Chad Harold Dyrdahl, 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This opinion will be unpublished and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
A18-0801

Chad Harold Dyrdahl, petitioner,
Respondent,

vs.

Commissioner of Public Safety,
Appellant.

Filed February 11, 2019
Reversed
Connolly, Judge

Clearwater County District Court
File No. 15-CV-17-509

Peter J. Timmons, Sieben Edmunds, PLLC, Mendota Heights, Minnesota (for respondent)

Keith Ellison, Attorney General, William J. Young, Assistant Attorney General, St. Paul,
Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges the district court’s rescission of the revocation of respondent’s
license to drive after respondent was arrested for driving under the influence of alcohol

2
(DUI). Appellant argues that the district court erred by granting relief under the due -
process theory set forth in McDonnell. McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d
848, 853-55 (Minn. 1991) . Because respondent did not establish the three elements of a
McDonnell due-process claim and was not prejudiced by the implied-consent advisory, we
reverse.
FACTS
On November 19, 2017, a Minnesota State Patrol trooper stopped a vehicle driven
by respondent Chad Harold Dyrdahl after observing the vehicle weaving within its lane
and touching the fog line and center line multiple times. The trooper observed Dyrdahl to
have blood shot and watery eyes, and detected a moderate odor of alcohol coming from the
vehicle. Dyrdahl admitted he had “a little bit” of alcohol to drink that evening. Based on
the smell of alcohol, blood shot and watery eyes, poor performance during field sobriety
testing, and preliminary breath test results, the trooper arrested Dyrdahl for DUI. After
being transported to the Clearwater County Jail, the t rooper read Dyrdahl the implied -
consent advisory as follows:
Minnesota law requires you to take a test to determine the
presence of alcohol. Refusal to take a test is a crime. Before
making your decision about testing you have the right to
consult with an attorney. . . . Do you understand what I have
just explained?

Dyrdahl indicated he understood and wished to consult with an attorney. After consulting
with an attorney, Dyrdahl agreed to take a breath test , which indicated a n alcohol
concentration of 0.14. Appellant Commissioner of Public Safety (the c ommissioner)
revoked Dyrdahl’s driver’s license, and Dyrdahl petitioned for judicial review.

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At the combined omnibus and implied-consent hearing, Dyrdahl limited the issues
to (1) whether there was sufficient suspicion of criminal activity to initiate the traffic stop,
(2) whether the field sobriety tests and preliminary breath test were illegal searches, and
(3) whether the implied -consent advisory violate d Minnesota statutes or his due -process
rights. The parties did not dispute the facts or present testimony and agreed that the state’s
exhibits, which included the patrol vehicle’s dash cam video and an audio recording of the
implied-consent advisory and Miranda warnings, were the entirety of the record.
The district court rescinded the revocation of Dyrdahl’s driving privileg es,
concluding that the implied-consent advisory violated both Minnesota statutes and his due
process rights. The district court concluded that the traffic stop and field sobriety tests
given were lawful, which is not challenged on appeal. This appeal follows.
D E C I S I O N
I.
Minnesota’s implied-consent law governs the administration of breath, blood, and
urine tests to drivers who are suspected of being under the influence of alcohol or hazardous
or controlled substances. Minn. Stat. §§ 169A.50-.53 (2018); Johnson v. Comm’r of Pub.
Safety, 911 N.W.2d 506, 507 (Minn. 2018). If a driver refuses to permit a test, the
commissioner of public safety revokes that driver’s license. Minn. Stat. § 169A.52, subd.
3. If a driver submits to testing, and the test results show an alcohol con centration of 0.08
or more, the commissioner also revokes the driver’s license. Id., subd. 4.
The commissioner challenges the district court’s ruling that Dyrdahl was entitled to
rescission of his driver’s license revocatio n on due -process grounds under McDonnell.

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“Whether an implied-consent advisory violates a driver’s due -process rights is a question
of law,” which we review de novo. Magnuson v. Comm’r of Pub. Safety, 703 N.W.2d 557,
561 (Minn. App. 2005).
The supreme court established the test for determining whether a due -process
violation has occurred in the context of a driver’s-license revocation in McDonnell. Under
that test, a license revocation violates due process when: (1) the driver submitted to a breath,
blood, or urine test; (2) the driver prejudicially relied on the implied -consent advisory in
consenting to the test; and (3) the advisory failed to accurately inform the driver of the legal
consequences of test refusal. Johnson, 911 N.W.2d at 508 -09 (citing McDonnell, 473
N.W.2d at 853-55). The supreme court noted that a due-process violation is not established
under McDonnell “solely because a driver [has] been misled” by an implied -consent
advisory. Id. at 508. We recently held that a district court err s when it grants relief under
McDonnell without first determining that the three elements of a due -process claim have
been established. Windsor v. Comm’r of Pub. Safety , 921 N.W.2d 71 , 74 (Minn. App.
2018).1 We also concluded that a remand is unnecessary if the record does not show
evidence sufficient to establish all three elements. Id. at 75-76.
Here the district court concluded:
[The trooper] misstated the law to [Dyrdahl] by stating
that refusal to submit to a chemical test is a crime because the
term “chemical test” includes blood and urine tests. Because
the advisory was misleading, [Dyrdahl’s] right to due process

1 Windsor acknowledged that two recent supreme court opinions overruled Olinger v.
Comm’r of Pub. Safety, 478 N.W.2d 806, 808 (Minn. App. 1991), which had held that the
mere misstatement of the law entitled drivers to rescission of their license revocations
without a showing of actual prejudice. 921 N.W.2d at 71.

