This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Donald Howard Darnell,


Filed December 11, 2007

Reversed and remanded

Stoneburner, Judge

Concurring specially, Minge, Judge


Dakota County District Court

File No. K1062950


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

James C. Backstrom, Dakota County Attorney, Helen R. Brosnahan, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for appellant)

David J. Risk, Caplan Law Firm, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Halbrooks, 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


The state appeals the district court’s dismissal of two counts of felony-level driving while impaired (DWI) against respondent.  The state argues that the district court erred in holding that use of an implied-consent driver’s license revocation to increase the severity of the charges violated respondent’s right to due process.  Because due process is not violated by using an unchallenged prior license revocation to increase the severity of a DWI offense, we reverse and remand.


In May 1999, respondent Donald Howard Darnell was arrested for DWI.  He submitted to testing that resulted in a reported alcohol concentration of .14.  Darnell, who was represented by a public defender, pleaded guilty to and was convicted of careless driving, and the DWI charge was dismissed.  Darnell did not challenge the revocation of his driver’s license that occurred under the implied-consent law as a result of this incident.

            Darnell was subsequently convicted of DWI in September 2001 and February 2002.  He was again arrested for DWI in September 2006 and was charged with two counts of felony-level DWI (driving under the influence of alcohol and having an alcohol concentration of .08 or more within two hours of driving) based on his prior license revocation and convictions.

            Darnell moved the district court to suppress the 1999 license revocation to preclude its use to enhance the current charges against him.  Darnell argued that Fifth Amendment due process prohibits the use of an administrative proceeding to enhance a criminal matter.  Darnell also argued that the Sixth Amendment, as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), prohibits the use of a civil license revocation, in which the burden of proof is not beyond a reasonable doubt, to enhance a later criminal charge.  The district court agreed and dismissed the felony DWI charges.  This appeal by the state followed.


1.      Critical impact

            To prevail on appeal from a pretrial order, the state must clearly and unequivocally show that the order will have a critical impact on the state’s ability to prosecute the respondent and that the order constituted error.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).  “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.”  Id.  In this case, Darnell does not dispute that the district court’s ruling has a critical impact because the order precludes the state from pursuing felony charges.  See State v. Wiltgen, 737 N.W.2d 561, 566 n.3 (Minn. 2007) (stating that suppression of a license revocation, which led directly to dismissal of second-degree DWI charges, clearly had the requisite critical impact to permit the state’s appeal); State v. Eggler, 372 N.W.2d 12, 14 (Minn. App. 1985) (holding that suppressing evidence had a critical impact when doing so reduced the charge from a felony to a petty misdemeanor), review denied (Minn. Sept. 18, 1985).



2.      Standard of Review

This case involves the application of law to undisputed facts, which is a question of law reviewed de novo.  State v. Goharbawang, 705 N.W.2d 198, 201 (Minn. App. 2005), review denied (Minn. Jan. 17, 2006).  We are not bound by and need not give deference to a district court’s decision on a purely legal issue.  Id.  All statutes carry with them a strong presumption of constitutionality, and a challenger “must establish beyond a reasonable doubt that the statute violates a claimed right.”  State v. Dumas, 587 N.W.2d 299, 301 (Minn. App. 1998) (emphasis omitted), review denied (Minn. Feb. 24, 1999).

3.      DWI statute

In Minnesota, it is a felony-level offense to drive while impaired, as defined in Minn. Stat. § 169A.20 (2006), “within ten years of the first of three or more qualified prior impaired driving incidents.”  Minn. Stat. § 169A.24, subd. 1(1) (2006).  A “‘[q]ualified prior impaired driving incident’ includes prior impaired driving convictions and prior impaired-driving-related losses of license.”  Minn. Stat. § 169A.03, subd. 22 (2006).  In this case, Darnell admits that he has two prior DWI convictions and a prior impaired-driving-related loss of license, but he challenges the use of the prior impaired-driving-related loss of license to raise the current charges against him to a felony level.

