This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Michael Joseph Hassemer,



Filed March 25, 2003


Gordon W. Shumaker, Judge

Dissenting, Randall, Judge


Ramsey County District Court

File No. K1021677





Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103, and


Manuel Cervantes, St. Paul City Attorney, Jessica S. McConaughey, Assistant St. Paul City Attorney, 15 West Kellogg Boulevard, 500 City Hall/Courthouse, St. Paul, MN 55102 (for appellant)


Joel N. Heiligman, 4230 Central Avenue N.E., Minneapolis, MN 55421, and


Maureen Williams, P.O. Box 1895, Burnsville, MN 55337-00895 (for respondent)




Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.


U N P U B L I S H E D   O P I N I O N




Respondent was charged with one count of first-degree driving while impaired and one count of first-degree driving with a blood-alcohol level of 0.10 or more.  The district court dismissed the criminal complaint by applying the doctrine of collateral estoppel after the implied-consent matter resulted in a rescission of respondent’s license revocation.  The state now challenges the dismissal.  Because collateral estoppel does not apply, we reverse.


The police arrested respondent Michael Hassemer on May 11, 2002, for driving while under the influence of alcohol.  After an intoxilyzer test showed that Hassemer’s blood-alcohol level was 0.16, the Commissioner of Public Safety revoked his driver’s license, and the state charged him with one count of first-degree driving while impaired and one count of first-degree driving with a blood-alcohol level of 0.10 or more.

Hassemer requested an implied-consent hearing and sent to the prosecutor notice of the date and time of the hearing.  Neither the arresting officer nor the prosecutor appeared at the implied-consent hearing, and the district court rescinded Hessemer’s license revocation without an evidentiary proceeding.

Hassemer then moved to dismiss the criminal charges against him on the ground that the state was collaterally estopped from prosecuting him because he had already obtained a dismissal of the implied-consent proceeding.  The district court agreed and dismissed the criminal charges.  The state appealed.


Critical Impact

          Under Minn. R. Crim. P. 28.04, subd. 1(1), the state may appeal, as a matter of right, any pretrial order based on questions of law.

When the state appeals from a pretrial order dismissing a criminal charge, this court will reverse only if the state clearly and unequivocally demonstrates that the district court erred and that the error, unless reversed, will have a critical impact on the outcome of the prosecution.


State v. Lopez, 631 N.W.2d 810, 813 (Minn. App. 2001) (citing State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992)), review denied (Minn. Sept. 25, 2001).  The critical impact requirement is satisfied if the district court dismisses a complaint.  State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001).  In this case, the state has satisfied the critical-impact test because the district court dismissed the criminal charges after determining that the doctrine of collateral estoppel applied.

Collateral Estoppel

Collateral estoppel precludes relitigation of issues actually litigated and determined in a prior action and essential to the resulting judgment.  Marshall v. Inn on Madeline Island, 631 N.W.2d 113, 120 (Minn. App. 2001), review denied (Minn. Sept. 25, 2001).  Collateral estoppel is subject to de novo review.  Falgren v. State Bd. of Teaching, 545 N.W.2d 901, 905 (Minn. 1996).

            Collateral estoppel operates to preclude the relitigation of an issue that parties in privity in some prior matter had a fair opportunity to litigate.  Willems v. Comm’r of Pub. Safety, 333 N.W.2d 619, 621 (Minn. 1983).  Collateral estoppel applies only if four elements are satisfied: (1) the issue is identical to the issue in the prior matter; (2) there was a final judgment on the merits in the prior matter; (3) the estopped party was a party to or in privity with a party to the prior matter; and (4) the estopped party was given a full and fair opportunity in the prior proceeding to be heard on the adjudicated issue.  Id. 

Relying on State v. Victorsen, 627 N.W.2d 655 (Minn. App. 2001), the district court ruled that the state had notice of the implied-consent hearing and the opportunity to be heard and, therefore, the state was estopped from prosecuting Hassemer for DWI.  The court also ruled that collateral estoppel applied even  though there had been no hearing on the merits in the implied-consent proceeding.

