This opinion will be unpublished and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
A16-0610
Keith Charles Lexvold, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed December 5, 2016
Affirmed
Rodenberg, Judge
Goodhue County District Court
File No. 25-CV-15-1855
Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)
Lori Swanson, Attorney General, Frederic J. Argir, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Kirk, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
On appeal from an order sustaining his driver’s-license revocation based on a
failed breath test, appellant argues that (1) his procedural due-process rights were
violated; (2) the field sobriety tests were warrantless searches and therefore illegal;
(3) the breath test was obtained in violation of appellant’s Fourth Amendment rights; and
(4) the test-refusal statute is unconstitutional and the implied-consent advisory therefore
violates his substantive due-process rights and the doctrine of unconstitutional conditions.
We affirm.
FACTS
At 1:23 a.m. on July 26, 2015, a police officer stopped an all-terrain vehicle
(ATV) operated by appellant Keith Charles Lexvold. The officer had witnessed appellant
operating the ATV without activated headlights and within a traffic lane. The ATV
appeared to be travelling at a high rate of speed and did not immediately stop after the
officer activated his emergency lights.
After appellant stopped driving the ATV, the officer observed that appellant had
bloodshot and watery eyes and had an odor of alcohol on his breath. The officer asked
appellant if he had been drinking. Appellant replied that he had consumed ten beers since
11 a.m. the previous day. The officer had appellant perform three field sobriety tests: the
horizontal gaze nystagmus test, the one-leg stand test, and the walk-and-turn test. The
officer witnessed signs of impairment during the three tests. Appellant took a
preliminary breath test (PBT) that indicated an alcohol concentration of 0.115. Appellant
was arrested for suspicion of driving while impaired (DWI) and was transported to a
detention center.
At the detention center, appellant was read an implied-consent advisory and asked
to submit to a breath test. The implied-consent advisory was read from a form that
included the question, “Will you take the Breath test?” Appellant’s response,“Yep,” was
recorded by the officer. Lines are drawn through text on the form relating to a blood or
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urine test. Appellant confirmed that he understood the components of the implied-
consent advisory that (1) Minnesota law required him to take a test to determine if he was
under the influence of alcohol, (2) refusal to take the test would be a crime, (3) he had the
right to consult with an attorney before deciding whether to take the test, and
(4) unreasonable delay or indecision would constitute test refusal. Appellant declined to
speak with an attorney, agreed to take the breath test, and provided an adequate breath
sample.
Analysis of his breath indicated that appellant had an alcohol concentration of
0.12. The officer reported appellant’s test failure to Respondent Minnesota
Commissioner of Public Safety, certifying that probable cause existed to believe
appellant had violated Minnesota’s DWI laws. Appellant’s license was subsequently
revoked. A certified copy of appellant’s driving record contains a line for the July 26,
2015 implied-consent test failure, and the word “conviction” appears under the heading
“Event Type.”
Appellant petitioned the district court for rescission of the license revocation. He
argued that the field sobriety tests and PBT were unlawful searches in violation of the
Fourth Amendment, that he did not validly consent to the warrantless breath test, that he
was unconstitutionally misled by the implied-consent advisory in violation of his due-
process rights, and that the Commissioner’s reporting of a “conviction” on his driving
record violated his due process rights. The district court sustained the revocation of
appellant’s driver’s license. This appeal follows.
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DECISION
I. Appellant lacks standing to make a procedural due-process claim.
Appellant argues that respondent’s act of noting a “conviction” on his driving
record after receiving a police officer’s certification of probable cause unconstitutionally
deprived him of procedural due process.
The United States and Minnesota Constitutions provide that no person shall be
deprived of life, liberty, or property without due process of law. U.S. Const. amend.
XIV, § 1; Minn. Const. art. I, § 7. We review procedural due-process challenges de
novo. Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 413 (Minn. 2007).
“An appellant cannot assert a procedural due-process claim without first
establishing that he has suffered a direct and personal harm resulting from the alleged
denial of his constitutional rights.” Riehm v. Comm’r of Pub. Safety, 745 N.W.2d 869,
877 (Minn. App. 2008) (quotation omitted), review denied (Minn. May 20, 2008).
“Appellant must show that his claimed harm is personal, actual, or imminent; traceable to
respondent’s challenged actions; and likely to be remedied by this court.” Id. at 873.
The notation of “conviction” on appellant’s driving record may be premature or
erroneous, but appellant fails to show any personal, actual, or imminent harm that is
traceable to the notation for which there is a remedy under Minnesota’s implied-consent
process. Appellant lacks standing to make a due process challenge.1
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Even if appellant were able to sufficiently demonstrate harm resulting from the
commissioner’s use of the word “conviction” on his driving record, he has not provided
any authority for his proposed remedy. He argues that this erroneous notation converts
the driver’s-license revocation process into a criminal procedure, with all of its attendant
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II. An arresting officer needs only reasonable suspicion of criminal activity to
conduct field sobriety tests and a PBT.
