This opinion will be unpublished and

may not be cited except as provided by

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






Gregory Earl Blakes, petitioner,


Commissioner of Public Safety,


Filed December 3, 2002


Peterson, Judge


Hennepin County District Court

File No. DCAP008090


Albert T. Goins, Kathryn R. Burke, Goins & Wood, P.C., 301 Fourth Avenue South, Suite 378, Grain Exchange Building, Minneapolis, MN† 55415; and


Manly A. Zimmerman, Zimmerman & Bix, Ltd., 4535 IDS Center, 80 South Eighth Street, Minneapolis, MN† 55402 (for appellant)


Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 500 Capitol Office Building, 525 Park Street, St. Paul, MN† 55103-2122 (for respondent)


††††††††††† Considered and decided by Hudson, Presiding Judge, Peterson, Judge, and Anderson, Judge.

U N P U B L I S H E D††† O P I N I O N


Following an alleged alcohol-related incident, appellant Gregory Earl Blakes was charged with driving under the influence, and his driverís license was revoked under the implied-consent law.† His license was also cancelled as inimical to public safety.† Blakes was found not guilty of the criminal charges, and the implied-consent license revocation was rescinded for lack of probable cause to believe he was driving.† Blakes then petitioned for reinstatement of his license, and his petition was denied.†

In this appeal from the judgment denying his petition to reinstate his driverís license, Blakes argues that: (a) respondent Commissioner of Public Safety was barred by the doctrine of res judicata from canceling his license after the district courtís rescission of the first revocation based on the same incident; (b) the commissioner did not have good cause to cancel his license; (c) the district court improperly placed on him the burden of proving that he had not consumed alcohol; and (d) due process prohibits cancellation of his license after the related proceedings had been resolved.† We affirm.


††††††††††† On October 23, 1999, a vehicle owned by Blakes and his wife, Vivian West, was involved in an accident.† As a result of the incident, Blakes was arrested for DWI.† After he refused to perform an intoxilyzer test, Blakes was charged with implied-consent test refusal and served with a notice and order of driverís license revocation.† A November 5, 1999, notice of revocation mailed to Blakes by the Department of Public Safety stated requirements for reinstatement, which included, ďCANCEL AND DENY 171.04.Ē† Under Minn. Stat. ß 171.04, subd. 1(10) (Supp. 1999), the department of public safety shall not issue a driverís license

to any person when the commissioner has good cause to believe that the operation of a motor vehicle on the highways by the person would be inimical to public safety or welfare.


In the criminal proceeding, the district court found Blakes not guilty of DWI and test refusal based on a finding that the evidence was insufficient to prove that Blakes was driving.† In the implied-consent proceeding, the district court found that the state lacked probable cause to believe that Blakes had been driving and rescinded the driverís license revocation.† At the implied-consent hearing, Blakes raised the issue of whether he had consumed any alcohol in violation of the total-abstinence restriction on his driverís license, but the district court did not make any findings on whether he had consumed alcohol.

After the license revocation was rescinded in the implied-consent proceeding, respondent commissioner issued a notice that stated that Blakesís driverís license was cancelled as inimical to public safety.† Blakes filed a petition for reinstatement of his driving privileges in which he argued, in part, that the decision in the implied-consent proceeding was res judicata, and the commissioner must be estopped from re-litigating, in serial fashion, issues that were, or could have been, decided in the implied-consent proceeding.† The parties waived an oral hearing and submitted the matter to the district court for decision based solely on written submissions.† The district court filed an order denying Blakesís petition for reinstatement.

††††††††††† Blakes then sent a letter to the district court stating that he had intended to waive an oral hearing only on the res judicata issue and requesting an evidentiary hearing on disputed fact issues.† The district court concluded that Blakesís recollection of the procedural posture of the case could be correct and ordered an evidentiary hearing.

††††††††††† At the hearing, Blakes denied consuming any alcohol since 1995.† He testified that on October 23, 1999, he drank only pop and Kool-Aid.† Blakes claimed that he refused to take an implied-consent test because he had not been driving.† Blakes testified that he attended Alcoholics Anonymous but that he had been unable to attend recently due to his work schedule.

††††††††††† Maple Grove Police Sergeant Michael Sargent, the officer who arrested Blakes for DWI on October 23, 1999, testified that he obtained conflicting information regarding whether West or Blakes had been driving the car.† Sargent noted that Blakesís eyes were bloodshot and that the odor of an alcoholic beverage was on his breath.† Sargent testified that Blakes said he had had a few drinks at home while watching fights.† Sargent also testified that Blakes refused to perform field sobriety tests or submit to a preliminary breath test.

††††††††††† Maple Grove Police Officer Jeffrey Albers assisted in the investigation.† He testified that West claimed that she had been driving the car and hit a deer.† But the damage to the vehicle showed a paint transfer and no signs that an animal had been hit.† Albers testified that when he told West that he doubted her story, she admitted that Blakes had been driving.† Eventually, the officers learned that another vehicle was involved in the accident.† Albers testified that he smelled the odor of an alcoholic beverage on Blakesís breath and observed that Blakesís speech was slurred and his eyes were watery and glassy.† Albers testified that he spoke to a witness, who said that he had come upon Blakes alone at the accident scene and gave him a ride.† Albers did not observe any signs that West had consumed alcohol.

