This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-0136
State of Minnesota, Respondent,
vs.
Leslie Jay Boyd, Jr., Appellant.
Filed December 8, 2014 Affirmed Reyes, Judge
Hennepin County District Court File No. 27CR1327062
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Kirk M. Anderson, Anderson Law Firm, P.L.L.C., Minneapolis, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Chutich, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
REYES, Judge
Appellant Leslie Jay Boyd Jr. contends that Minnesota statute criminalizing test
refusal is unconstitutional under Missouri v. McNeely, 133 S. Ct. 1552 (2013) and State v. Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014), and that the
district court erred in denying appellant’s request to dismiss the charges. We affirm.
FACTS
In the early morning hours of August 17, 2013, a Brooklyn Center police officer
observed a vehicle traveling below the posted speed limit. The officer followed the
vehicle and observed the vehicle weaving within its lane of travel before crossing over a
median divider. After observing this, the officer initiated a traffic stop.
The officer identified the driver as appellant Leslie Boyd, Jr. Appellant’s behavior
indicated to the officer that he was impaired. The officer administered a field sobriety
test called the horizontal gaze nystagmus test, and observed that appellant lacked a
smooth pursuit in both eyes. Appellant refused to perform the remaining field sobriety
tests and refused to submit to a preliminary breath test. Appellant was placed under
arrest and taken to jail. Appellant again refused to submit to testing after being read the
implied-consent advisory.
Appellant was charged with refusal to submit to a chemical test pursuant to Minn.
Stat. § 169A.20, subd. 2 (2012). Appellant moved to dismiss the test-refusal charge,
arguing that section 169A.20, subdivision 2, is unconstitutional. The district court issued
an order denying appellant’s motion to dismiss. The court concluded that “because the
criminalization of refusing to submit to chemical testing under § 169A.02,
subd. 2 . . . remains constitutional today, the [appellant’s] motion to dismiss is denied.”
2 On January 2, 2014, appellant submitted to a Lothenbach proceeding1 and was
found guilty. This appeal follows.
DECISION
Appellant argues that the state cannot constitutionally criminalize a person’s
refusal to submit to chemical testing and that the district court erred by finding the refusal
statute constitutional.
“Minnesota statutes are presumed constitutional[,] and . . . our power to declare a
statute unconstitutional must be exercised with extreme caution and only when absolutely
necessary.” Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). A
party challenging the constitutionality of a statute must show beyond a reasonable doubt
that the statute violates a constitutional provision. State v. Cox, 798 N.W.2d 517, 519
(Minn. 2011). We review the constitutionality of a statute de novo. SooHoo v. Johnson,
731 N.W.2d 815, 821 (Minn. 2007).
The Fourth Amendment and article I, section 10 of the Minnesota Constitution
protect the “right of the people to be secure . . . against unreasonable searches and
seizures.” U.S. Const. amend. IV; accord Minn. Const. art. I, § 10. A search conducted
without a warrant issued upon probable cause is generally unreasonable. Skinner v. Ry.
Labor Execs.’ Ass’n, 489 U.S. 602, 619, 109 S. Ct. 1402, 1414 (1989). A warrant is
1 Stipulation to the prosecution’s case to obtain review of a pretrial ruling, governed by Minn. R. Crim. P. 26.01, subd. 4, preserves the defendant’s right to appeal a dispositive pretrial ruling. Proceedings under subdivision 4, commonly called “Lothenbach proceedings” take their name from State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), which authorized this procedure until it was superseded by subdivision 4. Minn. R. Crim. P. 26.01 cmt.
3 necessary for such a search unless an exception to the warrant requirement applies.
Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013).
The taking of a blood, breath, or urine sample is a physical intrusion that
constitutes a search under the Fourth Amendment. Skinner, 489 U.S. at 616-17, 109
S. Ct. at 1412–13. For such a search to be reasonable, it must be conducted pursuant to a
valid search warrant or an exception to the warrant. State v. Othoudt, 482 N.W.2d 218,
222 (Minn. 1992). Before McNeely, Minnesota law held that a warrantless blood draw
was constitutionally reasonable because the natural dissipation of alcohol in the blood
created a single-factor exigent circumstance. See, e.g., State v. Netland, 762 N.W.2d 202,
213-14 (Minn. 2009), abrogated in part by McNeely, 133 S. Ct. 1552, as recognized in
State v. Brooks, 838 N.W.2d 563, 567 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014);
State v. Shriner, 751 N.W.2d 538, 549-50 (Minn. 2008), abrogated by McNeely, 133
S. Ct. 1552. However, in McNeely, the Supreme Court held that the natural dissipation of
alcohol in the bloodstream no longer presented “a per se exigency that justifies an
exception to the Fourth Amendment’s warrant requirement for nonconsensual blood
testing in all drunk-driving cases.” 133 S. Ct. at 1556. The Court concluded that
“exigency . . . must be determined case by case based on the totality of the
circumstances.” Id. This holding was followed by our supreme court in Brooks. 838
N.W.2d at 572.
