This opinion will be unpublished and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
Jessica Ann Wiltgen,
Filed May 16, 2006
Reversed and remanded
Hennepin County District Court
File No. 5058782
Mike Hatch, Attorney General, 1800
Steven M. Tallen, 4560 IDS Center,
Richard F. Koch, Andrew S. Garvis, Koch & Gerharter,
Considered and decided by Klaphake, Presiding Judge; Stoneburner, Judge; and Harten, Judge.
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 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, 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.
D E C I S I O N
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,
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.
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 (
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
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.”
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.
 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.
 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.