This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-0177
State of Minnesota, Respondent,
vs.
Gatwech Yiek Thach, Appellant.
Filed February 1, 2016 Reversed Johnson, Judge
Stearns County District Court File No. 73-CR-14-6841
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Matthew A. Staehling, St. Cloud City Attorney, Jennifer K. Rose, Assistant City Attorney, St. Cloud, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrea G. M. Barts, Assistant State Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and Harten,
Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. V, § 10. UNPUBLISHED OPINION
JOHNSON, Judge
Gatwech Yiek Thach was convicted of second-degree test refusal because he
refused to submit to a chemical test of his blood or his urine. On appeal, he argues that his
conviction must be reversed on the ground that the test-refusal statute is unconstitutional
given the facts of this case. In light of recent precedential opinions of this court, Thach’s
constitutional argument has merit. Therefore, we reverse his conviction of second-degree
test refusal.
FACTS
Thach’s conviction of second-degree test refusal is based on an incident that
occurred in the city of St. Cloud on August 13, 2014. A woman called 911 to report that
her vehicle was rear-ended by another vehicle, that the driver of the other vehicle drove
away from the scene of the collision, and that she followed the other vehicle until she saw
it stop in the parking lot of an apartment building and saw a man exit the vehicle and enter
the apartment building. After performing an investigation, a St. Cloud police officer
arrested Thach for driving while impaired. The officer transported Thach to a hospital for
a medical examination. At the hospital, the officer read Thach the implied-consent
advisory four times. After the fourth reading of the advisory, the officer asked Thach
whether he would submit to a blood test or a urine test. Thach did not respond. The officer
construed the lack of a response to be a refusal.
The state charged Thach with four offenses: (1) second-degree driving while
impaired, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .25, subd. 1(a) (2014);
2 (2) second-degree refusal to submit to a chemical test, in violation of Minn. Stat.
§§ 169A.20, subd. 2, .25, subd. 1(b) (2014); (3) failure to stop for an accident, in violation
of Minn. Stat. § 169.09, subd. 2 (2014); and (4) driving after revocation, in violation of
Minn. Stat. § 171.24, subd. 2 (2014).
In November 2014, the case was tried to a jury. At the outset of trial, the state
dismissed count 3 because the woman who reported the collision was unavailable to testify.
During trial, the district court allowed the state to introduce the testimony of the
investigating officer concerning the woman’s statements, despite Thach’s objection based
on the Confrontation Clause and the rule against hearsay. The jury found Thach guilty on
counts 1, 2, and 4. The district court sentenced Thach on count 2 by ordering him to serve
time in jail, by placing him on probation, and by imposing a $200 fine. Thach appeals.
DECISION
Thach argues that his test-refusal conviction must be reversed on the ground that the
test-refusal statute is unconstitutional as applied to him in this case because the statute
criminalizes his refusal to submit to an unconstitutional search of his blood or his urine in
violation of his right to substantive due process. In response, the state first argues that
Thach does not have a fundamental right to refuse to submit to a warrantless blood test or
a warrantless urine test. The state argues in the alternative that, even if Thach had such a
fundamental right, the test-refusal statute is not unconstitutional.
We begin our analysis by considering whether Thach has a fundamental right to
refuse to submit to the chemical tests requested by the investigating officer. The answer
to that question depends on whether a warrantless blood test or a warrantless urine test
3 would have been a valid search under the Fourth Amendment to the United States
Constitution. See State v. Thompson, ____ N.W.2d ____, ____, 2015 WL 9437538, at *2
(Minn. App. Dec. 28, 2015), pet. for review filed (Minn. Jan. 21, 2016); State v. Trahan,
870 N.W.2d 396, 400 (Minn. App. 2015), review granted (Minn. Nov. 25, 2015). In
arguing that a warrantless blood test or a warrantless urine test would have been a valid
search under the Fourth Amendment, the state relies heavily, if not solely, on the supreme
court’s opinion in State v. Bernard, 859 N.W.2d 762 (Minn.), cert. granted, 136 S. Ct. 615
(2015). In Bernard, the supreme court held that a warrantless breath test conducted
pursuant to the implied-consent statute would be a valid search incident to arrest for
purposes of the Fourth Amendment, so long as the arrest is valid. Bernard, 859 N.W.2d at
772. As a consequence, the appellant in Bernard did not have a fundamental right to refuse
to submit to the breath test that was requested of him. Id. at 773.
Thach acknowledges the supreme court’s opinion in Bernard but argues that it “does
not extend to the much more invasive search of a person’s blood or urine.” Thach’s
argument finds support in this court’s opinions in Trahan and Thompson, which were
released by this court after counsel filed their respective briefs in this case. In Trahan, this
court held, based on the state’s concession, that Bernard does not apply to a blood test and
that a warrantless blood test cannot be justified by the search-incident-to-arrest doctrine.
