This opinion will be unpublished and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
                                     A14-1631

                                  Jason Charles Cibulka,
                                        petitioner,
                                        Appellant,

                                           vs.

                                   State of Minnesota,
                                      Respondent.

                                Filed September 8, 2015
                                       Affirmed
                                    Johnson, Judge

                            Washington County District Court
                               File No. 82-CR-11-1478

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Pete Orput, Washington County Attorney, Kari A. Lindstrom, Assistant County Attorney,
Stillwater, Minnesota (for respondent)

         Considered and decided by Johnson, Presiding Judge; Bjorkman, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         In 2012, Jason Charles Cibulka pleaded guilty to one count of first-degree test

refusal based on his admission that he refused to submit to a blood test after he was
arrested for driving while impaired. In 2013, Cibulka petitioned for postconviction relief,

arguing that the test-refusal statute is unconstitutional in light of the United States

Supreme Court’s opinion in Missouri v. McNeely. The postconviction court denied the

petition on the ground that McNeely does not apply retroactively to Cibulka’s conviction,

which had become final before the McNeely opinion was issued. We affirm.

                                          FACTS

       On April 18, 2011, a Forest Lake police officer received a report of an erratic

driver. The officer then observed a vehicle travel east in the westbound lane of Scandia

Trail, pass three cars in a no-passing zone, and force oncoming traffic to swerve out of

the way. The officer stopped the driver, who was identified as Cibulka. The officer

suspected that Cibulka was impaired, although a preliminary breath test showed that he

had no alcohol in his system. The officer nonetheless arrested him and transported him to

the police station.

       At the police station, another officer performed a drug-recognition evaluation and

observed that Cibulka had eyelid tremors, was jittery, complained of dry mouth, and had

an elevated heart rate and blood pressure. The officers suspected that Cibulka was under

the influence of illegal drugs. An officer read Cibulka the implied-consent advisory and

asked him to submit to a urine test. Cibulka agreed but was unable to produce a urine

sample, even after drinking several glasses of water over the span of an hour. The

officers then offered him a blood test, but he refused.

       In April 2011, the state charged Cibulka with first-degree test refusal, in violation

of Minn. Stat. §§ 169A.20, subd. 2, 169A.24, subd. 1(2) (2010). In June 2012, Cibulka


                                             2
pleaded guilty. On October 12, 2012, the district court imposed a sentence of 54 months

of imprisonment but stayed the sentence and ordered Cibulka to serve 270 days in the

Washington County jail. In December 2012, a probation officer reported that Cibulka

had violated a condition of his probation. In January 2013, the district court revoked

Cibulka’s probation and executed his prison sentence.

       On April 17, 2013, the United States Supreme Court issued its opinion in Missouri

v. McNeely, 

 (2013), in which it held that the dissipation of alcohol in the

blood is not a per se exigency justifying a warrantless blood draw from a person arrested

for driving while impaired. 

.

       In October 2013, Cibulka filed a pro se petition for postconviction relief, seeking

to withdraw his guilty plea on the ground that the test-refusal statute is unconstitutional.

In January 2014, an assistant state public defender submitted a supplemental

memorandum of law in support of Cibulka’s petition.                  The state submitted a

memorandum of law in which it opposed the petition on two grounds: that McNeely does

not apply retroactively and that the test-refusal statute is not unconstitutional.

       In July 2014, the postconviction court denied Cibulka’s petition on the ground that

McNeely does not apply retroactively. The postconviction court did not consider whether

the test-refusal statute is unconstitutional. Cibulka appeals.

                                      DECISION

       Cibulka argues that the district court erred by denying his postconviction petition.

He contends that McNeely does not retroactively apply to his case and, furthermore, that

the test-refusal statute is unconstitutional as applied to warrantless blood tests.


                                               3
       We begin by addressing Cibulka’s argument concerning retroactivity.           As a

general matter, if the Supreme Court announces a new rule of federal constitutional

criminal procedure, a defendant “is entitled to benefit from that new rule” if his or her

case is pending in the district court or on direct appellate review. Danforth v. State, 

 (Minn. 2009) (quoting O’Meara v. State, 

 (Minn.

2004)). “But if the defendant’s conviction is already final at the time the new rule is

announced, then the criminal defendant ordinarily may not avail himself of the new rule.”

 (quoting O’Meara, 

). There are, however, two recognized

exceptions to the general rule of non-retroactivity: a new rule may apply to convictions

that have become final if

              (1) the rule “place[d] an entire category of primary conduct
              beyond the reach of the criminal law,” or “prohibit[ed]
              imposition of a certain type of punishment for a class of
              defendants because of their status or offense”; or (2) the new
              rule was a “watershed” rule of criminal procedure that was
              “necessary to the fundamental fairness of the criminal
              proceeding.”

 at 496-97 (quoting O’Meara, 

 n.3 (quoting Sawyer v. Smith, 

, 

 (1990)).

       This court has considered whether McNeely applies retroactively. In O’Connell v.

State, 

 (Minn. App. 2015), review granted and stayed (Minn. Mar. 25,

2015), the defendant, who was charged with DWI, moved to suppress evidence obtained

in a warrantless urine test, and the district court denied the motion. 

. He

pleaded guilty to DWI. 

 After the Supreme Court issued its opinion in McNeely,

however, he petitioned for postconviction relief on the ground that, in light of McNeely,


                                            4
the administration of the warrantless urine test violated his Fourth Amendment rights. 

The district court denied the petition, and this court affirmed. 

