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Case No. A17-1705
STATE OF MINNESOTA
IN SUPREME COURT
Jason Maurice Fagin,
Petitioner, Respondent,
v.
State of Minnesota,
Appellant.
APPELLANT’S BRIEF
KEITH M. ELLISON State Attorney General
1800 Bremer Tower
445 Minnesota Street
St. Paul MN 55101
(651) 297-1050
PETE ORPUT
Washington County Attorney
BY: Nicholas A. Hydukovich
Atty. Reg. No. 0386768
Assistant County Attorney
Washington County Government Center
15015 62nd Street North, P. O. Box 6
Stillwater, MN 55082
(651) 430-6115
OFFICE OF THE MINNESOTA
STATE PUBLIC DEFENDER
AMY LAWLER
Atty. Reg. No. 0388362
540 Fairview Ave. N., Ste. 300
St. Paul, MN 55104
(651) 201-6700
Attorneys for Appellant Attorney for Respondent
March 15, 2019
OF
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................... iii
PROCEDURAL HISTORY ........................................................................................... 1
LEGAL ISSUE ............................................................................................................... 3
STATEMENT OF THE CASE ...................................................................................... 5
STATEMENT OF FACTS ............................................................................................ 6
A. Fagin’s arrest and refusal to submit to testing. ............................................. 6
B. Court proceedings ......................................................................................... 8
ARGUMENT .................................................................................................................. 9
I. A postconviction petitioner bears the burden of proving by a
preponderance of the evidence that he or she is entitled to
the relief sought ................................................................................................... 9
A. Standard of Review ................................................................................... 9
B. The Birchfield rule allows for the criminal prosecution of
refusal to submit to blood or urine testing if law enforcement
had a search warrant or if an exception to the warrant
requirement would have authorized blood or urine testing .................... 10
C. The postconviction-relief statute unambiguously places the
burden of proof upon the petitioner ........................................................ 12
D. This Court’s prior decisions demonstrate that the postconviction-
relief statute places the burden on the petitioner ................................... 13
1. Postconviction petitioners claiming illegal searches
and other unlawful behavior by law enforcement have
the burden of proving the illegality of the police conduct ............... 14
ii
2. This Court has made clear when interpreting a rule of
criminal procedure that postconviction petitioners must
prove they are entitled to the relief sought ...................................... 15
E. This Court has not held that the burden of proof in collateral
attacks on convictions based on the Birchfield rule should
be treated differently from any other collateral attacks .......................... 17
1. This Court has not addressed the question of which
party bears the burden of proof in a collateral attack based
on the Birchfield rule ....................................................................... 18
2. The court of appeals erroneously relied on Trahan ......................... 21
F. The strong finality interest in criminal convictions further
supports placing the burden of proof on a postconviction
petitioner ................................................................................................. 22
II. Because Fagin has not alleged sufficient facts to demonstrate that police
could not compel him to submit to a blood or urine test, the
postconviction court properly denied the petition without a hearing ................ 24
CONCLUSION ........................................................................................................... 27
iii
TABLE OF AUTHORITIES
Federal Cases
Birchfield v. North Dakota,
136 S.Ct. 2160 (2016) ............................................................................................. passim
Danforth v. Minnesota,
552 U.S. 264 (2008) ....................................................................................................... 20
Mackey v. United States,
401 U.S. 667 (1971) ....................................................................................................... 23
Missouri v. McNeely,
569 U.S. 141 (2013) ....................................................................................... 8, 11, 18, 20
Welsh v. Wisconsin,
466 U.S. 740 (1984) ....................................................................................................... 20
State Cases
Black v. State,
184 N.W.2d 419 (Minn. 1971) ....................................................................................... 14
Cable v. State,
169 N.W.2d 391 (Minn. 1969) ....................................................................................... 14
Danforth v. State,
761 N.W.2d 493 (Minn. 2009) ................................................................................. 22, 23
Hummel v. State,
617 N.W.2d 561 (Minn. 2000) ................................................................................... 9, 13
Johnson v. State,
916 N.W.2d 674 (Minn. 2018) ................................................................................ passim
King v. State,
562 N.W.2d 791 (Minn. 1997) ....................................................................................... 13
McKenzie v. State,
687 N.W.2d 902 (Minn. 2004) ....................................................................................... 13
Nissalke v. State,
861 N.W.2d 88 (Minn. 2015) ......................................................................................... 24
O’Meara v. State,
679 N.W.2d 334 (Minn. 2004) ....................................................................................... 20
Riley v. State,
819 N.W.2d 162 (Minn. 2012) ....................................................................................... 10
Sanchez v. State,
816 N.W.2d 550 (Minn. 2012) ....................................................................................... 10
Santiago v. State,
644 N.W.2d 425 (Minn. 2002) ....................................................................................... 20
iv
State ex rel. Turner v. Tahash,
156 N.W.2d 904 (Minn. 1968) ....................................................................................... 14
State v. Bernard,
859 N.W.2d 762 (Minn. 2015 ........................................................................................ 19
State v. Goff,
418 N.W.2d 169 (Minn. 1988) ................................................................................. 15, 16
State v. Maurstad,
733 N.W.2d 141 (Minn. 2007) ....................................................................................... 20
State v. Rainer,
502 N.W.2d 784 (Minn. 1993) ....................................................................................... 13
State v. Stavish,
868 N.W.2d 670 (Minn. 2015) ....................................................................................... 11
State v. Thompson,
886 N.W.2d 224 (Minn. 2016) ................................................................................. 10, 25
State v. Trahan, No. A13-0931,
2014 WL 4798876 (Minn. App. Sept. 29, 2014) ........................................................... 19
State v. Trahan,
870 N.W.2d 396 (Minn. App. 2015) .............................................................................. 19
State v. Trahan,
886 N.W.2d 216 (Minn. 2016) ................................................................................ passim
State v. Watkins,
840 N.W.2d 21 (Minn. 2013) ......................................................................................... 21
Tscheu v. State,
829 N.W.2d 400 (Minn. 2013) ....................................................................................... 13
White v. State,
711 N.W.2d 106 (Minn. 2006) ....................................................................................... 13
Williams v. State,
910 N.W.2d 736 (Minn. 2018) ..................................................................... 13, 15, 16, 17
State Statutes
Minn. Stat. § 152.025, subd. 2(b)(1) (2010) ........................................................................ 1
Minn. Stat. § 169A.20, subd. 2 (2010) ................................................................................ 1
Minn. Stat. § 590.01, subd. 4 (2018) ............................................................................. 9, 12
Minn. Stat. § 590.04, subd. 3 (2016) ................................................................................. 13
Minn. Stat. § 590.04, subd. 3 (2018) ................................................................. 9, 12, 13, 14
State Rules
Minn. R. Crim. P. 27.03, subd. 9 ................................................................................. 15, 16
