This opinion will be unpublished and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

A15-0177

State of Minnesota,

Respondent,

vs.

Gatwech Yiek Thach,

Appellant.

Filed February 1, 2016

Reversed

Johnson, Judge

Stearns County District Court

File No. 73-CR-14-6841

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Matthew A. Staehling, St. Cloud City Attorney, Jennifer K. Rose, Assistant City Attorney, 

St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea G. M. Barts, Assistant 

State Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and Harten, 

Judge.



 

 

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant 

to Minn. Const. art. V, § 10.
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U N P U B L I S H E D O P I N I O N

JOHNSON, Judge

Gatwech Yiek Thach was convicted of second-degree test refusal because he 

refused to submit to a chemical test of his blood or his urine. On appeal, he argues that his 

conviction must be reversed on the ground that the test-refusal statute is unconstitutional 

given the facts of this case. In light of recent precedential opinions of this court, Thach’s 

constitutional argument has merit. Therefore, we reverse his conviction of second-degree 

test refusal.

FACTS

Thach’s conviction of second-degree test refusal is based on an incident that 

occurred in the city of St. Cloud on August 13, 2014. A woman called 911 to report that 

her vehicle was rear-ended by another vehicle, that the driver of the other vehicle drove 

away from the scene of the collision, and that she followed the other vehicle until she saw 

it stop in the parking lot of an apartment building and saw a man exit the vehicle and enter 

the apartment building. After performing an investigation, a St. Cloud police officer 

arrested Thach for driving while impaired. The officer transported Thach to a hospital for 

a medical examination. At the hospital, the officer read Thach the implied-consent 

advisory four times. After the fourth reading of the advisory, the officer asked Thach 

whether he would submit to a blood test or a urine test. Thach did not respond. The officer 

construed the lack of a response to be a refusal. 

The state charged Thach with four offenses: (1) second-degree driving while 

impaired, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .25, subd. 1(a) (2014); 
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(2) second-degree refusal to submit to a chemical test, in violation of Minn. Stat. 

§§ 169A.20, subd. 2, .25, subd. 1(b) (2014); (3) failure to stop for an accident, in violation 

of Minn. Stat. § 169.09, subd. 2 (2014); and (4) driving after revocation, in violation of 

Minn. Stat. § 171.24, subd. 2 (2014).

In November 2014, the case was tried to a jury. At the outset of trial, the state 

dismissed count 3 because the woman who reported the collision was unavailable to testify. 

During trial, the district court allowed the state to introduce the testimony of the 

investigating officer concerning the woman’s statements, despite Thach’s objection based 

on the Confrontation Clause and the rule against hearsay. The jury found Thach guilty on 

counts 1, 2, and 4. The district court sentenced Thach on count 2 by ordering him to serve 

time in jail, by placing him on probation, and by imposing a $200 fine. Thach appeals. 

D E C I S I O N

Thach argues that his test-refusal conviction must be reversed on the ground that the 

test-refusal statute is unconstitutional as applied to him in this case because the statute 

criminalizes his refusal to submit to an unconstitutional search of his blood or his urine in 

violation of his right to substantive due process. In response, the state first argues that 

Thach does not have a fundamental right to refuse to submit to a warrantless blood test or 

a warrantless urine test. The state argues in the alternative that, even if Thach had such a 

fundamental right, the test-refusal statute is not unconstitutional.

We begin our analysis by considering whether Thach has a fundamental right to 

refuse to submit to the chemical tests requested by the investigating officer. The answer 

to that question depends on whether a warrantless blood test or a warrantless urine test 
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would have been a valid search under the Fourth Amendment to the United States 

Constitution. See State v. Thompson, ____ N.W.2d ____, ____, 2015 WL 9437538, at *2 

(Minn. App. Dec. 28, 2015), pet. for review filed (Minn. Jan. 21, 2016); State v. Trahan, 

870 N.W.2d 396, 400 (Minn. App. 2015), review granted (Minn. Nov. 25, 2015). In 

arguing that a warrantless blood test or a warrantless urine test would have been a valid 

search under the Fourth Amendment, the state relies heavily, if not solely, on the supreme 

court’s opinion in State v. Bernard, 859 N.W.2d 762 (Minn.), cert. granted, 136 S. Ct. 615

(2015). In Bernard, the supreme court held that a warrantless breath test conducted 

pursuant to the implied-consent statute would be a valid search incident to arrest for 

purposes of the Fourth Amendment, so long as the arrest is valid. Bernard, 859 N.W.2d at 

772. As a consequence, the appellant in Bernard did not have a fundamental right to refuse 

to submit to the breath test that was requested of him. Id. at 773.

