Leslie Jay Boyd, Jr. v. State of Minnesota ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2407
Leslie Jay Boyd, Jr., petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed August 18, 2014
Affirmed
Chutich, Judge
Scott County District Court
File No. 70-CR-05-25211
Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)
Considered and decided by Chutich, Presiding Judge; Johnson, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
In this postconviction appeal, appellant Leslie Jay Boyd Jr. contends that
criminalizing test refusal is unconstitutional under Missouri v. McNeely, 133 S. Ct. 1552(2013), and that the district court therefore erred by denying his postconviction petition.
Because Boyd’s petition is time-barred, we affirm.
FACTS
According to the complaint, on November 24, 2005, Shakopee police observed a
speeding car that turned without signaling. The police attempted to pull the car over, but
the car sped away and drove into a ditch. The driver, later identified as Boyd, ran away
from the scene. When the police officer caught up with Boyd, the officer saw that
Boyd’s eyes were bloodshot and watery, his speech was slurred, and he had poor balance.
Boyd admitted he drank alcohol before driving, but refused to submit to a preliminary
breath test. After arresting him and taking him to the Shakopee Police Department,
officers read Boyd the implied-consent advisory. Boyd spoke with an attorney on the
phone and then told the officers that he refused to submit to a breath test.
The state charged Boyd with felony test refusal, first-degree driving while
impaired (driving under the influence), fleeing a police officer by motor vehicle, driving
after cancellation, and evading a police officer. See Minn. Stat. §§ 169A.20, subds. 1(1),
2, .24, 171.24, subd. 5, 609.487, subds. 3, 6 (2004).
On October 8, 2008, Boyd pleaded guilty to felony test refusal and fleeing a police
officer by motor vehicle. The district court sentenced him to 63 months in prison and
five years of conditional release.
Five years after his guilty plea, Boyd filed a petition for postconviction relief. He
argued that his conviction of test refusal “was based on an unconstitutional statute in light
of McNeely.” The district court denied Boyd’s petition without granting him a hearing,
2
holding that his petition was time-barred and did not meet any exceptions. This appeal
followed.
DECISION
Boyd contends that, because a suspected drunk driver has a right to withhold
consent to a chemical test, the state cannot criminalize test refusal post-McNeely. He also
argues that he had “the right not to submit to testing because submitting to the test may
have incriminated himself.” The state asserts, and we agree, that the two-year statute of
limitations bars Boyd’s postconviction petition.
“We review the denial of a postconviction petition for an abuse of discretion.”
Francis v. State, 829 N.W.2d 415, 419 (Minn. 2013). “In doing so, we review findings of
fact for clear error, and we review questions of law de novo.” Id. We review de novo
whether a statute is unconstitutional. State v. Wenthe, 839 N.W.2d 83, 87 (Minn. 2013).
A party challenging the constitutionality of a statute “bears the very heavy burden of
demonstrating beyond a reasonable doubt that the statute is unconstitutional.” State v.
Johnson, 813 N.W.2d 1, 11 (Minn. 2012) (quotation omitted).
“No petition for postconviction relief may be filed more than two years after” a
judgment of conviction becomes final. Minn. Stat. § 590.01, subd. 4(a) (Supp. 2005). A
district court may consider the postconviction petition if a petitioner “asserts a new
interpretation of federal or state constitutional or statutory law by either the United States
Supreme Court or a Minnesota appellate court and the petitioner establishes that this
interpretation is retroactively applicable to the petitioner’s case” or if “the petition is not
frivolous and is in the interests of justice.” Id., subd. 4(b)(3), (5) (Supp. 2005).
3
Boyd was convicted in 2008 and filed his postconviction petition in 2013, five
years later. Boyd’s petition is therefore untimely, unless one of the delineated exceptions
applies. See Minn. Stat. § 590.01, subd. 4(a)–(b). As discussed below, we conclude that
no exception applies.
Boyd was convicted of felony test refusal, which is defined as “refus[ing] to
submit to a chemical test of the person’s blood, breath, or urine.” Minn. Stat. § 169A.20,
subd. 2. The test-refusal statute criminalizes refusal to submit to testing authorized under
the implied-consent statute, which states that anyone who drives a motor vehicle consents
“to a chemical test of that person’s blood, breath, or urine for the purpose of determining
the presence of alcohol.” Minn. Stat. § 169A.51, subd. 1(a) (2004).
Before McNeely, Minnesota law held that the “rapid, natural dissipation of alcohol
in the blood creates single-factor exigent circumstances that will justify the police taking
a warrantless, nonconsensual blood draw from a defendant.” State v. Shriner, 751
N.W.2d 538, 549–50 (Minn. 2008), abrogated by Missouri v. McNeely, 133 S. Ct. 1552(2013); see State v. Netland, 762 N.W.2d 202, 212 (Minn. 2009), abrogated in part by
McNeely, 133 S. Ct. 1552, as recognized in State v. Brooks, 838 N.W.2d 563, 567 (Minn.
2013), cert. denied, 134 S. Ct. 1799 (2014). But the Supreme Court held in McNeely that
the natural dissipation of alcohol in the bloodstream does not present “a per se exigency
that justifies an exception to the Fourth Amendment’s warrant requirement for
nonconsensual blood testing in all drunk-driving cases.” 133 S. Ct. at 1556.
Contrary to Boyd’s contention, McNeely does not require us to conclude that
Minnesota’s test-refusal statute is unconstitutional. A plurality of the Supreme Court in
4
McNeely described implied-consent laws as part of a state’s “broad range of legal tools to
enforce [its] drunk-driving laws and to secure [blood-alcohol-concentration] evidence
without undertaking warrantless nonconsensual blood draws.” Id. at 1566. In Brooks,
the Minnesota Supreme Court concluded that this description of implied-consent laws as
“legal tools” is inconsistent with the argument that Minnesota’s implied-consent statute is
unconstitutional. 838 N.W.2d at 572. Moreover, the Brooks court held that “a driver’s
decision to agree to take a test is not coerced simply because Minnesota has attached the
penalty of making it a crime to refuse the test.” Id. at 570. Boyd has not met his heavy
burden of showing that McNeely renders the test-refusal statute unconstitutional.
Boyd’s argument that criminalizing test refusal violates his right against self-
incrimination is also unpersuasive. The state does not violate the Fifth Amendment when
it introduces into evidence a driver’s refusal to submit to a blood alcohol test. South
Dakota v. Neville, 459 U.S. 553, 564–66, 103 S. Ct. 916, 922–24 (1983). And in
McDonnell v. Commissioner of Public Safety, the Minnesota Supreme Court held that
Minnesota’s implied-consent law does not coerce a driver into testifying against himself.
473 N.W.2d 848, 855–56 (Minn. 1991); see also Brooks, 838 N.W.2d at 570 (following
McDonnell and Neville).
In sum, because McNeely does not render the criminalization of test refusal
unconstitutional, Boyd’s petition does not meet the exceptions to the two-year time limit
listed in Minnesota Statutes section 590.01, subdivision 4(b), and his petition is therefore
time-barred.
Affirmed.
5