This opinion will be unpublished and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

A05-2190

 

Richard Lee Mees, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

Filed September 19, 2006

Affirmed

Wright, Judge

 

Blue Earth County District Court

File No. CV-05-0641

 

 

Calvin P. Johnson, Melanie A. Boes, 427 South Broad Street, P.O. Box 3665, Mankato, MN  56002 (for appellant)

 

Mike Hatch, Attorney General, Jeffrey F. Lebowski, Jeffrey S. Bilcik, Kyle R. Gustafson, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondent)

 

 

            Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district court’s decision sustaining the decision of the Commissioner of Public Safety cancelling appellant’s driver’s license.  Appellant argues that (1) the district court abused its discretion by denying appellant’s request for a continuance to obtain substitute counsel; (2) the district court committed evidentiary errors; (3) appellant was denied the right to effective assistance of counsel; (4) appellant was denied the right to a jury trial; and (5) the driver’s-license-reinstatement procedure violates due process of law.  We affirm. 

FACTS

 

At approximately 3:00 a.m. on October 10, 2004, Eagle Lake Police Department officer John Kopp observed a white pickup truck leaving an alley near the Eagle’s Nest bar.  Officer Kopp observed the vehicle roll through two stop signs without stopping.  When Officer Kopp attempted to stop the vehicle, the driver accelerated to an estimated speed of 90 miles per hour and drove off the road into a bean field.  Officer Kopp observed an unidentified male exit the vehicle and flee on foot.  The vehicle belonged to appellant Richard Mees.

Officer Kopp interviewed Laurel Viera and Kimberly Goettl, the cook and the bartender working at the Eagle’s Nest bar on the night of October 9.  Goettl reported that she observed Mees drink four or five beers that evening. 

Mees has an extensive record of alcohol-related driving incidents.  In 1992, Mees’s driver’s license was cancelled as inimical to public safety.  After completing chemical-dependency rehabilitation, Mees’s driver’s license was reinstated in 1993 on the condition that he abstain completely from the use of alcohol or controlled substances.  Mees’s driver’s license was cancelled as inimical to public safety again in 1995.  Rehabilitation and reinstatement of his driving privileges followed in 1998.  At the time of the instant driving offense, Mees’s driving privileges had been reinstated again on the condition of total abstinence from alcohol.

Officer Kopp reported the driving offense to respondent Commissioner of Public Safety (commissioner).  In response, the commissioner cancelled Mees’s driver’s license effective December 17, 2004.  Mees filed a petition for judicial review under Minn. Stat. § 171.19 (2004). 

On August 26, 2005, the Blue Earth County District Court held a hearing on the petition.  At the start of the hearing, Mees moved for a continuance to obtain a different attorney because of a disagreement about trial strategy.  Mees advised the district court that the disagreement came to light the night before the hearing, resulting in the last-minute request.  Citing the length of time that the hearing had been scheduled and the lateness of the request, the district court denied the motion.

Mees’s counsel represented him at the hearing during which Officer Kopp, Viera, and Goettl testified.  The district court denied Mees’s petition and sustained the commissioner’s decision to cancel Mees’s driver’s license.  This appeal followed. 

D E C I S I O N

 

Mees contends that the district court erred by denying his petition to reinstate his driver’s license.  In a reinstatement proceeding, the petitioner has the burden of proving entitlement to reinstatement.  Gardner v. Comm’r of Pub. Safety, 423 N.W.2d 110, 113 (Minn. App. 1988).  “The decision of the agency will not be reversed unless the decision is fraudulent, arbitrary, unreasonable, or not within the agency’s jurisdiction or powers.”  Id.  Here, the burden is on Mees to show that the commissioner acted unreasonably by cancelling his driver’s license.  Thorson v. Comm’r of Pub. Safety, 519 N.W.2d 490, 493 (Minn. App. 1994).     

I.

Mees first argues that the district court erred by denying his motion for a continuance to obtain substitute counsel.  The district court’s decision to grant or deny a continuance rests within the discretion of the district court.  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).  Its ruling will not be disturbed absent a clear abuse of discretion.  Id.

            At the commencement of the hearing, Mees moved for a continuance.  Mees’s attorney told the district court that Mees wanted to “pursue a strategy” that the attorney opposed.  When the district court questioned Mees about the reason for granting the continuance, Mees stated: “There’s some things we don’t agree upon and I would like to talk to another attorney.”  Mees described the disagreements as “things that . . . could jeopardize my case.”  Neither Mees nor his attorney gave the district court any details regarding the disagreement.

            The district court advised Mees that he had an “absolute right” to discharge his attorney.  But after noting that the hearing had been scheduled for two and one-half months, the district court indicated that it was not inclined to grant the continuance.  Mees responded that, although he wanted different counsel, he did not want to represent himself.  After a recess, Mees’s counsel stated:

I talked to my client and I – I think the record should reflect that the – the strategic issue to which Mr. Mees was referring became apparent last night when we were talking about this case and that’s why it’s taken so long.

