This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Eric Maynard Schwichtenberg,
Filed February 28, 2006
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.
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.
F A C T S
In July 2004, appellant Eric
Maynard Schwichtenberg was arrested for driving under the influence. He was taken to the
D E C I S I O N
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.
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. 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
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
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.”
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.