This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





David Martin Ockey,




Filed July 25, 2006

Wright, Judge


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.

U N P U B L I S H E D   O P I N I O N


            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.


            On the evening of October 17, 2004, appellant David Ockey drove into the rear end of a parked vehicle in Eden Prairie.  After the accident, Eden Prairie police noticed that appellant smelled strongly of alcohol, was unsteady on his feet, and slurred his speech.  Ockey admitted that he had been consuming alcohol, and he failed field sobriety tests and a preliminary breath test.  After police read Ockey the implied-consent advisory and he consulted with an attorney, Ockey refused to consent to testing.  Ockey later was charged with gross-misdemeanor test refusal, a violation of Minn. Stat. § 169A.52 (2004); gross-misdemeanor driving while impaired (DWI), a violation of Minn. Stat. § 169A.20, subd. 1(1) (2004); misdemeanor driving in violation of a restricted license, a violation of Minn. Stat. § 171.09 (2004); and misdemeanor careless driving, a violation of Minn. Stat. § 169.13 (2004). 

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 Minnesota’s current implied-consent advisory does not violate due process by failing to inform a driver that refusal to submit to testing may result in a harsher penalty than failing the test.  The district court declined to analyze whether Fedziuk should apply in this case, stating that it is “an issue which is not currently before the [c]ourt.  Fedziuk does not address the constitutionality of the implied consent advisory, and is therefore inapplicable to the present motion.”

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. 


            Ockey 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 (Minn. App. 2006), review granted (Minn. May 16, 2006).  The United States and Minnesota constitutions proscribe the deprivation of “life, liberty or property without due process of law.”  U.S. Const. amend. XIV; Minn. Const. art. I, § 7.  Due-process protections vary, however, depending on the particular rights at issue.  Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972).  Under both federal and Minnesota law, failure to advise a driver of every possible consequence of refusing to submit to chemical testing for alcohol or other controlled substances is not fundamentally unfair.  South Dakota v. Neville,459 U.S. 553, 564-66, 103 S. Ct. 916, 923-24 (1983); Davis v. Comm’r of Pub. Safety,517 N.W.2d 901, 904 (Minn. 1994).

            Ockey’s 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.[1]  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.  Id. at 119.  The Myers court concluded that the current implied-consent advisory does “not actively mislead [the driver] as to his legal obligations or implicitly assure [the driver] that the penalties for test refusal are less serious than the penalties for test failure[.]”  Id.[2]

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 (Minn. 1999) (upholding constitutionality of implied-consent statute’s provision that first-time offender who has alcohol concentration of .20 or more must wait 30 days for issuance of limited driver’s license); Davis,517 N.W.2d at 904 (upholding constitutionality of implied-consent statute’s provision prohibiting offender from obtaining hardship driver’s license until 15 days after revocation); Heddan v. Dirkswager,336 N.W.2d 54, 58-63 (Minn. 1983) (upholding constitutionality of revocation provisions of implied-consent statute).

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.” 349 (footnote omitted).  Because the amendment pertaining to the timeliness of a review hearing is not at issue here and Fedziuk otherwise upholds the constitutionality of the implied-consent statute, Fedziuk does not support Ockey’s claim.

Accordingly, the district court properly denied the motion to dismiss.


[1] 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.

[2] Three unpublished opinions recently issued by this court also follow the holding of Myers: State v. Norgaard, No. A06-56 (Minn. App. May 30, 2006) pet. for review filed (Minn. June 7, 2006); State v. Furlong, No. A05-2029 (Minn. App. May 16, 2006) pet. for review filed (Minn. June 21, 2006); State v. Melde, No. A05-1553 (Minn. App. Mar. 14, 2006), review granted (Minn. May 16, 2006).  And on May 16, 2006, the Minnesota Supreme Court granted a petition for further review of Myers.