This opinion will be unpublished and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
A14-0083
A14-0896
State of Minnesota,
Respondent,
vs.
David Lamar Everett,
Appellant,
and
David Lamar Everett, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed December 8, 2014
Affirmed
Larkin, Judge
Hennepin County District Court
File Nos. 27-CR-12-19417; 27-CV-12-3784
Lori Swanson, Attorney General, Elizabeth Oji, Jacob C. Fischmann, Assistant Attorneys
General, St. Paul, Minnesota; and
Susan L. Segal, Minneapolis City Attorney, Sarah Becker, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)
Melvin R. Welch, Welch Law Firm, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Hudson, Judge; and Larkin,
Judge.
UNPUBLISHED OPINION
LARKIN, Judge
In this consolidated appeal, appellant challenges his criminal conviction of refusal
to submit to a chemical test and the civil revocation of his driving privileges. Appellant
argues that the test-refusal statute is unconstitutional and that the district court’s jury
instructions were erroneous. We affirm.
FACTS
Minnesota State Trooper Andrew Martinek stopped appellant David Lamar
Everett’s vehicle after observing the vehicle being driven at night without its rear lights
illuminated. During his interaction with Everett, Trooper Martinek noticed that Everett
slurred his words, smelled of alcohol, and had bloodshot, watery eyes. After conducting
field sobriety tests and obtaining Everett’s preliminary-breath-test result of .11, Trooper
Martinek arrested Everett for driving while impaired (DWI).
Trooper Martinek placed Everett in the back of his squad car and read him
Minnesota’s implied-consent advisory. Next, Trooper Martinek transported Everett to
the Hennepin County Jail and provided Everett a telephone book and access to a
telephone. After ten minutes, Everett had placed one phone call. Trooper Martinek
reminded Everett that he had to make a decision regarding chemical testing within a
reasonable amount of time and that he would have to make his decision on his own if he
was unable to contact an attorney. Twenty additional minutes passed, and Everett did not
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make another phone call. Trooper Martinek informed Everett that his time to contact an
attorney had passed. Trooper Martinek told Everett that he would have to make a
decision whether to submit to chemical testing on his own and that failure to make a
decision would constitute test refusal. Trooper Martinek asked Everett if he would
submit to testing eight times and each time, Everett evaded the question or refused to
answer.
Respondent State of Minnesota charged Everett with third-degree refusal to submit
to a chemical test and fourth-degree DWI. Everett filed a pretrial motion to “suppress
evidence and dismiss” arguing, in part, that Minnesota’s implied-consent law is
unconstitutional and that Trooper Martinek did not provide him a reasonable period of
time in which to contact an attorney. The district court denied Everett’s motion,
concluding that the “Minnesota Implied Consent Law and refusal law are not
unconstitutional” and that Everett “was afforded a reasonable period of time to contact an
attorney.” The case was tried to a jury, and Everett was found guilty of test refusal. The
district court stayed execution of sentence.
In a related civil case based on the same underlying events, respondent
Commissioner of Public Safety revoked Everett’s driver’s license under the implied-
consent law, based on his refusal to submit to chemical testing. Everett filed an implied-
consent petition, challenging the revocation of his driver’s license. In his petition,
Everett asserted, among other things, that Minnesota’s implied-consent procedure
violates state and federal constitutional provisions for due
process of law, equal protection of the laws, the right to
redress grievances, separation of powers, double jeopardy, the
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state constitutional right to consult with an attorney, the
court’s inherent power to supervise the court process, and the
rules of professional conduct for attorneys and for judges.
The district court issued a written order, stating only “[t]hat the revocation of the driving
privileges of the petitioner under authority of Minnesota Statute 169A.53, be and hereby
is SUSTAINED.”
Everett appealed from his criminal conviction, A14-0083, and from the district
court’s order sustaining the revocation of his driving privileges, A14-0896. This court
consolidated the appeals.
DECISION
I.
We first address the issues raised in Everett’s appeal from his criminal conviction.
Everett’s statement of the case indicates that he “appeals the district court’s rulings that
the refusal statute is constitutional, that he was provided sufficient time to contact an
attorney as a matter of law, and challenges the trial court’s ruling on [his] proposed jury
instruction for driving while intoxicated—refusal.” However, Everett’s brief does not
contain any argument regarding the district court’s ruling that he was provided sufficient
time to contact an attorney. That issue is therefore waived, and we do not address it. See
State v. Jackson, 655 N.W.2d 828, 837 (Minn. App. 2003) (“An issue that is not
addressed in the ‘argument portion’ of a brief is deemed waived on appeal.”), review
denied (Minn. Apr. 15, 2003). Our analysis of Everett’s two remaining issues follows.
