Paul Simon Lindstrom, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1369

Paul Simon Lindstrom, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed November 5, 2018
Affirmed
Schellhas, Judge

Kanabec County District Court
File No. 33-CV-15-22

Mark D. Kelly, Law Offices of Mark D. Kelly, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, Stephen D. Melchionne, Assistant Attorney General, St.
Paul, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Schellhas, Judge; and Tracy
M. Smith, Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Arguing that his right to due process was violated, a ppellant challenges the district
court’s denial of his petition to rescind the revocation of his driving privileges. We affirm.

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FACTS
Responding to a complaint about diesel -fuel theft and other items from abandoned
properties, Kanabec County Deputy Sheriff Justin Frisch observed a white Ford truck
travelling across a plowed field road. Deputy Frisch followed the truck until it stopped.
When the driver exited the truck and approached the deputy’s squad car, Deputy Frisch
recognized the driver as appellant Paul Lindstrom and instructed him to get back into his
truck. Deputy Frisch thereafter arrested Lindstrom for possession of a controlled substance
and transported him to t he county jail where Lindstrom failed two field sobriety tests .
Deputy Frisch then read Lindstrom the Minnesota Motor Vehicle Implied Consent
Advisory three times and gave Lindstrom a telephone and directory to enable him to
contact an attorney. Lindstrom said that he wanted to “move onto the next step, ” and
Deputy Frisch asked him if he wanted to take a b lood a test. Lindstrom responded “f**k
no,” and refused to provide a urine test as an alternative to a blood test.
Kanabec County reported Lindstrom’s chemical-test refusal to respondent
Minnesota Commissioner of Public Safety, who revoked Lindstrom’s driving privileges.
Lindstrom petitioned for rescission of his license revocation. The district court denied
Lindstrom’s petition, and Lindstrom appealed. This court stayed his appeal pending the
supreme court’s decision in State v. Phillips, No. A16-0129 (Minn. App. Aug. 29, 2016),
review granted (Minn. Nov. 15, 2016), and appeal dismissed (Minn. May 18, 2017). After
the dismissal of Phillips, this court stayed the appeal pending the supreme court’s filing of
its decisions in Morehouse v. Comm’r of Pub. Safety , 911 N.W.2d 503 (Minn. 2018), and
Johnson v. Comm’r of Pub. Safety, 911 N.W.2d 506 (Minn. 2018). After the supreme court

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filed its decisions in those cases, this court reinstated this appeal and instructed that “[a]ny
reply brief” filed by Lindstrom “shall address the application of Morehouse and Johnson.”
Lindstrom did not file a reply brief.
This appeal follows.
D E C I S I O N
The commissioner revoked Lindstrom’s license under the Implied Consent Law
after he refused to submit to chemical testing. See Minn. Stat. §§ 169A.50 –.53 (2014)
(governing administration of blood, urine, and breath tests to drivers suspected of being
under the influence of alcohol, controlled substances, or hazardous substances). Lindstrom
petitioned the district court for res cission of his driver’s license revocation on numerous
bases, including:
The Minnesota Implied Consent Advisory as it is
currently worded is unconstitutional because, among other
reasons, it fails to advise the Petitioner of the criminal and civil
consequences of testing over .16 or that a full “16-Step” test on
the Breath Test with an actual reported value may be deemed
a refusal, thereby preventing the Petitioner from making a
voluntary and intelligent decision regarding testing.

In his memorandum of law in support of his petition, Lindstrom argued that “Minnesota’s
implied consent statute as applied to this case , violates his right to fundamental fairness
and substantive due process because it implicates his privilege to operate a motor vehicle
for refus ing an unconstitutional, warrantless search.” And at oral argument before the
district court, Lindstrom’s counsel stated that the “test refusal was for a blood/urine test
. . . and this was a warrantless – demand made without a warrant by the Court.” Relying
on Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717 (Minn. App. 2014), the district court

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rejected Lindstrom’s Fourth Amendment argument, and Lindstrom neither challenges the
district court’s ruling on the issue nor raises the argument on appeal.
Citing McDonnell v. Comm’r of Pub. Safety , 473 N.W.2d 848 (Minn. 1991),
Lindstrom argues that the revocation of his driving privileges violated his due -process
rights because the implied -consent advisory misled him by threatening “criminal charges
the State was not authorized to impose.”1 But Lindstrom makes that argument for the first
time on appeal. Before the district court, Lindstrom argued in his memorandum of law that
the implied-consent statute “violates his right to fundamental fairness and substantive du e
process because it implicates his privilege to operate a motor vehicle for refusing an
unconstitutional, warrantless search.” (Emphasis added.)
We need not consider issues raised for the first time on appeal. See Andersen v.
State, 913 N.W.2d 417, 428 n.11 (Minn. 2018) (refusing to consider issues raised for the
first time on appeal); State v. Winbush , 912 N.W.2d 678, 684 n.1 (Minn. App. 2018)
(“There is no indication in the record that appellant previously raised this argument.
Therefore, it is not properly before the court, and we do not address it. ”), review denied
(Minn. May 29, 2018). Because Lindstrom’s McDonnell claim is not properly before this
court, we do not consider it and affirm the district court’s order denying his petition.
Even if we considered Lindstrom’s McDonnell claim, we agree with the state that
his claim fails under Johnson. The Due Process Clause guarantees that no state shall
“deprive any person of life, liberty or property without due process of law.” U.S. Const.

1 Referred to by the supreme court as a “McDonnell claim.” Johnson, 911 N.W.2d at 508–
09.

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amend. XIV, § 1; Minn. Const. art. I, § 7. “Whether a law or government violates
substantive due process is a co nstitutional question, which we review de novo.” State v.
Rey, 905 N.W.2d 490, 495 (Minn. 2018).
In McDonnell, the supreme court held that revocation of driving privileges based on
an implied-consent advisory that threatens a criminal consequence unauthorized by law
violates a driver’s due -process rights and requires rescissi on. 473 N.W.2d at 855. But in
Johnson, the supreme court held that a McDonnell claim does not exist “solely because a
driver had been misled” by the implied -consent advisory. 911 N.W.2d at 508. Rather, a
due-process violation occurs only if a driver can show “three key elements”:
(1) the person whose license was revoked submitted to a
breath, blood, or urine test; (2) the person prejudicially relied
on the implied consent advisory in deciding to undergo testing;
and (3) the implied consent advisory did not accurately inform
the person of the legal consequences of refusing to submit to
the testing.
Johnson, 911 N.W.2d at 508 –09. The supreme court concluded that Johnson was not
deprived of due process because he could not satisfy the first two elements when he refused
to submit to testing, and because he was not prejudiced “by relying on misleading
statements by the officer about the consequences of refusing a test.” Id. at 509.
Here, similar to the facts in Johnson, Lindstrom refused to submit to blood and urine
testing. Lindstrom’s McDonnell claim therefore fails to meet the first two Johnson
elements. See id. at 508–09 (listing elements of a McDonnell claim); cf. Morehouse, 911
N.W.2d at 505 (concluding no due-process violation under Johnson where driver submitted

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to a blood test, but failed to claim that he prejudicially relied on the implied -consent
advisory).
Affirmed.