In Victorsen, the police stopped and arrested a driver for DWI.  After the commissioner revoked the driver’s license, he petitioned for review.  The state then issued a criminal complaint for DWI.  The driver notified the prosecutor of the date of the implied-consent review hearing but the prosecutor did not attend.  After a full evidentiary hearing, the district court found that there had been no proper legal basis for the stop and rescinded the revocation of the driver’s license.  At a later pretrial conference in the criminal case, the driver moved to dismiss the charge on the ground that collateral estoppel required the exclusion of all evidence obtained because of the illegal stop.  The district court denied the motion but certified to this court the question of what effect, if any, the ruling on the validity of the stop in the implied-consent hearing has on that issue in the DWI prosecution.

In answering that question, we considered only two elements of collateral estoppel:

The only elements at issue here are whether the State of Minnesota is in privity with the Commissioner of Public Safety, and whether the State of Minnesota was given a full and fair opportunity to be heard in the implied consent proceeding.


Id. at 660.

We answered the first question affirmatively, holding that the commissioner and the state were in privity with each other.  Id. at 661.  We answered the second question negatively, ruling that the nature of the notice to the prosecutor, being a “mere invitation to attend the hearing,” did not satisfy the requirement that the state is entitled to a full and fair opportunity to be heard.  Id.   But we warned that the same result would not necessarily always occur, and we fashioned this rule:

Because the Commissioner of Public Safety and the State of Minnesota are in privity, if a prosecutor is given notice and an opportunity to participate in a hearing, that prosecutor, at a later hearing, will be estopped from opposing the binding effect of an order resulting from the earlier hearing.


Id. at 663.

Here, the state concedes privity and notice but argues that there was neither a hearing nor a judgment on the merits and thus collateral estoppel cannot apply.  We agree. The Victorsen court did not consider the issue of whether there had been a determination on the merits because there in fact had been such a determination.

Collateral estoppel requires that the “matters actually [be] litigated, determined by, and essential to a previous judgment.”  Roseberg v. Steen, 363 N.W.2d 102, 105 (Minn.  App. 1985).  In this case, the matter was not “actually litigated” because there was no actual hearing.  See, e.g., Am. Hoist & Derrick Co. v. Employers’ of Wausau, 454 N.W.2d 462, 468 (Minn. App. 1990) (finding that there was no final judgment on the merits where the litigation was settled by the parties), review denied (Minn. June 26, 1990).  The district court even noted that its decision in the implied-consent matter was not on the merits because of the police officer’s failure to be present to testify at the hearing. Because an actual hearing never took place, there could be no final judgment on the merits and collateral estoppel cannot be applied.

The district court’s reading of Victorsen resulted in a de facto elimination of the requirement that there must be a final judgment on the merits before collateral estoppel will apply.  Victorsendid not eliminate that requirement.[1]

“Identical Issues”

            The state also argues that the issues in the implied-consent proceeding and the criminal DWI case were not identical and that the record on appeal provides this court with no guidance on what issues were actually decided in the implied consent proceeding.  In addition, the district court in the criminal matter did not specify what issues were before the court in the implied-consent proceeding or what issues were adjudicated.  And there is no actual record on appeal of the implied-consent proceeding.

On appeal, respondent has not briefed or argued the “identical-issues” element of collateral estoppel.  And a party invoking the defense of collateral estoppel has the burden of proof.  Virsen v. Rosso, Beutel, Johnson, Rosso & Ebersold, 356 N.W.2d 333, 337 (Minn. App. 1984).

Respondent’s issues provided in the record for the implied-consent hearing and for the criminal proceeding are boilerplate material consisting of 13 “issues” in the petition for judicial review of driver-license revocation and 18 “issues” in respondent’s motions pursuant to Minn. R. Crim. P. 7, 8, 9, 10, 11, and 17.  Because this record does not show identical issues, this element of collateral estoppel is missing. 

Because two of the components of collateral estoppel are missing, the district court erred in applying collateral estoppel and in dismissing the criminal charges.




RANDALL, Judge (dissenting).

