State v. Johnson

• Decision Date: 09 June 2014
• Docket Number: A13-2252
• Court: Minnesota Court of Appeals
• Parties: State of Minnesota, Appellant, v. Gary James Johnson, Respondent.

State of Minnesota, Appellant, v. Gary James Johnson, Respondent.

A13-2252

STATE OF MINNESOTA IN COURT OF APPEALS

Filed: June 9, 2014

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

Reversed and remanded

Schellhas, Judge

Concurring specially, Klaphake, Judge^*

Anoka County District Court

File No. 02-CR-13-3623

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

Kurt B. Glaser, Smith & Glaser, LLC, Minneapolis, Minnesota (for appellant)

Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, Minnesota (for respondent)

Considered and decided by Schellhas, Presiding Judge; Halbrooks, Judge; and Klaphake, Judge.

UNPUBLISHED OPINION

SCHELLHAS, Judge

Appellant challenges a pretrial dismissal of its test-refusal charge against respondent, arguing that the district court erred by concluding that the test-refusal statute is unconstitutional. We reverse and remand for further proceedings consistent with this opinion.

FACTS

Appellant State of Minnesota charged respondent Gary Johnson with numerous offenses, including third-degree driving while impaired (DWI) (refusal to submit to a chemical test) under Minn. Stat. §§ 169A.20, subd. 2, .26, subd. 1(b) (2012). In its complaint, the state alleged that, in Anoka County shortly before 3:00 a.m. on May 27, 2013, Officer Matthew Giese observed a truck traveling 39 miles per hour in a 30-mile-per-hour speed zone and pursued the truck with his vehicle's emergency lights activated. The truck quickly turned right and stopped in a handicapped parking space, and a man, whom Officer Giese later identified as Johnson, stumbled out of the truck, almost falling over. Johnson had an alcohol-related restriction on his license and could not produce proof of insurance. He had difficulty standing, a strong smell of alcohol on his breath, and red and watery eyes.

Officer Giese administered three field sobriety tests to Johnson, who displayed 15 indicia of intoxication. Johnson's preliminary breath-test result was .173. Officer Giese arrested Johnson for DWI, transported him to the Centennial Lakes Police Department, and read him the implied-consent advisory. Johnson stated that he understood theadvisory and wanted to speak to an attorney. Officer Giese provided Johnson with a telephone and phone books, but Johnson repeatedly stated that he would not try to call his attorney or another attorney. When Officer Giese asked Johnson if he would submit to a breath test, Johnson said no. The state charged Johnson with a test-refusal crime. In reliance on Missouri v. McNeely, 133 S. Ct. 1552 (2013), Johnson moved to dismiss the complaint, arguing that the test-refusal statute was unconstitutional on its face and as applied to Johnson because it "criminalizes a person's exercise of his constitutionally protected interest in remaining free from unreasonable searches and seizures."

The district court dismissed the state's test-refusal charge, reasoning that Johnson refused to submit to a constitutionally unreasonable breath test and that the test-refusal statute violated Johnson's "constitutional right to refuse to submit to an unreasonable search." The court stated that "[i]f the exercise of a constitutional right is criminalized, the right loses all meaning" and concluded that "[t]he good faith exception" did not apply because no search occurred.

This appeal follows.

DECISION

We have jurisdiction to review pretrial orders appealed by the state that, unless reversed, will critically impact the trial's outcome. See State v. Williams, 842 N.W.2d 308, 311 n.2 (Minn. 2014) (citing Minn. R. Crim. P. 28.04, subd. 1(1) (granting prosecutor right to appeal to this court "any pretrial order")); State v. Zais, 805 N.W.2d 32, 35 (Minn. 2011) (stating that state may appeal pretrial orders that, unless reversed, will critically impact trial's outcome). To satisfy the critical-impact test, the state mustshow "clearly and unequivocally (1) that the district court's ruling was erroneous and (2) that the ruling will have a critical impact on the State's ability to prosecute the case." Zais, 805 N.W.2d at 36 (quotations omitted).

By dismissing the test-refusal charge and declaring the test-refusal statute unconstitutional, the district court critically impacted the state's ability to prosecute Johnson for the charge because, "[w]hen a statute is unconstitutional, it is not a law and it is as inoperative as if it had never been enacted," Fedziuk v. Comm'r of Pub. Safety, 696 N.W.2d 340, 349 (Minn. 2005); "district court judges recognize that it is not their function to overrule their colleagues' legal rulings[;] and it is therefore highly unlikely that a prosecuting attorney could reinstate a case dismissed solely on a question of law," State v. Dunson, 770 N.W.2d 546, 550 (Minn. App. 2009), review denied (Minn. Oct. 20, 2009), cert. denied, 559 U.S. 1012 (2010).

