Motion-Secondary: STEVEN CARL RUFF vs Commissioner of Public Safety

On November 02, 2015 a Motion-Secondary was filed involving a dispute between Ruff, Steven Carl, and Commissioner Of Public Safety, for Implied Consent in the District Court of Hennepin County.

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27-CV-15-18777
27'CV'15'18777
Filed in
in Fourth
Fourth Judicial
Judicial District Court
7/8/2016 1:44:36 PM
Hennepin
Hennepin County, MN

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT

Steven Carl Ruff, Case Type: Civil
Court File No.: 27-CV-15-18777
Petitioner, Hon. Daniel C. Moreno

vs.
MEMORANDUM OF LAW IN
SUPPORT OF MOTION TO
Commissioner of Public Safety SUPPRESS AND RESCIND

Respondent.

TO: THE HONORABLE DANIEL C. MORENO, JUDGE OF THE HENNEPIN COUNTY
DISTRICT COURT; HENNEPIN COUNTY COURT ADMINISTRATOR; AND
ASSISTANT ATTORNEY GENERAL LINDSAY LAVOIE, ATTORNEY FOR THE
RESPONDENT.

INTRODUCTION

This matter is before the Court on Petitioner’s (Mr. Ruﬂ’s) Motion to Suppress and

Rescind. The Implied Consent Advisory that was read to Mr. Ruff is a misstatement of the law

and is thus inaccurate and misleading and a violation of Mr. Ruffs Constitutional right to

substantive due process. As such, the results of the breath test must be suppressed the alcohol

related license revocation must be rescinded.

m
011 October 30, 2015, Ofﬁcer Cazin pulled Mr. Ruff over for speeding.1 Upon making

contact with Mr. Ruff, Ofﬁcer Cazin believed that Mr. Ruff may be under the inﬂuence of
alcohol. Ofﬁcer Cazin asked Mr. Ruff to perform some ﬁeld sobriety testing. Mr. Ruff

‘
All facts are based on the stipulations between Petitioner and Respondent on June 14, 2016.
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performed the HGN test, the One Leg Stand test, Walk and Turn, and a PET. Based on the

results of the tests, Ofﬁcer Cazin placed Mr. Ruff under arrest for suspicion of DWI.

Once Ofﬁcer Cazin and Mr. Ruff arrived at the New Hope Police Department, Ofﬁcer

Cazin read the Implied Consent Advisory to Mr. Ruff. As part of that advisory, Mr. Ruff was

told that Minnesota law required him to take a test and that reﬁlsal to take a test was a crime. At

the time that this was read to Mr. Ruff he was not made aware of the type of test he would be

asked to submit to.

Mr. Ruff requested time to speak with an attorney, which he was allowed to do. His

attorney time began at 12:37 AM. Mr. Ruﬂ' was able to contact someone, and that phone call

ended at 1:00 AM. At the time of this conversation, Mr. Ruff was not aware of what type of test
he would be asked to take. Upon completion of the phone call, Ofﬁcer Cazin asked Mr. Ruff if

he would take a breath test, which Mr. Ruff agreed to take.

ESE
I. Was Mr. Ruff’s right to substantive due process under the United States and Minnesota

Constitutions violated by virtue of the Implied Consent Advisory being misleading and

an inaccurate recitation of the law?

I. Minnesota’s DWI and Implied Consent laws violate Mr. Ruft’s Constitutional right
to substantive due process as the State is not permitted to criminalize an
individual’s refusal to consent to a warrantless bodily search via a blood or urine,
and the Implied Consent Advisory is misleading.

The Minnesota Implied Consent Advisory informs a driver, "at the time a test

is required":
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(1) that Minnesota law requires the person to take a test:
(i) to determine if the person isunder the inﬂuence of
alcohol, controlled substances, or hazardous
substances;
(ii) to determine if the presence of a controlled
substance listed in Schedule I or II or metabolite,
other than marijuana or tetrahydrocannabinols; and
(iii) if the motor vehicle was a commercial motor
vehicle, to determine the presence of alcohol;
(2) that refusal to take a test is a crime;
(3) if the peace ofﬁcer has probable cause to believe the
person has violated the criminal vehicular homicide and
injury laws, that a test will be taken with or without the
person's consent; and
(4) that the person has the right to consult with an attorney, but
that this right is limited to the extent that it cannot
unreasonably delay administration of the test.

