This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Peter Michael Prasher, petitioner,





Commissioner of Public Safety,




Filed ­­­December 27, 2005


Dietzen, Judge


Chippewa County District Court

File No. C6-04-464


John E. Mack, Special Assistant State Public Defender, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant)


Mike Hatch, Attorney General, Jeffrey F. Lebowski, Joel A. Watne, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Dietzen, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N




            Appellant challenges the district court order and judgment dismissing his petition for reinstatement of his driving privileges under Minn. Stat. § 171.19 (2004), which had been canceled by the Commissioner of Public Safety upon the determination that there was sufficient cause to believe that appellant had consumed alcohol in violation of the total abstinence restriction on his driver’s license.  Because the district court properly applied the law and did not abuse its discretion, we affirm.


            In November 2003, appellant Peter Michael Prasher was stopped by a Chippewa County deputy sheriff and arrested for driving while impaired (DWI).  Appellant smelled of alcohol but denied drinking.  Appellant also claimed that a cooler containing two cans of beer on ice had “nothing” in it.  He performed poorly on field sobriety tests and submitted to a preliminary screening test that disclosed an alcohol concentration of 0.13.  Appellant eventually submitted to a breathilyzer test with a final reported value of 0.10 alcohol concentration.

            Prior to appellant’s arrest, appellant had several alcohol-related incidents occurring in March 1984, October 1984, and March 1985, resulting in the revocation of his driving privileges under DWI and implied consent laws.  In addition, appellant’s driver’s license was “canceled” and “denied” as “inimical to public safety” until appellant demonstrated his “rehabilitation” in accordance with standards set by respondent Commissioner of Public Safety (commissioner).  Minn. Stat. § 171.04 (1984).  After appellant sufficiently documented his rehabilitation, his driving privileges were reinstated with the restriction that he totally abstain from alcohol and controlled substances.  But appellant was arrested in April 1991 for driving while impaired.  His driving privileges were again canceled and denied until appellant completed a second rehabilitation.  After appellant completed the second rehabilitation in April 1994, his driving privileges were again reinstated subject to the total abstinence restriction.

            Based upon appellant’s arrest and charge in November 2003 for DWI, the commissioner concluded that sufficient cause existed to believe that appellant had consumed alcohol in violation of the total abstinence restriction on his driving privileges.  Consequently, his driving privileges were “canceled” and denied as “inimical to public safety.”

Meanwhile, in the DWI proceedings, appellant challenged the validity of the investigatory stop that led to his November 2003 arrest.  The district court concluded that the investigatory stop of appellant was illegal and dismissed the criminal charges in February 2004.  Appellant also challenged the validity of the implied consent revocation proceeding.  In that case, the district court upheld the stop and sustained the implied consent revocation.  Appellant appealed that order to this court.  Subsequently, the commissioner agreed to administratively rescind the implied consent revocation in exchange for dismissal of the appeal.  The appeal was then dismissed.

            In October 2004, appellant petitioned for judicial review of the cancellation of his license under section 171.19 and filed an amended petition in November 2004.  In the proceedings before the district court, appellant argued that the Fourth Amendment exclusionary rule should apply, arguing that administrative proceedings under section 171.19 should be subject to the constitutional protections against illegal stops and searches.  Appellant also argued that the doctrine of res judicata barred a different result from the DWI decision.  Following a hearing, the district court denied appellant’s petition for judicial review.  The district court concluded, inter alia, that the exclusionary rule does not apply to cancellation of driver’s privileges for violation of a total abstinence provision and that res judicata is not a ­­bar to the proceeding.  This appeal follows.



            Appellant raised two issues on appeal.  First, appellant argues that evidence obtained as a result of an investigatory stop that was illegal under the Fourth Amendment’s exclusionary rule should be excluded in a proceeding for reinstatement of a driver’s license under Minn. Stat. § 171.19 (2004).

            “[T]here is a presumption of regularity and correctness when license matters are reviewed by this court.”  Thorson v. Comm’r of Pub. Safety, 519 N.W.2d 490, 493 (Minn. App. 1994).  “This court will not reverse a license determination unless it finds that it is unsupported by substantial evidence or is arbitrary and capricious.”  Id.  Here, appellant has raised questions of law, i.e., the application of the exclusionary rule, to proceedings under Minn. Stat. § 171.19 (2004).  We review questions of constitutional interpretation de novo.  Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 344 (Minn. 2005).

            The United States Supreme Court has summarized the use of the exclusionary rule as follows:

The exclusionary rule is [] a judicially created means of deterring illegal searches and seizures.  As such, the rule does not proscribe the introduction of illegally seized evidence in all proceedings or against all persons, but applies only in contexts where its remedial objectives are thought most efficaciously served.  Moreover, because the rule is prudential rather than constitutionally mandated, it applies only where its deterrence benefits outweigh the substantial social costs inherent in precluding consideration of reliable, probative evidence.


Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 357-58, 118 S. Ct. 2014, 2016-17 (1998) (quotations and citations omitted).  And the Minnesota Supreme Court has stated: “[T]he purpose of the exclusionary rule is to deter unconscionable invasions of privacy by law enforcement officials in pursuit of their duties.”  State v. Conaway, 319 N.W.2d 35, 41 (Minn. 1982).