Thach acknowledges the supreme court’s opinion in Bernard but argues that it “does 

not extend to the much more invasive search of a person’s blood or urine.” Thach’s 

argument finds support in this court’s opinions in Trahan and Thompson, which were 

released by this court after counsel filed their respective briefs in this case. In Trahan, this 

court held, based on the state’s concession, that Bernard does not apply to a blood test and 

that a warrantless blood test cannot be justified by the search-incident-to-arrest doctrine. 

870 N.W.2d at 401. Similarly, in Thompson, this court held that Bernard does not apply 

to a urine test and that a warrantless urine test cannot be justified by the search-incidentto-arrest doctrine. 2015 WL 9437538, at *4. Collectively, Trahan and Thompson compel 

the conclusion that, in Thach’s case, the administration of a warrantless blood test or a 
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warrantless urine test would not have been a valid search incident to his arrest. Because 

the state relies only on the search-incident-to-arrest doctrine, we must conclude that Thach 

had a fundamental right to refuse to submit to both chemical tests.

We continue the analysis by considering whether the statute is constitutional in light 

of Thach’s fundamental right to refuse to submit to the requested chemical tests. See id. at 

*5; Trahan, 870 N.W.2d at 403. If a statute implicates a fundamental right, the statute is 

subject to strict scrutiny, which requires that the statute be narrowly tailored to serve a 

compelling state interest. Trahan, 870 N.W.2d at 404. This court applied strict scrutiny 

to the test-refusal statute in Trahan and Thompson. Thompson, 2015 WL 9437538, at *5; 

Trahan, 870 N.W.2d at 404. In each case, this court concluded that the state has a 

compelling interest in keeping highways safe from drunken drivers but that the test-refusal 

statute was not narrowly tailored to serve that compelling interest. Thompson, 2015 WL 

9437538, at *5; Trahan, 870 N.W.2d at 404. Thus, in each case, this court concluded that 

the test-refusal statute was unconstitutional as applied. Thompson, 2015 WL 9437538, at 

*5; Trahan, 870 N.W.2d at 405. Trahan and Thompson compel the same conclusion in 

this case. Accordingly, we conclude that the test-refusal statute is unconstitutional as 

applied to Thach in this case. Therefore, Thach’s conviction of second-degree test-refusal 

must be reversed.

Thach also argues that the district court erred by admitting the state’s evidence 

concerning the complainant’s statements in violation of the Confrontation Clause and the 

rule against hearsay. Because we have reversed Thach’s conviction of second-degree testrefusal, Thach’s argument concerning the admissibility of the state’s evidence could be 
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relevant only to the other two charges that were tried, second-degree driving while 

impaired and driving after revocation. But the district court did not adjudicate Thach on

either of those two charges. Without an adjudication, there is no conviction, and without 

a conviction, there is no appealable judgment. See State v. Hoelzel, 639 N.W.2d 605, 609 

(Minn. 2002) (holding that verdict of guilt, without recorded judgment of conviction, is not 

final, appealable judgment); State v. Ashland, 287 N.W.2d 649, 650 (Minn. 1979) 

(declining to address sufficiency-of-evidence argument with respect to counts on which 

defendant was found guilty but not formally adjudicated or sentenced). Therefore, we do 

not consider Thach’s additional argument. If Thach were convicted and sentenced on count 

1 or count 4, he would have an opportunity at that time to take a direct appeal from a final, 

appealable judgment. See Minn. R. Crim. P. 27.03, subd. 8, 28.02, subd. 2(1); State v. 

LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).

Reversed.