Minn. Stat. § 169A.51, subd. 2 (emphasis added). In this case, the Defendant was read an

advisory consistent with Minn. Stat. § 169A.51, subd. 2, and was speciﬁcally informed that

refusal to take a test is a crime.

The Due Process Clause prohibits the State from depriving any individual of life, liberty,

or property without due process of law. United States Constitution, Amendment XIV;

Minnesota Constitution, Article 1, Section 7. Where a law implicates a fundamental right, that

law is subject to strict scrutiny. State v. Thiel, 846 N.W.2d 605, 613 (Minn. App. 2014). The

State may not infringe upon a fundamental right "unless the infringement is narrowly tailored to

serve a compelling state interest," because these "rights are deeply rooted in this Nation's history

and tradition and implicit in the concept of ordered liberty." Chavez v. Martinez, 538 US. 760,

775 (2003) (internal quotations omitted).

"When a statute is subject to strict scrutiny, it is not entitled to any presumption of

validity... Rather, the state must meet a heavy burden of showing that the statute is narrowly

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tailored to serve a compelling government interest." State v. Trahan, 807 N.W.2d at 404

(Minn. Ct. App. 2015). To meet the requirement of narrow tailoring, the challenged "statute

can be neither overinclusive nor underinclusive; rather, it must be 'precisely tailored to serve

the compelling state interest.“ In re Welfare of Child of R.D.L., 853 N.W.2d 127, 135 (Minn.

2014). While the requirement of narrow tailoring "'does not require exhaustion of every

conceivable... alternative,‘ nor does it require a 'dramatic sacriﬁce' of the compelling interest

at stake," Id. (quoting Grutter v. Bollinger, 539 US. 306, 339-40 (2003)), the availability of

alternative methods of protecting the State's interest is highly relevant to the question of whether
a law is narrowly tailored. See, e.g., State v. Crawley, 819 N.W.2d 94, 126 (Minn. 2012) (with

respect to a law that implicates fundamental First Amendment rights, explaining that "the

existence of less discriminatory alternatives undercuts signiﬁcantly the government's defense

of the statute" (internal quotation omitted». The right to be free from unreasonable searches

and seizures, guaranteed by the Fourth Amendment, is one fundamental right protected by

strict scrutiny. Trahan, 807 N.W.2d at 403 (citing New York v. Class, 415 US. 106, 123

(1986)).

Any search conducted by law enforcement must comply with the Fourth

Amendment, because the Fourth Amendment protects an individual's right to be free

from unreasonable searches and seizures. This right is fundamental and requires a strict

scrutiny analysis of any law that implicates the right. In Trahan, the Minnesota Court of

Appeals explained that, because a warrantless search of a person's blood is unconstitutional, the

test refusal statute implicates the right of a person who reﬁJses a warrantless blood test to be

free from unreasonable searches, a fundamental right. Idat 404. As such, the test refusal
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statute in the context of a blood test is subject to strict scrutiny. The Court of Appeals found

that the State does have a substantial and compelling "interest in highway safety that

justiﬁes efforts to keep impaired drivers off the road." Id. However, as the court noted, "to

survive strict scrutiny, the test-refusal statute—to the extent it criminalizes the refusal to

submit to a warrantless blood test—must also be narrowly tailored." Id. The court concluded

that Minnesota's test refusal law fails stn'ct scrutiny when applied to charge an individual

with a crime for refusing a warrantless blood test. Id. This is so because "[t]he state has

other viable options to address drunk driving," including prosecuting a driver without

measuring the alcohol concentration or amount of controlled substances in their blood, and

obtaining a warrant. Id. Therefore, Minnesota's test reﬁJsal statute violates due process in the

context of a warrantless blood test. Id. at 405.

