This opinion will be unpublished and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

A16-0278

Paul James Ayers, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed August 29, 2016

Affirmed

Larkin, Judge

Waseca County District Court

File No. 81-CV-15-647

Thomas K. Hagen, Rosengren Kohlmeyer & Hagen Law Office, Chtd., Mankato, 

Minnesota (for appellant)

Lori Swanson, Attorney General, Cory Beth Monnens, Assistant Attorney General, 

St. Paul, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; and Kirk, 

Judge. 

U N P U B L I S H E D O P I N I O N

LARKIN, Judge

On appeal from the district court’s order sustaining the revocation of his license to 

drive, appellant argues that Minnesota’s implied-consent advisory violates his right to due
2

process by threatening criminal charges the state is not authorized to impose and that his 

post-arrest warrantless breath test violated the Fourth Amendment. We affirm.

FACTS

On July 29, 2015, Waseca Police Officer Arik Matson arrested appellant Paul James 

Ayers for driving while impaired and transported him to the Waseca County Jail. Officer 

Matson read Ayers Minnesota’s implied-consent advisory, which explained that Minnesota 

law required him to take a test to determine if he was under the influence of alcohol, that 

refusal to take a test is a crime, and that he had the right to speak with an attorney before 

deciding whether to take a test. Ayers told Officer Matson that he understood the advisory. 

Officer Matson asked Ayers if he wanted to contact an attorney. Ayers asked Officer 

Matson if he needed to do so, and Officer Matson told Ayers that he would have to make 

that decision on his own. After a failed attempt to contact an attorney, Ayers told Officer 

Matson that he no longer wished to consult an attorney. Officer Matson asked Ayers if he 

would submit to a breath test and Ayers agreed. Ayers provided an adequate sample for 

the test, which indicated that Ayers had an alcohol concentration of 0.12. 

The Commissioner of Public Safety revoked Ayers’s driver’s license based on the 

test result.

1

 Ayers petitioned the district court for rescission of the license revocation. He 

limited the issue to whether Minnesota’s implied-consent advisory violated his right to due 

 

1 Under Minn. Stat. § 169A.52, subd. 4 (2014), the commissioner must revoke a driver’s 

license when the driver has submitted to a chemical test and the test results indicate an 

alcohol concentration of 0.08 or more.
3

process and waived all other issues. Following an implied-consent hearing, the district 

court sustained the revocation of Ayers’s driver’s license. This appeal follows. 

D E C I S I O N

I.

Under Minnesota’s implied-consent statute, “[a]ny person who drives, operates, or 

is in physical control of a motor vehicle within this state . . . consents . . . to a chemical test 

of that person’s blood, breath, or urine for the purpose of determining the presence of 

alcohol . . . .” Minn. Stat. § 169A.51, subd. 1(a) (2014). “It is a crime for any person to 

refuse to submit to a chemical test of the person’s blood, breath, or urine,” after that person 

has been lawfully arrested for driving while impaired and an officer has read the person the 

implied-consent advisory. Minn. Stat. §§ 169A.20, subd. 2, .51, subds. 1-2 (2014). 

Ayers argues that “Minnesota’s implied consent statute violates [his] Due Process 

Rights because it threatens criminal charges the state is not authorized to impose.” 

Appellate courts review the constitutionality of a statute de novo. State v. Ness, 834 

N.W.2d 177, 181 (Minn. 2013). 

Ayers contends that McDonnell v. Comm’r of Pub. Safety, controls the outcome of 

this case. 473 N.W.2d 848, 855 (Minn. 1991). In McDonnell, the supreme court held that 

a portion of the implied-consent advisory that threatened criminal charges for test refusal 

violated a driver’s right to due process where the driver did not have any prior driver’s 

license revocations and the test-refusal statute then in effect only applied to drivers who 

had previously had their licenses revoked. Id. at 853-55. The supreme court explained that 
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“due process does not permit those who are perceived to speak for the state to mislead 

individuals as to either their legal obligations or the penalties they might face should they 

fail to satisfy those obligations.” Id. at 854. The supreme court concluded that Minnesota’s 

statutory implied-consent advisory was unconstitutional as applied because it “permitted 

police to threaten criminal charges the state was not authorized to impose, thereby violating 

the constitutional guarantee of due process.” Id. at 855. Ayers argues that McDonnell

stands for the principle that “[i]t is fundamentally unfair to mislead an individual by 

threatening a criminal charge when an officer knows, or should know, that criminal liability 

is impossible.” 

