This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Dale Jay Schmidt,



Filed June 19, 2007


Randall, Judge


Scott County District Court

File No. 70-2005-00998



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


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


Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Suite 1000, Circle K, Box 216, Shakopee, MN  55379 (for appellant)


            Considered and decided by Randall, Presiding Judge; Wright, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N


            On appeal from conviction for third-degree DWI, appellant argues that because the implied-consent statute was ruled unconstitutional in Fedziuk for the failure to provide prompt judicial review, an Intoxilyzer test taken pursuant to that statute must be suppressed in the criminal prosecution.  Appellant also argues that because his implied-consent revocation was rescinded, collateral estoppel requires that the Intoxilyzer test be suppressed in the criminal prosecution.  We affirm.


            On January 23, 2005, appellant was arrested for driving while impaired (DWI).  After he was read the implied consent advisory, appellant agreed to take the intoxilyzer test.  The test result indicated an alcohol concentration of 0.12.  Appellant was subsequently charged with (1) gross misdemeanor DWI in the third degree; (2) gross misdemeanor DWI in the third degree – over .10; and (3) a petty misdemeanor lane violation. 

            In July 2005, appellant moved to suppress the alcohol test results based upon the supreme court’s decision in Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005).  The district court denied the motion, and appellant proceeded to trial on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found appellant guilty of third-degree DWI.  This appeal followed.    



            Appellant argues that the district court erred by not suppressing evidence obtained after he was read the implied-consent advisory.  Where the facts are not in dispute and the decision to suppress is a question of law, this court may independently review the facts and determine whether, as a matter of law, the evidence needs to be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

            In Fedziuk, the supreme court had to determine whether the 2003 amendments to Minnesota’s implied-consent law violated due process.  696 N.W.2d at 344.  Prior to the 2003 amendments, the provision regarding judicial review of a prehearing revocation in the implied-consent law stated that “[t]he hearing must be held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review.”  Minn. Stat. § 169A.53, subd. 3(a) (2002).  The 2003 amendments deleted the time-frame requirement in which to hold a hearing.  Fedziuk, 696 N.W.2d at 346.  The supreme court held that the implied-consent law as amended was unconstitutional as violating due process because it removed the time frame requirement for prompt judicial review of a prehearing revocation.  Id. at 342.  The court severed the unconstitutional provision, and revived the version of the implied-consent law that existed immediately prior to the 2003 amendments.  Id. at 349.

            Appellant argues that the ruling in Fedziuk requires that any evidence obtained under the implied-consent statute between the purported effective date of the 2003 amendments and Fedziuk is inadmissible in a criminal proceeding.  We disagree on the phrase “any evidence.”  Appellant’s argument was rejected in State v. Polsfuss, 720 N.W.2d 1 (Minn. App. 2006).[1]  In Polsfuss, this court held that Fedziuk does not affect evidentiary rulings in a related criminal proceeding.  720 N.W.2d at 2. Fedziuk declared only the 2003 amendments to the statute unconstitutional.  The remainder of the statute was upheld and reinstated as it existed prior to the 2003 amendments, just as if the amendments never existed.  See Fedziuk, 696 N.W.2d at 349 (holding that the proper remedy was to sever only the 2003 amendments and revive the version of the implied-consent law that existed immediately before the 2003 amendment).  The portion of the implied-consent law that was declared unconstitutional by Fedziuk does not have an effect on evidence obtained for a criminal DWI proceeding.  Polsfuss, 720 N.W.2d at 4.  We understand appellant’s suppression argument, but the supreme court was careful to sever only the portion of the statute purporting to delete prompt judicial review. 

            Appellant cites a variety of cases in support of his claim that the supreme court’s ruling in Fedziuk mandates that all the evidence be suppressed. These cases are distinguishable.  In the cases cited by appellant, evidence was suppressed because misleading language in the implied-consent advisory was held to violate due process.  See McDonnell v. Comm’r of Public Safety, 473 N.W.2d 848, 855 (Minn.1991) (holding that the language of the implied consent advisory violated the due process rights of drivers who had no potential criminal liability for refusing testing);  State v. Nelson, 479 N.W.2d 436, 437 (Minn. App. 1992) (holding that a criminal defendant raised an identical due process claim as that raised in McDonnell if he or she was a first-time offender); State v. Stumpf, 481 N.W.2d 887, 889-90 (Minn. App. 1992) (holding that a breath test obtained through misleading language in the implied consent advisory could not be used for impeachment purposes in a criminal proceeding); State v. Wilkens, 492 N.W.2d 275, 276 (Minn. App. 1992) (applying McDonnell retroactively).  Appellant has not shown that the language of the implied-consent advisory misled him.  His argument is simply that since Fedziuk struck down the law deleting the time frame for judicial review, all evidence collected must be suppressed.  The two issues do not necessarily go hand in hand.  The district court did not err in denying appellant’s motion to suppress.


            Appellant argues that because the Commissioner of Public Safety (commissioner) rescinded the revocation of his driver’s license after Fedziuk, the doctrine of collateral estoppel under State v. Victorsen requires the suppression of the test results.  See 627 N.W.2d 655, 663 (Minn. App. 2001) (stating “if a prosecutor is given notice and an opportunity to participate in [an implied-consent] hearing, that prosecutor, at a later hearing, will be estopped from opposing the binding effect of an order resulting from the earlier hearing”). 

            There is no record of the revocation proceeding in the file and, therefore, the issue is unreviewable by this court.  See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) (stating that the appellant bears the burden, on appeal, of providing an adequate record to permit meaningful appellate review).  But even if we were to accept appellant’s assertion that the commissioner rescinded the revocation of his driver’s license, there is no reversible error.  Victorsen was superceded by Minn. Stat. § 169A.53, subd. 3(g) (2004).  This statute provides that an implied consent proceeding “shall not give rise to an estoppel on any issues arising from the same set of circumstances in any criminal prosecution.”  Id.  This court upheld the constitutionality of the statute in State v. Lemmer, 716 N.W.2d 657, 659 (Minn. App. 2006), review granted (Minn. Sep. 19, 2006).  Accordingly, the doctrine of collateral estoppel does not require that the test results be suppressed.




* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant acknowledges this court’s decision in Polsfuss, but contends that the case was wrongly decided.