Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mark Steven Walker, petitioner,
Commissioner of Public Safety,
Filed May 12, 1998
Stearns County District Court
File No. C2-97-2202
Hubert H. Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, 525 Park Street, St. Paul, MN 55103 (for respondent)
Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.
Appellant Mark Steven Walker challenges cancellation and denial of his driver's license for violation of his restricted "B card" license under Minn. Stat. § 171.19 (1996). Appellant asserts res judicata and claims that the reinstatement hearing was inadequate because the arresting officer was not present for cross-examination. Because the reinstatement hearing was not a second suit involving the same cause of action as the implied consent proceeding, res judicata does not apply. Because the trial court may consider police reports in evaluating a "B card" violation challenge, there is evidentiary support for the trial court's decision. Accordingly, we affirm.
We conclude that appellant's challenge to his license revocation for a "B card" violation is not a second suit involving the same cause of action. The Ascher court concluded that an implied consent revocation proceeding under Minn. Stat. § 169.123, subd. 5(c) (1996), and a review of license cancellation and denial under Minn. Stat. § 171.19 (1996), are mutually exclusive because section 171.19 expressly applies "except where the license is revoked under section 169.123." Id. (quoting Minn. Stat. § 171.19). Thus, the prior proceeding under section 169.123 did not involve "the same cause of action" as this action under section 171.19.
In addition, Minn. Stat. § 169.123 subd. 6(b) (1996) limits the scope of an implied consent hearing to enumerated issues arising out of an alleged offense. Whether appellant violated the terms of his "B card" license restriction by consuming alcohol or controlled substances is not one of those issues. Thus, this "B card" challenge could not have been heard as part of the prior implied consent proceeding.
Appellant argues that in order for the commissioner's records to be fully considered by the district court, the arresting officer, Deputy Scott Dirkes, should have been present at the hearing and available for cross-examination. As respondent points out, Minn. Stat. § 171.19 provides that the commissioner
may present evidence upon the hearing by affidavit personally, by agents, or by representatives. The petitioner may present evidence by affidavit, except that the petitioner must be present in person at such hearing for the purpose of cross-examination.
Id. Thus, the statute expressly allows Deputy Dirkes's testimony to be offered by affidavit.
Section 171.19 is silent, however, regarding the type of affidavit to be offered. Respondent argues that an affidavit from the Department of Public Safety certifying that the attached exhibits are true and correct copies of original documents in the commissioner's files is sufficient. See Gardner v. Commissioner of Pub. Safety, 423 N.W. 2d 110, 114 (Minn. App. 1988) (affirming admission of similar evidence under exception to hearsay rule). Appellant argues that the affidavit should be substantive and signed by the police officer. Because police reports are evidence upon which the commissioner may rely, and because it is the district court's role to review the commissioner's evidence, we conclude that the district court can also rely on police reports. Thorson, 519 N.W.2d at 493; Minn. R. 7503.0100, subpt. 11 (1997). We therefore conclude that the district court did not err by determining that the commissioner presented evidence showing good cause existed to cancel and deny appellant's restricted license.
[ ]1 We note that where the commissioner offers no live testimony and the petitioner does, a district court may choose to find the petitioner more credible. See Minn. R. Civ. P. 52.01 (weight and credibility to give each witness for trial court). Here, however, the district court did not accept appellant's testimony.