State v. Chasingbear

• Decision Date: 04 August 2014
• Docket Number: A14-0301
• Court: Minnesota Court of Appeals
• Parties: State of Minnesota, Appellant, v. Ronald James Chasingbear, Respondent.

State of Minnesota, Appellant, v. Ronald James Chasingbear, Respondent.

A14-0301

STATE OF MINNESOTA IN COURT OF APPEALS

August 4, 2014

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

Reversed

Ross, Judge

Concurring specially, Larkin, Judge

Clay County District Court

File No. 14-CR-13-3688

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Brian J. Melton, Clay County Attorney, Heidi M. F. Davies, Assistant County Attorney, Moorhead, Minnesota (for appellant)

Brian P. Toay, Wold Johnson, P.C., Fargo, North Dakota (for respondent)

Considered and decided by Ross, Presiding Judge; Larkin, Judge; and Willis, Judge.^*

UNPUBLISHED OPINION

ROSS, Judge

Ronald Chasingbear refused a breath test requested by a Moorhead police officer under Minnesota's implied-consent law after the officer arrested Chasingbear, suspecting that he had been driving drunk. The state charged Chasingbear with the crime of test refusal. The district court deemed the test-refusal statute unconstitutional based on Chasingbear's Fourth Amendment rights and dismissed the charge. We reverse because Chasingbear has failed to meet his heavy burden of establishing that the statute is unconstitutional on any of the theories raised.

FACTS

A little before midnight on Halloween 2013, Fargo police alerted Moorhead police about an intoxicated domestic-assault suspect headed into Moorhead in a van registered to Ronald Chasingbear. Moorhead officer Nicholas Wiedenmeyer spotted the van and stopped it. Chasingbear was the driver. The officer saw that Chasingbear had minor injuries consistent with the reported assault, and he noticed that Chasingbear smelled strongly of alcoholic beverages and had slurred speech. Officer Wiedenmeyer administered field sobriety tests, which Chasingbear failed.

Officer Wiedenmeyer arrested Chasingbear and took him to the Clay County jail. He read Chasingbear the implied-consent advisory. Chasingbear indicated that he understood the advisory and asked to speak with an attorney, but he did not attempt to contact one. Officer Wiedenmeyer asked Chasingbear to perform a breath test, and Chasingbear refused. The state charged Chasingbear with test refusal under MinnesotaStatutes section 169A.20, subdivision 2 (2012), and third-degree driving while impaired under section 169A.26, subdivision 1 (2012).

Chasingbear moved to dismiss the test-refusal charge, arguing that the test-refusal statute is unconstitutional because it punishes him for exercising his constitutional right to refuse to submit to a warrantless search. The parties submitted briefs on the motion, and the district court held that the statute is unconstitutional under the "unconstitutional conditions" doctrine and dismissed the test-refusal charge.

The state appeals.

ANALYSIS

Our first question is what is the question? That is, we must determine the framework of our constitutional review. This case offers three alternatives. First, the district court deemed the test-refusal statute unconstitutional under the unconstitutional conditions doctrine as discussed by the state supreme court after being variously applied by the federal Supreme Court. See State v. Netland, 762 N.W.2d 202, 211-12 (Minn. 2009) (citing Frost v. R.R. Comm'n of Cal., 271 U.S. 583, 592, 46 S. Ct. 605, 606-07 (1926)), abrogated on other grounds by State v. Brooks, 838 N.W.2d 563 (Minn. 2013). Our review of the record leads us to believe that the district court developed this reason to deem the statute unconstitutional on its own; Chasingbear had not offered this theory, and no party apparently suggested it to the district court. Second, although the state's appellate brief does not expressly frame its argument in terms of substantive due process, in the district court it defended the constitutionality of the statute by relying on this court's substantive due process analysis as applied in State v. Wiseman, 816 N.W.2d 689,695 (Minn. App. 2012), cert. denied, 133 S. Ct. 1585 (2013), and its argument on appeal also depends on the Wiseman analysis as revisited in State v. Bernard, 844 N.W.2d 41, 45-46 (Minn. App. 2014), review granted (Minn. May 20, 2014). Third, Chasingbear has taken a different approach. He does not argue in direct support of the district court's unconstitutional conditions theory. Instead, he dismisses Wiseman as overruled law and castigates Bernard as bad law. Then he elaborates on the position he took in the district court and asks us to deem the statute unconstitutional under the approach the Supreme Court took in Camara v. Municipal Court of San Francisco, 387 U.S. 523, 532-33, 87 S. Ct. 1727, 1732-33 (1967), because, Chasingbear argues, "the facts and legal issues are identical to those set forth in Camara." These ships pass in the night; neither of the parties nor the district court ever attempts to explain why any one of these different frameworks is more or less fitting than the others. So despite the position of the concurring opinion that we can focus our opinion narrowly, we must address each one.

