The issue in this case is whether an implied-consent advisory violates a person’s right to due process by informing the person that refusal to take a urine test is a crime when a criminal test-refusal charge would be unconstitutional.  In McDonnell, The supreme court reasoned that “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 relied on Raley v. Ohio, in which the United States Supreme Court held that due process did not permit the prosecution of individuals who refused to testify before a legislative commission after being incorrectly led to believe by commission members that they could do so under the protection of the privilege against compelled self-incrimination. 360 U.S. 423, 437-39, 79 S. Ct. 1257, 1266-67 (1959); McDonnell, 473 N.W.2d at 854.

The argument is the, implied consent, as read to Mr. Johnson and countless other individuals was actively misleading because it says: “the refusal of a blood or urine test would result in a crime.”  You may remember, actually, no you don’t – why should you?-  two MN Supreme Court cases, Thompson and Trahan, where the MNSC (Not a political channel) but the MN Supreme Court) said that it was not constitutional to prosecute someone for refusing blood or urine tests because, absent a warrant, those tests are unconstitutional.  Therefore, you should be able to refuse an unconstitutional test.  These twin decisions were based on the the opinion of the SCOTUS case called Birchfield.  Those cases are were criminal cases now, so this was the first time that it was applied to a published civil case, which is again called, an Implied Consent proceeding.

Like the analysis in Thompson and Trahan, the Court of Appeals said there were no exigent circumstances because the officer in the Johnson case testified that he could have gotten a warrant.  The Commissioner also argued Brooks.  Which is a MNSC case that said a person could consent to a test without a warrant depending on the totality of the circumstances for that encounter.  The MNSC shot this argument down because MN treats breath tests  (which was offered in Brooks) differently than blood and urine tests.  Minn. Stat. § 169A.51, subd. 3 (2014) (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).  They are reasoned, there are more privacy concerns from blood or urine than there are for breath test.   You can find out if you are pregnant or have an disease from a blood or urine test.  All you can find out from a breath test is that you need a Tic-Tac or  you are missing some teeth.  Finally, the court reason under the Birchfield framework the same logic that applied to blood tests also applied to urine tests.

There were a few other arguments offered by the Commish like good faith exception and how could the officers possibly know the law, but those arguments were Mutombo’ed away.  Diekembe Mutombo was the center who would swat shots away in the NBA and then wag his finger in a semi polite manner indicating that shooting near him was the not a well thought out idea.  The Court of Appeals did the same thing and held that Mr. Johnson could not have his driver’s license revoked based on an actively misleading implied consent proceeding which asked him to submit to an unconstitutional test.