v
Other Authorities
6 Search and Seizure: A Treatise On The Fourth Amendment, § 11.2(c) (5th ed., Oct.
2018 Update) .................................................................................................................. 20
1
PROCEDURAL HISTORY
March 22, 2012: Date of offense.
March 23, 2012: The State of Minnesota charged Respondent Jason Maurice Fagin
with one count of first-degree refusal to submit to chemical testing,
in violation of Minn. Stat. § 169A.20, subd. 2 (2010); and one count
of fifth-degree possession of a controlled substance in violation of
Minn. Stat. § 152.025, subd. 2(b)(1) (2010).
July 30, 2012: Pursuant to a plea agreement, Fagin pleaded guilty to first-degree
refusal to submit to chemical testing (“test refusal”). The State
dismissed the charge of fifth-degree possession of a controlled
substance. The district court sentenced Fagin to 65 months in prison
and five years of conditional release.
July 29, 2014: Fagin filed his first petition for postconviction relief.
September 19, 2014: The district court denied Fagin’s first petition for postconviction
relief.
November 18, 2014: Fagin filed a notice of appeal of the denial of postconviction relief.
April 30, 2015: Fagin voluntarily dismissed his appeal.
May 23, 2017: Fagin filed his second petition for postconviction relief.
August 30, 2017: The district court denied Fagin’s second petition for postconviction
relief.
2
October 30, 2017: Fagin filed a notice of appeal.
April 30, 2018: The court of appeals, Judge Worke, presiding, Judge Johnson, and
Judge Reyes, stayed further processing of the appeal pending this
Court’s decision in Johnson v. State, A17-0842.
September 10, 2018: The court of appeals issued an order dissolving the stay of this
appeal and setting a supplemental briefing schedule.
November 19, 2018: The court of appeals, in an opinion authored by Judge Johnson and
joined by Judges Worke and Reyes, reversed the denial of
postconviction relief and remanded to the district court for an
evidentiary hearing. The opinion of the court of appeals placed the
burden on the State to show the existence of exigent circumstances
at the time police asked Fagin to submit to chemical testing.
December 18, 2018: The State filed a petition for review with this Court.
January 7, 2019: Fagin filed a response to the State’s petition for review.
January 29, 2019: This Court granted the State’s petition for review.
February 5, 2019: This Court granted the State’s motion for an extension of time to file
its brief and ordered that the State’s brief be filed by March 15,
2019.
3
LEGAL ISSUE
Minnesota’s statute governing petitions for postconviction relief requires a
postconviction petitioner to prove, by a preponderance of the evidence, that the petitioner
is entitled to the relief sought, unless the court orders otherwise. Does a postconviction
petitioner who collaterally attacks a conviction on the ground that the conviction violated
the rule announced in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), and subsequent
decisions bear the same statutory burden applied to other postconviction petitioners?
Ruling Below
The postconviction court denied the petition, in part because the petitioner failed
to meet his burden of showing that the Birchfield rule prohibited police from requiring
him to submit to a blood or urine test. (Doc. 48 at 7-8).1 The court of appeals reversed
and remanded for an evidentiary hearing. (A17-1705, 2018 WL 6034962 (Minn. App.
Nov. 19, 2018) (Add. 12-13)). The opinion of the court of appeals placed the burden on
the State to show that exigent circumstances existed at the time Fagin was asked to
submit to chemical testing. (Add. 13-14).
Apposite statutes
Minn. Stat. § 590.01, subd. 4(b)(3) (2018)
Minn. Stat. § 590.04, subd. 3 (2018)
1 The order denying postconviction relief is reproduced in Appellant’s Addendum
(“Add.”) at 1-8.
4
Apposite cases
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016)
Johnson v. State, 916 N.W.2d 674 (Minn. 2018)
State v. Trahan, 886 N.W.2d 216 (Minn. 2016)
Williams v. State, 910 N.W.2d 736 (Minn. 2018)
5
STATEMENT OF THE CASE
Respondent Jason Maurice Fagin drove a vehicle while under the apparent
influence of narcotics. Deputies eventually arrested Fagin. In accordance with the law as
it then existed, deputies read Fagin the implied consent advisory, and Fagin refused to
submit to a blood or urine test.
