This opinion will be unpublished and may not be cited except as provided by Minn.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 A16-0569 Jesse John Susa, petitioner, Respondent,

vs. Commissioner of Public Safety, Appellant. Filed December 12, 2016 Affirmed Cleary, Chief Judge Concurring specia lly, Ross, Judge Pine County District Court

File No. 58-CV-15-498 Daniel J. Koewler, Charles A. Ramsay, Ja y S. Adkins, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota (for respondent) Lori Swanson, Attorney General, Dominic J. Haik, Assistant Attorney General, St. Paul, Minnesota (for appellant) Considered and decided by Ross, Presiding Judge; Cleary, Chief Judge; and Jesson, Judge. U N P U B L I S H E D O P I N I O N CLEARY , Chief Judge On appeal from the resci ssion of the revocation of re spondent Jesse John Susa’s driving privileges, the commissioner of public sa fety asserts that the district court erred by concluding that the warrantle ss collection of respondent’s urine was unconstitutional.2 Because we conclude that res pondent’s right to due process was violated, we affirm the district court’s rescission. FACTS In July 2015, respondent wa s arrested and transported to the Pine County Jail after a deputy initiated a traffic stop and determ ined there was probab le cause to believe respondent was driving under the influence. The deputy read the implied-consent advisory to respondent, provided responde nt an opportunity to cont act an attorney, and asked respondent to provide either a blood or urine sample for labor atory analysis. The deputy made no effort to obtain a search warrant before seeking a blood or urine sample. Respondent provided a urine sample. Analysis of the sample indicat ed an alcohol concentration of 0.14. Respon dent’s driver’s license was revoked. Respondent sought judicial review of the revocation of his drivin g privileges, arguing before the district court that his Fourth Amendment and due-process right s had been violated. The district court rescinded the revocation. D E C I S I O N Appellant argues that the district court e rred by concluding that the warrantless collection of respondent’s urine was uncons titutional and asserts that the collection, performed pursuant to Minnesota’s Implied Consent Law, was permissible under the Fourth Amendment. Respondent argues that the district court’s order rescinding the3 revocation should be affirm ed, because respondent was f undamentally misled by law enforcement in violation of his right to due process. 1 Under Minnesota’s Implied Consent Law, any person who drives a motor vehicle within the state consents to a ch emical test of his blood, breath, or urine for the purpose of determining the presence of alcohol, a controll ed substance or its metabolite, or a hazardous substance. Minn. Stat. § 169A.51, subd. 1 (2014). An officer who requires a test may direct whether the test is blood, breath, or ur ine. Minn. Stat. § 169A.51, subd. 3 (2014). Minnesota’s test-refusal statute makes it a crime to refuse to submit to a chemical test when an officer has probable cause to believe that a person was driving, ope rating, or physically controlling a motor vehicle while impaired and has read the person the implied-consent advisory. Minn. Stat. §§ 169A.20, subd. 2, .51, subds. 1-2 (2014); State v. Thompson , 873 N.W.2d 873, 876 (Minn. App. 2015) ( Thompson I ), aff’d , 886 N.W.2d 224 (Minn. 2016). However, no action may be taken against a person who refuse s either a blood or urine test unless an alternative test was offered. Minn. Stat. § 169A.51, subd. 3. If a person submits to a test and the results indicate an alcohol concentration of 0.08 or more, those results

