(concurring specially)-
Accuse, step forward and confess — or you will stand back convicted.
I concur in the result, but I am troubled by Minnesota’s test-refusal statute. Although not raised here, the statute making test refusal a stand-alone crime appears to impermissibly shift the burden of proof to the defendant. See Patterson v. New York, 432 U.S. 197, 206, 97 S.Ct. 2319, 2325, 53 L.Ed.2d 281 (1977) (due process does not permit the state to place on a defendant the burden of disproving an element of the crime with which she is charged);' see also State v. Auchampach, 540 N.W.2d 808, 816 (Minn.1995) (stating that due process requires the state prove beyond a reasonable doubt the existence of every element of the crime charged).
On the civil side, the law requiring you to give a teipt or face possible sanctions has been upheld several times as a legitimate use of police power, with the trade-off being the right to drive on Minnesota highways. See, e.g., Butler v. Commissioner of Pub. Safety, 348 N.W.2d 827, 828 (Minn.App.1984) (holding that the Fifth Amendment does not attach to implied-consent proceeding because it is civil in nature and not criminal). But today, a test refusal, whether you have ever had a drop of alcohol or not in your life, is a stand-alone crime, a gross misdemeanor. See Minn. Stat. § 169A.26 (2004) (stating that a person’s refusal to submit to chemical testing is a third-degree DWI offense, punishable as a gross misdemeanor).
When the state has probable cause to suspect you of DWI, and the officer asks you to take a test to determine intoxication, the burden shifts to you to prove by taking the test that you were not intoxicated. The penalty for not taking up this burden used to be serious, but still civil, so it passed constitutional muster. Now the *120penalty for simply standing mute is a crime in and of itself.
There is no parallel that I can find anywhere in American jurisprudence — where a citizen, standing mute before an accusation and not doing anything affirmative to evade arrest or obstruct an officer in the enforcement of the law, is guilty of the crime “standing mute.” The closest we come is Minn. R.Crim. Pro. 9.02, subd. 2. There, upon a proper motion and a proper showing, the state can get an order from the court allowing evidence to be extracted from a defendant. And that order is valid whether the defendant cooperates or has to be restrained while the sample is taken. But under no circumstances is refusal to cooperate a separate crime. I suspect it could not pass constitutional muster if that were the case. I can hardly believe the state has not thought of asking for criminal sanctions for a defendant’s violation of Rule 9- — if they thought they could get away with it.
With a return to the former law where test refusal was a civil matter, the state still has the carrot of serious civil sanctions. Returning test refusal to the civil side would still allow the state to enforce penalties and deny/limit driving privileges to the motorist, but it would no longer have a Fifth Amendment Bill of Rights odious stink about it.
The usual justification for “implied consent” laws is that all motorists using Minnesota highways “impliedly consent” to submit to tests for intoxication while driving, upon a proper request (the “proper” is later ironed out in court if the motorist requests). However, no state law can trump a citizen’s right to the protections of the United States Constitution. It is boilerplate law that a state constitution can give more rights to its own residents than the United States Constitution, states simply cannot give less. PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980). For instance, no state law can trump a citizens Sixth Amendment right to their trial by jury with the aid of competent counsel, either hired or appointed. No state law can trump the Fourth Amendment’s protection against “unreasonable searches and seizure.” So how do we justify “test refusal as a crime” apart from the underlying merits of the case. It is not that the state cannot, upon a proper showing, forcibly extract evidentiary specimens from a defendant, see Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966). But under no scenario, is the motorist’s refusal to cooperate a separate crime! The citizen always has the right to say in that situation “Officer, do whatever you are going to do and you have to justify it later and the burden of proof for the justification is on you. I am not going to volunteer anything because if I do I might waive any constitutional objection that I have.” In that scenario, the state proceeds at their peril and has the burden of proof to show in a court of law that the involuntary extraction was reasonable and constitutional. That scenario leaves the burden of proof where it always belongs, on the state. That is a far cry from “test refusal” where the state claims the right to say “We do not have to do anything, you have to volunteer a test, or we will charge you with a crime of ‘not volunteering.’ ”
No citizen in this country parks their constitutional rights, when they take their car out of park.