County District Court File No. 13-CV-15-829
M. Glodosky, Kelsey Law Office, P.A., Cambridge, Minnesota
Swanson, Attorney General, Cory Beth Monnens, Assistant
Attorney General, St. Paul, Minnesota (for appellant)
Considered and decided by Smith, Tracy M., Presiding Judge;
Larkin, Judge; and Rodenberg, Judge.
1. If a
person challenges the accuracy of an implied-consent advisory
as a violation of due process, the claim should be analyzed
under the Due Process Clause, consistent with Minnesota
implied-consent advisory violates due process when it
threatens a criminal test-refusal charge that the state is
not authorized to impose.
challenges the district court's order rescinding the
revocation of respondent's license to drive under
Minnesota's implied-consent law. The district court
rescinded the revocation based on its conclusion that the
implied-consent advisory in this case misinformed respondent
regarding the potential criminal penalty for refusing to
submit to a urine test and therefore violated his right to
due process. We affirm.
November 9, 2015, a North Branch police officer responded to
the scene of a single-vehicle collision. Respondent Tyler Lee
Johnson had driven through an intersection and crashed into a
tree. As Johnson exited the vehicle, the officer observed a
large, unmarked bottle between the driver's seat and the
vehicle's center console, which appeared to contain an
assortment of pills. Johnson informed the officer that the
pill bottle was his. Based on Johnson's performance on
field sobriety tests, the officer suspected that Johnson was
under the influence of some kind of narcotic or medication,
but the officer did not suspect alcohol use. The officer
arrested Johnson for driving while impaired (DWI).
officer transported Johnson to a local emergency room. At the
hospital, the officer read Johnson an implied-consent
advisory, informing him that Minnesota law required him to
take a test to determine if he was under the influence of
alcohol or a hazardous or controlled substance and that he
had the right to speak with an attorney before deciding
whether to take a test. The officer also informed Johnson
that refusal to take a urine test is a crime. The officer
later testified that he specified urine testing when advising
Johnson that failure to take a test is a crime
"[b]ecause the new policy of refusal to take a urine
test was [the police department's] guidance from the
county attorney's office at [the] time."
spent over an hour attempting to contact an attorney before
the officer asked Johnson to submit to a urine test. Johnson
indicated that he wanted to consult an attorney. The officer
asked Johnson if he would take a blood test. Johnson once
again indicated that he wanted to consult an attorney. The
officer did not request a breath test because he did not
suspect that Johnson was under the influence of alcohol.
Johnson did not submit to either a urine or blood test.
Commissioner of Public Safety revoked Johnson's license
to drive based on his refusal to submit to a chemical test.
Johnson petitioned the district court for rescission of the
license revocation. Johnson claimed that his right to due
process was violated because the officer did not properly
inform him of the consequences of test refusal. The district
court rescinded the revocation of Johnson's license to
drive, relying on McDonnell v. Comm'r of Pub.
Safety, 473 N.W.2d 848, 855 (Minn. 1991). The district
court reasoned that the implied-consent advisory violated
Johnson's right to due process by inaccurately informing
him that refusal to take a urine test is a crime when Johnson
"could not have been criminally charged for refusing an
unconstitutional search." This appeal follows.
Should Johnson's due-process challenge to the
implied-consent advisory in this case be analyzed as a
due-process claim or a Fourth Amendment claim?
the district court correctly conclude that the
implied-consent advisory violated Johnson's right to due
process by threatening a criminal charge the state was not
authorized to impose and that he therefore is entitled to
rescission of the revocation of his license to drive?
Minnesota's implied-consent law, any person who drives a
motor vehicle in the state "consents . . . to a chemical
test of that person's blood, breath, or urine for the
purpose of determining the presence of alcohol, a controlled
substance or its metabolite, or a hazardous substance"
when certain conditions are met. Minn. Stat. § 169A.51,
subd. 1(a) (2014). For example, a test is required if an
officer has probable cause to believe that a person was
driving while impaired and the person has been lawfully
arrested for DWI or involved in a motor-vehicle accident or
collision resulting in property damage or personal injury.
Id., subd. 1(b)(1), (2) (2014).
test is requested under the implied-consent law, the person
subject to testing must be told that "Minnesota law
requires the person to take a test . . . to determine if the
person is under the influence of alcohol, controlled
substances, or hazardous substances." Id.,
subd. 2(a)(1) (2014). The person also must be told that
"refusal to take a test is a crime" and that
"the person has the right to consult with an attorney,
but that this right is limited to the extent that it cannot
unreasonably delay administration of the test."
Id., subd. 2(a)(2), (4) (2014). If there is probable
cause to believe the person has violated the
criminal-vehicular-homicide-and-injury laws, the person must
also be told that "a test will be taken with or without
the person's consent." Id., subd. 2(a)(3)
a person refuses to permit a test" under Minnesota's
implied-consent law, "then a test must not be
given." Minn. Stat. § 169A.52, subd. 1 (2014).
However, if the person refuses to submit to a test, the
commissioner must revoke the person's license to drive.
Id., subd. 3 (2014).
issue in this case is whether an implied-consent advisory
violates a person's right to due process by informing the
person that refusal to take a urine test is a crime when a
criminal test-refusal charge would be unconstitutional.
Resolution of this issue requires us to answer the following
questions: (1) is Johnson's due-process challenge to the
advisory in this case properly analyzed as a due-process
claim or a Fourth Amendment claim and (2) was the advisory in
this case misleading such that it violates due process under
McDonnell v. Comm'r of Pub. Safety, in which the
Minnesota Supreme Court concluded that an implied-consent
advisory violated due process because it misinformed 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 was impossible. 473 N.W.2d at 855. We address
each issue in turn.
begin with the commissioner's argument that the Fourth
Amendment, and not due process, provides the proper
analytical framework for Johnson's challenge to the
implied-consent advisory in this case. The commissioner
asserts that Johnson has raised a substantive-due-process
claim and that the claim is covered by the Fourth Amendment.
The commissioner therefore contends that we should analyze
the claim only under the Fourth Amendment.
commissioner relies on State v. Mellett, in which
this court stated, "if a claim is covered by a specific
constitutional provision, that claim must be analyzed
according to the standards established by the specific
provision, and not as a possible violation of the
claimant's substantive-due-process rights." 642
N.W.2d 779, 783 (Minn.App. 2002). The quoted text from
Mellett is based on a discussion in County of
Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708
(1998). Id. In Lewis, the United States
Supreme Court explained that:
Because we have always been reluctant to expand the concept
of substantive due process, . . . [w]here 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 ...