Fagin pleaded guilty to first-degree test refusal, and the district court imposed a
65-month prison sentence and five years of conditional release. More than five years after
he pleaded guilty, Fagin filed a petition for postconviction relief in which he argued that
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), applied retroactively to his case.
The district court denied the petition without a hearing, reasoning in part that
Fagin had failed to meet his burden of demonstrating that there was not a valid basis for
police to require him to submit to blood or urine testing. The court of appeals reversed
and remanded for an evidentiary hearing. The court of appeals held that the State had the
burden of proof at the evidentiary hearing. This Court granted review on the question of
which party bears the burden of proof in an evidentiary hearing when a defendant seeks
retroactive application of the rule announced in Birchfield.
6
STATEMENT OF FACTS
A. Fagin’s arrest and refusal to submit to testing
On March 22, 2012, Deputies Linehan and Kaeding of the Washington County
Sheriff’s Office responded to a report of a vehicle stopped in the middle of the road in
Denmark Township. (Doc. 52 at 2; Doc. 46 Ex. 1, 2). Several other deputies were dealing
with a terroristic threats report when Deputy Linehan was first dispatched to this incident.
(Doc. 46 Ex. 2 at 1). At the time Linehan and Kaeding responded to this incident, at least
one deputy was “tied up taking taped statements from the victims” of the terroristic
threats report. (Id.).
When the deputies arrived, they observed a vehicle stopped diagonally across both
lanes of traffic with both the driver and the passenger passed out in the front seat. (Doc.
52 at 2; Doc. 46 Ex. 1 at 1). Respondent Jason Maurice Fagin was in the driver’s seat
with one leg crossed over the other and his sock half way off his foot, leading the
deputies to believe that Fagin may have recently injected a narcotic into his foot and
passed out. (Id.).
Linehan attempted to wake both occupants, and when Fagin awoke, Linehan
displayed his badge. (Id.). The vehicle was still in drive, and Fagin took his foot off the
brake. (Doc. 46 Ex. 1 at 1). The car began to roll forward, and Linehan told Fagin to stop
the car and put it in park. (Id.). Fagin instead accelerated away from the deputies at a high
rate of speed. (Id.). The deputies got in their squad car and chased the vehicle, which
stopped about 30 seconds later. (Id.).
7
During their interaction with Fagin, the deputies observed that he was extremely
impaired. (Doc. 52 at 2). Linehan conducted a search of Fagin incident to arrest and
found a small plastic baggie in his left front pocket containing a substance that appeared
to be methamphetamine. (Id.; Doc. 46 Ex. 1 at 1). Later, during an inventory search of the
vehicle, the deputies found needles, syringes, spoons, and marijuana paraphernalia. (Doc.
46 Ex. 1 at 2, Ex. 2 at 1). Based on this information, Linehan believed Fagin was
operating the vehicle while under the influence of a narcotic. (Doc. 46 Ex. 1 at 1).
Linehan arrested Fagin and drove him to the Washington County Jail. (Doc. 42
Appendix 1). Linehan read Fagin the implied consent advisory. (Id. at Appendix 1 and 2).
Fagin said he understood the advisory and did not wish to speak with an attorney. (Id.).
Linehan first asked Fagin to take a urine test. (Id.). Fagin said he would not. (Id.).
Linehan then asked Fagin if he would take a blood test. (Id.). Fagin again said no. (Id.).
Linehan asked Fagin his reason for refusing the tests, and Fagin responded, “I don’t want
to.” (Id.).
“[S]everal minutes” later, Fagin said he was willing to take a urine test but that he
did not need to urinate at that time. (Id.). Linehan told Fagin he could try to submit a
sample and that a large amount of urine not necessary. (Id.). Linehan brought Fagin to a
bathroom, and Fagin then said he would not submit to a urine test. (Id.). After Fagin
again refused, Linehan informed Fagin that they could go to a hospital to have a blood
test taken. (Id.). Fagin then “said that he was going to refuse and not give a test.” (Id.).
Fagin again said he was refusing to test because he “didn’t want to.” (Id.).
8
B. Court proceedings
On March 23, 2012, the State charged Fagin by complaint with one count of
felony test refusal and one count of felony fifth-degree possession of a controlled
substance. (Doc. 52 at 1). On June 28, 2012, Fagin waived his right to an omnibus
hearing. (Doc. 11 at 2; Doc. 48 at 2. See also District Court Register of Actions, June 28,
2012, entry). On July 30, 2012, pursuant to an agreement with the State, Fagin pleaded
guilty to the felony test-refusal charge, and the fifth-degree possession charge was
dismissed. (Doc. 48 at 2). On the same day, the district court sentenced Fagin to 65
months in prison and five years of conditional release. (Id.).
Fagin did not file a direct appeal. But on July 29, 2014, Fagin filed a petition for
postconviction relief. (Doc. 2). Fagin argued that the Supreme Court’s decision in
Missouri v. McNeely, 569 U.S. 141 (2013), made Minnesota’s test-refusal statute
constitutionally invalid. (Doc. 2, 3).
The postconviction court denied the petition. (Doc. 11). Fagin filed an appeal of
the denial of his petition for postconviction relief but later voluntarily dismissed the
appeal. (See A14-1987).
