This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Jessica Ann Wiltgen,




Filed ­­­May 16, 2006

Reversed and remanded

Harten, Judge*


Hennepin County District Court

File No. 5058782


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Steven M. Tallen, 4560 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)


Richard F. Koch, Andrew S. Garvis, Koch & Gerharter, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for respondent)


            Considered and decided by Klaphake, Presiding Judge; Stoneburner, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant State of Minnesota challenges an order of the district court granting respondent Jessica Ann Wiltgen’s motion to reduce/dismiss second-degree driving while impaired (DWI) charges based on its determination that a stayed driver’s license revocation could not be used to enhance the DWI charges.  Respondent asserts that this appeal should be dismissed for lack of a critical impact on the prosecution.  Because the stay of revocation did not negate the use of the revocation for enhancement purposes, we reverse and remand. 


On 13 August 2005, respondent Jessica Ann Wiltgen was arrested and charged with third-degree DWI.  After Wiltgen failed an Intoxilyzer test, her driver’s license was summarily revoked by a notice and order of driver’s license revocation given to her by the arresting officer.

            On 27 August, Wiltgen filed a timely petition to review[1] the 13 August revocation.  On 30 August, Wiltgen sought and obtained a district court order that stayed her “implied consent revocation . . . pursuant to Minn. Stat. § 169A.53, subd. 2(c) (2004)[,] pending resolution of the criminal and implied consent hearings.”  The record is unclear whether an implied consent hearing was scheduled.  On 13 September 2005, while the 30 August stay was in effect, Wiltgen was again arrested for DWI.  She submitted to an Intoxilyzer test that revealed a blood alcohol concentration reading of .13, which exceeded the legal limit of .08.  Later that day, Wiltgen was served with a new notice and order of revocation of her driver’s license.

Later that month, based on the 13 September incident, Wiltgen was charged with, among other things, two counts of second-degree DWI under Minn. Stat. § 169A.25 (2004), which requires two prior aggravating factors in addition to the DWI offense.  The two aggravating factors cited in the complaint were license revocations in 2002 and on 20 August 2005, which served to enhance the 13 September charges to second-degree DWI.

On 28 October 2005, Wiltgen moved the district court to reduce the second-degree DWI charges that resulted from enhancement by the August 2005 license revocation that she had challenged but for which no implied consent hearing had been held.  Once again, the record is unclear whether an implied consent hearing had been scheduled.

On 10 January 2006, the district court granted Wiltgen’s motion to reduce the second-degree DWI charges,[2] concluding that charges could not be enhanced based on a revocation subject to an unresolved timely challenge when the district court stay was in effect.  The state appealed.


1.         Critical Impact.

            At the threshold, Wiltgen contends that the district court’s rejection of the second-degree DWI charges against her does not have a “critical impact” on the prosecution, and, therefore, the state is not entitled to appeal.  “Critical impact is a threshold showing that must be made in order for an appellate court to have jurisdiction.”  State v. Baxter, 686 N.W.2d 846, 850 (Minn. App. 2004).  In reviewing a prosecution appeal from a pretrial order dismissing a criminal charge, this court will reverse the determination of the district court only if the state demonstrates clearly and unequivocally that the district court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.  State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991).  Here, the district court’s rejection of the second-degree charges is equivalent to a dismissal, and we treat it as such.

Wiltgen argues that although the district court dismissed the second-degree DWI charges, the state has not shown critical impact because she remains subject to prosecution for potential third-degree-DWI charges.  Both degrees of DWI are gross misdemeanors, which provide for sentences of up to one year in jail and/or a $3,000 fine.  Wiltgen contends that the dismissal of the second-degree charge has no critical impact.

We have held that the reduction in the degree of a criminal offense has a “critical impact,” reasoning that “[u]nder general principles of criminal law, . . . criminal acts are deemed comparable based on the severity of the criminal conduct, not on the duration of their punishment.”  State v. Hanson, 583 N.W.2d 4, 6 (Minn. App. 1998) (district court’s dismissal of the fifth-degree felony-assault charge has critical impact on the outcome of the prosecution), review denied (Minn. Oct. 29, 1998) (citation omitted).  Second- and third-degree DWI, albeit both gross misdemeanors, Minn. Stat. §§ 169A.25, subd. 2 (second-degree DWI), 169.26, subd. 2 (third-degree DWI) (2004), provide for different mandatory minimum sentences.  See Minn. Stat. § 169A.275 (2004) (defining mandatory penalties according to the number of DWI offenses).  Enhancement to a second DWI offense within ten years (to which third-degree DWI applies) mandates 30 days’ minimum incarceration, while enhancement to a third DWI offense (to which second-degree DWI applies) mandates 90 days’ minimum incarceration.  Id., subds. 1 (second DWI offense), 2 (third DWI offense).  Thus, based on severity of criminal conduct, Wiltgen’s mandatory minimum sentence would differ according to the degree of the charge.  We conclude that the state has shown a critical impact and is entitled to appeal. 

