This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Roger James Ritt,
Dakota County District Court
File No. T90552128
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Alina Schwartz, Elliott B. Knetsch, Campbell Knutson, P.A., 1380 Corporate Center Curve, Suite 317, Eagan, MN 55121 (for respondent)
Samuel A. McCloud,
††††††††††† Considered and decided by Worke, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.
Appellant challenges his conviction of fourth-degree driving while impaired (DWI), arguing that the district court erred in not suppressing evidence obtained under an implied-consent statute that was later declared unconstitutional.† Because appellantís arguments are without merit, we affirm.
On January 15, 2005, police stopped a vehicle driven by appellant Roger James Ritt.† Ritt took an Intoxilyzer test, which revealed an alcohol concentration of .14.† Ritt was arrested and charged with fourth-degree DWI in violation of Minn. Stat. ß 169A.20 (2004).††
driverís license was revoked, but a hearing on the revocation was not scheduled
within 60 days.† After the Minnesota
Supreme Court heldin Fedziuk v. Commír of Pub. Safety,696 N.W.2d 340 (
††††††††††† Ritt then moved to suppress the test results in the
criminal proceeding, arguing that because Fedzuik
held that the implied-consent law was unconstitutional, the test results were
inadmissible.† The district court denied
the motion. †The case was submitted to
the district court on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (
reviewing a pretrial order granting or denying the suppression of evidence,
where the facts are not in dispute and the trial courtís decision is a question
of law, this court independently reviews the facts and determines, as a matter
of law, whether the evidence must be suppressed. †State v. Othoudt,482 N.W.2d 218, 221 (
††††††††††† In Fedziuk v.
Commír of Pub. Safety,the Minnesota
Supreme Court determined that the 2003 amendments to
††††††††††† We recently rejected this argument in State v. Polsfuss,720 N.W.2d 1 (Minn. App. 2006), holding that Fedziuk does not have any effect on evidentiary rulings in a
related criminal proceeding. †
††††††††††† The additional cases relied on by Ritt are distinguishable.† In those cases, evidence was suppressed because misleading language in the implied-consent advisory was held to violate due process. †See McDonnell v. Commír of Public Safety,473 N.W.2d 848, 855 (Minn. 1991) (holding that the language of the implied consent advisory violated the due process rights of drivers who had no potential criminal liability for refusing testing); State v. Nelson,479 N.W.2d 436, 437 (Minn. App. 1992) (holding that a criminal defendant raised an identical due process claim as that raised in McDonnell if he or she was a first-time offender); State v. Stumpf,481 N.W.2d 887, 889-90 (Minn. App. 1992) (holding that a breath test obtained through misleading language in the implied consent advisory could not be used for impeachment purposes in a criminal proceeding); State v. Wilkens,492 N.W.2d 275, 276 (Minn. App. 1992) (applying McDonnell retroactively).† Ritt has not shown that the language of the implied-consent advisory misled him or that admission of the evidence would violate his due process rights in the criminal proceeding.† The district court did not err in denying Rittís motion to suppress.
also argues that the doctrine of collateral estoppel requires suppression of
the test results under State v. Victorsen,
627 N.W.2d 655 (Minn. App. 2001) superceded by statute as stated in State v. Lemmer, 716 N.W.2d 657, 659
(Minn. App. 2006), review granted
(Minn. Sep. 19, 2006).† In Victorsen, we stated that ďif a
prosecutor is given notice and an opportunity to participate in [an
implied-consent] hearing, that prosecutor, at a later hearing, will be estopped
from opposing the binding effect of an order resulting from the earlier