This opinion will be unpublished and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 Mark Zacharias,



Filed September 12, 2006


Kalitowski, Judge


Hennepin County District Court

File No. 05-031223


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Jay M. Heffern, Minneapolis City Attorney, Judd E. Gushwa, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent)


Jerry Strauss, Strauss & Goldberger, 250 Second Avenue South, Suite 110, Minneapolis, MN 55401 (for appellant)


            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant David Mark Zacharias challenges his conviction of third-degree DWI, arguing that the district court erred in not suppressing evidence that was obtained after police read an unconstitutional implied-consent advisory.  We affirm.



            Appellant argues that the district court erred in not suppressing evidence obtained by the implementation of an unconstitutional implied-consent statute.  “[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.”  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

            Here, appellant made several general pretrial motions to suppress evidence “obtained in violation of the laws of Minnesota and the United States.”  But appellant did not argue that the district court should suppress the evidence because police relied on an unconstitutional implied-consent statute.  Therefore, this issue is not properly before us.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts generally do not address matters that have not been raised and considered in the district court). 

            Moreover, we conclude that appellant’s argument fails on the merits.  Appellant contends that in Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005), the Minnesota Supreme Court ruled that the implied-consent advisory is unconstitutional in the civil context.  Thus, appellant argues that evidence must be suppressed when it is obtained after the implied-consent advisory is read in the criminal DWI context.  But in Fedziuk, the supreme court did not rule that the implied-consent advisory is unconstitutional.  See Fedziuk, 696 N.W.2d at 342.  Rather, the court addressed whether the 2003 amendments to the implied-consent statute violate procedural due process.  Id. 

            Prior to the 2003 amendments, the implied-consent statute’s provision for judicial review of a prehearing driver’s license revocation provided that “[t]he hearing must be held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review.”  Minn. Stat. § 169A.53, subd. 3a (2002).  The 2003 amendments eliminated the time-frame requirement for holding a postrevocation hearing.  Fedzuik, 696 N.W.2d at 346.  In Fedziuk, the supreme court addressed the amendments and held that the implied-consent statute is unconstitutional as amended because the amendments removed the requirement for prompt judicial review of a prehearing revocation.  Id. at 342.  The court then revived the implied-consent statute that existed immediately prior to the 2003 amendments.  Id.  Accordingly, the implied-consent statute remains in effect.  See State v. Polsfuss, ___ N.W.2d ___, No. A05-2108, slip op. at 5 (Minn. App. Aug. 8, 2006) (stating that Fedziuk did not render the implied-consent statute unconstitutional).

            Furthermore, in Polsfuss, ___ N.W.2d ___, No. A05-2108, slip op. at 7 (Minn. App. Aug. 8, 2006), this court concluded that the portion of the implied-consent law that was declared unconstitutional by Fedziuk did not affect the evidence obtained for a related criminal DWI proceeding.  Thus, we conclude that the district court did not err in denying appellant’s motions to suppress evidence.