James Willard Francisco, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1391

James Willard Francisco, petitioner,
Respondent,

vs.

Commissioner of Public Safety,
Appellant.

Filed December 24, 2018
Reversed and remanded
Klaphake, Judge*

Anoka County District Court
File No. 02-CV-15-5064

Paul P. Sarratori, Mesenbourg & Sarratori Law Offices, P.A., Coon Rapids, Minnesota (for
respondent)

Lori Swanson, Attorney General, Jeffrey S. Bilcik, Dominic J. Haik, Assistant Attorneys
General, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge , Halbrooks, Judge; and
Klaphake, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
Appellant commissioner of public safety (commissioner) challenges the district
court’s order rescinding the revocation of respondent James Willard Francisco’s driver’s
license. This matter was stayed pending the supreme court’s resolution of State v. Phillips,
No. A16-0129 (Minn. App. Aug. 29, 2016), review granted (Minn. Nov. 15, 2016), and
appeal dismissed (Minn. May 18, 2017) ; 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). Following the disposition of those cases, we vacated the stay and reinstated the
appeal. Both parties submitted supplemental briefing. Because the record contains no
evidence that Francisco prejudicially relied on an inaccurate implied-consent advisory, we
reverse. Because the district court did not address whether Francisco voluntarily consented
to the search of his urine, we remand for the district court to address that issue.
D E C I S I O N
I. Due Process
The commissioner argues that, in light of the disposition of Morehouse and Johnson,
Francisco did not meet his burden to show a due -process violation. The state cannot
“deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1; see also Minn. Const. art. I, § 7. An allegation of a due-process violation
presents a question of constitutional law, which we review de novo. State v. Beecroft, 813
N.W.2d 814, 836 (Minn. 2012).

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The supreme court held in McDonnell v. Comm’r of Pub. Safety 473 N.W.2d 848,
855 (Minn. 1991), that an implied-consent advisory that threatens a criminal consequence
that the state is not actually authorized to impose violates a suspect’s constitutional due -
process rights and requires rescission of the order revoking his or her driving privileges.
In its recent opinion in Johnson, the supreme court clarified that a due -process violation
under McDonnell does not occur “solely because a driver had been misled” by the implied-
consent advisory. 911 N.W.2d at 508. Rather:
A license revocation violates due process when: (1) the person
whose license was revoked submitted to a breath, blood, or
urine test; (2) the person prej udicially relied on the implied
consent advisory in deciding to under go testing; and (3) the
implied consent advisory did not accurately inform the person
of the legal consequences of refusing to submit to the testing.

Id. at 508-509.
In Morehouse, issued the same day as Johnson, the supreme court applied this three-
part test in addressing a situation in which a petitioner was read an inaccurate implied -
consent advisory and thereafter consented to a warrantless blood test. 911 N.W.2d at 504.
The supreme court found that Morehouse was not entitled to reinstatement of his driving
privileges because he d id not satisfy the second prong of the test. Id. at 505 (“But, as to
the second element, the district court did not find, nor did Morehouse claim, that he
prejudicially relied on the implied-consent advisory in deciding to submit to the test. ”).
The supreme court did not remand Morehouse’s case to allow him to develop the record
and establish that he prejudicially relied on the inaccurate implied -consent advisory. Id.;
see also Windsor v. Comm'r of Pub. Safety , ___ N.W.2d ___, ___, 2018 WL 5780410,

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at *1 (Minn. App. Nov. 5, 2018) (holding that a claimant is not entitled to a remand to
develop a factual record regarding the prejudicial -reliance element of a McDonnell due-
process claim when the record does not contain evidence of prejudicial reliance).
In this case, Francisco submitted to a urine test after being read an implied -consent
advisory that inaccurately stated he could face criminal penalties for refusing to provide a
blood or urine sample. However, a s in Morehouse and Windsor, the record here provides
no evidence that Francisco prejudicially relied on the inaccurate implied-consent advisory.
Francisco argues that we should presume that he prejudicially relied on the inaccurate
implied-consent advisory, but this is contrary to the supreme court’s decision in
Morehouse, which requires a petitioner to establish “that he prejudicially relied on the
implied consent advisory.” Morehouse, 911 N.W.2d at 505.
Francisco presented no evidence that could provide a basis on which the district
court could reasonably have found that he prejudicially relied on the inaccurate implied -
consent advisory . Thus, like Morehouse and Windsor, Francisco “is not entitled to a
rescission of his license revocation under McDonnell” or to remand to further develop the
record. See id. Accordingly, we reverse the district court’s grant of relief on due-process
grounds.
II. Fourth Amendment
The United States and Minnesota Constitutions guarantee “[t]he right of the people
to be secure in their persons, houses, papers, and effects” against “unreasonable searches
and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. “Generally, warrantless
searches are per se unreasonable.” State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008).

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Taking a urine sample from someone c onstitutes a search under the Fourth Amendment ,
but a warrant is unnecessary if the person consents. State v. Brooks, 838 N.W.2d 563, 568
(Minn. 2013). Consent is only a valid exception to the warrant requirement, however, if it
was given “freely and voluntarily.” State v. Diede , 795 N.W.2d 836, 846 (Minn. 2011).
Whether a suspect’s consent to a search was voluntary is a factual determination based
upon the totality of the circumstances. Id.
In this case, Francisco argued to the district court that his consent to take the urine
test was coerced by the inaccurate implied-consent advisory and that the subsequent search
of his urine violated his Fourth Amendment r ights. However, the district court granted
Francisco’s petition on due -process grounds and never addressed whether the search
violated his Fourth Amendment r ights. The question of whether Francisco freely and
voluntarily consented to the search of his urine is a factual question, and “[i]t is not within
the province of this court to determine issues of fact on appeal.” Kucera v. Kucera, 146
N.W.2d 181, 183 (Minn. 1966). Given the inaccurate implied-consent advisory , it is
necessary to remand for the distr ict court to determine whether, under the totality of the
circumstances, Francisco validly consented to the search of his urine and whether any other
exceptions to the warrant requirement may apply . See Birchfield v. North Dakota, 136 S.
Ct. 2160, 2186 (2016) (remanding to allow the distric t court to reevaluate consent given
the partial inaccuracy of the officer’s advisory). We leave to the district court the decision
whether to reopen the record on remand.
Reversed and remanded.