On May 23, 2017, Fagin filed his second petition for postconviction relief and
supporting documents. (Doc. 43). The district court denied the petition. (Add. 1-8). The
district court reasoned, in part, that Fagin had failed to allege sufficient evidence that
police could not have required him to submit to testing based on exigent circumstances.
(Add. 7-8).
9
On appeal, the court of appeals held that the postconviction court erred by
concluding that Fagin had the burden of showing that police could not have lawfully
compelled him to submit to blood or urine testing. (A17-1705, 2018 WL 6034962 (Minn.
App. Nov. 19, 2018) (Add. 13-14)). The court of appeals remanded the case to the district
court for further proceedings in which the State would have the burden of proving that
law enforcement could have compelled Fagin to submit to a blood or urine test. (Add.
14). This Court granted review.
ARGUMENT
I. A postconviction petitioner bears the burden of proving by a preponderance of
the evidence that he or she is entitled to the relief sought.
A petition for postconviction relief is “a collateral attack on a conviction that
carries a presumption of regularity.” Hummel v. State, 617 N.W.2d 561, 563 (Minn.
2000). The statute governing petitions for postconviction relief – in general and in this
case specifically – places the burden of proof on the petitioner, unless the court orders
otherwise. See Minn. Stat. §§ 590.01, subd. 4(b)(3); 590.04, subd. 3 (2018). There is no
reason to depart from the statute and this Court’s prior decisions in cases like this one, in
which the petitioner argues that the State should be required to prove facts occurring
years ago that the petitioner never challenged.
A. Standard of review
Appellate courts “review a denial of a petition for postconviction relief . . . for an
abuse of discretion. A postconviction court abuses its discretion when its decision is
10
based on an erroneous view of the law or is against logic and the facts in the record.”
Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (citations and quotations omitted). A
postconviction court’s factual determinations are reviewed for clear error, and a
postconviction court’s legal conclusions are reviewed de novo. Id. Questions of statutory
interpretation are also reviewed de novo. Sanchez v. State, 816 N.W.2d 550, 556 (Minn.
2012).
B. The Birchfield rule allows for the criminal prosecution of refusal to submit to
blood or urine testing if law enforcement had a search warrant or if an
exception to the warrant requirement would have authorized blood or urine
testing.
This case involves the new rule of criminal procedure announced in Birchfield v.
North Dakota, 136 S.Ct. 2160 (2016), and later decisions of this Court. Birchfield and
those subsequent decisions held that a defendant may be prosecuted for test refusal only
if police have a search warrant or “a valid exception to the warrant requirement applies.”
Johnson v. State, 916 N.W.2d 674, 679 (Minn. 2018), petition for cert. filed (U.S. Feb.
19, 2019) (No. 18-1084) (explaining the combined holdings of Birchfield; State v.
Thompson, 886 N.W.2d 224 (Minn. 2016); and State v. Trahan, 886 N.W.2d 216 (Minn.
2016)).2
In Johnson, this Court held that “the Birchfield rule is substantive and applies
retroactively” to convictions on collateral review. 916 N.W.2d at 684. Johnson
2 The combined rule of Birchfield, Thompson, and Trahan is referred to in this brief as
the “Birchfield rule.”
11
recognized that “there will need to be case-by-case determinations to assess whether there
was a warrant or an exception to the warrant requirement sufficient to sustain test-refusal
convictions under the Birchfield rule.” Id.
In many test-refusal cases, including this one, the State may point to the existence
of exigent circumstances as an exception to the warrant requirement to show that police
could have lawfully administered a blood or urine test. If exigent circumstances or
another exception to the warrant requirement existed at the time police asked a driver to
submit to a blood or urine test, a driver who refuses testing may lawfully be convicted of
test refusal. See Birchfield, 136 S.Ct. at 2186.
Exigent circumstances exist when it is “objectively reasonable for [a police]
officer to conclude that he or she was faced with an emergency, in which the delay
necessary to obtain a warrant would significantly undermine the efficacy of the search.”
State v. Stavish, 868 N.W.2d 670, 676-77 (Minn. 2015) (citing Missouri v. McNeely, 133
S.Ct. 1552, 1561 (2013)). An officer conducting a search based on exigent circumstances
must also have probable cause to believe the defendant committed a crime. Id. at 677 n.
1.
Johnson did not decide which party would bear the burden of proof on whether
there was a warrant or an exception to the warrant requirement that would sustain a test-
refusal conviction under Birchfield. See 916 N.W.2d at 684. That is the question now
before the Court. This Court should hold, consistent with the plain language of the
postconviction-relief statute, that a postconviction petitioner requesting relief under the
12
Birchfield rule must prove by a preponderance of the evidence that he or she is entitled to
the relief he or she seeks.
C. The postconviction-relief statute unambiguously places the burden of proof
upon the petitioner.
The postconviction-relief statute makes clear that the burden of proving the facts
alleged in the petition falls on the petitioner. “Unless otherwise ordered by the court, the
burden of proof of the facts alleged in the petition shall be upon the petitioner to establish
the facts by a fair preponderance of the evidence.” Minn. Stat. § 590.04, subd. 3 (2018).3
As Fagin conceded in his petition for postconviction relief, he filed his petition
more than two years after his conviction became final. See Doc. 2 at 9. A petition for
postconviction relief filed more than two years after a conviction becomes final is barred
unless it satisfies one of five statutory exceptions. See Minn. Stat. § 590.01, subd. 4
(2018).
