Amy Lynn-Ishwar Butani v. Commissioner of Public Safety ( 2017 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0547
Amy Lynn-Ishwar Butani, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed January 9, 2017
Reversed and remanded
Stauber, Judge
Dakota County District Court
File No. 19AV-CV-15-1566
Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)
Lori Swanson, Attorney General, Frederic J. Argir, Peter Magnuson, Assistant Attorneys
General, St. Paul, Minnesota (for respondent)
Considered and decided by Worke, Presiding Judge; Stauber, Judge; and Bratvold,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
Appellant challenges the district court’s order sustaining the revocation of her
driving privileges, arguing that (1) evidence from field sobriety and preliminary breath
tests was obtained in violation of the Fourth Amendment; (2) evidence from a urine test
was obtained in violation of the Fourth Amendment; (3) Minnesota’s test-refusal statute
is unconstitutional, as applied, and appellant’s due-process rights were violated when she
was misinformed that refusing to take a urine test is a crime; (4) appellant’s due-process
rights were violated because of an untimely notice of revocation; and (5) the district court
erred by admitting evidence from appellant’s urine test despite a lack of evidentiary
foundation. We reverse and remand for reinstatement of appellant’s driver’s license
because appellant’s due-process rights were violated when she was misinformed that
refusing to take an unconstitutional urine test is a crime.
FACTS
On April 18, 2015, Officer Nicholas Jacobson was on patrol when he saw a
vehicle signal a left turn at an intersection where a left turn was prohibited. The vehicle's
signal was soon turned off, and the vehicle proceeded through the intersection. Officer
Jacobson then saw the vehicle fail to make a complete stop at an intersection. Officer
Jacobson stopped the vehicle and spoke with the driver, appellant Amy Lynn-Ishwar
Butani. Officer Jacobson observed indicia of intoxication. He then had appellant
perform field sobriety tests. Appellant failed those tests. Officer Jacobson administered
a preliminary breath test that indicated a reading above the legal limit, and appellant was
placed under arrest for driving while impaired.
Officer Jacobson did not obtain a warrant to obtain a urine sample, but he read the
implied-consent advisory to appellant. Appellant was given an opportunity to contact an
attorney. Officer Jacobson informed appellant that refusal to take a test is a crime, and
offered her a urine test to which she agreed to submit. Her urine was tested and indicated
an alcohol concentration just above the legal limit.
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Appellant’s license was revoked, and she petitioned for an implied-consent review
hearing. Following a hearing, the district court sustained the revocation, concluding that
there was probable cause to arrest appellant, Minnesota’s test-refusal statute does not
violate due process, no warrant was required, and the imposition of criminal
consequences for test refusal does not unlawfully compel a driver to submit to testing.
This appeal follows.
DECISION
Appellant raises a number of Fourth Amendment and due-process claims.
Appellant’s due-process claim that she was misled by an inaccurate advisory resolves this
case. We therefore address that claim first.
Respondent Commissioner of Public Safety argues that we should instead analyze
this case under the Fourth Amendment. Generally, when both Fourth Amendment and
substantive due-process claims are raised, analysis under the Fourth Amendment is
proper if the Fourth Amendment provides protections against the claimed government
action. State v. Mellett, 642 N.W.2d 779, 783 (Minn. App. 2002), review denied (Minn.
July 16, 2002). However, a due-process analysis is proper here because (1) appellant’s
argument that she was misled by an inaccurate advisory likely implicates procedural
rather than substantive due process; (2) appellant does not seek to expand substantive due
process; (3) there is precedent in Minnesota for addressing such claims; and (4) the
Fourth Amendment does not provide explicit protection against the challenged
government behavior. Johnson v. Comm’r of Pub. Safety, ___ N.W.2d ___, ___, No.
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A16-0502, slip op. at 6-11 (Minn. App. Nov. 7, 2016), pet. for review filed (Minn. Dec.
7, 2016).
