Travis Dean Schneider, 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This opinion will be unpublished and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
A19-0673

Travis Dean Schneider, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed October 21, 2019
Reversed and remanded
Larkin, Judge

Isanti County District Court
File No. 30-CV-15-715

Steven J. Meshbesher, Meshbesher & Associates, P.A., Minneapolis, Minnesota (for
appellant)

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

Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Larkin, Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the district court’ s order sustaining the revocation of his
license to drive under Minnesota’ s implied -consent law. The district court re jected

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appellant’s argument that the implied-consent advisory in this case misinformed him of the
potential criminal penalty for refusing to submit to a blood test and therefore violated his
right to due process. We reverse and remand for the district court to rescind appellant’s
license revocation.
FACTS
In May 2015, appellant Travis Dean Schnei der crashed the motorcycle that he was
driving. Sergeant Wade Book of the Isanti County Sheriff’s Office responded to the crash
scene and suspected that Schneider had been driving while impaired (DWI). Schneider
submitted to a portable breath test, which indicated that Schneider’s alcohol concentration
was 0.13. Schneider was transported to a hospital for treatment of injuries that he sustained
in the crash. At the hospital, Sergeant Book read Schneider an implied -consent advisory
that informed him that Minnesota law required him to take a test to determine whether he
was under the influence of alcohol and that refusal to take a test is a crime. Sergeant Book
asked Schneider if he understood what Sergeant Book had just explained, and Schneider
responded affirmatively. Schneider agreed to submit to a blood test. Sergeant Book did
not obtain a search warrant authorizing the test.
The blood test revealed that Schneider’s alcohol concentration was 0.13.
Respondent Minnesota Commissioner of Public Safety revoked Schneider’s license to
drive based on the results of the test. Schneider petitioned for judicial review, seeking
rescission of the revocation in part because the implied-consent advisory was “misleading,
confusing and inaccurate and violated [his] right to due process of law under the Minnesota
and United States Constitutions.”

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The district court continued the hearing on Schneider’s petition for judicial review
five times and eventually held the hearing in October 2018, nearly three years after
Schneider petitioned for relief. At the hearing, Schneider testified that he took the test
because Sergeant Book told him that if he “didn’t take the test, that it was a crime” and he
“didn’t want to get in trouble” so he “took —whatever [test Sergeant Book] wanted [him]
to do.” Schneider limited his request for relief to his due-process claim. The district court
rejected that claim and sustained his license revocation. Schneider appeals.
D E C I S I O N
Schneider challenges the district court’s ruling that he is not entitled to rescission of
his driver’s license revocation on due -process grounds . “Whether an implied -consent
advisory violates a driver’s due-process rights is a question of law, which this court reviews
de novo.” Magnuson v. Comm’r of Pub. Safety, 703 N.W.2d 557, 561 (Minn. App. 2005).
In McDonnell v. Comm’ r of Pub. Safety , the supreme court held that an implied -
consent advisory that threatened a criminal consequence the state was not authorized to
impose violated a driver’s right to due process and that the violation required rescission of
the commissioner’s revocation of the driver’s license to drive. 473 N.W.2d 848, 855
(Minn. 1991). In Johnson v. Comm’r of Pub. Safety, the supreme court clarified that a due-
process violation under McDonnell does not occur “solely because a driver [has] been
misled” by an implied-consent advisory. 911 N.W.2d 506, 508 (Minn. 2018). Instead,
A license revocation violates due process when: (1) the person
whose license was revoked submitted to a breath, blood, or
urine test; (2) the person prejudicially relied on the implied
consent advisory in deciding to undergo testing; and (3) the

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implied consent advisory did not accurately inform the per son
of the legal consequences of refusing to submit to the testing.

Id. at 508-09 (citing McDonnell, 473 N.W.2d at 853-55).
Schneider submitted to the blood test and therefore satisfies the first part of the
McDonnell due-process test. The district court rejected Schneider’s due-process challenge
based on the second part of the McDonnell test and its determination that Schneider “failed
to establish that he prejudicially relied on the Implied Consent Advisory when he agreed
to take the blood test.”
The second part of the McDonnell due-process test requires a factual determination.
See Morehouse v. Comm’r of Pub. Safety, 911 N.W.2d 503, 505 (Minn. 2018) (rejecting a
McDonnell due-process challenge because “ the district court did not find , nor did [the
driver] claim, that [the driver] prejudicially relied on the implied consent advisory in
deciding to submit to the test”). We review a district court’s factual findings for clear error
and will not reverse those findings unless we are left with the definite and firm conviction
that a mistake has been made. Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797
(Minn. 2013). In doing so, we give “due regard . . . to the opportunity of the [district] court
to judge the credibility of the witnesses.” Minn. R. Civ. P. 52.01; see Frost v. Comm’r of
Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984) (stating that in an appeal from an
implied-consent order , “due regard w ill be given to the [district] court’s opportunity to
judge the credibility of the witnesses, and findings of fact will not be set aside unless clearly
erroneous”).

