STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0076
State of Minnesota,
Respondent,
vs.
Ryan Mark Thompson,
Appellant.
Filed December 28, 2015
Reversed
Smith, Judge
Steele County District Court
File No. 74-CR-12-777
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Daniel A. McIntosh, Steele County Attorney, Julia A. Forbes, Assistant County Attorney,
Owatonna, Minnesota (for respondent)
Charles A. Ramsay, Daniel J. Koewler, Suzula R. Bidon, Ramsay Law Firm, P.L.L.C.,
Roseville, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Kirk, Judge; and Smith,
Judge.
SYLLABUS
1. Charging a driver with violating Minn. Stat. § 169A.20, subd. 2 (2010) for
refusing to submit to a urine test implicates a fundamental right because a warrantless
search of the driver’s urine would not have been constitutional under an exception to the
warrant requirement.
2. When applied to the refusal of a warrantless urine test, Minn. Stat.
§ 169A.20, subd. 2 violates a driver’s right to substantive due process under the United
States and Minnesota Constitutions because it is not narrowly tailored to serve a
compelling government interest.
OPINION
SMITH, Judge
Appellant challenges his conviction of second-degree test refusal following his
refusal to submit to a blood or urine test. We conclude that conducting a warrantless
blood or urine test would not have been constitutional under an exception to the warrant
requirement, charging appellant with criminal test refusal implicates his fundamental
right to be free from unconstitutional searches, and the test-refusal statute as applied to
warrantless blood and urine tests is not narrowly tailored to serve a compelling
government interest. We therefore reverse appellant’s conviction because the test-refusal
statute violates appellant’s right to substantive due process under the United States and
Minnesota Constitutions.
FACTS
On April 13, 2012, an Owatonna police officer was sitting outside a bar at closing
time when he saw a vehicle drive forward, jump a curb, and then stop quickly. After the
vehicle backed up and exited the bar parking lot, it “cut the corner short” and drove over
the center line. The officer conducted a traffic stop and identified the driver as appellant
Ryan Thompson. The officer “detected an overwhelming odor of an alcoholic beverage
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coming from the vehicle” and noticed that Thompson “had watery and glassy eyes.”
Thompson stated that he had consumed one beer.
The officer then asked Thompson to submit to field sobriety tests, which
Thompson failed. Thompson also failed a preliminary breath test. The officer arrested
Thompson and drove him to the Steele County Detention Center, where he read
Thompson the implied-consent advisory. Thompson left a message for an attorney and
“stated that he was done” using the telephone. The officer then completed reading the
implied-consent advisory, and Thompson refused to take a blood or urine test.
Thompson was charged with second-degree test refusal, third-degree driving while
under the influence, obstructing legal process, and driving over the centerline. At an
omnibus hearing, Thompson challenged the constitutionality of the test-refusal statute,
arguing that it violated his due-process rights and the unconstitutional-conditions
doctrine. The district court concluded that the test-refusal statute is constitutional. To
challenge the district court’s ruling on appeal, Thompson submitted the second-degree
test-refusal charge to the district court under Minn. R. Crim. P. 26.01, subd. 4. The other
charges were dismissed. The district court found Thompson guilty of second-degree test
refusal.
ISSUE
Does the test-refusal statute violate appellant’s right to substantive due process
under the United States and Minnesota Constitutions by criminalizing his refusal to
submit to a warrantless blood or urine test?
3
ANALYSIS
Minnesota’s test-refusal statute makes it a crime to refuse to submit to a chemical
test of blood, breath, or urine in certain circumstances. Minn. Stat. § 169A.20, subd. 2.
These circumstances include when an officer has probable cause to believe that a person
was driving, operating, or physically controlling a motor vehicle while under the
influence of alcohol and has read the person the implied-consent advisory. Minn. Stat.
§ 169A.51, subds. 1-2 (2010).
Thompson challenges the constitutionality of the test-refusal statute as applied to
him.1 “The constitutionality of a statute is a question of law that we review de novo.”
State v. Ness, 834 N.W.2d 177, 181 (Minn. 2013) (quotation omitted). To successfully
challenge a statute’s constitutionality, “the challenger bears the very heavy burden of
demonstrating beyond a reasonable doubt that the statute is unconstitutional.” State v.
Merrill, 450 N.W.2d 318, 321 (Minn. 1990).
