Michael Neil Labrasca, petitioner, Appellant,

This opinion will be unpublished and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
A16-1871

Michael Neil Labrasca, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed January 14, 2019
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Becker County District Court
File No. 03-CV-15-1727

Max A. Keller, Keller Law Offices, Minneapolis, Minnesota (for appellant)

Keith M. Ellison, Attorney General, Dominic J. Haik, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Roden berg, Presiding Judge; Hooten, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Michael Labrasca challenges the district court’s ord er sustaining the
revocation of his driving privile ges. He argues that his due-p rocess rights were violated
by his being read an inaccurate implied-consent advisory and th at the warrantless search
of his urine was unconstitutional under the Fourth Amendment. Appellant is not entitled

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to reversal based on his due-process argument, but we reverse a nd remand to the district
court to reconsider the voluntariness of appellant’s consent to the seizure of his urine under
the Fourth Amendment.
FACTS
Appellant was arrested by Officer Streibel of the Detroit Lakes Police Department
for driving while intoxicated (DWI). Officer Streibel transported appellant to jail and read
him the implied-consent advisory which said, among other things, that refusal to take a test
is a crime. Appellant said that he understood the advisory. O fficer Streibel provided
appellant an opportunity to consult with an attorney. Appellan t made telephone contact
with an attorney and, on his own initiative, indicated that he was done using the telephone
13 minutes later. Officer Streibel then asked appellant if he would supply a urine sample.
Appellant agreed to do so. Officer Streibel testified that, during the reading of the implied-
consent advisory and requesting that appellant supply a urine sample, he spoke to appellant
in a monotone voice, did not brandi sh his weapon or threaten ap pellant at any point, and
was sitting approximately six feet away from appellant who was not handcuffed.
Appellant’s license to operate a motor vehicle was revoked bas ed on the results of
the urine test, which showed an alcohol concentration of 0.16 o r more. Appellant timely
challenged revocation of his driver’s license by filing an impl ied-consent petition. An
implied-consent hearing was held, where appellant argued both t hat his constitutional
rights were violated when he was told he could be charged with a crime for test refusal
during the implied-consent advisory, and that the implied-conse nt advisory was seriously
misleading on its face. The district court found that, under the totality of the circumstances,

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the commissioner of public safety met its burden of proving tha t appellant freely and
voluntarily consented to the seizure of his urine. The district court also determined that the
implied-consent advisory was not misleading on its face, nor was it misleading as applied
to appellant, because informing appellant that “refusal to take a test is a crime” was not
misleading at the moment those words were read to him because appellant could have been
prosecuted for refusing to take a breath test had that test been offered.
This appeal followed. 1
D E C I S I O N
Due-Process
Appellant argues that his due-process rights were violated when he was read an
inaccurate implied-consent advisory. “We review due-process challenges de novo.” Thole
v. Comm’r of Pub. Safety , 831 N.W.2d 17, 19 (Minn. App. 2013), review denied (Minn.
July 16, 2013). In McDonnell v. Comm’r of Pub. Safety , the Minnesota Supreme Court
held that an implied-consent advi sory that threatens criminal c harges the state is not
actually authorized to impose vi olates a driver’s constitutiona l due-process rights and
requires rescission of the order revoking the driver’s driving privileges. 473 N.W.2d 848,
855 (Minn. 1991). In a recent opinion, the supreme court expla ined that a due-process

1 This appeal was initially stayed pending the supreme court’s decision in State v. Phillips,
No. A16-0129 (Minn. App. Aug. 29, 2016), review dismissed (Minn. May 18, 2017).
Following Phillips’s death and th e supreme court’s dismissal of the case, the matter was
again stayed pending final dispositions 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.
2 0 1 8 ) . A f t e r t h e s u p r e m e c o u r t i s s u e d i t s d e c i s i o n s i n Morehouse and Johnson, we
reinstated this appeal.

