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This opinion will be unpublished and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
A17-0547

State of Minnesota,
Respondent,

vs.

Merlin John Sherer,
Appellant.

Filed April 23, 2018
Reversed
Florey, Judge

Cook County District Court
File No. 16-CR-15-22

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

Molly Hicken, Cook County Attorney, Grand Marais, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Lauren W. Linderman, Bruce Jones, Tom Pr yor, Special Assistant Public Defenders,
Faegre Baker Daniels LLP, Minneapolis, Minnesota (for appellant)

Considered and decided by Larkin, Pres iding Judge; Bratvold, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges his conviction for firs t-degree driving while impaired (DWI),
arguing that the state violated his due-process rights and the Fourth Amendment when an
2
officer advised him that refusal to submit to a blood or urine test was a criminal offense.
Based on the reasoning set forth in Johnson v. Comm’r of Pub. Safety , 887 N.W.2d 281
(Minn. App. 2016), review granted (Minn. Jan. 25, 2017), we reverse.
FACTS
On February 1, 2015, law-enforcement o fficers received a report of a suspected
intoxicated driver. The officers responded to the scene and found appellant Merlin John
Sherer unconscious in the driver’s seat of a car partially on the road and partially in the
ditch. The car was running and the tires were spinning. Appellant was difficult to wake,
he appeared confused, and he had a white powde ry substance near his nose. The officers
did not perceive an odor of alcohol, but f ound a glass pipe containing residue and a
“snorting straw” near appellant.
Appellant was transported to the law-enforcement center where an officer read him
the implied-consent advisory. Appellant was advised that Minnesota law requires him to
take a test to determine if he is under the influence of a controlled substance and that refusal
to take a test is a crime. He was offered a blood or a urine test and consented to a blood
test. The blood test confirmed the presen ce of amphetamine and methamphetamine in
appellant’s system.
Appellant was charged with first-degree DWI (controlled substance), in violation of
Minn. Stat. § 169A.20, subd. 1(2) (2014), fifth-degree possession of a controlled substance,
possession of a small amount of marijuana, and possession of drug paraphernalia.
Appellant moved to suppress the results of the blood test, arguing that the warrantless blood
draw violated the Fourth Amendment and his right to due process. The district court denied
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appellant’s motion to suppress the re sults of the blood test. Citing State v. Brooks , 838
N.W.2d 563, 572 (Minn. 2013), the district court explained that “the law currently provides
that test results from a consensual warrantless blood draw are admissible.” The district
court found that the officer followed the statutory requirements of the implied-consent law
before appellant consented to the test.
In April 2016, the parties agreed to submit the DWI charge to the district court for
trial pursuant to Minn. R. Crim. P. 26.01, su bd. 4, with all other charges dismissed.
Appellant maintained his not-guilty plea and s tipulated to the prosecution’s case. The
parties agreed that the district court’s pretrial ruling was dispositive of the case. The district
court found appellant guilty of first-degree DWI and sentenced him to 66 months’
imprisonment.
This appeal followed.
D E C I S I O N
Appellant argues that, under McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848,
855 (Minn. 1991), and Johnson, the state violated his due-p rocess rights when giving the
implied-consent advisory by “threaten[ing] crim inal charges the state was not authorized
to impose.” The state argues that appellant’s due-process rights were not violated by the
implied-consent advisory because it was accurate at the time it was given.
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. amend. XIV, § 1; see Minn.
Const. art. I, § 7 (“No person shall be held to answer for a criminal offense without due
process of law . . . .”). “Whether a due process violation has occurred presents a question
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of constitutional law, which we review de novo.” State v. Beecroft, 813 N.W.2d 814, 836
(Minn. 2012).
In McDonnell, an officer read the defendant the implied-consent advisory, which
warned her that “refusal to submit to testing might expose her to criminal penalties.” 473
N.W.2d at 851. The defendant had not had a previous license revocation and therefore
could not be prosecuted for refusing to submit to testing under Minn. Stat. § 169.121, subd.
1a (Supp. 1989). Id. at 850 n.1, 851. The Minnesota Supreme Court recognized that “due
process does not permit those who are percei ved to speak for th e state to mislead
individuals as to either their legal obligations or the penalties they might face should they
fail to satisfy those obligations.” Id. at 854. The implied-consent advisory was
unconstitutional as applied to the defendant because it “per mitted police to threaten
criminal charges the state was not authorized to impose.” Id. at 855.
During the pendency of appellant’s case, the Minnesota Supreme Court held that a
defendant could not be prosecu ted under Minnesota’s test-refu sal statute for refusing to
submit to a blood test, absent a warrant or exigent circumstances. State v. Trahan , 886
N.W.2d 216, 218, 224 (Minn. 2016). The supreme court extended that holding to
warrantless urine tests in State v. Thompson , holding that a defendant may not be
prosecuted for refusing to submit to an uncon stitutional blood or urine test. 886 N.W.2d
224, 234 (Minn. 2016).
Following Trahan and Thompson, this court applied the reasoning of McDonnell to
an implied-consent advisory that warned a driver that refusal to submit to a urine test is a
crime. Johnson, 887 N.W.2d at 289. We examined whether the advisory permitted police
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to threaten criminal charges the state was not constitutionally permitted to impose. Id. We
held that the driver’s due-process rights were violated when the officer informed him that
he could be subjected to criminal penalties for refusing to take a urine test, when the state
would not have been authorized to impose a criminal penalty. Id. at 295. We rejected an
argument that, because Thompson had not been decided at the time the advisory was given,
the advisory was legally accurate at the time it was given and did not violate the driver’s
due-process rights. Id. at 292.
The state argues that this case is distinguishable from Johnson because Johnson
involved a charge of test re fusal and a civil license revocation, where here appellant
consented to a test after an officer read th e advisory and now seek s to suppress the test
results. We have held that an implied-consent advisory violates a defendant’s due-process
rights when he is misinformed of the consequences of the testing decision, regardless if he
thereafter took the test. Olinger v. Comm’r of Pub. Safety , 478 N.W.2d 806, 808 (Minn.
App. 1991); see also Steinolfson v. Comm’r of Pub. Safety , 478 N.W.2d 808, 809 (Minn.
App. 1991) (indicating that drivers were entitled to relief under McDonnell “without regard
to their decision regarding testing”). Moreover, while not binding precedent, this court has
applied the reasoning of Johnson to criminal cases in which a defendant consented to a
blood or urine test after being informed that refusal to take a test is a crime. 1 See State v.
Gehloff, No. A16-0976, 2016 WL 6 923714, at *3 (Minn. A pp. Nov. 28, 2016); State v.