1 Appellant urges us not to c onsider respondent’s due-process challenge, arguing that the district court did not address it and that re spondent waived the issue by failing to seek review pursuant to Minnesota Rule of Civil A ppellate Procedure 106. This rule provides, “[a]fter an appeal has been filed, respondent may obtain re view of a judgment or order entered in the same underlying action that ma y adversely affect re spondent by filing a notice of related appeal.” Minn. R. Civ. Ap p. P. 106. However, appellant’s argument is without merit. “[W]here a part y litigated two separate grounds for recovery and the district court made its decision based on one and not the other, that party can stress any sound reason for affirmance even if it is not the one assigned by the tr ial judge, in support of that decision.” Day Masonry v. Indep. Sch. Dist. 347 , 781 N.W.2d 321, 331 (Minn. 2010) (quotations omitted). Because respondent raised both Fourth Amendment and due-process challenges before the district court, he may stress either ground for affirmance.4 must be reported to the commissioner, and the commissioner shall revoke the person’s license upon certification by the officer that th ere was probable cause to believe the person was driving while impaired. Minn. Stat. § 169A.52, subds. 2, 4 (2014). Respondent asserts that his due-process rights were violated because the impliedconsent advisory contained a misleading stat ement. The United States and Minnesota Constitutions provide that an individual may not be deprived of life, liberty, or property without due process of law. U.S. Const. ame nd. XIV; Minn. Const. art 1 § 7. Whether a due-process violation has occu rred presents a question of constitutional law, which we review de novo. State v. Beecroft , 813 N.W.2d 814, 836 (Minn. 2012). Relying on McDonnell v. Comm’r of Pub. Safety , 473 N.W.2d 848 (Minn. 1991), respondent specifically argues that his due -process rights were violated because the implied-consent advisory included the misleading statement, “[r]efusal to take a test is a crime.” Appellant does not directly respond to this assertion, but c ontinues to argue that the urine test was permissible under the Four th Amendment or, altern atively, was within the good-faith exception. Where a person bases a due-process claim so lely on an alleged Fourth Amendment violation, a court must review the claim und er the Fourth Amendmen t rather than under the more generalized notion of substantive due process. See State v. Thompson , 886 N.W.2d 224, 230 n.4 ( Thompson II ) (noting that the Court, in Birchfield v. North Dakota , 136 S. Ct. 2160 (2016), concluded that the warrantless blood test violated the Fourth Amendment and did not engage in a due-process analysis); see also Albright v. Oliver , 510 U.S. 266, 273, 114 S. Ct. 8 07, 813 (1994) (explaining that where a particular amendment5 provides an explicit textual source of constitu tional protection against a particular sort of government behavior, that ame ndment, not the more generaliz ed notion of substantive due process, must be the guide fo r analyzing these claims). He re, however, respondent’s dueprocess claim is not based on the Fourth Amendm ent. Rather, it is ba sed on the theory that the implied-consent advisory misled respondent regarding his legal ob ligation to submit to a blood or urine test. Furthermore, res pondent’s claim does not attempt to expand substantive-due-process relief, as the Minnesota Supreme Court has granted the relief respondent requests where a similar claim was asserted. 2 See McDonnell , 473 N.W.2d at 853-55 (rescinding a license revocation where po lice threatened crimin al charges that the state was not authorized to impose). Becaus e respondent’s challenge is based upon the officer’s misleading advisory ra ther than on an alleged Fo urth Amendment violation and because it does not attempt to expand substantive due proce ss, due-process analysis is appropriate. 3 See Johnson v. Comm’r of Pub. Safety , ___ N.W.2d ___, ___, 2016 WL

2 “Assuming, without deciding, that the due-process claim in McDonnell was substantive, McDonnell establishes substantive-due-process reli ef when an implied-consent advisory misinforms a person subject to testing under Minnesota’s implied-consent law that she could be charged with the crime of test re fusal when such a charge is impossible.” Johnson v. Comm’r of Pub. Safety , ___ N.W.2d ___, ___, 2016 WL 6570284, at *4 (Minn. App. Nov. 7, 2016) (citing McDonnell , 473 N.W.2d at 855). A challenge seeking relief under McDonnell is not an attempt to expand substantive due process. Id.

