This opinion will be unpublished and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
Craig Robert Johnson,
Filed April 17, 2007
Scott County District Court
File No. 70-2005-070123
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Patrick J. Ciliberto,
Richard L. Swanson,
Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of
first-degree refusal to submit to a chemical test, arguing that his conviction
must be reversed because the district court improperly allowed a
driver’s-license revocation that was based on a
On March 18, 2005, police officers were called to a restaurant parking lot in Shakopee to investigate a drunk-driver complaint. A witness told the officers that he had observed appellant Craig Robert Johnson driving out of a ditch and into the parking lot and that Johnson appeared to be intoxicated. The officers found Johnson walking around the parking lot and conducted field sobriety tests, which Johnson failed. A preliminary breath test indicated that Johnson had an alcohol concentration of .18. An officer read Johnson the implied-consent advisory, and Johnson refused to take a chemical test.
has several previous impaired-driving-related incidents. In December 1998, he was convicted of driving
while impaired (DWI), and his driver’s license was subsequently revoked. In February 1999, Johnson was convicted in
In connection with the March 2005 incident, Johnson was charged with first-degree refusal to test, in violation of Minn. Stat. §§ 169A.20, subd. 2, .24 (2004); and first-degree DWI, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24. He was also charged with driving after cancellation, in violation of Minn. Stat. § 171.24, subd. 5 (2004), and obstruction of legal process, in violation of Minn. Stat. § 609.50, subd. 1(1) (2004).
moved for dismissal of the first-degree refusal-to-test and first-degree DWI
charges, arguing that his driver’s-license revocation could not be used to
enhance the charges against him here because the revocation was based on a
D E C I S I O N
Johnson argues that because the
refusal-to-test charge was enhanced from a misdemeanor to a felony by using a
driver’s-license revocation that was based on a Wisconsin conviction of operating
a vehicle while under the influence of an intoxicant, the district court erred
by denying Johnson’s motion to dismiss the first-degree refusal-to-test charge
against him. Johnson asserts that
Stat. § 169A.24, subd. 1(1) (2004), provides: “A person who violates section
169A.20 [(driving while impaired, which includes refusal to test)] is guilty of
first-degree driving while impaired if the person . . . commits the violation
within ten years of the first of three or more qualified prior impaired driving
incidents.” A “qualified prior impaired
driving incident” includes a prior DWI conviction or an
impaired-driving-related license revocation.
The district court concluded that
because the qualified prior impaired-driving incident that was at issue was the
revocation of Johnson’s driver’s license by the Minnesota Commissioner of
Public Safety and not the Wisconsin conviction on which that revocation was
based, the enhancement of Johnson’s charge to first-degree refusal to test was
proper under State v. McLellan, 655
N.W.2d 669, 671 (Minn. App. 2003). The
district court interpreted McLellan to
hold that an “unchallenged
Johnson claims that McLellan was wrongly decided. Although he concedes that the facts of McLellan are practically identical with the facts here, Johnson argues that “McLellan does not recognize the fact that drivers in license-revocation proceedings ‘do not have standing to challenge the effect of the revocation on a possible future DWI charge.’” But even if a driver may not challenge specifically the enhancement effect that a license revocation may have on a future DWI charge, the driver may certainly challenge the license revocation generally. We agree with the state that no due-process violation has occurred because the “availability of [judicial] review, although unexercised, satisfies the due-process requirement of meaningful review”; Johnson had an opportunity to challenge his license revocation but chose not to do so.
Johnson also argues that McLellan “perpetrates a due process violation” because it “treats similarly situated individuals [with license revocations] differently based on where the underlying DWI occurred.” Johnson provides no support for this assertion, and we find none.
note that even if the enhancement had been based on Johnson’s Wisconsin
conviction rather than the Minnesota license revocation, the enhancement would
have been proper under the supreme court’s recent decision in Schmidt, 712 N.W.2d at 539 (holding that
the defendant’s impaired-driving convictions in South Dakota could be used to
enhance his DWI charge to a felony because to hold otherwise would allow an
impermissible collateral attack on the out-of-state convictions). But because Johnson’s charge enhancement was
based on a