This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Thomas Wayne Pahkala,



Filed February 20, 2007


Worke, Judge


Anoka County District Court

File No. T9-05-10755


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Joseph Murphy, Sweeney, Borer & Sweeney, 3250 Rice Street, St. Paul, MN 55126 (for respondent)


Barry L. Hogen, South Plaza Building #155, 1433 Utica Avenue South, St. Louis Park, MN 55416 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On appeal from a conviction of misdemeanor driving while impaired, appellant argues that the district court erred in not suppressing evidence obtained under an implied-consent statute that was declared partially unconstitutional for not providing prompt judicial review of a driver’s-license revocation.  We affirm.  


A police officer stopped appellant Thomas Wayne Pahkala after observing him drive his vehicle over the centerline.  After the stop, the officer observed that appellant’s eyes were red, bloodshot, and watery, and detected a strong odor of an alcoholic beverage coming from within the vehicle.  After appellant performed several field sobriety tests poorly and failed a preliminary breath test, the officer placed him under arrest for driving while impaired (DWI).  The officer read appellant the implied-consent advisory and administered an Intoxilyzer test; the test results indicated that appellant had an alcohol concentration of .15.   

            Appellant was charged with fourth-degree DWI, in violation of Minn. Stat. § 169A.20, subd. 1(1) (2004).  Appellant moved to suppress the test results in the criminal proceedings, arguing that his due-process rights were violated when he was read the implied-consent advisory that the supreme court declared unconstitutional in Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005).  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 (Minn. 1980), and the district court found appellant guilty.  This appeal follows.


             Appellant argues that the district court erred by not suppressing evidence obtained after he was read the implied-consent advisory.  When reviewing a pretrial order denying the suppression of evidence based on undisputed facts and a question of law, we conduct an independent review of 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).

            Appellant relies on Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005), and argues that the supreme court declared the version of the implied-consent advisory under which the state obtained his test violative of due process.  Appellant’s reliance on Fedziuk is misplacedIn Fedziuk, the supreme court determined that the 2003 amendments to the implied-consent statute were unconstitutional as violating due process because they removed the requirement for prompt judicial review of a prehearing revocation.  696 N.W.2d at 342.  The court severed the unconstitutional provision and revived the version of the implied-consent law that existed immediately prior to the 2003 amendments.  Id. at 349.  Accordingly, the implied-consent statute remained in effect.  Thus, although appellant was read the implied-consent advisory at a time when the process was governed by a statute that was later declared unconstitutional in part, the portion that was declared unconstitutional related only to prompt judicial review of a prehearing revocation and did not have anything to do with appellant’s decision to submit to an Intoxilyzer test.   

Appellant also argues that when there is a due-process violation the implied-consent process becomes involuntary, requiring suppression of the test results.  Appellant suggests that we follow the reasoning that “[a]n intoxilyzer test obtained through misleading language in the implied consent advisory may not be involuntary or coerced in the same sense, but it is a violation of due process.”  State v. Stumpf, 481 N.W.2d 887, 889-90 (Minn. App. 1992).  But appellant’s reliance on Stumpf is also misplaced.  In Stumpf, the driver agreed to testing after he was read an implied-consent advisory that included misleading language.  Id. at 888-89.  Unlike the driver in Stumpf, who was coerced into submitting to a test, appellant voluntarily submitted to testing after he consulted with an attorney.  The implied-consent advisory read to appellant did not include misleading language that would have made him feel coerced into submitting to a test.  

            Finally, in State v. Polsfuss, 720 N.W.2d 1 (Minn. App. 2006),  this court rejected appellant’s argument, holding that the unconstitutionality of a portion of the implied-consent statute does not affect the admissibility of the evidence obtained for a related criminal DWI proceeding.  Therefore, the district court did not err by denying appellant’s motion to suppress evidence.