Eric Kenny Hagerman, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1526

Eric Kenny Hagerman, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 23, 2021
Affirmed
Smith, Tracy M., Judge

Ramsey County District Court
File No. 62-CR-11-9339

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Lyndsey M. Olson, St. Paul City Attorney, Steven E. Heng, Assi stant City Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Johnson, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Eric Kenny Hagerman was convicted of test refusal in 2011 after refusing
to provide a blood or urine sample following his arrest for driving while impaired (DWI).
He petitioned for postconviction relief in 2 017, arguing that his conviction must be
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reversed under the Birchfield rule, which holds that the state may not criminalize a
suspected impaired driver’s refusal to submit to a blood or urine test in the absence of a
search warrant or a valid excepti on to the warrant requirement. See Johnson v. State, 916
N.W.2d 674, 678 n.2, 679 (Minn. 2018) ( Johnson I ). The district court applied the
Birchfield rule and concluded that Hagerman’s conviction was constitutional because, at
the time of Hagerman’s test refusal, a per se exigent-circumstances exception to the warrant
requirement applied. The distri ct court declined to retroac tively apply the United States
Supreme Court’s 2013 decision in Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552
(2013), which invalidated the per se exigent-circumstances exception, because it reasoned
that McNeely did not announce a substantive rule of law that applies retroactively to
Hagerman’s case.
On appeal, we concluded that the rule announced in McNeely is substantive and
applies retroactively in the context of test-refusal cases challenged under the Birchfield
rule. Hagerman v. State , 945 N.W.2d 872 (Minn. App. 2020), vacated (Minn. Apr. 20,
2021) (mem.). Because the stat e relied on the per se exig ent-circumstances exception
invalidated by McNeely to justify the warrantless test re quest, we held that Hagerman’s
test-refusal conviction was unconstitutional and accordingly reversed. Thereafter, the
Minnesota Supreme Court held that “the rule announced in McNeely is procedural and does
not apply retroactively to test-refusa l convictions on collateral review.” Johnson v. State,
956 N.W.2d 618, 620 (Minn. 2021) ( Johnson II). The supreme court vacated our opinion
in this case and remanded the matter for reconsideration in light of Johnson II.
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Hagerman maintains on remand that his conviction should be reversed or, in the
alternative, that the case should be remand ed for further development of the record
regarding the existence of exigent circumstan ces in this case. But, because the supreme
court’s decision in Johnson II allows the state to rely, as it did, on the pre-McNeely per se
exigent-circumstances exception, and because Ha german conceded in district court that,
under pre-McNeely law, the per se exigent-circumstan ces exception justified the request
for a blood or urine test in his case, we affirm.
FACTS
In November 2011, St. Paul police officers arrested Hagerman on suspicion of drunk
driving after Hagerman’s vehicle ran a red light, struck the median, and rolled over.
According to the criminal complaint, Hagerman attempted to flee the scene on foot before
being apprehended and transported to the ho spital. An officer observed that Hagerman
appeared “obviously intoxicated” because he smelled of alcohol and had glassy eyes, and
Hagerman admitted to the officer that he ha d been drinking “a little.” Hagerman declined
to submit to preliminary breath testing. The officer then read him the implied-consent
advisory and asked him to submit to blood or urine testing but did not obtain a search
warrant for a blood or urine sample. Hagerman refused to submit to either test.
The state charged Hagerman with third-degree test refusal in violation of Minn. Stat.
§ 169A.20, subd. 2 (2010), and fourth-degree DWI in violation of Minn. Stat. § 169A.20,
subd. 1(1) (2010). Hagerman pl eaded guilty to and was convicted of third-degree test
refusal, and the state dismissed the fourth-deg ree DWI charge. As part of his guilty plea,
Hagerman admitted that he had “consumed enough alcohol to impair [his] ability to drive”
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at the time of the accident. He also agreed that, when the o fficers asked him to submit to
chemical testing, “they knew [he had] been drinking based upon their observations.”
In 2016, the United Stat es Supreme Court decided Birchfield v. North Dakota, 136
S. Ct. 2160 (2016), and the Minnesota Supreme Court correspondingly decided State v.
Trahan, 886 N.W.2d 216 (Minn. 2016), and State v. Thompson, 886 N.W.2d 224 (Minn.
2016). These three cases collectively make up “the Birchfield rule,” which holds that states
may not criminalize a suspected impaired driver’s refusal to submit to a blood or urine test
in the absence of a search warrant or a valid exception to the warrant requirement. See
Johnson I , 916 N.W.2d at 678 n.2, 679. In Ju ly 2017, Hagerman filed a petition for
postconviction relief under the Birchfield rule, arguing that his conviction violated the
constitution because it was based on refusing to submit to a warrantless blood or urine test
in the absence of an exception to the warrant requirement.
The district court denied Hagerm an’s petition, determining that the Birchfield rule
did not apply retroactively to final convictions. Hagerman appealed, and in April 2018, this
court stayed the appeal pending a decision by the Minnesota Supreme Court in Johnson I.
In Johnson I , the supreme court held that Birchfield announced a substa ntive rule that
applies retroactively to convictions that we re final before the rule was announced. 916
N.W.2d at 677. The supreme court remanded Johnson’s case to the district court to
determine “whether a warrant or an exception to the warrant requirement existed at the
time of the test refusal,” id. at 684-85, and this court likewise reversed and remanded
Hagerman’s case to the district court for further proceedings consistent with Johnson I.
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On remand, the state asserted in the district court that one exception to the warrant
requirement existed at the time of Hagerman’s test re fusal: the per se exigent-