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As to prejudicial reliance, the supreme court in McDonnell explained that the driver
“would have refused to submit to testing had she not felt certain that criminal penalties
would result. It therefore appears that her interests were prejudiced when law enforcement
officials misinformed her as to her potential criminal liability.” 473 N.W.2d at 855. That
language indicates a causal connection: the certainty of criminal penalties caused the driver
to submit to testing. Indeed, that is how the Minnesota Supreme Court explained
prejudicial reliance in Johnson:
We concluded that [the McDonnell driver’s] due
process rights were violated when, after being threatened with
impossible criminal charges, she submitted to testing because
of the threatened charges . We reasoned that [the driver’s]
interests were prejudiced by the inaccurate implied consent
advisory because [the driver] would not have submitted to the
testing but for the threat of the impossible criminal penalties.

911 N.W.2d at 508 (emphasis added) (citation omitted).
In sum, Schneider had to show that he submitted to testing because of the threatened
criminal penalty. To make that showing, Schneider testified , “[Sergeant Book] told [me]
that if . . . I didn’t take the test, that it was a crime. I didn’t know what the crime was. All
I knew was that I was scared, and I took —whatever he wanted to do. I didn’t want to get
in trouble.” Schneider further testified, “I remember [Sergeant Book] explaining that I had
to do it, otherwise it was a crime or I was breaking the law.”
It is difficult to understand the district court’s finding that Schnei der did not
establish that he prejudicially relied on the implied -consent advisory. Schneider’s
testimony that he “was scared” because it was a crime to refuse the test and that he did
“whatever [Sergeant Book] wanted to do” because he “didn’t want to get in trouble”

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logically and reasonably supports a finding that he would have refused to submit to testing
but for the threat of criminal penalties, like the driver in McDonnell.
The district court did not expressly reject Schneider’s testimony that he decided to
submit to the blood test because he feared the threatened criminal consequences. However,
the district court made the following findings regarding Schneider’s credibility:
[Schneider] testified that he rec alls portions of the Implied
Consent Advisory but not all of it. He does not dispute that he
indicated “yes” when asked if he understood the Advisory.
[Schneider] also agreed that he was under the influence of
alcohol and that alcohol affects memories and that his memory
could be affected by the alcohol he had consumed that day.

Although we defer to those credibility findings, they do not support an implicit
determination that Schneider was not credible when he testified that he took the test
because he was afraid of the criminal consequences that would result from refusal.
Moreover, the district court’s rationale for rejecting Schneider’s claim of prejudicial
reliance is questionable. The district court explained:
In [Schneider’s] case, he was read th e Implied Consent
Advisory word -for-word by Sergeant Book. Sergeant Book
testified that he believed [Schneider] to be coherent enough at
the scene of the motorcycle accident to begin the investigation
into [Schneider’s] possible intoxication. Once at the hospital,
Sergeant Book did not rush into [Schneider’s] hospital room
and start reading the Implied Consent Advisory. Rather,
Sergeant Book waited until hospital staff gave Sergeant Book
permission to continue his investigation. Sergeant Book
indicated that [Schneider] did not appear confused and was
alert and responsive to his questions.
[Schneider] indicated that he understood the Implied
Consent Advisory on the day of the incident and testified that
he had no reason to dispute that he so indicated. [Schneider]
did not desire to speak with an attorney and did not ask
Sergeant Book any questions about the blood test. The Implied

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Consent Advisory was completed at 4:53 p.m., a whole hour
after [Schneider’s] motorcycle accident.