Appellant argues that the evidence obtained from the field sobriety tests should
have been suppressed because those tests are searches subject to the warrant requirement
of the Fourth Amendment. We disagree.
Appellant’s argument that field sobriety tests are searches that require a warrant is
contrary to existing Minnesota law. A police officer may initiate a limited investigative
seizure without a warrant if the officer has reasonable articulable suspicion of criminal
activity. State v. Klamar, 823 N.W.2d 687, 691 (Minn. App. 2012). The officer may use
several investigative techniques during a Terry-type stop. Id. at 696. If reasonable
suspicion exists, a warrant is not required before administering field sobriety tests. Id.
(holding that an officer’s observation of two indicia of intoxication justified further
intrusions in the form of field sobriety testing). The standard for administering a PBT is
also reasonable, articulable suspicion. State, Dep’t of Pub. Safety v. Juncewski, 308
N.W.2d 316, 321 (Minn. 1981) (stating that an officer has the authority to administer a
preliminary breath test where “specific and articulable facts” form the basis to believe
that a driver is impaired); State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986)
(“An officer need not possess probable cause to believe that a DWI violation has
occurred in order to administer a preliminary breath test.”), review denied (Minn.
May 16, 1986).
rights and remedies including the right to a public jury trial and other criminal due-
process protections. We see no basis in law for this argument, even if appellant had
standing.
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Appellant’s reliance on Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013) and
State v. Brooks, 838 N.W.2d 563 (Minn. 2013), for his argument that law enforcement is
required to obtain a warrant in drunk-driving investigations is misplaced. Neither
McNeely nor Brooks requires more than reasonable, articulable suspicion to permit an
officer to administer field sobriety tests.
The district court correctly declined to suppress the evidence concerning
appellant’s field sobriety tests.
III. The warrantless breath test was constitutional because appellant consented to
the test.
Appellant argues that the district court erred in admitting appellant’s breath-test
results because the results are the product of a warrantless search and because no
exception to the warrant requirement applies. Appellant argues his consent to the test
was not valid as it was “mere acquiescence” to the officer’s reading of the implied-
consent advisory and the threat of a criminal penalty for refusing the test.
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A breath test is a search
subject to the Fourth Amendment. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602,
616-17, 109 S. Ct. 1402, 1412-13 (1989). “A search conducted without a warrant is per
se unreasonable unless an exception applies.” Ellingson v. Comm’r of Pub. Safety, 800
N.W.2d 805, 807 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011).
Consent serves as an exception to the warrant requirement only if the state shows
by a preponderance of the evidence that a defendant’s consent to a search was free and
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voluntary. Brooks, 838 N.W.2d at 568. Voluntariness is a question of fact that this court
reviews under the clearly erroneous standard. State v. Diede, 795 N.W.2d 836, 846
(Minn. 2011). “Findings of fact are clearly erroneous if, on the entire evidence, we are
left with the definite and firm conviction that a mistake occurred.” Id. at 846-47.
“Whether consent was voluntary is determined by examining the totality of the
circumstances, including the nature of the encounter, the kind of person the defendant is,
and what was said and how it was said.” Id. at 846 (quotation omitted). The “nature of
the encounter” includes such factors as how the police came to suspect a defendant of
driving under the influence, the request to take a chemical test, which includes whether
the implied-consent advisory was read, and whether the defendant had the right to consult
with an attorney. Brooks, 383 N.W.2d at 569.
Appellant’s argument that his consent was the product of mere acquiescence to the
threat of criminal penalties included in the implied-consent advisory essentially ignores
the supreme court’s holding in Brooks. Brooks held that a driver’s decision to take a
breath test is not a product of coercion solely because Minnesota has attached a criminal
penalty to test refusal. Id. at 570; see also Poeschel v. Comm’r of Pub. Safety, 871
N.W.2d 39, 46 (Minn. App. 2015) (rejecting argument that appellant’s consent was
involuntary because the implied-consent advisory penalizes test refusals). Instead courts
look to the totality of the circumstances surrounding appellant’s consent to the breath test.
Brooks, 838 N.W.2d at 569.
The district court determined that appellant voluntarily consented to a breath test.
The district court found that “there was nothing in the encounter or nature of [appellant]
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that points to any special circumstances that would render [his] consent involuntary.”
The record includes no evidence that appellant was coerced by officers to participate in
the breath test such that his “will had been overborne and his capacity for self-
determination critically impaired.” See id. at 571 (quotations omitted). Appellant was
not confronted with repeated police questioning nor asked to consent after spending days
in custody. See id. Appellant was given an opportunity to consult with an attorney and
informed through the implied-consent advisory that he had a choice of whether to submit
to testing. See id. at 571-72. Appellant stated that he understood the implied-consent
advisory and would submit to testing. The district court applied the Brooks standard and
determined appellant’s consent to have been voluntary. The record supports that
determination.
The district court did not clearly err in finding that appellant voluntarily consented
to a breath test.
IV. Appellant’s substantive due-process rights were not violated, and there is no
merit to his unconstitutional-conditions argument.