Starting Point: Statute Is Constitutional

Before we assess the statute's constitutionality under each alternative framework before us, we first emphasize two substantial obstacles standing against our affirming the district court's decision regardless of which framework we apply. The first is that a strong presumption of constitutionality accompanies each statute. Under this presumption, we follow the supreme court's approach and exercise our authority to declare a statute unconstitutional only with extreme caution and when absolutely necessary, after the challenger has demonstrated the statute's unconstitutionality beyond any reasonable doubt. Walker v. Zuehlke, 642 N.W.2d 745, 750 (Minn. 2002). Thesecond is that this strong presumption as applied to Chasingbear's challenge is elevated by the reasoning of two recent drunk-driving, chemical-testing opinions—one issued by the United States Supreme Court and one by the state supreme court.

The United States Supreme Court recently restated its support for state penalties against test refusal, and it did so in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the very Fourth Amendment case on which the district court and Chasingbear rely as the cornerstone of their different theories that the statute offends the Fourth Amendment. To support its decision prohibiting Missouri from warrantlessly drawing blood from a suspected drunk driver without his consent and without exigent circumstances, the McNeely Court highlighted several alternatives to warrantless, nonconsensual blood draws, and it expressly described these alternatives as "legal" (that is, constitutional). 133 S. Ct. at 1566. The Court reminded us that, among other constitutional penalties that states can rely on to secure chemical-test evidence in drunk-driving cases, a state does not violate a defendant's Fifth Amendment rights by urging a criminal jury to infer from a defendant's refusal to submit to chemical testing that he is guilty of the crime of drunk driving. Id. (citing South Dakota v. Neville, 459 U.S. 553, 563-64, 103 S. Ct. 916, 922-23 (1983)). While the re-emphasized Neville decision is not a Fourth Amendment case, McNeely certainly is. And it was in the Fourth Amendment context that McNeely expressly reminds us through Neville that a state can constitutionally use the driver's test refusal (that is, the driver's exercise of his Fourth Amendment right not to be tested without consent) as inferential evidence to convict the driver of a crime, even though the Constitution would have prohibited the state from forcing that driver to submit to anactual chemical test. This contrasts sharply with the general rule that due process bars prosecutors from referring to a defendant's refusal to consent to a warrantless search to raise an inference of guilt. See, e.g., United States v. Runyan, 290 F.3d 223, 249 (5th Cir. 2002) ("[T]he circuit courts that have directly addressed this question have unanimously held that a defendant's refusal to consent to a warrantless search may not be presented as evidence of guilt."); United States v. Thame, 846 F.2d 200, 206-07 (3rd Cir. 1988) (holding the same and adding that a defendant's decision to exercise his Sixth Amendment right to counsel cannot serve as evidence of guilt); State v. Larson, 788 N.W.2d 23, 32-33 (Minn. 2010) (erroneous to admit defendant's refusal of voluntary DNA test as evidence of guilt); State v. Jones, 753 N.W.2d 677, 687 (Minn. 2008) (noting that it would be improper for prosecutor to comment on defendant's refusal to give saliva sample). That the Supreme Court in McNeely buttressed its Fourth Amendment holding on the states' lawful authority to rely on test refusals to convict drivers of a crime significantly undermines the district court's conclusion that the Minnesota test-refusal statute is infected by a fatal Fourth Amendment infirmity.

In similar fashion, our state supreme court recently held that an officer's warning to a suspected drunk driver that a chemical test is required and that refusal is a crime does not unconstitutionally coerce the driver to waive his Fourth Amendment rights and consent to a test. State v. Brooks, 838 N.W.2d 563, 569-570 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). Chasingbear cites Brooks, but he does not attempt to answer the question that arises from its holding as applied to this case: If the state threatens action that is not unconstitutionally coercive in violation of a person's Fourth Amendmentrights, how can the state's carrying out the threat violate the person's Fourth Amendment rights? Although Chasingbear does not offer an answer, the Brooks court, like the McNeely Court, suggests one: "Although refusing the test comes with criminal penalties in Minnesota, . . . [and] the choice to submit or refuse to take a chemical test 'will not be an easy or pleasant one for a suspect to make,' the criminal process 'often...