This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Shirley Ann Vierling,
Filed April 24, 2007
Scott County District Court
File No. 2004-15280
Lori Swanson, Attorney General,
Patrick J. Ciliberto,
Richard L. Swanson, 207 Chestnut Street, Suite 235, Post Office Box 117, Chaska, Minnesota 55318 (for appellant)
Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Shirley Ann Vierling challenges her conviction of second-degree driving while impaired, arguing that the district court erred by not suppressing the results of her Intoxilyzer test. Because the district court properly concluded that the implied-consent advisory read to appellant did not violate appellant’s right to due process, we affirm.
the evening of July 19, 2004,
moved to suppress the test result. The
district court denied appellant’s motion, and appellant submitted the issue of guilt
to the court on stipulated facts in accordance with State v. Lothenbach, 296 N.W.2d 854 (
Citing Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (
note first that appellant’s reliance on Fedziuk
is misplaced because Fedziuk, a civil
implied-consent case, held that a 2003 amendment to the implied-consent statute
violated due process by removing a requirement that a petition for judicial
review of a license revocation be heard within 60 days after filing the
petition. 696 N.W.2d at 346–47. Fedziuk
did not render unconstitutional the entire implied-consent advisory; it only struck
down the 2003 amendment to the implied-consent statute which dispensed with the
further support her argument that Fedziuk
compels suppression of her breath test in this criminal proceeding, appellant
cites McDonnell v. Comm’r of Pub. Safety,
473 N.W.2d 848 (
here, appellant does not raise a due-process issue identical with the one in Fedziuk.
In Fedziuk, the absence of a
right to prompt judicial review of a license revocation prejudiced the
plaintiff by denying the plaintiff an opportunity to be heard before being
deprived of a valuable property interest.
696 N.W.2d at 346. In an
implied-consent proceeding, due process guarantees a hearing before a person is
deprived of a driver’s license—an important property right. Polsfuss,
720 N.W.2d at 4. But “[i]n the criminal context,
due process mandates that criminal defendants be treated with fundamental
fairness,” which prohibits obtaining a breath test through coercion.
also argues that the state is collaterally estopped from challenging the
application of Fedziuk in this related
criminal proceeding. But a license-revocation
hearing “shall not give rise to an estoppel on any issues arising from the same
set of circumstances in any criminal prosecution.”