Similarly, the test refusal statute also violates due process in the context of a warrantless

urine test, as decided by the Court of Appeals in Thompson, 873 N.W.2d 873. The court noted

that, because a warrantless urine test is unconstitutional, the test refusal statute implicates a

person's fundamental right to be free from unreasonable searches and seizures. Id. at 878. The

test refusal statute is subjected to strict scrutiny, and the court again recognized that "the state

has a compelling interest in keeping impaired drivers off its road," but found that the alternatives

for serving this interest identiﬁed in Trahan "are similarly available in the context of a

warrantless urine test." Id. The test refusal statute, therefore, fails strict scrutiny and violates

due process with respect to both wanantless blood and warrantless urine tests. Id. at 879.
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Furthermore, the United States Supreme Coun all but afﬁrmed the ruling in Trahan in its

recent decision in Birchﬁeld v. North Dakota. 579 US. _ (2016). In Birchﬁeld, the Court

reviewed three DWI cases to determine the constitutionality of North Dakota and Minnesota’s

Implied Consent Laws with regard to the Fourth Amendment: (1) whether an individual can face

criminal penalties for refusing a warrantless blood test; (2) whether an individual can face

criminal penalties for refusing a warrantless breath test; and (3) whether an individual’s consent

to a blood test was coerced because the blood test was consented to in absence of a warrant. 1d.

at 1-2. Although the Birchﬁeld Court ruled that a warrant is not required for a breath test, the

Court also held that a warrant is required for a blood test. Id. at 37-3 8. Thus, an individual cannot

be charged with the crime of reﬁmal if that individual refused a warrantless blood test. Id.
The holding in Birchﬁeld is an absolute indictment on the accuracy and validity of the

Implied Consent Advisory. This is because, together with the holdings in Thompson and Trahan,

the state cannot criminalize the refusal of a warrantless blood or urine test. In total, an individual

cannot be charged with the crime of refusing two out of the three chemical tests available to the

state without a waxrant. Thus, in the present case, when Mr. Ruff was told that it is a crime to

refuse the test, the advisory was not accurate since Mr. Ruff was not made aware of the type of

chemical test that would be offered to him.

Prior to making his decision as to whether to submit to a chemical test, Mr. Ruff was

incorrectly advised as to his obligation to submit to testing and the consequences for failing to

do so, which violated his right to due process. This factual scenario is analogous to a case

that was afﬁrmed in the Minnesota Supreme Court in McDonnell v. Commissioner of Public
Safety. 473 N.W.2d 848 (Minn. 1991). In McDonnell, appellant Moser argued that an

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incorrect Implied Consent Advisory violated her right to due process. Id. at 853. That case

involved an earlier version of the test refusal law, which made it a crime to refuse a chemical test

within ﬁve years of a prior driver's license revocation, Minn. Stat. § 169.121, subd. 1a (1990).

Id at 850. Moser did not have a prior driver's license revocation but was informed, aﬁer

being arrested for driving while intoxicated, "that refusal to submit to testing might expose

her to criminal penalties." Id. at 851. Moser ultimately submitted to a breath test and her

driver's license was revoked. Id. The court emphasized its "concern that law enforcement

ofﬁcials not mislead individuals with respect to their obligation to undergo blood alcohol

content testing," and noted "this court has previously taken notice of whether individuals were

actively misled by police regarding their statutory obligation to undergo testing." Id. at 853-

54 (citing State v. Lauzon, 224 N.W.2d 156 (Minn. 1974); State v. Held, 246 N.W.2d 863

(Minn.1976); Gunderson v. Comm ’r Pub. Safety, 351 N.W.2d 6 (Minn. 1984); State v. Slowinski,

450 N.W.2d 107 (Minn.1990); State v. Miller, 316 N.W.2d 23 (Minn. 1982); State v. Biron, 123

N.W.2d 392 (Minn. 1963)).