Fagin argued that his claims should be considered under an exception to the two-
year time limit. See Doc. 2 at 9 (citing Minn. Stat. § 590.01, subd. 4(b)(3)). The exception
Fagin invokes applies only if “the petitioner establishes that this interpretation is
retroactively applicable to the petitioner’s case.” Minn. Stat. § 590.01, subd. 4(b)(3)
(2018) (emphasis added).
3 Throughout these proceedings, neither party has argued that the burden of proof should
be anything other than a preponderance of the evidence. The dispute in this case has only
been which party bears that burden of proof. As a result, this brief does not address any
other burdens of proof.
13
The plain language of the postconviction-relief statute squarely places the burden
on a petitioner to demonstrate that the petitioner is entitled to the relief sought, unless the
court orders otherwise. Fagin has never contended that the statute is ambiguous; nor
could he reasonably do so. This Court should apply the plain language of the
postconviction-relief statute and hold that a petitioner alleging that his conviction violates
Birchfield must prove, by a preponderance of the evidence, that he or she is entitled to
relief.
D. This Court’s prior decisions demonstrate that the postconviction-relief statute
places the burden on the petitioner.
This Court’s decisions on appeals from denials of postconviction relief support the
proposition that the burden of proof is on a postconviction petitioner to show that he or
she is entitled to the relief sought, rather than being on the State to prove that the
petitioner is not entitled to relief. “In terms of postconviction matters, the postconviction
statute makes clear that the defendant, the party bringing the petition, generally bears the
burden of proof.” Williams v. State, 910 N.W.2d 736, 742 (Minn. 2018) (citing Minn.
Stat. § 590.04, subd. 3 (2016); Tscheu v. State, 829 N.W.2d 400, 403 (Minn. 2013);
Hummel, 617 N.W.2d at 564).
This Court has also observed on numerous occasions that a “petitioner seeking
postconviction relief has the burden of establishing, by a fair preponderance of the
evidence, facts which warrant a reopening of the case.” State v. Rainer, 502 N.W.2d 784,
787 (Minn. 1993) (citing Minn. Stat. § 590.04, subd. 3)). See also, e.g., White v. State,
14
711 N.W.2d 106, 109 (Minn. 2006) (same); McKenzie v. State, 687 N.W.2d 902, 906
(Minn. 2004) (same); King v. State, 562 N.W.2d 791, 794 (Minn. 1997) (same).
1. Postconviction petitioners claiming illegal searches and other unlawful
behavior by law enforcement have the burden of proving the illegality of
the police conduct.
In Black v. State, 184 N.W.2d 419 (Minn. 1971), this Court made clear that in the
context of claimed constitutional violations, a postconviction petitioner bears the burden
of proof. After the district court denied his petition for postconviction relief, Black
appealed and argued, in part, that police unlawfully arrested him, that his confession was
involuntary, and that evidence was unlawfully seized. Id. at 421.
This Court rejected Black’s arguments and noted specifically that Black had the
burden of showing that law enforcement violated his constitutional rights:
If petitioner had established that he was illegally arrested, that inculpatory
evidence was illegally seized, and that the threatened use of such evidence
or of his involuntary confession induced his plea, he would be entitled to
relief. However, the burden of establishing at least a prima facie case in a
postconviction collateral attack is on petitioner.
Id. at 421-22 (citing Minn. Stat. § 590.04, subd. 3; Cable v. State, 169 N.W.2d 391
(Minn. 1969); State ex rel. Turner v. Tahash, 156 N.W.2d 904 (Minn. 1968)).
The court found no evidence that Black’s confession or the evidence seized when
Black was arrested induced Black’s guilty plea. Id. at 422. The court also concluded that
the record supported the postconviction court’s finding that Black “did not sustain the
burden of proving absence of probable cause for his arrest or illegal seizure of evidence.”
Id.
15
Though there was no search in this case because of Fagin’s refusal, the principles
in Black still apply. Black had the burden of proving that police acted illegally when they
searched him. Fagin should be required to prove that the police could not have lawfully
searched him in order to prevail in his collateral attack.
2. This Court has made clear when interpreting a rule of criminal procedure
that postconviction petitioners must prove they are entitled to the relief
sought.
Though this Court interpreted a different rule in Williams than the statute at issue
here, Williams is also instructive. The sole issue in Williams was “which party has the
burden to prove the accuracy of the defendant’s criminal-history score” when, after the
time for direct appeal has passed, the defendant “brings a motion to correct his or her
sentence under Minn. R. Crim. P. 27.03, subd. 9.” 910 N.W.2d at 737. Unlike the
postconviction statute, the text of Rule 27.03, subd. 9, does not explicitly answer the
question of which party has the burden under that rule. Id. at 740-41.
In Williams, this Court noted with favor its discussion of burdens of proof in State
v. Goff, 418 N.W.2d 169 (Minn. 1988). Id. at 741-42. Goff clarified the burdens that
applied when a defendant claimed a previous conviction could not be validly used as part
of his criminal history because the conviction was obtained in violation of the right to
counsel. 418 N.W.2d at 172. The Goff court held that the defendant must notify the state
of which convictions the defendant claimed were uncounseled, and the State would then
have the burden of proving that the right to counsel was not violated for those
convictions. Id.
16
But the Goff court also noted that, had Goff filed his motion outside the period for
filing a direct appeal, “he may have had the ultimate burden” of proving that the prior
conviction occurred in violation of his right to counsel. Williams, 910 N.W.2d at 741
(citing Goff, 418 N.W.2d at 172). The Goff court thus “recognized that the burden of
proof may vary depending on whether the challenge is made on direct appeal or in the
context of a postconviction proceeding.” Id.
