This opinion will be unpublished and

may not be cited except as provided by

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






Scot Michael Brinkman, petitioner,


Commissioner of Public Safety,


Filed June 6, 2006


Stoneburner, Judge


Redwood County District Court

File No. 64-C205000019


Barry L. Hogen, Suite 155, South Plaza Building, 1433 Utica Avenue South, St. Louis Park, MN 55416 (for appellant)


Mike Hatch, Attorney General, Peter D. Magnuson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*

U N P U B L I S H E D  O P I N I O N




            Appellant asserts that the prehearing license-revocation process violated his due-process rights and that the district court erred in sustaining the revocation of his driver’s license under the implied-consent law.  Because the district court properly applied the law, we affirm.



            Appellant Scot Michael Brinkman was arrested for DWI on November 20, 2004.  After a blood test showed an alcohol concentration of .10 or more, his driver’s license was revoked for 90 days, effective January 1, 2005, under the implied-consent law.  Brinkman petitioned for judicial review on January 11, 2005, and the matter was set for hearing on February 11, 2005.  The hearing was continued at Brinkman’s request, and rescheduled without objection from Brinkman to April 22, 2005.

            Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005), was released on May 19, 2005.  Fedziuk held that the 2003 legislative amendments to the implied-consent statute violated due-process guarantees because the amendments removed a requirement for prompt post-revocation judicial review.  Id. at 347-48.  Fedziuk further held that the proper remedy was to sever only the 2003 amendments and revive the version of the statute that existed immediately before the amendments. 349. 

            In Brinkman’s case, the parties’ memoranda were filed with the district court after Fedziuk was released.  The district court issued its decision holding that Brinkman’s due-process rights were not violated and affirming the revocation of Brinkman’s driver’s license.  This appeal followed.



            Brinkman argues that the revocation of his driver’s license should be rescinded because it occurred under a statute that the supreme court found violated due process.    Because Brinkman raises only legal issues in his appeal, review is de novo.  Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992) (stating that application of law to stipulated facts is a question of law, which this court reviews de novo).

            We recently rejected a similar argument in Bendorf v. Comm’r of Pub. Safety, 712 N.W.2d 221 (Minn. App. 2006), pet. for review filed (Minn. May 16, 2006).  Bendorf, like Brinkman, petitioned for judicial review of his license revocation while Fedziuk was pending, and he similarly argued that he was entitled to rescission of the revocation of his driver’s license because the judicial-review hearing that he requested was scheduled under a statutory provision declared unconstitutional in FedziukBendorf,712N.W.2d at 223.  We concluded that the remedy for failing to provide a judicial-review hearing within 60 days is not rescission of the revocation but instead a stay of revocation under Minn. Stat. § 169A.53, subd. 2(c).  Id. at 224; see also Szczech v. Comm’r of Pub. Safety, 343 N.W.2d 305, 309 (Minn. App. 1984) (referring to this remedy).

            Although Bendorf applied the holding of Fedziuk retroactively, the opinion does not explicitly address the issue of retroactive application.  Brinkman argues that Fedziuk should not be applied retroactively.  But it is the general rule “that, absent special circumstances or specific pronouncements by the overruling court that its decision is to be applied prospectively only, the decision is to be given retroactive effect.”   Hoff v. Kempton, 317 N.W.2d 361, 363 (Minn. 1982).  The supreme court did not state that Fedziuk was to apply only prospectively.  Therefore, unless special circumstances exist, it should be applied retroactively.  Hoff, 317 N.W.2d at 363.  A three-part test applies to determine if special circumstances exist.  Id.

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, * * *or by deciding an issue of first impression whose resolution was not clearly foreshadowed * * *.  Second, it has been stressed that “we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” * * * Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is amply basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”


Id. (alterations and omissions in original) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S. Ct. 349, 355 (1971)).

            Brinkman did not brief the issue of the general rule as to retroactive application or its exceptions, but the commissioner did, arguing that there is no showing that any of the special circumstances exists.  The commissioner asserts that in Fedziuk, the supreme court merely reaffirmed a well-established principle that to pass constitutional muster, due process requires a statutory prehearing-deprivation scheme to provide some form of prompt judicial relief.  See Fedziuk, 696 N.W.2d at 347-48.  Because the 2003 amendments to the implied-consent law removed any guidance for the district courts when scheduling an implied-consent hearing during prehearing revocation, the amended statute lacked “a critical due process element” and was unconstitutional.   Id. at 349.