3 In Thompson II, the Minnesota Supreme Court relie d on the Fourth Amendment to hold that the test-refusal stat ute was unconstitutional. Thompson II, 886 N.W.2d at 228-30, 230 n.4. The court used th e framework set forth in Birchfield , in which the United States Supreme Court was asked to determine whether laws criminalizing a motorist’s refusal to be tested after being lawfully arrested fo r driving while impairedviolate the Fourth Amendment. Id. at 230-34. Birchfield , 136 S. Ct. at 2166-67. To answer this question, the Supreme Court explained that a state ma y criminalize the refusal to submit to the required testing if the warrantless searches comport with the Fo urth Amendment.6 6570284, at *4-6 (Minn. App. Nov. 7, 2016) (holding a du e-process challenge to an inaccurate implied-consent a dvisory should be analyzed as a due-process claim). The Minnesota Supreme Court has recognized due-process claims similar to the one that respondent asserts here. In McDonnell , the Minnesota Supreme Court was asked to determine whether a driver’s due-process right s were violated where the implied-consent advisory misinformed her that she might be prosecuted for test refusal. McDonnell , 473 N.W.2d at 853. In the portion of McDonnell addressing appellant-driver Moser, the court explained that Moser was arrested on su spicion of driving while intoxicated. Id. at 851. She was transported to the po lice headquarters and read th e implied-consent advisory, including a warning that refusal to submit to te sting might expose her to criminal penalties. Id. Moser concluded that she wo uld be subject to criminal penalties for test refusal and submitted to a breath test. Id. Based on the results of the te st, Moser’s license was revoked. Id. Moser appealed and asserted that her due-p rocess rights had been violated because, as a person without any previous license revoca tions, she could not be punished under the criminal test-refusal statute then in effect. Id. at 851, 853. The co urt reasoned that “due process does not permit those who are percei ved to speak for th e state to mislead

Birchfield , 136 S. Ct. at 2172. The use of the Fourth Amendm ent analysis in Birchfield and the Minnesota Supreme Court’s Thompson II opinion does not change our conclusion that due-process analysis is appropriate in th is case. The constitutional protection at issue in both Birchfield and Thompson II was the Fourth Amendment right to be free from unreasonable searches and seizures. Here, the constitutional protection at issue is the right to due process during an implied-consent pr ocedure. Furthermore, this court has previously determined that due- process analysis is appropriat e under these circumstances. Johnson , 2016 WL 6570284, at *3-6 (concluding that due-proce ss analysis was appropriate where a respondent assert ed a similar claim).7 individuals as to either their legal obligati ons or the penalties they might face should they fail to satisfy those obligations.” Id. at 854. The court concluded that the advisory was unconstitutional as applied to Moser, because it “permitted police to threaten criminal charges the state was not authorized to impose.” Id. at 855. Relying on McDonnell , we concluded that drivers who were misinformed by police as to the potential consequences of their testing decisions were entitled to rescission of their license revocations. See, e.g. , Olinger v. Comm’r of Pub. Safety , 478 N.W.2d 806, 807-08 (Minn. App. 1991); Steinolfson v. Comm’r of Pub. Safety , 478 N.W.2d 808, 808-09 (Minn. App. 1991). Furthermore, we determined that such drivers were entitle d to relief regardless of whether they submitted to or refused testing. Steinolfson , 478 N.W.2d at 809 (“The advisory gives misleading and inaccurate info rmation to every firs t-time offender, and the driver’s subsequent decision re garding testing does not dimini sh the violation.”). Because the improper threat of criminal charges itself constitutes the violation, no showing of actual prejudice is required. Olinger , 478 N.W.2d at 808. Respondent asserts that recent holdings of this court and the United States Supreme Court make clear that he could not have been criminally punish ed for test refusal and that the deputy’s statem ent that test refusal was a crime was misleading. In State v. Trahan and State v. Thompson , this court made clear that a driver cannot be criminally punished for his refusal to submit to either a warrantless bl ood test or a warrantless urine test where no exception to the warrant requirement applies. Thompson I, 873 N.W.2d at 878-80, aff’d , 886 N.W.2d 224 (Minn. 2016); State v. Trahan , 870 N.W.2d 396, 403-05 (Minn. App. 2015) ( Trahan I ), aff’d , 886 N.W.2d 216 (Minn. 2016). Our holdings in Thompson I and8 Trahan I have now been affirmed by the Minnes ota Supreme Court and supported by the United States Supreme Court’s decision in Birchfield

