This opinion will be unpublished and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
John Michael Malinak,
Filed June 13, 2006
Ramsey County District Court
File No. K4-04-600769
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Kari Quinn, Vadnais Heights Prosecutor, Mark F. Gaughan, Assistant Prosecutor, Jensen, Bell, Converse & Erickson, P.A., 1500 Wells Fargo Place, 30 East Seventh Street, St. Paul, Minnesota 55101 (for respondent)
Mary M. McMahon, McMahon &
Associates Criminal Defense, Ltd.,
Considered and decided by Hudson, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions of second-degree test refusal and third-degree driving while impaired (DWI), arguing that the use of an earlier license revocation as an enhancement factor violated his right to due process. Appellant argues that the revocation could not be used to enhance because appellant had sought judicial review but had not received it and was not convicted of the offense until after the driving incident leading to the current charges. We affirm.
Appellant argues that
he was deprived of due process by the use of his March 19 revocation as an
aggravating factor under Minn. Stat. § 169A.25 to enhance the June 18 charges
when he had not yet had an implied-consent hearing or a criminal conviction on
the earlier offense. Appellate courts
independently review legal questions of constitutionality. In re
Blilie, 494 N.W.2d 877, 881 (
A driver’s license is
a property interest that is subject to due process protection. Kleven
v. Comm’r of Pub. Safety, 399 N.W.2d 153, 156 (
A person whose license
is revoked may request administrative review or petition for judicial review
under Minn. Stat. § 169A.53, subds. 1, 2 (2002). Because judicial review is available, the use
of a prior revocation of driving privileges to enhance a DWI charge does not
deprive a person of due process rights. State v. Goharbawang, 705 N.W.2d 198,
202–03 (Minn. App. 2005), review denied (
In Goharbawang, this court held that a
defendant was not deprived of his due process rights when the state used three
prior license revocations as a statutory aggravating factor to enhance
subsequent DWI charges. Goharbawang, 705 N.W.2d at 202–03. The license revocations occurred within a
week of each other and within ten days of the later DWI and implied-consent
Here, as in Goharbawang, appellant’s qualifying revocation occurred only a short time before the incident giving rise to the current charges. See Goharbawang, 705 N.W.2d at 202. The revocation became effective at the time the officer notified appellant of the intention to revoke. Minn. Stat. § 169A.52, subd. 6 (2002); see also Minn. Stat. § 169A.53 subd. 2(c) (2002) (authorizing court, if hearing has not been held within 60 days after filing of petition for judicial review, to “order a stay of the balance of the revocation”) (emphasis added). And under Goharbawang, the fact that the time for judicial review on a prior revocation has not yet expired does not preclude the use of that revocation as an aggravating factor. As the court in Goharbawang noted, a short time between revocations should not affect the availability of a prior revocation for enhancement. Goharbawang,705 N.W.2d at 202–03. Therefore, we conclude that the district court properly denied the motion to dismiss and that appellant’s due process rights were not violated by enhancing his offense with the revocation, even though an implied-consent hearing had not been held.
We agree with appellant that his June 18 charges could not be enhanced on the basis of a prior impaired driving conviction because he did not yet have a criminal conviction regarding the March 19 offense when the charges were enhanced. Appellant pleaded guilty to the March 19 charges in October 2004, after the enhancement of the charges from the June 18 incident. But enhancement may be based either on a “prior impaired driving conviction” or a “prior impaired driving-related loss of license.” Minn. Stat. § 169A.03, subd. 22. Because appellant had a prior impaired driving-related loss of license, the charges were properly enhanced, and we affirm.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, §10.