This opinion will be unpublished and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
State of Minnesota,
Robert D. VanCleve,
Filed May 11, 2004
Concurring specially, Randall, Judge
Scott County District Court
File No. 2002-08868
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Kevin Golden, Assistant County Attorneys, Government Center JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)
Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)
Considered and decided by Harten, Presiding Judge; Randall, Judge; and Klaphake, Judge.
Appellant challenges his convictions for second-degree DWI, arguing that the charges cannot be enhanced based on a 1994 alcohol-related license revocation that appellant’s attorney neglected to challenge by failing to file a timely implied-consent petition. Because the record contains no constitutional basis to collaterally attack appellant’s 1994 license revocation, we affirm.
Appellant Robert D. VanCleve was stopped on his motorcycle on 10 May 2002 after a Savage Police Officer saw him speeding and swerving. After appellant failed field sobriety tests and his preliminary breath test read .13, he was arrested. Appellant was transported to the Savage Police Department, where he was read the Minnesota Implied Consent Advisory and agreed to the breath test. The results indicated a blood alcohol concentration of .12. A review of appellant’s driver’s license record revealed that his license had been revoked in February 1994 for having a blood alcohol concentration of .10 or more.
Appellant was subsequently charged with, among other things, two counts of second-degree driving while impaired (DWI), which requires the existence of an aggravating factor. As part of his omnibus motions, appellant moved to dismiss the charges on the grounds that his 1994 license revocation could not be used as an aggravating factor to enhance the charges. The district court denied the motion.
Appellant waived his right to a jury trial and the parties submitted the case on stipulated facts to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty on all charges and sentenced him to 2 days’ incarceration, 28 days of electric home monitoring with work release, and a $940 fine. Appellant now challenges his second-degree DWI convictions.
Appellant challenges the use of his 1994 license revocation to enhance his current DWI charges. Determination of the evidence required to convict under a specific statute is a question of law that is subject to de novo review. State v. Tomlin, 622 N.W.2d 546, 548 (Minn. 2001).
Appellant’s second-degree DWI charges required the state to prove one “aggravating factor.” Minn. Stat. § 169A.26, subd. 1 (2000). One type of “aggravating factor” is a “qualified prior impaired driving incident within ten years immediately preceding the current offense.” Minn. Stat. § 169A.03, subd. 3(1) (2000). Such incidents include “prior impaired driving convictions and prior impaired driving-related losses of license.” Id., subd. 22 (2000). An impaired driving-related loss of license includes a license suspension, revocation, cancellation, denial, or disqualification under implied consent laws. Id., subd. 21 (2000). Appellant’s license was revoked in 1994 following an implied consent test. Therefore, the statute allows for the 1994 license revocation to be used to enhance his current DWI charges.
Appellant argues that his 1994 license revocation should not be used for enhancement purposes because he was not given an opportunity to contest the revocation when his attorney in 1994 failed to file a timely implied consent petition. A defendant may collaterally attack a prior conviction on constitutional grounds in a subsequent proceeding where the prior conviction is used for enhancement purposes. State v. Nordstrom, 331 N.W.2d 901, 904 (Minn. 1983). But the absence of an opportunity to consult with an attorney regarding a civil event that leads to a license revocation is not a violation of an individual’s constitutional right to counsel. State v. Dumas, 587 N.W.2d 299, 302-03 (Minn. App. 1998), review denied (Minn. 24 Feb. 1999). The limited right to counsel in the Minnesota Implied Consent Advisory involves only the resulting criminal proceedings; no Sixth Amendment right to counsel attaches to implied consent proceedings, which are civil in nature. Maietta v. Comm’r Pub. Safety, 663 N.W.2d 595, 600 (Minn. App. 2003) (barring ineffective assistance of counsel claims in implied consent hearings). Therefore, the failure of appellant’s attorney to file a timely implied consent petition in 1994 did not violate his constitutional right to counsel.
Appellant also argues that his 1994 license revocation was an unconstitutional seizure because two recent affidavits signed by him indicate that he was not driving the vehicle during the 1994 incident. A defendant bears the burden of properly challenging the constitutional validity of a prior revocation that is used for enhancement purposes. See Nordstrom, 331 N.W.2d at 905. Once the defendant produces evidence supporting a contention that the revocation was unconstitutional, the burden shifts to the state to show that the revocation was proper. Nordstrom, 331 N.W.2d at 905 (state must show prior conviction was constitutional); State v. Mellett, 642 N.W.2d 779, 789 (Minn. App. 2002) (defendant must produce evidence before burden shifts), review denied (Minn. 16 Jul. 2002);
Curiously, appellant argues that he complied with the implied consent review process regarding his 1994 license revocation by preparing two sworn affidavits. There is no legal provision allowing appellant to perfect a collateral attack on his 1994 license revocation almost 10 years later by the simple expedient of showing this court his own affidavits prepared in 2003 that address his theory of why a jury found him not guilty of DWI in 1994. First of all, these affidavits were never filed with the district court and are not properly before us on appeal. See Minn. R. Civ. App. P. 110.01 (appellate record consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings”). Secondly, the law required in 1994 and still requires that a petition for an implied consent hearing must be filed with the district court within 30 days of receipt of the license revocation. Minn. Stat. § 169.123, subd. 5c (1994). Finally, a cursory reading of the affidavits reveals only appellant’s improvised speculation as to why the 1994 jury found him not guilty of DWI.
Because the current record does not indicate that appellant’s 1994 license revocation was unconstitutional, appellant has not met his burden. Accordingly, the 1994 license revocation was properly used to enhance appellant’s current DWI charges.
RANDALL, Judge (concurring specially).