. Birchfield , 136 S. Ct. at 2184-87; Thompson II, 886 N.W.2d at 234; State v. Trahan , 886 N.W.2d 216, 224 (Minn. 2016) ( Trahan II ). In Birchfield , the Court held that a warrantle ss blood test cannot be justified under either the search-inciden t-to-arrest exception or on the basis of implied consent. Birchfield , 136 S. Ct. at 2184-86. Concluding th at a state cannot compel both blood and breath tests, the Court determined that an officer’s advisory was partially inaccurate where it stated that test re fusal is a crime. Id. at 1272, 1286. Respondent explains that the deputy’s statemen t to him that “[r]efusal to take a test is a crime” was similarly misl eading, because he could not ha ve been criminally punished for exercising his right to refuse testing. Ap pellant asserts that all facets of the impliedconsent statute had been held to be constituti onal with respect to ur ine testing when the deputy read the implied-consent advisory. Appellant argues that we should reverse the district court’s order rescinding respondent’s driving privileges, because the advisory was accurate when read. Although the events at i ssue occurred before the Trahan , Thompson , and Birchfield decisions were issued, we are not persuaded by appellant’s argument. This court has previously applied the holding of Thompson II to a case in which the events at issue occurred pr ior to the issuance of the Thompson II decision. See Johnson , 2016 WL 65702 84, at *12-13 (applying Thompson II and concluding that Johnson’s right to due process was violated). In Johnson , an officer arrested Johnson for driving while impaired (DWI) and transported him to a local emergency room. Id. at *1. At the hospital, the officer read Johnson the implied-consent advisory and in formed Johnson that refusal9 to take a urine test was a crime. Id. Johnson did not submit to e ither the urine test or blood test offered by the officer, and his license was revoked on the basis of his test refusal. Id. at *1-2. We determined that the advisory was inaccurate, because Johnson could not be criminally prosecuted for refusing to cons ent to the unconstitutional urine test under Thompson II

. Id. at *13. As a result, we held th at Johnson’s right to due process was violated and affirmed the district court’s order rescinding the re vocation of Johnson’s license. Id. That respondent submitted to the urine test does not comp el us to depart from our reasoning in Johnson . As we have previously recogni zed, it is the improper threat that constitutes the violation. Olinger , 478 N.W.2d at 808. An a dvisory that gives misleading information violates a driver’s right to due pr ocess, and the violation is not diminished by the driver’s subsequent de cision regarding testing. Steinolfson , 478 N.W.2d at 809. For these reasons, we conclude that respondent is entitled to claim the be nefit of the holding announced in Thompson II

. 4

4 At oral argument, respondent asserted that new substantive rules of federal constitutional law were announced in the Trahan , Thompson , and Birchfield decisions and must be given retroactive effect under Montgomery v. Louisiana , 136 S. Ct. 718 (2016). In Montgomery , the Court explained that Teague v. Lane , 489 U.S. 288, 109 S. Ct . 1060 (1989), recognized that new substantive rules of federal const itutional law are not s ubject to the general retroactivity bar, which bars courts from applying new constitutiona l rules of criminal procedure to convictions that were fi nal when the new ru le was announced. Montgomery , 136 S. Ct. at 728; see also Danforth v. State , 761 N.W.2d 493, 498-99 (Minn. 2009) (adopting the federal Teague test to determine retroactivity ). However, respondent’s brief included neither this argum ent nor any citation to Montgomery . Issues not briefed on appeal are not properly befo re the appellate court. Melina v. Chaplin , 327 N.W.2d 19, 20 (Minn. 1982). Because responde nt failed to properly brief the issue and because no final conviction is at issue here, we decline to address whether new substantive rules of federal constitutional law were announced.10 In this case, the deputy informed respondent that “[r]efusal to take a test is a crime.” At the implied-consent hearing, the deputy te stified that there was no emergency or need to perform an exigent search . Recent holdings of the Mi nnesota Supreme Court and the United States Supreme Court make clear that the state cannot criminally punish respondent for his refusal to submit to either the blood or urine tests offe red by the deputy. See Birchfield , 136 S. Ct. at 2186 (con cluding that North Dakota co uld not prosecute a driver for refusing to submit to an unconstitutional blood test); Thompson II, 886 N.W.2d at 234 (holding that a driver canno t be prosecuted for refusing to submit to an unconstitutional warrantless blood or urine test); Trahan II, 886 N.W.2d at 224 (holding that a driver cannot be prosecuted for refusing to submit to an unc onstitutional warrantless bl ood test). Because the deputy threatened responde nt with criminal penalties that the state was not authorized to impose, respondent’s due-process rights were violated. The district court did not err by rescinding the revocation of re spondent’s license, because respondent was entitled to such relief under McDonnell

