This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Sara Lynn Carrigan,


Filed January 26, 1999

Certified question answered in the negative

Harten, Judge

Anoka County District Court

File No. K2-98-4016

Michael A. Hatch, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Douglas L. Johnson, Assistant Coon Rapids Attorney, 11155 Robinson Drive, Coon Rapids, MN 55433 (for respondent)

Harlan M. Goulett, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Peterson, Judge.



This case comes to us on a certified question pursuant to Minn. R. Crim. P. 28.03.

After denying appellant's motion to dismiss criminal charges, the district court certified the following question as important and doubtful:

Under the fact and procedural circumstances presented in this report, is the defendant entitled to a dismissal of gross misdemeanor charges based solely on the unconstitutionality in enhancing violations of Minn. Stat. § 169.121 based on prior alcohol-related license revocations?

Because we find that appellant has failed to show that the statute is unconstitutional and because State v. Dumas, __ N.W.2d __, C0-98-1152 (Minn. App. Dec. 15, 1998), has already substantially decided this issue, we answer the certified question in the negative.


The district court found upon the parties' stipulation that

[t]he state charged [appellant with] three counts of enhanced gross misdemeanor driving, third violation in ten years, in violation of Minn. Stat. § 169.121, subd. 3(d)(2), and three lesser-included counts of gross misdemeanor driving, second violation in five years, in violation of Minn. Stat. § 169.121, as allowed by Minn. Stat. § 169.121, subd. 3(c)(2).

In its remaining findings of fact and conclusions of law, the district court focused upon the three "lesser-included" counts involving Minn. Stat. § 169.121, subd. 3(c)(2) (Supp. 1997) for certification of the enhancement issue. These counts were enhanced to gross misdemeanors under subd. 3(c)(2), which provides that violations of Minn. Stat. § 169.121, subd. 1 (Supp. 1997) (driving while intoxicated), are enhanced if, within five years of the immediate offense, the defendant had a prior impaired driving conviction or a prior license revocation. Appellant had two prior alcohol-related license revocations within five years of the immediate offense. These license revocations were based on peace officer certification of probable cause to believe that appellant drove with a blood alcohol content of .10 or more; they did not result from appellant being convicted of impaired driving.


The district court certified the issue of whether the enhancement provided in section 169.121, subd. 3(c)(2), is unconstitutional, a question of law that we review de novo. Brandt v. Marshall Animal Clinic, 540 N.W.2d 870, 873 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996).

All statutes carry a presumption of constitutionality:

Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary. The party challenging a statute has the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.

In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (citations omitted).

Appellant argues that section 169.121, subd. 3(c)(2) is unconstitutional because: (1) it violates her right to counsel under Article I, Section 6 of the Minnesota Constitution, (2) it violates the ex post facto clause of the Minnesota and United States Constitutions, and (3) the enhancement is based on a non-criminal adjudication where guilt was not at issue. Appellant's first two arguments fail. In Dumas, we concluded that the statute does not violate a defendant's right to counsel or the ex post facto clause. ___ N.W.2d at ___, C0-98-1152, slip op. at 13-14.

Dumas did not address appellant's argument that section 169.121, subd. 3(c)(2), violates the due process clause because enhancement from misdemeanor to gross misdemeanor is based on a non-criminal adjudication where guilt was not at issue. Appellant cites Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586 (1971), and Prideaux v. Department of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976), for the proposition that "due process forbids a state from treating a prior proceeding as an adjudication of an issue unless that proceeding actually adjudicated that issue."[1] Appellant argues that because her guilt was not adjudicated at the event that resulted in revocation of appellant's driver's license, the state's use of the license revocation to enhance a criminal statute violates due process. But neither Bell nor Prideaux supports appellant's claim.

Bell did not deal with an enhancement statute; it does not stand for the proposition for which appellant cites it. Bell struck down a Georgia statute providing that motorists who were involved in accidents had their licenses revoked until they were either released from liability or filed a security deposit. 402 U.S. at 537, 91 S.Ct. at 1588. The Court held that under the United States Constitution a state could not revoke licenses without procedural due process and that "procedural due process will be

satisfied by an inquiry limited to the determination whether there is a reasonable possibility of judgments in the amounts claimed being rendered against the licensee." Id. at 540, 91 S.Ct. at 1590. Bell does not involve the use of civil action (such as license revocation) to enhance criminal penalties, nor does it support appellant's proposition that the license revocation must be "actually adjudicated" to be used as an enhancement. Moreover, in Daly v. State, 296 Minn. 238, 239, 207 N.W.2d 541, 542 (1973), Minnesota's implied consent law was held to be constitutional notwithstanding claimed due process violations.

Nor does Prideaux support appellant's argument; it does not concern enhancement or the "actually adjudicated" issue. 310 Minn. at 421, 247 N.W.2d at 394 (holding that a driver who must decide whether to submit to a blood-alcohol test under Minn. Stat. § 169.123 has the right to consult with a lawyer provided that there is no unreasonable delay). Thus, both Bell and Prideaux are distinguishable from the instant case; appellant's arguments based on these cases are correspondingly unconvincing.

Finally, appellant argues that State v. Friedrich, 436 N.W.2d 475, 477 (Minn. App. 1989), renders section 169.121, subd. 3(c)(2), unconstitutional. But in Dumas we rejected Friedrich as controlling precedent. __ N.W.2d at __, slip. op. at 10-11.

We conclude that appellant's arguments are not supported by caselaw and that appellant has not met her burden to demonstrate beyond a reasonable doubt that section 169.121, subd. 3(c)(2), is unconstitutional. Accordingly, Dumas having held the statute constitutional and appellant's arguments being otherwise unpersuasive, we answer the certified question in the negative.

Certified question answered in the negative.

[1] Appellant does not state whether she is discussing the Due Process Clause of the XIVth Amendment to the United States Constitution or the Due Process Clause of Article I, Section 7, of the Minnesota Constitution.