This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-118

 

 

Steven Anthony Logan,

petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

 

Filed January 13, 2004

Affirmed
Crippen, Judge
*

 

Ramsey County District Court

File No. C3-02-10137

 

 

Charles A. Ramsay, Rebecca R. Fisher, Ramsay, Devore & Olson, P.A., 2860 Snelling Avenue North, Roseville, MN  55113 (for appellant)

 

Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 445 Minnesota Street, Suite 1000, St. Paul, MN  55101 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Hudson, Judge, and Crippen, Judge.


U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant’s Minnesota driving privileges were revoked as a result of a Wisconsin conviction for operating a motor vehicle while intoxicated.  Appellant contends that because he did not have the right to consult an attorney when he pled guilty in the Wisconsin proceedings, this conviction cannot provide the basis for a Minnesota license revocation.  Because precedents permitting revocation in these circumstances remain the controlling law for this case, we affirm.

FACTS

            In July 2002, appellant Steven Anthony Logan was arrested in Wisconsin for operating a motor vehicle while intoxicated (OWI).  Appellant testified that he agreed to submit to testing for alcohol concentration after a police officer informed him that he did not have the right to consult with an attorney.  Appellant later entered an uncounseled guilty plea to OWI.

            As a result of the Wisconsin conviction and an earlier incident within the past 10 years, the Minnesota Department of Public Safety notified appellant that his Minnesota driving privileges would be revoked for 180 days.  Upon appellant’s petition for judicial review of this revocation, the trial court concluded that (1) the Wisconsin offense was a valid basis for revoking appellant’s Minnesota driving privileges; and (2) appellant lacked standing to challenge the effect of the revocation on a possible future driving-under-the-influence (DWI) conviction.  This appeal followed.

D E C I S I O N

            The driver has the burden of proving entitlement to a driver’s license reinstatement.  Madison v. Comm’r of Pub. Safety, 585 N.W.2d 77, 82 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998).  This court will not reverse the trial court’s findings of fact unless they are clearly erroneous.  Burke v. Comm’r of Pub. Safety, 381 N.W.2d 903, 904 (Minn. App. 1986).  Questions of law are subject to de novo review.  Nordvick v. Comm’r of Pub. Safety, 610 N.W.2d 659, 662 (Minn. App. 2000).

1.

            In Recker v. State, Dept. of Pub. Safety, 375 N.W.2d 554, 557 (Minn. App. 1985), this court held that the revocation of Minnesota driving privileges could be based on a Wisconsin OWI conviction that resulted from an uncounseled guilty plea.  In Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 832 (Minn. 1991), the supreme court held that under the Minnesota Constitution, before deciding whether or not to submit to alcohol-concentration testing, a motor vehicle driver has a limited right to consult with a lawyer.

Appellant argues that Friedman implicitly overruled Recker.  Although Friedman adds an element of concern about the out-of-state offense, it does not change the rationale of Recker, which dealt with a civil sanction and distinguished this from the unconstitutional use of an uncounseled conviction to enhance a criminal charge.  See Friedman, 473 N.W.2d at 833 (explaining that right to counsel is triggered because “a driver who has been stopped for a possible DWI violation and has been asked to submit to a chemical test is at a ‘critical stage’ in DWI proceedings”); Recker, 375 N.W.2d at 556-57 (acknowledging constitutional concerns raised by uncounseled prior conviction, but distinguishing use of such conviction as basis for civil sanction).

The trial court did not err in concluding that the Wisconsin offense was a valid basis for revoking appellant’s Minnesota driving privileges.

2.

            Appellant also argues that the revocation he challenges may become an improper basis for enhancement of a future criminal charge.  In Nordvick, this court held that drivers in “implied consent proceedings do not have standing to challenge the effect of the revocation on a possible future DWI charge” because, until an enhancement provision in a criminal statute is actually applied against them, “they cannot show any direct and personal harm resulting from the criminal enhancement provision, and their challenge is premature.”  Nordvick, 610 N.W.2d at 663.  Appellate courts review de novo the legal question of whether a party has standing to bring an action.  Id. at 662.

            Appellant contends that this court implicitly overruled Nordvick in State v. McLellan, 655 N.W.2d 669, 671 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003), which held that an unchallenged license revocation based on an uncounseled DWI guilty plea in Wisconsin could be used for enhancement purposes.  Appellant asserts that if both cases are followed, he will never have occasion to be heard in his challenge of the possible future enhancement, his first challenge being denied on standing and his second denied on his failure to defeat the revocation in a direct challenge.  But appellant misstates the consequences of applying Nordvick to defeat standing; although McLellan requires the challenge of an allegedly wrongful revocation in order to later question its use for enhancement, id., the absence of success in the initial challenge impairs neither standing to later challenge whether the revocation serves as a lawful basis for an enhancement nor the driver’s success in that challenge.

            Appellant argues that this case is distinguishable from Nordvick because he has shown a direct and personal harm:  the denial of his Minnesota constitutional right to counsel and the revocation of his commercial driver’s license necessary for his employment.  This alleged harm goes to the validity of the revocation and demonstrates no harm from a criminal-enhancement provision.  The trial court did not err in concluding that appellant lacked standing to challenge the effect of the revocation in a possible future DWI proceeding.

            Appellant also mischaracterizes the trial court’s standing determination, contending that he was not permitted to argue the validity of his Minnesota revocation.  The court did not address whether the revocation would be a lawful basis for a future enhancement, but the court nevertheless addressed and found wanting the merits of appellant’s argument that the revocation was invalid.

            Affirmed.



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