                           This opinion will be unpublished and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
                                       A16-0391

                              James Edward Boutto, petitioner,
                                       Appellant,

                                              vs.

                               Commissioner of Public Safety,
                                      Respondent.

                                   Filed August 29, 2016
                                         Affirmed
                                       Reyes, Judge

                               St. Louis County District Court
                                   File No. 69VICV15516

Gordon C. Pineo, Deal & Pineo, P.A., Virginia, Minnesota (for appellant)

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

         Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Jesson,

Judge.

                          UNPUBLISHED OPINION

REYES, Judge

         On appeal from the revocation of his driving privileges, appellant argues that the

implied-consent law violates his rights to equal protection and substantive due process.

We affirm.
                                          FACTS

       On August 1, 2015, appellant James Edward Boutto was arrested for driving while

impaired (DWI). The arresting officer read appellant the implied-consent advisory and

informed appellant of his right to speak to an attorney. Although appellant elected to

speak to an attorney, he was unable to reach one. The officer offered appellant a breath

test, which appellant agreed to take. The test revealed that appellant’s alcohol

concentration was 0.19.

       Appellant’s driving privileges were revoked, and appellant moved to rescind the

revocation, arguing that the implied-consent law violates his constitutional right to equal

protection and that the implied-consent advisory violates his constitutional right to

substantive due process. Following a hearing, the district court issued an order

concluding that appellant’s constitutional rights were not violated and sustaining the

revocation of his driving privileges. This appeal follows.

                                     DECISION

                                             I.

       Appellant first asserts an as-applied equal-protection challenge to the implied-

consent law, contending that similarly situated people are treated differently for no

rational reason.1 Appellant argues that the implied-consent law deprives him of equal

protection because the officer’s choice of chemical test has different Fourth Amendment


1
 To the extent that appellant’s argument could be interpreted as a facial challenge to the
implied-consent law, appellant concedes that it is facially neutral. Therefore, appellant
has waived any such argument. See State v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn.
2015).

                                             2
implications. Appellant therefore alleges that the implied-consent law allowed the officer

to choose whether to “circumvent” or “forgo” appellant’s Fourth Amendment rights. We

are not persuaded.

       The Fourteenth Amendment to the United States Constitution guarantees that no

state shall “deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1. The Minnesota Constitution also guarantees that “[n]o

member of this state shall be disenfranchised or deprived of any of the rights or privileges

secured to any citizen thereof, unless by the law of the land or the judgment of his peers.”

Minn. Const. art. 1, § 2. “Both clauses have been analyzed under the same principles and

begin with the mandate that all similarly situated individuals shall be treated alike, but

only invidious discrimination is deemed constitutionally offensive.” Kolton v. County of

Anoka, 645 N.W.2d 403, 411 (Minn. 2002) (quotation omitted). “The constitutionality of

a statute is a legal question, which we review de novo.” State v. Brown, 689 N.W.2d 796,

799 (Minn. App. 2004), review denied (Minn. Dec. 13, 2005). “Unless a fundamental

right or suspect class is involved, statutes are presumed to be constitutional.” State v.

Benniefield, 678 N.W.2d 42, 45 (Minn. 2004).

       Appellant’s argument is premised on a mischaracterization of the implications of

the officer’s choice of chemical test. An officer’s administration of a warrantless breath

test does not run afoul of the Fourth Amendment. Birchfield v. North Dakota, 136 S. Ct.

2160, 2184 (2016) (“[T]he Fourth Amendment permits warrantless breath tests incident to

arrests for drunk driving.”), aff’g State v. Bernard, 859 N.W.2d 762 (Minn. 2015). By

offering appellant a breath test, the officer did not deprive appellant of his Fourth


                                              3
Amendment rights. Id. The officer administered the test consistent with the Fourth

Amendment. Id. And appellant alleges no other invidious discrimination or bad faith by

the state. Moreover, appellant has provided no evidence of intentional or purposeful

discrimination. He has made only the bald assertion that his right to equal protection was

violated. See Hayes v. Comm’r of Public Safety, 773 N.W.2d 134, 140 (Minn. App.

