This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A16-0391 James Edward Boutto, petitioner, Appellant,

vs. Commissioner of Public Safety, Respondent. Filed August 29, 2016 Affirmed Reyes, Judge St. Louis County District Court File No. 69VICV15516 Gordon C. Pineo, Deal & Pineo, P.A ., Virginia, Minnesota (for appellant) Lori Swanson, Attorney Gene ral, Cory Beth Monnens, A ssistant Attorney General, St. Paul, Minnesota (for respondent) Considered and decided by Reyes, Pres iding Judge; Connolly, Judge; and Jesson, Judge. U N P U B L I S H E D O P I N I O N REYES , Judge On appeal from the revocation of his driv ing privileges, appellant argues that the implied-consent law violates his rights to e qual protection and substantive due process. We affirm.2 FACTS On August 1, 2015, appellant James Edward Boutto was arrested for driving while impaired (DWI). The arresting officer read appellant the implied- consent advisory and informed appellant of his rightto speak to an a ttorney. Although appellant elected to speak to an attorney, he was unable to reach one. The officer offered appellant a breath test, which appellant agreed to take. Th e test revealed that appellant’s alcohol concentration was 0.19. Appellant’s driving privileges were revoke d, and appellant moved to rescind the revocation, arguing that the implied-consent la w violates his constitutional right to equal protection and that the implied-consent advi sory violates his constitutional right to substantive due process. Following a hearin g, the district court issued an order concluding that appella nt’s constitutional rights were not violated and sustaining the revocation of his driving privile ges. This appeal follows. D E C I S I O N I. Appellant first asserts an as-applied eq ual-protection challenge to the impliedconsent law, contending that similarly situ ated people are treated differently for no rational reason. 1 Appellant argues that the implied- consent law deprives him of equal protection because the officer’s choice of chem ical test has different Fourth Amendment

1 To the extent that appellant’s argument coul d be interpreted as a facial challenge to the implied-consent law, appellant concedes that it is facially neutral. Therefore, appellant has waived any such argument. See State v. Beaulieu , 859 N.W.2d 275, 278 n.3 (Minn. 2015).3 implications. Appellant therefore alleges that the implied-consent la w allowed the officer to choose whether to “circumvent” or “forgo ” appellant’s Fourth Amendment rights. We are not persuaded. The Fourteenth Amendment to the United States Constitution guarantees that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Minnesota Constitution also guarantees that “[n]o member of this state shall be disenfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” Minn. Const. art. 1, § 2. “Both clauses have been analyzed under the same principles and begin with the mandate that a ll similarly situated individuals shall be treated alike, but only invidious disc rimination is deemed cons titutionally offensive.” Kolton v. County of Anoka , 645 N.W.2d 403, 411 (Minn. 2002) (quotation omitted). “The constitutionality of a statute is a legal question, which we review de novo.” State v. Brown , 689 N.W.2d 796, 799 (Minn. App. 2004), review denied (Minn. Dec. 13, 2005). “Unless a fundamental right or suspect class is involved, statut es are presumed to be constitutional.” State v. Benniefield , 678 N.W.2d 42, 45 (Minn. 2004). Appellant’s argument is premised on a misc haracterization of the implications of the officer’s choice of chemical test. An o fficer’s administration of a warrantless breath test does not run afoul of the Fourth Amendment. Birchfield v. North Dakota , 136 S. Ct. 2160, 2184 (2016) (“[T]he Fourth Amendment permits warrantless breat h tests incident to arrests for drunk driving.”), aff’g State v. Bernard , 859 N.W.2d 762 (Minn. 2015). By offering appellant a breath test, the officer did not deprive appellant of his Fourth4 Amendment rights. Id. The officer administered the test consistent with the Fourth Amendment. Id. And appellant alleges no other invidious discrimi nation or bad faith by the state. Moreover, appellant has provide d no evidence of intentional or purposeful discrimination. He has made only the bald a ssertion that his right to equal protection was violated. See Hayes v. Comm’r of Public