Jeffrey Allan Braun, 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This opinion is nonprecedential except as provided by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
A20-0815

Jeffrey Allan Braun, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 30, 2021
Reversed and remanded
Jesson, Judge

Stearns County District Court
File No. 73-CR-07-11062

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

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

Renee N. Courtney, St. Cloud City Attorney , Kevin M. Voss, Deputy City Attorney,
St. Cloud, Minnesota (for respondent)

Considered and decided by Fr isch, Presiding Judge; Ross, Judge; and Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
In 2009, appellant Jeffrey Braun refused to submit to testing—that is, to provide a
blood or urine sample—after being stopped for erratic driving. He subsequently pleaded
guilty to criminal test refusal in violati on of Minnesota Statut es section 169A.20,
subdivision 2 (2006). But in the twelve years followi ng his plea, the law concerning
2
driving while intoxicated (DWI) underwent seismic changes. See, e.g., Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016); Missouri v. McNeely , 569 U.S. 141, 133 S. Ct. 1552
(2013). These changes led Braun to file a petition for postconviction relief, arguing that
precedent prohibiting the criminalization of driving-while-impaired test refusal—absent a
warrant or exigent circumstances—requires that his 2009 conviction be vacated. Because
the rules derived from these cases do not appl y retroactively to Braun’s case, we do not
vacate his conviction. But because the law as it existed in 2009 does not conclusively
establish that the suspected presence of drugs in Braun’s system creates, in and of itself, an
exigent circumstance, we reverse and remand for further proceedings.
FACTS
In late August 2009, a troo per with the Minnesota State Patrol in St. Cloud received
reports of erratic driving. After locating the car and observing the driver make an improper
turn, the trooper executed a traffic stop. When the trooper approached, he identified
appellant Jeffrey Braun as the driver with hi s 13-year-old son in the vehicle. Braun
indicated that they were on their way to Fergus Falls. During their conversation, the trooper
noticed that Braun was sweating excessively a nd had bloodshot eyes. He also exhibited
quick hand and finger movements and at times spoke rapidly. Suspecting that Braun may
be under the influence of a controlled substa nce, the trooper administered several field
sobriety tests and a preliminary breath test. Although Braun performed poorly on the field
sobriety tests, he had an alcohol concentration of 0.00, which led the trooper to believe that
Braun was under the influence of a stimulant. Braun was arrested and taken to a local
hospital, where the trooper read him an implied-consent advisory. Braun indicated that he
3
understood the consequences of refusing to provide a blood or urin e sample and did not
wish to speak to an attorney. Despite this, when asked if he would submit to testing, Braun
refused. As a result, the st ate charged Braun with second-d egree test refusal. Minn.
Stat. §§ 169A.20, subd. 2, .25, subd. 1(b) (2006).
Stipulating to the facts above, Braun pl eaded not guilty to second-degree test
refusal.1 In exchange, the state agreed to a reduced sentence. Based on the stipulated facts,
the district court found Braun guilty of sec ond-degree test refusal and sentenced him to
365 days’ imprisonment, with 335 days stayed for six years of probation and credit given
for seven days already served.
Ten years passed, during which the landsca pe of DWI law changed considerably.
Encouraged by these changes, Braun file d a petition for postconviction relief in 2019,
asking the court to vacate his 2009 conviction. He argued that precedent adopted after his
conviction which prohib ited criminalization of DWI test refusal—absent a warrant or
exigent circumstances—applied retroactively and required vacation of his conviction.
The state disagreed, claiming that the po tential dissipation of the drug believed to
be in Braun’s system created a valid exig ent-circumstance exception to the warrant
requirement. In response, Braun asserted th at the exigent circum stance exception only
applied when the defendant was suspec ted of being under the influence of alcohol, not
drugs. Because the trooper believed Braun was under the influence of a stimulant, Braun