870 N.W.2d at 401. Similarly, in Thompson, this court held that Bernard does not apply
to a urine test and that a warrantless urine test cannot be justified by the search-incident-
to-arrest doctrine. 2015 WL 9437538, at *4. Collectively, Trahan and Thompson compel
the conclusion that, in Thach’s case, the administration of a warrantless blood test or a
4 warrantless urine test would not have been a valid search incident to his arrest. Because
the state relies only on the search-incident-to-arrest doctrine, we must conclude that Thach
had a fundamental right to refuse to submit to both chemical tests.
We continue the analysis by considering whether the statute is constitutional in light
of Thach’s fundamental right to refuse to submit to the requested chemical tests. See id. at
*5; Trahan, 870 N.W.2d at 403. If a statute implicates a fundamental right, the statute is
subject to strict scrutiny, which requires that the statute be narrowly tailored to serve a
compelling state interest. Trahan, 870 N.W.2d at 404. This court applied strict scrutiny
to the test-refusal statute in Trahan and Thompson. Thompson, 2015 WL 9437538, at *5;
Trahan, 870 N.W.2d at 404. In each case, this court concluded that the state has a
compelling interest in keeping highways safe from drunken drivers but that the test-refusal
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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 A15-0177
State of Minnesota, Respondent,
vs.
Gatwech Yiek Thach, Appellant.
Filed February 1, 2016 Reversed Johnson, Judge
Stearns County District Court File No. 73-CR-14-6841
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Matthew A. Staehling, St. Cloud City Attorney, Jennifer K. Rose, Assistant City Attorney, St. Cloud, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrea G. M. Barts, Assistant State Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and Harten,
Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. V, § 10. UNPUBLISHED OPINION
JOHNSON, Judge
Gatwech Yiek Thach was convicted of second-degree test refusal because he
refused to submit to a chemical test of his blood or his urine. On appeal, he argues that his
conviction must be reversed on the ground that the test-refusal statute is unconstitutional
given the facts of this case. In light of recent precedential opinions of this court, Thach’s
constitutional argument has merit. Therefore, we reverse his conviction of second-degree
test refusal.
FACTS
Thach’s conviction of second-degree test refusal is based on an incident that
occurred in the city of St. Cloud on August 13, 2014. A woman called 911 to report that
her vehicle was rear-ended by another vehicle, that the driver of the other vehicle drove
away from the scene of the collision, and that she followed the other vehicle until she saw
it stop in the parking lot of an apartment building and saw a man exit the vehicle and enter
the apartment building. After performing an investigation, a St. Cloud police officer
arrested Thach for driving while impaired. The officer transported Thach to a hospital for
a medical examination. At the hospital, the officer read Thach the implied-consent
advisory four times. After the fourth reading of the advisory, the officer asked Thach
whether he would submit to a blood test or a urine test. Thach did not respond. The officer
construed the lack of a response to be a refusal.
The state charged Thach with four offenses: (1) second-degree driving while
impaired, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .25, subd. 1(a) (2014);
2 (2) second-degree refusal to submit to a chemical test, in violation of Minn. Stat.
§§ 169A.20, subd. 2, .25, subd. 1(b) (2014); (3) failure to stop for an accident, in violation
of Minn. Stat. § 169.09, subd. 2 (2014); and (4) driving after revocation, in violation of
Minn. Stat. § 171.24, subd. 2 (2014).
In November 2014, the case was tried to a jury. At the outset of trial, the state
dismissed count 3 because the woman who reported the collision was unavailable to testify.
During trial, the district court allowed the state to introduce the testimony of the
investigating officer concerning the woman’s statements, despite Thach’s objection based
on the Confrontation Clause and the rule against hearsay. The jury found Thach guilty on
counts 1, 2, and 4. The district court sentenced Thach on count 2 by ordering him to serve
time in jail, by placing him on probation, and by imposing a $200 fine. Thach appeals.
DECISION
Thach argues that his test-refusal conviction must be reversed on the ground that the
test-refusal statute is unconstitutional as applied to him in this case because the statute
criminalizes his refusal to submit to an unconstitutional search of his blood or his urine in
violation of his right to substantive due process. In response, the state first argues that
Thach does not have a fundamental right to refuse to submit to a warrantless blood test or
a warrantless urine test. The state argues in the alternative that, even if Thach had such a
fundamental right, the test-refusal statute is not unconstitutional.