5
was violated. His later consent to the breath test is irrelevant.
See Steinolfson v. Comm’r of Pub. Safety , 478 N.W.2d 808
(1991). . . . Under a due process analysis, [Dyrdahl’s] breath
test results must be suppressed.

This is both an erroneous interpretation of the law and factually incorrect. The district
court’s use of the word “chemical” here contradicts its own findings of fact and is not
supported by the audio recording of the implied -consent advisory. T he trooper did not
state that refusal to submit to a chemical test is a crime; he stated that “refusal to take a test
is a crime.”
Additionally, the district court erred becaus e it granted relief without determining
that the three elements of a due-process claim under McDonnell had been established. See
Windsor, 921 N.W.2d. at 74. Its conclusion that there was a due -process violation solely
because Dyrdahl had been misled is an erroneous application of the law. See Johnson, 911
N.W.2d at 508 (“[I]n McDonnell we did not recognize a due -process violation solely
because a driver had been misled.”). Although Dyrdahl sat isfies the first element of a
McDonnell claim because he submitted to a breath test, he cannot satisfy the other two
elements.
To establish the third element of a McDonnell claim, the implied-consent advisory
must have failed to accurately inform Dyrdahl of the legal consequences of test refusal.
At the time a breath test is requested, the person must
be informed:
(1) that Minnesota law requires the person to take a
test:
(i) to determine if the person is under the influence
of alcohol; and
(ii) if the motor vehicle was a commercial motor
vehicle, to determine the presence of alcohol;

6
(2) that refusal to submit to a breath test is a crime;
and
(3) that the person has the right to consult with an
attorney, but that this right is limited to the extent that it cannot
unreasonably delay administration of the test.

Minn. Stat. § 169A.51, subd. 2 (emphasis added).
The trooper stated that “refusal to take a test is a crime” as opposed to “refusal to
submit to a breath test is a crime.” Based on this, the distr ict court concluded that the
implied-consent advisory was misleading. But the implied -consent advisory did not
misinform Dyrdahl of the legal consequences of his test refusal. As he was only asked to
submit to a breath test and refusing to submit to a br eath test is a crime, the advisory
accurately informed him of the legal consequences of such test refusal. Minn. Stat .
§ 169A.51, subd. 2(2); see State v. Thompson, 886 N.W.2d 224, 229 (Minn. 2016) (“[T]he
Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.”).
Even if we were to conclude that the advisory failed to accurately inform Dyrdahl
of the legal consequences of test refusal, Dyrdahl cannot establish the second element of a
McDonnell claim. In Morehouse, the s upreme court emphasized that the driver must
establish, and the district court must find, prejudicial reliance in order to establish the
second factor under McDonnell. Morehouse v. Comm’r of Pub. Safety , 911 N.W.2d 503,
505 (Minn. 2018). The record here is limited because the parties stipulated to the facts and
did not present testimony. Dyrdahl admits, and the record shows, that “no specific
evidence was introduced to show [he] prejudicially or detrimentally relied on the language
of the [implied-consent advisory] in deciding whether or not to submit to a breath test.”

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As Dyrdahl did not establish, nor did the district court find, that he prejudicially
relied on the implied-consent advisory when he decided to take the breath test , he cannot
establish the second element of a McDonnell claim. Consequently, Dyrdahl is not entitled
to a rescission of his license revocation under McDonnell. Windsor, 921 N.W.2d at 74. As
the record does not show evidence sufficient to establish all three elements, a remand is
unnecessary. See id. at 75-76. Therefore, we reverse the district court’s order rescinding
the revocation of Dyrdahl’s driver’s license.
Dyrdahl argues that Johnson and Morehouse changed the law on due process and
prejudicial reliance, and therefore, we should remand so he can develop the record with
regard to those issues. Windsor recently clarified that Johnson and Morehouse did not
create “a new standard for establishing a McDonnell due-process violation [but rather]
reiterated the standard embodied in McDonnell.” Id. In Windsor, we did not see fit to order
a remand as the supreme court in Morehouse did not do so under similar circumstances. See
id. (concluding that a remand is unnecessary if the record does not show evidence sufficient
to establish all three elements). The circumstances here are similar to Morehouse and
Windsor except Dyrdahl submitted only to a breath test, which further weighs against
remand. Accordingly, we decline to remand for development of the record.
II.
Dyrdahl argues that the implied -consent advis ory also violated Minn. Stat.
§§ 169A.50-.53 because the trooper stated that “refusal to submit to a test is a crime” as

8
opposed to “breath test.”2 When the facts are undisputed in an implied -consent case, we
review questions of law de novo. Harrison v. Comm’r of Pub. Safety , 781 N.W.2d 918,
920 (Minn. App. 2010).
Although “[u]niformity in giving the implied consent advisory is highly
encouraged,” a driver’s license may still be revoked despite nonconformity with the statute
if the driver is not prejudiced. Hallock v. Comm’r of Pub. Safety , 372 N.W.2d 82, 83
(Minn. App. 1985). As discussed above, Dyrdahl did not establish he was prejudiced by
the implied-consent advisory in consenting to the breath test. Therefore, revocation of
Dyrdahl’s driver’s license is proper.
Reversed.

2 Dyrdahl also argues that the trooper violated the statute by stating “presence of alcohol”
as opposed to “under the influence of alcohol.” Although Dyrdahl presented a statutory
violation argument to the district court, his contention with the “presence of alcohol”
language is being raised for the first time on appeal. As this was not presented to and
considered by the district court, we do not consider it. See Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988) (noting that a reviewing court must only consider issues presented
to and considered by the district court).