This opinion will be unpublished and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
A14-2069
State of Minnesota,
Respondent,
vs.
Dean William Crider,
Appellant.
Filed November 2, 2015
Affirmed
Rodenberg, Judge
Todd County District Court
File No. 77-CR-14-410
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Charles G. Rasmussen, Todd County Attorney, Long Prairie, Minnesota; and
Scott A. Hersey, Special Assistant Todd County Attorney, Minnesota County Attorneys
Association, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant argues that he must be permitted to withdraw his guilty plea to felony
test refusal because Minnesota’s criminal test-refusal statute is unconstitutional under
Missouri v. McNeely, 133 S. Ct. 1552 (2013), and federal and state due process
guarantees. We affirm.
FACTS
On April 26, 2014, Long Prairie Police arrested appellant Dean William Crider for
driving under the influence of alcohol. The implied-consent law was invoked and, at the
jail, the officer gave appellant a telephone and contact information for an attorney with
whom appellant said he was familiar. Appellant looked through the telephone directories
provided to him, but never called an attorney. Instead, he eventually stated that “he was
done with his phone time, and done incriminating himself.” The officer then asked
appellant to submit to a breath test, and appellant said “no.” The officer then asked if
appellant would submit to either a urine or blood test. Appellant declined.
Appellant was charged with one count of first-degree driving while impaired
(DWI) in violation of Minn. Stat. § 169A.20, subd. 1(1) (2012), and one count of first-
degree test refusal in violation of Minn. Stat. § 169A.20, subd. 2. Appellant pleaded
guilty to first-degree test refusal in exchange for the state dismissing the DWI charge and
recommending a 51-month prison sentence. Appellant now challenges the
constitutionality of the test-refusal statute for the first time on appeal.
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DECISION
I.
Appellant failed to challenge the constitutionality of the test-refusal statute to the
district court. An appellate court will not consider matters not argued to and considered
by the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). This rule applies
to questions about the constitutionality of criminal statutes. Id.; State v. Moore, 846
N.W.2d 83, 87 (Minn. 2014). Here, appellant pleaded guilty to the charges and never
raised any concerns about the constitutionality of the test-refusal statute. A counseled
guilty plea “operates as a waiver of all nonjurisdictional defects,” including claimed
constitutional violations. State v. Iverson, 664 N.W.2d 346, 350 (Minn. 2003).
Appellant’s constitutional argument should have been evident at the time of his guilty
plea because the United States Supreme Court’s decision in Missouri v. McNeely, 133 S.
Ct. 1552 (2013), predated appellant’s offense and guilty plea. For these reasons,
appellant’s constitutional challenge to Minn. Stat. § 169A.20, subd. 2 (2012) is
procedurally barred.
II.
Even were appellant’s arguments not procedurally barred, they fall squarely within
the holding of the Minnesota Supreme Court in State v. Bernard, 859 N.W.2d 762 (Minn.
2015). Bernard held that Minnesota’s test-refusal statute was constitutional as applied to
a breath-test refusal. Bernard, 859 N.W.2d at 767-68. Appellant nevertheless argues that
the test-refusal statute is unconstitutional, and that we should disregard Bernard and
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“instead should conclude, under McNeely, that a breath test is a constitutionally
unreasonable search.”
Minn. Stat. § 169A.20, subd. 2, criminalizes refusal to submit to alcohol
concentration testing “of the person’s blood, breath, or urine.” The supreme court held in
Bernard that “the test refusal statute is a reasonable means to a permissive object and that
it passes rational basis review.” Bernard, 859 N.W.2d at 774. Bernard held that a breath
test is constitutionally permissible as a search incident to arrest, and a person “does not
have a fundamental right to refuse a constitutional search.” Id. at 772-73.
Appellant refused the same alcohol-concentration test as was at issue in
Bernard—a breath test.1 Cf. State v. Trahan, __ N.W.2d __ (Minn. App. Oct. 13, 2015)
(holding that Minnesota’s test-refusal statute is unconstitutional as applied to a refusal to
submit to a warrantless blood test). Appellant argues that we are free to not follow
Bernard because there is a pending petition for certiorari at the United States Supreme
Court in that case. Appellant’s argument misconstrues our proper role. “This court, as an
error correcting court, is without authority to change the law.” Lake George Park, L.L.C.
v. IBM Mid-America Emps. Fed. Credit Union, 576 N.W.2d 463, 466 (Minn. App. 1998),
review denied (Minn. June 17, 1998). Because the supreme court’s holding in Bernard is
binding on this court, and because appellant refused a breath test, appellant’s argument
lacks merit.
1
After refusing the breath test, the officer asked appellant to submit to a blood or urine
test, and appellant refused. The officer was not required to offer appellant alternative
tests, Minn. Stat. § 169A.51, subd. 3 (2012), and appellant has made no argument in his
brief that the refusal of those tests—and not the breath test—should control the analysis.
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The test-refusal statute is constitutional, and appellant’s conviction for test refusal
is affirmed.
Affirmed.
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