This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 Respondent’s driver’s license was revoked.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rescinded the revocation.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