Safety , 773 N.W.2d 134, 140 (Minn. App. 2009) (rejecting Hayes’s equal-protection challe nge to the implied-consent law based, in part, on Hayes’s failure to offe r evidence of discrimination); State v. Hyland , 431 N.W.2d 868, 873 (Minn. App. 1988) (concluding thatHyland’s “general, conclusory allegation that discriminatory enforcem ent occurred” was “frivolous”). Therefore, we agree with the district court that appellant failed to establish a violation of his right to equal protection. II. Appellant next contends that the implie d-consent advisory was misleading, and therefore, his substantive due-process rights were violated. We disagree. The Due Process Clauses of the United States a nd Minnesota Constitutions prohibit the state from “d epriv[ing] any person of life, lib erty, or property, without due process of law.” U.S. Co nst. amend. XIV, § 1; see also Minn. Const. art. I, § 7. The constitutionality of a statute is a qu estion that we review de novo. State v. Melde , 725 N.W.2d 99, 102 (Minn. 2006). “Minnesota st atutes are presumed constitutional” and will be declared “unconstitu tional only when absolu tely necessary.” Id. (quotation omitted). Minnesota’s implied-consent law prov ides that “[a]ny person who drives, operates, or is in physical control of a motor vehicle within this state or on any boundary5 water of this state consents . . . to a chemical test of that person’s . . . breath . . . for the purpose of determining the presence of alco hol.” Minn. Stat. § 169A.51, subd. 1(a) (2014). “The test may be required of a pers on when an officer ha s probable cause to believe the person” has committed a DWI offe nse and “the person has been lawfully placed under arrest” for DWI. Id. , subd. 1(b) (2014). “[A]t th e time a test is requested, the person must be informed: (1) that Minnesota law requires the person to take a test to determine if the person is under the influence of alcohol . . . ; [and] (2) that refusal to take a test is a crime.” Id. , subd. 2(a) (2014). Appellant first argues that, in light of State v. Trahan , 870 N.W.2d 396 (Minn. App. 2015), review granted (Minn. Nov. 25, 2015), and State v. Thompson , 873 N.W.2d 874 (Minn. App. 2015), review granted (Minn. Feb. 24, 2016 ), the implied-consent advisory is misleading because it does not in form a person of his right to refuse a warrantless blood or urine test. But Trahan and Thompson do not affect appellant’s case. Appellant was offered a breath test, and a warrantless breath test is constitutionally permissible under the search-incident-to-arre st exception to the warrant requirement. See Birchfield , 136 S. Ct. at 2184. Appellant next argues that his substan tive due-process rights were violated because he was threaten ed with a crime that “does not exist.” Appellant’s substantive due-process argument is premised on his cont ention that his Fourth Amendment rights were violated. In support of this argument, appellant cites to Kans as authority and urges this court not to follow the Minnesota Supreme Court’s decision in Bernard , 859 N.W.2d 762. But Bernard has been affirmed by the United States Supreme Court. See Birchfield ,6 136 S. Ct. at 2184. And as previously noted, appellant’s Fourth Amendment rights were not violated. Therefore, we need not furthe r address appellant’s substantive due-process argument. See Trahan , 870 N.W.2d at 403 (analyzing Tr ahan’s substantive due-process challenge to the test-refusal statute only af ter concluding that a warrantless search of Trahan’s blood would not have been constitutional under any exceptions to the Fourth Amendment’s warrant requirement). Appellant also cites McDonnell v. Comm’r of Public Safety , 473 N.W.2d 848 (Minn. 1991), to support his position that the mislea ding nature of the implied-consent advisory violated his substantive due-process rights. But as mentioned above, appellant’s Fourth Amendment rights were not violated, thus ending our substantive due-process analysis. Trahan , 870 N.W.2d at 403. Moreover, McDonnell is distinguishable because appellant, unlike McDonnell, was threatened with a criminal pe nalty that could have been legally imposed on him. 473 N.W.2d at 855; see also Birchfield , 136 S. Ct. at 2184. Therefore, we conclude that, under the circ umstances, the implied-consent advisory was not misleading and appellant’s substantiv e due-process rights were not violated. Affirmed.