Mark Jerome Johnson,

1
STATE OF MINNESOTA

IN SUPREME COURT

A19-1147

Court of Appeals Gildea, C.J.

Mark Jerome Johnson,

Respondent,

vs. Filed: March 24, 2021
Office of Appellate Courts
State of Minnesota,

Appellant.

________________________

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica May Surges, Assistant
State Public Defender, Saint Paul, Minnesota, for respondent.

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas R. Raga tz, Assistant Ramsey County
Attorney, Saint Paul, Minnesota, for appellant.

________________________

S Y L L A B U S
The rule announced in Missouri v. McNeely, 569 U.S. 141 (2013), is procedural and
does not apply retroactively on collateral review of final test-refusal convictions.
Reversed and remanded.

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O P I N I O N
GILDEA, Chief Justice.
In this case, we are asked to decide whether the United States Supreme Court’s
decision in Missouri v. McNeely, 569 U.S. 141 (2013), applie s retroactively on collateral
review of a conviction for test refusal. In 2010, Johnson was convicted of first-degree test
refusal. In 2016, Johnson filed a petition for postconviction re lief, arguing that his
conviction for refusing to submit to a warr antless blood and urine test violated the
Constitution and must be reversed. On rema nd from a prior decisi on by this court, see
Johnson v. State (Johnson I) , 916 N.W.2d 674, 685 (Minn. 2018), the district court
determined that Johnson was entitled to postconviction relief regardless of whether
McNeely applied. After the State appealed, the court of appeals concluded that McNeely is
substantive in the context of a test-refusal conviction and therefore applied retroactively to
Johnson’s conviction. Johnson v. State (Johnson II) , No. A19-1147, 2020 WL 3409773,
at *2‒3 (Minn. App. June 22, 2020). Because we hold that the rule announced in McNeely
is procedural and does not apply retroactiv ely to test-refusal convictions on collateral
review, we reverse the court of appeals and remand to the district court.
FACTS
In 2009, a police officer st opped Johnson while he was dr iving. During this stop,
Johnson admitted he had been drinking and sh owed signs of impairment. Johnson was
arrested on suspicion of driving while impair ed (DWI) and was asked to take a urine and
blood test. Johnson refused to answer and was charged with first-degree test refusal, Minn.

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Stat. §§ 169A.20, subd. 2, 169A.24 (2016). J ohnson was convicted of first-degree test
refusal in 2010.
At the time of Johnson’s conviction, we had not yet interpreted the Fourth
Amendment as requiring a warrant or a wa rrant exception to sustain a test-refusal
conviction. See Johnson I , 916 N.W.2d at 681 ‒82.1 And even if a warrant or warrant
exception had been required at that time, we considered the natural dissipation of alcohol
in a DWI suspect’s blood stream to be a single factor, per se exigent circumstance that
justified an exception to th e warrant requirement. See State v. Shriner, 751 N.W.2d 538,
546 (Minn. 2008), abrogated by McNeely, 569 U.S. at 165; State v. Netland, 762 N.W.2d
202, 214 (Minn. 2009), abrogated in part by McNeely, 569 U.S. at 165. A “single-factor”
exigent circumstance is “one in which ‘the existence of one fact alone creates exigent
circumstances.’ ” Shriner, 751 N.W.2d. at 542 (quoting In re Welfare D.A.G., 484 N.W.2d
787, 791 (Minn. 1992)). In s hort, our precedent at the time of Johnson’s conviction said
that an exigency existed whenever an officer had probable cause to believe that a defendant
committed “a crime in which chemical impairment is an element of the offense.” Netland,
762 N.W.2d at 214.
Two Supreme Court cases have since alte red Fourth Amendment jurisprudence in
the DWI and test-refusal context. The first of these cases is McNeely, which involved a
driver who was charged with DWI after a warrantless, nonconsensual blood sample was

1 In Johnson I, we addressed both Johnson’s 2010 and 2014 test-refusal convictions.
916 N.W.2d at 677‒78. In this appeal, however, only Johnson’s 2010 conviction is before
us.

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taken from him. 569 U.S. at 146. The Supr eme Court held that alcohol dissipation does
not present a per se exigent circumstance justifying a warrantless blood test of a DWI
suspect. 569 U.S. at 150–51, 165. The Cour t explained that the exigent circumstances
exception requires examination of the “totality of the circumstances.” Id. at 150–51. While
one of those circumstances certa inly is alcohol dissipation when a driver is suspected of
DWI, alcohol dissipation, by itself, is not “an ex igency in every case sufficient to justify
conducting a blood test without a warrant.” Id. at 150–51, 165. Instead, the Court
concluded that:
[W]hile the natural dissipation of alcohol in the blood may support a finding
of exigency in a specific case, . . . it does not do so categorically. Whether a
warrantless blood test of a drunk-dr iving suspect is reasonable must be
determined case by case based on the totality of the circumstances.