1 “Although not precedential, unpublished opinions may be persuasive.” Sarber v. Comm’r
of Pub. Safety, 819 N.W.2d 465, 469 n.3 (Minn. App. 2012).

6
Reps, No. A16-0975, 2016 WL 6826312, at *3 (Minn. App. Nov. 21, 2016) (“The fact that
[the defendant] consented to an unconstitutio nal search does not change the due-process
analysis.”).
Johnson and McDonnell are dispositive in this case. Appellant was informed that
refusal to submit to a test is a crime, and he was then offered a blood or urine test. Under
Thompson and Trahan, the state was not authorized to impose criminal charges if appellant
refused a test. Under McDonnell, the state violated appellant’s right to due process when
it misinformed him of the criminal penalties he would face for refusal to take a blood or
urine test.2
The state argues that, because the advisory was read to appellant before Thompson
and Trahan were decided, the advisory was legally accurate at the ti me it was given and
therefore did not violate appellant’s right to due process. We applied this reasoning in
Morehouse v. Comm’r of Pub. Safety, No. A16-0277, 2016 WL 4497470, at *1 (Minn. App
Aug. 29, 2016), review granted (Minn. Nov. 15, 2016). However, we rejected
Morehouse’s reasoning in Johnson, explaining that the temporal relationship between the

2 In State v. Melde , the supreme court considered whet her the implied-consent advisory
violated criminal defendants’ due-process rights because it did not notify the defendants of
specific criminal and penal cons equences of test refusal. 725 N.W.2d 99, 104 (Minn.
2006). In analyzing whether the advisory violated state and federal due-process
protections, the supreme court considered McDonnell and other license-revocation cases
without distinguishing between the due-process rights owed in a criminal context or a civil
context. Id. at 103-06. Given the supreme court’s willingness to consider McDonnell and
other license-revocation cases in criminal matte rs, we do not depart from this analytical
framework.
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date the advisory was given and the release of Thompson was not sufficient to persuade us
that the defendant was not entitled to due process. 887 N.W.2d at 293.
Evidence secured by a violation of a defenda nt’s right to due process is subject to
“total exclusion” by the courts. State v. Stumpf, 481 N.W.2d 887, 890 (Minn. App. 1992);
State v. Wilkens , 492 N.W.2d 275, 277 (Minn. App. 19 92). The district court erred in
denying appellant’s motion to suppress the test results. Because the results of the blood
test should have been excluded on due-pro cess grounds, we do not reach appellant’s
argument that the inaccurate im plied-consent advisory rendere d his consent involuntary.
Because we do not consider the question of whether the implied-consent advisory violated
the Fourth Amendment, we need not consid er the state’s argument that the good-faith
exception to the exclusionary rule should be applied. The good-faith exception applies to
evidence excluded for Fourth Amendment violations. State v. Lindquist, 869 N.W.2d 863,
864 (Minn. 2015). It does not apply to evidence excluded on due-process grounds.
Reversed.