. Appellant makes no argument regarding what relief is appropr iate in due-process challenges. Rather, appellant continues to argu e that the urine test is admissible under the Fourth Amendment. First, appellant argues that the go od-faith exception to the exclusionary rule applies, because the deputy reasonably relied on bi nding precedent. The exclusionary rule and good -faith exception are Fourth Amendment doctrines. The Minnesota Supreme Court explained in State v. Lindquist , 869 N.W.2d 863, 868-70 (Minn.11 2015), that the exclusionary rule to the Fourth Amendment is a prudential doctrine and that the good-faith exception permits the admission of certain eviden ce obtained in violation of a defendant’s Fourth Amendment rights agai nst unreasonable searches and seizures. Appellant fails to provide any legal authority to support the application of the good-faith exception to due-process violations. Absent such authority, we declin e to extend the goodfaith exception. Next, appellant argues that the exclusionary rule should not be applied, because the revocation of respondent’s driver ’s license occurred by administra tive rather than criminal processes. Again, appellant continues to focus on Fourth Amendment doctrine and does not address respondent’s due-process arguments. Appellant fails to cite to any binding, legal authority to support the a ssertion that we must distingu ish between criminal and civil proceedings when consider ing a due-process challenge. 5 In Birchfield , the United States Supreme Court addressed only whether the Fourth Amendment permits warrantless chemical testing and did not consider a due-p rocess challenge. 136 S. Ct. at 2160-87. Similarly, the Court’s analysis in Pennsylvania Bd. of Pr ob. & Parole v. Scott focused on the Fourth Amendment. 52 4 U.S. 357, 364, 118 S. Ct. 2014 , 2020 (1998). In Scott , the Court considered whether the ex clusionary rule barred the intr oduction of evidence seized in violation of a parolee’s Fourth Amendmen t rights and mentioned due process only in a