We begin our analysis by considering whether Thach has a fundamental right to
refuse to submit to the chemical tests requested by the investigating officer. The answer
to that question depends on whether a warrantless blood test or a warrantless urine test
3 would have been a valid search under the Fourth Amendment to the United States
Constitution. See State v. Thompson, ____ N.W.2d ____, ____, 2015 WL 9437538, at *2
(Minn. App. Dec. 28, 2015), pet. for review filed (Minn. Jan. 21, 2016); State v. Trahan,
870 N.W.2d 396, 400 (Minn. App. 2015), review granted (Minn. Nov. 25, 2015). In
arguing that a warrantless blood test or a warrantless urine test would have been a valid
search under the Fourth Amendment, the state relies heavily, if not solely, on the supreme
court’s opinion in State v. Bernard, 859 N.W.2d 762 (Minn.), cert. granted, 136 S. Ct. 615
(2015). In Bernard, the supreme court held that a warrantless breath test conducted
pursuant to the implied-consent statute would be a valid search incident to arrest for
purposes of the Fourth Amendment, so long as the arrest is valid. Bernard, 859 N.W.2d at
772. As a consequence, the appellant in Bernard did not have a fundamental right to refuse
to submit to the breath test that was requested of him. Id. at 773.
Thach acknowledges the supreme court’s opinion in Bernard but argues that it “does
not extend to the much more invasive search of a person’s blood or urine.” Thach’s
argument finds support in this court’s opinions in Trahan and Thompson, which were
released by this court after counsel filed their respective briefs in this case. In Trahan, this
court held, based on the state’s concession, that Bernard does not apply to a blood test and
that a warrantless blood test cannot be justified by the search-incident-to-arrest doctrine.
870 N.W.2d at 401. Similarly, in Thompson, this court held that Bernard does not apply
to a urine test and that a warrantless urine test cannot be justified by the search-incident-
to-arrest doctrine. 2015 WL 9437538, at *4. Collectively, Trahan and Thompson compel
the conclusion that, in Thach’s case, the administration of a warrantless blood test or a
4 warrantless urine test would not have been a valid search incident to his arrest. Because
the state relies only on the search-incident-to-arrest doctrine, we must conclude that Thach
had a fundamental right to refuse to submit to both chemical tests.
We continue the analysis by considering whether the statute is constitutional in light
of Thach’s fundamental right to refuse to submit to the requested chemical tests. See id. at
*5; Trahan, 870 N.W.2d at 403. If a statute implicates a fundamental right, the statute is
subject to strict scrutiny, which requires that the statute be narrowly tailored to serve a
compelling state interest. Trahan, 870 N.W.2d at 404. This court applied strict scrutiny
to the test-refusal statute in Trahan and Thompson. Thompson, 2015 WL 9437538, at *5;
Trahan, 870 N.W.2d at 404. In each case, this court concluded that the state has a
compelling interest in keeping highways safe from drunken drivers but that the test-refusal
statute was not narrowly tailored to serve that compelling interest. Thompson, 2015 WL
9437538, at *5; Trahan, 870 N.W.2d at 404. Thus, in each case, this court concluded that
the test-refusal statute was unconstitutional as applied. Thompson, 2015 WL 9437538, at
*5; Trahan, 870 N.W.2d at 405. Trahan and Thompson compel the same conclusion in
this case. Accordingly, we conclude that the test-refusal statute is unconstitutional as
applied to Thach in this case. Therefore, Thach’s conviction of second-degree test-refusal
must be reversed.
Thach also argues that the district court erred by admitting the state’s evidence
concerning the complainant’s statements in violation of the Confrontation Clause and the
rule against hearsay. Because we have reversed Thach’s conviction of second-degree test-
refusal, Thach’s argument concerning the admissibility of the state’s evidence could be
5 relevant only to the other two charges that were tried, second-degree driving while
impaired and driving after revocation. But the district court did not adjudicate Thach on
either of those two charges. Without an adjudication, there is no conviction, and without
a conviction, there is no appealable judgment. See State v. Hoelzel, 639 N.W.2d 605, 609
(Minn. 2002) (holding that verdict of guilt, without recorded judgment of conviction, is not
final, appealable judgment); State v. Ashland, 287 N.W.2d 649, 650 (Minn. 1979)
(declining to address sufficiency-of-evidence argument with respect to counts on which
defendant was found guilty but not formally adjudicated or sentenced). Therefore, we do
not consider Thach’s additional argument. If Thach were convicted and sentenced on count
1 or count 4, he would have an opportunity at that time to take a direct appeal from a final,
appealable judgment. See Minn. R. Crim. P. 27.03, subd. 8, 28.02, subd. 2(1); State v.
LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).
Reversed.