 

            So, it is his preference that this be continued.  If the Court doesn’t want to do that, Mr. Mees wants me here to be with him to represent him and we’ll just have to see what happens.

 

The district court denied the motion based on the length of time the hearing had been pending, the last-minute nature of the request, and the inconvenience that a continuance would cause the witnesses. 

In support of his contention that denial of a continuance was an abuse of discretion, Mees cites City of Minneapolis v. Price, in which a criminal defendant’s attorney withdrew from representation on the day of the trial because he had not been paid and he had not been able to contact the defendant.  280 Minn. 429, 431, 159 N.W.2d 776, 778 (1968).  Substitute counsel volunteered to represent the defendant if a continuance were granted.  Id.  But the district court denied the motion for a continuance, and the trial proceeded with the defendant pro se.  Id.  The Minnesota Supreme Court held that the denial of the motion for a continuance was reversible error when “the original defense counsel withdraws on short notice.”  Id. at 434, 159 N.W.2d at 780.

The facts of Price are readily distinguishable from those at issue here.  It was Mees who sought to discharge his attorney on the day of a long-scheduled hearing; Mees’s counsel did not withdraw.  Moreover, Mees was represented by legal counsel at the hearing, despite their disagreement about trial strategy.  On these facts, Price does not support Mees’s contention that the district court abused its discretion.

Mees and his attorney had ample time to discuss their strategy, and, if necessary, seek a continuance well in advance of the hearing.    The record demonstrates that the district court acted within its sound discretion when it denied Mees’s motion for a continuance. 

II.

Mees next argues that (1) the district court committed reversible error in certain evidentiary rulings; (2) he received ineffective assistance of counsel; (3) he was denied the right to a jury trial for a driver’s-license-reinstatement proceeding; and (4) he was denied the right to due process of law.  Because Mees did not raise any of these issues in the district court, the district court did not make findings of fact or conclusions of law related to these issues.  We ordinarily will not address matters that were not argued and considered in the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Moreover, the issues Mees raises here are without merit. 

A.

Mees asserts that the district court erred by admitting the testimony of incompetent witnesses, prior inconsistent statements as substantive evidence, and affidavits as substantive evidence.  All of the evidence at issue here was admitted by the district court without objection from Mees.  “Failure to object to the admission of evidence generally operates as a waiver of the right to have the claimed error reviewed on appeal . . . .”  State v. Harris, 713 N.W.2d 844, 848 (Minn. 2006).  

Mees argues that, because Viera and Goettl were incompetent witnesses, their testimony should have been excluded.  “Determining the competency of a witness to testify is within a district court’s sound discretion.”  Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 409 (Minn. 1998).  “Every person of sufficient understanding, including a party, may testify in any action or proceeding, civil or criminal, in court or before any person who has authority to receive evidence . . . .”  Minn. Stat. § 595.02 (2004). 

Mees’s argument that Viera and Goettl were incompetent to testify is based on the use of their earlier statements to police to refresh their recollections.  During the hearing, these statements were used for this purpose by both the commissioner and Mees.  Under rule 612, this is an appropriate use of a witness’s prior statement.  See Minn. R. Evid. 612 (permitting refreshing recollection of witness and providing procedural safeguards when doing so).  That the statements were used for this purpose is insufficient to establish that Viera and Goettl were not competent witnesses or that the prior statements were admitted as substantive evidence.    

To support his assertion that Viera and Goettl were incompetent to testify, Mees cites Minn. Stat. § 595.02, subd. 1(f).  Under this statutory provision, “[p]ersons of unsound mind and persons intoxicated at the time of their production for examination are not competent witnesses if they lack capacity to remember or to relate truthfully facts respecting which they are examined.”  Id.  Because there is no evidence in the record that Viera or Goettl were of unsound mind or intoxicated during the hearing, during the police interview, or on October 9 when they observed Mees drink several alcoholic beverages, Minn. Stat. § 595.02, subd. 1(f), is inapposite.

The district court considered the witnesses’ testimony and concluded that “the testimony given by the two Eagle’s Nest employees was credible, forthright, and appeared to this Court to be without bias.”  Because it is within the district court’s discretion to determine whether a witness is competent to testify and the record is devoid of any evidence that Viera and Goettl were incompetent witnesses, Mees is not entitled to relief on this ground.

Mees also argues that the district court erred in admitting the commissioner’s affidavit attesting to Mees’s driving record.  Both the petitioner and the commissioner may present evidence by affidavit.  Minn. Stat. § 171.19 (2004).  The commissioner’s affidavits are admissible under Minn. R. Evid. 803(8)(c), the public-records exception to the hearsay rule.  Gardner, 423 N.W.2d at 114.  Thus, Mees’s general challenge to the affidavit, without identifying any aspect that renders it inadmissible, fails.   

B.