Id. at 156.
The second Supreme Court case is Birchfield v. North Dakota , 579 U.S. ___,
136 S. Ct. 2160 (2016), which was decided after McNeely.2 A more detailed analysis of
the Birchfield rule may be found in Johnson I. See 916 N.W.2d at 679. In sum, the
Birchfield rule says that test refusal by a suspected impaired driver may be criminalized
consistent with the Fourth Amendment only when there is a warrant for the test or a warrant
exception applies. Birchfield, 579 U.S. at ___, 136 S. Ct. at 2186; see also Johnson I ,
916 N.W.2d at 679.

2 We followed Birchfield in State v. Trahan, 886 N.W.2d 216, 221 (Minn. 2016), and
State v. Thompson , 886 N.W.2d 224, 234 (Minn. 2016). We refer to the rule of law set
forth in these three cases as “the Birchfield rule.”

5
After Birchfield was announced, Johnson petitione d for postconviction relief,
arguing that the Birchfield rule applied retroactively to hi s 2010 conviction. The district
court denied relief, and the court of appeals affirmed. Johnson v. State, 906 N.W.2d 861,
867 (Minn. App. 2018). We reversed, holding that the Birchfield rule applied retroactively
to Johnson’s conviction because Birchfield announced a substantive rule. Johnson I,
916 N.W.2d at 684–85. Specifically, we said that the Birchfield rule “placed a category of
conduct outside the State’s power to punish. Now, a suspected impaired driver may only
be convicted of test refusal if that person refu sed a breath test or re fused a blood or urine
test that was supported by a warran t or a valid warrant exception.” Id. at 683. When
remanding the case to the district c ourt with instructions to apply the Birchfield rule, we
expressly declined to address whether McNeely also applied retroactively. Id. at 684 n.8.
On remand, the district court likewise declined to resolve whether McNeely applied
retroactively. Under either standard—the pre- McNeely per se approach or the post-
McNeely totality-of-the-circumstances approach—t he district court determined that
Johnson was entitled to postconviction relief. The State appealed.
The court of appeals reversed but held in relevant part that McNeely applied
retroactively. Johnson II, 2020 WL 3409773, at *2.3 We granted the State’s petition for
review.

3 Relying on Fagin v. State, 933 N.W.2d 774 (Minn. 2019), the court of appeals held
that the district court erroneously placed the burden of proof on the State to show exigent
circumstances existed to justify a warrantless search of Johnson’s blood and urine and, on
that basis, remanded to the district court. Johnson II, 2020 WL 3409773, at *3. Neither
party challenged this portion of the court of appeals’ decision and so that issue is not before
us.

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ANALYSIS
The only issue befo re us is whether McNeely applies retroactively to Johnson’s
petition for postconviction relief. We review de novo whether a rule of federal
constitutional law has retroactive effect. Johnson I, 916 N.W.2d at 681. Before turning to
the parties’ arguments, a brief discussion of our retroactivity framework is needed.
A.
To determine whether a rule of constitutio nal law applies retroa ctively, we apply
the framework articulated in Teague v. Lane , 489 U.S. 288 (1989). Danforth v. State ,
761 N.W.2d 493, 498–99 (Minn. 2009). Under Teague, the first step is to determine
whether a case announces a “new” rule. 489 U. S. at 301. New rules retroactively apply
only on direct review and gene rally do not apply on collateral review of convictions that
were final before the new rule was announced. Id. at 305–10. The parties agree that
McNeely is a new rule. To apply retroactively in Johnson’s postconviction challenge, then,
McNeely must fall into a Teague exception. There are two such exceptions: a new rule
may be applied retroactively first, if it is substantive, as compared to procedural, or second,
if it is a “watershed” rule of criminal procedure. See Schriro v. Summerlin, 542 U.S. 348,
351–52 (2004). The parties agree that McNeely is not a watershed rule, and therefore the
only question is whether McNeely falls under the first Teague exception.
The first Teague exception applies only to substantive rules, as opposed to
procedural rules. Id. New substantive rules include t hose that “narrow the scope of a
criminal statute by interpreting its terms, as well as constitutional determinations that place
particular conduct or persons covered by the statute beyond the State’s power to punish.”