A. The Fourth Amendment
Because Thompson’s due-process argument is based on a Fourth Amendment
violation, we must first analyze whether a warrantless search would have been
constitutional under the Fourth Amendment. See Bernard, 859 N.W.2d at 766. The
Fourth Amendment protects against unreasonable searches and seizures. U.S. Const.
1
Thompson argues in his reply brief that the test-refusal statute is unconstitutional on its
face, but his principal brief argues that the statute is unconstitutional as applied to him.
Generally, issues not raised or argued in an appellant’s principal brief cannot be revived
in a reply brief. McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review
denied (Minn. Sept. 28, 1990). As in Bernard, we construe Thompson’s argument as an
as-applied challenge to the test-refusal statute. See State v. Bernard, 859 N.W.2d 762,
765 n.2 (Minn. 2015).
4
amend. IV; see Minn. Const. art. I, § 10. The collection and testing of both blood and
urine is a search. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616-17, 109 S. Ct.
1402, 1412-13 (1989). “A warrantless search is generally unreasonable, unless it falls
into one of the recognized exceptions to the warrant requirement.” Bernard, 859 N.W.2d
at 766. “The state bears the burden of establishing an exception to the warrant
requirement.” State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).
Citing Bernard, the state argues that the search-incident-to-arrest exception applies
here. The search-incident-to-arrest exception allows police “to conduct a full search of
the person who has been lawfully arrested” and to search “the area within the immediate
control of the arrestee.” Bernard, 859 N.W.2d at 767-69 (quotation omitted). The
exception traditionally seeks to protect arresting officers and to preserve any evidence
that an arrestee might conceal or destroy. Arizona v. Gant, 556 U.S. 332, 338-39, 129 S.
Ct. 1710, 1716 (2009). But the supreme court has determined that these concerns apply
only to a warrantless search of the area around the arrestee, not to a search of the
arrestee’s body. Bernard, 859 N.W.2d at 768-69. In Bernard, the supreme court held
that a warrantless breath test was “constitutional under the search-incident-to-arrest
exception to the Fourth Amendment’s warrant requirement.” Id. at 772. The supreme
court declined to address whether a warrantless blood or urine test would also be
constitutional under this exception. Id. at 768 n.6.
Thompson argues that the search-incident-to-arrest exception cannot apply here
because any search would have occurred well after his arrest at the traffic stop. But the
timing is no different than in Bernard, where the driver was arrested, taken to a police
5
station, and read the implied-consent advisory before placing one phone call and refusing
the breath test. See id. at 764-65. The timing of any potential search did not affect the
supreme court’s determination that the search-incident-to-arrest exception applied. See
id. at 767. Similarly, the timing of any potential test here does not preclude the
application of the search-incident-to-arrest exception. See State v. Riley, 303 Minn. 251,
254, 226 N.W.2d 907, 909-10 (1975) (explaining that there is no difference “between
searches of a defendant immediately incident in time to the custodial arrest and searches
made of a defendant later during his custody”).
After the parties submitted their briefs, we released an opinion analyzing whether
the search-incident-to-arrest exception applies to warrantless blood tests. In State v.
Trahan, a driver was offered a blood or urine test, consented to a urine test, could not
produce a sample, and then refused a blood test. 870 N.W.2d 396, 399 (Minn. App.
2015), review granted (Minn. Nov. 25, 2015). The driver pleaded guilty to first-degree
test refusal regarding the blood test. Id. at 399-400. We concluded that a warrantless
blood test could not be justified under the search-incident-to-arrest exception because
“[a] blood draw is undeniably intrusive” and “[u]nlike breath, blood does not naturally
and regularly exit the body.” Id. at 401.
Thompson was offered both a blood test and a urine test and refused both tests.
Because Trahan determined that a warrantless blood test would not have been
constitutional under the search-incident-to-arrest exception, we must only determine the
constitutionality of a warrantless urine test. See id. at 402 n.3 (rejecting consideration of
this issue because the driver’s guilty plea was based on his blood test refusal only).
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We conclude that, as with a warrantless blood test, a warrantless urine test cannot
be justified under the search-incident-to-arrest exception. “There are few activities in our
society more personal or private than the passing of urine.” Skinner, 489 U.S. at 617, 109
S. Ct. at 1413 (quotation omitted). Because a driver must produce a urine sample in front
of an officer, a urine test is unquestionably more intrusive than a breath test. See
Bernard, 859 N.W.2d at 768 n.6 (explaining that a breath test is less invasive than a
blood or urine test). A urine test “intrudes upon expectations of privacy that society has
long recognized as reasonable.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413.
