This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Richard Francis Hunt, petitioner,





Commissioner of Public Safety,




Filed March 19, 2002


Huspeni, Judge*



Ramsey County District Court

File No. C2-01-1273



Paul W. Rogosheske, Thuet, Pugh & Rogosheske, Ltd., 222 Grand Avenue West, Suite 100, South St. Paul, MN 55075 (for appellant)


Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)




            Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Huspeni, Judge.

U N P U B L I S H E D  O P I N I O N


            Appellant seeks review of the district court order denying reinstatement of his driver’s license, and argues that Minn. R. 7503.1300, subp. 3 (1999), authorizing cancellation of the driver’s license of a person whose license has been restricted on belief that the person has consumed alcohol, is unconstitutionally overbroad.  Because the record supports the district court’s determination that appellant consumed alcohol, and because that determination is not challenged on appeal, we do not reach the constitutional issue, and we affirm.


            New Brighton police officer Burton Emerson stopped a car driven by appellant Richard Hunt after observing Hunt make an illegal lane change, a rolling stop, and a “short turn” almost resulting in a collision.  Officer Emerson detected the odor of an alcoholic beverage on Hunt’s breath.  Office Emerson testified that, upon questioning, Hunt indicated he had consumed about “an inch of beer” at the American Legion post and then amended his story to indicate that he had had a beer at home before going to the post.  At the time, he made no reference to drinking “nonalcoholic” beer.  A preliminary breath test administered about 20 minutes after the stop showed an alcohol concentration of 0.043. 

            The Commissioner of Public Safety subsequently cancelled Hunt’s driver’s license as “inimical to public safety” under Minn. Stat. §§ 171.04, subd. 1(10), and .14 (2000), determining there was sufficient cause to believe Hunt had consumed alcohol in violation of a restriction on his driver’s license that he totally abstain from alcohol and controlled substances as a condition of continued licensure in Minnesota.[1]  Hunt, seeking judicial review of the commissioner’s decision, petitioned for reinstatement of his license. 

At the district court hearing, Hunt testified that he had not consumed alcoholic beverages since he was issued his restricted license in 1988, and that on the day in question he drank only an O’Doul’s nonalcoholic beer at home with his family.  A toxicology supervisor stated in a sworn affidavit that upon testing, O’Doul’s was found to contain .35% alcohol by volume.  The commissioner’s expert testified that, in order to produce the results of the preliminary breath test, Hunt would have had to consume 25 O’Doul’s beers or 2.2 regular beers.  At the hearing, Hunt presented expert testimony challenging the accuracy of the preliminary breath test; the commissioner countered with expert testimony that the test was valid.  Hunt did not raise the question of the constitutionality of Minn. R. 7503.1300, subp. 3, at the hearing, but in a letter brief to the court approximately two weeks later, did argue the unconstitutionality of the rule on the basis that it was overbroad.

            The district court upheld the cancellation of Hunt’s driver’s license and did not address the issue of unconstitutionality.  This appeal followed. 


            A presumption of regularity and correctness exists when license matters are reviewed.  Igo v. Comm’r of Pub. Safety, 615 N.W.2d 358, 360 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000).  This court will not reverse a license determination unless it finds that the determination is unsupported by substantial evidence or is arbitrary and capricious.  Id.  The commissioner “must present some evidence to show that sufficient cause existed to believe a violation of the total abstinence clause occurred.”  Id. (citation omitted).  In turn, appellant needs to show that the commissioner acted unreasonably.  Id.

            Substantial factual disputes existed at the hearing.  The district court resolved those disputes in finding that:

[T]he officer asked [Hunt] how much he had to drink, to which he responded about an inch of a glass of beer at the Legion. 


* * * *


At the hearing [Hunt] claimed to have had an O’Doul’s on the day in question. 