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Id. (internal citation omitted). A rule that “modifies the elements of an offense is normally
substantive rather than procedural.” Id. at 354.
Substantive rules apply retroactively on collateral review because a defendant may
“stand[] convicted of an act that the law does not make criminal or face[] a punishment that
the law cannot impose upon him.” Id. at 352 (citation omitted) (internal quotation marks
omitted). In Penry v. Lynaugh, the Court clarified that the first Teague exception covers
“not only rules forbidding criminal punishment of certain primary conduct but also rules
prohibiting a certain category of punishment fo r a class of defendants because of their
status or offense.” 492 U.S. 302, 330 (1989), abrogated on other grounds , Atkins v.
Virginia, 536 U.S. 304 (2002).
By contrast, a rule is procedural if it “regulate[s] only the manner of determining
the defendant’s culpability.” Schriro, 542 U.S. at 353. Proced ural rules “do not produce
a class of persons convicted of conduct the law does not make criminal, but merely raise
the possibility that someone co nvicted with use of the inva lidated procedure might have
been acquitted otherwise.” Id. at 352. These rules include those that “alter[] the range of
permissible methods for determining whether a defendant’s conduct is punishable.” Id. at
353.
B.
We now address the parties’ argumen ts. The parties dispute whether McNeely
retroactively applies to Johnson’s 2010 test-re fusal conviction. Johnson concedes that
McNeely is procedural in the DWI context, but in the test-refusal context, he argues,

8
McNeely is substantive. Essentially, Johnson’ s position is that a rule can be both
procedural and substantive depending on the context in which it is applied.
The State responds that a rule cannot be both substantive and procedural under
Teague. McNeely must be one or the other, not both, sa ys the State. In the alternative,
even if Johnson is correct that a rule’s classification under Teague can change depending
on the context, the State contends that McNeely is still procedural in the test-refusal context.
We agree with the State’s alternative argument.4
McNeely is the same rule regardless of whether the underlying crime is test refusal
or DWI. In both cases, McNeely controls the “manner of determining” whether an exigency
exists. See Schriro, 542 U.S. at 353. Specifically, it requires that the exigent circumstances
exception be examined by looking at the totality of the circumstances instead of treating it
as a categorical, per se exception by looking only at the fact of alcohol dissipation.
McNeely, 569 U.S. at 156. In other words, exigent circumstances was a valid exception to
the warrant requirement both before and after McNeely. The Court in McNeely simply
clarified how the State proved that exception.
This analysis does not change in the test-r efusal context. In test-refusal cases,
McNeely “alter[s] the range of permissible methods for determining whether a defendant’s
[refusal of a test] is punishable,” Schriro, 542 U.S. at 353, becaus e states may no longer

4 The State’s primary argumen t asks us to broadly hold th at a rule may not be both
procedural and substantive under Teague depending on the contex t in which the rule is
applied. But becau se we hold that McNeely is procedural in the test-refusal context, we
need not address that argument. See Lipka v. Minn. Sch. Emps. Ass’n, Local 1980 ,
550 N.W.2d 618, 622 (Minn. 19 96) (“[J]udicial restraint bids us to refrain from deciding
any issue not essential to the disposition of the particular controversy before us.”).

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rely on alcohol dissipation alone but must now look to the totality of the circumstances to
determine whether a test refusal is criminal in the absence of a warrant. Far from placing
“certain kinds of primary, pr ivate individual conduct beyond the power” of the State to
proscribe, Teague, 489 U.S. at 307, McNeely simply alters the facts that must be considered
to determine whether the exig ent circumstances exception ap plies to a warrantless blood
or urine test. And because that exception merely regulates the manner of determining
whether a test refusal is punishable under the Birchfield rule, we hold that the rule
announced by McNeely is procedural and therefore does not apply retroactively to final
convictions on collateral review.
In urging us to hold otherwise, Johnson essentially argues that the consequences of
exigency differ from the DWI context to the test-refusal context. In his view, whether the
exigent circumstances exception applies in a test-refusal case goes to whether a defendant’s
conduct is punishable at all because, under the Birchfield rule, a person’s refusal of a test
may not be criminalized absent a warrant or warrant exception. Birchfield, 579 U.S. at
___, 136 S. Ct. at 2186. Jo hnson therefore concludes that McNeely does more than alter
the manner in which a test refusal is pr oven because it “narrow[s] the scope” and
“modifie[s] the elements of the offense” of test refusal itself. Schriro, 542 U.S. at 351–52,
354. We are not persuaded.
In the test-refusal context, just as in the DWI context, McNeely requires that the
totality of the circumstances be considered when determining whether an exigency exists.
In examining the totality of the circumstances instead of just the fact of alcohol dissipation,
Johnson is correct that the State may sometimes be required to obtain a warrant to secure