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Constitutional Challenge to the Test-Refusal Statute
The constitutionality of a statute presents a question of law, which appellate courts
review de novo. State v. Cox, 798 N.W.2d 517, 519 (Minn. 2011). “Minnesota statutes
are presumed constitutional and . . . [an appellate court’s] 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).
“The party challenging a statute has the burden of demonstrating, beyond a reasonable
doubt, that a constitutional violation has occurred.” Id.
Everett contends that
[t]he Minnesota Implied Consent Law as a whole violates due
process of law because it makes the constitutional conduct of
refusing to consent to a warrantless search, and otherwise
requiring law enforcement [to] obtain a warrant or operate
under an exception to the warrant requirement, as unlawful;
and the implied consent laws unconstitutionally conditions
the exercise of the privilege of driving on the waiver of an
individual’s right to be free of unreasonable search and
seizure of BAC evidence.
Everett argues that “a person [has a] constitutional right to withhold consent
voluntarily under the Fourth Amendment,” and because “[t]he Minnesota implied consent
laws as it currently stands renders any refusal unlawful when a person is not required to
give consent, . . . it . . . violates a person’s due process of law.”
The United States Constitution and the Minnesota Constitution provide that the
government cannot deprive a person of “life, liberty, or property, without due process of
law.” U.S. Const. XIV, § 1; Minn. Const. art. I, § 7. The due-process protections of the
United States Constitution and the Minnesota Constitution are coextensive. Sartori v.
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Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn. 1988). “[S]ubstantive due process
protects individuals from certain arbitrary, wrongful government actions regardless of the
fairness of the procedures used to implement them.” In re Linehan, 594 N.W.2d 867, 872
(Minn. 1999) (quotations omitted). Appellate courts will strictly scrutinize a challenged
law that implicates a fundamental right. Essling v. Markman, 335 N.W.2d 237, 239
(Minn. 1983). And we will uphold such a law under the strict-scrutiny test only if it
serves a compelling state interest and is narrowly tailored to serve that interest. See id.
But when a challenged statute does not implicate a fundamental right, appellate courts
will hold that it violates substantive due process only if, applying a rational-basis test, the
challenger has established that the statute is not reasonably related to a legitimate
governmental interest. In re Individual 35W Bridge Litigation, 806 N.W.2d 820, 830
(Minn. 2011).
Everett does not identify the specific statute that he challenges. Because he was
convicted of refusal to submit to chemical testing and he refers to the “DWI-Refusal
Statute” in his brief, we presume he challenges Minn. Stat. § 169A.20, subd. 2 (2012),
which states: “Refusal to submit to chemical test crime. It is a crime for any person to
refuse 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).”
Substantively, “the Due Process Clause specially protects those fundamental rights
and liberties which are, objectively, deeply rooted in this Nation’s history and tradition
. . . and implicit in the concept of ordered liberty, such that neither liberty nor justice
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would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21,
117 S. Ct. 2258, 2268 (1997) (quotations omitted). In substantive-due-process cases, the
Supreme Court has required “a ‘careful description’ of the asserted fundamental liberty
interest.” Id. at 721, 117 S. Ct. at 2268.
Everett describes the purported fundamental right at stake in this case as a
“fundamental right to be free of unreasonable searches and seizures.” But section
169A.20, subdivision 2 does not authorize a search or seizure. This court recently noted
that, “[i]n most situations, the plain language of the [implied-consent statutes] authorizes
a search of a driver’s blood, breath, or urine only if the driver gives express, valid consent
to such a search.” Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717, 725 (Minn. App.
2014) (footnote omitted). The implied-consent statutes authorize a search without the
driver’s express consent only when (1) there is probable cause to believe the driver
committed criminal vehicular homicide or criminal vehicle operation or (2) the driver is
unconscious or “otherwise in a condition rendering the [driver] incapable of refusal.”
Minn. Stat. §§ 169A.52, subd. 1, .51, subd. 6 (2012). Neither circumstance is applicable
here.