5 Although appellant cites several unpublished cases from this court, we are not bound to follow them. Minn. Stat. § 480A.08, subd. 3 (2014); Freeman v. State , 804 N.W.2d 144, 147 (Minn. App. 2011), review denied (Minn. Dec. 13, 2011). Fu rthermore, the cited cases do not support the admission of a chemical test in a civil proceeding where the person who submitted to the test asserts a due-process challe nge based on the theory that he was misled as to the consequences of test refusal.12 footnote to explain that parolees are not en titled to the full panoply of due-process rights to which criminal de fendants are entitled. Id. at 364, 365 n.5, 118 S. Ct. at 2020, 2021 n.5. Because appellant fails to cite to any binding authority that w ould require us to differentiate between criminal and administrative proc eedings when considering a due-process challenge, we decline to do so in this case. Because we hold that respon dent’s due-process rights were violated, we need not determine whether the warrantless collection of respondent’s urine was permissible under the Fourth Amendment. The district court did not err by rescinding the revocation of respondent’s driving privileges. Affirmed.CS-1 ROSS , Judge (concurring specially) The majority treats the issue ra ised in this case as one of due process. The highest state and federal courts teach that, instead, the issue should be addressed under the more specific search jurisprudence of the Fourth Am endment. I write separately to say that we should be applying the principles of the Fourth Amendment, not thos e of due process, to the state’s appeal. For reasons I need not develop here, I believe that if we were to apply the Fourth Amendment, either we would refuse to suppre ss the evidence of Jesse Susa’s positive urine test because the exclusionary rule does not restrict evidence obtained as the result of an officer’s good-faith but mistaken u nderstanding of the law at the time ( see State v. Lindquist , 869 N.W.2d 863, 876–77 (M inn. 2015) (holdi ng blood-test evidence admissible because a reasonable officer would have read th e extant caselaw as a llowing a warrantless blood draw under the circumstances)), or we wo uld remand the case to the district court to consider whether Susa’s consent was voluntary and valid notwithstanding the constitutionally infirm advisory ( see Beylund v. North Dakota , 136 S. Ct. 2537 (2016) (mem.) (reversing and remanding to determine volu ntariness of the driver’s consent in light of Birchfield v. North Dakota , 136 S. Ct. 2160, 2186–87 (20 16))). Rather than discuss in detail the outcome that I believe the Fo urth Amendment would demand, I merely emphasize why we should apply the Fourth Amendment rather than the Due Process Clause. We should apply the Fourth Amendment a nd not general principles of due process because we have been advised to do so by both courts that frame our analyses in theseCS-2 cases: the United States Supr eme Court and the Minnesota Supreme Court. The United States Supreme Court specifically directed courts to choose onl y the specifically applicable constitutional rule. That Court in County of Sacramento v. Lewis emphasized this duty when it repeated that, “‘where a particular Amendment provides an explicit textual source of constitutional protection agai nst a particular sort of government behavior, that Amendment, not the more genera lized notion of substantive due process, must be the guide for analyzing these claims.’” 523 U.S. 833, 84 2, 118 S. Ct. 1708, 1714 (1998) (quoting Albright v. Oliver , 510 U.S. 266, 2 73, 114 S. Ct. 807, 813 (199 4)). Our state supreme court recently quoted this language from Lewis when it intimated that this court should have relied on the Fourth Amendment instead of th e Due Process Clause when we decided in State v. Thompson , 873 N.W.2d 873, 880 (Minn. App. 2015), that the state may not constitutionally punish a suspected drunk driv er for refusing to submit to a urine test. State v. Thompson , 886 N.W.2d 224, 228 n.2 (Minn. 2 016). The state supreme court observed that the United States Supreme Court in Birchfield “did not examine whether criminalizing the refusal to submit to an unconstitutional search violated the Due Process Clause” but rather decided the case based on whether “the warrantless bloo d test violated the Fourth Amendment.” Id. at 230 n.4; see also State v. Brooks , 838 N.W.2d 563, 568 (Minn. 2013) (analyzing validity of a suspected drunk driv er’s consent to chemical testing under the Fourth Amendment). Simply put, the two courts that direct how we must approach impliedconsent questions like the one we face today have applied only the Fourth Amendment, not the Due Process Clause, and so should we.CS-3 I recognize that the legality of the chemical-test advi sory and the legality of criminalizing a chemical-test refusal are somewhat different things. But they are inextricably and identically intertwined in the Fourth Am endment. The very reason the legality of the chemical-test advi sory is suspect as applied to urine tests is specifically because of the recent a nd specific holding that the Fourth Amendment prohibits the state from criminalizing urine-test refusals. I thi nk it is unnecessarily complicating to address the issue under the general not ion of due process, in add ition to being an approach deliberately eschewed by the Birchfield Court and Thompson court. I also recognize that we recently published an opinion co nsidering but rejecting the commissioner’s argument that the Fourth Ame ndment rather than th e Due Process Clause provides the proper framework for a challenge like Susa’s. Johnson v. Comm’r of Pub. Safety , ___ N.W.2d ____, ____ , 2016 WL 6570 284, at *3 (Minn. App. Nov. 7, 2016). Although Johnson is exceptionally reasoned, I am not persuaded by it that the supreme court will or should abandon its recently stated commitmen t to apply only the Fourth Amendment in this context. We are, howeve r, bound by precedent, and so in light of Johnson , I concur in (rather than dissent from) th e majority’s approach and decision today.