10
a blood or urine test in instances when it was previously not required to do so. 5 A n d
Johnson is further correct that, in a smaller subset of thos e instances—those in which the
State actually fails to obtain a warrant—the Birchfield rule says that the test refusal cannot
be criminalized.
But Johnson is wrong in concluding that McNeely operates substantively in a test-
refusal case. Johnson’s error is that he conflates the Birchfield rule with McNeely. In the
instances that Johnson describes, it is the Birchfield rule, not McNeely, that places the test
refusal beyond the power of the State to criminalize. McNeely identifies what the court is
to examine—the totality of th e circumstances—in deciding wh ether an exception to the
warrant requirement is met. But Birchfield provides the rule that places conduct outside
the power of the State to crimin alize. For this reason, we reject Johnson’s argument that
McNeely functions substantively in the test-refusal context.
Johnson further argues that McNeely must be substantive, and therefore retroactive,
because it is similar to rules that were found to be substantive in Montgomery v. Louisiana,

5 To prove exigency under our former test, it was sufficien t to show that the officer
had probable cause to believe that a driv er was operating a vehicle while under the
influence of alcohol. See Netland, 762 N.W.2d at 214. That one fact alone constituted
exigent circumstances based on the rapidly dissipating alcohol concentration evidence. See
id. A f t e r McNeely, to determine if exigent circ umstances justify a warrantless,
nonconsensual blood test of a suspected dr unk driver, the inquiry is whether “it was
objectively reasonable for the officer to conc lude that he or she was faced with an
emergency, in which the delay necessary to obtain a warrant would significantly undermine
the efficacy of the search” based on all of the facts “reasonably available to the officer at
the time of the search.” State v. Stavish, 868 N.W.2d. 670, 676 ‒77 (Minn. 2015) (citing
McNeely, 569 U.S. at 152). There may be instan ces, then, when an exigency would have
existed under the pre-McNeely standard but not under the post-McNeely standard.

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577 U.S. ___, 136 S. Ct. 718 (2016), Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257
(2016), and Bousley v. United States, 523 U.S. 614 (1998). We disagree.
In Montgomery, the Court addressed whether Miller v. Alabama , 567 U.S. 460
(2012), applied retroactively on co llateral review. 577 U.S. at ___, 136 S. Ct. at 725.
Miller held that “the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of pa role for juvenile offenders.” 567 U.S. at 479. The
Montgomery Court concluded that Miller put certain defendants beyond the State’s power
to punish, and was therefore substantive, be cause it rendered life in prison without the
possibility of parole “an unconstitutional penalty for ‘a class of defendants because of their
status’—that is, juvenile offenders whose crimes reflect the transient immaturity of youth,”
as opposed to the “rare juvenile offender w hose crimes reflect irreparable corruption.”
577 U.S. at ___, 136 S. Ct. at 734 (first quoting Penry, 492 U.S.at 330, then quoting Miller,
567 U.S. at 479‒80).
Johnson suggests that McNeely, as applied by Birchfield, similarly places a group
of defendants beyond the State’s power to punish. According to Johnson, McNeely renders
immune from punishment persons who refused a warrantless blood test when the only fact
indicating that a warrant exception might apply is the fact of alcohol dissipation. Because
Montgomery held Miller to be substantive due to its pl acement of certain defendants
beyond the power of the state to punish, and because McNeely, in conjunction with the
Birchfield rule, similarly results in defendants being placed beyond the power of the State
to punish, Johnson concludes that McNeely is substantive.