“Whether an implied-consent advisory violates a driver’s due-process rights is a
question of law, which this court reviews de novo.” Magnuson v. Comm’r of Pub. Safety,
703 N.W.2d 557, 561 (Minn. App. 2005). Here, appellant’s due-process rights were
violated when she was informed via the implied-consent advisory that refusing to take a
urine test is a crime.
Without first obtaining a warrant, Officer Jacobson informed appellant that refusal
to take a test is a crime, and Officer Jacobson offered appellant a urine test. The
collection and testing of urine is a search. State v. Brooks, 838 N.W.2d 563, 568 (Minn.
2013). The United States and Minnesota constitutions prohibit unreasonable searches of
a person. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A warrantless search is
presumed unreasonable unless it falls under an exception to the warrant requirement.
State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).
Respondent offers two warrant exceptions, consent and search-incident-to-arrest.
This court held in State v. Thompson, issued after appellant’s arrest, that a warrantless
urine test could not “be justified under the search-incident-to-arrest exception.” 873
N.W.2d 873, 878 (Minn. App. 2015), aff’d, 886 N.W.2d 224 (Minn. 2016). The
Minnesota Supreme Court affirmed this court’s decision, on Fourth Amendment grounds.
Thompson, 886 N.W.2d at 233. Thus, the only valid warrant exception offered to justify
the search of appellant’s urine is consent.
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Despite appellant’s ultimate submission to urine testing, consent does not validate
Officer Jacobson’s misstatement that test refusal is a crime. When Officer Jacobson read
the implied-consent advisory, he had not obtained a warrant, and there was no applicable
warrant exception. As such, appellant’s refusal was not a crime when the advisory was
read because appellant could have lawfully refused the unconstitutional search; the
implied-consent advisory was therefore inaccurate. Id. at 234.
Given the inaccuracy of the implied-consent advisory in this case, appellant relies
on McDonnell v. Comm’r of Pub. Safety to argue that her due-process rights were
violated. 473 N.W.2d 848 (Minn. 1991). In McDonnell, the supreme court concluded
that an implied-consent advisory violated due process because it misinformed a person
that she could be charged with the crime of test refusal when such a charge was
impossible. Id. at 853-55.
Relying on McDonnell, this court recently held that when the state misinforms a
driver regarding the penalties for refusal of an unconstitutional urine test, the driver’s
due-process rights are violated, and rescission is an appropriate remedy. Johnson, slip
op. at 25. Respondent argues that the advisory was accurate when given because
Thompson had not yet been decided. However, the timing of the Thompson decision does
not affect the advisory’s inaccuracy. Id. at 19-22. Further, appellant’s argument that the
good-faith exception is applicable is unpersuasive; the good-faith exception is a Fourth
Amendment doctrine, not a due-process issue. See State v. Lindquist, 869 N.W.2d 863,
868-70 (Minn. 2015) (outlining the evolution of the good-faith exception as a limitation
on the Fourth Amendment exclusionary rule).
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Unlike Johnson, in this case appellant arguably consented to the search of her
urine after the advisory was read. See Johnson, slip op. at 3. However, the focus of a
due-process analysis under McDonnell is whether an advisory is misleading, not whether
a driver ultimately consents to or refuses testing. See Olinger v. Comm’r of Pub. Safety,
478 N.W.2d 806, 808 (Minn. App. 1991) (noting an “improper threat constitutes the
violation, and no showing of actual prejudice is required”); Steinolfson v. Comm’r of Pub.
Safety, 478 N.W.2d 808, 809 (Minn. App. 1991) (noting that drivers were entitled to
relief under McDonnell “without regard to their decision regarding testing”). Rescission
of revocation is therefore the proper remedy in this case. Olinger, 478 N.W.2d at 808;
Steinolfson, 478 N.W.2d at 809.
In sum, because appellant was misinformed that refusal to submit to an
unconstitutional urine test is a crime, appellant’s due-process rights were violated, and
the revocation of appellant’s license must be rescinded.
Reversed and remanded.
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