We conduct a de novo review of the district court's conclusion that the test-refusal statute is unconstitutional. See State v. Wenthe, 839 N.W.2d 83, 87 (Minn. 2013) ("Whether a statute is unconstitutional is a question of law we review de novo."); State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999) (rejecting argument that "standard governing a state's appeal of a pretrial order should be whether the trial court's findings are clearly and unequivocally erroneous," and concluding that "our standard of review is de novo" because district court's challenged conclusions were "clearly determinations of law"); accord State v. Schmidt, 612 N.W.2d 871, 875 (Minn. 2000); State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

The test-refusal statute, Minn. Stat. § 169A.20, subd. 2, criminalizes "refus[al] to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license)." See also Minn. Stat. § 169A.26, subd. 1(b) ("A person who violates section 169A.20, subdivision 2 . . . , is guilty of third-degree driving while impaired."). "Minnesota statutes are presumed constitutional . . . ." Wenthe, 839 N.W.2d at 87. Appellate courts "exercise [their] authority to declare a statute unconstitutional with extreme caution and only when absolutely necessary," id. (quotation omitted), and "will uphold a statute unless the challenging party demonstrates that it is unconstitutional beyond a reasonable doubt," State v. Ness, 834 N.W.2d 177, 182 (Minn. 2013) (quotation omitted).

In its order dismissing the test-refusal charge against Johnson, the district court reasoned that a defendant has a "constitutional right to passively refuse to submit to" constitutionally unreasonable searches as a part of the defendant's "exercise of [the d]efendant's [federal and state] constitutional right to be free of unreasonable searches." The state argues that the test-refusal statute does not violate Johnson's right to be free from unreasonable searches. Johnson counters that the issue is not whether the test-refusal statute violated his right to be free from unreasonable searches but, rather, whether the test-refusal statute violated his right to substantive due process under the United States Constitution. We conclude that, under either legal framework, the district court erred by concluding that the test-refusal statute is unconstitutional.

The United States and Minnesota Constitutions protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; see Minn. Const. art. I, § 10 (same); Bailey v. United States, 133 S. Ct. 1031, 1037 (2013) (noting that "[t]he Fourth Amendment[ is] applicable through the Fourteenth Amendment to the States"). The United States and Minnesota Constitutions also prohibit a state from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV; accord Minn. Const. art. I. § 7; see also State v. Pass, 832 N.W.2d 836, 841 n.1 (Minn. 2013) ("The due process protection provided under the Minnesota Constitution is identical to the due process guaranteed under the Constitution of the United States." (quotation omitted)). Those prohibitions "include substantive components prohibiting 'certain arbitrary, wrongful government actions, regardless of the fairness of the procedures used to implement them.'" State v. Netland, 762 N.W.2d 202, 208 (Minn. 2009) (quoting Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990)) (other quotation omitted), abrogated on other grounds by Missouri v. McNeely, 133 S. Ct. 1552 (2013), as recognized in State v. Brooks, 838 N.W.2d 563, 567 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014).

Before McNeely, our supreme court held in State v. Shriner that "[t]he rapid, natural dissipation of alcohol in the blood creates a single-factor exigent circumstance that will justify the police taking a warrantless, nonconsensual blood draw from a defendant, provided that the police have probable cause to believe that defendant committed criminal vehicular homicide or operation." 751 N.W.2d 538, 539 (Minn.2008), abrogated by Missouri v. McNeely, 133 S. Ct. 1552 (2013). In Netland, our supreme court relied on Shriner to hold that "Minnesota's criminal test-refusal statute does not violate the constitutional prohibition against unreasonable searches because exigent circumstances created by rapidly dissipating evidence of blood-alcohol concentration justify the warrantless search." 762 N.W.2d at 204, 212-13.

In State v. Wiseman, quoting Shriner, 751 N.W.2d at 549-50, and citing Netland, 762 N.W.2d at 212-13, this court stated that "[a] warrantless chemical test is constitutionally reasonable if the police have probable cause to believe that the person was driving, operating, or in physical control of a motor vehicle while chemically impaired because of the exigent circumstances created by '[t]he rapid, natural dissipation of alcohol...