As support for his argument under McDonnell, Ayers cites State v. Trahan, in which

this court held that because a warrantless blood test of a driver would not have been 

constitutional under either the search-incident-to-arrest or exigent-circumstances 

exceptions to the warrant requirement of the Fourth Amendment, the test-refusal statute as 

applied to that driver violated his right to substantive due process by criminalizing his 

refusal of an unconstitutional search. 870 N.W.2d 396, 400-05 (Minn. App. 2015), review 

granted (Minn. Nov. 25, 2015). Ayers also cites State v. Thompson, in which this court 

held that because a warrantless urine test of a driver would not have been constitutional 

under the search-incident-to-arrest exception to the warrant requirement, the test-refusal 

statute violated the driver’s right to substantive due process by criminalizing his refusal of 

an unconstitutional search. 873 N.W.2d 873, 876-80 (Minn. App. 2015), review granted

(Minn. Feb. 24, 2016).
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Ayers argues that under Trahan and Thompson, Minnesota’s implied-consent 

advisory is misleading regarding his obligation to submit to testing because he “is not 

obligated to provide a blood or urine test nor can he be charged with a crime should he 

refuse.” Ayers further argues that because “the implied consent advisory did not 

distinguish between a blood, breath, or urine test prior to requiring [him] to decide whether 

or not to test, the advisory effectively threatened [him] with a crime if he failed to submit 

to a blood or urine test.” 

It is unclear how the implied-consent advisory that Officer Matson read to Ayers 

threatened Ayers with a crime if he failed to submit to a blood or urine test when the 

advisory did not mention either of those tests. The advisory stated, “Minnesota law 

requires you to take a test to determine if you are under the influence of alcohol” and 

“[r]efusal to take a test is a crime.” See Minn. Stat. § 169A.51, subd. 2(1)-(2) (requiring 

an officer to tell a person being offered a test that “Minnesota law requires the person to 

take a test” and that “refusal to take a test is a crime”). There is no evidence in the record 

that Officer Matson told Ayers that refusing to take a blood or urine test was a crime or 

otherwise said anything about those types of tests. In fact, the following lines are stricken 

from the implied-consent advisory that Officer Matson read to Ayers: “Will you take the 

Blood test?” and “Will you take the Urine test?” And answers to those questions are not 

noted on the advisory.

Although the statutory implied-consent advisory does not specify which type of test 

an officer will offer, Officer Matson expressly asked Ayers if he would take a breath test. 

In doing so, Officer Matson avoided any possible confusion regarding the type of test he 
6

was offering. And a charge of test refusal was possible if Ayers refused to take a breath 

test. See State v. Bernard, 859 N.W.2d 762, 772-74 (Minn. 2015) (upholding 

constitutionality of criminal test-refusal statute as applied to breath tests), aff’d sub nom.

Birchfield v. North Dakota, 136 S. Ct. 2161, 2162-66 (2016). In sum, the statutory impliedconsent advisory did not violate Ayers’s right to due process by threatening him with 

charges the state was not authorized to impose. 

II.

Ayers argues that “[t]he search of [his] breath does not fall into the search-incidentto-arrest exception to the warrant requirement and the Court should find the warrantless 

search of [his] breath violated his Fourth Amendment rights.” Ayers acknowledges the 

Minnesota Supreme Court’s holding in Bernard that warrantless breath tests of persons 

lawfully arrested on suspicion of drunk driving are constitutional under the search-incidentto-arrest exception to the Fourth Amendment’s warrant requirement, but he suggests that 

Bernard was wrongly decided. See 859 N.W.2d at 772.

Ayers did not raise a Fourth Amendment challenge in the district court. In fact, the 

district court noted that “[Ayers] does not challenge, and the Court does not address, the 

issue of whether the test of [Ayers’s] breath to determine intoxication was constitutional 

under the Fourth Amendment.” “A reviewing court must generally consider only those 

issues that the record shows were presented and considered by the trial court in deciding

the matter before it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation 

omitted). Because the Fourth Amendment issue was not presented to or decided by the 

district court, we do not address it except to note that the United States Supreme Court 
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recently affirmed the Minnesota Supreme Court’s decision in Bernard. Birchfield, 136 S.

Ct. at 2187.

Affirmed.