 364, 118 S. Ct. 2014, 2020 (1998). In Scott, the

Court considered whether the exclusionary rule barred the introduction of evidence seized

in violation of a parolee’s Fourth Amendment rights and mentioned due process only in a


5
  Although appellant cites several unpublished cases from this court, we are not bound to
follow them. Minn. Stat. § 480A.08, subd. 3 (2014); Freeman v. State, 804 N.W.2d 144,
147 (Minn. App. 2011), review denied (Minn. Dec. 13, 2011). Furthermore, the cited cases
do not support the admission of a chemical test in a civil proceeding where the person who
submitted to the test asserts a due-process challenge based on the theory that he was misled
as to the consequences of test refusal.
                                            11
footnote to explain that parolees are not entitled to the full panoply of due-process rights

to which criminal defendants are entitled. Id. at 364, 365 n.5, 118 S. Ct. at 2020, 2021 n.5.

Because appellant fails to cite to any binding authority that would require us to differentiate

between criminal and administrative proceedings when considering a due-process

challenge, we decline to do so in this case.

       Because we hold that respondent’s due-process rights were violated, we need not

determine whether the warrantless collection of respondent’s urine was permissible under

the Fourth Amendment. The district court did not err by rescinding the revocation of

respondent’s driving privileges.

       Affirmed.




                                               12
ROSS, Judge (concurring specially)

       The majority treats the issue raised in this case as one of due process. The highest

state and federal courts teach that, instead, the issue should be addressed under the more

specific search jurisprudence of the Fourth Amendment. I write separately to say that we

should be applying the principles of the Fourth Amendment, not those of due process, to

the state’s appeal.

       For reasons I need not develop here, I believe that if we were to apply the Fourth

Amendment, either we would refuse to suppress the evidence of Jesse Susa’s positive urine

test because the exclusionary rule does not restrict evidence obtained as the result of an

officer’s good-faith but mistaken understanding of the law at the time (see State v.

Lindquist, 869 N.W.2d 863, 876–77 (Minn. 2015) (holding blood-test evidence admissible

because a reasonable officer would have read the extant caselaw as allowing a warrantless

blood draw under the circumstances)), or we would remand the case to the district court to

consider whether Susa’s consent was voluntary and valid notwithstanding the

constitutionally infirm advisory (see Beylund v. North Dakota, 136 S. Ct. 2537 (2016)

(mem.) (reversing and remanding to determine voluntariness of the driver’s consent in light

of Birchfield v. North Dakota, 136 S. Ct. 2160, 2186–87 (2016))). Rather than discuss in

detail the outcome that I believe the Fourth Amendment would demand, I merely

emphasize why we should apply the Fourth Amendment rather than the Due Process

Clause.

       We should apply the Fourth Amendment and not general principles of due process

because we have been advised to do so by both courts that frame our analyses in these


                                          CS-1
cases: the United States Supreme Court and the Minnesota Supreme Court. The United

States Supreme Court specifically directed courts to choose only the specifically applicable

constitutional rule. That Court in County of Sacramento v. Lewis emphasized this duty

when it repeated that, “‘where 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. 833, 842, 118 S. Ct. 1708, 1714 (1998) (quoting

Albright v. Oliver, 510 U.S. 266, 273, 114 S. Ct. 807, 813 (1994)). Our state supreme court

recently quoted this language from Lewis when it intimated that this court should have

relied on the Fourth Amendment instead of the Due Process Clause when we decided in

State v. Thompson, 873 N.W.2d 873, 880 (Minn. App. 2015), that the state may not

constitutionally punish a suspected drunk driver for refusing to submit to a urine test. State

v. Thompson, 886 N.W.2d 224, 228 n.2 (Minn. 2016). The state supreme court observed

that the United States Supreme Court in Birchfield “did not examine whether criminalizing

the refusal to submit to an unconstitutional search violated the Due Process Clause” but

rather decided the case based on whether “the warrantless blood test violated the Fourth

Amendment.” Id. at 230 n.4; see also State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013)

(analyzing validity of a suspected drunk driver’s consent to chemical testing under the

Fourth Amendment). Simply put, the two courts that direct how we must approach implied-

consent questions like the one we face today have applied only the Fourth Amendment, not

the Due Process Clause, and so should we.




                                            CS-2
      I recognize that the legality of the chemical-test advisory and the legality of

criminalizing a chemical-test refusal are somewhat different things. But they are

inextricably and identically intertwined in the Fourth Amendment. The very reason the

legality of the chemical-test advisory is suspect as applied to urine tests is specifically

because of the recent and specific holding that the Fourth Amendment prohibits the state

from criminalizing urine-test refusals. I think it is unnecessarily complicating to address

the issue under the general notion of due process, in addition to being an approach

deliberately eschewed by the Birchfield Court and Thompson court.

      I also recognize that we recently published an opinion considering but rejecting the

commissioner’s argument that the Fourth Amendment rather than the Due Process Clause

provides the proper framework for a challenge like Susa’s. Johnson v. Comm’r of Pub.

Safety, ___ N.W.2d ____, ____, 2016 WL 6570284, at *3 (Minn. App. Nov. 7, 2016).

Although Johnson is exceptionally reasoned, I am not persuaded by it that the supreme

court will or should abandon its recently stated commitment to apply only the Fourth

Amendment in this context. We are, however, bound by precedent, and so in light of

Johnson, I concur in (rather than dissent from) the majority’s approach and decision today.




                                          CS-3