 We reasoned that

McNeely sets forth a new rule of federal constitutional criminal procedure. 

.

We further reasoned that neither of the two exceptions to the general rule of non-

retroactivity applies. 

.

       In this case, the parties agree that the Supreme Court announced a new rule of

federal constitutional criminal procedure in McNeely. See 

. The parties also

agree that Cibulka’s conviction was final before the McNeely opinion was issued.

Accordingly, Cibulka may apply McNeely retroactively only if he can satisfy one of the

two exceptions to the general rule of non-retroactivity. See Danforth, 

. Cibulka acknowledges our opinion in O’Connell but nonetheless contends that

McNeely applies retroactively in this case pursuant to the first exception.

       The first exception to Minnesota’s general rule of non-retroactivity is borrowed

from federal law. See 

 (adopting retroactivity principles of Teague v. Lane, 

, 

 (1989)). The Supreme Court has explained the first exception

by distinguishing between new substantive rules and new procedural rules. See Schriro

v. Summerlin, 

, 

 (2004). A new rule that

places “certain kinds of primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe” or accords “constitutional protection to [a]

primary activity” is deemed to be a new substantive rule. Teague, 

, 

.     By contrast, a new rule that “‘regulate[s] only the manner of

determining the defendant’s culpability’” is deemed to be a new procedural rule.


                                             5
Chambers v. State, 

 (Minn. 2013) (quoting Schriro, 

,

). The Supreme Court has elaborated as follows:

              New substantive rules generally apply retroactively. This
              includes decisions that narrow the scope of a criminal statute
              by interpreting its terms, as well as constitutional
              determinations that place particular conduct or persons
              covered by the statute beyond the State’s power to punish.
              Such rules apply retroactively because they necessarily carry
              a significant risk that a defendant stands convicted of an act
              that the law does not make criminal or faces a punishment
              that the law cannot impose upon him.

Schriro, 

, 

 (quotation omitted). The Minnesota

Supreme Court has not deemed a new rule to be a substantive rule since it began applying

the Teague retroactivity principles in 2004.1

       In O’Connell, we considered whether the new rule in McNeely satisfies the first

exception to the general rule of non-retroactivity. We wrote that it “is clearly procedural

as it modified the process law enforcement must follow before administering a blood,

breath, or urine test.” O’Connell, 

. Notwithstanding our reasoning in

O’Connell, Cibulka contends that the new rule in McNeely is substantive for purposes of

this case. He seeks to distinguish O’Connell on the ground that, in a case involving a

conviction of refusal to submit to chemical testing, the new rule of McNeely “is not being

       1
        See Roman Nose v. State, 

 (Minn. 2014) (reaffirming prior
holding that new rule in Miller v. Alabama, 

 (2012), is procedural);
Chambers, 

 (holding that new rule in Miller is procedural); Campos v.
State, 

 (Minn. 2012) (holding that new rule in Padilla v. Kentucky,

 (2010), is procedural); Danforth v. State, 

(Minn. 2006) (holding that new rule in Crawford v. Washington, 

, 

 (2004), is procedural), rev’d on other grounds, 

, 

(2008); State v. Houston, 

 (Minn. 2005) (holding that new rule in
Blakely v. Washington, 

, 

 (2004), is procedural).

                                                6
used to determine whether the police were reasonable in demanding a blood test from

Appellant, but rather whether he can be constitutionally convicted for his refusal of that

test.” In essence, Cibulka contends that the new rule in McNeely has a substantive

character in this case, even though it had a procedural character in O’Connell.

       We reject Cibulka’s request to distinguish O’Connell for three reasons. First, the

procedural character of the new rule in McNeely is constant, regardless how it is sought to

be used in subsequent cases. The rule that Cibulka seeks to establish in asserting a

constitutional challenge to the test-refusal statute might be a substantive rule, if it

ultimately is adopted. But that substantive rule would necessarily depend on procedural

principles, such as the new rule in McNeely.

       Second, the new rule in McNeely is not substantive because a new rule is

substantive only if it carries a “significant risk that a defendant stands convicted of an act

that the law does not make criminal or faces a punishment that the law cannot impose

upon him.” See Schriro, 

, 

 (emphasis added)

(quotation omitted). The new rule in McNeely does not satisfy this criterion because it

does not categorically prohibit all warrantless blood tests. After McNeely, a warrantless

blood test may be constitutionally valid, if justified by the totality of the circumstances of

a particular case. See McNeely, 

. Because the new rule in McNeely

necessarily requires case-by-case application, Cibulka cannot establish that it “place[s] an

entire category of primary conduct beyond the reach of the criminal law” or that it

“prohibit[s] imposition of a certain type of punishment for a class of defendants because

of their status or offense.” See Danforth, 

 (quotation omitted).


                                               7
       Third, we are reluctant to adopt an approach that allows a new rule to be deemed

substantive in one type of case but procedural in another type of case, thereby allowing

the new rule to be applied retroactively in some cases but not applied retroactively in

other cases.   We are unaware of any caselaw that applies a particular new rule

retroactively in one type of case but not in another. We believe that it is more appropriate

to determine a new rule’s retroactive application based on what the opinion announcing

the new rule states, not based on how the new rule is sought to be used by parties in

subsequent cases.

       In sum, the new rule announced in McNeely does not apply retroactively to

Cibulka’s conviction of first-degree test refusal. Thus, the postconviction court did not

err by denying Cibulka’s postconviction petition.

       Affirmed.




                                             8