††††††††††† Another assisting officer, Maple Grove Police Officer Jon Bueckers, testified that he found a bottle of Seagramís lime twist gin in the car and that when Blakes was in the back of the squad car, Bueckers smelled the fruity odor of a consumed alcoholic beverage coming from the back of the squad car.† Bueckers testified that he observed no signs that West had consumed any alcohol.

††††††††††† Following the evidentiary hearing, the district court issued an order denying reinstatement, and judgment was entered pursuant to the order.

††††††††††† In October 2001, Blakes filed a motion to vacate the judgment for the sole purpose of restarting the appeal period.† Blakes argued that the judgment had been entered prematurely in violation of Minn. R. Gen. Pract. 125, which requires that the entry of judgment be stayed for 30 days after the court orders judgment following a trial.† The district court granted Blakesís motion and directed that judgment be entered 23 days later.†


1.†††††††† Blakes argues that the doctrine of res judicata barred the commissioner from canceling his license after the district courtís rescission of the license revocation based on the same incident.

††††††††††† The effect of res judicata on a judgment or final order has at least two distinct and important aspects: (1) merger or bar; and (2) collateral estoppel.† The principles of merger and bar operate where a subsequent action or suit is predicated on the same cause of action which has been determined by a judgment, no matter what issues were raised or litigated in the original cause of action.† * * * On the other hand, the principle of collateral estoppel operates as to matters which were actually litigated and determined by, and essential to, a previous judgment, irrespective of whether the subsequent action is predicated upon the same or a different cause of action.


Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978) (citations omitted).†

††††††††††† Res judicata, or claim preclusion, bars a second suit for the same claim by parties or their privies.† Res judicata applies when (1) there has been a final judgment on the merits, (2) the same cause of action is involved, and (3) the parties are identical or in privity.


Sunrise Elec., Inc., v. Zachman Homes, Inc., 425 N.W.2d 848, 851 (Minn. App. 1988) (citations omitted).

††††††††††† In Ascher v. Commír of Pub. Safety, 527 N.W.2d 122, 125 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995), this court rejected the argument that res judicata bars a proceeding to cancel driving privileges as inimical to public safety following a driverís license revocation under the implied-consent statute.† The Ascher court explained:

††††††††††† [The driver] brought the first action, however, under Minn. Stat. ß 169.123, subd. 5c, pertaining exclusively to judicial review of implied consent proceedings, and the second action under Minn. Stat. ß 171.19, pertaining to judicial review of all license revocations ďexcept where the license is revoked under section 169.123.Ē†† Since the statutes are mutually exclusive, a cause of action under one does not encompass a cause of action under the other.


††††††††††† Moreover, the range of issues that can be litigated at an implied consent hearing is extremely limited.†


The scope of the hearing [in an implied consent case] shall be limited to the issues of:

(1) whether the peace officer had probable cause to believe the person was driving, operating, or in physical control of (i) a motor vehicle while under the influence of alcohol or a controlling substance * * * and whether the person was lawfully placed under arrest for violation of section 169.121 or 169.1211, * * * or the person refused to take a screening test provided for by section 169.21, subdivision 6, or the screening test was administered and recorded an alcohol concentration of 0.10 or more;† and

(2) whether at the time of the request for the test the peace officer informed the person of the person's rights and the consequences of taking or refusing the test * * *;† and

(3) either (a) whether the person refused to permit the test or (b) whether a test was taken and the test results indicated an alcohol concentration of 0.10 or more * * *.† [citing] Minn. Stat. ß 169.123, subd. 6 (1992).

None of these issues is before us on review, and none of the issues before us is within the scope of an implied consent hearing.† Therefore, this litigation is not barred by res judicata.



††††††††††† With respect to claim preclusion, we conclude that Ascher controls our decision in this case.† The implied-consent proceeding and this proceeding are not the same cause of action.† They are two distinct proceedings created by separate statutes.† Therefore, the license-cancellation proceeding is not barred by the implied-consent proceeding.

††††††††††† Blakes contends that this case is procedurally and factually distinguishable from Ascher.† We recognize that there is a factual distinction regarding the basis for the initial police encounter with Ascher and the police encounter with Blakes.† Ascher was stopped at a roadblock, and Blakes encountered the police following an accident.† Id. at 124.† But this distinction has no bearing on the application of res judicata.† For res judicata purposes, we see no basis for distinguishing this case from Ascher.†

Collateral estoppel applies when:

(1) the issue was identical to one in a prior adjudication;† (2) there was a final judgment on the merits;† (3) the estopped party was a party or in privity with a party to the prior adjudication;† and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.


