This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1279
State of Minnesota,
Respondent,
vs.
Bryan John Rusco,
Appellant.
Filed July 13, 2015
Affirmed
Peterson, Judge
St. Louis County District Court
File No. 69VI-CR-13-470
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota; and
Leah A. Stauber, Assistant County Attorney, Virginia, Minnesota (for respondent)
Gordon C. Pineo, Deal & Pineo, P.A., Virginia, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
PETERSON, Judge
Appellant challenges his conviction of third-degree driving while impaired
(refusal to submit to chemical test), in violation of Minn. Stat. §§ 169A.20, subd. 2, .26,
subd. 1(b) (2012), arguing that Minnesota’s test-refusal statute is unconstitutional. We
affirm.
FACTS
When appellant Bryan John Rusco was stopped for speeding, a strong smell of
alcohol came from his vehicle, and his eyes were red and glassy. After he performed
field sobriety tests, and took a preliminary breath test (PBT), Rusco was arrested for
driving while impaired. At the police station, a police officer read the Minnesota
implied-consent advisory to Rusco. The advisory informed Rusco that Minnesota law
required him to take a test to determine whether he was under the influence of alcohol,
that refusing to take a test was a crime, and that he had the right to consult with an
attorney before making his decision about testing. Rusco stated that he understood the
implied-consent advisory and that he did not wish to consult with an attorney.
The officer asked Rusco whether he would take a breath test, and Rusco responded
that he had already taken a breath test and that he would not take another test. The
officer showed Rusco the breath-test machine in the police station and explained that
Rusco was being asked to take a different test than the roadside PBT. Rusco continued to
refuse to take a breath test.
Rusco was charged with third-degree driving while impaired (refusal to submit to
chemical test). He moved for dismissal of the charge, arguing that the criminalization of
a refusal to submit to a warrantless search is unconstitutional. When the district court
denied the motion, Rusco waived his right to a jury trial and agreed to submit the issue of
2
his guilt to the district court based on stipulated facts. The district court found Rusco
guilty of the charged offense, and this appeal follows.
DECISION
Under Minn. Stat. § 169A.20, subd. 2, “[i]t is a crime for any person to refuse to
submit to a chemical test of the person’s blood, breath, or urine.” Rusco argues that the
criminalization of a refusal to submit to a warrantless chemical test is unconstitutional.
The constitutionality of a statute is a question of law that is reviewed de novo. State v.
Ness, 834 N.W.2d 177, 181 (Minn. 2013). A court’s power to declare a statute
unconstitutional is exercised “with extreme caution and only when absolutely necessary,”
and a statute will be upheld “unless the challenging party demonstrates that it is
unconstitutional beyond a reasonable doubt.” Id. at 182 (quotations omitted).
The United States and Minnesota Constitutions guarantee the right to be secure
against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. 1,
§ 10. Taking a blood, breath, or urine sample is an intrusion on the expectation of
privacy that constitutes a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-
17, 109 S. Ct. 1402, 1412-13 (1989). Generally, a search is unreasonable unless
conducted pursuant to a warrant issued upon probable cause. Id. at 619, 109 S. Ct. at
1414. But there are established exceptions to the warrant requirement, one of which is a
search incident to a lawful arrest. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710,
1716 (2009).
The Minnesota Supreme Court recently rejected a driver’s argument that
Minnesota’s test-refusal statute, Minn. Stat. § 169A.20, subd. 2, violated the driver’s
3
right to substantive due process because it criminalized the exercise of his Fourth
Amendment right to refuse to submit to a warrantless search. State v. Bernard, 859
N.W.2d 762 (Minn. 2015), petition for cert. filed, No. 14-1470 (U.S. June 15, 2015). In
Bernard, the supreme court held that a warrantless breath test of a driver arrested on
suspicion of driving while impaired “would have been constitutional under the search-
incident-to-arrest exception to the Fourth Amendment’s warrant requirement.” Id. at 772.
The supreme court then found that when the test-refusal statute was applied to the
arrested driver, no fundamental right was at issue because the driver did not have a
fundamental right to refuse a constitutional search. Id. at 773. Because the test-refusal
statute did not implicate a fundamental right, the supreme court used rational-basis
review to assess the statute’s constitutionality. Id. The supreme court concluded that
“criminalizing the refusal to submit to a breath test relates to the State’s ability to
prosecute drunk drivers and keep Minnesota roads safe” and, therefore, held “that the test
refusal statute is a reasonable means to a permissive object and that it passes rational
basis review.” Id. at 774.
Like the driver in Bernard, 859 N.W. 2d at 764-65, Rusco was lawfully arrested
for driving while impaired, was read the implied-consent advisory, was offered a breath
test, and refused to take the test. Under the analysis in Bernard, a warrantless breath test
would have been constitutional as a search incident to arrest, Rusco did not have a
fundamental right to refuse the constitutional search, and the criminalization of Rusco’s
4
refusal to take the test did not violate his right to due process and was not
unconstitutional.
Affirmed.
5
State of Minnesota v. Bryan John Rusco
Combined Opinion