            I respectfully dissent.  Under the prospective rule, fashioned in Victorsen, which the majority, with approval, quotes, we said:

Because the Commissioner of Public Safety and the State of Minnesota are in privity, if a prosecutor is given notice and an opportunity to participate in a hearing, that prosecutor, at a later hearing, will be estopped from opposing the binding effect of an order resulting from the earlier hearing.


State v. Victorsen, 627 N.W.2d 655, 663 (Minn. App. 2001). 

            But then the majority goes on to discuss other elements of "collateral estoppel" and focuses on number three, was there a final judgment on the merits in the prior matter?  Id. at 660.  The majority also discusses "identical issues" and argues this element of collateral estoppel is also missing.  Id.

            I suggest that Victorsen, with its prospective rule, spoke directly to this case.  With hindsight, the Victorsen court might have focused more on the rule they fashioned, which was- "the state is estopped."  That is what Victorsen is about; it is not classic collateral estoppel.  I recognize that "collateral estoppel" was used by the Victorsen court in several places, but that phrase is not necessary to its holding.  Its holding (prospectively) is that if the prosecutor is given notice and an opportunity to participate, and does not, the prosecutor will be estopped at any later hearing from "opposing the binding effect of an order resulting from the earlier hearing."  Id. at 663.

            I do not have any issue at all with "identical issues."  First, identical issues are not necessary to apply the prospective ruling of Victorsen and secondly, the state has for years in implied consent hearings attempted to both narrow and then eliminate any bona fide issues the driver has by trying to interpret the rule so strictly that if the defense attorney does not provide the state with a "complete trial brief" before the hearing, the attorney representing the driver "will be estopped" from litigating issues.  The state certainly understands "estoppel."  Thus, it needs to apply equally against the state as for it.

            Our law is replete with examples of true estoppel, where notions of fundamental fairness preclude one side or the other from bringing forth evidence.  The principle is "estoppel," not "collateral estoppel."  Instances abound and can even be used against a defendant in a criminal trial where the Bill of Rights protects a defendant far more than either party in a civil suit.  If the defendant wishes to offer an alibi to a jury, he must give fair notice to the prosecution.  Minn. R. Crim. P. 9.02, subd. 1(3)(c).  If he can show no such notice and no reasonable explanation for the failure to give that notice, the criminal defendant is "estopped" from using a defensive alibi.  That estoppel has nothing to do with "collateral estoppel."  It is the estoppel of fundamental fairness, nothing more.

            In civil cases, parties are estopped routinely from using witnesses who, after a proper demand by the other party, have not been identified, and at trial no reasonable explanation is given for the lack of notice.  That preclusion has nothing to do with traditional collateral estoppel; again it is nothing more than estoppel by fairness.  See Krech v. Erdman, 305 Minn. 215, 217-18, 233 N.W.2d 555, 557 (1975) (quoting Gebhard v. Niedzwieck, 265 Minn. 471, 477, 122 N.W.2d 110, 114-15 (1963)) (reiterating counsel has an obligation "to keep his adversary apprised of the changes in circumstances which make it necessary to call witnesses or introduce evidence not previously disclosed"); Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (stating "[t]he trial court has the discretion to exclude testimony because of failure to timely disclose witnesses"); See also Minn. R. Civ. P. 37.02 (b)(2) (discussing sanctions available to the trial court for failure to obey discovery rules and orders). 

            The district court here made a judgment call.  Had it, in its discretion, allowed the state a second full hearing, because the first hearing was not "full," I suggest that given the discretion of a district court, it might have sailed through on appeal.  I do not answer that question, as it is not before us.  But most certainly, given district court discretion and the prospective ruling in Victorsen, which speaks to estoppel by fairness, not collateral estoppel, I dissent and would affirm the trial court.

            By no stretch of the law or of the facts can I find that this district court judge "unequivocally erred."  As the majority concedes, a state appeal on pretrial matters fails unless there is clear and unequivocal error by the district court.  Minn. R. Crim. 28.04, subd. 1(1).


[1] We note that Victorsen may apply in only a small number of cases because the legislature amended the statute in 2002 and added the following:  "The 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."  Minn. Stat. § 169A.53, subd. 3(g) (2002).  Victorsen was released on April 18, 2001, and the statute took effect on August 1, 2002.