This opinion will
be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed September 6, 2005
Dakota County District Court
File No. K1-03-3744
Mike Hatch, Attorney General,
1800 NCL Tower,
445 Minnesota Street,
St. Paul, Minnesota 55101-2134; and
James C. Backstrom, Dakota County
Attorney, Nicole L. Fredricks, Assistant County Attorney, Dakota County
Judicial Center, 1560 Highway 55, Hastings, Minnesota 55033 (for respondent)
Ethan P. Meaney, Derek A. Patrin,
Gerald Miller & Associates, P.A., 2915 Wayzata Boulevard, Minneapolis,
Minnesota 55405 (for appellant)
and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
challenges the district court’s order allowing the use of a prior civil
Minnesota driving while intoxicated (DWI) - related driver’s-license revocation
based on an uncounseled foreign DWI conviction to enhance Minnesota impaired-driving
offenses. Based on prior holdings of
this court, we affirm.
A South St. Paul police officer stopped appellant for a
traffic offense in Dakota
County. The investigating officer observed indicia of
intoxication and arrested appellant for driving while impaired. Appellant refused to submit to any test to
determine alcohol concentration.
Appellant’s driving record includes a September 23, 1997 Minnesota revocation resulting from a January 1997 Wisconsin conviction for operating a motor vehicle while
intoxicated. Appellant’s driving record
also includes two additional revocations from 1999 and 2001 that are not in
state charged appellant with first-degree driving while impaired in violation
of Minn. Stat. § 169A.24 (2002). The
complaint alleged that appellant has three prior qualified impaired-driving
incidents within the preceding ten years.
Appellant moved to dismiss the first-degree count, arguing that the 1997
Minnesota revocation that was based on his
Wisconsin conviction could not be used as a basis for enhancement because his Minnesota constitutional right to counsel was not
vindicated during the testing procedure that led to his DWI conviction in Wisconsin. The district court denied appellant’s motion,
finding that appellant did not allege any constitutional infirmity with regard
to the revocation itself but, rather, with the Wisconsin
conviction that resulted in the revocation.
submitted the matter to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).
On July 30, 2004, the district court found appellant guilty and sentenced
appellant to 54 months in prison. This
D E C I
S I O N
challenges his conviction of first-degree driving while impaired, arguing that the
charging enhancement violated his Minnesota
constitutional rights. The district
court’s denial of a motion to prohibit using appellant’s 1997 Minnesota driver’s-license revocation to
enhance his current charges raises a question of law, which this court reviews
de novo. State v. Bergh, 679 N.W.2d 734, 737 (Minn. App. 2004).
law, “[a] person who violates section 169A.20 (driving while impaired) is
guilty of first-degree driving while impaired if the person . . . commits the
violation within ten years of the first of three or more qualified prior
impaired driving incidents.” Minn. Stat. § 169A.24,
subd. 1(1) (2002). The phrase “qualified
prior impaired driving incident” includes prior impaired driving-related losses
of license such as a driver’s-license revocation. Minn. Stat. § 169A.03, subds. 21(1), 22 (2002). Minn. Stat. § 171.17 directs the department of
public safety to “immediately revoke the license of a driver upon receiving a
record of the driver’s conviction of . . . an offense in another state that, if
committed in this state, would be grounds for revoking the driver’s license.” Minn.
Stat. § 171.17, subd. 1(a)(9) (2002). A
revocation under section 171.17 qualifies as a prior impaired-driving incident
for purposes of a charging enhancement under section 169A.24.
appellant argues that the 1997 revocation of his Minnesota driver’s license under
section 171.17 cannot be used to enhance the current charge because the
Wisconsin conviction triggering the application of section 171.17 was obtained
in violation of Minnesota’s constitutional right to consult with an attorney
before deciding whether to submit to alcohol-concentration testing. In Minnesota, a driver has
a limited right to consult with an attorney before deciding whether to submit
testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 833–34 (Minn. 1991). Wisconsin law
does not provide for any right to counsel before such testing. See State v.
Reitter, 595 N.W.2d 646, 659 (Wis.
1999) (holding that there is no state constitutional right to consult with an
attorney before deciding whether to submit to chemical testing).
a. Collateral attack
The state contends that
appellant is prohibited from challenging the enhancement because appellant
cannot collaterally attack the validity of a prior license revocation in a
subsequent proceeding. Because this
argument contradicts controlling precedent, we disagree.
The Minnesota Supreme Court has recognized that Minnesota law extends
the right to counsel, beyond the dictates of the federal constitution, to any
case that may lead to incarceration. State v. Nordstrom, 331 N.W.2d 901,
1983). In Nordstrom, the supreme court held that a Wisconsin
criminal conviction in which the defendant was not represented by counsel could
not be used to enhance a subsequent DWI offense to a gross misdemeanor if the
right to counsel was not properly waived.
