This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Richard Allan Mortensen,


Filed May 22, 2007


Stoneburner, Judge


Nobles County District Court

File No. K905526


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


Gordon Moore, Nobles County Attorney, Prairie Justice Center, 1530 Airport Road, Worthington, MN 56187 (for respondent)


John M. Stuart, State Public Defender, Sean Michael McGuire, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges the sufficiency of the evidence to support his driving-while-impaired (DWI) conviction and asserts that the use of civil license revocations to enhance subsequent DWI charges violates constitutionally guaranteed due-process and equal-protection rights.  Because the evidence is sufficient to support the conviction and appellant’s constitutional challenges are without merit, we affirm.



            Worthington police officer Kirk Schelhaas observed appellant Richard Allan Mortensen sitting behind the steering wheel of a John Deere tractor that had pulled into a Burger King parking lot.  Officer Schelhaas saw a woman, later identified as Ruth McFarland, sitting to Mortensen’s left and saw her leave the tractor and approach the Burger King.

            About 15 minutes later, Worthington police officer Chris Hillesheim responded to a call from McDonald’s that a noticeably intoxicated person, later identified as Mortensen, had entered McDonald’s without a shirt and had been refused service.  Officer Hillesheim found Mortensen in the cab of the tractor in the McDonald’s parking lot.  Mortensen was sitting directly behind the steering wheel, and McFarland was sitting on Mortensen’s left.  The keys to the tractor were in the ignition, and Mortensen’s bottle of alcohol and a cup were on Mortensen’s right. 

            Officer Schelhaas also responded to the McDonald’s call and arrived as Officer Hillesheim was having Mortensen perform field sobriety tests.  Officer Schelhaas overheard McFarland tell another officer that she had been driving the tractor.  Officer Schelhaas told McFarland that when he saw the tractor at Burger King, it looked as if Mortensen was driving.  According to Officer Schelhaas, McFarland stated that because she was afraid to drive in traffic, Mortensen was driving.  Mortensen was arrested and charged with two counts of first-degree DWI, one count of driving after revocation, and an open-bottle violation.

            At the omnibus hearing, Mortensen moved to dismiss the charges based on a lack of probable cause to believe that he had been driving.  He also asserted that a 2003 revocation of his driver’s license under the implied-consent law should not be used to enhance the current DWI charges to a felony level.  Mortensen, whose court-appointed counsel had been successful in having DWI charges against him dismissed in 2003, argued that because Mortensen was unable to afford counsel to challenge the license revocation for that incident, the revocation should not be used to enhance the current charges.  Mortensen argued that the use of uncounselled implied-consent revocations to enhance subsequent DWI charges results in a dual system of justice, one for the wealthy, who can afford to challenge implied-consent proceedings, and one for the poor, who cannot afford to challenge implied-consent proceedings.  The district court denied both motions, holding that there was probable cause for the charges and rejecting Mortensen’s challenge to the use of the 2003 license revocation to enhance the charges.

            Before trial, without waiving his challenge to the use of the license revocation to enhance, Mortensen stipulated that he had three qualifying events to support enhancement.  At trial, Mortensen did not dispute that he was intoxicated at the time of his arrest.  The only issue was whether he drove or was in physical control of the tractor.

            McFarland and Mortensen testified that Mortensen did not drive the tractor after he started drinking.  Both officers testified that based on their familiarity with tractors, there was no way that McFarland could have driven or controlled the tractor from the position in which they observed her. 

            The state dismissed the driving-after-revocation charge, and the jury found Mortensen guilty of both counts of DWI and the open-bottle violation.  The district court sentenced Mortensen to 42 months in prison but stayed execution of the sentence, ordered him to serve one year in the county jail, and placed him on probation for five years.  This

appeal followed.



I.          Sufficiency of evidence

            Mortensen first argues that the evidence was insufficient to support his DWI conviction.  In considering a claim of insufficient evidence, appellate courts are “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Appellate courts “will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.”  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotation omitted).  On review, appellate courts view the evidence in the light most favorable to the verdict.  Id. at 477.        “Circumstantial evidence in a criminal case is entitled to as much weight as any other kind of evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except for that of guilt.”  State v. Pilcher, 472 N.W.2d 327, 335 (Minn. 1991).  “[A] conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  And “circumstantial evidence must do more than give rise to suspicion of guilt; it must point unerringly to the accused’s guilt.”  Id. (quotation omitted).  The facts and circumstances disclosed by the circumstantial evidence must form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.  Id.

