IN COURT OF APPEALS
Barbara Lynn Polsfuss,
Filed August 8, 2006
Anoka County District Court
File No. T9-04-34155
Carver County District Court
File No. CR-04-501
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Barry A. Sullivan, William G. Hawkins & Associates,
Alina Schwartz, Elliott B. Knetsch, Campbell Knutson, P.A., 1380 Corporate Center Curve, Suite 317, Eagan, MN 55121 (for respondent)
Richard P. Ohlenberg, Otten & Associates, 1601 East Highway 13, Suite 108, Burnsville, MN 55337 (for appellant Polsfuss)
Richard L. Swanson,
Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.
S Y L L A B U S
Because the portion of the implied-consent law regarding
prompt judicial review of license revocations that was declared
unconstitutional in Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340
O P I N I O N
these consolidated appeals from convictions of DWI, appellants argue that
chemical tests should have been suppressed because they were taken under an
implied consent law that had been declared unconstitutional in Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (
Appellant Barbara Lynn Polsfuss
On October 9, 2004, a police officer stopped a vehicle driven by appellant Barbara Lynn Polsfuss because she was speeding. Appellant’s eyes were bloodshot, watery, and glassy; she smelled strongly of an alcoholic beverage; and her speech was slow and slurred. Appellant failed several field sobriety tests and a preliminary breath test. Appellant also admitted that she had had a couple of glasses of wine. The results of a blood test revealed that appellant’s alcohol concentration was .13. Appellant was charged with fourth-degree DWI in violation of Minn. Stat. § 169A.27 (2004) and Minn. Stat. § 169A.20, subd. 1(5) (2004).
18, 2005, appellant’s driver’s-license revocation was rescinded based on the
holding in Fedziuk v. Comm’r of Pub. Safety,
696 N.W.2d 340 (
Appellant Allen Ferrozzo
On September 11, 2004, a police officer received a report that an intoxicated male was leaving a restaurant in a black vehicle. The officer checked the vehicle’s registration and drove to the registered owner’s residence. The officer approached the vehicle after it entered the garage. While speaking with the driver, appellant Allen Ferrozzo, the officer detected the strong odor of an alcoholic beverage on appellant’s breath and observed that his eyes were watery and glassy, and that his face was flushed. Appellant also admitted to consuming beer. Appellant failed field sobriety tests and a preliminary breath test. The officer read appellant the Minnesota Implied Consent Advisory and appellant took a breath test, which indicated an alcohol concentration of .262. Appellant was charged with third-degree DWI, in violation of Minn. Stat. § 169A.20, subd. 1(1), (5) (2004), and Minn. Stat. § 169A.26 (2004), and violation of restricted driver’s license, in violation of Minn. Stat. § 171.09 (2004).
In September 2004, appellant moved to suppress the chemical test pending the outcome of Fedziuk. The district court ruled that appellant failed to show that his due-process rights had been violated and denied the motion. In September 2005, the parties agreed to submit the case to the district court on stipulated facts under Lothenbach. The district court found appellant guilty of third-degree DWI.
Did the district courts err in not suppressing chemical-test results in criminal DWI proceedings when the 2003 amendments to the implied-consent law that removed the requirement for prompt judicial review of a prehearing revocation was rendered unconstitutional?
argue that the district courts erred in not suppressing chemical-test results
because the tests were “obtained by implementation of an unconstitutional
statute.” Appellants rely on Fedziuk v. Comm’r of Pub. Safety, 696
N.W.2d 340 (
In Fedziuk, the supreme court had to
determine whether the 2003 amendments to
reliance on Fedziuk to support their
argument that the test results should be suppressed in a criminal proceeding
because the tests were “obtained by implementation of an unconstitutional statute”
is misplaced. First, the implied-consent
law was not declared unconstitutional in its entirety in Fedziuk. Only the 2003 removal
of the requirement for prompt judicial review of a prehearing revocation from
the statute was rendered unconstitutional.
next argue that their due-process challenge should be analyzed in accordance
with several cases that suppressed test results in criminal proceedings because
the drivers’ due-process rights were violated by misleading language in the
implied-consent advisory. This line of
cases began with McDonnell v. Comm’r of
Pub. Safety, 473 N.W.2d 848 (
Appellants also argue that the doctrine of collateral estoppel should preclude the use of the test results in criminal proceedings. But that is not the case because Minn. Stat. § 169A.53, subd. 3(g) (2004), states that “[t]he civil hearing under this section shall not give rise to an estoppel on any issues arising from the same set of circumstances in any criminal prosecution.” Appellants argue, however, that the civil and criminal proceedings are so intermingled that it is against public policy to use the test results in a criminal proceeding after a driver prevails in an implied-consent proceeding. But appellants could have been convicted of DWI without the prompt and parallel judicial review required by the pre-2003 implied-consent law. Thus, public-policy considerations do not lead to the conclusion that because a driver is permitted to retain his or her driving privileges a chemical test should not be used in a criminal DWI proceeding.
Finally, appellants suggest that this court should decide
that Minn. Stat. § 169A.53, subd. 3(g) is unconstitutional as a violation
of the doctrine of separation of powers.
This argument was not raised in the district court; and therefore, we
will not consider the argument now.
D E C I S I O N
Because the portion of the implied-consent law that was declared unconstitutional by Fedziuk regarding judicial review for a license revocation does not have any effect on the evidence obtained for a related criminal DWI proceeding, the district courts did not err in denying appellants’ motions to suppress the results of their chemical tests.