The United States Supreme Court addressed these same concerns and "recognized 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; see also Raley v. Ohio, 360 US. 423 (1959) (ﬁnding a

due process violation to prosecute individuals for refusing to testify before a legislative

commission after being incorrectly informed by commission members that they could refuse to

testify under the protection of the Fifth Amendment).
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The court in McDonnell pointed out that "the choice between submitting to and refusing a

test 'may be a meaningful one to an individual driver.“ McDonnell, 473 N.W.2d at 854

(quoting State v. Prideaux, 247 N.W.2d 385, 390 (Minn. 1976)). Importantly, "[a]lthough the

state is not required to provide an opportunity to refuse... it has done so." Id. at 854-55 (internal

citations omitted). Thus, an incorrect Implied Consent Advisory prejudices a driver if the driver

may have refused to submit to testing had they not felt certain that criminal penalties would

result. Id. at 855. The court ultimately held that, "[b]ecause they permitted police to threaten

criminal charges the state was not authorized to impose, thereby violating the constitutional

guarantee of due process, Minn. Stat. § 169.123, subd. 2(b)(2) (1990) and that portion of the

Implied Consent Advisory based on it, are unconstitutional as applied to [Moser]." Id.

Following the Minnesota Supreme Court's decision in McDonnell, the Court of Appeals
found similar due process violations in Olinger v. Commissioner of Public Safety, 478 N.W.2d

806 (Minn. App. 1991), and Steinolfson v. Commissioner of Public Safety, 478 N.W.2d 808

(Minn. App. 1991). In Olinger, the court clariﬁed that McDonnell does not require a showing of
prejudice as a result of the inaccurate advisory, but only that "the driver was misinformed as to

the consequences of the testing decision." 01inger, 478 N.W.2d at 808. The driver in

Steinolfs‘on, as in McDonnell and 01inger, was not actually subject to criminal penalties for

refusing a chemical test under the then-existing refusal law. Id. at 809. However, aﬁer being

incorrectly informed that he could be charged with a crime for refusing a test, unlike in

McDonnell and Olinger the driver chose not to submit to a test and his drivex’s license was

revoked as a result. Id. at 808-809. The Court of Appeals rejected the Commissioner’s

argument that McDonnell applies only to cases in which an incorrect advisory was read and the

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driver ultimately submitted to a chemical test. Id.at 809. The court noted that "[t]he focus of

the supreme court's concern was the inaccuracy of the advisory," which "gives misleading and

inaccurate information to every ﬁrst-time offender, and the driver's subsequent decision

regarding testing does not diminish the violation.” Id.

In the present case, when Ofﬁcer Cazin read the Implied Consent Advisory to Mr. Ruff

and explained that refusal to submit to the test would be an additional crime, his Constitutional

right to substantive due process was violated. This is because the recent decisions in Birchﬁeld,

Trahan, and Mompson have altered the accuracy and validity of the Implied Consent Advisory

as read to Mr. Ruff. At the time Mr. Ruff was told that refusal to take a test was a crime, he was

not made aware of the type of chemical test that would be offered. While Mr. Ruff was speaking

with an attorney, he was still not made aware of the type of chemical test that he would be

offered. Had Mr. Ruff been offered a blood or urine test without the ofﬁcer ﬁrst obtaining a

warrant, the state could not charge him with DWI Reﬁlsal in the event that he refused such a test.

Thus, the Implied Consent Advisory is a misstatement of the law as it stands because it is

inaccurate and misleading.

CONCLUSION

Mr. Ruff was threatened with criminal charges lest he consent to take a breath test. The

statute that Mr. Ruff was threatened to be charged under is unconstitutional, as it violates Mr.

RufPs right to Due Process under both the United States and Minnesota Constitutions. The

Implied Consent Advisory that was read to Mr. Ruff was incorrect, misleading and coercive, as

the Courts in Birchﬁeld, Thompson, and Trahan ruled that it is not a crime to refuse a warrantless

urine or blood test. At the time the Implied Consent Advisory was read to Mr. Ruff, it was not

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certain as to what test would be offered. Thus, his Constitutional right to substantive due process

was violated when he was told that refusal to submit to the test would be an additional crime.

The test result, therefore, must be suppressed, and Mr. Ruff’s license revocation rescinded.

Respectfully submitted,

KANSL W I ,LLC

Dated: E}
2
i“ 'U'
Nicholas R. Leversor?’
Attorney No. 396578
Attorney for Defendant
Kans Law Firm
3800 American Boulevard West
Suite 997
Bloomington, MN 55431
Telephone: (952) 835—6314

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Motion-Secondary: STEVEN CARL RUFF vs Commissioner of Public Safety

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