            Here, appellant argues that there is no reasonable basis to distinguish between criminal proceedings in which one is charged with DWI under Minn. Stat. § 169A.20 (2004), review of implied consent revocation proceedings for test refusal under Minn. Stat. § 169A.53 (2004), and review of cancellation of driving privileges or other adverse action by the commissioner under Minn. Stat. § 171.19.  Respondent argues that the proceedings are separate and distinct.

            The prosecution for DWI under Minn. Stat. § 169A.20 requires that the court apply the exclusionary rule to exclude evidence obtained as a result of an investigatory stop.  See, e.g., State v. Carver, 577 N.W.2d 245 (Minn. App. 1998) (applying the exclusionary rule where evidence was closely tied to illegal arrest).  Under the implied consent law, a test may be required when the officer has probable cause to believe that the person had been driving while impaired and that one of four conditions exist, including that there was a lawful arrest.  Minn. Stat. § 169A.51, subd. 1(b)(1) (2004); see also Minn. Stat. § 169A.53, subd. 3(b)(1), (2) (2004).  But in proceedings under Minn. Stat. § 171.19, the district court is vested with jurisdiction to “take testimony and examine into the facts of the case to determine whether the petitioner is entitled to a license or subject to revocation, suspension, cancellation, disqualification, or refusal of license, and shall render judgment accordingly.”  Section 171.19 does not contain language requiring application of the exclusionary rule to the proceedings involving the cancellation of driving privileges for violation of a total abstinence restriction on a driver’s license.

            Appellant acknowledges that the case of Ascher v. Comm’r of Pub. Safety, 527 N.W.2d 122 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995) (Ascher II) is directly contrary to his position.  Appellant argues that we should overrule Ascher II because it is “bad law” that “turns a blind eye to unlawful police conduct and [which] encourages those acts by permitting law enforcement authorities to benefit from the fruit of those acts . . . .”

            In Ascher v. Comm’r of Pub. Safety, 505 N.W.2d 362 (Minn. App. 1993), aff’d, 519 N.W.2d 183 (Minn. 1994) (Ascher I), the driver Ascher sought judicial review of an implied consent revocation on the grounds that a sobriety check was unconstitutional.  This court determined that a sobriety checkpoint that gave rise to his test refusal was unconstitutional and rescinded the revocation of his driver’s license and the supreme court affirmed.  Ascher I, 505 N.W.2d at 370.  Following the decision in Ascher I, Ascher sought reinstatement of his driver’s license.  Ascher II, 527 N.W.2d at 124.  The commissioner upheld the cancellation and denial of reinstatement on the grounds that granting reinstatement was “inimicable to public safety.”  Id.  On review, the district court rescinded the conviction on the grounds that the evidence obtained from an unconstitutional checkpoint should be excluded.  Id. 

            On appeal, we held that the potential for future unlawful police conduct in establishing illegal check points was adequately deterred by application of the exclusionary rule to DWI and implied consent proceedings.  Id. at 126.  But we also concluded that application of the exclusionary rule to a proceeding under section 171.19 would not deter future unlawful police conduct to any significant degree.  Consequently, we held that the exclusionary rule did not apply to administrative proceedings under section 171.19, and the supreme court denied review of Ascher IIId. 

Because the statute has not changed, and Ascher II is still good law, we conclude that the exclusionary rule does not apply to the administrative proceedings under section 171.19.  A DWI proceeding is separate and distinct from a proceeding to “cancel” and “deny” for violation of the total abstinence restriction.  The DWI charge requires a lawful arrest arising out of driving conduct.  The cancellation proceeding does not require a lawful arrest but rather focuses on whether the total abstinence restriction was violated.  The consequence is also different; for a DWI conviction, the result can be criminal penalties and revocation of driver’s privileges, but a violation of the total abstinence restriction may result in a cancellation of driver’s privileges.  Compare Minn. Stat. § 169A.20, subd. 3 with Minn. Stat. § 171.14 (2004).  And, reinstating appellant’s license, although he is known to have consumed alcohol, is contrary to the public interest of keeping intoxicated drivers off the road rather than deterring unlawful police conduct.

            Appellant further argues that cancellation proceedings under Minn. Stat. § 171.19 are comparable to vehicle forfeitures.  See Minn. Stat. § 609.531 (2004)  Appellant argues that both procedures “follow-in-the-wake of criminal arrests.”  Respondent contends that the procedures are separate because the cancellation occurs following the violation of the total abstinence restriction and that it is not necessary that a criminal arrest occur.  See, e.g., Lamusga v. Comm’r of Pub. Safety, 536 N.W.2d 644 (Minn. App. 1995) (police encounter with inebriated pedestrian, no mention of an arrest), review denied (Minn. Oct. 27, 1995); Askildson v. Comm’r of Pub. Safety, 403 N.W.2d 674 (Minn. App. 1987) (police encounter with inebriated restaurant patron, no mention of an arrest), review denied (Minn. May 28, 1987).  Vehicle forfeitures occur as a result of criminal arrests.  An administrative proceeding under Minn. Stat. § 171.19 is not based on a criminal statute but involves an independent determination that the person’s driving privileges should be “canceled” as “inimical to public safety.”