At oral argument, the state cited three cases discussed in Bernard to support its
argument that a warrantless urine test would be constitutional under the search-incident-
to-arrest exception. In State v. Emerson, medical professionals took X-rays and
photographs of an arrestee and performed a medical examination. 266 Minn. 217, 218-
19, 123 N.W.2d 382, 384 (1963). The supreme court determined that these actions did
not violate the arrestee’s due-process rights. Id. at 221, 123 N.W.2d at 385. In Maryland
v. King, the United States Supreme Court upheld a warrantless buccal swab of an
arrestee’s cheek for DNA by jail officials, comparing it to fingerprinting and
photographing an arrestee. 133 S. Ct. 1958, 1965, 1980 (2013). These cases are
distinguishable by the much more invasive nature of a urine test. See Skinner, 489 U.S.
at 617, 109 S. Ct. at 1413 (explaining that the passing of urine is generally private and
that “its performance in public is generally prohibited by law as well as social custom”
(quotation omitted)).
7
The state also cited State v. Riley, in which the supreme court determined that the
search-incident-to-arrest exception justified a warrantless visual inspection of an
arrestee’s penis in a prison cell. 303 Minn. 251, 253-55, 226 N.W.2d 907, 909-10
(1975). But Riley is also distinguishable. In Riley, the officer conducted a brief visual
inspection after the victim told police that “her assailant had unusual markings on the left
side of his penis.” Id. at 253, 266 N.W.2d at 908-09. In contrast to the brief nature of
this inspection, producing a urine sample can take a long time due to the anxiety and
stress of the situation and a person can remain exposed to the officer for a considerable
length of time. See State, Dep’t of Highways v. Lauseng, 289 Minn. 344, 345 n.1, 183
N.W.2d 926, 926-27 n.1 (1971) (stating that an arrestee may be unable to produce urine
due to “the emotional disturbance created by arrest or accident” (quotation omitted));
State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010) (commenting that an arrestee
was unable to produce a urine sample after several glasses of water and three
opportunities to do so in more than one hour), review denied (Minn. Mar. 15, 2011).
Moreover, the visual inspection in Riley was performed for the limited purpose of
identifying whether the suspect had the “unusual markings” identified by the victim. See
303 Minn. at 253, 266 N.W.2d at 908-09. The supreme court explained that there was
both “overwhelming independent justification” for the search and “ample probable
cause” for the arrest. Id. at 255, 266 N.W.2d at 910. Unlike the identification rationale
in Riley, a urine sample is used to collect evidence against the arrestee. See Minn. Stat.
§ 169A.45, subd. 1 (2010) (stating that the results of a blood, breath, or urine test may be
admitted in a prosecution for driving while impaired). In addition, a urine test “can
8
reveal a host of private medical facts,” including whether someone is “epileptic,
pregnant, or diabetic.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413. Although officers
do not analyze an arrestee’s urine to learn sensitive medical information, we cannot
ignore the potentially broad scope of a urine test. See Bernard, 859 N.W.2d at 771 n.8
(stating that a breath test reveals only “the level of alcohol in the arrestee’s
bloodstream”).
We acknowledge that a urine test is less intrusive than a blood draw, which
requires inserting a needle into the arrestee’s skin. See Trahan, 870 N.W.2d at 401. But
a urine test is far more intrusive than a breath test and other searches that have been
upheld under the search-incident-to-arrest exception. See Bernard, 859 N.W.2d at 772
(breath); State v. Bonner, 275 Minn. 280, 287, 146 N.W.2d 770, 775 (1966) (photographs
and fingerprints); Emerson, 266 Minn. at 221, 123 N.W.2d at 385 (photographs, X-rays,
and medical examination); see also King, 133 S. Ct. at 1980 (buccal swab of cheek for
identification under reasonableness-in-the-circumstances standard). In addition, our
legislature treats both blood and urine tests differently than breath tests. See Minn. Stat.
§ 169A.51, subd. 3 (2010) (requiring an officer to offer an alternative test before a driver
can be charged with refusing a blood or urine test but not a breath test). Because a
warrantless search of Thompson’s urine would invade one of the most private of human
activities, see Skinner, 489 U.S. at 617, 109 S. Ct. at 1413, it would not have been
constitutional under the search-incident-to-arrest exception to the warrant requirement,
see Trahan, 870 N.W.2d at 402.