Willems v. Commír of Pub. Safety, 333 N.W.2d 619, 621 (Minn. 1983) (citations omitted).† Collateral estoppel ďoperates only as to matters actually litigated, determined by, and essential to a previous judgment.Ē† Roseberg v. Steen, 363 N.W.2d 102, 105 (Minn. App. 1985) (citation omitted).† The application of collateral estoppel is a mixed question of law and fact; ďonce it is determined that collateral estoppel is available, the decision to apply [it] is left to the [district] courtís discretion.Ē† Bd. of Regents of Univ. v. Med. Inc., 382 N.W.2d 201, 207 (Minn. App. 1986), review denied (Minn. Apr. 18, 1986).

The issue in this proceeding is whether Blakes violated the restriction on his driverís license that requires him to abstain from consuming any alcohol.† The determinative issue in both the criminal and the implied-consent proceedings was whether Blakes was driving the car.† In the criminal proceeding, the district court found Blakes not guilty of DWI and test refusal based on a finding that the evidence was insufficient to prove that Blakes was driving.† In the implied-consent proceeding, the district court found that the state lacked probable cause to believe that Blakes had been driving and rescinded the driverís license revocation without determining whether Blakes had consumed any alcohol.† Because a determination whether Blakes had consumed alcohol was not essential to the judgment in either proceeding, and the issue was not actually litigated in either proceeding, collateral estoppel does not apply to prevent consideration of the consumption issue in the cancellation proceeding.

The district court inexplicably concluded in the criminal proceeding that there was no probable cause to arrest Blakes ďfor driving while intoxicated, leaving the scene of an accident, violating the terms of his limited license or careless driving.Ē† But the mere fact that the court stated that there was no probable cause to arrest Blakes for violating the terms of his limited license does not mean that collateral estoppel applies.† Although the court made this statement, whether Blakes violated the terms of his limited license was not an issue in the criminal proceeding, and the record does not demonstrate that the issue was litigated.†

2.†††††††† † The Commissioner of Public Safety has authority to require total abstinence from alcohol as a continuing condition for retaining a driver's license.† Askildson v. Commír of Pub. Safety, 403 N.W.2d 674, 676-77 (Minn. App. 1987), review denied (Minn. May 28, 1987).† The commissioner has authority to cancel and deny a driver's license when there is sufficient cause to believe the driver has consumed alcohol after completing rehabilitation.† Minn. R. 7503.1300, subpt. 3 (1999).

††††††††††† ďGenerally, there is a presumption of regularity and correctness when license matters are reviewed.Ē† Thorson v. Commír of Pub. Safety, 519 N.W.2d 490, 493 (Minn. App. 1994) (citation omitted).† A reviewing court ďwill not reverse a license determination unless it finds that it is unsupported by substantial evidence or is arbitrary and capricious.Ē† Id. (citation omitted).† The Commissioner must present "some evidence" to show there was sufficient cause to believe a violation of the total-abstinence clause had occurred.† Plaster v. Commír of Pub. Safety, 490 N.W.2d 904, 906 (Minn. App. 1992).† Appellant must show that the commissioner acted unreasonably.† Thorson, 519 N.W.2d at 493.

††††††††††† Blakes argues that the cancellation of his license was not supported by substantial evidence and was arbitrary and capricious.† We conclude that there was ample evidence to support the cancellation.††† Three officers testified that they observed indicia of alcohol consumption on Blakes, and Blakes admitted to one officer that he had had a few drinks at home.† The commissionerís decision was not arbitrary and capricious.

3.†††††††† Blakes argues that the district court misunderstood the burden of proof and improperly placed on him the burden of proving that he had not consumed alcohol.† But following the evidentiary hearing, the district court found ďspecifically that [Blakes] consumed alcohol.Ē† Nothing in the courtís findings of fact, conclusions of law, and order for judgment suggests that this finding was based on a determination that Blakes failed to prove that he was not drinking rather than on a determination that the evidence demonstrated that Blakes was drinking.† The findings of fact thoroughly address specific evidence that Blakes consumed alcohol, and we see no basis to conclude that the court misunderstood the burden of proof.

4.†††††††† Blakes argues that due process prohibits the commissioner from undertaking a serial revocation of his license after a prior license revocation based on the same incident has been judicially rescinded.† This argument is based on the incorrect premise that the commissioner did not act to cancel Blakesís driverís license until after the implied-consent proceeding was concluded.†

Following the incident on October 23, 1999, Blakesís driverís license was revoked under the implied-consent law because Blakes refused to submit to testing.† The November 5, 1999, notice of revocation that Blakes received from the commissioner informed Blakes that Minn. Stat. ß 171.04 was a requirement for reinstatement.† Blakes acknowledges in his brief that this notice was ďnotice to him that the Commissioner had acted initially against him under both [chapters 169 and 171].Ē†† Blakes successfully exercised his right to challenge the commissionerís action under chapter 169 in the implied-consent proceeding.† But the implied-consent proceeding did not address the commissionerís action under chapter 171.† Therefore, Blakes pursued a second statutory proceeding to challenge the commissionerís action under chapter 171.† Blakes does not contend that due process prohibits the use of two separate proceedings to review separate administrative decisions to revoke and cancel a driverís license based on a single incident.