                        This opinion will be unpublished and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
                                   A13-1725

                           Melysa Kailyn Lau, petitioner,
                                   Respondent,

                                         vs.

                           Commissioner of Public Safety,
                                   Appellant.

                                Filed August 4, 2014
                                      Reversed
                                   Johnson, Judge

                            Dakota County District Court
                            File No. 19AV-CV-13-1431


Wayne A. Jagow, Jagow, Meinerts, Grove & Valentine, Burnsville, Minnesota (for
respondent)

Lori Swanson, Attorney General, Kristi Nielsen, Assistant Attorney General, St. Paul,
Minnesota (for appellant)


      Considered and decided by Chutich, Presiding Judge; Johnson, Judge; and

Rodenberg, Judge.

                       UNPUBLISHED OPINION

JOHNSON, Judge

      The commissioner of public safety revoked Melysa Kailyn Lau’s driver’s license

after she was arrested for driving while impaired and refused to consent to chemical
testing. The district court rescinded the commissioner’s revocation on the ground that the

revocation violated the Fourth Amendment. We conclude that the district court erred in

its legal analysis and, therefore, reverse.

                                              FACTS

       In the early-morning hours of April 17, 2013, Officer Justin Drogseth of the Apple

Valley Police Department was dispatched to a fast-food restaurant in the city of Apple

Valley, where a caller had reported that a vehicle swerved and nearly struck other

vehicles. Officer Drogseth investigated and eventually arrested Lau for driving while

impaired (DWI). At the police station, Officer Drogseth followed the procedures of the

implied-consent statute. See Minn. Stat. § 169A.51 (2012). When asked to submit to

chemical testing, Lau refused.

       The commissioner of public safety revoked Lau’s driver’s license. In May 2013,

Lau petitioned the district court for judicial review of the revocation. See Minn. Stat.

§ 169A.53, subd. 2 (2012). In July 2013, the district court conducted an implied-consent

hearing.   Lau was represented by counsel but was not personally present.          At the

beginning of the hearing, Lau’s attorney referred to the United States Supreme Court’s

recent opinion in Missouri v. McNeely, 133 S. Ct. 1552 (2013), and indicated that Lau

was challenging the revocation on the basis of that opinion. The parties stipulated to an

exhibit consisting of the implied-consent peace-officer’s certificate, the implied-consent

advisory, and Officer Drogseth’s police reports. Neither party called any witnesses. The

district court promptly issued an order rescinding the commissioner’s order of revocation

on the ground that, in light of McNeely, the revocation of Lau’s driver’s license pursuant


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to the implied-consent statute is a violation of her Fourth Amendment right to not be

subjected to an unreasonable search. The commissioner appeals.

                                      DECISION

       The commissioner argues that the district court erred by rescinding the revocation

of Lau’s driver’s license. The commissioner contends that the district court erred by

concluding that McNeely precludes the revocation of Lau’s driver’s license as a matter of

law. Lau has not filed a responsive brief to address the commissioner’s argument or the

district court’s decision. The case will be determined on the merits in the absence of a

responsive brief. See Minn. R. Civ. App. P. 142.03.

       The district court’s decision implicates the constitutionality of a statute, which is a

question of law that is subject to a de novo standard of review. State v. Ness, 834 N.W.2d

177, 181 (Minn. 2013). We presume that Minnesota statutes are constitutional and will

declare a statute unconstitutional “with extreme caution and only when absolutely

necessary.”   Id. at 182 (quotation omitted).        The party challenging a statute on

constitutional grounds must meet “the very heavy burden of demonstrating beyond a

reasonable doubt that the statute is unconstitutional.” State v. Johnson, 813 N.W.2d 1, 11

(Minn. 2012) (quotation omitted).

       We begin by noting that the holding in McNeely is relatively narrow.              The

Supreme Court held that “the natural dissipation of alcohol in the bloodstream does not

constitute an exigency in every case sufficient to justify conducting a blood test without a

warrant.” McNeely, 133 S. Ct. at 1568. Accordingly, the Court concluded that the

evidence in that case arising from a forcible, warrantless blood test (which was not


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performed pursuant to Missouri’s implied-consent statute) was properly suppressed by

the Missouri trial court. Id. at 1557, 1568. The Court did not hold or suggest that the

Missouri implied-consent statute was constitutionally infirm. See id. at 1568. In fact, the

Court spoke approvingly of implied-consent statutes by noting that its opinion does not

“undermine the governmental interest in preventing and prosecuting drunk-driving

offenses” through the use of “legal tools” such as “implied consent laws that require

motorists, as a condition of operating a motor vehicle within the State, to consent to BAC

testing.” Id. at 1566 (plurality opinion).

       The Minnesota Supreme Court emphasized this portion of McNeely in State v.

Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014), a criminal

case concerning the validity of a person’s consent to chemical testing pursuant to the

implied-consent statute:

              Brooks’s argument is inconsistent with the Supreme Court’s
              discussion of implied consent laws in McNeely. As the
              Supreme Court recognized in McNeely, implied consent laws,
              which “require motorists, as a condition of operating a motor
              vehicle within the State, to consent to [blood alcohol
              concentration] testing if they are arrested or otherwise
              detained on suspicion of a drunk-driving offense,” are “ legal
              tools” states continue to have to enforce their drunk driving
              laws. The Court noted that these laws typically require
              suspected drunk drivers to take a test for the presence of
              alcohol and mandate that a driver’s license will be revoked if
              they refuse a test. By using this “legal tool” and revoking a
              driver’s license for refusing a test, a state is doing the exact
              thing Brooks claims it cannot do -- conditioning the privilege
              of driving on agreeing to a warrantless search.

Id. at 572 (alteration in original) (citations omitted) (quoting McNeely, 133 S. Ct. at

1566). Although the statements about implied-consent statutes in McNeely and Brooks


                                             4
were not essential to the decision in either case, the statements tend to show that the

revocation of a person’s driver’s license pursuant to Minnesota’s implied-consent law

does not violate the person’s Fourth Amendment rights.

      Furthermore, the district court’s decision is inconsistent with a recent opinion of

this court. In Stevens v. Commissioner of Pub. Safety, ___ N.W.2d ___, 2014 WL

3396522 (Minn. App. July 14, 2014), we concluded that the implied-consent statue “does

not violate the unconstitutional-conditions doctrine by authorizing the commissioner of

public safety to revoke the driver’s license of a person who has been arrested for DWI

and has refused to submit to chemical testing.” Id. at *12. Neither Lau nor the district

court expressly invoked the unconstitutional-conditions doctrine. Nonetheless, Stevens is

relevant because we reasoned, in part, that if the implied-consent statute authorizes a

search of a person’s blood, breath, or urine, such a search would satisfy the

reasonableness requirement of the Fourth Amendment. Id. at *6-10.

      In sum, the district court erred by rescinding the revocation of Lau’s driver’s

license on the ground that, under McNeely, the revocation violated Lau’s Fourth

Amendment right to be free from an unreasonable search. In light of that conclusion, we

need not consider the commissioner’s other arguments for reversal.

      Reversed.




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