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This opinion will be unpublished and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
A17-0415

State of Minnesota,
Respondent,

vs.

Antone Larron Owens,
Appellant.

Filed July 2, 2018
Remanded
Stauber, Judge*

Hennepin County District Court
File No. 27-CR-15-30253

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

Michael O. Freeman, Hennepin County Attorney, Jean Bur dorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal -Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Reilly, 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
STAUBER, Judge
This is a direct appeal from a conviction of driving while impaired , which was
stayed to allow appellant to initiate postconviction proceedings in district court. After the
postconviction court denied relief, appellant argued on reinstated appeal that the
postconviction court erred in denying him relief for ineffective assistance of trial counsel
based on his counsel’s failure to move to suppress urine-test results on due -process and
Fourth Amendment grounds and that the postconviction court erred in denying appellant’s
petition for postconviction relief without holding an evidentiary hearing. We remand for
an evidentiary hearing.
FACTS
At approximately 12:07 a.m. o n September 20, 2015 , a state trooper stopped
appellant Antone Larron Owens for not having his taillights on. The trooper smelled an
overwhelming odor of air freshener, but also detected the scent of alcohol. Owens failed a
field sobriety test and took a preliminary breath test , registering a 0.124 alcohol
concentration. The trooper arrested Owens and read him the implied-consent advisory
before attempting to administer a breath test at the jail. Two breathalyzer machines failed
to return a result, so the trooper asked Owens t o take a blood or urine test. Owens agreed
to take a urine test . The uri ne test occurred at 2:20 a.m., and it showed an al cohol
concentration of 0.103.
Respondent State of Minnesota charged Owens with one count of driving under the
influence of alcohol and one count of operating a motor vehicle with an alcohol

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concentration of 0.08 or more as tested within two hours. Owens moved the district court
to suppress the urine-test results on the basis that the sample was collected more than two
hours after the driving conduct was observed.
The district court held an omnib us hearing on March 17, 2016. The parties
stipulated that the driving conduct was observed at 12:07 a.m. and that the samp le was
collected at 2:20 a.m. The state called Dr. Kathryn Fuller, a forensic scientist at the Bureau
of Criminal Apprehension, who testified that the alcohol concentration in a urine sample
is not equivalent to the alcohol concentration in the blood when the sample is collected,
which makes it impossible to do a retrograde analysis to estimate alcohol concentration at
an earlier time. However, she opined that if the sample had been collected 13 minutes
earlier, the sample would not have been significantly different than the one she tested. Dr.
Fuller testified that her opinion was based on the assumption that Owens had not consumed
alcohol between the time he was pulled over and the time the sample was collected and the
assumption that, because alcohol is a diuretic and increases the rate of urination, the urine
in the bladder when the sample was collected was relatively fresh. She testified that the
preliminary breath test was consistent with her opinion.
Owens called Thomas Burr, who testified that Dr. Fuller’s opinion was essentially
a retrograde analysis, which cannot be performed on a urine sample. In his memorandum
in support of his motion to suppress the urine-test results, Owens argued that the state failed
to prove that his alcohol level was 0.08 or more within two hours of the time he drove. He
argued that the delay in obtaining the sample made it necessary to estimate his alcohol
concentration, and that because retrograde analysis was not possible with a urine test, the

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test results must be suppressed. He did not argue that the sample was improperly obtained.
The district court denied Owens’s motion to suppress, concluding that the evidence of
alcohol present in the urine was admissible for the purpose of proving Owens violated the
law.
The matter proceeded to trial, and Owens was found guilty of driving unde r the
influence of alcohol and driving with an alcohol concentration of 0.08 or more within two
hours of driving. The district court sentenced Owens to serve 75 months in prison.
Owens appealed. This court stayed his appeal while he pursued postconvictio n
relief. Owens petitioned the postconviction court to reverse his conviction on the basis of
ineffective assistance of trial counsel . He argued that a reasonably competent attorney
would have argued that the urine test was obtained in violation of the Fourth Amendment.
Owens requested an evidentiary hearing to present support for his argument. The
postconviction court denied the petition for postconviction relief without gr anting an
evidentiary hearing.
The postconviction court reasoned that Owens had not shown material facts in
dispute that needed to be resol ved. The district court noted that there was no dispute that
Owens’s counsel did not challenge the taking of the urine sample on Fourth Amendment
grounds. The district court also noted that Owens had not “presented any argument that
raises a reasonable probability of prejudice from trial counsel’s decision to not challenge
the taking of [his] urine sample. In fact, [Owens] concedes in his own Petition th at he
consented to the test.” The district court reasoned that evidence showed Owens agreed to