1 Previously known as a Lothenbach plea, this type of plea—wh ere a defendant enters a
guilty plea, waives his right to a jury trial, and stipulates to the prosecution’s case—was
incorporated into the Minnesota Rules of Criminal Procedure in 2007. State v. Lothenbach,
296 N.W.2d 854, 857 (Minn. 1980), superseded by Minn. R. Crim. P. 26.01, subd. 4.
4
claimed that no valid warrant exception applied. But the postconviction court was
unpersuaded by Braun’s arguments and denied his petition for relief.
Braun appeals. 2
DECISION
Much has changed in DWI law since Braun was found guilty of criminal test refusal.
Therefore, to provide adequate context for Braun’s claim, we find it instructive to trace the
relevant progression of DWI-test-refusal case law from the time of Braun’s arrest to the
present. After establishing how the law has changed, we th en consider the merits of
Braun’s petition.
The first major shift in DW I test-refusal law occurred in Missouri v. McNeely ,
569 U.S. at 141, 133 S. Ct. at 1552. Appl ying Fourth Amendment principles, the United
States Supreme Court recognized that although warrantless searches, such as blood draws,
are presumptively unreasonable, in some instances “exigent circumstances” allow law
enforcement to conduct such searches. McNeely, 569 U.S. at 148-50, 133 S. Ct. at 1558-59.
But the Court also limited what qualified as a valid warrant exception, holding that alcohol
dissipation does not, in and of itself, presen t an exigent circumstance justifying a
warrantless blood test for a person suspected of DWI. Id. at 156, 133 S. Ct. at 1536. Or,
to place this holding in terms used by our pr evious caselaw, the dissi pation of alcohol is

2 We granted the state’s motion to stay the appeal pending the Minnesota Supreme Court’s
review of Hagerman v. State, 945 N.W.2d 872 (Min n. App. 2020) and Johnson v. State, 2020 WL 3409773 (Minn. App. June 22, 2020). On March 24, 2021, the supreme court
issued its decision in Johnson v. State, 956 N.W.2d 618, 626 (Minn. 2021) ( Johnson II).
We subsequently dissolved the stay and the parties submitted supplemental briefing.
5
not a “single-factor exigent circumstance.” See, e.g., State v. Shriner , 751 N.W.2d 538,
542 (Minn 2008) (“We have described the test for single-factor exigent circumstances as
one in which the existence of one fact alone creates exigent circ umstances.” (quotation
omitted)); State v. Gray, 456 N.W.2d 251, 256 (Minn. 19 90) (explaining that “in certain
situations a single factor alone can create exigent circumstances”).
Three years later, in Birchfield v. North Dakota, the Court returned to the issue of
warrantless blood tests in DWI cases. 136 S. Ct. at 2160. Birchfield asked the Court to
determine whether a defendant’ s refusal to submit to a warrantless blood test may be
criminalized. Id. at 2166-67. Relying on the sa me Fourth Amendment principles
highlighted in McNeely, the Court held that warrantless test refusal by a suspected impaired
driver—like Braun—may be cr iminalized only when a wa rrant exception applies.
Id. at 2184-85.
Following Birchfield, the Minnesota Supreme Court addressed the retroactivity of
these decisions. First, in Johnson v. State, 916 N.W.2d 674, 684 (Minn. 2018) (Johnson I),
the supreme court held that the rule announced in Birchfield applied retroactively. This
was followed most recently by Johnson II, where the supreme court concluded that the rule
announced in McNeely—that alcohol dissipation does not present a per se exigent
circumstance justifying a warrant excep tion—does not apply retroactively. Johnson,
956 N.W.2d at 626.
Against this backdrop, we turn to Braun’s petition. In the proceedings before the
postconviction court, which took pl ace before the supreme court’s Johnson II decision,
Braun argued that the re troactive application of McNeely required vacation of his
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conviction. After all, there was only a si ngle, exigent circumstance relied upon by the
state: that the dissipation of drugs in Braun’s system necessitated a warrantless search. And
Braun further asserted that even if McNeely was not retroactive, controlling caselaw in
2009 did not recognize a single-factor exig ent circumstance exce ption based upon the
dissipation of drugs in one’s system, only alcohol. At minimum, Brau n asserted, he was
entitled to an evidentiary hearing to determine the rate at which drugs dissipate in the body
and whether this created a sufficient exigency to justify a warrantless search.
The postconviction court denied Braun’ s request for relief, presciently reasoning
that McNeely did not retroactively apply to his case. Johnson II , 956 N.W.2d at 626.
Accordingly, the court relied on Minnesota precedent in effect in 2009—State v. Shriner—
and concluded that the dissipation of drugs in Braun’s system was su fficient to establish
an exigent circumstance.
When a court denies a petition for postconvic tion relief, we review that decision for
an abuse of discretion. Pearson v. State , 891 N.W.2d 590, 596 (Minn. 2017). The
postconviction court’s application of the law, however, presents a legal question which we
review de novo. Id. Because the supreme court confirmed in Johnson II that McNeely is
not retroactive, the focus of our de novo review is the district court’s application of Shriner
to Braun’s case. Johnson II, 956 N.W.2d at 626.
Shriner asked the supreme court to determ ine whether the dissipation of alcohol in
the blood created exigen t circumstances sufficient to jus tify a warrantless blood draw.
751 N.W.2d at 539. Although warrantle ss searches, such as blood draws, are
presumptively unreasonable, where the “exigencies of the situation” would make obtaining
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a warrant objectively unreasonable, a wa rrantless search may be permissible. Id. at 541.
Whether the circumstances are exigent typically depe nds on the totality of the
circumstances. Id. But, in some instances, “the existence of one fact alone creates exigent
circumstances.” Id. at 542 (quotation omitted). If none of the single-factor circumstances
are clearly implicated, then the courts apply the totality-of-the-circumstances test. Id.
To determine whether th e presence of alcohol in the blood created exigent
circumstances, in Shriner, the supreme court looked to es tablished examples of exigent
circumstances for guidance, including hot pursuit of a fleei ng felon, the protection of
human life, and most relevant, the i mminent destruction of evidence. Id. at 541-42.
Because the “rapid, natural dissipation of alco hol in the blood” threatens the imminent
destruction of evidence in DWI cases, the supreme court concluded that the suspected
presence of alcohol in the body, by itself, crea ted an exigent circumstance sufficient to
justify a warrantless blood draw. Id. at 542-45.
It is this conclusion that the postconvi ction court relied upon when denying Braun’s
petition. According to the court, Shriner applied to circumstances in which the defendant
was suspected of being unde r the influence of alcohol or drugs. We disagree. Shriner
focused exclusively on the dissipation of alcohol in the blood and was silent as to whether
the dissipation of drugs in the blood created a similarly pressing need for a blood or urine
test. Id. at 545. The distinction is especially important here because the state relied on that
factor alone to support its argument th at a warrant exception applied. If the Shriner
single-factor exigent circumstances exceptio n does not apply to the dissipation of drugs,
8
the state could not show that a valid warrant exception applied in Braun’s case.3 Therefore,
because Shriner did not conclusively establish that the dissipation of drugs is a single-factor
exigent circumstance, it was error for the postconviction court to apply Shriner to Braun’s
case.4
Still, the state maintains that Shriner and subsequent caselaw support the conclusion
that the dissipation of drugs in the body cr eates single-factor exigent circumstances.
State v. Netland, 762 N.W.2d 202, 213 (Minn. 2009); Peppin v. Comm’r of Pub. Safety ,
No. A12-0164, 2012 WL 5990267, at *1 (Minn. App. Dec. 3, 2012). We remain
unpersuaded. As explained above, Shriner only considered the dissipation of alcohol in
the body. The same is true for Netland. 762 N.W.2d at 213 (“It is the chemical reaction
of alcohol in the person’s body that drives the conclusion on exig ency.”). And although
Peppin addresses the dissipation of drugs, the ca se is nonprecedential, and therefore, not
binding. Minn. Stat. § 480A.08, subd. 3(b) (2020); Minn. R. Civ. App. P. 136.01,
subd. 1(c).5