            “It is a crime for any person to drive, operate, or be in physical control of any motor vehicle” while the person is intoxicated.  Minn. Stat. § 169A.20, subd. 1 (2004).  The phrase “physical control” is defined as

being in a position to exercise dominion or control over the vehicle.  Thus, a [defendant is] in physical control of a vehicle if [the defendant] has the means to initiate any movement of that vehicle and [the defendant] is in close proximity to the operating controls of the vehicle, and this is true whether the vehicle can be driven upon the highway at that point or not.


State v. Duemke, 352 N.W.2d 427, 432 (Minn. App. 1984).

            In this case, both Officer Hillesheim and Officer Schelhaas testified that they observed Mortensen directly behind the wheel of the tractor with the keys in the ignition and that McFarland would not have been able to drive or control the tractor from her position in the tractor.  The jury obviously found this testimony credible and did not believe Mortensen’s and McFarland’s testimony to the contrary.  Viewing the evidence in the light most favorable to the verdict, it is more than sufficient to support a determination that Mortensen was in physical control of the tractor while he was intoxicated.

II.        Constitutional challenges

            Mortensen asserts that the use of an uncounselled civil license revocation to enhance a subsequent DWI charge violates the due-process and equal-protection provisions of the federal and state constitutions.  The parties do not dispute that criminal charges stemming from a 2003 incident were dismissed under a plea agreement and that the license revocation resulting from the same incident was used to enhance the DWI charges in this case to a felony level.

            As an initial matter, the state argues that Mortensen did not raise due-process or equal-protection issues in the district court.  Although Mortensen did not specifically use the terms “due process” and “equal protection” in district court and did not provide any legal authority to support a due-process or equal-protection claim, Mortensen did assert that his lack of an attorney at the implied-consent hearing resulted in a different system of justice for the poor and the wealthy.  We address constitutional issues where required in the interest of justice, when the parties have adequate briefing time, and when the issues were implied in the district court.  Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982).  We conclude that Mortensen’s due-process and equal-protection claims were sufficiently implied in district court to prevent waiver on appeal.

            a.         Due Process

            A defendant can be charged with first-degree DWI if the defendant “commits the violation within ten years of the first of three or more qualified prior impaired driving incidents.”  Minn. Stat. § 169A.24, subd. 1(1) (2004).  A “[q]ualified prior impaired driving incident” includes a civil license revocation under the implied-consent statutes.  Minn. Stat. § 169A.03, subds. 21(a)(1), 22 (2004).  Mortensen asserts that because civil license revocations can be used to enhance criminal charges, an indigent person should be entitled to court-appointed counsel in implied-consent proceedings, and use of an unrepresented indigent’s license revocation to enhance a subsequent DWI charge constitutes a denial of due process.  Due-process challenges are reviewed de novo.  Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999).

            In State v. Hanson, the supreme court reversed a district court’s order for reinstatement of Hanson’s driving privileges that had been revoked despite dismissal of criminal charges arising out of the same incident.  356 N.W.2d 689, 693 (Minn. 1984).  In Hanson, the supreme court noted that it is well settled that the civil penalty of license revocation, imposed administratively under the implied-consent law, is independent of the outcome of any criminal proceeding arising out of the same incident.  Id. at 692.  Mortensen acknowledges the holding of Hanson but argues that changes in the law since 1984 require a reevaluation of the proposition that there are essential differences between civil implied-consent proceedings and criminal proceedings arising out of the same incident and that such a reevaluation leads to the conclusion that indigent drivers are entitled to representation in implied-consent proceedings.

            Mortensen points to the reasoning of this court in State v. Victorsen that the distinction between the civil proceedings and criminal proceedings arising out of the same incident had become a fiction.  627 N.W.2d 655, 662 (Minn. App. 2001) superseded by statute, 2002 Minn. Laws ch. 314, § 1, at 511, as recognized in State v. Lemmer, 716 N.W.2d 657, 661 (Minn. App. 2006), review granted (Minn. Sept. 19, 2006).  But Victorsen merely focused on whether the commissioner and the attorney general were in privity with each other for purposes of collateral estoppel, an issue now resolved by statute.  Id. at 665-66; see also Minn. Stat. § 169A.53, subd. 3(g) (2006).  In Victorsen, we were specifically comparing the civil and criminal proceedings in the context of privity and determined that the distinction between the two proceedings had become blurred.  627 N.W.2d at 661-62.

            Although Mortensen acknowledges State v. Dumas, 587 N.W.2d 299, 301, 304 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999), in which this court held that past uncounselled civil license revocations may be used to enhance subsequent DWI charges without violating the constitutional right to counsel, he argues that the liberty interests at stake in Dumas, which was decided when enhancement was only to the level of a gross misdemeanor, were not as great as under the current law, which allows for enhancement to a felony level.  Mortensen argues that potential incarceration affects whether due-process rights are triggered, and the extent to which they are triggered depends on the severity of the charge and the length of potential incarceration.  See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972) (stating that whether procedural protections are due in different situations depends on the nature of the liberty interest at stake).