I concur in the result, but write separately to state that a defendant should be entitled to the “Nordstrom” procedure/defense when the state wants to use a prior civil implied consent conviction for sentence enhancement under a criminal statute, allowing sentence enhancement for a prior crime.
A defendant has the right to attack a prior conviction on constitutional grounds in a subsequent proceeding when the state wants to use a prior criminal conviction for enhancement purposes. State v. Nordstrom, 331 N.W.2d 901 (Minn. 1983). This is known as a “Nordstrom” defense. Once the defendant raises the defense, the state has the burden “to show that the contested evidence . . . was obtained with constitutional requirements.” Id. at 905.
Nordstrom involved an attempt by the state to enhance a defendant’s sentence based on a prior criminal conviction. The same rationale has to apply to enhancement based upon a prior “civil” implied consent conviction, if fairness and due process still mean anything in the State of Minnesota. In Nordstrom, after the defendant challenged the constitutional validity of the prior misdemeanor conviction, arguing that his waiver of counsel was unconstitutional, the state had the burden of proving that the defendant had validly waived his right to counsel. The court reasoned that a waiver of the right to counsel in the context of a guilty plea involves “relinquishment of three important federal constitutional rights: the privilege against self-incrimination, the right to trial by jury, and the right of confrontation.” Id. at 904 n.6.
If, 14 years ago, the Minnesota Supreme Court was so concerned about the constitutional rights of a defendant in a criminal case to fair play and due process when the state wanted to use a prior criminal conviction to enhance the statute, it is insane to offer less protection when the state wants to use a prior civil conviction for sentence enhancement. With the prior criminal conviction, a later court can, at least, take judicial notice of the following things: (1) there is a criminal conviction of record; (2) “a criminal conviction,” by definition, means the defendant was protected by the Minnesota Constitution and the United States Constitution; (3) since the conviction was not overturned on appeal (or there would not be a “conviction”), it can be presumed that at the defendant’s trial, and/or plea of guilty, and/or appeal, he was clothed with the presumption of innocence, the burden of proof by proof beyond a reasonable doubt was placed on the state, the defendant had a right to remain silent, was entitled to hire an attorney of his own choosing, or have the state appoint him one if he was indigent, and all the other constitutional rights that we give to all defendants.
You can’t “imply” anything about an implied consent hearing; it is “civil.” By the way, civil implied consent proceedings can have driver’s license and driving privilege consequences equal to or greater than some traffic crimes, yet we hang on to the legislative and judicial facade that since this is “civil,” no serious rights attach to the proceeding and none need constitutional protection. Fine, go ahead and hold that if you want, but then do not allow the state to enhance a criminal sentence after a criminal conviction because of a civil proceeding. If the state wants it both ways, wants to be able to enhance a criminal sentence after a criminal conviction and wants to be able to enhance a criminal sentence after a civil conviction, the answer is easy, give the defendant the opportunity to call for a Nordstrom hearing in connection with a prior implied consent conviction, as a defendant car driver can do now with a prior criminal conviction. You can have constitutional issues arise in an implied consent matter. The issues of articulable suspicion to stop, probable cause to stop/and/or arrest/and/or search and seizure can rise to constitutional dimensions. The state has nothing to lose. If they allow the defendant car driver a Nordstrom hearing and they want to use a prior implied consent conviction to enhance a criminal sentence, all they have to do is show that prior implied consent procedure comported with the driver’s due process and constitutional rights. If they prevail, they will get their precious sentence enhancement. If they cannot prevail, why should they get a sentence enhancement?
Go ahead and place the same burden on the defendant in a Nordstrom hearing based on a prior implied consent hearing as are placed on a defendant in a Nordstrom hearing when there is a real prior crime at issue. See State v. Dumas, 587 N.W.2d 299, 302-03 (Minn. App. 1998), review denied (Minn. 24 Feb. 1999) (holding uncounseled civil findings may be used to enhance subsequent criminal charges). Once the defendant produces evidence supporting a conviction that the revocation was unconstitutional, the burden shifts to the state to show that the revocation was proper. State v. Mellett, 642 N.W.2d 779, 789 (Minn. App. 2002) (stating defendant must produce evidence before burden shifts); State v. Nordstrom, 331 N.W.2d 901, 905 (Minn. 1983) (holding state must show prior conviction was constitutional).
Driving while under the influence has been, for years, a whipping boy for rhetoric and get-tough-on-crime demagoguery; it is a political football with the Minnesota Constitution and the Federal Bill of Rights getting kicked around in ways that do not happen in far more serious crimes, homicides, assaults, burglaries, felony thefts, etc. It is just as easy to do it right and to do it with fairness as it is to strangle any notion of fair play while prosecuting drivers on a charge of under the influence.
The state of the law today, and this record, as the majority points out, support the holding that this 1994 civil license revocation can properly be used to enhance the current DWI charge, so I concur in the result. But for the future, the answer is simple. Change the statute to forbid the use of civil implied consent convictions as “aggravating factors” unless the scope of Nordstrom is specifically (and logically) expanded to cover any prior hearing/conviction where the purpose of the use of that prior hearing/conviction (civil or criminal) is to enhance a later criminal penalty.
 Appellant argues that a “trend of the court is to now equate a civil proceeding with a criminal proceeding.” But appellant cites no authority for this assertion. Moreover, this assertion ignores caselaw cited by appellant that distinguishes civil implied consent proceedings from criminal proceedings. See, e.g., State v. Wagner, 637 N.W.2d 330, 339 (Minn. App. 2001) (criminal defendants are not collaterally estopped from challenging issues in a criminal proceeding that had been litigated in a prior implied consent hearing).