The Williams court applied Goff’s reasoning to the case before it. See id. at 741-
42. The Williams court concluded that, because the burden of proof is on a postconviction
petitioner, “it makes sense to place the burden on the defendant in the context of a post-
appeal, Rule 27.03, subdivision 9 motion as well.” Id. at 742. Williams “articulated no
persuasive reason why a different burden of proof” from the burden for postconviction
relief should apply, and this Court could “ascertain no reason” to apply a different
burden. Id.
Williams recognized the “well-settled” law that the State has the burden to prove
“the facts necessary to justify consideration of out-of-state convictions in determining a
defendant’s criminal history score” if those convictions are challenged at the time of
sentencing. Id. at 743. This Court noted that placing the burden on defendants post-appeal
“incents defendants to make timely objections at sentencing,” which allows the district
court to have a complete record in front of it before sentencing. Id.
This case, unlike Williams, involves a clear statutory allocation of the burden of
proof. But the policy considerations this Court adopted in Williams are analogous to the
17
situation here. Though Johnson allows for retroactive application of the Birchfield rule,
defendants should still generally be incented to make constitutional objections before
their case is final. When such objections are made, the parties can fully develop the
record relatively soon after the alleged crime, not years – or even decades – later. Both
the reasoning and policy considerations in Williams further support the State’s position in
this case.
The text of sections 590.01, subd. 4(b)(3) and 590.04, subd. 3, unambiguously
place the burden on a postconviction petitioner to allege and prove facts sufficient to
support the requested relief. This Court should, consistent with the unambiguous
statutory language and its numerous decisions applying that language, hold that a
petitioner who claims to be entitled to relief under the Birchfield rule must allege and
prove sufficient facts to show that there was neither a search warrant for a blood or urine
sample nor an exception to the warrant requirement that would have justified the taking
of such a sample.
E. This Court has not held that the burden of proof in collateral attacks on
convictions based on the Birchfield rule should be treated differently from
any other collateral attacks.
The court of appeals erroneously held that this Court has already decided the
question of which party should have the burden of proof in a collateral attack under the
Birchfield rule. See Add. 13-14. But this Court has not addressed that question in its
previous decisions.
18
1. This Court has not addressed the question of which party bears the
burden of proof in a collateral attack based on the Birchfield rule.
In Johnson, this Court found that the Birchfield rule applies retroactively. 916
N.W.2d at 684. Johnson also recognized that each claim brought under Birchfield would
be evaluated on a case-by-case basis. Id. But Johnson did not purport to assign the burden
of proving the legality or illegality of a chemical test to either party.4 See id.
In this case, the court of appeals erroneously relied on Trahan in holding that the
State had the burden of proof at an evidentiary hearing to show that exigent
circumstances existed. See Add. 13-14. But Trahan did not actually hold that the State
had the burden of proof, and the complex procedural posture of Trahan differed from that
of this case.
Trahan pleaded guilty to test refusal and then filed a direct appeal. 886 N.W.2d at
219-20. While Trahan’s appeal was pending, the Supreme Court released its opinion in
Missouri v. McNeely, 569 U.S. 141 (2013). Id.
Trahan moved to stay his appeal to pursue postconviction relief. Id. at 220. In his
4 Johnson did say, in the context of concluding that the Birchfield rule was substantive,
that “because of the Birchfield rule, those drivers who refuse to submit to
warrantless blood or urine tests cannot be prosecuted unless the State proves that an
exception to the warrant requirement applies.” 916 N.W.2d at 682. But this statement did
not purport to change the burden of proof in collateral proceedings. It merely described
the prospective effect of the Birchfield rule.
19
petition for postconviction relief, Trahan argued that the test-refusal statute was
unconstitutional under McNeely and that the factual basis for his guilty plea was
insufficient. Id. The postconviction court denied Trahan’s petition for postconviction
relief, and the court of appeals affirmed. Id. (citing State v. Trahan, No. A13-0931, 2014
WL 4798876 at *1 (Minn. App. Sept. 29, 2014)). This Court granted review and
remanded the matter to the court of appeals for reconsideration in light of this Court’s
decision in State v. Bernard, 859 N.W.2d 762 (Minn. 2015). Id. On remand, the court of
appeals reversed Trahan’s conviction and remanded the matter to the district court to
allow Trahan to withdraw his guilty plea. State v. Trahan, 870 N.W.2d 396, 399 (Minn.
App. 2015).
This Court again granted review. 886 N.W.2d at 220. After oral argument was
held, the Supreme Court decided Birchfield. Id.
This Court found the test-refusal statute unconstitutional as applied to Trahan. 886
N.W.2d at 219. The State argued that exigent circumstances justified a warrantless
search. Id. at 221. The State alternatively requested a remand for an evidentiary hearing
to determine whether exigent circumstances existed. Id. This Court rejected the State’s
exigency argument and alternative request for an evidentiary hearing. Id.
In explaining its conclusion that there was no exigency, the Trahan court recited
the general rules for determining exigent circumstances. See id. The court also noted the
general rule that the State “has the burden to show that exigent circumstances existed.”
20
Id. (citing Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984)).5 The court held that the
circumstances of Trahan did not establish an exigency, concluding that “the State cannot
meet its burden to prove exigent circumstances.”6 Id. at 223.
