STATE OF MINNESOTA

IN COURT OF APPEALS

A15-0076

State of Minnesota,

Respondent,

vs.

Ryan Mark Thompson,

Appellant.

Filed December 28, 2015

Reversed

Smith, Judge

Steele County District Court

File No. 74-CR-12-777

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

Daniel A. McIntosh, Steele County Attorney, Julia A. Forbes, Assistant County Attorney, 

Owatonna, Minnesota (for respondent)

Charles A. Ramsay, Daniel J. Koewler, Suzula R. Bidon, Ramsay Law Firm, P.L.L.C.,

Roseville, Minnesota (for appellant)

Considered and decided by Stauber, Presiding Judge; Kirk, Judge; and Smith, 

Judge. 

S Y L L A B U S

1. Charging a driver with violating Minn. Stat. § 169A.20, subd. 2 (2010) for 

refusing to submit to a urine test implicates a fundamental right because a warrantless 

search of the driver’s urine would not have been constitutional under an exception to the 

warrant requirement.
2

2. When applied to the refusal of a warrantless urine test, Minn. Stat. 

§ 169A.20, subd. 2 violates a driver’s right to substantive due process under the United 

States and Minnesota Constitutions because it is not narrowly tailored to serve a 

compelling government interest.

O P I N I O N

SMITH, Judge

Appellant challenges his conviction of second-degree test refusal following his 

refusal to submit to a blood or urine test. We conclude that conducting a warrantless 

blood or urine test would not have been constitutional under an exception to the warrant 

requirement, charging appellant with criminal test refusal implicates his fundamental 

right to be free from unconstitutional searches, and the test-refusal statute as applied to 

warrantless blood and urine tests is not narrowly tailored to serve a compelling 

government interest. We therefore reverse appellant’s conviction because the test-refusal 

statute violates appellant’s right to substantive due process under the United States and 

Minnesota Constitutions.

FACTS

On April 13, 2012, an Owatonna police officer was sitting outside a bar at closing 

time when he saw a vehicle drive forward, jump a curb, and then stop quickly. After the 

vehicle backed up and exited the bar parking lot, it “cut the corner short” and drove over 

the center line. The officer conducted a traffic stop and identified the driver as appellant 

Ryan Thompson. The officer “detected an overwhelming odor of an alcoholic beverage 
3

coming from the vehicle” and noticed that Thompson “had watery and glassy eyes.” 

Thompson stated that he had consumed one beer.

The officer then asked Thompson to submit to field sobriety tests, which 

Thompson failed. Thompson also failed a preliminary breath test. The officer arrested 

Thompson and drove him to the Steele County Detention Center, where he read 

Thompson the implied-consent advisory. Thompson left a message for an attorney and 

“stated that he was done” using the telephone. The officer then completed reading the 

implied-consent advisory, and Thompson refused to take a blood or urine test.

Thompson was charged with second-degree test refusal, third-degree driving while 

under the influence, obstructing legal process, and driving over the centerline. At an 

omnibus hearing, Thompson challenged the constitutionality of the test-refusal statute, 

arguing that it violated his due-process rights and the unconstitutional-conditions 

doctrine. The district court concluded that the test-refusal statute is constitutional. To 

challenge the district court’s ruling on appeal, Thompson submitted the second-degree 

test-refusal charge to the district court under Minn. R. Crim. P. 26.01, subd. 4. The other 

charges were dismissed. The district court found Thompson guilty of second-degree test 

refusal.

ISSUE

Does the test-refusal statute violate appellant’s right to substantive due process 

under the United States and Minnesota Constitutions by criminalizing his refusal to 

submit to a warrantless blood or urine test?
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ANALYSIS

Minnesota’s test-refusal statute makes it a crime to refuse to submit to a chemical 

test of blood, breath, or urine in certain circumstances. Minn. Stat. § 169A.20, subd. 2. 

These circumstances include when an officer has probable cause to believe that a person 

was driving, operating, or physically controlling a motor vehicle while under the 

influence of alcohol and has read the person the implied-consent advisory. Minn. Stat. 

§ 169A.51, subds. 1-2 (2010).

Thompson challenges the constitutionality of the test-refusal statute as applied to 

him.

1

 “The constitutionality of a statute is a question of law that we review de novo.” 

State v. Ness, 834 N.W.2d 177, 181 (Minn. 2013) (quotation omitted). To successfully 

challenge a statute’s constitutionality, “the challenger bears the very heavy burden of 

demonstrating beyond a reasonable doubt that the statute is unconstitutional.” State v. 

