This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Eric Maynard Schwichtenberg,




Filed ­­­February 28, 2006


Dietzen, Judge


Blue Earth County District Court

File No. CR-04-2346


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Ross E. Arneson, Blue Earth County Attorney, Patrick R. McDermott, T. Keith Russell, Assistants County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent)


Samuel A. McCloud, Carson J. Heefner, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)


            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N




Appellant challenges his conviction of refusal to submit to testing under Minn. Stat. § 169A.20, subd. 2, arguing that the statute is unconstitutional because it criminally penalizes appellant for exercising his constitutional right to withhold consent to a search, i.e., a breath test, when law enforcement has no warrant to take the test.  Because we conclude that the statute is constitutional, and the lack of appellant’s verbal consent to the taking of the breathe test did not violate his Fourth Amendment rights, we affirm.


In July 2004, appellant Eric Maynard Schwichtenberg was arrested for driving under the influence.  He was taken to the Blue Earth County Law Enforcement Center where he was read the implied consent advisory.  He declined the opportunity to speak to an attorney, initially agreed to take a breath test, and then refused consent.  Appellant was charged with second-degree refusal to submit to testing, in violation of Minn. Stat. § 169A.20, subd. 2 (2004), and third-degree driving while impaired, in violation of Minn. Stat. § 169A.26, subd. 1 (2004).  After a contested omnibus hearing in October 2004, the district court denied appellant’s motion to suppress all evidence based on an illegal search or seizure, or alternatively, because section 169A.20, subdivision 2, is unconstitutional.  Following a stipulated-facts trial pursuant to Minn. R. Civ. P. 26.01, subd. 3, and State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), appellant was found guilty of second-degree refusal to submit to testing.  The district court sentenced appellant to 180 days in jail, stayed execution of 150 days, and imposed 30 days in jail.  This appeal follows.   


On appeal, appellant contends that section 169A.20, subdivision 2, is unconstitutional.  The constitutionality of a statute is a question of law, which we review de novo.  Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).  A statute is presumed constitutional, and “will not be declared unconstitutional unless the party challenging it demonstrates beyond a reasonable doubt that the statute violates some constitutional provision.”  Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn. 1979).

The Fourth Amendment to the United States Constitution, and article I of the Minnesota Constitution provide protection against unlawful searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Warrantless searches are presumed to be unreasonable.  Coolidge v. New Hampshire, 403 U.S. 443, 454-56, 91 S. Ct. 2022, 2032 (1971); Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 883 (1964); United States v. Jeffers, 342 U.S. 48, 51, 72 S. Ct. 93, 95 (1951).  Consent is an exception to the warrant requirement under the Fourth Amendment.  Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973).

Minn. Stat. § 169A.20, subd. 2, provides that “[i]t is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine under section 169A.52 (test refusal or failure; revocation of license).”  Appellant does not challenge the constitutionality of the statute as a violation of his right against self-incrimination or right to privacy, but argues that the statute unconstitutionally penalizes him for exercising his constitutional right to withhold verbal consent to a warrantless search. 

In Schmerber v. California, the United States Supreme Court held that the withdrawal of blood from a suspected drunk driver without a warrant, if conducted in a reasonable manner after being arrested, was not inadmissible on the grounds that it violated his Fifth Amendment right against self-incrimination and Fourth Amendment right against unreasonable searches and seizures.  384 U.S. 757, 771-72, 86 S. Ct. 1826, 1836 (1966).  The Court determined that once the privilege against self-incrimination was found not to bar compelled intrusions into the body to determine alcoholic content, the Fourth Amendment’s proper function is to determine whether the intrusion was justified, or made in an improper manner.  Id. at 768, 86 S. Ct. at 1834.

In State v. Mellett, this court held that Minn. Stat. § 169A.20, subd. 2, did not violate a defendant’s right against self-incrimination, right to privacy, or Fourth Amendment rights.  642 N.W.2d 779, 784-85 (Minn. App. 2002), review denied (Minn. Jul. 16, 2002).  The Mellett court observed that the legislature has a “compelling state interest in protecting state residents from drunk drivers, and an important part of the implementation of that interest is the testing of those whom officers have probable cause to believe have been drinking and are driving while impaired . . . .”  Id. at 784.

Appellant nonetheless argues that Mellett did not address the precise issue he raises, i.e., that it is a violation of the Fourth Amendment to criminalize the refusal to submit to a chemical test, because it did not analyze consent as an exception to the Fourth Amendment prohibition against warrantless searches.  We disagree.  In Mellett, this court observed, “[a]t oral argument, appellant asserted that Schmerber supports her claim that criminalizing the refusal to submit to chemical testing violates the Fourth Amendment.”  Id. at 785.  Rejecting appellant’s argument that Schmerber provided the only constitutional remedy to enforce the driving-while-intoxicated statutes, the Mellett court noted that the legislature was free to enact other procedures.  The Mellett court concluded, “we defer to the legislature’s judgment and hold that the refusal statute does not violate appellant’s Fourth Amendment rights.”  Id. 

We conclude that the holding of Mellett is dispositive of appellant’s contentions.  The state has a compelling interest in protecting its residents from drivers impaired by alcohol, and the statutory framework of implied consent set forth in Minn. Stat. § 169A.20, subd. 2, is a reasonable means to accomplish that objective.  Consequently, the statute is constitutional, and the lack of appellant’s verbal consent to the taking of the breath test did not violate his Fourth Amendment rights.