This opinion will be unpublished and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
State of Minnesota,
Richard Allan Mortensen,
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,
Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Minge, Judge.
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.
About 15 minutes later,
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
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 (
“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 (
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 (
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.”
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 (
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 (
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
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.
Mortensen also argues that under Blakely v. Washington,542
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.”
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.
(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.
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.