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violation under McDonnell does not exist “solely because a driver had been misled” by the
implied-consent advisory. Johnson v. Comm’r of Pub. Safety, 911 N.W.2d 506, 508 (Minn.
2018). Rather, it concluded that a due-process violation under McDonnell requires three
elements:
A license revocation violates due process when: (1) the person
whose license was revoked subm itted to a breath, blood, or
urine test; (2) the person prej udicially relied on the implied
consent advisory in deciding to u n d e r g o t e s t i n g ; a n d ( 3 ) t h e
implied consent advisory did not accurately inform the person
of the legal consequences of refusing to submit to the testing.

Id. at 508-09.
In Morehouse v. Comm’r of Pub. Safety , a companion opinion to Johnson, the
supreme court held that all three elements must be present to e ntitle an appellant to relief
from a district court’s license-revocation order. 911 N.W.2d 503, 505 (Minn. 2018). The
supreme court rejected Morehouse’s due-process-violation argume nt and reasoned that,
“[b]ecause Morehouse did not even claim, much less establish, that he prejudicially relied
on the implied consent advisory , Morehouse is not entitled to a rescission of his license
revocation under McDonnell.” Id.
Here, the first element of Johnson is satisfied. Appellant submitted to a urine test.
Appellant concedes that he “has never shown prejudice or prejud icial reliance upon the
inaccurate and misleading advisory read to him, because until May 2, 2018, he was never
required to show prejudice to prevail on his McDonnell claim.” Appellant nevertheless
asks that we remand to the distr ict court to afford appellant t he opportunity to establish
prejudicial reliance because prejudicial reliance was not an el ement of a due-process

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violation until the supreme court’s Morehouse and Johnson opinions. But the supreme
court in Johnson analyzed its decision in McDonnell as having always required prejudicial
reliance on an inaccurate implied- consent advisory in order to establish a due-process
v i o l a t i o n . 9 1 1 N . W . 2 d a t 5 0 8 - 0 9 . A n d i n Morehouse, the supreme court declined to
provide the driver an opportunity to develop the record regarding such prejudicial reliance,
where the claim was not made initially. 911 N.W.2d at 505. See also Windsor v. Comm’r
of Pub. Safety, ___ N.W.2d ___, ___, 2018 WL 5780410, at *4 (Minn. App. Nov. 5, 2018)
(holding that appellant is not entitled to a remand under Morehouse to develop record to
establish prejudicial reliance ). Accordingly, appellant has no t shown a McDonnell due-
process violation. Therefore, appellant is not entitled to a remand on this issue.
Fourth Amendment
Appellant argues that the warrantless seizure of his urine viol ated the Fourth
Amendment because caselaw require s either a warrant or an excep tion to the warrant
requirement, appellant did not validly consent to the seizure, and the good-faith exception
to the exclusionary rule does not apply.
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Seizure of a driver’s urine is a
search for Fourth Amendment purposes. State v. Brooks , 838 N.W.2d 563, 568 (Minn.
2013). “Searches conducted without a warrant, outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable . . . subject only to a few
specifically established and well-delineated exceptions.” State v. Thompson, 886 N.W.2d
224, 228 (Minn. 2016) (quotation omitted).

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One such recognized exception to the constitutional warrant req uirement is the
consent exception, where “the subject of the search consents.” Brooks, 838 N.W.2d at 568.
“For a search to fall under the consent exception, the State must show by a preponderance
of the evidence that the defendant freely and voluntarily consented.” Id. “Whether consent
was voluntary is determined by examining the totality of the ci rcumstances, including the
nature of the encounter, the kind of person the defendant is, and what was said and how it
was said.” State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999) (quotation omitted). If the
circumstances indicate that the encounter was coercive, then co nsent is involuntary and
evidence must be suppressed. Id. Whether consent was voluntary is a question of fact that
is reviewed for clear error. State v. Diede, 795 N.W.2d 836, 846-47 (Minn. 2011).
Here, Officer Streibel read appell ant the implied-consent advis ory, informed him
that refusal to take a test is a crime, and requested that appellant provide a urine sample for
testing. The district court co ncluded that appellant voluntari ly consented to the urine
search based on the totality of the circumstances, including the nature of the encounter, the
kind of person appellant is, and what was said and how it was s aid. But the district court
did not take into account that, in the context of a urine test, the implied-consent advisory
inaccurately advised appellant that refusal to take a test is a crime.
The United States Supreme Court considered a similar issue in Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016). Defe ndant Beylund was arrested in No rth Dakota for
driving while impaired and “sub mitted to a blood test after pol ice told him that the law
required his submission.” Id. at 2186. Because the blood test results revealed Beylund
was intoxicated at the time, he had his license “suspended for two years after an

