This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Christopher John Tucker,



Filed January 24, 2006


Lansing, Judge


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.


            A Burnsville police officer stopped Christopher Tucker for driving infractions on March 2, 2003.  The officer administered a breath test, which Tucker failed, and the officer arrested him for driving while impaired (DWI).  Tucker’s prior driving record included a DWI conviction in 1998, a DWI conviction in 1999, and an implied-consent license revocation on February 24, 2003.  Because the current violation occurred within ten years of three prior impaired-driving incidents, the state charged Tucker with first-degree DWI.

            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.


            Under Minnesota law, a person who drives while impaired is guilty of first-degree impaired driving 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).  A “qualified prior impaired driving incident” includes “prior impaired driving convictions and prior impaired driving-related losses of license.”  Id. § 169A.03, subd. 22 (2002). 

            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, 881 (Minn. 1993).  We presume that a statute is constitutional and exercise our power to declare a statute unconstitutional “with extreme caution and only when absolutely necessary.”  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). 

            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 (Minn. App. 1987).  Because a driver’s license involves a property interest, a hearing is required before a person may be deprived of his license.  Heddan v. Dirkswager, 336 N.W.2d 54, 59 (Minn. 1983).  The hearing requirement is satisfied by “the opportunity to be heard at a meaningful time and in a meaningful manner.”  Id. (quotation omitted).  More specifically, a person is entitled to effective review of an administrative proceeding when the determination in that proceeding “is to play a critical role in the subsequent imposition of a criminal sanction.”  United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S. Ct. 2148, 2155 (1987).  Thus, a means of “obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.”  Id. at 838, 107 S. Ct. at 2155.

A person whose license is revoked may request administrative review or may petition for judicial review of the revocation of driving privileges.  Minn. Stat. § 169A.53, subds. 1, 2 (2002); State v. Coleman, 661 N.W.2d 296, 301 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  Thus, a person whose property interest in possessing a driver’s license is at risk has the opportunity to obtain judicial review.  In previous cases raising similar issues, we have concluded that the “availability of that review, although unexercised, satisfies the due-process requirement of meaningful review.”  State v. Goharbawang, 705 N.W.2d 198, 202-03 (Minn. App. 2005), pet. for review filed (Minn. Nov. 22, 2005); Coleman, 661 N.W.2d at 301.  Because review is available, the use of a prior revocation of driving privileges to enhance a DWI charge to first degree does not deprive a person of due process rights.  Coleman, 661 N.W.2d at 301.

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.

Finally, we reject Tucker’s argument that the supreme court’s decision in Fedziuk v. Commissioner of Public Safety, 696 N.W.2d 340 (Minn. 2005), supports his claim for reversal.  In Fedziuk,the supreme court determined that the absence of a prompt and meaningful postrevocation review unconstitutionally eliminates a due-process element critical to the implied-consent law.  See id. at 345-46 (observing that 2003 amendments, which removed requirement for prompt judicial review of license revocations, failed to preserve due process rights).  But the amendments that the supreme court declared unconstitutional were not in effect at the time of any of Tucker’s violations, including his current violation.  At the time of Tucker’s implied-consent revocation, Minnesota law required that judicial review of a license revocation occur within sixty days of a petition for review.  See Minn. Stat. § 169A.53, subd. 3(a) (2002) (“The [judicial review] hearing must be held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review.”).  The statute in effect ensured that Tucker would receive prompt judicial review of his license revocation, and he received that review before the state charged the violation from which Tucker appeals.  The district court did not err by determining that the prior implied-consent revocation provided a basis for enhancement.