Hagerman v. State, A19-1526

945 N.W.2d 872

Eric Kenny HAGERMAN, petitioner, Appellant,

v.STATE of Minnesota, Respondent.

A19-1526

Court of Appeals of Minnesota.

Filed June 1, 2020

Stay Granted August 25, 2020

Review Granted August 25, 2020

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 Heng, Assistant City Attorney, St. Paul, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Johnson, Judge; and Cochran, Judge.

SMITH, TRACY M., Judge

The United States Supreme Court's decision in Birchfield , together with the Minnesota Supreme Court's later decisions in State v. Trahan , 886 N.W.2d 216 (Minn. 2016), and State v. Thompson , 886 N.W.2d 224 (Minn. 2016), collectively make up what the Minnesota Supreme Court calls "the Birchfield rule." The Birchfield rule 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 v. State , 916 N.W.2d 674, 678 n.2, 679 (Minn. 2018).

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). In 2017, he petitioned for postconviction relief, arguing that his conviction must be reversed under the Birchfield rule. Applying the Birchfield rule, the district court concluded that Hagerman's conviction was not unconstitutional because, at the time of Hagerman's test refusal, a per se exigent-circumstances exception to the warrant requirement applied. The district court refused to retroactively apply to Hagerman's case the Supreme Court's 2013 decision in McNeely , which invalidated the per se exigent-circumstances exception, reasoning that McNeely did not announce a substantive rule of law.

We conclude that the rule announced in McNeely is substantive in the context of test-refusal cases challenged under the Birchfield rule and therefore applies retroactively. And, because the state relied only on the per se exigent-circumstances exception invalidated by McNeely , Hagerman's test-refusal conviction was unconstitutional. We therefore reverse.

FACTS

In November 2011, St. Paul police officers arrested Hagerman on suspicion of drunk driving after Hagerman's vehicle struck the median, rolled over, and came to a stop, resting on its rooftop. The officers transported Hagerman, who was exhibiting signs of impairment, to a hospital. There, they read him the implied-consent advisory and asked him to submit to blood or urine testing. The police did not obtain a search warrant to take 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), along with fourth-degree DWI in violation of Minn. Stat. § 169A.20, subd. 1(1) (2010). Hagerman pleaded guilty to third-degree test refusal, and the state dismissed the fourth-degree DWI charge.

In July 2017, Hagerman filed a petition for postconviction relief, seeking reversal of his test-refusal conviction. He argued that, under the Birchfield rule, 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 Hagerman's petition, determining that the Birchfield rule did not apply retroactively to Hagerman's conviction. Hagerman appealed. In April 2018, we stayed Hagerman's appeal pending a decision by the Minnesota Supreme Court in Johnson , 916 N.W.2d 674. In Johnson , the supreme court held that Birchfield announced a substantive rule that applies retroactively to convictions that were final before the rule was announced. Johnson , 916 N.W.2d at 677. But, the supreme court explained, reversal of a test-refusal conviction is not automatic under Birchfield , and it remanded the 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. After reinstating Hagerman's appeal, this court remanded his case to the district court for further proceedings consistent with Johnson .

In July 2019, the district court denied Hagerman's petition for postconviction relief. It determined that, at the time of Hagerman's test refusal, a per se exigent-circumstances exception to the warrant requirement applied and that, although the Supreme Court later invalidated the per se exigent-circumstances exception in McNeely , 569 U.S. 141, 133 S. Ct. 1552, McNeely does not apply retroactively.

This appeal follows.

ISSUE

Did the district court err by declining to retroactively apply the rule announced in McNeely to Hagerman's test-refusal conviction?

ANALYSIS

We generally review a district court's denial of postconviction relief for an abuse of discretion. Dikken v. State , 896 N.W.2d 873, 876 (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 erroneous view of the law, or made clearly erroneous factual findings." Pearson v. State , 891 N.W.2d 590, 596 (Minn. 2017) (quotation omitted). Legal issues are reviewed de novo. Id. Specifically, "[w]hether a rule of federal constitutional law applies retroactively to convictions that were final when the rule was announced is a legal question that [appellate courts] review de novo." Johnson , 916 N.W.2d at 681.

