This opinion will be unpublished and 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 General, Cory Beth Monnens, Assistant Attorney General, 

St. Paul, Minnesota (for respondent) 

 Considered and decided by Reyes, Presiding 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 driving privileges, appellant argues that the 

implied-consent law violates his rights to equal protection and substantive due process. 

We affirm. 
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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 right to speak to an attorney. 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. The test revealed that appellant’s alcohol 

concentration was 0.19. 

Appellant’s driving privileges were revoked, and appellant moved to rescind the 

revocation, arguing that the implied-consent law violates his constitutional right to equal 

protection and that the implied-consent advisory violates his constitutional right to 

substantive due process. Following a hearing, the district court issued an order 

concluding that appellant’s constitutional rights were not violated and sustaining the 

revocation of his driving privileges. This appeal follows. 

D E C I S I O N 

I. 

Appellant first asserts an as-applied equal-protection challenge to the impliedconsent law, contending that similarly situated 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 chemical test has different Fourth Amendment 

 

1

 To the extent that appellant’s argument could 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). 
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implications. Appellant therefore alleges that the implied-consent law 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 all similarly situated individuals shall be treated alike, but 

only invidious discrimination is deemed constitutionally 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, statutes are presumed to be constitutional.” State v. 

Benniefield, 678 N.W.2d 42, 45 (Minn. 2004). 

Appellant’s argument is premised on a mischaracterization of the implications of 

the officer’s choice of chemical test. An officer’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 breath 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 Fourth 
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Amendment rights. Id. The officer administered the test consistent with the Fourth 

Amendment. Id. And appellant alleges no other invidious discrimination or bad faith by 

the state. Moreover, appellant has provided no evidence of intentional or purposeful 

discrimination. He has made only the bald assertion 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 challenge to the implied-consent law based, in 

part, on Hayes’s failure to offer evidence of discrimination); State v. Hyland, 431 N.W.2d 

868, 873 (Minn. App. 1988) (concluding that Hyland’s “general, conclusory allegation 

that discriminatory enforcement 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 implied-consent advisory was misleading, and 

therefore, his substantive due-process rights were violated. We disagree. 

The Due Process Clauses of the United States and Minnesota Constitutions 

prohibit the state from “depriv[ing] any person of life, liberty, or property, without due 

process of law.” U.S. Const. amend. XIV, § 1; see also Minn. Const. art. I, § 7. The 

constitutionality of a statute is a question that we review de novo. State v. Melde, 725 

N.W.2d 99, 102 (Minn. 2006). “Minnesota statutes are presumed constitutional” and will 

be declared “unconstitutional only when absolutely necessary.” Id. (quotation omitted). 

Minnesota’s implied-consent law provides that “[a]ny person who drives, 

operates, or is in physical control of a motor vehicle within this state or on any boundary 
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water of this state consents . . . to a chemical test of that person’s . . . breath . . . for the 

purpose of determining the presence of alcohol.” Minn. Stat. § 169A.51, subd. 1(a) 

(2014). “The test may be required of a person when an officer has probable cause to 

believe the person” has committed a DWI offense and “the person has been lawfully 

placed under arrest” for DWI. Id., subd. 1(b) (2014). “[A]t the 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 inform 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-arrest exception to the warrant requirement. See 

Birchfield, 136 S. Ct. at 2184. 

Appellant next argues that his substantive due-process rights were violated 

because he was threatened with a crime that “does not exist.” Appellant’s substantive 

due-process argument is premised on his contention that his Fourth Amendment rights 

were violated. In support of this argument, appellant cites to Kansas 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, 
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136 S. Ct. at 2184. And as previously noted, appellant’s Fourth Amendment rights were 

not violated. Therefore, we need not further address appellant’s substantive due-process 

argument. See Trahan, 870 N.W.2d at 403 (analyzing Trahan’s substantive due-process 

challenge to the test-refusal statute only after 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 misleading 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 penalty 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 circumstances, the implied-consent advisory was 

not misleading and appellant’s substantive due-process rights were not violated. 

Affirmed.