Appellant argues that “Post-McNeely (and now Post-Brooks), refusing to submit to
a warrantless search cannot be criminally prosecuted.” We are not persuaded. To the
contrary, McNeely does not require us to conclude that Minnesota’s test-refusal statute is
4 unconstitutional. A plurality of the Supreme Court in McNeely described implied-
consent laws as part of a state’s “broad range of legal tools to enforce [its] drunk-driving
laws and to secure [blood-alcohol-concentration] evidence without undertaking
warrantless nonconsensual blood draws.” 133 S. Ct. at 1566. Likewise in Brooks, our
supreme court held that “a driver’s decision to agree to take a test is not coerced simply
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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 A14-0136
State of Minnesota, Respondent,
vs.
Leslie Jay Boyd, Jr., Appellant.
Filed December 8, 2014 Affirmed Reyes, Judge
Hennepin County District Court File No. 27CR1327062
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Kirk M. Anderson, Anderson Law Firm, P.L.L.C., Minneapolis, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Chutich, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
REYES, Judge
Appellant Leslie Jay Boyd Jr. contends that Minnesota statute criminalizing test
refusal is unconstitutional under Missouri v. McNeely, 133 S. Ct. 1552 (2013) and State v. Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014), and that the
district court erred in denying appellant’s request to dismiss the charges. We affirm.
FACTS
In the early morning hours of August 17, 2013, a Brooklyn Center police officer
observed a vehicle traveling below the posted speed limit. The officer followed the
vehicle and observed the vehicle weaving within its lane of travel before crossing over a
median divider. After observing this, the officer initiated a traffic stop.
The officer identified the driver as appellant Leslie Boyd, Jr. Appellant’s behavior
indicated to the officer that he was impaired. The officer administered a field sobriety
test called the horizontal gaze nystagmus test, and observed that appellant lacked a
smooth pursuit in both eyes. Appellant refused to perform the remaining field sobriety
tests and refused to submit to a preliminary breath test. Appellant was placed under
arrest and taken to jail. Appellant again refused to submit to testing after being read the
implied-consent advisory.
Appellant was charged with refusal to submit to a chemical test pursuant to Minn.
Stat. § 169A.20, subd. 2 (2012). Appellant moved to dismiss the test-refusal charge,
arguing that section 169A.20, subdivision 2, is unconstitutional. The district court issued
an order denying appellant’s motion to dismiss. The court concluded that “because the
criminalization of refusing to submit to chemical testing under § 169A.02,
subd. 2 . . . remains constitutional today, the [appellant’s] motion to dismiss is denied.”
2 On January 2, 2014, appellant submitted to a Lothenbach proceeding1 and was
found guilty. This appeal follows.
DECISION
Appellant argues that the state cannot constitutionally criminalize a person’s
refusal to submit to chemical testing and that the district court erred by finding the refusal
statute constitutional.
“Minnesota statutes are presumed constitutional[,] and . . . our power to declare a
statute unconstitutional must be exercised with extreme caution and only when absolutely
necessary.” Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). A
party challenging the constitutionality of a statute must show beyond a reasonable doubt
that the statute violates a constitutional provision. State v. Cox, 798 N.W.2d 517, 519
(Minn. 2011). We review the constitutionality of a statute de novo. SooHoo v. Johnson,
731 N.W.2d 815, 821 (Minn. 2007).
The Fourth Amendment and article I, section 10 of the Minnesota Constitution
protect the “right of the people to be secure . . . against unreasonable searches and
seizures.” U.S. Const. amend. IV; accord Minn. Const. art. I, § 10. A search conducted
without a warrant issued upon probable cause is generally unreasonable. Skinner v. Ry.