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administrative hearing.” Id. at 2172. Beylund appealed, “a rguing that his consent to the
blood test was coerced by the officer’s warning that refusing t o consent would itself be a
crime.” Id. The North Dakota Supreme Court affirmed the license suspensio n,
“emphasiz[ing] that North Dakota’s implied consent advisory was not misleading because
it truthfully related the penalties for refusal.” Id. After concluding that states may not
compel warrantless blood tests, the Supreme Court remanded to the North Dakota Supreme
Court to “reevaluate Beylund’s c onsent given the partial inaccu racy of the officer’s
advisory [in light of the Supreme Court’s decision].” Id. at 2186. For purposes of a Fourth
Amendment analysis, the Supreme Court gave Beylund the benefit of the Birchfield
decision by characterizing the im plied-consent advisory as inac curate despite it having
been correct at the time of its reading. Id. (“[M]otorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal offense.”).
Following Birchfield, the Minnesota Supreme Cour t examined Minnesota’s
implied-consent law in Thompson. 886 N.W.2d 224. The supreme court concluded that a
urine test given under that law implicated privacy rights under the Fourth Amendment and
ordinarily requires a warrant; it held that “a warrantless urin e test does not qualify as a
search incident to a valid arre st of a suspected drunk driver.” Thompson, 886 N.W.2d at
230, 233.
We agree with appellant that the implied-consent advisory read to him was
inaccurate because he was threatened with a criminal charge if he declined to supply a urine
sample. Although it is true that the advisory would have been accurate had a breath test
been sought, that is not what happened. Appellant was asked to supply a urine sample after

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having been told that refusal would be a crime. But we note th at, at the time the district
court determined that appellant v oluntarily consented to the wa rrantless urine search, the
district court did not have the benefit of the supreme court’s decisions in Thompson,
Johnson, or Morehouse . It therefore did not consider whether the inaccuracy of the
implied-consent advisory might have rendered appellant’s consen t t o t h e u r i n e t e s t
involuntary. Accordingly, we re verse and remand to the distric t court to reconsider
whether, in light of Thompson, Johnson, and Morehouse, the totality of the circumstances
indicates that appellant’s consent to the urine test was voluntarily given.
Appellant asks us to reverse the district court, without remanding the case, and hold
that appellant’s consent was not voluntary as a matter of law. The inquiry concerning
whether appellant voluntarily consented to the warrantless urine search is a factual one that
is properly resolved by the district court. 2 See Fontaine v. Steen , 759 N.W.2d 672, 679
(Minn. App. 2009) (stating that it is not within the province of appellate courts to determine
issues of fact on appeal).
The state argues that even if appellant’s consent was not volun tary, the good-faith
exception to the exclusionary rule applies. See State v. Lindquist , 869 N.W.2d 863, 876
(Minn. 2015) (holding that the “exclusionary rule does not apply to violations of the Fourth
Amendment to the U.S. Constituti on, or Article I, Section 10, o f the Minnesota

2 Our remand for reconsideration of the voluntariness of appellant’s consent is no indication
of how the district court should resolve the issue. Because co nsent is a fact-dependent
issue, see Brooks, 838 N.W.2d at 568-69; Harris, 590 N.W.2d at 104, the district court
must assess all evidence availa ble to it. This is uniquely the district court’s proper role.
Whether the record should be reopened on remand is left to the district court’s discretion.

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Constitution when law enforcement acts in objectively reasonabl e reliance on binding
appellate precedent”). This argum ent would only be relevant if the district court finds a
constitutional violation. We therefore decline to address it as premature.3
Affirmed in part, reversed in part, and remanded.

3 We also note that this issue was not raised to the district co urt. We therefore have no
occasion to opine concerning that issue now. See State v. Lemmer, 736 N.W.2d 650, 656
(Minn. 2007) (stating that appellate courts will not “decide is sues that have not been first
addressed by the district court and are raised for the first time on appeal”).