State of Minnesota v. Joshua David Gehloff ( 2016 )

This opinion will be unpublished and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
A16-0976
State of Minnesota,
Appellant,
vs.
Joshua David Gehloff,
Respondent.
Filed November 28, 2016
Affirmed
Halbrooks, Judge
Winona County District Court
File No. 85-CR-15-2902
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Karin L. Sonneman, Winona County Attorney, George R. Kennedy, Assistant County
Attorney, Winona, Minnesota (for appellant)
Mark D. Nyvold, Fridley, Minnesota (for respondent)
Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Johnson,
Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
In this prosecution appeal, appellant state challenges the district court’s order to
suppress respondent’s urine test results and dismiss one count of driving while impaired
(DWI), arguing that the district court erred by suppressing the test results on the basis of a
due-process violation. We affirm.
FACTS
On November 17, 2015, a Winona County sheriff’s deputy and St. Charles police
officer stopped respondent Joshua David Gehloff in response to a report of a possible
domestic incident. As the deputy approached Gehloff’s vehicle, he observed that the
vehicle was warm to touch, suggesting that Gehloff had recently driven, and noticed that
Gehloff smelled of alcohol. Gehloff had watery, bloodshot eyes and slurred speech.
Gehloff informed the officers that he had not been drinking. The deputy conducted field
sobriety tests in which Gehloff demonstrated signs of impairment. Gehloff submitted a
preliminary breath test that indicated an alcohol concentration of 0.20. The deputy then
arrested Gehloff for DWI.
The deputy transported Gehloff to the police department and read him the implied-
consent advisory. The advisory stated that “[r]efusal to take a test is a crime.” Gehloff
said that he understood the advisory and declined to speak with an attorney. The deputy
then requested that Gehloff submit to a urine test. After expressing confusion and initially
refusing to undergo the test, Gehloff agreed to provide a urine sample. Gehloff’s urine
sample registered an alcohol concentration of 0.16.
The state charged Gehloff with (1) third-degree gross misdemeanor DWI, operating
a vehicle under the influence of alcohol and (2) third-degree gross misdemeanor DWI with
an alcohol concentration of 0.08 within two hours of driving. Minn. Stat. § 169A.20, subd.
1(1), (5) (2014). Gehloff moved the district court to suppress the urine test results, arguing
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that he did not consent to the test and that the reading of the implied-consent advisory
violated his due-process rights. The district court determined that Gehloff consented to the
urine test but suppressed the test results because the advisory, as it was read to Gehloff,
was an inaccurate statement of Minnesota’s test-refusal statute and violated his due-process
rights. The district court dismissed the second count of DWI for lack of probable cause.
This appeal follows.
DECISION
The state argues that the district court erred by suppressing Gehloff’s urine test
results on the basis that the implied-consent advisory violated his due-process rights.
“When reviewing a district court’s pretrial order on a motion to suppress evidence, the
district court’s factual findings are reviewed under a clearly erroneous standard.” State v.
Eichers, 853 N.W.2d 114, 118 (Minn. 2014), cert. denied, 135 S. Ct. 1557 (2015). But we
review de novo the district court’s legal determinations, including whether an implied-
consent advisory violates a driver’s due-process rights. Id.; Magnuson v. Comm’r of Pub.
Safety, 703 N.W.2d 557, 561 (Minn. App. 2005).
We must first determine if an error in the district court’s order would have a critical
impact on the state’s ability to prosecute this case. See State v. Webber, 262 N.W.2d 157,
159 (Minn. 1977) (holding that a state may only appeal, and this court will only reverse, a
district court’s pretrial order if the state demonstrates that the district court clearly erred in
its judgment and the error will have critical impact on the outcome). It is clear that
suppression of Gehloff’s urine test results and dismissal of his second DWI charge will
have a critical impact by significantly reducing the state’s likelihood of a successful
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prosecution. See State v. McLeod, 705 N.W.2d 776, 784 (Minn. 2005) (describing the
circumstances in which critical impact may occur). Because critical impact is not at issue,
we move next to consider whether the district court erroneously applied its due-process
analysis to suppress the test results.
Minnesota’s test-refusal statute makes it a crime for a person to refuse to submit to
a chemical test of blood, breath, or urine administered to detect the person’s alcohol content
under certain conditions. Minn. Stat. § 169A.20, subd. 2 (2014). These conditions include
when a police officer has probable cause to arrest the person for DWI and the officer reads
the implied-consent advisory to the person. Minn. Stat. §§ 169A.20, subd. 2, .51, subds.