            Appellant argues that the commissioner is barred by the doctrines of res judicata and collateral estoppel from using evidence that was obtained in violation of the exclusionary rule to cancel his driver’s license under Minn. Stat. § 171.19 (2004).

            Res judicata is the legal principle that judgment on the merits is an absolute bar to a second suit on the same cause of action and is conclusive between the parties as to every issue that was or could have been litigated.  Dorso Trailer Sales, Inc. v. Am. Body & Trailer, Inc., 482 N.W.2d 771, 774 (Minn. 1992).  “We review de novo whether the doctrine of res judicata can apply to a given set of facts.”  Erickson v. Comm’r of Dep’t of Human Servs., 494 N.W.2d 58, 61 (Minn. App. 1992).  “If the doctrine applies, the decision whether to actually apply it is left to the discretion of the trial court.”  Id. The criteria for res judicata are a final judgment on the merits, a second suit involving the same cause of action, and parties who are either identical or in privity.  Myers v. Price, 463 N.W.2d 773, 776 (Minn. App. 1990), review denied (Minn. Feb. 4, 1991). 

            As to the second criterion, i.e., a second suit involving the same cause of action, Ascher II is dispositive.  Ascher II held that res judicata does not apply to separate proceedings involving implied consent revocation and review of petitions for reinstatement under section 171.19.  527 N.W.2d at 125.  The Ascher II court reasoned that “[s]ince the statutes are mutually exclusive, a cause of action under one does not encompass a cause of action under the other.”  Id.  Here, like Ascher II, the DWI criminal prosecution and judicial review of a petition for reinstatement are based on different statutory causes of actions.  Compare Minn. Stat. § 169A.20 (2004) (providing the elements of the offense of driving while impaired) with Minn. Stat. § 171.19 (providing a review mechanism for cancellations occurring under section 171.14 because the commissioner had good cause to cancel under section 171.04, subdivision 1, subpart 10).  Because the second criterion for application of res judicata has not been met, we do not reach the other two criteria.

Finally, appellant contends that the commissioner is precluded by collateral estoppel from using evidence that was obtained in violation of the exclusionary rule to cancel appellant’s license under section 171.19.  But appellant did not raise collateral estoppel as a bar against the commissioner; rather he raised res judicata.  This court will generally not consider matters not argued and considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Nonetheless, the doctrines of collateral estoppel and res judicata are sufficiently similar so that we believe it is necessary to address collateral estoppel.

The availability of collateral estoppel is a mixed question of law and fact subject to de novo review.  Falgren v. State Bd. of Teaching, 545 N.W.2d 901, 905 (Minn. 1996).  “Collateral estoppel prevents a party from relitigating an issue if (1) the issue is identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party in the prior case; and (4) there was a full and fair opportunity to be heard on the issue.”  In re Trust Created by Hill, 499 N.W.2d 475, 484 (Minn. App. 1993), review denied (Minn. July 15, 1993).

Appellant argues that the case of State v. Victorsen supports his position that respondent is collaterally estopped from using the evidence obtained in violation of the exclusionary rule.  But Victorsen is easily distinguishable.  In Victorsen, we analyzed the effect of a prior determination of an issue in an implied consent matter to a DWI prosecution.  State v. Victorsen, 627 N.W.2d 655, 660 (Minn. App. 2001).  The court noted that “[d]rivers may challenge the legality of traffic stops at both implied consent hearings and pre-trial hearings in criminal matters.”  Id. at 662.  But cancellations under section 171.19 were never mentioned in VictorsenSee id.  Consequently, Victorsen does not bar use of the evidence in a section 171.19 proceeding.  We turn now to the four criteria that must be met before collateral estoppel applies.

Pursuant to the first criterion, we review whether the issue in the prior DWI proceeding is identical to the issue in the section 171.19 administrative reinstatement proceeding.  Although the DWI and implied consent revocation proceedings require that the court apply the exclusionary rule to determine the legality of the stop, section 171.19 provides for no such inquiry.  Here, the issue litigated in appellant’s DWI and implied consent revocation proceedings was the legality of the police officer’s stop, not appellant’s failure to abide by the abstinence provision.  Consequently, we are persuaded that the issue of whether the commissioner had good cause to believe appellant violated the total abstinence restriction on his driver’s license was not litigated in the prior DWI and implied consent revocation proceeding.  Because the first criterion is not met, it is not necessary to address the other criterion.

The commissioner has the statutory authority to cancel any driver’s license where “at the time of cancellation, [the driver] would not have been entitled to receive a license under the provisions of section 171.04.”  Minn. Stat. § 171.14 (2004).  Because appellant violated the abstinence condition of his driving privileges, the commissioner had good cause to cancel appellant’s license.  See Minn. Stat. § 171.04, subd. 1(10) (2004) (prohibiting any person whose operation of a motor vehicle would “be inimical to public safety or welfare,” from obtaining a driver’s license).


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