Appellant argues that Minnesota’s test-refusal statute is unconstitutional because it
infringes on his fundamental right to refuse a warrantless search, and therefore the
implied-consent advisory violates his due-process rights by threatening a crime the state
cannot legally pursue. We review the constitutionality of a statute de novo. State v.
Ness, 834 N.W.2d 177, 181 (Minn. 2013). Whether an implied-consent advisory violates
a driver’s due-process rights is a question of law we review de novo. Magnuson v.
Comm’r of Pub. Safety, 703 N.W.2d 557, 561 (Minn. App. 2005).
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We recently examined a due-process challenge to the implied-consent advisory on
the grounds that it threatened criminal penalties for refusal that the state could not legally
impose. Johnson v. Comm’r of Pub. Safety, ___ N.W.2d ___, 2016 WL 6570284 (Minn.
App. Nov. 7, 2016). We held that the implied-consent advisory violated Johnson’s rights
to due process because it instructed him that it was a crime to refuse to take a urine test
when, absent an exception to the warrant requirement, it would have been
unconstitutional to seize his urine without a warrant. Johnson, ___ N.W.2d at ___, WL
6570284 at *12. Because a warrantless search would have been impermissible, the
notification that he could be criminally charged for refusing the test was incorrect. Id. at
___, ___, 2016 WL 6570284 at *10, *12; see also Birchfield v. N. Dakota, 136 S. Ct.
2160, 2186 (2016) (holding that neither implied consent nor the search-incident-to-arrest
exception may justify a criminal penalty for refusing a warrantless blood test); State v.
Thompson, ___ N.W.2d ___, ___, 2016 WL 5930162, at *8 (Minn. Oct. 12, 2016)
(holding that test refusal statute was unconstitutional as applied to a driver prosecuted for
refusing a warrantless urine test); State v. Trahan, ___ N.W.2d ___, ___, 2016 WL
5930153, at *6 (Minn. Oct. 12, 2016) (holding that test refusal statute was
unconstitutional as applied to a driver prosecuted for refusing a warrantless blood test).
Cf. State v. Bernard, 859 N.W.2d 762, 772 (Minn. 2015) (holding that a breath test is a
constitutional search under the search-incident-to-arrest exception and that a driver may
be criminally penalized for test refusal), aff’d sub nom. Birchfield, 136 S. Ct. 2160.
Although we recognized a due process violation in Johnson, appellant in this case was
not asked to submit to a blood or urine test. He was read the implied-consent advisory
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and asked to submit to a breath test, to which he freely consented. Because appellant was
only offered a breath test, Johnson’s reasoning is inapplicable to appellant’s challenge.
The advisory to appellant that it was a crime to refuse breath testing was accurate.
Appellant’s challenge to the breath test on the ground that the test-refusal statute is
unconstitutional fails under Bernard. In Bernard, the Minnesota Supreme Court held that
Minnesota’s test-refusal statute is constitutional as applied to a breath-test refusal. 859
N.W.2d at 767. The Minnesota Supreme Court stated, “having decided that the search of
Bernard’s breath would have been constitutional, we find no fundamental right at issue
here, as Bernard does not have a fundamental right to refuse a constitutional search.” Id.
at 773. The supreme court performed a rational-basis review and determined that
Minnesota’s test-refusal statute “is a reasonable means to a permissive object and that it
passes rational basis review.” 859 N.W.2d at 774. Birchfield, likewise, held that,
pursuant to a lawful DWI arrest, a warrantless breath test is constitutional under the
search-incident-to-arrest exception and the driver has “no right to refuse [the breath
test].” 136 S. Ct. at 2165, 2186.
Appellant’s constitutional challenge to a warrantless breath test and the test-refusal
statute fails under Birchfield and Bernard. Because the test-refusal statute is
constitutional as applied to a breath test, the implied-consent advisory provided to
appellant was accurate and correctly stated that refusal to submit to the breath test is a
crime. The implied-consent advisory did not violate appellant’s rights to due process.
Appellant also argues that the test-refusal statute violates the unconstitutional-
conditions doctrine because it “compels the surrender of the constitutional right to
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withhold consent to a warrantless search as a condition of driving.” The doctrine requires
appellant to establish that the challenged statute authorizes an unconstitutional search.
State v. Bennett, 867 N.W.2d 539, 543 (Minn. App. 2015), review denied (Minn. Oct. 28,
2015), cert. denied (U.S. June 28, 2016). In Birchfield and Bernard, a warrantless breath
test was held to be constitutional under the search-incident-to-arrest exception. 136 S. Ct.
at 2184; 859 N.W.2d at 767. In Bennett, we held that a warrantless breath test is a lawful
search incident to arrest and therefore it is not an unconstitutional search. 867 N.W.2d at
543. In light of these decisions, Minnesota’s test-refusal statute did not authorize an
unconstitutional search of appellant’s breath and the unconstitutional-conditions doctrine
does not apply.
Affirmed.
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