2009) (rejecting Hayes’s equal-protection challenge to the implied-consent law based, in

part, on Hayes’s failure to offer evidence of discrimination); State v. Hyland, 431 N.W.2d

868, 873 (Minn. App. 1988) (concluding that Hyland’s “general, conclusory allegation

that discriminatory enforcement occurred” was “frivolous”). Therefore, we agree with

the district court that appellant failed to establish a violation of his right to equal

protection.

                                               II.

       Appellant next contends that the implied-consent advisory was misleading, and

therefore, his substantive due-process rights were violated. We disagree.

       The Due Process Clauses of the United States and Minnesota Constitutions

prohibit the state from “depriv[ing] any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, § 1; see also Minn. Const. art. I, § 7. The

constitutionality of a statute is a question that we review de novo. State v. Melde, 725

N.W.2d 99, 102 (Minn. 2006). “Minnesota statutes are presumed constitutional” and will

be declared “unconstitutional only when absolutely necessary.” Id. (quotation omitted).

       Minnesota’s implied-consent law provides that “[a]ny person who drives,

operates, or is in physical control of a motor vehicle within this state or on any boundary


                                                4
water of this state consents . . . to a chemical test of that person’s . . . breath . . . for the

purpose of determining the presence of alcohol.” Minn. Stat. § 169A.51, subd. 1(a)

(2014). “The test may be required of a person when an officer has probable cause to

believe the person” has committed a DWI offense and “the person has been lawfully

placed under arrest” for DWI. Id., subd. 1(b) (2014). “[A]t the time a test is requested,

the person must be informed: (1) that Minnesota law requires the person to take a test to

determine if the person is under the influence of alcohol . . . ; [and] (2) that refusal to take

a test is a crime.” Id., subd. 2(a) (2014).

       Appellant first argues that, in light of State v. Trahan, 870 N.W.2d 396 (Minn.

App. 2015), review granted (Minn. Nov. 25, 2015), and State v. Thompson, 873 N.W.2d

874 (Minn. App. 2015), review granted (Minn. Feb. 24, 2016), the implied-consent

advisory is misleading because it does not inform a person of his right to refuse a

warrantless blood or urine test. But Trahan and Thompson do not affect appellant’s case.

Appellant was offered a breath test, and a warrantless breath test is constitutionally

permissible under the search-incident-to-arrest exception to the warrant requirement. See

Birchfield, 136 S. Ct. at 2184.

       Appellant next argues that his substantive due-process rights were violated

because he was threatened with a crime that “does not exist.” Appellant’s substantive

due-process argument is premised on his contention that his Fourth Amendment rights

were violated. In support of this argument, appellant cites to Kansas authority and urges

this court not to follow the Minnesota Supreme Court’s decision in Bernard, 859 N.W.2d

762. But Bernard has been affirmed by the United States Supreme Court. See Birchfield,


                                                 5
136 S. Ct. at 2184. And as previously noted, appellant’s Fourth Amendment rights were

not violated. Therefore, we need not further address appellant’s substantive due-process

argument. See Trahan, 870 N.W.2d at 403 (analyzing Trahan’s substantive due-process

challenge to the test-refusal statute only after concluding that a warrantless search of

Trahan’s blood would not have been constitutional under any exceptions to the Fourth

Amendment’s warrant requirement).

       Appellant also cites McDonnell v. Comm’r of Public Safety, 473 N.W.2d 848

(Minn. 1991), to support his position that the misleading nature of the implied-consent

advisory violated his substantive due-process rights. But as mentioned above, appellant’s

Fourth Amendment rights were not violated, thus ending our substantive due-process

analysis. Trahan, 870 N.W.2d at 403. Moreover, McDonnell is distinguishable because

appellant, unlike McDonnell, was threatened with a criminal penalty that could have been

legally imposed on him. 473 N.W.2d at 855; see also Birchfield, 136 S. Ct. at 2184.

Therefore, we conclude that, under the circumstances, the implied-consent advisory was

not misleading and appellant’s substantive due-process rights were not violated.

       Affirmed.




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