State of Minnesota, Respondent,

This opinion will be unpublished and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
A16-1840

State of Minnesota,
Respondent,

vs.

Dennis Dean Blumke,
Appellant.

Filed September 18, 2017
Reversed and remanded
Reilly, Judge

Swift County District Court
File No. 76-CR-14-345

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Danielle H. Olson, Swift County Attorney, Allison T. Whalen, Assistant County Attorney,
Benson, Minnesota (for respondent)

John D. Ellenbecker, St. Cloud, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Re illy, Judge; and Stauber,
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
REILLY, Judge
Appellant Dennis Dean Bl umke challenges his impaired-driving conviction on the
ground that the district court erred by denyi ng his motion to suppress the results of his
blood test in light of State v. Birchfield. Because appellant’s judgment of conviction was
not final at the time of Birchfield’s release, we reverse and remand to the district court for
further consideration.
FACTS
This appeal arises out of appellant Dennis Dean Blumke’s impaired-driving
conviction. Following his impaired-driving arrest in June 2014, an officer read appellant
the implied-consent advisory and informed him that Minnesota law required him to submit
to a chemical test to determin e if he was under the influen ce of alcohol and that refusing
such a test was a crime. Appellant agreed to a blood test, which revealed an alcohol
concentration above the legal limit. The state charged appellant with impaired driving in
July 2014. Appellant moved to suppress the blood test results and dismiss the complaint;
the court denied the motion in June 2015, determining that Minnesota’s implied consent
statute was constitutional under State v. Brooks, 838 N.W.2d 563, 56 9-72 (Minn. 2013),
and State v. Bernard, 859 N.W.2d 762, 774 (Minn. 2015). The district court adjudicated
appellant guilty of the offense in May 2016.
In June 2016, the United States Suprem e Court upheld the constitutionality of
Minnesota’s test-refusal statute as it applie s to breath tests but ruled that the search-

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incident-to-arrest exception and implied consen t did not justify a warrantless blood test.
Birchfield v. North Dakota, 136 S. Ct. 2160, 2184-86 (2016), aff’g State v. Bernard, 859
N.W.2d 762 (Minn. 2015). In August 2016, appellant sought a new trial in light of “recent
decisions of the United States Supreme Co urt [that] have a material impact on the
admissibility of evidence,” which appellant earlier sought to suppress. One week later, the
court sentenced appellant to pr ison. Appellant now challenges the district court’s order
adjudicating him guilty of impaired driving.
D E C I S I O N
The crux of the appeal is appellant’s as sertion that the district court erred by
declining to apply Birchfield’s holding to the facts of his case. Appellant’s challenge
presents a question of law, which we review de novo. State v. Dorn, 887 N.W.2d 826, 830
(Minn. 2016).
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A blood test constitutes a
search. Schmerber v. California , 384 U.S. 757, 767, 86 S. Ct. 1826, 1834 (1966). The
United States Supreme Court he ld that a warrantless blood test incident to a lawful
impaired-driving arrest is not a permissi ble search under the Fourth Amendment.
Birchfield, 136 S. Ct. 2160, 2184-86. Minnesota courts also recognize that a driver cannot
be criminally punished for refusing to subm it to a warrantless blood test absent an
exception to the warrant requirement. See State v. Trahan, 870 N.W.2d 396, 403-05 (Minn.
App. 2015) (holding that a driver may not be prosecuted under test-refusal statute for
refusing to submit to a warrantless blood test), aff’d, 886 N.W.2d 216 (Minn. 2016); see

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also State v. Thompson, 873 N.W.2d 873, 878-80 (Minn. App. 2015) (holding that a driver
may not be prosecuted under Minnesota’s test -refusal statute for re fusing to submit to a
warrantless urine test), aff’d, 886 N.W.2d 224 (Minn. 2016). Appellant contends that the
district court erred by denying his motion to suppress the results of his blood test under the
precepts articulated in Birchfield.
We conclude that the district court erred by declining to consid er appellant’s case
in light of Birchfield, which was released before appella nt’s conviction became final. A
judgment of conviction is final when direct appeals are exhausted or the time for filing a
direct appeal has expired. State v. Losh, 721 N.W.2d 886, 893-94 (Minn. 2006); see also
Hutchinson v. State, 679 N.W.2d 160, 162 (Minn. 2004) (noting that a case is final when
“a judgment of conviction has been rendered, the availability of appeal exhausted, and the
time for a petition for certiorari elapsed or fina lly denied”). But an appeal “suspends a
judgment and deprives it of its finality,” which is essential in criminal cases “because to
apply a new rule [of law] to the case in which it was announced but to not apply it to other
cases that were then on direct appeal would be to treat similarly situated criminal
defendants differently.” State v. Lewis, 656 N.W.2d 535, 537-38 (Minn. 2003) (quotation
and citation omitted). Birchfield was announced after appellant’s adjudication of guilt, but
before sentencing. Appellant’s case is now pending on direct review. Appellant’s
judgment of conviction is not yet final, Losh, 721 N.W.2d at 893-94, and he is entitled to
application of the rule of law articulated in Birchfield. See Lewis, 656 N.W.2d at 538
(determining that supreme court decision applied to case pending appellate review at time
of decision). We therefore reverse and re mand for additional factual findings on the

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voluntariness of appellant’s consent to the wa rrantless blood test under the totality of the
circumstances, and in a ma nner consistent with the Birchfield ruling. See 136 S. Ct. at
2186 (noting that voluntariness of driver’s consent to a search “must be determined from
the totality of all the circumst ances,” which must be decided in the first instance by the
district court).
Appellant also challenges additional aspects of the district court’s denial of his
suppression motion and argues that he is ent itled to dismissal of the charges. Because
appellant failed to prepare a sufficient record on appeal, we decline to consider these
arguments now. See, e.g., State v. Heithecker , 395 N.W.2d 382, 383 (Minn. App. 1986)
(declining to consider issue where appellant failed to provide trial transcript necessary for
appellate review); Minn. R. Civ. App. P. 110.02, subd. 1(a) (requiring appellant to submit
“a transcript of those parts of the proceedings . . . which are deemed necessary for inclusion
in the record”).
Reversed and remanded.