5
the urine sample, which justified his attorney’s decision not to challenge the administration
of the test. This court then reinstated Owens’s appeal.
D E C I S I O N
Owens contends that he is entitled to “some form of postconviction relief” because
he received ineffective assistance of counsel when his attorney did not move to suppress
the results of the urine test on due-process or Fourth Amendment grounds. A defendant is
entitled to have the assistance of counsel in all criminal prosecutions. U.S. Const. amend.
VI; Minn. Const. art I, § 6. This right to counsel, more specifically, is the right to “effective
assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063
(1984) (emphasis added) (quotation omitted). When this court reviews a postconviction
court’s denial of relief on a claim of ineffective assistance of counsel, we consider the
factual findings that are supported by the record, conduct a de novo review of their
application, and determine whether the court abused its discretion. State v. Nicks , 831
N.W.2d 493, 503-04 (Minn. 2013).
Owens must affirmatively prove that his counsel’s representation fell below an
objective standard of reasonableness and that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068. “[T]here is a strong
presumption that counsel’s performance fell within a wide range of reasonable assistance.”
Bruestle v. State , 719 N.W.2d 698, 705 (Minn. 2006) (quotation omitted). “Generally,
[appellate courts] will not review an ineffective -assistance-of-counsel claim that is based
on trial strategy.” State v. Vang , 847 N.W.2d 248, 267 (Minn. 2014). A postconviction

6
court’s statements regarding counsel’s trial strategy are not owed deference and are
reviewed de novo. Nicks, 831 N.W.2d at 503 n.1.
Due Process
Owens argues that his attorney should have moved to suppress the test results
because the implied-consent advisory read to Owens violated his due -process rights by
inaccurately informing him that refusing to submit to a urine test was a crime. This
argument was not presented to the district court in Owens’s request for postconviction
relief. Owens’s request for postconviction relief stated that “the basis for [his] ineffective
assistance of counsel claim is that trial counsel failed to challenge the taking of [his] urine
sample by arguing there was no exception, other than [his] consent, to justify taking the
sample and testing it without a search warrant.” The issue Owens raised to the
postconviction court concerned his Fourth Amendment rights and not his current claim that
his due-process rights were violated. “It is well settled that a party may not raise issues for
the first time on appeal from denial of postconviction relief.” Azure v. State, 700 N.W.2d
443, 447 (Minn. 2005) (quotation omitted) (declining to consider constitutional issue). We
therefore do not consider Owens’s argument that his due-process rights were violated when
he was read the implied-consent advisory.
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 blood or urine samples from someone constitutes a “search” under the Fourth
Amendment. State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013). But police do not need
a warrant if the subject of the search consents. Id.
Owens argues that three cases, Brooks, this court’s decision in State v. Thompson,
873 N.W.2d 873, 878 (Minn. App. 2015), aff’d 886 N.W.2d 224 (Minn. 2016), and
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), were all decided before Owens’s jury
trial; that a reasonably competent attorney would have known about all three cases ; and
that his attorney should have relied on them to argue that he did not voluntarily consent to
his urine sample being taken without a warrant.
Owens acknowledges that in Brooks, the supreme court concluded that reading a
defendant an implied-consent advisory does not render the defendant’s consent to a
chemical test involuntary. 838 N.W.2d at 5 70. However, Owens argues that he was
misinformed by the implied-consent advisory , relying on Birchfield, which states that
“motorists cannot be deemed to have consented to submit to a blood test on pain of
committing a criminal offense.” 136 S. Ct. at 2186.
Owens’s factual scenario is most similar to that of Beylund in the Birchfield trio of
cases. Beylund submitted to a blood test after police told him it was required by law, and
the North Dakota Supreme Court held that his consent was voluntary on the erroneous
assumption that the state could permissibly compel blood tests. Id. Because voluntariness
of consent to a search must be determined from the totality of all the circumstances, the
Supreme Court remanded the case for reevaluation of Beylund’s consent given the partial
inaccuracy of North Dakota’s advisory. Id. And this court’s decision in Thompson

