This opinion will be unpublished and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
A13-1698
Brian Jeffrey Serber, petitioner,
Respondent,
vs.
Commissioner of Public Safety,
Appellant.
Filed August 18, 2014
Reversed
Johnson, Judge
Dakota County District Court
File No. 19AV-CV-13-1432
Ryan M. Pacyga, Amber S. Thompson, Ryan Pacyga Criminal Defense, Minneapolis,
Minnesota (for respondent)
Lori Swanson, Attorney General, Kristi Nielsen, Assistant Attorney General, St. Paul,
Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
The commissioner of public safety revoked Brian Jeffrey Serber’s driver’s license
after he was arrested for driving while impaired and refused to consent to chemical
testing. The district court rescinded the revocation on the ground that it violated Serber’s
Fourth Amendment rights. We conclude that the district court erred in its legal analysis
and, therefore, reverse.
FACTS
In the early-morning hours of April 28, 2013, Officer Adam Stier of the Lakeville
Police Department observed a car make an illegal turn, in violation of Minn. Stat.
§ 169.19, subd. 1(a) (2012), and also noticed that the vehicle did not have an operating
license-plate light, in violation of Minn. Stat. § 169.50, subd. 2 (2012). Officer Stier
stopped the vehicle and made contact with the driver, Serber. Officer Stier detected a
“very strong odor of an alcoholic beverage emanating from inside the vehicle,” and he
also noticed that Serber’s eyes were bloodshot and watery and that his speech was
slurred. Serber admitted that he had been drinking. Serber failed several field sobriety
tests, and a preliminary breath test indicated an alcohol concentration of .166.
Officer Stier arrested Serber for driving while impaired (DWI), transported him to
the police station, and followed the procedures of the implied-consent statute. See Minn.
Stat. § 169A.51 (2012). Serber indicated that he understood the implied-consent
advisory. When Officer Stier asked Serber whether he wished to speak to an attorney,
Serber responded in the affirmative. Officer Stier provided Serber with a telephone and
telephone books. After Serber made contact with an attorney, he indicated that he was
“ready to proceed.” Officer Stier asked Serber whether he would submit to a breath test.
Serber responded, “At this time without [a] sufficient search warrant I do refuse the
breath test.” The commissioner of public safety revoked Serber’s driver’s license.
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In May 2013, Serber petitioned the district court for judicial review of the
revocation. See Minn. Stat. § 169A.53, subd. 2 (2012). In June 2013, the district court
conducted an implied-consent hearing. Serber was represented by an attorney but was
not personally present. At the outset of the hearing, Serber’s attorney identified a single
issue, “the McNeely slash consent issue.” The parties stipulated to an exhibit consisting
of the implied-consent peace-officer’s certificate, the implied-consent advisory, and
Officer Stier’s police report. No testimony was offered during the hearing.
In July 2013, the district court issued an order rescinding the commissioner’s order
of revocation on the ground that, in light of Missouri v. McNeely, 133 S. Ct. 1552 (2013),
the revocation of Serber’s driver’s license pursuant to the implied-consent statute is a
violation of his Fourth Amendment rights. The commissioner appeals.
DECISION
The commissioner argues that the district court erred by rescinding the revocation
of Serber’s driver’s license. The commissioner contends that McNeely does not preclude
the revocation of Serber’s driver’s license as a matter of law.
The district court’s decision implicates the constitutionality of a statute, which is a
question of law that is subject to a de novo standard of review. State v. Ness, 834 N.W.2d
177, 181 (Minn. 2013). We presume that Minnesota statutes are constitutional and will
declare a statute unconstitutional “with extreme caution and only when absolutely
necessary.” Id. at 182 (quotation omitted). The party challenging a statute on
constitutional grounds must meet “the very heavy burden of demonstrating beyond a
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reasonable doubt that the statute is unconstitutional.” State v. Johnson, 813 N.W.2d 1, 11
(Minn. 2012) (quotation omitted).