            The flaw in Mortensen’s reasoning is that, as we noted in Dumas, a person involved in an implied-consent proceeding is not facing the possibility of incarceration.  587 N.W.2d at 301.  Because there is no threat of incarceration in an implied-consent proceeding, no liberty interest is at stake, and due process does not require appointment of counsel.  Id. at 303.  The conclusion we reached in Dumas, that the civil license revocation could be used to enhance a subsequent DWI charge as long as the revocation was constitutional, is still valid.  Id. at 302.  Here, as in Dumas, Mortensen was not entitled to have a court-appointed attorney for the civil revocation proceeding because he was not facing any confinement. 

            Mortensen also argues that under Blakely v. Washington,542 U.S. 296, 124 S. Ct. 2531 (2004), supports his argument.  Although, under Blakely, prior convictions need not be determined by a jury, Mortensen argues that this exception from requiring a jury to determine aggravating sentencing factors rests on the fact that a prior conviction is established through procedures satisfying fair notice, proof beyond a reasonable doubt, and jury-trial requirements not provided in civil revocation proceedings.  Here, Mortensen seems to have shifted his due-process focus from representation for indigents to a requirement of a jury trial in implied-consent proceedings, and presumably a beyond-a-reasonable-doubt standard of proof.  But Blakely relates only to sentencing issues and has no application to the distinction between civil and criminal proceedings or the effect a civil finding may have on potential criminal sentences.  We find no merit in Mortensen’s arguments based on Blakely.

            b.         Equal protection

            Mortensen contends that “[b]ecause the sentencing enhancers in Minn. Stat. § 169A.24 implicitly provide for felony level sentences for indigent defendants under circumstances where wealthier individuals receive dramatically lesser sentences, the statute violates the equal protection guarantees in the Minnesota Constitution.”  The constitutionality of a statute is a question of law, which is reviewed de novo.  Dumas, 587 N.W.2d at 301.  “Statutes are entitled to a presumption of constitutionality, and those challenging otherwise valid statutes must establish beyond a reasonable doubt that the statute violates a claimed right.”  Id.  “In considering the constitutionality of a statute, every presumption is invoked in favor of the constitutionality of the statute.”  Id. (quotation omitted).  And “the[] power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.”  Id. (quotation omitted).

In order to prevail on a facial challenge to a statute on equal protection grounds, [the person asserting the equal-protection claim] must prove, beyond a reasonable doubt, that at least two classes are created by the statute, that the classes are treated differently under the statute, and that the difference in treatment cannot be justified.


Westling v. County of Mille Lacs, 581 N.W.2d 815, 820 (Minn. 1998.)  A rational-basis analysis of equal protection under the Minnesota Constitution is different than under the Federal Constitution.  State v. Russell, 477 N.W.2d 886, 888-89 (Minn. 1991).  The Minnesota Constitution requires:

(1) The distinctions which separate those included within the classification from those excluded must not be manifestly arbitrary or fanciful but must be genuine and substantial, thereby providing a natural and reasonable basis to justify legislation adapted to peculiar conditions and needs; (2) the classification must be genuine or relevant to the purpose of the law; that is there must be an evident connection between the distinctive needs peculiar to the class and the prescribed remedy; and (3) the purpose of the statute must be one that the state can legitimately attempt to achieve.


Id. at 888 (quotation omitted).

            Mortensen argues that Minn. Stat. § 169A.24, subd. 1(1), draws a classification between the wealthy and the poor.  We disagree.  The statute does not draw a classification between the wealthy and the poor or a classification between those who are represented by an attorney and those who are not represented.

            Mortensen tries to draw an analogy between his case and Russell, but the cases are very different.  In Russell, the challenged statute, on its face, created two classifications because it treated those who possessed the same amount of cocaine differently depending on the form of the cocaine.  477 N.W.2d at 887.  Here, the statute does not create any classifications on its face or by inference.  Moreover, the record in Russell contained academic treatises, statistical studies and research, and testimony before legislative bodies.  Id. at 887 & n.1, 889-91.  There is no support for Mortensen’s assertion that wealthy litigants who are represented at their implied-consent hearings get more favorable results than indigent pro se litigants and therefore are more frequently spared subsequent DWI enhancements.  Because the statute does not draw the classification that Mortensen alleges, his equal-protection claim fails.  Furthermore, it is doubtful that Mortensen has standing even to raise this argument because he failed to challenge revocation of his license.  He was not an unrepresented litigant at the implied-consent proceeding; rather, he allowed the revocation to proceed unchallenged.