circumstances exception. Under the per se ex igent-circumstances exception, the natural
dissipation of alcohol in the blood stream constitutes a per se exigency justifying a
warrantless search. O’Connell v. State, 858 N.W.2d 161, 165 (Minn. App. 2015), review
granted (Minn. Mar. 25, 2015), review denied (Minn. Oct. 20, 2015). The Supreme Court
invalidated the per se exigent-circumstances exception in 2013 in McNeely, 569 U.S. 141,
133 S. Ct. 1552, but the state argued that McNeely did not apply retroactively to
Hagerman’s 2011 conviction.
Hagerman argued in response that McNeely does apply retroactively and that the
state accordingly could not rely on the per se exigent-circumstances exception to support
his conviction. He submitted that his case turned on the single legal question of whether
“warrant exceptions [are] defined by current la w, or by prior law,” and that, “[i]f warrant
exceptions are defined by prior law, no hearing is necessary.” He conceded that, “[i]f the
state is correct” that the per-se exigent-circ umstances exception applies to his case, “a
hearing would be futile—indeed, the entire remand process undertaken by the supreme
court and the court of appeals would have been a waste.”
The district court again denied Hage rman’s petition for pos tconviction relief,
determining that McNeely did not apply retroactively to Hagerman’s case and that the pre-
McNeely per se exigent-circumstan ces exception justified th e warrantless blood or urine
test at the time of Hagerman’s test refusal. Hagerman appealed, and this court reversed,
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holding that the McNeely rule applies retroactively when a petitioner challenges a final
conviction for test refusal under the Birchfield rule. Hagerman, 945 N.W.2d at 874, 881.
Hagerman filed a petition for further revi ew with the supreme court. The supreme
court granted review and stayed th e proceedings pending its decision in Johnson II. In
Johnson II, the supreme court held that “[t]he rule announced in Missouri v. McNeely is
procedural and does not apply retroactively on collateral review of final test-refusal
convictions.” 956 N.W.2d at 620 (citation omitte d). The supreme court then vacated this
court’s decision in Hagerman and remanded the case for rec onsideration in light of its
decision in Johnson II.
We reinstated Hagerman’s appeal a nd ordered supplemental briefing from the
parties addressing the impact of Johnson II. Both parties submitted supplemental briefing,
and we now reconsider the matter in light of Johnson II.
DECISION
Appellate courts generally review a distri ct court’s denial of postconviction relief
for an abuse of discretion. Dikken v. State , 896 N.W.2d 873, 8 76 (Minn. 2017). “A
postconviction court abuses its discretion when it has exercised its discretion in an arbitrary
or capricious manner, based its ruling on an e rroneous view of the la w, or made clearly
erroneous factual findings.” Pearson v. State , 891 N.W.2d 590, 596 (Minn. 2017)
(quotations omitted). Legal issues are reviewed de novo. Id.
Hagerman petitioned for postconviction relief under the Birchfield rule, arguing that
the officer who requested the blood or urine test did not have a warrant and that no
exception to the warrant requirement applied. The state asserted that the pre-McNeely per
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se exigent-circumstances exception applied at the time of Hagerman’s test refusal and that
that exception justified the warrantless blood or urine test. The district court agreed with
the state and denied Hagerman’s request fo r postconviction relief w ithout an evidentiary
hearing.
On appeal, Hagerman argued that th e district court erred because the McNeely rule
is substantive and applies retroactively when a petitioner challenges a final conviction for
test refusal under the Birchfield rule. His briefing focused on the McNeely-retroactivity
argument and did not raise any other challenges to the district court’s order.
The supreme court has no w squarely decided, in Johnson II , that “the rule
announced by McNeely is procedural in the test-refu sal context and does not apply
retroactively” in postconviction challenges to convictions that were final before McNeely.
Johnson II, 956 N.W.2d at 626. Hagerman’s conviction became final on February 19, 2012,
and McNeely was decided on April 17, 2013. Thus, the district court correctly determined
that the McNeely rule did not apply retroactively to Hagerman’s conviction and that the
state could rely on the pre- McNeely per se exigent-circumstances standard to justify the
warrantless blood or urine test request.
In his supplemental briefing following th e supreme court’s remand in this matter,
Hagerman concedes that, in light of Johnson II, his challenge to his test-refusal conviction
is “governed by the pre- McNeely definition of the exigent circumstances warrant
exception.” He argues, though, that this c ourt should nevertheless reverse his conviction
because “the state has failed to adequately assert a valid warrant exception” under the
pleading requirements of Fagin. See Fagin v. State, 933 N.W.2d 774, 780-81 (Minn. 2019).
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Alternatively, he argues that the case should be remanded “for further development of the
record on whether the exigent circumstances exception under pre-McNeely law applies” to
his case.
In Fagin, the supreme court outlined a three- step procedure that a postconviction
petitioner and the state must follow in cases challenging test-refusal convictions under the
Birchfield rule. Id. at 780. First, the postconviction petitioner “must affirmatively allege
that no search warrant was issued and that (at least upon information or belief) no warrant
exception was applicable.” Id. Second, the pleading obligatio n shifts to the state, which
“shall admit or deny the existence of a warrant.” Id. Third, and if no warrant issued, the
state “shall admit the lack of an exception or, alternatively, state specifically the exception
relied on and the grounds for the State’s reliance.” Id. Ultimately, “the burden of proof in
a Birchfield/Johnson postconviction proceeding is on the petitioner, . . . [and] the petitioner
must prove two negatives: no warrant and no exception.” Id.
While we recognize that Fagin had not yet been decided when this matter was
pending in district court,1 we nonetheless conclude that the pleading standard outlined in