Id. at 905. Concerned that an accused person may be
incarcerated without the assistance of counsel to present potential defenses,
the Nordstrom court rested on federal
law stating that a person may collaterally attack a prior conviction on
constitutional grounds and have it invalidated in a subsequent proceeding for
purposes of an enhanced penalty statute.
(citing Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct.
1585 (1980)). At that time, the statute
did not permit enhancement based on prior civil revocations, so the court had
no occasion to address whether a defendant may collaterally attack a revocation
in a subsequent proceeding.
1992, the legislature amended the DWI statute to allow for the first time the use
of prior civil implied-consent revocations to enhance later criminal-refusal
offenses from misdemeanors to gross misdemeanors. 1992 Minn.
Laws ch. 570, art. 1, §§ 7, 8.
Thereafter, this court concluded that this change to the DWI and
implied-consent statutes did not transform the implied-consent proceeding into
a criminal proceeding requiring greater procedural protections. Davis v. Comm’r of Pub. Safety, 509 N.W.2d
380, 392 (Minn. App. 1993), aff’d, 517 N.W.2d 901 (Minn. 1994).
In reaching this conclusion, the Davis
court noted that the drivers’ challenge to the use of civil revocations for
enhancement was premature, as the drivers could show no direct harm until the
enhancement actually occurred in a later DWI proceeding. Id. The Davis opinion
stated that drivers “may challenge the enhancement use of an implied consent
revocation in a later gross misdemeanor DWI on any appropriate grounds, just as
they can challenge the enhancement use of a prior DWI.” Id. (citing Nordstrom, 331 N.W.2d at 905).
there is no clear authority in Davisto support this proposition that
drivers in a DWI prosecution may collaterally challenge a prior civil
revocation, similar to what Nordstrom
allowed for prior DWI convictions, on the grounds that the civil revocation was
based on a conviction obtained in violation of the driver’s right to counsel. The rationale for permitting collateral
attacks on prior convictions used for enhancement purposes recognized in Nordstrom was weakened by the United
States Supreme Court opinion in Nichols
v. United States, 511 U.S. 738, 748–49, 114 S. Ct. 1921, 1928 (1994), which
overruled Baldasar. As the Nichols
court explained, when enhancement occurs based on a prior conviction, it
constitutes a punishment for the new offense, not a punishment for the prior
conviction. Id. at 747, 114 S. Ct. at 1927. Therefore, the use of a prior,
unconstitutionally obtained conviction does not pose constitutional
but cf. State v. Dumas, 587
N.W.2d 299, 302 (Minn. App. 1998) (noting that
Nordstrom’s “vitality” was called
into question by the overruling of Baldasar),
review denied (Minn.
Feb. 24, 1999). Furthermore, the Nordstrom court’s decision to permit a
collateral attack on a prior conviction
vindicated the right to counsel that attaches once an accused is faced with
criminal charges that could result in incarceration—to ensure the reliability
of that proceeding. See Nordstrom, 331 N.W.2d
at 904–05. In contrast, the purpose of
the Friedman right to counsel is to
provide legal advice to a driver faced with a difficult decision whether to
submit to chemical testing. Friedman, 473 N.W.2d at 835. The reliability of chemical testing, or of
the implied-consent revocation that results, is not affected by the limited Friedman right to counsel.
despite the lack of a clear rationale for permitting a defendant to
collaterally attack a revocation in a subsequent enhancement proceeding, this
court has adhered to the assumption that such a collateral attack is permitted in
some circumstances. See State v. Mellet, 642 N.W.2d 779, 788–89 (Minn.
App. 2002) (articulating the two-step process for a defendant to mount a
collateral attack on her prior revocation), review
July 16, 2002). Because this court
is bound by precedent and because it is for the supreme court to enunciate the
law in this perplexing area, we adhere to our previous decisions permitting a
defendant to mount a collateral attack on a prior revocation. See,
e.g., St. Aubin v. Burke, 434
N.W.2d 282, 284 (Minn. App. 1989) (holding
that the court of appeals is an error-correcting, not doctrinal, court), review denied (Minn. Mar. 29, 1989).
argues that his revocation cannot be used in a subsequent enhancement because
the Wisconsin conviction underlying the revocation was obtained in violation of
his limited Minnesota
constitutional right to pretest counsel.
outcome of appellant’s claim is controlled by this court’s decision in State v. McLellan, 655 N.W.2d 669 (Minn.