This Court’s decision in Trahan evaluated the facts in the record at the time of
conviction and before Trahan’s conviction was final. See O’Meara v. State, 679 N.W.2d
334, 335 (Minn. 2004), overruled on other grounds by Danforth v. Minnesota, 552 U.S.
264 (2008) (noting that a conviction is final when “the availability of appeal has been
exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with
the United States Supreme Court has been filed and finally denied.”). Though a petition
for postconviction relief was filed in Trahan, that case was on direct appeal, not collateral
review. “When a defendant has initially filed a direct appeal and then moved for a stay to
pursue postconviction relief, [appellate courts] review the postconviction court’s
decisions using the standard we would apply in a direct appeal.” State v. Maurstad, 733
N.W.2d 141, 146 (Minn. 2007) (citing Santiago v. State, 644 N.W.2d 425, 439 (Minn.
2002)).
5 As a general rule, when a defendant makes a pretrial motion to suppress evidence
obtained from a warrantless search, the State must prove by a preponderance of the
evidence that an exception to the warrant requirement justified the search. See Wayne L.
LaFave, 6 Search and Seizure: A Treatise On The Fourth Amendment, § 11.2(c) (5th ed.,
Oct. 2018 Update).
6 This Court’s opinion in Trahan does not state that an evidentiary hearing had
previously been held on Trahan’s petition for postconviction relief. See id. And the issue
on postconviction relief was not the applicability of Birchfield, which had not yet been
decided. See id. Instead, the issue was the applicability of McNeely. Id. at 220.
21
Trahan did not even cite to the postconviction statute, much less purport to
overrule or carve out an exception to the typical burden placed upon a postconviction
petitioner. This is for good reason – Trahan was a direct appeal, not a collateral attack.
The postconviction petition filed during the direct appeal process did not even litigate the
applicability of Birchfield. 886 N.W.2d at 220. Nor could it have – Birchfield had not yet
been decided. See id.
Trahan does not give rise to any reasonable inference that this Court intended to
sub silentio overrule its prior statements that the burden of proof rests upon the
postconviction petitioner. See State v. Watkins, 840 N.W.2d 21, 29 n. 5 (Minn. 2013)
(this Court’s decision did not sub silentio overrule previous decision where two decisions
interpreted different statutes containing similar language). Instead, Trahan involved a
direct appeal, not a collateral attack in which a defendant would have the burden of proof.
Trahan’s statement that the State did not prove exigent circumstances does not mean that
the State had the same burden in this case.
2. The court of appeals erroneously relied on Trahan.
The court of appeals’ reliance on Trahan was erroneous. The court of appeals held
that this court already provided a “clear answer” to the question of which party would
bear the burden of proof in a postconviction evidentiary hearing. Add. 13. The court of
appeals concluded that Trahan involved “a procedural posture that was the same as the
procedural posture in this case: a constitutional challenge to the test-refusal statute in a
postconviction action.” Id. (citing 886 N.W.2d at 221-23).
22
But a closer look at Trahan shows the error in the reasoning of the court of
appeals. As discussed above, Trahan was a direct appeal that happened to involve a
postconviction petition that dealt with another issue. This case involves a collateral attack
on a conviction and the attendant allocation of the burden of proof to the petitioner. The
court of appeals was therefore wrong to hold that this Court had answered the question
presented here in Trahan, because Trahan’s procedural posture is materially different
from the posture of this case.
Trahan does not alter the general burden of proof for petitions for postconviction
relief. This Court should, consistently with the unambiguous language of the
postconviction statute and its numerous decisions applying that language, hold that a
petitioner who claims to be entitled to relief under the Birchfield rule must allege and
prove sufficient facts to show that there was neither a search warrant for a blood or urine
sample nor an exception to the warrant requirement that would have justified the taking
of such a sample.
F. The strong finality interest in criminal convictions further supports placing
the burden of proof on a postconviction petitioner.
Placing the burden of proof on a postconviction petitioner to demonstrate that a
search was unlawful is also consistent with the policy considerations this Court adopted
in Danforth v. State, 761 N.W.2d 493 (Minn. 2009). In Danforth, this Court adopted the
framework for evaluating whether a new rule of criminal procedure is applied
23
retroactively. See 761 N.W.2d at 500. Johnson applied Danforth and found that the
Birchfield rule should be applied retroactively. 916 N.W.2d at 684. But the policy
adopted in Danforth is still informative to the allocation of burden of proof in a
postconviction proceeding.
The Danforth court emphasized the importance of a “primary policy interest[]” of
“finality, meaning the need to bring criminal cases to a close.” 761 N.W.2d at 497.
Danforth also noted “with favor” the comments of Justice Harlan in a previous Supreme
Court opinion:
While men languish in jail, not uncommonly for over a year, awaiting a
first trial on their guilt or innocence, it is not easy to justify expending
substantial quantities of the time and energies of judges, prosecutors, and
defense lawyers litigating the validity under present law of criminal
convictions that were perfectly free from error when made final. This drain
on society’s resources is compounded by the fact that issuance of the
habeas writ compels a State that wishes to continue enforcing its laws
against the successful petitioner to relitigate facts buried in the remote past
through presentation of witnesses whose memories of the relevant events
often have dimmed. This very act of trying stale facts may well, ironically,
produce a second trial no more reliable as a matter of getting at the truth
than the first.