1 The district court issued its second order denying postconviction relief in July 2019, and
Hagerman filed the notice of appeal in this case in Se ptember 2019. The supreme court
issued the Fagin opinion in October 2019. See Fagin, 933 N.W.2d at 774.

We note that, on appeal, the state argues that Hagerman “forfeited” his argument regarding
the adequacy of the state’s pleadings under Fagin. See, e.g., Roby v. State , 547 N.W.2d
354, 357 (Minn. 1996) (explaining that appella te courts generally decline to consider
matters not first argued to and considered by the district c ourt). Given the timing of the
Fagin decision relative to Hagerman’s case, though, we disagree that the typical forfeiture
rule applies. In any event, we elect to addr ess Hagerman’s argument in the interest of
judicial economy. See, e.g., Bode v. Minn. Dep’t of Nat. Res., 612 N.W.2d 862, 869 (Minn.
2000) (addressing an issue to avoid the “exercise in judicial inefficiency” that would result
9
Fagin was satisfied here. Hagerman satisfied the first step by affirmatively alleging, in his
postconviction petition memorandum, that the officer who asked him to submit to a urine
or blood test did not have a warrant and that no exigent circ umstances justified a
warrantless test. The state in itially responded by arguing that Hagerman could not
challenge his conviction under the Birchfield rule because that rule is not substantive and
retroactively applicable, and the district court agreed. Later though, after remand following
the supreme court’s Johnson I decision that the Birchfield rule is substantive and
retroactively applicable, the state filed a supplemental response to the postconviction
petition. In its supplemental response, the state met its pleading obligations under steps two
and three of the Fagin procedure. The state conceded that it did not have a warrant for the
search and that it needed to “show that a valid exception to the warrant requirement applies
to uphold [Hagerman’s] petition.” The state then affirmatively asserted the per se exigency
exception that existed at the tim e of Hagerman’s test refusal, contending that, “[b]ecause
[Hagerman’s] case was final before McNeely was decided, the natural dissipation of
alcohol constitutes a per se exigent circumstance.”
Hagerman contends that the state should ha ve asserted the exception that it relied
on with more specificity. But Fagin provides that the state must assert the warrant
exception it relies on in order “to give the petitioner adequate notice of the State’s position.”
933 N.W.2d at 780. Hagerman indisputably had notice of the state’s position here, as

from a remand); State v. Faber, 343 N.W.2d 659, 660 (Minn. 1984) (addressing a question
not properly before the court, stating that “in the interest of judicial economy, we will put
substance over form in this case”).
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evidenced by the fact that he countered it at length in his reply brief by arguing that the per
se exigency exception should not apply as a matter of law. Additionally, Hagerman
conceded in that same br iefing that, if the pre- McNeely per se exigency exception does
apply, “a hearing would be futile.” In other words, Hagerman pursued only a legal, and not
a factual, challenge to the applicability of the per se exigent-circumstances exception. The
district court determined that the per se exigent-circumstances exception applied as a
matter of law and that the exception justified the blood- or urine-test request in this case.
We will not reverse Hagerman’s conviction or remand for an evidentiary hearing when the
pleading requirements of Fagin were satisfied and Hagerman conceded that a hearing on
the matter was unnecessary if pre-McNeely law applied.2
In sum, the district court did not e rr by concluding that the per se exigent-
circumstances exception applie d and by denying Hagerman’s request for postconviction
relief.
Affirmed.

2 Hagerman’s concession was well founded given the record in this case. Under the per se
exigency rule, an exigency ex isted to justify a warrantless blood or urine test “whenever
an officer had probable cause to believe that a defendant committed ‘a crime in which
chemical impairment is an element of the offense.’” Johnson II , 956 N.W.2d at 621
(quoting State v. Netland , 762 N.W.2d 202, 214 (Min n. 2009)). The record here,
specifically, the transcript of Hagerman’s plea hearing, shows that Hagerman admitted that
he had consumed alcohol prior to driving, that it impaired his ability to drive, and that the
officers “knew [he had] been drinking base d upon their observations.” The record amply
supports a determination that the officers had probable cause to believe that Hagerman was
driving while impaired.