Without citation of any legal authority, Mees asserts that “[t]he revocation of a driver’s license is the taking of a property or liberty interest, entitling a person to due process, including the effective assistance of counsel, in all proceedings that relate to such a revocation.”  Mees maintains that he was denied the right to effective assistance of counsel because his attorney failed to raise objections that would have resulted in excluding evidence of Mees’s alcohol consumption.  The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defense.”  U.S. Const., amend VI (emphasis added).  The petition for reinstatement of a driver’s license is a civil matter without the right to counsel that is afforded the accused in a criminal proceeding.  Minn. Stat. § 171.19.  Mees’s argument on this ground fails. 

C.

Because his petition was denied without a jury trial or a valid waiver of that right, Mees maintains that he is entitled to have the matter retried before a jury.  “The right to a jury trial must be found either in the Minnesota Constitution or provided specifically by statute.”  Ewert v. City of Winthrop, 278 N.W.2d 545, 550 (Minn. 1979).  A petition for driver’s-license reinstatement “shall be heard by the court without a jury.”  Minn. Stat. § 171.19.  Thus, there is no statutory support for Mees’s argument.

Article I, section 4, of the Minnesota Constitution provides that “[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy.”  The Minnesota Supreme Court has consistently interpreted this provision to ensure that the right to trial by jury as it existed when the constitution was adopted in 1857 is neither enlarged nor diminished.  Ewert, 278 N.W.2d at 550.  The right to petition for reinstatement of a cancelled driver’s license was created by statute well after 1857.  1933 Minn. Laws ch. 352, §§ 13, 14, at 588.  Thus, the Minnesota Constitution does not provide the right to a jury trial for reinstatement of a driver’s license.  Accordingly, Mees’s argument fails.

D.

            Mees also challenges the constitutionality of the prehearing revocation procedure in Minn. Stat. § 171.19.  Evaluating a statute’s constitutionality presents a question of law, which we review de novo.  Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).  In doing so, we presume that Minnesota statutes are constitutional and that the power to declare a statute unconstitutional should be “exercised with extreme caution and only when absolutely necessary.”  Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 308 (Minn. 2000) (quotation omitted).  The party challenging the constitutionality of a statute has the burden of demonstrating beyond a reasonable doubt a violation of the relevant provision of the Minnesota Constitution.  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).

            Mees maintains that permitting a driver’s license to be revoked before a hearing on the matter violates due process of law.  In Lamusga v. Commissioner of Public Safety, we examined whether the prehearing license cancellation of section 171.19 violated procedural due process of law.  536 N.W.2d 644, 646 (Minn. App. 1995), review denied (Minn. Oct. 27, 1995).  In that case, we balanced

(1) the nature and weight of the private interest affected by the official action challenged; (2) the likelihood of erroneous deprivation of the private interest involved as a consequence of the procedures used; and (3) the state interests served by the summary procedures used, as well as the administrative and fiscal burdens that would result from substitute procedures sought.

Id. (quoting Heddan v. Dirkswager, 336 N.W.2d 54, 59-60 (Minn. 1983)).  After an examination of each of these factors, we concluded that “[a]llowing a driver to retain the license pending a hearing would provide additional opportunities for the driver who already demonstrated an inability to comply with the abstinence requirement to offend once again.”  Id. at 648.  Accordingly, we held that the prehearing revocation procedures of Minn. Stat. § 171.19 do not violate procedural due process.  Id.  Because Lamusga governs our analysis of the due-process challenge raised here,[1] Mees’s argument is without merit.

Affirmed.



[1] We note that Mees’s argument is distinguishable from the successful argument advanced by the petitioner in Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005).  In Fedziuk, the Minnesota Supreme Court held that the 2003 legislative amendment eliminating prompt postrevocation judicial review of a driver’s license revocation under Minn. Stat. § 169A.53, subd. 3a (2002), violated the constitutional guarantees of due process of law.  In Lamusga we observed:

The precise interest involved here can be distinguished from that at issue in an implied consent revocation.  In the latter, the driver consents to being subject to the law merely by driving, operating, or being in physical control of a motor vehicle.  Minn. Stat. § 169.123, subd. 2(a) (1994).  If the statutory preconditions are met, and if the driver refuses or fails the alcohol concentration test, the prehearing license revocation will occur.  Minn. Stat. § 169.123, subds. 2(a), 4.  In contrast, appellant’s license had been earlier cancelled and denied, and was reinstated in 1988 only after he signed a form explicitly acknowledging that the Commissioner would cancel his license upon sufficient cause to believe he had consumed alcohol, regardless of whether he was driving.  The “B card” accompanying his license also advised that any use of alcohol or drugs invalidates the license.  Appellant was thus on specific notice that any consumption of alcohol would invalidate his license.

536 N.W.2d at 64 n.1.  Thus, we reject Mees’s challenge as articulated in the his appellate brief, namely, that Minn. Stat. § 171.19 “allows the Commissioner to cancel a person’s driving privileges, without hearing, based on any claim by a police officer that appellant was consuming alcohol.”  Indeed, the statute provides for judicial review of the driver’s license cancellation, and the process for judicial review has not changed, in relevant part, since we decided Lamusga.