We begin by noting that the holding in McNeely is relatively narrow. The
Supreme Court held that “the natural dissipation of alcohol in the bloodstream does not
constitute an exigency in every case sufficient to justify conducting a blood test without a
warrant.” 133 S. Ct. at 1568. Accordingly, the Court concluded that the evidence in that
case arising from a forcible, warrantless blood test (which was not performed pursuant to
Missouri’s implied-consent statute) was properly suppressed by the Missouri trial court.
Id. at 1557, 1568. The Court did not hold or suggest that the Missouri implied-consent
statute was constitutionally infirm. In fact, the Court spoke approvingly of implied-
consent statutes by noting that its opinion does not “undermine the governmental interest
in preventing and prosecuting drunk-driving offenses” through the use of “legal tools”
such as “implied consent laws that require motorists, as a condition of operating a motor
vehicle within the State, to consent to BAC testing.” Id. at 1566 (plurality opinion).
The Minnesota Supreme Court emphasized this portion of McNeely in State v.
Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014), a criminal
case concerning the validity of a person’s consent to chemical testing pursuant to the
implied-consent statute:
Brooks’s argument is inconsistent with the Supreme Court’s
discussion of implied consent laws in McNeely. As the
Supreme Court recognized in McNeely, implied consent laws,
which “require motorists, as a condition of operating a motor
vehicle within the State, to consent to blood alcohol
concentration testing if they are arrested or otherwise
detained on suspicion of a drunk-driving offense,” are “ legal
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tools” states continue to have to enforce their drunk driving
laws. The Court noted that these laws typically require
suspected drunk drivers to take a test for the presence of
alcohol and mandate that a driver’s license will be revoked if
they refuse a test. By using this “legal tool” and revoking a
driver’s license for refusing a test, a state is doing the exact
thing Brooks claims it cannot do -- conditioning the privilege
of driving on agreeing to a warrantless search.
Id. at 572 (alteration in original) (citations omitted) (quoting McNeely, 133 S. Ct. at
1566). Although the statements about implied-consent statutes in McNeely and Brooks
were not essential to the decision in either case, the statements tend to show that the
revocation of a person’s driver’s license pursuant to Minnesota’s implied-consent law
does not violate the person’s Fourth Amendment rights.
Furthermore, the district court’s decision is inconsistent with a recent opinion of
this court. In Stevens v. Commissioner of Pub. Safety, ___ N.W.2d ___, 2014 WL
3396522 (Minn. App. July 14, 2014), this court concluded that the implied-consent
statute “does not violate the unconstitutional-conditions doctrine by authorizing the
commissioner of public safety to revoke the driver’s license of a person who has been
arrested for DWI and has refused to submit to chemical testing.” Id. at *12. Serber
included an unconstitutional-conditions argument in his memorandum to the district
court, but the district court did not address it. It appears that Serber has abandoned the
unconstitutional-conditions argument on appeal. Nonetheless, Stevens is relevant
because we reasoned, in part, that if the implied-consent statute authorizes a search of a
person’s blood, breath, or urine, such a search would satisfy the reasonableness
requirement of the Fourth Amendment. Id. at *6-10.
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Serber also argues that his refusal was reasonable. This argument apparently is an
attempt to invoke the statutory affirmative defense that, “at the time of the refusal, the
petitioner’s refusal to permit the test was based upon reasonable grounds.” See Minn.
Stat. § 169A.53, subd. 3(c). Serber did not assert this defense in the district court; he is
making the argument for the first time on appeal. This court generally will not consider
issues that were not presented to the district court. Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988); LaBeau v. Commissioner of Pub. Safety, 412 N.W.2d 777, 780 (Minn.
App. 1987). Thus, we will not consider Serber’s reasonable-refusal argument.
In sum, the district court erred by rescinding the revocation of Serber’s driver’s
license on the ground that the revocation violated Serber’s Fourth Amendment rights. In
light of that conclusion, we need not consider the commissioner’s other arguments for
reversal or Serber’s responses to the commissioner’s other arguments.
Reversed.
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