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indicates that the test used in determining the constitutionality of a urine test is the same as
that of a blood test . See Thompson, 873 N.W.2d at 878-79 (holding that a urine test is
invasive in a similar way as a blood test). Thus, the conclusion that the supreme court
reached in Birchfield is instructive.
In this case, the postconviction court denied Owens postconviction relief based on
its conclusion that “[b]ecause evidence showed that [Owens] had agreed to take the urine
sample, trial counsel’s choice to not challenge that taking is reasonable.” However,
Birchfield calls into question whether Owens’s consent was valid based on the totality of
the circumstances. See 136 S. Ct. at 2186 (“[M]otorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal offense.”). The fact
that Owens’s counsel failed to make an argument regarding Owens’s consent may have
therefore resulted in prejudice.
To show prejudice, a defendant ha s the burden of proving that a reasonable
probability exists that, had the alleged error not occurred, the result of the trial would have
been different. Swaney v. State, 882 N.W.2d 207, 218 (Minn. 2016). Owens argues that
he was prejudiced because, had trial counsel challenged the urine-test results on this basis,
the district court would have suppressed the test results. Based on the clear language of
Birchfield that motorists cannot be deemed to have consented to a blood test on pain of
committing a criminal offense, and Minnesota’s similar treatment of blood and urine tests,
there is a reasonable prob ability that the district court, in considering the totality of the
circumstances, would have suppressed the evidence.

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The Minnesota Supreme Court has stated that, even assuming an attorney’s alleged
errors were prejudicial, “a defendant arguing ineffective assistance of counsel must
overcome the strong presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Rhodes, 657 N.W.2d at 844 (quotation omitted).
“Generally, [appellate courts] will not review an ineffective -assistance-of-counsel claim
that is based on trial strategy.” Vang, 847 N.W.2d at 267. However, because there was no
evidentiary hearing, there is no evidence on appeal regarding whether the attorney’s
decision was one of trial strategy or whether the attorney simply did not know of the
relevant caselaw.
Owens argues that the postconviction court committed rever sible error by denying
his motion without holding an evidentiary hearing. “A postconviction court’s denial of a
petition for relief is reviewed for an abuse of discretion; and a postconviction court abuses
its discretion when its decision is based on an erroneous view of the law or is against logic
and the facts in the record.” Nicks, 831 N.W.2d at 495. A defendant seeking an evidentiary
hearing on a petition for postconviction relief based on a claim of ineffective assistance of
counsel “must allege facts that, if proven by a fair preponderance of the evidence, would
satisfy the two-prong test announced in Strickland v. Washington.” Id. Under Minn. Stat.
§ 590.04, subd. 1 (2016), a postconviction court must grant an evidentiary hearing unless
the court concludes that the “petition and the files and records of the proceeding
conclusively show that the petitioner is entitled to no relief.”

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Owens argues that he alleged appropriate facts by raising an ineffective-assistance-
of-counsel claim in his postconv iction petition. He argues that an evidentiary hearing
would assist the postconviction court in resolving questions regarding whether his trial
counsel was aware of the relevant caselaw, why counsel did not raise a Fourth Amendment
challenge, and what the implied-consent advisory said when it was read to Owens. We
agree.1
The postconviction court denied Owens’s request for an evidentiary hearing because
Owens consented to the test. Birchfield’s language draws that very consent into question.
Birchfield indicates that an implied-consent advisory ’s misstatement of law should be
considered by the district court as part of the totality of the circumstances surrounding
whether a person’s consent was valid. 136 S. Ct. at 2186. The district court did not hav e
the opportunity to consider whether Owens’s consent was valid because that argument was
not presented by Owens’s attorney.
Because the postconviction court denied Owens an evidentiary hearing, it received
no evidence regarding whether his trial attorney’ s decision not to challenge the test was
sound trial strategy. We therefore remand for an evidentiary hearing for the parties to
submit evidence related to Owens’s ineffective-assistance-of-counsel claim.
Remanded.

1 In lieu of submitting a brief on the substantive arguments in this case, the state agreed
that the case should be remanded to the district court for an evidentiary hearing.