Hagerman argues that the district court abused its discretion because the state failed to establish that an exception to the warrant requirement existed at the time that he refused blood or urine testing. The state acknowledges that it must show that a valid exception existed and contends it has done so because, at the time of Hagerman's conviction, Minnesota law recognized that the natural dissipation of alcohol in the bloodstream creates a per se exigent circumstance justifying a warrantless search. See State v. Netland , 762 N.W.2d 202, 212 (Minn. 2009). Hagerman counters that the Supreme Court's decision in McNeely , rejecting such a per se exigency, applies retroactively and that the state therefore failed to prove an exception to the warrant requirement in his case.

A. Legal background

The Fourth Amendment protects "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. In the suspected-impaired-driving context, administering a chemical test of breath, blood, or urine is a search. Skinner v. Ry. Labor Execs.’ Ass'n , 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13, 103 L.Ed.2d 639 (1989) (breath test); Schmerber v. California , 384 U.S. 757, 767-68, 86 S. Ct. 1826, 1834, 16 L.Ed.2d 908 (1966) (blood test); Thompson , 886 N.W.2d 224 (urine test).

Before the Supreme Court's 2013 decision in McNeely , the Minnesota Supreme Court categorically upheld warrantless chemical tests in the DWI context under the exigent-circumstances doctrine, holding that "the ‘rapid, natural dissipation of alcohol in the blood creates single-factor exigent circumstances.’ " Netland , 762 N.W.2d at 212 (quoting State v. Shriner , 751 N.W.2d 538, 549-50 (Minn. 2008) ). In McNeely , the state of Missouri similarly urged a rule that, "whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because [alcohol-concentration] evidence is inherently evanescent." 569 U.S. at 151, 133 S. Ct. at 1560. The Supreme Court rejected a per se exigency approach, holding instead that the exigency "must be determined case by case based on the totality of the circumstances." Id. at 156, 133 S. Ct. at 1563.

In 2016, the Supreme Court in Birchfield addressed another exception to the warrant requirement—the search-incident-to-arrest exception. 136 S. Ct. at 2174. Birchfield involved three consolidated cases, one of which was from Minnesota, that all concerned whether state laws criminalizing test-refusal violate the Fourth Amendment protection against unreasonable searches. Id. at 2170-72. The Court noted that McNeely addressed the exigent-circumstances exception but did not address any other warrant exceptions. Id. at 2174. The Court then evaluated the search-incident-to-arrest exception as it applies to breath and blood tests, examining "the degree to which they intrude upon an individual's privacy and the degree to which they are needed for the promotion of legitimate governmental interests." Id. at 2176 (quotation omitted). It held that, while a breath test is a permissible search incident to a lawful arrest, a blood test is not. Id. at 2185. As a result, states can make it a crime for suspected drunk drivers to refuse breaths tests but cannot criminalize refusal to submit to a blood test unless the police obtained a search warrant or the test request was supported by another exception to the warrant requirement. Id. at 2185-86.

Following the Supreme Court's decision in Birchfield , the Minnesota Supreme Court decided Trahan , 886 N.W.2d 216, and Thompson , 886 N.W.2d 224. In Trahan , the supreme court applied Birchfield and held that Trahan's conviction for test refusal was unconstitutional because a warrantless search of his blood was not justified by an exception to the warrant requirement. 886 N.W.2d at 221-23. In Thompson , the supreme court decided that urine tests, too, were not justified by the search-incident-to-arrest exception and held that Thompson's conviction for test refusal was likewise unconstitutional. 886 N.W.2d at 226, 229.

After these cases, the Minnesota Supreme Court in Johnson addressed whether the Birchfield rule announced a substantive, rather than a procedural, rule of...