This opinion will be unpublished and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
Scot Michael Brinkman,
Commissioner of Public Safety,
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
Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*
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 After a blood test showed an alcohol concentration of .10 or more, his driver’s license was revoked for 90 days, effective January 1, 2005, under the implied-consent law.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.
v. Comm’r of Pub. Safety, 696 N.W.2d 340 (
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of his driver’s license should be rescinded because it occurred under a statute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 (
We recently rejected a similar
argument in Bendorf v. Comm’r of Pub.
Safety, 712 N.W.2d 221 (
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 (
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.”
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.
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 (
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.
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
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.