This opinion will be unpublished and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
                                     A15-1968

                                   State of Minnesota,
                                       Respondent,

                                            vs.

                            Wallace Alery Christopher Obey,
                                      Appellant.

                                Filed November 14, 2016
                                        Affirmed
                                    Bjorkman, Judge


                               Polk County District Court
                                File No. 60-CR-15-892

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

Rachel C. Prudhomme, Assistant City Attorney, Galstad, Jensen & McCann, PA, East
Grand Forks, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and

Reilly, Judge.

                        UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant challenges his conviction for refusing a breath test, arguing that

Minnesota’s criminal test-refusal statute is unconstitutional. We affirm.
                                           FACTS

       On May 31, 2015, East Grand Forks police officer Eric Burman responded to a call

concerning “a possible drug transaction” taking place in a car in East Grand Forks. Officer

Burman located a parked vehicle with appellant Wallace Alery Christopher Obey in the

driver’s seat. Officer Burman observed that Obey’s eyes were bloodshot and watery, and

that he smelled of alcohol. Obey admitted he had been drinking earlier in the day, and he

failed the horizontal gaze nystagmus test. Officer Burman arrested Obey for driving while

impaired (DWI), transported him to the East Grand Forks Police Department, and read him

Minnesota’s Implied Consent Advisory. Obey declined the offer to consult an attorney

and refused to submit to a breath test.

       Respondent State of Minnesota charged Obey with refusal to take a chemical test in

violation of Minn. Stat. § 169A.20, subd. 2 (2014) and third-degree DWI.1 The jury found

Obey guilty of test refusal but acquitted him on the DWI charge. Obey appeals, arguing

for the first time that the test-refusal statute is unconstitutional. While the appeal was

pending, the United States Supreme Court decided Birchfield v. North Dakota, 

 (2016), holding that a warrantless breath test is a valid search incident to a DWI arrest.

                                      DECISION

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

v. Ness, 

 (Minn. 2013). As a general rule, we do not consider



1
 Obey was also charged with driving after revocation of his driver’s license and giving a
peace officer a false name. The state dismissed the driving-after-revocation charge and
Obey was found guilty of giving a peace officer a false name.

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constitutional issues raised for the first time on appeal. Roby v. State, 

 (Minn. 1996). But we may address such issues in the interests of justice when

consideration would not work an unfair surprise on the other party. State v. Williams, 

 (Minn. 2011); see also Minn. R. Civ. App. P. 103.04 (stating that we may

review “any other matter as the interests of justice may require”).

       Obey concedes that he did not challenge the constitutionality of the test-refusal

statute in the district court, but urges us to review the issue in the interests of justice. He

contends that the state is not disadvantaged because it has recently briefed this argument

in other cases. We are not persuaded that the interests of justice favor review because

Obey’s arguments clearly fail on the merits.

       Minn. Stat. § 169A.20, subd. 2 provides that “[i]t is a crime for any person to refuse

to submit to a chemical test of the person’s blood, breath, or urine[.]” Obey first argues

that the statute’s allowance of a warrantless breath test violates federal and state due-

process guarantees. But our supreme court and, most recently, the United States Supreme

Court have held that a warrantless breath test is constitutional under the search-incident-

to-arrest exception to the Fourth Amendment’s warrant requirement. State v. Bernard, 

 (Minn. 2015), aff’d sub nom. Birchfield v. North Dakota, 

(2016). A test of Obey’s breath, therefore, did not require a warrant, and he had no

constitutional right to refuse the test. See Bernard, 

.

       Obey’s next argument, that the statute violates the doctrine of unconstitutional

conditions, fares no better. In Stevens v. Comm’r of Pub. Safety, we held that “Minnesota’s

implied-consent statute does not violate the unconstitutional-conditions doctrine by


                                               3
authorizing the commissioner of public safety to revoke the driver’s license of a person

who has been arrested for DWI and has refused to submit to chemical testing.” 

 (Minn. App. 2014). And in State v. Bennett, we rejected the precise argument

Obey advances, holding that under Bernard, the warrantless breath test the defendant

refused would have been a lawful search incident to arrest and therefore would not have

been an unconstitutional search. 

 (Minn. App. 2015), review denied

(Minn. Oct. 28, 2015).

       In sum, Obey forfeited his constitutional challenge to the test-refusal statute by

failing to raise it in the district court. And because the merits of his arguments clearly fail

under federal and Minnesota jurisprudence, the interests of justice do not favor review by

this court.

       Affirmed.




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