4.      1999 Implied Consent Statute

In 1999, when Darnell was arrested for DWI, Minnesota law provided that a person could be required to submit to a chemical test to determine the presence of alcohol when a peace officer had probable cause to believe that the person was driving a motor vehicle while impaired.  Minn. Stat. § 169.123, subd. 2 (1998).  If a peace officer certified to the commissioner of public safety that probable cause existed, and if the person submitted to a test which revealed an alcohol concentration of .10 or more, the commissioner was required to revoke the person’s driver’s license.  Id., subd. 4(e) (1998).  For the license revocation to be effective, the commissioner was required to provide notice to the person and advise the person of the right to obtain an administrative or judicial review as provided for in the statute.  Id., subd. 5 (1998).  Judicial review provided for a full hearing and appeal.  Id., subds. 6-7 (1998).

Darnell does not dispute that in 1999 he was arrested for DWI; that he submitted to a chemical test; that the reported result was .14; that his license was revoked; and that he did not seek administrative or judicial review of the revocation.

5.      Fifth Amendment due process

Darnell successfully argued to the district court that use of an administrative proceeding to enhance a criminal charge violates due process, despite this court’s rejection of the same argument in State v. Coleman, 661 N.W.2d 296 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003), Goharbawang, and in several later unpublished opinions.  Darnell argues that Coleman and Goharbawang were wrongly decided because this court erroneously concluded that the mere availability of meaningful judicial review of an administrative proceeding satisfies the due-process requirement enunciated by the United States Supreme Court in United States v. Mendoza-Lopez, 481 U.S. 828, 107
S. Ct. 2148 (1987).  Due process requires “that, at a minimum, the result of an administrative proceeding may not be used as a conclusive element of a criminal offense where the judicial review that legitimated such a practice in the first instance has effectively been denied.”  Id. at 838 n.15, 107 S. Ct. at 2155 n.15.

      In Coleman,we held that a party who failed to exercise available judicial review of a license revocation is not deprived of due-process rights when the state uses the revocation to enhance later DWI charges.  661 N.W.2d at 301.  We concluded that the availability of judicial review, although unexercised, satisfies the due-process requirements of Mendoza-Lopez.  Id.  In Goharbawang, we followed Coleman and held that “[t]he availability of [judicial] review, although unexercised, satisfied the due-process requirement of meaningful review.”  705 N.W.2d at 202.

Recently the Minnesota Supreme Court held, in a case where a defendant’s challenge to a license revocation was still pending, that use of an unreviewed administrative revocation to enhance a subsequent DWI violates a defendant’s right to procedural due process.  Wiltgen, 737 N.W.2d at 570.  Wiltgen had requested judicial review of his license revocation but review was stayed until the criminal charge arising out of the same incident was resolved.  Id. at 565.  To preserve the constitutionality of the enhancement statute in light of the Mendoza-Lopez due-process requirements, the supreme court construed subdivision 22 of section 169A.03 to limit the use of prior license revocations to situations where judicial review is completed or has been waived by the failure to timely petition for review.  Id. at 571. 

Wiltgen, therefore, makes a clear distinction between situations where judicial review is unavailable and situations where a defendant has waived judicial review by failure to petition for such review.  We hold that if, in this case, Darnell validly waived judicial review of his 1999 license revocation by failing to file a timely petition, consistent with our holdings in Coleman and Goharbawang, due process does not prevent the use of the revocation to enhance the current charges against him.[1]

6.      Sixth Amendment

Darnell argues that the Sixth Amendment, as interpreted by Apprendi,prohibits the use of a civil license revocation to enhance the severity of a subsequent DWI.  We disagree. 

In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  530 U.S. at 490, 120 S. Ct. at 2362-63.  Darnell urges a reading of Apprendi that would require a jury not only to find the fact of a prior revocation beyond a reasonable doubt but also to determine that the state had established the underlying facts of the prior revocation beyond a reasonable doubt.  We do not read Apprendi as supporting this argument, which would convert the civil license revocation process into a criminal proceeding.  The argument that this revocation process is actually a criminal proceeding entitling a driver to all of the rights associated with such a proceeding has been rejected by this court and the supreme court.  See Davis v. Comm’r of Pub. Safety, 517 N.W.2d 901, 905 (Minn. 1994) (stating that the court of appeals properly rejected an argument that the implied-consent hearing is a de facto criminal proceeding requiring application of due-process rights associated with a criminal trial).

In a Minnesota felony-DWI prosecution, the jury is required to find beyond a reasonable doubt whether the defendant has any qualified prior impaired-driving incidents within the ten years immediately preceding the current offense.  10A Minnesota Practice, CRIMJIG 29.22 (2007).  If the answer is yes, the jury must specify how many such offenses the defendant has.  Id.  Because a defendant cannot be convicted of a felony-level DWI unless the jury has found beyond a reasonable doubt that the defendant has at least three qualified prior impaired-driving incidents within ten years of the current offense, Darnell’s arguments based on the Sixth Amendment and Apprendi are without merit.

