This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Christopher John Tucker,
Filed January 24, 2006
Dakota County District Court
File No. K8-03-758
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
James C. Backstrom, Dakota County Attorney, Amy A. Schaffer, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
Ethan P. Meaney, Derek A. Patrin, Meaney & Patrin, P.A., 1902 Main Street, Hopkins, MN 55343 (for appellant)
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
A jury found Christopher Tucker guilty of first-degree driving while impaired based on his driving conduct and three prior impaired-driving incidents. Alleging a
denial of due process, Tucker appeals the district court’s ruling that the third prior impaired-driving incident, an implied-consent license revocation, can be used to enhance the degree of his current violation, which occurred before judicial review of the revocation. Because Tucker had an opportunity for judicial review of his prior revocation and exercised this opportunity before he was charged with the current violation, Tucker was not deprived of due process. We affirm.
F A C T S
At the time of the current violation, Tucker had not petitioned for review of his February 2003 implied-consent revocation. He filed a review petition on March 5, 2003, and, following a contested hearing, the district court sustained the revocation on August 1, 2003.
In December 2003, at a contested omnibus hearing on the current violation, Tucker challenged the validity of the stop, the officer’s refusal to permit a requested second breath test, and the use of the prior license revocation to enhance the charge from second-degree to first-degree DWI because the revocation was not subject to judicial review before the current violation. The district court concluded that the stop was valid and that the implied-consent revocation was a qualified prior incident for purposes of enhancement. But the court dismissed the charge without prejudice based on its conclusion that Tucker was denied an opportunity for additional testing for alcohol concentration.
On April 12, 2004, the state filed a complaint that amended the charge to allege first-degree driving while under the influence of alcohol instead of first-degree driving with an alcohol concentration of .10 or more. A jury found Tucker guilty of the amended charge of first-degree DWI. In this appeal from conviction, Tucker contends that the use of the February 2003 implied-consent revocation as a qualified prior impaired-driving incident violates his right to due process.
D E C I S I O N
Tucker asserts that the enhancement
provision of section 169A.24 violated his due process rights because his
February 2003 implied-consent revocation was not judicially reviewed before the
March 2 offense. When the
constitutionality of a statute is challenged, we review the challenge
independently as a question of law. In
re Blilie, 494 N.W.2d 877,
A license to drive is an important
property interest and is, consequently, subject to due process protection. Kleven
v. Comm’r of Pub. Safety, 399 N.W.2d 153, 156 (
person whose license is revoked may request administrative review or may
petition for judicial review of the revocation of driving privileges.
Tucker, in fact, availed himself of the opportunity for judicial review within days of the February 24, 2003, implied-consent license revocation. And the district court, following review, affirmed the revocation of his license in August 2003. Tucker nonetheless contends that the timing of the review violated his due-process rights because it did not occur until after the state charged him with first-degree DWI. This argument lacks merit.
The state’s initial charges against Tucker were dismissed without prejudice in January 2004. The facts are undisputed that the amended complaint formally charging the current offense was filed in April 2004, approximately eight months after judicial review confirmed his February 2003 implied-consent revocation. Judicial review was complete and probable cause existed at the time of the amended charge. Not only was review available before he was charged with the offense, but he had exercised his right and received an adverse determination. Contrary to Tucker’s assertions, the critical time for purposes of determining whether a party has had an opportunity for meaningful judicial review is not the date of the current offense, but the date on which the state seeks to use the revocation to establish the elements of the current offense. See Goharbawang, 705 N.W.2d at 202 (indicating that opportunity for judicial review must occur before using revocation to enhance charge). Because judicial review was completed well in advance of the state’s use of the revocation to establish probable cause for first-degree DWI, we discern no impingement of Tucker’s due process rights.
we reject Tucker’s argument that the supreme court’s decision in Fedziuk v. Commissioner of Public Safety,
696 N.W.2d 340 (