This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-95-2345

State of Minnesota,

Respondent,

vs.

Justin Scott Smith,

Appellant.

Filed June 11, 1996

Affirmed

Schultz, Judge*

St. Louis County District Court

File No. T5-95-607492

Hubert H. Humphrey, III, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

William P. Dinan, Duluth City Attorney, John E. Smedberg, Assistant City Attorney, 410 City Hall, Duluth, MN 55802 (for Respondent)

Peter James Nickitas, Nickitas Law Office, 301 Board of Trade, 1507 Tower Avenue, Superior, WI 54880 (for Appellant)

Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Schultz, Judge.

U N P U B L I S H E D O P I N I O N

SCHULTZ, Judge

Appellant challenges his conviction for driving without automobile insurance, contending the Minnesota No-Fault Automobile Insurance Act is unconstitutional. The law has not discriminated against appellant or denied him the right to equal protection, due process, or intrastate travel. We affirm.

FACTS

After police stopped appellant Justin Scott Smith for driving with expired license plate tabs, police charged him with driving without insurance, driving after cancellation, displaying expired license plates, and operating a vehicle with revoked license plates. Appellant lives 35 miles outside of Duluth, was unemployed at the time of trial, receives AFDC benefits, and has an extensive driving record including DWI offenses and driving after license withdrawal and suspension.

Appellant waived jury trial and moved to dismiss the charges on constitutional grounds. Appellant contended the statutes requiring automobile insurance discriminated against him on the basis of his economic status and restricted his right to intrastate travel, because he does not have the financial means to afford the insurance premiums. At trial, appellant admitted to driving his vehicle without insurance and after his license had been revoked. He explained that he was unable to afford the $104 monthly insurance premium on his AFDC income.

After trial, the court denied appellant's motion to dismiss and found him guilty of all charges. The court did not address the constitutional issue, because it found that the law had not discriminated against appellant based on his economic status. Appellant has already served his sentence and challenges only his conviction for driving without insurance.

D E C I S I O N

Appellant challenges the constitutionality of Minn. Stat. '' 65B.48 and 169.797 (1994). The constitutionality of a statute is a question of law for the court to determine de novo. In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993). Appellant has the burden of proving the unconstitutionality of these statutes beyond a reasonable doubt. State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990), cert. denied, 496 U.S. 931, 110 S. Ct. 2633 (1990).

Appellant contends these statutes deny him equal protection and due process of law, because they require all Minnesota drivers to carry automobile insurance, but they are not the product of public rate-setting hearings and do not consider the ability of AFDC recipients to pay the premiums. Appellant, however, makes this argument for the first time on appeal.

At trial, appellant argued the insurance requirement created a financial burden that unconstitutionally impaired his rights to intrastate travel, due process and equal protection. He now attacks the statutes for a lack of rate-setting hearings, yet he presented no evidence at trial to support his allegations. The record contains no evidence regarding the processes by which insurance companies or state regulatory agencies determine appropriate insurance rates. Consequently, we will not address this issue. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (party may not raise issue for first time on appeal, nor may he raise same issue that was previously litigated under different theory). In view of appellant's broad policy arguments about the financial ramifications of insurance requirements on lower-income individuals, we consider his arguments better-suited for the legislature.

We will review appellant's trial claims that sections 65B.48 and 169.797 unconstitutionally limit his right to intrastate travel. The right to interstate travel is a fundamental right under the federal constitution. United States v. Guest, 383 U.S.745, 759, 86 S.Ct. 1170, 1179 (1966); Mitchell v. Steffen, 504 N.W.2d 198, 200 (Minn. 1993), cert. denied, 114 S. Ct. 902 (1994). Minnesota has also recognized the right to intrastate travel. State v. Stallman, 519 N.W.2d 903, 906-07 (Minn. App. 1994). Any limitations to the right to travel receive an intermediate level of scrutiny and must be "narrowly tailored" to meet significant governmental objectives. Id. at 907.

The right to travel is implicated when a statute actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right.

Mitchell, 504 N.W.2d at 200 (citing Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903, 106 S. Ct. 2317, 2320 (1986)).

By requiring drivers to maintain insurance coverage, the statutes at issue here may limit a person's ability to drive a motor vehicle. That limitation does not amount to an actual deterrent to travel, however, because driving a motor vehicle is only one of many possible ways to travel within the state. For example, this insurance requirement does not affect a person's ability to travel by bicycle, bus, carpool, or train.

In addition, the laws' primary objective is narrowly tailored to meet the state's interest in having insured drivers on the road in order to compensate accident victims and promote orderly and efficient administration of justice in the event of accidents, injuries, and disability. See Minn. Stat. ' 65B.42 (setting forth five purposes for no-fault act). These purposes promote safe and responsible travel; they do not seek to impede travel.

The statutes do create a classification between those who can afford to pay the insurance premiums and those who cannot. A legislative classification will withstand scrutiny if it is rationally related to a legitimate state interest. In re Harhut, 385 N.W.2d 305, 310 (Minn. 1986). Appellant does not challenge the state's interest in requiring insurance coverage to protect all drivers and passengers on Minnesota roads. The financial burden that accompanies this insurance requirement is necessary and rationally related to the state's legitimate interest in protecting its citizenry, so that Minn. Stat. '' 65B.48 and 169.797 withstand intermediate scrutiny and are constitutional.

Appellant's problems are not all related to his economic status. He has a long driving record that includes DWI offenses and numerous citations for driving after cancellation, withdrawal, and revocation. Under these circumstances, the cost and financial burden of appellant's insurance are directly related to his driving record.

Affirmed.


Footnotes

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