This opinion will be unpublished and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
State of Minnesota,
Cole R. McLeod,
Hennepin County District Court
File No. 05033459
Jerry Strauss, Strauss & Goldberger, 250 Second Avenue South, #110, Minneapolis, MN 55402 (for appellant)
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Paul D. Baertschi, Tallen and Baertschi, 4560 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Wright, Judge.
Appellant challenges his conviction of third-degree driving while impaired, arguing that, because the implied-consent statute had been declared unconstitutional and appellant was read an implied-consent advisory pursuant to that statute before he consented to an Intoxylizer test, the evidence of his alcohol concentration obtained from the test must be suppressed. We affirm.
the evening of May 24, 2005, Maple Grove Police Officer Tanya Petz observed a
vehicle driving east on
Officer Petz arrested McLeod for driving while impaired by alcohol. Officer Petz read McLeod the implied-consent advisory, and McLeod submitted to an Intoxylizer test. The Intoxylizer test results indicated that McLeod had an alcohol concentration of 0.18.
McLeod was charged with one count of
third-degree driving while impaired (DWI), a violation of Minn. Stat.
§§ 169A.20, subd. 1(1), .26 (2004), and one count of having an alcohol
concentration of 0.10 or more within two hours of driving, a violation of Minn.
Stat. §§ 169A.20, subd. 1(5), .26 (2004).
Based on the Minnesota Supreme Court’s ruling in Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (
McLeod waived his right to a jury trial and submitted the case to the district court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), preserving for appellate review the issue raised in his motion to dismiss. The district court found McLeod guilty of both counts. This appeal followed.
D E C I S I O N
contends that the district court erred by failing to suppress evidence obtained
after Officer Petz read him the implied-consent advisory. McLeod argues that the implied-consent
advisory found to be violative of due process in Fedziuk was read to him before evidence of his alcohol
concentration was obtained and used in his prosecution for DWI. McLeod thus contends that, because this
evidence is the fruit of a due-process violation, it must be excluded and his
conviction must be reversed. When a pretrial
order denying the suppression of evidence is based on undisputed facts, we
conduct a de novo review to determine whether, in light of the facts, the
evidence must be suppressed as a matter of law.
State v. Othoudt, 482 N.W.2d
218, 221 (
In Fedziuk, the Minnesota Supreme Court determined that the 2003
amendments to the implied-consent statute provided insufficient constitutional
protection and, therefore, were unconstitutional. 696 N.W.2d at 348. Before the 2003 amendments, the
implied-consent statute provided for prompt judicial review of a
driver’s-license revocation with a hearing at “the earliest practicable date,
and in any event no later than 60 days following the filing of the petition for
But in declaring that the 2003
amendments did not meet constitutional due-process standards, the Fedzuik court did not render the entire
implied-consent statute unconstitutional.
McLeod’s Intoxylizer test result obtained after a proper implied-consent advisory was read is not the product of a due-process violation. Accordingly, the district court properly denied McLeod’s motion to dismiss.