Merrill, 450 N.W.2d 318, 321 (Minn. 1990).

A. The Fourth Amendment

Because Thompson’s due-process argument is based on a Fourth Amendment 

violation, we must first analyze whether a warrantless search would have been 

constitutional under the Fourth Amendment. See Bernard, 859 N.W.2d at 766. The 

Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. 

 

1 Thompson argues in his reply brief that the test-refusal statute is unconstitutional on its 

face, but his principal brief argues that the statute is unconstitutional as applied to him. 

Generally, issues not raised or argued in an appellant’s principal brief cannot be revived 

in a reply brief. McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review 

denied (Minn. Sept. 28, 1990). As in Bernard, we construe Thompson’s argument as an 

as-applied challenge to the test-refusal statute. See State v. Bernard, 859 N.W.2d 762,

765 n.2 (Minn. 2015).
5

amend. IV; see Minn. Const. art. I, § 10. The collection and testing of both blood and 

urine is a search. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 

1402, 1412-13 (1989). “A warrantless search is generally unreasonable, unless it falls 

into one of the recognized exceptions to the warrant requirement.” Bernard, 859 N.W.2d 

at 766. “The state bears the burden of establishing an exception to the warrant 

requirement.” State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).

Citing Bernard, the state argues that the search-incident-to-arrest exception applies

here. The search-incident-to-arrest exception allows police “to conduct a full search of 

the person who has been lawfully arrested” and to search “the area within the immediate 

control of the arrestee.” Bernard, 859 N.W.2d at 767-69 (quotation omitted). The 

exception traditionally seeks to protect arresting officers and to preserve any evidence 

that an arrestee might conceal or destroy. Arizona v. Gant, 556 U.S. 332, 338-39, 129 S. 

Ct. 1710, 1716 (2009). But the supreme court has determined that these concerns apply 

only to a warrantless search of the area around the arrestee, not to a search of the 

arrestee’s body. Bernard, 859 N.W.2d at 768-69. In Bernard, the supreme court held 

that a warrantless breath test was “constitutional under the search-incident-to-arrest 

exception to the Fourth Amendment’s warrant requirement.” Id. at 772. The supreme 

court declined to address whether a warrantless blood or urine test would also be 

constitutional under this exception. Id. at 768 n.6.

Thompson argues that the search-incident-to-arrest exception cannot apply here 

because any search would have occurred well after his arrest at the traffic stop. But the 

timing is no different than in Bernard, where the driver was arrested, taken to a police 
6

station, and read the implied-consent advisory before placing one phone call and refusing 

the breath test. See id. at 764-65. The timing of any potential search did not affect the 

supreme court’s determination that the search-incident-to-arrest exception applied. See 

id. at 767. Similarly, the timing of any potential test here does not preclude the 

application of the search-incident-to-arrest exception. See State v. Riley, 303 Minn. 251, 

254, 226 N.W.2d 907, 909-10 (1975) (explaining that there is no difference “between 

searches of a defendant immediately incident in time to the custodial arrest and searches 

made of a defendant later during his custody”).

After the parties submitted their briefs, we released an opinion analyzing whether 

the search-incident-to-arrest exception applies to warrantless blood tests. In State v. 

Trahan, a driver was offered a blood or urine test, consented to a urine test, could not 

produce a sample, and then refused a blood test. 870 N.W.2d 396, 399 (Minn. App. 

2015), review granted (Minn. Nov. 25, 2015). The driver pleaded guilty to first-degree 

test refusal regarding the blood test. Id. at 399-400. We concluded that a warrantless 

blood test could not be justified under the search-incident-to-arrest exception because 

“[a] blood draw is undeniably intrusive” and “[u]nlike breath, blood does not naturally 

and regularly exit the body.” Id. at 401.

Thompson was offered both a blood test and a urine test and refused both tests. 

Because Trahan determined that a warrantless blood test would not have been 

constitutional under the search-incident-to-arrest exception, we must only determine the 

constitutionality of a warrantless urine test. See id. at 402 n.3 (rejecting consideration of 

this issue because the driver’s guilty plea was based on his blood test refusal only).
7

We conclude that, as with a warrantless blood test, a warrantless urine test cannot 

be justified under the search-incident-to-arrest exception. “There are few activities in our 

society more personal or private than the passing of urine.” Skinner, 489 U.S. at 617, 109 

S. Ct. at 1413 (quotation omitted). Because a driver must produce a urine sample in front 

of an officer, a urine test is unquestionably more intrusive than a breath test. See 

Bernard, 859 N.W.2d at 768 n.6 (explaining that a breath test is less invasive than a 

blood or urine test). A urine test “intrudes upon expectations of privacy that society has 

long recognized as reasonable.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413.