Based on that explanation, the district court found that Schneider “failed to establish
that he prejudicially rel ied on the Implied Consent Advisory when he agreed to take the
blood test.” The district court appears to have reasoned that because Schneider understood
the advisory, he did not prejudicially rely on the advisory. But contrary to that reasoning,
Schneider’s ability to understand the advisory suggests prejudicial reliance: Schneider
submitted to the test because he understood that he would be charged with a crime if he
refused.
We note that t he “prejudicial” aspect of the second part of the McDonnell due-
process test regards the impact of an allegedly inaccurate advisory on the testing decision.
See Johnson, 911 N.W.2d at 509 (“[T]here is no concern here that Johnson was prejudiced
by relying on misleading statements by the officer about the consequenc es of refusing a
test because Johnson did not submit to testing. ”). “[P]rejudicial reliance violates due
process because it deprives a driver of the meaningful choice between submitting to and
refusing a test.” Morehouse, 911 N.W.2d at 505 (quotation omitted); see McDonnell, 473
N.W.2d at 854 (explaining that “the choice between submitting to and refusing a test may
be a meaningful one to an individual driver” and that “[t]he certainty of a full year’s license
revocation may be less onerous than providing the state conclusive evidence of one’s guilt”
(quotation omitted)). If the advisory in this case did not accurately inform Schneider of
the legal consequences of refusing to submit to testing, and he relied on it in choosing to
submit to testing, he was deprived of a meaningful choice regarding the testing decision,

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regardless of the circumstances surrounding the provision of the advisory and his ability to
comprehend it.
In sum, we are left with a definite and firm conviction that a mistake has been made.
We therefore reverse the district court’s finding that Schneider did not prejudicially rely
on the implied -consent advisory. Schneider’s testimony established prejudicial reliance
and satisfied the second part of the McDonnell due-process test.
We turn to the last part of the McDonnell due-process test: whether the implied-
consent advisory did not accurately inform Schneider of the legal consequences of refusing
to submit to a test. Schneider argues that the state could not have prosecuted him for
refusing to submit to the blood test in this case and that the advisory therefore did not
accurately inform him of the legal consequence s of refusing. The commissioner does not
dispute that the third part of the McDonnell due-process test is satisfied.
Schneider’s position regarding the accuracy of the advisory is consistent with
caselaw. When the implied-consent advisory was read in this case, it was “a crime for any
person to refuse to submit t o a chemical test of the person’ s blood, breath, or u rine under
section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure;
revocation of license).” Minn. Stat. § 169A.20, subd. 2 (2014). The Minnesota Supreme
Court has since held that a driver cannot be prosecuted for refusing to submit to a blood
test that would have violated the Fourth Amendment . State v. Trahan, 886 N.W.2d 216,
224 (Minn. 2016) (citing Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016)).
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and se izures.” U.S.

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Const. amend. IV. The administration of a blood test is considered a search that must
comply with the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.
Ct. 1826, 1834 (1966). “A warrantless search is generally unreasonable, unless it falls into
one of the recognized exceptio ns to the warrant requirement.” State v. Bernard , 859
N.W.2d 762, 766 (Minn. 2015), aff’d sub nom. Birchfield v. North Dakota, 136 S. Ct. 2160
(2016). “The state bears the burden of establishing an exception to the warrant
requirement.” State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001). Yet the commissioner
does not assert that an exception justifies the warrantless blood test in this case. We
therefore conclude that Schneider’s blood test violated the Fourth Amendment.
Trahan holds that Minnesota’s criminal test -refusal statute is unconstitutional as
applied to an individual who refuses to take an unconstitutional warrantless blood test. 886
N.W.2d at 224. Because Schneider could not have been prosecuted for refusing to submit
to the unconstitutional blood test in this case , the implied -consent advisory did not
accurately inform him of the legal consequences of refusing to submit to the test. Thus,
the third part of the McDonnell due-process test is satisfied. See Johnson v. Comm’ r of
Pub. Safety, 887 N.W.2d 281, 294 (Minn. App. 2016) (concluding that because a criminal
test-refusal charge would have been unconstitutional, an implied -consent advisory
inaccurately advised a driver that refusal to take a urine test is a crime, resulting in a due-
process violation under McDonnell), rev’d on other grounds , 911 N.W.2d 506 (Minn.
2018).1

1 The supreme court has not further explained the third part of the McDonnell due-process
test. See Johnson, 911 N.W.2d at 509 (“We need not consider whether the implied consent

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Because the record establishes that the McDonnell due-process test is satisfied here,
we reverse and remand for the district court to rescind Schneider’s license revocation.
Reversed and remanded.

advisory was legally inaccurate when read to Johnson because he cannot establish the first
two elements of his McDonnell claim.”); Morehouse, 911 N.W.2d at 505 n.4 (“We do not
address whether the implied consent advisory was legally accurate when it was read or
whether accuracy is significant here because Morehouse did not claim to prejudicially rely
on the implied consent advisory when he submitted to the test.”).