This opinion will
be unpublished and
may not be cited except as
Stat. § 480A.08, subd. 3 (2004).
COURT OF APPEALS
State of Minnesota,
Roger J. Partyka,
March 21, 2006
Ramsey County District Court
File No. K8-04-3849
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street,
St. Paul, MN 55101; and
Susan Gaertner, Ramsey
County Attorney, Mark N.
Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St.
Paul, MN 55102 (for respondent)
Faison T. Sessoms, Jr., 840 TriTech Office Center, 331 Second Avenue South, Minneapolis, MN 55401
Considered and decided by Worke,
Presiding Judge; Wright, Judge; and Dietzen, Judge.
N P U B L I S H E D O P I N I O N
On appeal from conviction of first-degree
DWI, appellant argues that his 2003 implied-consent license revocation could
not be used to enhance the current offense to a felony because the district
court in the 2003 DWI case found that appellant’s constitutional rights had
been violated. Because the revocation
was properly used to enhance appellant’s current offense, we affirm.
D E C I S I O N
Appellant Roger J. Partyka challenges
the use of his 2003 license revocation to enhance his current DWI charge. A reviewing court is not bound by and need
not give deference to a district court’s decision on a purely legal issue. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003). The application of law to undisputed facts is
a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Comm'r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992).
In October 2004, appellant was
charged with first-degree driving while intoxicated, in violation of Minn.
Stat. §§ 169A.20, subd 1(1), 169A.24, subd. 1(1) (2004). At the time of his arrest, appellant’s
driving record contained two DWI convictions which occurred in 1998 and 2000,
and a DWI arrest from 2003. Appellant’s license was revoked in February 2003 as a
result of the DWI arrest. Appellant
challenged the constitutionality of the 2003 arrest and the charge was
dismissed based on a finding that a warrantless entry into appellant’s garage
violated his Fourth Amendment rights. Despite
the dismissal of the 2003 DWI charge, appellant never sought judicial review of
his license revocation.
Under Minnesota law, a person who drives while
impaired is guilty of first-degree DWI 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) (2004). A “‘qualified
prior impaired driving incident’ includes prior impaired driving convictions
and prior impaired driving-related losses of license.” Minn. Stat.§ 169A.03, subd. 22 (2004).
A “‘[p]rior impaired driving-related loss of license’ includes a driver’s
license suspension, revocation, cancellation, denial, or disqualification”
under implied-consent laws. Id.
at subd. 21 (2004). Appellant’s license
was revoked in 2003 after registering a blood-alcohol concentration of .10 or
more following an arrest for DWI. See Minn. Stat. § 169A.52,
subd. 4 (2002). Therefore, the statutes permit
appellant’s 2003 license revocation to be used to enhance his current DWI
Despite appellant’s acknowledgment
that he failed to contest the license revocation and, therefore, it is valid,
appellant argues that he was not able to contest the revocation because he did
not have money to hire an attorney or pay the filing fee. A defendant may collaterally attack a prior
conviction on constitutional grounds in a subsequent proceeding when the prior
conviction is used for enhancement purposes.
State v. Nordstrom, 331 N.W.2d
901, 904 (Minn.
1983). But appellant’s inability to
obtain counsel or pay the filing fee is not a violation of his constitutional
rights. See State v. Dumas, 587 N.W.2d 299, 302-03 (Minn. App. 1998)
(holding a prior conviction may be used if it was obtained without a
constitutional violation), review denied
(Minn. Feb. 24, 1999). No Sixth
Amendment right to counsel attaches to the implied-consent proceedings, which
are civil in nature. See Maietta v. Comm’r of Pub. Safety,
663 N.W.2d 595, 600 (Minn. App. 2003) (barring ineffective-assistance-of-counsel
claims in implied-consent hearings).
Therefore, appellant’s inability to obtain counsel and pay the filing
fee did not violate his constitutional rights.
Appellant also argues that the 2003
license revocation should not be used for enhancement purposes because the criminal
charge was dismissed for violating appellant’s Fourth Amendment rights. 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. Appellant argues that this case is similar to
State v. Mellett, 642 N.W.2d 779 (Minn. App. 2002), review
July 16, 2002). In Mellett, the defendant claimed that her prior license revocations
could not be used to enhance her current charge because she was not given a
full opportunity to consult with an attorney on the license revocations. Mellett,
642 N.W.2d at 789. This case is
distinguishable from Mellett because
appellant was not denied the right to counsel on the license revocation. Further, even if Mellett were controlling, appellant has failed to produce enough
evidence to shift the burden to the state to show that the revocation was
at 789/90. Minn. Stat. § 169A.53, subd.
2 (2004) states, “[w]ithin 30 days following receipt of a notice and order of
revocation or disqualification pursuant to section 169A.52 (revocation of
license for test failure or refusal), a person may petition the court for
review.” Appellant did not file a
petition for judicial review of his license revocation within the 30 days
following the revocation. Further, while
appellant is not asserting that because his criminal case was dismissed his
license revocation should also be dismissed, he has failed to raise a specific
constitutional violation regarding the license revocation. Because the record does not indicate that
appellant’s 2003 license revocation was unconstitutional, appellant has not met
his burden. Accordingly, the 2003
license revocation was properly used to enhance appellant’s current DWI