This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
David Martin Ockey,
Filed July 25, 2006
Hennepin County District Court
File No. 04069456
Jerry Strauss, 250 Second Avenue South, Suite 110, Minneapolis, MN 55401 (for appellant)
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Jennifer M. Inz, Assistant Eden Prairie City Attorney, Gregerson, Rosow, Johnson & Nilan, Ltd., 1600 Park Building, 650 Third Avenue South, Minneapolis, MN 55402-4337 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Ross, Judge.
Appellant challenges the district court’s denial of his motion to dismiss a criminal complaint charging him with four offenses arising from an accident that occurred when he was driving while impaired by alcohol. Appellant claims that the implied-consent advisory that the police officer read to him violated his right to due process because it failed to inform him that refusal to submit to chemical testing for alcohol could result in enhanced criminal penalties. We affirm.
the evening of October 17, 2004, appellant David Ockey drove into the rear end of
a parked vehicle in Eden Prairie. After
Ockey moved to dismiss the charges, arguing that his right to due process had been violated because the implied-consent advisory fails to inform a driver that refusal to submit to testing could result in a more severe criminal charge than failing the test. Shortly thereafter, the Minnesota Supreme Court issued Fedziuk v. Comm’r of Pub. Safety,696 N.W.2d 340 (Minn. 2005), which held that a 2003 amendment to the implied-consent statute violated the right to due process because it failed to include timeliness provisions on judicial review of license revocations. In response to Fedziuk, Ockey sought rescission of his license revocation and dismissal of the test-refusal charges.
The district court
denied Ockey’s motion to dismiss, concluding that
Ockey subsequently agreed to submit the case for a bench trial on a stipulated record that included the criminal complaint and police reports. The district court found Ockey guilty of the charged offenses. This appeal followed.
challenges the district court’s denial of the motion to dismiss. Whether an implied-consent advisory read to a
driver is constitutional under the Due Process Clause is subject to de novo
review. State v. Myers, 711 N.W.2d 113, 115 (
main contention is that the implied-consent advisory is unconstitutional
because it failed to advise him that refusal to submit to testing could result
in harsher penalties than taking the test.
This issue was recently addressed in an opinion issued by this court during
the pendency of this appeal. See Myers, 711 N.W.2d at 116-19. Myers
holds that a due-process violation does not occur when a police officer reads a
driver the implied-consent advisory but fails to inform the driver that refusal
to submit to chemical testing is a gross misdemeanor that may result in harsher
penalties than test failure.
In addition to Myers, other, albeit less direct,
authority exists in support of our conclusion that the implied-consent statute
is constitutional. When the Minnesota
Supreme Court has considered the implied-consent statute in other cases
involving claimed violations of procedural due process, it has upheld the
constitutionality of the statute. See Fedziuk v. Comm’r of Pub. Safety, 696
N.W.2d 340, 342 (Minn. 2005) (upholding constitutionality of implied-consent
statute except as to provision that eliminated requirement to hold a hearing
within 60 days after filing petition for judicial review of prehearing license
revocation); Hamilton v. Comm’r of Pub.
Safety,600 N.W.2d 720, 724 (
Ockey cites Fedziuk as support for his due-process claim. But Fedziuk
is inapposite here. In Fedziuk,the supreme court ruled that a 2003 amendment to the implied-consent
statute violated due process by removing a requirement that a petition for
judicial review of a license revocation be heard within 60 days after filing
the petition. 696 N.W.2d at 345-46. Ockey appears to argue that the supreme court’s
determination that this portion of the implied-consent statute is unconstitutional
renders the entire implied-consent statute unconstitutional. The Fedziuk
court, however, struck down only the 2003 amendment, holding that “only the
latest amendment is severed and any previous version found constitutional
remains in full force and effect.”
Accordingly, the district court properly denied the motion to dismiss.
 We heard oral arguments in this appeal less than two weeks after the decision in Myers was issued. Thus, the parties did not address Myers in their submissions.
Three unpublished opinions recently issued by this court also follow the
holding of Myers: State v. Norgaard, No. A06-56 (