2.         Dismissal of Second-Degree DWI Charges.

The state contends that the district court erred by dismissing the two second-degree DWI charges because Wiltgen’s challenge to the August license revocation had not yet been heard.  Wiltgen argues that use of her August 2005 revocation as an aggravating factor to enhance her September 2005 offense when she had not yet had an implied consent hearing or a criminal conviction on the August 2005 charges violated due process of law.  

“A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue. The application of law to undisputed facts is a question of law, which this court reviews de novo.”  State v. Goharbawang, 705 N.W.2d 198, 201 (Minn. App. 2005), review denied (Minn. Jan. 17, 2006) (citation omitted).  “Statutory construction is a question of law, which this court reviews de novo.  In a constitutional challenge, the interpretation of a statute is a question of law subject to de novo review.”  State v. Coleman, 661 N.W.2d 296, 298 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003) (citation omitted).

            Both the United States and Minnesota Constitutions provide that a person shall not be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7.  A license to drive is an important property interest and is, consequently, afforded due process protection.  Kleven v. Comm’r of Pub. Safety, 399 N.W.2d 153, 156 (Minn. App. 1987).

A person whose license is revoked may petition for judicial review of the revocation of driving privileges.  Minn. Stat. § 169A.53, subd. 2 (2004).  The availability of judicial review is critical to afford due process of law when a prior revocation of driving privileges is used to enhance a DWI charge.  Goharbawang, 705 N.W.2d at 202; Coleman, 661 N.W.2d at 300-301.  

An “aggravating factor” includes: “a qualified prior impaired driving incident within the ten years immediately preceding the current offense[.]”  Minn. Stat. § 169A.03, subd. 3(1) (2004).  “Qualified prior impaired driving incident[s]” include prior driver’s license revocations.  Minn. Stat. § 169A.03, subds. 21(a)(1), 22 (2004).  A revocation becomes effective at the time a peace officer notifies the person of the intention to revoke or disqualify, or both, and of revocation or disqualification.  Goharbawang, 705 N.W.2d at 201.

We have concluded that the “availability of [judicial] review, although unexercised, satisfies the due-process requirement of meaningful review.”  Goharbawang, 705 N.W.2d at 202; see also Coleman, 661 N.W.2d at 301.  When such review is available, the use of a prior revocation of driving privileges to enhance a subsequent DWI charge does not deprive a person of due process.  Coleman, 661 N.W.2d at 301.  The defendant in Goharbawang had not sought judicial review of his revocations and his time to seek such review had not expired at the time of his subsequent DWI incident.  705 N.W.2dat 202.  We emphasized that “the availability of that review, although unexercised, satisfies the due-process requirement of meaningful review.”  Id. at 202. 

In its 6 January 2006 order granting Wiltgen’s motion to disallow the enhancement, the district court concluded, in reference to Goharbawang, that

[i]f a charge can be enhanced for failure to timely challenge the revocation, then a charge cannot be enhanced where the defendant made a timely challenge to the revocation and the stay is still in force.


The state contends that the availability to Wiltgen of judicial review, as evidenced by her petition for review, satisfied due process and that the enhanced second-degree DWI charges were therefore lawful.  Wiltgen counters that because no hearing was made available to her, she would be denied due process if the enhanced second-degree DWI charges were not dismissed.

The district court based its dismissal analysis on logic:  Failing to challenge allows enhancement; therefore, making a challenge nullifies enhancement.  But that proposition was stated without considering the district court’s 30 August stay of the implied consent revocation “pending resolution of the criminal and implied consent hearings.”

Minn. Stat. § 169A.53, subd. 3, mandates a review hearing within 60 days after the filing of a petition; and Minn. Stat. § 169A.53, subd. 2(c), allows a reviewing court to order a stay of the balance of the revocation if a hearing has not been conducted within that 60 days.  Here, the stay was ordered early within the 60-day period.  Obviously, the 60-day period under section 169A.53, subd. 2(c), was not triggered.  The record is silent as to the activities of the parties between the time the stay was ordered (30 August) and the time the motion for dismissal was granted (10 January 2006).  The record reflects no scheduling of an implied consent hearing; and there is no record of any attempt to avoid a violation of the hearing-within-60-days requirement.  It becomes apparent that the district court’s 30 August stay, and not the procedural implied consent laws, controlled the course of the instant litigation.  Notwithstanding her petition under the implied consent law, Wiltgen affirmatively procured a collateral stay and took no further action until months later when she sought and obtained a dismissal of charges.  These circumstances implicate Goharbawang, in which the accused did not file an implied consent review petition.  Here, the petition was filed, but never advanced to the hearing stage.  In this context, we see little difference between no petition and a stayed petition.

We conclude that Wiltgen made no showing that judicial review was unavailable to her.  Accordingly, we reverse the district court order dismissing the charges and remand to
the district court with instructions to reinstate the original second-degree DWI charges as set forth in the complaint.

Reversed and remanded.

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

[1] Minn. Stat. § 169A.53, subd. 2(a) (2004), allows a person 30 days to petition for review of a license revocation based on failure to pass a sobriety test.

[2] The district court order granted Wiltgen’s motion “to reduce the enhanced charge.”  The second part of the order referred to “enhance charges” (plural).  There were two second-degree charges in the complaint.  It is assumed that referral to a single charge was inadvertent.