The district court concluded that “[c]onsumption of either ‘an inch of beer’ or O’Doul’s violates the total abstinence restriction on [his] driving privileges.”  Importantly, Hunt does not challenge the district court’s findings.  Therefore, according to those unchallenged findings, the district court accepted Officer Emerson’s testimony that Hunt admitted to drinking an inch of beer at the Legion club.  There was no qualification in the statement or in the testimony limiting that consumption to nonalcoholic beer.  The district court concluded from the credible testimony of Officer Emerson that Hunt had violated the restrictions of his driver’s license by “consumption of an inch of beer.”  Because none of this language in the district court order is challenged, arguably we could end our inquiry at this point and dismiss the appeal for failing to present a reviewable issue.  

            Hunt also challenges the second basis for the district court’s decision, however (that prong indicating that consumption of O’Doul’s violates the total abstinence restriction), and argues that the district court’s construction of Minn. R. 7503.1300, subp. 3 (1999), to include the consumption of “nonalcoholic” beer is unconstitutionally overbroad and goes beyond the scope of the commissioner’s authority because it regulates permissible conduct.

            Hunt’s attempt to have this court address the constitutionality of the rule is innovative.  He is aware of caselaw addressing the issue of the extent of the authority of the commissioner.  In both Askildson v. Comm’r of Pub. Safety, 403 N.W.2d 674, 677 (Minn. App. 1987), review denied (Minn. May 28, 1987), and Lamusga v. Comm’r of Pub. Safety, 536 N.W.2d 644, 649 (Minn. App. 1995), review denied (Minn. Oct. 27, 1995), this court upheld the commissioner’s authority to require complete abstinence from alcohol as a condition for keeping a driver’s license.  Further, Hunt is aware of this court’s decision in Igo, a case involving consumption of a “nonalcoholic” beverage.  In Igo, this court construed Minn. R. 7503.1300, subp. 3, as providing that consumption of a beverage containing minimal amounts of alcohol establishes sufficient cause to believe that the driver has violated a total abstinence restriction on driving privileges.  Igo, 615 N.W.2d at 362.  Hunt, however, seizes upon certain language in Igo which observes “[Igo] has not attempted to argue that this rule is invalid or beyond the scope of the commissioner’s authority” to convince us that the constitutionality of the challenged rule not only needs to be addressed, but to invite us to address the merits of the challenge here.  Id.

            We do not accept the invitation extended by Hunt.  We note initially that it is unclear whether the constitutionality issue was properly presented to the district court.  Clearly, the issue was not addressed by the parties at the hearing, the court did not address the issue in its order, and Hunt raises no challenge to the failure of the court to do so.  This court’s scope of review is limited to issues presented to and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  This limitation applies to the review of implied consent proceedings.  Berge v. Comm’r of Pub. Safety, 588 N.W.2d 177, 179 (Minn. App. 1999); Wierke v. Comm’r of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998).

            More importantly, even if we were to decide that the constitutionality issue was properly preserved for review on appeal, we are mindful of the caution that courts are not to address constitutional issues unless determination of constitutionality is necessary to resolve the issues raised in a proceeding.  McNamara v. Office of Strategic & Long Range Planning, 628 N.W.2d 620, 630 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  It is clear from the district court order that Officer Benson’s testimony regarding Hunt’s statement was accepted as credible.  In contrast, Hunt’s testimony regarding consumption only of O’Doul’s was characterized by the district court only as a “claim.”  Even if the district court’s findings and conclusions had been challenged on appeal, the decision to sustain the cancellation of Hunt’s driving privileges could withstand appellate review on the basis of the determination that Hunt consumed an inch of beer at the Legion club.  The alternative, arguably gratuitous, language of the court addressing consumption of O’Doul’s, is surplusage.  We need not, nor do we, review that language here.  Because that language forms the only basis upon which a constitutional challenge could be brought in this case, we decline to address the constitutionality of Minn. R. 7503.1300, subp. 3.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1]  Following one alcohol-related incident in 1981 and two in 1984, Hunt’s driving privileges were “canceled” and “denied” as “inimical to public safety.”  Those privileges were reinstated in 1988, with the restriction that Hunt remain a total abstainer from alcohol and controlled substances for as long as he wished to remain licensed to drive in this state.