            Reversed and remanded.

MINGE, Judge (concurring specially)

I join in the result, but I concur specially because I believe the rules in Apprendi and Blakely apply here.  I would remand this case for a jury determination of the facts underlying Darnell’s 1999 license revocation.

            Apprendi v. New Jersey warns that “[w]hen a judge’s finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as a tail which wags the dog of the substantive offense.”  530 U.S. 466, 495, 120 S. Ct. 2348, 2365 (2000) (quotation omitted).  Darnell’s prior license revocation, which was determined by a preponderance of the evidence, is being used to dramatically enhance the current DWI charge.  Darnell is now charged with a felony, which carries a maximum prison term of seven years and a mandatory minimum term of three years.  Minn. Stat. §§ 169A.24, subd. 2, .276, subd. 1 (2006).  Without including that civil revocation, Darnell would face a gross misdemeanor charge. 

The issue here is not whether the record of the prior civil revocation should be reversed.  It stands, and presumptively it can be used to enhance the current prosecution.  The problem is that, under the enhancement statute, that civil revocation is used as an element in establishing a felony without subjecting the facts underlying the revocation to the careful scrutiny of the criminal process.  The majority allows waiver of judicial review in a civil revocation to constitute waiver of review for a criminal proceeding.[2]  But if Darnell had petitioned for review, Darnell’s rights in that civil proceeding would not have included a right to counsel, and judicial review would only have determined whether a preponderance of the evidence supported revocation.  A criminal proceeding, on the other hand, includes a right to counsel and requires proof of guilt beyond a reasonable doubt.  Failure to timely petition for limited, direct judicial review of the civil revocation is not equivalent to conceding the underlying facts and waiving review for purposes of this subsequent criminal proceeding.[3]

            Blakely v. Washington holds that the maximum sentence a judge may impose is one based solely on the facts reflected in the jury verdict or admitted by the defendant.  542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004).  If Darnell goes to trial on this enhanced DWI charge, he will be entitled to constitutional protections of counsel and jury.  He should be able to challenge the use of the prior revocation at that trial and require the prosecutor to prove beyond a reasonable doubt the factual grounds for the revocation.[4]  “[E]very defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.”  Id. at 313, 124 S. Ct. at 2543.  Any such challenge to the revocation should be limited to its use in the criminal proceeding as an enhancement factor, and should not extend to the validity and effect of the revocation otherwise.


[1]Darnell’s argument that under the circumstances of his case his failure to seek review was not a valid waiver of his right to review is not before us in this appeal.  The parties agree that Darnell may pursue this argument in district court on remand.  To the extent that Darnell may argue that failing to pursue review can never constitute a valid waiver of the right to review, we find no merit in that argument.

[2] The majority relies on pre-Apprendi and pre-Blakely state caselaw for its claim that a civil revocation need not include rights associated with a criminal proceeding.  See David v. Comm’r of Pub. Safety, 517 N.W.2d 901 (Minn. 1994).  The use of such earlier state court cases to marginalize the decisions of the United States Supreme Court is problematic.

[3]The court in State v. Wiltgen states that, for due process purposes, “the opportunity for erroneous deprivation [of judicial review] is more significant where judicial review has not been provided or has not been waived.”  737 N.W.2d 561, 570 (Minn. 2007).  The court does not explain this comment.  But the defendant should have a right, at a minimum, to challenge the validity of his waiver.  If his waiver was not valid, the lack of judicial review is just as troublesome as if he had sought but not been provided such review.

[4] In State v. McLellan, this court held that McLellan’s due process rights were not violated when her prior unchallenged Minnesota license revocation, based on an uncounseled guilty plea to a Wisconsin DWI charge, was used to enhance a later Minnesota DWI offense.  655 N.W.2d 669, 670 (Minn. App. 2003).  It is significant, however, that McLellan was decided prior to Blakely.  Furthermore, the McLellan court did not address the question of whether, for purposes of enhancing a DWI to a gross misdemeanor, the defendant could obtain review of the earlier revocation.  Here, where the enhancement is to a felony, the question is even more significant.