Labor Execs.’ Ass’n, 489 U.S. 602, 619, 109 S. Ct. 1402, 1414 (1989). A warrant is
1 Stipulation to the prosecution’s case to obtain review of a pretrial ruling, governed by Minn. R. Crim. P. 26.01, subd. 4, preserves the defendant’s right to appeal a dispositive pretrial ruling. Proceedings under subdivision 4, commonly called “Lothenbach proceedings” take their name from State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), which authorized this procedure until it was superseded by subdivision 4. Minn. R. Crim. P. 26.01 cmt.
3 necessary for such a search unless an exception to the warrant requirement applies.
Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013).
The taking of a blood, breath, or urine sample is a physical intrusion that
constitutes a search under the Fourth Amendment. Skinner, 489 U.S. at 616-17, 109
S. Ct. at 1412–13. For such a search to be reasonable, it must be conducted pursuant to a
valid search warrant or an exception to the warrant. State v. Othoudt, 482 N.W.2d 218,
222 (Minn. 1992). Before McNeely, Minnesota law held that a warrantless blood draw
was constitutionally reasonable because the natural dissipation of alcohol in the blood
created a single-factor exigent circumstance. See, e.g., State v. Netland, 762 N.W.2d 202,
213-14 (Minn. 2009), abrogated in part by McNeely, 133 S. Ct. 1552, as recognized in
State v. Brooks, 838 N.W.2d 563, 567 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014);
State v. Shriner, 751 N.W.2d 538, 549-50 (Minn. 2008), abrogated by McNeely, 133
S. Ct. 1552. However, in McNeely, the Supreme Court held that the natural dissipation of
alcohol in the bloodstream no longer presented “a per se exigency that justifies an
exception to the Fourth Amendment’s warrant requirement for nonconsensual blood
testing in all drunk-driving cases.” 133 S. Ct. at 1556. The Court concluded that
“exigency . . . must be determined case by case based on the totality of the
circumstances.” Id. This holding was followed by our supreme court in Brooks. 838
N.W.2d at 572.
Appellant argues that “Post-McNeely (and now Post-Brooks), refusing to submit to
a warrantless search cannot be criminally prosecuted.” We are not persuaded. To the
contrary, McNeely does not require us to conclude that Minnesota’s test-refusal statute is
4 unconstitutional. A plurality of the Supreme Court in McNeely described implied-
consent laws as part of a state’s “broad range of legal tools to enforce [its] drunk-driving
laws and to secure [blood-alcohol-concentration] evidence without undertaking
warrantless nonconsensual blood draws.” 133 S. Ct. at 1566. Likewise in Brooks, our
supreme court held that “a driver’s decision to agree to take a test is not coerced simply
because Minnesota has attached the penalty of making it a crime to refuse the test.” 838
N.W.2d at 570.
Moreover, both the Minnesota and the United States Supreme Courts have
discussed the test-refusal statute with approval. In South Dakota v. Neville, the Supreme
Court explained that while “the choice to submit or refuse to take a blood-alcohol test
will not be an easy or pleasant one for a suspect to make . . . . the criminal process often
requires suspects and defendants to make difficult choices.” 459 U.S. 553, 564 (1982).
In McDonnell v. Comm. of Pub. Safety, the Minnesota Supreme Court articulated the
same sentiment, finding “the fact that certain individuals may face criminal charges for
refusing to undergo testing in no way compels those individuals to refuse.” 473 N.W.2d
848, 855-56 (Minn. 1991). Similarly, this court has also discussed the test-refusal statute
in a positive light holding that “Minnesota’s chemical-test-refusal statute reflects
permissible state objectives” as the state has a “compelling interest in highway safety that
justifies efforts to keep impaired drivers off the road.” State v. Wiseman, 816 N.W.2d
689, 695-96 (Minn. App. 2012), cert. denied, 133 S. Ct. 1585 (2013). Appellant has not
met his heavy burden of showing that McNeely renders the test-refusal statute
unconstitutional.
5 Appellant also argues that criminalizing test refusal violates his right against self-
incrimination. This argument is not persuasive. The United States Supreme Court has
held that a state does not violate the Fifth Amendment when it introduces into evidence a
driver’s refusal to submit to a blood-alcohol-concentration test. Neville, 459 U.S. at 564-
66, 103 S. Ct. at 922-24. Similarly, in McDonnell, our supreme court held that
Minnesota’s implied-consent law does not coerce a driver into testifying against himself.
473 N.W.2d at 855-56; see also Brooks, 838 N.W.2d at 570 (following McDonnell and
Neville and holding that “a driver’s decision to agree to take a test is not coerced simply
because Minnesota has attached the penalty of making it a crime to refuse the test”).
Affirmed.