1-2 (2014). In the advisory, the officer must inform the person that “refusal to take a test
is a crime.” Minn. Stat. § 169A.51, subd. 2(a)(2).
The Due Process Clause prohibits the state from depriving a person of life, liberty,
or property, without due process of law, and also protects the person against government
infringement of certain fundamental rights. U.S. Const. amend. XIV, § 1; Minn. Const.
art. I, § 7; Chavez v. Martinez, 538 U.S. 760, 775, 123 S. Ct. 1994, 2005 (2003). One such
fundamental right is to be free from unreasonable searches and seizures. U.S. Const.
amend. IV; Minn. Const. art. 1, § 10; California v. Carney, 471 U.S. 386, 390, 105 S. Ct.
2066, 2069 (1985). On December 28, 2015, this court decided that a warrantless urine test
cannot be justified under the search-incident-to-arrest exception to the Fourth
Amendment’s warrant requirement. State v. Thompson, 873 N.W.2d 873, 879 (Minn. App.
2015), aff’d, ___ N.W.2d ___ (Minn. Oct. 12, 2016). Because no exception to the warrant
requirement could justify the urine test, this court concluded that the test-refusal statute
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violated the driver’s due-process rights by criminalizing the driver’s refusal to submit to a
warrantless and unreasonable test. Id. at 879-80.
Applying this court’s decision in Thompson, the district court determined that
Gehloff’s due-process rights were violated because there was no exception, other than
Gehloff’s consent, that would justify the warrantless urine test. The district court reasoned
that regardless of whether Gehloff consented to the test, because the implied-consent
advisory inaccurately stated that refusal to take a urine test is a crime, the deputy had
threatened Gehloff with a criminal charge that the state was not constitutionally authorized
to impose. See McDonnell v. Comm’r v. Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991).
While this case’s appeal was pending, the Minnesota Supreme Court affirmed this court’s
decision in Thompson. State v. Thompson, ___ N.W.2d ___, ___, 2016 WL 5930162, at
*8 (Minn. Oct. 12, 2016). After concluding that a warrantless urine test would have
violated the Fourth Amendment, the supreme court held that the driver could not be
prosecuted under the test-refusal statute for refusing to submit to an unconstitutional urine
test; therefore, the test-refusal statute was unconstitutional as applied. Id.The district court relied on McDonnell in concluding that Gehloff’s due-process
rights were violated. In McDonnell, a driver was arrested for DWI and was read an
implied-consent advisory, which stated that she may be prosecuted for refusing to submit
to a breath test. 473 N.W.2d at 851. But under the applicable law at the time, the driver
could not have been prosecuted for test refusal because her license had not been previously
revoked. Id. The Minnesota Supreme Court rescinded her license revocation because the
advisory was inaccurate and unconstitutional as it applied to her. Id. at 854-55. The
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supreme court reasoned that “due process does not permit those who are perceived to speak
for the state to mislead individuals as to either their legal obligations or the penalties they
might face should they fail to satisfy those obligations.” Id. at 854.
This court recently addressed whether the McDonnell analysis applies in a license-
revocation proceeding in which the driver refused to submit to a warrantless urine test.
Johnson v. Comm’r of Pub. Safety, ___ N.W.2d ___, 2016 WL 6570284 (Minn. App. Nov.
7, 2016). We concluded that because the search of the driver’s urine would have violated
the Fourth Amendment, the test-refusal charge was unconstitutional under Thompson. Id.
at *10. We also held that the implied-consent advisory violated the driver’s due-process
rights because the advisory threatened a criminal test-refusal charge that would have been
unconstitutional. Id. at *12.
The state asserts that this case is distinguishable from McDonnell, arguing that
because this court did not decide Thompson until December 28, 2015, the advisory as it
was read to Gehloff on November 17, 2015 contained a correct and accurate statement of
the applicable test-refusal statute. But as articulated in Johnson, the state’s argument
regarding the temporal relationship between the challenged advisory and this court’s
Thompson decision is insufficient to persuade us that Gehloff is not entitled to due-process
under McDonnell. See id. at *11. And despite the state’s assertions to the contrary, the
district court properly applied a due-process analysis, rather than a Fourth Amendment
analysis, because Gehloff challenged the accuracy of the implied-consent advisory. See
id. at *6. Because the advisory threatened Gehloff with criminal penalties that the state
was not authorized to impose, Gehloff’s due-process rights were violated. We therefore
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conclude that the district court did not err in suppressing Gehloff’s urine test results. See
State v. Nelson, 479 N.W.2d 436, 436 (Minn. App. 1992) (applying the McDonnell due-
process rationale to affirm a district court’s suppression-of-alcohol test results).
Affirmed.
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