C2-01-2220

State of Minnesota,

Appellant,

vs.

David Brian Wohlenhaus,

Respondent.

Filed July 30, 2002

Reversed and Remanded

Kalitowski, Judge

Hennepin County District Court

File No. 01029666

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Jay M. Heffern, Minneapolis City Attorney, Timothy A. Richards, Assistant City Attorney, 300 Accenture Tower, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)

D. Gregory Mulligan, 3209 West 76th Street, Suite 200, Edina, MN 55435 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Anderson, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant State of Minnesota contends the district court erred in granting respondent David Wohlenhaus’ motion to dismiss the charge of refusing to submit to chemical testing in violation of Minn. Stat. § 169A.20, subd. 2 (2000), on the grounds that the statute is unconstitutional. Appellant argues that the district court erred because the statute at issue: (1) does not violate respondent’s right to privacy, or right against self-incrimination; (2) is supported by a rational basis test; (3) does not violate respondent’s right to be free of unreasonable searches and seizures; (4) is not void for vagueness; and (5) is not overbroad on its face. We reverse and remand.

D E C I S I O N

“Evaluating a statute’s constitutionality is a question of law.” Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999) (citation omitted). Accordingly, this court “is not bound by the lower court’s conclusions.” In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993) (quoting Sherek v. Indep. Sch. Dist. No. 699, Gilbert, 449 N.W.2d 434, 436 (Minn. 1990)). We will uphold a statute unless the challenging party demonstrates a constitutional infirmity beyond a reasonable doubt. Id.; see In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (noting appellate court must exercise power to declare statute unconstitutional with extreme caution).

Minn. Stat. § 169A.20, subd. 2 , states:

It 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 argues that the statute does not violate respondent’s right to privacy implicit in the United States and Minnesota Constitutions, contending it is a limited intrusion and not comparable to other protected life decisions. We agree. This issue has already been decided in State v. Mellett, 642 N.W.2d 779 (Minn. App. 2002). In Mellet this court concluded that because the legislature has a compelling state interest in protecting state residents from drunk driving and the act of testing is an important part of the “implementation of that interest,” this limited intrusion is justified. Id. at 784 (citations omitted).

In addition, the United States Supreme Court, the Minnesota Supreme Court, and this court have already addressed the issue of whether a statute that requires testing for blood alcohol violates a person’s right against self-incrimination. The United States Supreme Court held there is no Fifth Amendment right to refuse testing. South Dakota v. Neville, 459 U.S. 553, 564, 103 S. Ct. 916, 923 (1983). And the Minnesota Supreme Court concluded that the refusal statute does not violate a defendant’s right against self-incrimination. McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 856 (Minn. 1991); see Mellett, 642 N.W.2d 784.

II.

Appellant argues that the district court erred in finding that the statute deprives respondent of his right to substantive due process. We agree.

The following test should be used when a statute is challenged on substantive due process grounds:

When a statute does not involve a suspect classification and does not infringe on a fundamental right, it need only be rationally related to a legitimate governmental purpose in order to withstand either an equal protection or a substantive due process challenge.

Hawes v. 1997 Jeep Wrangler, 602 N.W.2d 874, 880 (Minn. App. 1999) (citation omitted).

The Mellett court concluded that protecting residents from drunk drivers is a compelling state interest. 642 N.W.2d at 784. Further, reducing drunk driving has been recognized as an important state interest and stopping drunk driving is a legitimate governmental purpose:

It has long been settled that traffic safety is an important state interest. Craig v. Boren, 429 U.S. 190, 199-200, 97 S. Ct. 451, 458, 50 L.Ed.2d 397 (1976); see also Szczech v. Comm’r of Pub. Safety, 343 N.W.2d 305, 306 (Minn. App. 1984) (noting “the trail of broken lives, bodies, and property left by drunk drivers * * * on our highways.”).

Brooks v. Comm’r of Pub. Safety, 584 N.W.2d 15, 18 (Minn. App. 1998), review denied (Minn. Nov. 24, 1998).

The refusal statute allows a suspect to avoid the testing, but with the price of criminal charges. This is reasonable because the driver, by refusing chemical testing, is forever denying the state critical evidence regarding a serious crime that represents a threat to the lives of the motoring public. We thus conclude the statute provides a reasonable means to a reasonable end.

III.

Appellant argues that the district court erred in finding the statute violates respondent’s right against unreasonable searches and seizures. We agree. This issue has already been decided by Mellett, 642 N.W.2d at 785, where this court concluded that it would defer to the legislature’s judgment and held that the refusal statute does not violate the Fourth Amendment.

IV.

Appellant argues that the statute is not void for vagueness, contending that when read in conjunction with the implied consent statute it is clear and easily understood. We agree.

A statute is void due to vagueness only if it fails to define a criminal offense “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983) (citations omitted); seealso Baggett v. Bullitt, 377 U.S. 360, 367, 84 S. Ct. 1316, 1320 (1964) (defining void for vagueness); State v. Newstrom, 371 N.W.2d 525, 528 (Minn. 1985) (discussing void for vagueness doctrine). But see State v. Willenbring, 454 N.W.2d 268, 270 (Minn. App. 1990) (“somewhat general language” of challenged statute does not make it unconstitutionally vague), review denied (Minn. May 30, 1990).

Minn. Stat. § 169A.20, subd. 2, states:

It 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.

The statute references the civil statute to show under what circumstances the criminal statute applies. Respondent argues that it is improper to reference a civil statute in connection with a criminal law. But this issue has been discussed in State v. Olmscheid, 492 N.W.2d 263 (Minn. App. 1992). Because the Olmscheid court determined that a criminal statute may reference parts of a civil statute, 492 N.W.2d at 266, we conclude Minn. Stat. § 169A.52 (2000) is sufficiently definite.

Appellant argues that the statute is not overbroad because when read in conjunction with the implied consent statute it only punishes all unreasonable refusals to submit to chemical testing when an officer has probable cause to believe the suspect has been drinking and driving. We agree.

A statute is overbroad on its face if it prohibits constitutionally protected activity, in addition to activity that may be prohibited without offending constitutional rights.

State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998) (citation omitted). The overbreadth doctrine is a departure from general standing rules in that it permits a party to challenge a regulation “both on its face and as applied to the defendant.” Id. (citations omitted). This departure is

based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court.

State v. Castellano, 506 N.W.2d 641, 645 (Minn. App. 1993) (quotation omitted).

An ordinance “should only be overturned as facially overbroad when the [ordinance’s] overbreadth is substantial.” Machholz, 574 N.W.2d at 419 (citation omitted); see also Castellano, 506 N.W.2d at 645.

[B]ecause the overbreadth doctrine has the potential to void an entire statute, it should be applied “only as a last resort” and only if the degree of overbreadth is substantial and the statute is not subject to a limiting construction.

Machholz, 574 N.W.2d at 419 (quotation omitted).

Here, Minn. Stat. § 169A.52 requires probable cause. Thus, the refusal is criminal in the limited context of when an officer has probable cause to suspect a person has been drinking and driving. Moreover, to be overbroad, the statute must inhibit constitutionally protected behavior, and we have noted that the refusal statute has been held not to violate the Fourth and Fifth Amendments or the right to privacy.

Reversed and remanded.