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This argument is unpersuasive because it conflates McNeely with the Birchfield rule.
As we explain above, McNeely does not place test refusers beyond the power of the State
to punish; it is the Birchfield rule that does so.6
Welch and Bousley are also distinguishable. The issue in Welch was whether
Johnson v. United States , 576 U.S. ___, 135 S. Ct. 2551 ( 2015), applied retroactively on
collateral review. 578 U.S. ___, 136 S. Ct. at 1260 ‒61. Johnson held that the residual
clause of the Armed Career Criminal Ac t (“ACCA”) was void for vagueness under the
Fifth and Fourteenth Amendments ’ Due Process Clauses. 576 U. S. at ___, 135 S. Ct. at
2556, 2563. The Court in Welch explained that, before Johnson, an offender would be
sentenced to a 15-year prison sentence if ev en one of their three prior offenses fell under
the ACCA’s residual clause. 578 U.S. at ___, 136 S. Ct. at 1265. But after Johnson, an
offender engaging in the exact same conduct could not be so sentenced. Id. Johnson was
therefore substantive because it limited the scope of the ACCA. Id.
In Bousley, the Court addressed whether Bailey v. United States , 516 U.S. 137
(1995), was substantive. 523 U.S. at 617 ‒18. Bailey stated that the mere possession of a
firearm was inadequate to sa tisfy the “use of a firearm” requirement under 18 U.S.C.
§ 924(c)(1). 516 U.S. at 144. Instead, the government needed to prove “active
employment,” such as “brandishing, displayi ng, bartering, striking with, and, most

6 Montgomery relied on Penry, 492 U.S. at 330, which st ated that substantive rules
include those that “prohibit[] a certain category of punishment for a class of defendants
because of their status or offense.” See Montgomery 577 U.S. at ___, 136 S. Ct. at 728
(quoting Penry, 492 U.S. at 330) (emphasis added). McNeely does not prohibit a category,
or type, of punishment for any criminal offense. Accordingly, McNeely is not substantive
under the reasoning used in Penry.

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obviously, firing or attemp ting to fire a firearm.” Id. at 148. In Bousley, the Court
explained that Bailey announced a substantive rule because Bailey held “that a substantive
federal criminal statute does not reach certain conduct,” putting that conduct “ ‘beyond the
power of the criminal law-making authority to proscribe.’ ” 523 U.S. at 620 (quoting
Teague, 489 U.S. at 311).
McNeely is different from the rules examined in Johnson, Welch and Bousley.
Unlike Johnson, McNeely renders no part of a statute void for vagueness. And unlike
Bailey, McNeely does not interpret the terms of a crimin al statute, narrowing the type of
conduct that is criminally pu nishable. In short, both of those decisions “narrow[ed] the
scope of a criminal statute” and thus were substantive. Schriro 542 U.S. at 351‒52 (citing
Bousley, 523 U.S. at 620–21). McNeely does not similarly narrow the scope of a criminal
statute and is thus distinguishable.
In sum, McNeely simply requires consideration of the totality of the circumstances
in determining whether the exigent circumstances exception applies to a warrantless blood
test. 569 U.S. at 150–51, 156. In the test -refusal context, then, it governs the manner of
determining whether a test refusal may be crim inalized. We therefor e hold that the rule
announced by McNeely is procedural in the test-refu sal context and does not apply
retroactively to Johnson’s postconviction challenge.
C.
Turning to the disposition, the State suggests that the district court applied the wrong
standard to assess exigency. We agree. The district court reasoned that the State needed
to show “time wasting behavior, misusing attorney time, extreme illness, evading arrest, or

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dangerous behavior” to show that “there were , in fact, exigent circ umstances with regard
to the dissipation of alcohol necessitating a warrantless search.”
The district court err oneously applied our pre- McNeely precedent. Under that
precedent, we had expressly rejected the argument that exigent circumstances did not exist
if “the State did not show that concerns” regarding the dissipation of alcohol content
evidence “motivated” the o fficer to obtain a blood test without a warrant. Netland,
762 N.W.2d at 214; see also Shriner , 751 N.W.2d at 540 (c oncluding that exigent
circumstances existed even though “[t]he offi cer who transported Shriner to the hospital
for the blood draw admitted that he was not worried that Shriner was ‘about to slip under
the legal limit’ ”). Our precedent was clear that “ one fact alone creates exigent
circumstances.” Shriner, 751 N.W.2d at 542 (quoting D.A.G., 484 N.W.2d at 791). And
the one fact that created exigent circumstances was “the rapidly dissipating blood-alcohol
evidence.” Netland , 762 N.W.2d at 214; see also id. (holding that “und er the exigency
exception, no warrant is necessary to secure a blood-alcohol test where there is probable
cause to suspect a crime in which chemical impairment is an element of the offense”).
Because McNeely does not apply retroactively to Johnson’s test-refusal conviction
and because the district court di d not properly articulate the pre- McNeely standard for
exigent circumstances, we once again remand to the district court to determine if the test-
refusal statute was unconstitutional as applied to Johnson.

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CONCLUSION
For the above reasons, we reverse the court of appeals and remand to the district
court for further proceedings consistent with this opinion.
Reversed and remanded.