This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Shirley Ann Vierling,



Filed April 24, 2007


Hudson, Judge


Scott County District Court

File No. 2004-15280


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Special Assistant County Attorney, Government Center JC340, 200 Fourth Avenue West, Shakopee, Minnesota 55379 (for respondent)


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. 


            On the evening of July 19, 2004, Jordan police officers arrested appellant Shirley Ann Vierling on suspicion of DWI.  After being read the Minnesota Implied Consent Advisory and afforded an opportunity to consult an attorney, appellant took the Intoxilyzer test, which indicated an alcohol concentration of .18. 

Appellant 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 (Minn. 1980).  The district court found appellant guilty of second-degree DWI, second-degree DWI over .10, and obstructing legal process, in violation of Minn. Stat. §§ 169A.20, subds. 1(1), (5), .25, 609.50, subds. 1(2), 2(3) (2004).  This appeal follows.


            Citing Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005), appellant argues that the district court erred by not suppressing her breath-test result in the related criminal proceeding, because when she submitted to the test the implied-consent statute was unconstitutional.  “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

We 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 judicial-review requirement.  Id. at 349; State v. Polsfuss, 720 N.W.2d 1, 4 (Minn. App. 2006).  The supreme court severed the amendment and reinstated the pre-amendment version of the implied-consent law.  Fedziuk, 696 N.W.2d at 349; Polsfuss, 720 N.W.2d at 4.  The legitimacy of the advisory was never at issue. 

To 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 (Minn. 1991), and its progeny.  This argument is unpersuasive.  McDonnell, also a civil implied-consent case, rendered unconstitutional an implied-consent advisory that threatened unauthorized criminal prosecution.  473 N.W.2d at 855.  Its holding was applied to criminal proceedings in which the defendants raised identical due-process issues.  State v. Nelson, 479 N.W.2d 436, 437 (Minn. App. 1992); State v. Wilkens, 492 N.W.2d 275, 276 (Minn. App. 1992); State v. Stumpf, 481 N.W.2d 887, 889 (Minn. App. 1992); see also McDonnell, 473 N.W.2d at 855 (stating that its holding applies to “any case raising an identical due process claim.”). 

But 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.  Id.  However, appellant does not claim that the lack of judicial review coerced her into submitting to a breath test or otherwise prejudiced her interests. 

Appellant 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.”  Minn. Stat. § 169A.53, subd. 3(g) (2006).