9
B. Substantive Due Process
Having concluded that no exception to the warrant requirement would have
justified a warrantless search of Thompson’s blood or urine, we next consider
Thompson’s substantive due-process argument. See Trahan, 870 N.W.2d at 403. The
Due Process Clauses of the United States and Minnesota Constitutions prohibit arbitrary
and wrongful government actions, “regardless of the fairness of the procedures used to
implement them.” Bernard, 859 N.W.2d at 773 (quotation omitted); see U.S. Const.
amend. XIV, § 1; Minn. Const. art. I, § 7. If the challenged statute implicates a
fundamental right, it is subject to strict-scrutiny review. See In re Welfare of Child of
R.D.L., 853 N.W.2d 127, 133 (Minn. 2014) (applying strict scrutiny because the statute
implicated a fundamental right, the right to parent). But if the statute does not implicate a
fundamental right, it is subject to rational-basis review. Bernard, 859 N.W.2d at 773.
“Every citizen has a fundamental right to be free from unreasonable searches.”
Trahan, 870 N.W.2d at 403. In Trahan, we determined that the driver’s fundamental
right to be free from unreasonable searches was implicated because a warrantless blood
test would have been unconstitutional. Id. at 404. As in Trahan, because a warrantless
search of Thompson’s blood or urine would have been unconstitutional, Thompson’s
fundamental right to be free from unreasonable searches is implicated. See id.
We therefore apply strict-scrutiny review to assess the constitutionality of the test-
refusal statute. See R.D.L., 853 N.W.2d at 133; Trahan, 870 N.W.2d at 404. “Once a
statute is subject to strict scrutiny, it is not entitled to the usual presumption of validity.”
10
R.D.L., 853 N.W.2d at 133 (quotation omitted). The state must show that the statute is
“narrowly tailored to serve a compelling government interest.” Id.
As noted in Bernard and Trahan, the state has a compelling interest in keeping
impaired drivers off its roads. See Bernard, 859 N.W.2d at 773; Trahan, 870 N.W.2d at
404. But in Trahan, we determined that criminalizing the refusal of a warrantless blood
test was not narrowly tailored because the state had “other viable options to address
drunk driving,” including (1) offering a breath test and charging a driver with refusing
that test; (2) prosecuting the driver without measuring the alcohol concentration; and
(3) securing a search warrant. 870 N.W.2d at 404; see Missouri v. McNeely, 133 S. Ct.
1552, 1562 (2013) (suggesting that, today, search warrants are often easy to obtain via
telephone or electronic communication). Because these alternatives are similarly
available in the context of a warrantless urine test, we conclude that the test-refusal
statute is not narrowly tailored to serve the state’s compelling interest in keeping its roads
safe. See Trahan, 870 N.W.2d at 404. The test-refusal statute therefore fails strict
scrutiny as applied to Thompson, and Thompson’s right to substantive due process under
the United States and Minnesota Constitutions was violated. See id.
The state suggests that we should nevertheless apply the good-faith exception to
the exclusionary rule to affirm Thompson’s conviction. The supreme court recently
adopted the good-faith exception in the narrow situation where “law enforcement acts in
objectively reasonable reliance on binding appellate precedent.” State v. Lindquist, 869
N.W.2d 863, 876 (Minn. 2015). In Trahan, we declined to apply the good-faith
exception to affirm the driver’s conviction for refusing a blood test, in part because the
11
exception applies only to Fourth Amendment violations and no unconstitutional search
actually occurred. See 870 N.W.2d at 405; see also Lindquist, 869 N.W.2d at 876.
Accordingly, we also decline to apply the good-faith exception to affirm Thompson’s
conviction for refusing blood and urine tests.
Finally, because we reverse Thompson’s conviction on due-process grounds, we
need not address Thompson’s other arguments regarding the constitutionality of the test-
refusal statute.
DECISION
The test-refusal statute violates appellant’s right to substantive due process under
the United States and Minnesota Constitutions by criminalizing his refusal to submit to a
warrantless blood or urine test. We therefore reverse appellant’s conviction.
Reversed.
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State of Minnesota v. Ryan Mark Thompson
Combined Opinion