Id. (quoting Mackey v. United States, 401 U.S. 667, 691 (1971) (separate opinion of
Harlan, J.)).
Cases like this one are likely to present the concerns expressed by Justice Harlan.
Officers are likely to have forgotten about specific impaired-driving arrests from years
ago, especially when they followed the law as it existed at the time and did not have to
testify at an omnibus hearing or trial. Indeed, the arresting officer may have retired, left
24
law enforcement, or even passed away. Police and prosecuting agencies may have
destroyed records and evidence from those arrests not because of bad faith or negligence,
but simply pursuant to standard evidence-retention policies. A petitioner who collaterally
attacks a conviction should not be entitled to relief simply because an officer has since
passed away or evidence has been destroyed pursuant to a standard retention policy.
Instead, the petitioner – the party who seeks to benefit – should bear the burden of
proving that police could not have validly required him or her to submit to a blood or
urine test.
The general imposition of the burden of proof on a postconviction petitioner is
consistent with the policy interest adopted by this Court in Danforth. This policy interest
further supports placing the burden of proof on a postconviction petitioner.
II. Because Fagin has not alleged sufficient facts to demonstrate that police could
not compel him to submit to a blood or urine test, the postconviction court
properly denied the petition without a hearing.
A petition for postconviction relief “must allege more than argumentative
assertions without factual support.” Nissalke v. State, 861 N.W.2d 88, 91 (Minn. 2015)
(internal quotations and citations omitted). Fagin failed, in his petition for postconviction
relief and accompanying memorandum, to do any more than make an argumentative
assertion that no exigent circumstances existed. Because the burden is on a
postconviction petitioner to demonstrate that he or she is entitled to relief, the
postconviction court did not abuse its discretion in denying relief.
In a memorandum in support of his petition for postconviction relief, Fagin
25
asserted in his introduction that “no exigent circumstances existed justifying the officer’s
requests for a blood or urine test without first obtaining a warrant.” Doc. 3 at 1. Later in
the memorandum, Fagin asserted that the arresting officer lacked a search warrant for
blood or urine testing and “needed a demonstrated exigency to obtain Fagin’s blood or
urine without his consent. No such exigency existed. Consequently, the officer was
requiring that Fagin submit to an illegal search.” Id. at 5. Fagin made no attempt to
explain why no exigency existed.7 Fagin did not request an evidentiary hearing on the
petition. Doc. 2 at 3.
In denying Fagin’s motion for postconviction relief, the postconviction court
concluded that it did need to decide whether Birchfield was “on the whole” substantive
because Fagin did not satisfy his burden to show that the Birchfield rule “appl[ied]
retroactively to him.” Doc. 11 at 7. The court reasoned that even after Birchfield, Trahan,
and Thompson, a person can be prosecuted for failure to submit to chemical testing if
exigent circumstances existed. Id.
The postconviction court reviewed the documents submitted by the parties and
concluded, “taking into account the otherwise limited record caused by [Fagin’s] decision
to plead guilty and forego an omnibus hearing,” Fagin “has not carried his burden of
7 Fagin attached three documents pertaining to his arrest and refusal to submit to testing
to his supporting memorandum. See Doc. 3 at 11-16. Fagin used those documents to
establish that he refused to submit to blood and urine tests rather than a breath test
because the complaint and plea colloquy did not establish what type of test Fagin refused.
See id. at 2. Fagin made no attempt to use those documents or any other facts to establish
that no exigency existed.
26
showing that exigent circumstances could not or would not have been found.” Id. at 7-8.
This conclusion was not an abuse of discretion, even in light of this Court’s
subsequent decision in Johnson. Fagin’s petition for postconviction relief and supporting
documentation failed to establish that the test-refusal statute was unconstitutional as
applied to him. Fagin failed to allege sufficient facts to be entitled to relief. Fagin also
failed to satisfy the new-interpretation-of-law exception to the two-year time limit on
postconviction relief that allows relief to a petitioner who establishes that the new
interpretation applies to him.
Johnson did not change the allocation of the burden of proof in postconviction
proceedings. Both at the time he filed the postconviction petition and now, Fagin bore the
burden of proving that a compelled blood or urine test would have been unlawful. Fagin
could have, but chose not to, request an evidentiary hearing to address these issues. This
Court should therefore affirm the denial of postconviction relief. In the alternative, the
Court could remand for an evidentiary hearing, with the burden placed on Fagin to show
by a preponderance of the evidence that there was no constitutional basis to compel him
to submit to a blood or urine test.
27
CONCLUSION
The postconviction statute unambiguously places the burden of proof in a
postconviction proceeding on the petitioner, unless the court orders otherwise. There is
no reason for this Court to order otherwise in this case. This Court’s prior decisions place
the burden of proof on the petitioner. The finality interests in criminal convictions further
support placing the burden of proof on the petitioner.
In this case, Fagin failed to meet his burden to demonstrate that police could not
have lawfully compelled him to submit to blood or urine testing. As a result, he was not
entitled to relief. This Court should reverse the court of appeals and reinstate the denial of
postconviction relief.
Dated: March 15, 2019
Respectfully submitted:
PETE ORPUT, COUNTY ATTORNEY
WASHINGTON COUNTY, MINNESOTA
/s/ Nicholas A. Hydukovich
Nicholas A. Hydukovich, 0386768
Assistant County Attorney
Washington County Attorney’s Office
Washington County Government Center
15015 62nd Street North, P. O. Box 6
Stillwater, MN 55082
(651) 430-6115
