Weston Palmer Harbison, 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This opinion will be unpublished and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
A19-1191

Weston Palmer Harbison, petitioner,
Respondent,

vs.

State of Minnesota,
Appellant.

Filed June 15, 2020
Reversed and remanded
Slieter, Judge

Ramsey County District Court
File No. 62-CR-13-2915

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for respondent)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, St. Paul, Minnesota; and

Adam E. Petras, Special Assistant County Attorney, Minneapolis, Minnesota (for
appellant)

Considered and decided by Slieter, Presiding Judge; Bjorkman, Judge; and Jesson,
Judge.

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U N P U B L I S H E D O P I N I O N
SLIETER, Judge
In this appeal from an order granting postconviction relief and vacating respondent’s
conviction of first-degree test refusal, appellant argues that the district court erred by
placing the burden of proof on the state to establish an exception to the warrant
requirement. Because recent precedent places the burden of proof on the petitioner to
establish the existence of an exception to the warrant requirement, we reverse and remand
for further proceedings.
FACTS
Respondent Weston Palmer Harbison was involved in a single-vehicle crash in 2013
in White Bear Lake. Harbison could not explain to the responding state trooper how the
crash happened. Ultimately, the trooper placed Harbison under arrest and brought him to
Regions Hospital for chemical testing. Without obtaining a search warrant from a judge,
the trooper read the implied-consent advisory and asked Harbison for a sample of his blood
or urine. Harbison refused both tests.
The state charged Harbison with first-degree refusal to submit to a chemical test, in
violation of Minn. Stat. § 169A.20, subd. 2 (2012). Harbison pleaded guilty to the offense
in June 2013 and was sentenced to 66 months in prison. Harbison petitioned for
postconviction relief in November 2018 on the grounds that his conviction must be
reversed based upon new caselaw that established that a person cannot be convicted for
refusing a blood or urine test absent a warrant or exigent circumstances justifying a
warrantless blood or urine search.
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The district court determined that the sta te bore the burden of establishing the
presence of exigent circumstances to justify an exception to the warrant requirement. After
this determination, the state conceded that it could not meet this burden. The district court
issued an order granting relief and vacating Harbison’s conviction. The state appeals,
arguing that the district court incorrectly placed the burden of proof on the state.
D E C I S I O N
Appellate courts review a district court’s postconviction decision for an abuse of
discretion. See Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017). A district court
abuses its discretion if it bases its postconviction ruling on an erroneous view of the law,
and legal issues are reviewed de novo. Id.
As relevant background, Birchfield v. North Dakota established that a person cannot
be convicted for refusing a blood test absent a search warrant or exigent circumstances
justifying a warrantless blood search. 136 S. Ct. 2160, 2185-86 (2016). Minnesota has
since established similar requirements for blood and urine testing. See State v. Trahan,
886 N.W.2d 216, 221 (Minn. 2016) (blood); State v. Thompson, 886 N.W.2d 224, 234
(Minn. 2016) (urine). These rules apply retroactively to final convictions on collateral
review, although reversal is not automatic. Johnson v. State, 916 N.W.2d 674, 684 (Minn.
2018). The supreme court ruled that, upon remand, the district court must hold a hearing
to make a “case-by -case determination[] to assess whether there was a warrant or an
exception to the warrant requirement sufficient to sustain test-refusal convictions under the
Birchfield rule.” Id. In Fagin v. State, the supreme court clarified that the petitioner has
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the burden of proving that no search warrant and no applicable exception to the warra nt
requirement existed. 933 N.W.2d 774, 780 (Minn. 2019).
The supreme court acknowledged in Fagin that placing the burden of proving that
no warrant and no warrant exception existed on the petitioner creates an odd and
inequitable situation in which the petitioner has to “prove two negatives” while the state
can remain silent and not specify which warrant exception applied. Id. at 780. In an
attempt to mitigate this problem, the supreme court created a “heightened” pleading
requirement in postconviction test-refusal cases under which the state must “controvert the
petitioner’s allegations of lack of a warrant or the lack of an exception” in a responsive
answer or motion, or the argument will be deemed waived. Id. Specifically, if no warrant
issued and the postconviction petition alleges that no warrant exception applies, the state’s
responsive pleading must either admit the la ck of an exception or specify the exception
relied on and the grounds for reliance. Id. “The exception and its grounds must be pleaded
in sufficient detail to give the petitioner adequate notice of the State’s position.” Id. In
light of Fagin, the district court abused its discretion in placing the burden on the state.
Harbison argues that—even if the district court erred in placing the burden of proof
on the state—the case need not be reversed and remanded for two reasons: (1) the state
forfeited any claim of an exigent circumstance exception to the warrant requirement
because it conceded that no exception existed, and (2) the record contains evidence
sufficient for our court to determine that no additional exception applies even if other
claims by the state of a warrant exception are not forfeited. The state disputes that it
forfeited other claims to the presence of a search warrant exception and contends that the
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case must be remanded to comply with the burden of proof and pleading requirements of
Fagin.1
Given the pleading requirements of Fagin, we believe the case should be remanded
for proceedings consistent with Fagin and with the burden of proof placed on Harbison.
On remand, the district court may address the parties’ argument. The district court is in a
better position to assess the record and decide these issues.
In sum, the order granting postconviction relief and vacating respondent’s
conviction of first-degree test refusal is reversed and the matter is remanded for
proceedings consistent with the proper burden of proof and new pleading requirements set
forth in Fagin.
Reversed and remanded.

1 The state argues that it will assert on remand that no judge was available at the time of
the accident in 2013 to grant a search warrant and that Harbison will have the burden of
establishing a judge was available. Because we are remanding for further proceedings, we
need not consider the viability of such argument.