At oral argument, the state cited three cases discussed in Bernard to support its 

argument that a warrantless urine test would be constitutional under the search-incidentto-arrest exception. In State v. Emerson, medical professionals took X-rays and 

photographs of an arrestee and performed a medical examination. 266 Minn. 217, 218-

19, 123 N.W.2d 382, 384 (1963). The supreme court determined that these actions did 

not violate the arrestee’s due-process rights. Id. at 221, 123 N.W.2d at 385. In Maryland 

v. King, the United States Supreme Court upheld a warrantless buccal swab of an 

arrestee’s cheek for DNA by jail officials, comparing it to fingerprinting and 

photographing an arrestee. 133 S. Ct. 1958, 1965, 1980 (2013). These cases are 

distinguishable by the much more invasive nature of a urine test. See Skinner, 489 U.S. 

at 617, 109 S. Ct. at 1413 (explaining that the passing of urine is generally private and 

that “its performance in public is generally prohibited by law as well as social custom”

(quotation omitted)).
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The state also cited State v. Riley, in which the supreme court determined that the 

search-incident-to-arrest exception justified a warrantless visual inspection of an 

arrestee’s penis in a prison cell. 303 Minn. 251, 253-55, 226 N.W.2d 907, 909-10 

(1975). But Riley is also distinguishable. In Riley, the officer conducted a brief visual 

inspection after the victim told police that “her assailant had unusual markings on the left 

side of his penis.” Id. at 253, 266 N.W.2d at 908-09. In contrast to the brief nature of 

this inspection, producing a urine sample can take a long time due to the anxiety and 

stress of the situation and a person can remain exposed to the officer for a considerable 

length of time. See State, Dep’t of Highways v. Lauseng, 289 Minn. 344, 345 n.1, 183 

N.W.2d 926, 926-27 n.1 (1971) (stating that an arrestee may be unable to produce urine 

due to “the emotional disturbance created by arrest or accident” (quotation omitted)); 

State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010) (commenting that an arrestee 

was unable to produce a urine sample after several glasses of water and three 

opportunities to do so in more than one hour), review denied (Minn. Mar. 15, 2011).

Moreover, the visual inspection in Riley was performed for the limited purpose of 

identifying whether the suspect had the “unusual markings” identified by the victim. See

303 Minn. at 253, 266 N.W.2d at 908-09. The supreme court explained that there was 

both “overwhelming independent justification” for the search and “ample probable 

cause” for the arrest. Id. at 255, 266 N.W.2d at 910. Unlike the identification rationale 

in Riley, a urine sample is used to collect evidence against the arrestee. See Minn. Stat. 

§ 169A.45, subd. 1 (2010) (stating that the results of a blood, breath, or urine test may be 

admitted in a prosecution for driving while impaired). In addition, a urine test “can 
9

reveal a host of private medical facts,” including whether someone is “epileptic, 

pregnant, or diabetic.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413. Although officers 

do not analyze an arrestee’s urine to learn sensitive medical information, we cannot 

ignore the potentially broad scope of a urine test. See Bernard, 859 N.W.2d at 771 n.8 

(stating that a breath test reveals only “the level of alcohol in the arrestee’s 

bloodstream”). 

We acknowledge that a urine test is less intrusive than a blood draw, which 

requires inserting a needle into the arrestee’s skin. See Trahan, 870 N.W.2d at 401. But 

a urine test is far more intrusive than a breath test and other searches that have been 

upheld under the search-incident-to-arrest exception. See Bernard, 859 N.W.2d at 772 

(breath); State v. Bonner, 275 Minn. 280, 287, 146 N.W.2d 770, 775 (1966) (photographs

and fingerprints); Emerson, 266 Minn. at 221, 123 N.W.2d at 385 (photographs, X-rays, 

and medical examination); see also King, 133 S. Ct. at 1980 (buccal swab of cheek for 

identification under reasonableness-in-the-circumstances standard). In addition, our 

legislature treats both blood and urine tests differently than breath tests. See Minn. Stat. 