            The commissioner argued that even if Fedziuk established a new principle of law, neither of the other two special circumstances warranting prospective-only application is present.  Going back to the previous statute will not retard the operation of any new principle arguably enunciated in Fedziuk and would not be inequitable because the 2002 prehearing-revocation provisions provided sufficient due-process protection.  See Heddan v. Dirkswager, 336 N.W.2d 54, 63 (Minn. 1983).

            Brinkman supports his argument that Fedziuk applies only prospectively by attempting to distinguish his case from State v. Neely, 604 N.W.2d 120 (Minn. App. 2000).  Neely dealt with application of the supreme court’s March 11, 1999 decision in Baker v. State, 590 N.W.2d 636, 640 (Minn. 1999), declaring unconstitutional an amendment to the pertinent gross-misdemeanor DWI law.  Neely, 604 N.W.2d at 122.  Neely was charged on April 7, 1999, under the revived statute, and on May 25, 1999, an entirely new amendment was passed by the legislature and became immediately effective.  Id.  This court rejected the district court’s determination that there was no statute applicable to Neely on April 7, 1999, and held that Neely was lawfully charged under the predecessor statute that was revived by the decision in BakerNeely, 604 N.W.2d at 123-25.  Brinkman argues that because Neely was charged after the supreme court had declared amendments to the law unconstitutional and revived the prior version of the statute, whereas, his license revocation occurred before amendments to the implied-consent law were declared unconstitutional and the prior statute revived, therefore, in his case, the revived statute should not apply.  But as the commissioner accurately points out, the supreme court in Baker made a specific pronouncement that Baker was to apply prospectively “to currently pending cases brought under the enhanced gross misdemeanor statutes in which the constitutionality of the statutes has been challenged.”  590 N.W.2d at 640.  By contrast, there is no specific pronouncement of prospective application in Fedziuk, so the general rule of retroactive application applies, and distinguishing his situation from Neely’s does not support Brinkman’s position.  We also find without merit Brinkman’s attempt to distinguish his situation from retroactive application of the holding in Bongard v. Bongard, 342 N.W.2d 156 (Minn. App. 1983), and his argument that drivers who raised the due-process issue prior to the issuance of Fedziuk should benefit from the decision by having the revocations of their licenses rescinded.    

            The supreme court in Fedziuk noted that when a legislative action is found unconstitutional, “it is not a law and it is as inoperative as if it had never been enacted.”  696 N.W.2d at 349.  The supreme court also held that if a law is found unconstitutional, “only the latest amendment is severed and any previous version found constitutional remains in full force and effect.”  Id.(footnote omitted).  Consequently, under Fedziuk, we agree with the commissioner that the 2002 law is the law that applies to Brinkman because that law remained in full force and effect as if the 2003 amendments had never been enacted.

            The district court found that because Brinkman’s hearing was initially scheduled for 31 days after his petition for judicial review was filed and was continued at Brinkman’s request, his due-process rights were not violated.  Brinkman argues that whether or not a hearing was scheduled or held within 60 days after prehearing revocation is immaterial to whether there was a Fedziuk due-process violation because the unconstitutionality of the 2003 amendments was the failure to require a prompt hearing.  Brinkman’s case is not evaluated under the 2003 amendments but under the previous version of the statute that was revived in Fedziuk.  And as we held in Bendorf, the remedy for failing to hold the hearing within 60 days is to seek a stay of the balance of the revocation under Minn. Stat. § 169A.53, subd. 2(c), not rescission of the revocation.  712 N.W.2d at 224. 

            Additionally, we agree with the district court’s determination that a motorist cannot claim that his right to have a hearing within 60 days was denied when it is the motorist’s action that takes the hearing out of the 60-day statutory time frame.   See In re May, 477 N.W.2d 913, 915 (Minn. App. 1991) (upholding denial of motion to dismiss commitment proceeding because commitment hearing had not been held within 44-day statutory time frame, when patient failed to appear at timely scheduled hearing).  The record does not contain any evidence that Brinkman objected to the new hearing date or that Brinkman sought a stay of the balance of the license revocation under Minn. Stat.     § 169A.53, subd. 2(c); therefore the district court did not err in concluding that Brinkman’s due-process rights were not violated.


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