Johnson v. State, A19-1147

956 N.W.2d 618

Mark Jerome JOHNSON, Respondent,

v.STATE of Minnesota, Appellant.

A19-1147

Supreme Court of Minnesota.

Filed: March 24, 2021

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. Ragatz, Assistant Ramsey County Attorney, Saint Paul, Minnesota, for appellant.

OPINION

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, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), applies 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 relief, arguing that his conviction for refusing to submit to a warrantless blood and urine test violated the Constitution and must be reversed. On remand from a prior decision 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 retroactively 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 stopped Johnson while he was driving. During this stop, Johnson admitted he had been drinking and showed signs of impairment. Johnson was arrested on suspicion of driving while impaired (DWI) and was asked to take a urine and blood test. Johnson refused to answer and was charged with first-degree test refusal, Minn. Stat. §§ 169A.20, subd. 2, 169A.24 (2016). Johnson 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 warrant 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 the warrant requirement. See State v. Shriner , 751 N.W.2d 538, 546 (Minn. 2008), abrogated by McNeely , 569 U.S. at 165, 133 S.Ct. 1552 ; State v. Netland , 762 N.W.2d 202, 214 (Minn. 2009), abrogated in part by McNeely , 569 U.S. at 165, 133 S.Ct. 1552. 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 short, 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 altered 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 taken from him. 569 U.S. at 146, 133 S.Ct. 1552. The Supreme 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, 133 S.Ct. 1552. The Court explained that the exigent circumstances exception requires examination of the "totality of the circumstances." Id. at 150–51, 133 S.Ct. 1552. While one of those circumstances certainly is alcohol dissipation when a driver is suspected of DWI, alcohol dissipation, by itself, is not "an exigency in every case sufficient to justify conducting a blood test without a warrant." Id. at 150–51, 165, 133 S.Ct. 1552. 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-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.

Id. at 156, 133 S.Ct. 1552.

The second Supreme Court case is Birchfield v. North Dakota , 579 U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (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.

After Birchfield was announced, Johnson petitioned for postconviction relief, arguing that the Birchfield rule applied retroactively to his 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 refused a breath test or refused a blood or urine test that was supported by a warrant or a valid warrant exception." Id. at 683. When remanding the case to the district court 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—the 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.

ANALYSIS

The only issue before 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 constitutional law applies retroactively, we apply the framework articulated in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (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, 109 S.Ct. 1060. New rules retroactively apply only on direct review and generally do not apply on collateral review of convictions that were final before the new rule was announced. Id. at 305–10, 109 S.Ct. 1060. 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, 124 S.Ct. 2519, 159 L.Ed.2d 442 (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 those 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." Id. (internal citation omitted). A rule that "modifies the elements of an offense is normally substantive rather than procedural." Id. at 354, 124 S.Ct. 2519.

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, 124 S.Ct. 2519 (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 for a class of defendants because of their status or offense." 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on other grounds , Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (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, 124 S.Ct. 2519. Procedural rules "do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Id. at 352, 124 S.Ct. 2519. These rules include those that "alter[ ] the range of permissible methods for determining whether a defendant's conduct is punishable." Id. at 353, 124 S.Ct. 2519.

B.

We now address the...