§ 169A.51, subd. 3 (2010) (requiring an officer to offer an alternative test before a driver 

can be charged with refusing a blood or urine test but not a breath test). Because a 

warrantless search of Thompson’s urine would invade one of the most private of human 

activities, see Skinner, 489 U.S. at 617, 109 S. Ct. at 1413, it would not have been 

constitutional under the search-incident-to-arrest exception to the warrant requirement, 

see Trahan, 870 N.W.2d at 402.
10

B. Substantive Due Process

Having concluded that no exception to the warrant requirement would have 

justified a warrantless search of Thompson’s blood or urine, we next consider 

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

Due Process Clauses of the United States and Minnesota Constitutions prohibit arbitrary 

and wrongful government actions, “regardless of the fairness of the procedures used to 

implement them.” Bernard, 859 N.W.2d at 773 (quotation omitted); see U.S. Const. 

amend. XIV, § 1; Minn. Const. art. I, § 7. If the challenged statute implicates a 

fundamental right, it is subject to strict-scrutiny review. See In re Welfare of Child of 

R.D.L., 853 N.W.2d 127, 133 (Minn. 2014) (applying strict scrutiny because the statute 

implicated a fundamental right, the right to parent). But if the statute does not implicate a 

fundamental right, it is subject to rational-basis review. Bernard, 859 N.W.2d at 773.

“Every citizen has a fundamental right to be free from unreasonable searches.” 

Trahan, 870 N.W.2d at 403. In Trahan, we determined that the driver’s fundamental 

right to be free from unreasonable searches was implicated because a warrantless blood 

test would have been unconstitutional. Id. at 404. As in Trahan, because a warrantless 

search of Thompson’s blood or urine would have been unconstitutional, Thompson’s 

fundamental right to be free from unreasonable searches is implicated. See id.

We therefore apply strict-scrutiny review to assess the constitutionality of the testrefusal statute. See R.D.L., 853 N.W.2d at 133; Trahan, 870 N.W.2d at 404. “Once a 

statute is subject to strict scrutiny, it is not entitled to the usual presumption of validity.” 
11

R.D.L., 853 N.W.2d at 133 (quotation omitted). The state must show that the statute is 

“narrowly tailored to serve a compelling government interest.” Id. 

As noted in Bernard and Trahan, the state has a compelling interest in keeping 

impaired drivers off its roads. See Bernard, 859 N.W.2d at 773; Trahan, 870 N.W.2d at 

404. But in Trahan, we determined that criminalizing the refusal of a warrantless blood 

test was not narrowly tailored because the state had “other viable options to address 

drunk driving,” including (1) offering a breath test and charging a driver with refusing 

that test; (2) prosecuting the driver without measuring the alcohol concentration; and 

(3) securing a search warrant. 870 N.W.2d at 404; see Missouri v. McNeely, 133 S. Ct. 

1552, 1562 (2013) (suggesting that, today, search warrants are often easy to obtain via 

telephone or electronic communication). Because these alternatives are similarly 

available in the context of a warrantless urine test, we conclude that the test-refusal 

statute is not narrowly tailored to serve the state’s compelling interest in keeping its roads 

safe. See Trahan, 870 N.W.2d at 404. The test-refusal statute therefore fails strict 

scrutiny as applied to Thompson, and Thompson’s right to substantive due process under 

the United States and Minnesota Constitutions was violated. See id.

The state suggests that we should nevertheless apply the good-faith exception to 

the exclusionary rule to affirm Thompson’s conviction. The supreme court recently 

adopted the good-faith exception in the narrow situation where “law enforcement acts in 

objectively reasonable reliance on binding appellate precedent.” State v. Lindquist, 869

N.W.2d 863, 876 (Minn. 2015). In Trahan, we declined to apply the good-faith 

exception to affirm the driver’s conviction for refusing a blood test, in part because the 
12

exception applies only to Fourth Amendment violations and no unconstitutional search 

actually occurred. See 870 N.W.2d at 405; see also Lindquist, 869 N.W.2d at 876. 

Accordingly, we also decline to apply the good-faith exception to affirm Thompson’s 

conviction for refusing blood and urine tests.

Finally, because we reverse Thompson’s conviction on due-process grounds, we 

need not address Thompson’s other arguments regarding the constitutionality of the testrefusal statute.

D E C I S I O N

The test-refusal statute violates appellant’s right to substantive due process under 

the United States and Minnesota Constitutions by criminalizing his refusal to submit to a 

warrantless blood or urine test. We therefore reverse appellant’s conviction.

Reversed.