Everett also describes the fundamental right at stake as “the right to withhold
consent from law enforcement without threat of prosecution.” But Everett does not
explain how that purported fundamental right is deeply rooted in our nation’s history and
tradition. Instead, he appears to rely on 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),
as support for the proposition that “the right to withhold consent from law enforcement
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without threat of prosecution” is a fundamental right. That reliance is misplaced. Neither
McNeely nor Brooks suggest that implied-consent laws infringe on a fundamental right.
See McNeely, 133 S. Ct. at 1566 (endorsing “implied consent laws that require motorists,
as a condition of operating a motor vehicle within the State, to consent to BAC testing if
they are arrested or otherwise detained on suspicion of a drunk-driving offense” as one of
the “legal tools” states have “to enforce their drunk-driving laws and to secure BAC
evidence without undertaking warrantless nonconsensual blood draws”); Brooks, 838
N.W.2d at 573 (stating, in dictum, “that Brooks has not demonstrated that Minnesota’s
implied consent statute is unconstitutional” without addressing whether a fundamental
right is implicated).
In sum, Everett has not established the existence of a fundamental right warranting
application of the strict-scrutiny standard. Thus, any substantive due-process challenge
must proceed under the rational-basis standard. See In re Individual 35W Bridge
Litigation, 806 N.W.2d at 830. But Everett does not offer any argument under that
standard. Everett therefore has not shown that Minnesota’s test-refusal statute violates
substantive due process.
Everett’s brief also intermittently refers to “the doctrine of unconstitutional
conditions.” But he does not present a clear argument regarding the doctrine’s
application, if any, to this case. In Stevens, we noted that “there is no authority for the
proposition that the unconstitutional-conditions doctrine applies to a constitutional
challenge based on the Fourth Amendment” and that neither the Minnesota Supreme
Court nor the United States Supreme Court has ever held that it does. 850 N.W.2d at
8
724-25. Because Everett does not offer argument or authority to support his assertion
that the test-refusal statute violates the unconstitutional-conditions doctrine, the issue is
waived. See State v. Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006) (“An
assignment of error in a brief based on ‘mere assertion’ and not supported by argument or
authority is waived unless prejudicial error is obvious on mere inspection.”), aff’d, 728
N.W.2d 243 (Minn. 2007).
Lastly, Everett asserts that “Minnesota’s implied consent laws exceeds its
authority under the Tenth Amendment by criminalizes lawful conduct when punishing a
defendant’s withholding of consent.” The Tenth Amendment states: “The powers not
delegated to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.” U.S. Const. amend. X. Everett does
not explain how Minnesota’s test-refusal law violates the Tenth Amendment of the United
States Constitution, and the purported violation is not obvious to this court. This issue is
therefore waived. See Wembley, 712 N.W.2d at 795.
In conclusion, Everett has not met his burden to show, beyond a reasonable doubt,
that his conviction of test refusal is based on an unconstitutional statute. We therefore
affirm his criminal conviction.
Challenge to the District Court’s Jury Instructions
We next consider Everett’s challenge to the district court’s jury instructions. “Jury
instructions, reviewed in their entirety, must fairly and adequately explain the law of the
case. A jury instruction is erroneous if it materially misstates the applicable law.” State
v. Koppi, 798 N.W.2d 358, 362 (Minn. 2011) (citation omitted). “[Appellate courts]
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review a district court’s decision to give a requested jury instruction for an abuse of
discretion.” Id. at 361.
Everett argues that “the district court erred in its refusal jury instruction by
directing a finding of fact on a mixed question of law and fact and its error had a
significant effect on the jury’s verdict.” The state responds that the record on appeal is
inadequate to address Everett’s argument. The record contains a partial transcript that
includes the state’s rebuttal argument at trial and the district court’s instructions regarding
jury deliberation. There is no transcript of the remainder of the trial, specifically, the
witness testimony, the closing arguments, or the district court’s jury instructions
regarding the elements of the charged offenses.
The partial transcript indicates that the district court asked both parties if they
“wish to call the court’s attention to any errors, omissions or corrections in the
instructions.” Everett’s attorney responded: “Nothing from the defense, Your Honor.”
But documents in the record indicate that Everett proposed an alternative instruction. On
this record, we do not know whether the district court expressly ruled on Everett’s
proposed instruction. Thus, we are not sure whether Everett preserved his objection to
the district court’s jury instructions for appeal. See State v. Cross, 577 N.W.2d 721, 726
(Minn. 1998) (“A defendant’s failure to propose specific jury instructions or to object to
instructions before they are given to the jury generally constitutes a waiver of the right to
appeal.”); State v. Tayari-Garrett, 841 N.W.2d 644, 655-56 (Minn. App. 2014) (stating
that an appellate court generally will not consider matters that the district court did not
consider), review denied (Minn. Mar. 26, 2014).
