MN: Misleading advice of implied consent rights and duties violated due process; Birchfield distinguished

Misleading advice of implied consent rights and duties violated due process. Birchfield distinguished. Johnson v. Comm’r of Pub. Safety, 2016 Minn. App. LEXIS 75 (Nov. 7, 2016)*:

In Birchfield and Thompson, the constitutional protection at issue was the Fourth Amendment right to be free from unreasonable searches. Here, the constitutional protection at issue is the established due-process right not to be misled by the government regarding one’s legal obligations or the potential criminal penalties for failing to satisfy those obligations. See McDonnell, 473 N.W.2d at 854. “[D]ue 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.”). Unlike the circumstances in Birchfield and Thompson, the Fourth Amendment does not provide an explicit textual source of constitutional protection against the challenged government behavior in this case, whereas McDonnell recognizes the Due Process Clause as the source of the relevant constitutional protection. See id.

In sum, Johnson’s due-process challenge to the language of the implied-consent advisory is not a novel claim. The appellate courts of this state have considered the merits of such claims for over 20 years. Moreover, analyzing Johnson’s challenge only under the Fourth Amendment would be inconsistent with the Minnesota Supreme Court’s statement in Davis that a constitutionally valid search “does not answer the question of what procedure is due an arrestee if the legislature … give[s] the arrestee the option of not complying with the statutory obligation to submit to testing.” 517 N.W.2d at 904. For these reasons, we review Johnson’s challenge to the implied-consent advisory as a due-process claim, consistent with precedent.