3 Because Braun affirmatively alleged that no warrant exception was applicable to his
circumstances, the burden shifted to the state to show that a specific exception applied.
State v. Fagin, 933 N.W.2d 774, 780 (Minn. 2019). We note, however, that neither before
the postconviction court nor on appeal does the state explicitly address Fagin.
4 Because the postconviction court erred in its application of the la w, we do not address
whether the record supports the postc onviction court’s f actual findings. Pearson,
891 N.W.2d at 596.
5 The state also relies on Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 109 S. Ct. 1402
(1989), which we relied on in Peppin to conclude that “the evanescent quality of drug
metabolites in this case justified th e warrantless seizure of evidence.” Peppin,
2012 WL 5990267, at *4. But Skinner was not a criminal case—it involved private railroad
companies taking blood and urine samples from employees involved in train accidents.
Skinner, 489 U.S. at 606, 109 S. Ct. at 14 07. As such, we decline to rely on Skinner for
9
In sum, the postconviction co urt correctly concluded that McNeely did not apply
retroactively. But because Shriner did not conclusively estab lish that the dissipation of
drugs in the blood creates a single-factor exigent circumstance in the same manner as
alcohol, the postconviction court’s reliance on Shriner to reach that conclusion was error.
Accordingly, we reverse and remand for furt her proceedings on th e question of whether
the dissipation of drugs in the body establis hes an exigent circum stance justifying a
warrantless search of a suspect’s blood.
Reversed and remanded.

the proposition that in criminal cases, the single-factor exigent circumstances exception to
the warrant requirement applies to drugs as well as alcohol.