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Because the record does not contain a transcript of all of the instructions that were
read to the jury, we cannot determine if there was an error. Moreover, if there was an
error, Everett would have to show prejudice to obtain a new trial. If Everett objected to
the jury instruction, a new trial would be required “only if it cannot be said beyond a
reasonable doubt that the error had no significant impact on the verdict.” Koppi, 798
N.W.2d at 364 (quotations omitted). If Everett did not object, we would review the jury
instructions for plain error and ask whether the error affected substantial rights in that it
“was prejudicial and affected the outcome of the case.” State v. Griller, 583 N.W.2d 736,
740-41 (Minn. 1998). But because we do not have a complete trial transcript we cannot
determine whether the purported error—if any—affected the outcome of the case. See
Koppi, 798 N.W.2d at 365 (stating that appellate courts “must evaluate the evidence
presented at trial to determine whether the instructional error was harmless beyond a
reasonable doubt”); Griller, 583 N.W.2d at 742 (analyzing trial testimony to determine
whether “any erroneous instruction significantly affected the verdict”).
It is the appellant’s duty to order a transcript “of those parts of the proceedings not
already part of the record which are deemed necessary for inclusion in the record.”
Minn. R. Civ. App. P. 110.02, subd. 1(a). An appellate court cannot presume error in the
absence of an adequate record. See Custom Farm Servs., Inc. v. Collins, 306 Minn. 571,
572, 238 N.W.2d 608, 609 (1976) (declining to consider an allegation of error in the
absence of a transcript). When an appellant fails to provide this court with a transcript
necessary for review of the issues raised on appeal, “the decision below must be
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affirmed.” State v. Heithecker, 395 N.W.2d 382, 383 (Minn. App. 1986). Such is the
case here.
II.
We next address Everett’s appeal of the district court’s order sustaining the
revocation of his driving privileges in the civil implied-consent case. He contends that
“[t]he Minnesota Implied Consent Law violates due process of law by making
constitutional conduct, of declining to consent to testing, unlawful.” He argues that
“Minnesota’s implied consent laws exceeds its authority under the Tenth Amendment by
criminalizes lawful conduct when punishing a defendant’s withholding of consent,” and
that “the DWI-Refusal statute violates [his] fundamental right to be free of unreasonable
searches and seizures.” His briefing on this issue is identical to the briefing in his
criminal appeal. Thus, it focuses on the constitutionality of the criminal test-refusal
statute.
Everett’s argument is entirely unpersuasive because his civil implied-consent case
does not involve a criminal test-refusal charge. The dispositive order in the implied-
consent case is the civil order sustaining the commissioner’s revocation of Everett’s
driving privileges. As to the constitutionality of that order, Everett argues:
The Minnesota’s legislature may make it a condition
of licensure that drivers waive their constitutional right to
privacy with regard to their alcohol concentration while
driving, but the permissible remedy for refusal or
withdrawing that consent is, and always has been, the loss of
that license—not jail. . . .
. . . To decree that it is a crime to refuse testing is quite
a different thing than to provide that one’s license to drive
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will be revoked. The latter is a civil, administrative
compulsion, well within the authority of the legislature,
which has made licensing conditional on the “implied”
“consent” to this type of search. It is reasonable and
constitutionally acceptable for a majority of society to say,
through its representatives, that as a condition of driving
lawfully, a citizen must relinquish his or her privacy to this
extent. It is altogether another, absolutely unconstitutional
thing to say that a breach of the “implied contract” will have
criminal consequences.
(Emphasis added.)
Everett’s brief concludes with a request that this court “reverse the district court’s
decision.” But the only decision before us for review in the civil implied-consent case is
the district court’s decision sustaining the revocation of Everett’s driving privileges under
the implied-consent law, and Everett agrees that the civil revocation consequence is
constitutionally reasonable. His concession is consistent with this court’s recent holding
in Stevens. See Stevens, 850 N.W.2d at 727 (concluding that “the implied-consent statute
. . . satisfies the general reasonableness requirement of the Fourth Amendment”).
In conclusion, Everett has not provided a basis for this court to reverse the district
court’s order sustaining the revocation of his driving privileges in his civil implied-
consent case. We therefore affirm the order.
Affirmed.
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