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27-CV-15-18777
Filed in Fourth J udicial District Court
7/8/2016 1:44:36 PM
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. Ruff’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. Ruff’s 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related license revocation must be rescinded.
FACTS
On October 30, 2015, Officer Cazin pulled Mr. Ruff over for speeding.’ 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 PBT. 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 refusal 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. Ruff 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.
ISSUE
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?
ARGUMENT
Minnesota’s DWI and Implied Consent laws violate Mr. Ruff’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":
27-CV-15-18777
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Hennepin County, MN
q) that Minnesota law requires the person to take a test:
@ to determine if the person is under 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;
Q) 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 I, 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 U.S. 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," Jd. (quoting Grutter v. Bollinger, 539 U.S. 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 U.S. 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 refuses a warrantless blood test to be
free from unreasonable searches, a fundamental right. Jdat 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." Jd. 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." Jd. The court concluded
that Minnesota's test refusal law fails strict scrutiny when applied to charge an individual
with a crime for refusing a warrantless blood test. Jd. 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 refusal statute violates due process in the
context of a warrantless blood test. Jd. 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. Jd. 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." [d. The test refusal statute, therefore, fails strict scrutiny and violates
due process with respect to both warrantless blood and warrantless urine tests. /d.at 879.
27-CV-15-18777
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Hennepin County, MN
Furthermore, the United States Supreme Court all but affirmed the ruling in Trahan in its
recent decision in Birchfield v. North Dakota. 579 U.S. (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. Id.
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. Jd. at 37-38. Thus, an individual cannot
be charged with the crime of refusal if that individual refused a warrantless blood test. Jd.
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 warrant. 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. Jd. 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, after
being arrested for driving while intoxicated, "that refusal to submit to testing might expose
her to criminal penalties." Jd. at 851. Moser ultimately submitted to a breath test and her
driver's license was revoked. Jd. 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.” Jd. 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." Jd, at 854; see also Raley v. Ohio, 360 U.S. 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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Hennepin County, MN
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." Jd. 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. Jd. 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]." Jd.
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." Olinger, 478 N.W.2d at 808. The driver in
Steinolfson, as in McDonnell and Olinger, was not actually subject to criminal penalties for
refusing a chemical test under the then-existing refusal law. Jd. at 809. However, after 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 driver's license was
revoked as a result. Jd. 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. Jd. 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.” Jd.
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 Thompson 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 Refusal 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.
Ruff’s 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,
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,
KANS LAW |, LLC
owes. 11h]. Nicholas R. Leverson
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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