App. 2003), review denied (Minn. Apr. 15, 2003). In McLellan,
this court precluded a collateral attack on a Minnesota
revocation under section 171.17 that enhanced a subsequent DWI, even though the
revocation was based on a prior Wisconsin DWI conviction that resulted from an
uncounseled guilty plea. Id. at
671. McLellan argued that the district
court violated the “Nordstrom/Friedrich
prohibition” because her Wisconsin conviction “would not pass constitutional
muster under Minnesota
law.” Id. This court disagreed, stating that an
unchallenged revocation is a valid ground for enhancement:
The Commissioner of
Public Safety is directed by statute to revoke a person’s Minnesota driver’s license following
conviction for DWI in another state.
McLellan’s Minnesota driver’s license
was revoked in 1995 following the Wisconsin
conviction. McLellan did not petition
for judicial review under the statute, and the revocation of her driver’s
license therefore went unchallenged. The
district court found that the charges against McLellan were enhanced because of
the prior license revocation, not the Wisconsin conviction, and therefore [Minnesota’s prohibition
on the use of uncounseled guilty pleas to enhance a subsequent DWI offense] was
not violated. We agree.
Appellant argues that McLellan is not dispositive of his claim, however, because McLellan erroneously assumed that a
driver is barred from challenging the constitutionality of a prior license
revocation simply because the driver failed to initially challenge that
revocation by administrative hearing or petition for judicial review. Appellant’s argument has some merit. McLellan
does not provide any authority for requiring a defendant to first challenge the
prior civil revocation in that proceeding before the defendant may collaterally
attack the revocation in a subsequent enhancement. The opinion in McLellan does not explain why it is relevant, let alone dispositive,
that McLellan failed to petition for judicial review of the revocation. Moreover, the waiver rule raises the question
why, if a fundamental constitutional right is at stake when the prior civil
revocation is used for enhancement purposes, the defendant should be required
to have raised it earlier?
Review of revocations under section 171.19,
including revocation following an out-of-state DWI conviction, involves a civil
court hearing on license reinstatement to determine “whether the petitioner is
entitled to a license or is subject to revocation . . . .” Minn.
Stat. § 171.19 (2004). The waiver
rule requires that a defendant must challenge the constitutionality of his
revocation in this civil proceeding or waive his right to a collateral attack on
the revocation in a subsequent enhancement of a criminal charge, an issue that
might not be readily apparent to a driver facing civil revocation. Nonetheless, the waiver rule is established
Here, appellant did not challenge the
constitutionality of his revocation in a proceeding under section 171.19 and
therefore waived his right to mount a collateral attack. Despite its infirmities, McLellan remains the controlling precedent for this court when
determining the propriety of enhancing a DWI charge with a prior Minnesota revocation
under section 171.17.
Appellant argues that our decision is controlled
by the precedent established in State
v. Bergh, 679 N.W.2d 734 (Minn. App. 2004).
In Bergh, this court held that a prior Colorado license revocation
that resulted from an uncounseled testing decision may not be used to
enhance a subsequent DWI offense in Minnesota because the Colorado revocation
was obtained in violation of the driver’s constitutional right to counsel
before testing. Id.
at 738. The Bergh opinion does not discuss McLellan.
But because Colorado
drivers do not have a limited pretest right to counsel, the defendant in Bergh did not have the opportunity to
challenge his Colorado
revocation prior to its use for enhancement in a subsequent Minnesota DWI
prosecution. Bergh is therefore distinguishable, as Minnesota
provides a forum for challenging Minnesota
revocations under section 171.17. Cf. State v. Schmidt, ___ N.W.2d ___, 2005 WL
1869744, at *6 (Minn.
App. Aug. 9, 2005) (relying on Bergh
and holding that a South Dakota revocation that derived from an uncounseled
chemical-testing decision violated Minnesota’s constitutional right to counsel
and could not be used to enhance defendant’s current offenses).
We acknowledge that, following Bergh, Minnesota license revocations derived from
uncounseled out-of-state convictions may be used as aggravating factors in
subsequent DWI prosecutions per McLellan,
but out-of-state revocations derived from uncounseled testing decisions are
unconstitutionally obtained and cannot be used as aggravating factors in
subsequent DWI prosecutions per Bergh. See
9A Henry W. McCarr & Jack S. Nordby, Minnesota
Practice § 56.42 n.16 (3d ed. Supp. 2004) (noting that “enhancement may
properly result from a prior Minnesota revocation based upon an uncounseled
guilty plea in another state,” but “[a] foreign revocation based on an
uncounseled test may not be used.”). We also
acknowledge that our conclusion today permits the use of a Minnesota license revocation for enhancement
purposes when the state would be prohibited from using the uncounseled foreign
conviction that underlies the revocation for enhancement purposes. This is the result of a confusing line of
cases that has continued to follow Baldasar,
despite its being overruled by the Supreme Court, and that has extended that
approach to civil revocations. But this
case is controlled by McLellan, and we
decline to overturn established precedent from this court without further
guidance from our supreme court.