may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
April Hartman, petitioner,
Commissioner of Public Safety,
Filed March 2, 1999
Reversed and remanded
Hennepin County District Court
File No. 475856
Michael A. Hatch, Attorney General, Timothy C. Rank, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for appellant)
Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Peterson, Judge.
In this appeal from an order rescinding the revocation of respondent's driving privileges, appellant argues that the trial court erred by concluding that a portion of Minn. Stat. § 169.123, subd. 5c(b)(3) (Supp. 1997), is unconstitutional. Because respondent did not have standing to challenge the statute, we reverse and remand.
Respondent April Marie Hartman was arrested for driving while intoxicated (DWI) and failed a breath test. Hartman's driver's license was revoked, and she filed a petition under Minn. Stat. § 169.123, subd. 5c(a) (Supp. 1997), for judicial review of the revocation. The fact section of Hartman's petition alleged the following:
Petitioner did not exhibit indicia of intoxication. The police officer did not inform Petitioner of her right to consult with an attorney prior to testing. By not informing Petitioner of her right to counsel, the police officer effectively prevented/denied Petitioner an additional test.
Appellant Commissioner of Public Safety did not challenge the sufficiency of these factual allegations.
Hartman argued in the trial court that the portion of Minn. Stat. § 169.123, subd. 5c(b)(3) that requires a petition for judicial review of a driver's license revocation to state the facts underlying each claim asserted as a basis for rescission violates the petitioner's constitutional right to be free from compelled self-incrimination. The trial court concluded that this portion of the statute is not constitutional and rescinded the commissioner's revocation order.
"There is no standing to raise a constitutional challenge absent a direct and personal harm resulting from the alleged denial of constitutional rights." City of Minneapolis v. Wurtele, 291 N.W.2d 386, 393 (Minn. 1980).
It is an elementary doctrine of constitutional law that one who invokes the power of the court to declare a statute unconstitutional must be able to show not only that the statute is invalid but that the person has sustained or is in immediate danger of sustaining some direct injury resulting from its enforcement and not merely that the person suffers in some indefinite way in common with people generally.
Paulson v. Lapa, Inc., 450 N.W.2d 374, 380 (Minn. App. 1990), review denied (Minn. Mar. 22, 1990).
The privilege [against self-incrimination] can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory. * * * [I]t protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.
Murphy v. Waterfront Comm'n, 378 U.S. 52, 94, 84 S. Ct. 1594, 1611 (1964) (citations omitted).
"The constitutional protection against self-incrimination `is confined to real danger, and does not extend to remote possibilities out of the ordinary course of law.'" Mason v. United States, 244 U.S. 362, 365, 37 S. Ct. 621, 622 (1917) (quoting Heike v. United States, 227 U.S. 131, 144, 33 S. Ct. 226, 228 (1913)).
[T]he danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things,--not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.
Id. at 365-66, 37 S. Ct. at 622 (quotation omitted).
Hartman could not reasonably apprehend that the disclosures she made in the fact section of her petition could be used in a criminal prosecution or could lead to other evidence that could be used in a criminal prosecution. The carefully drafted statements in the fact section did not provide any incriminating evidence, and there was no appreciable danger that the disclosures could be used in a criminal prosecution or could lead to other evidence that could be used in a criminal prosecution.
The trial court concluded that the allegations in the fact section of Hartman's petition were incriminating because they amounted to an admission that Hartman was the driver of the stopped vehicle, which is one of the facts that the state would have to prove in a criminal DWI proceeding. We disagree. The first sentence in the fact section denies that Hartman exhibited indicia of intoxication; this sentence admits nothing. The second and third sentences assert the legal claims that Hartman was not informed of her right to counsel and that the police officer denied her right to obtain an additional test; Hartman does not admit in either sentence that she was the driver of the stopped vehicle.
It appears that the trial court's conclusion that the statements in the petition amount to an admission that Hartman was the driver is based on the inference that Hartman was the driver because she asserted rights that belong to a driver. But such an inference is not testimony within the scope of the privilege against self-incrimination. See California v. Byers, 402 U.S. 424, 433-34, 91 S. Ct. 1535, 1540-41 (1971) (rejecting argument that since statutory duty to stop vehicle at scene of accident is imposed only on driver of vehicle, driver's compliance is testimonial because his actions give rise to inference that he was the driver). Hartman's claim that she is entitled to the rights of a driver is not an admission that she was the driver of the vehicle that was stopped and does not demonstrate that she was the driver. By themselves, Hartman's claims do not implicate her in criminal conduct.
Hartman did not show that she sustained or was in immediate danger of sustaining some direct injury resulting from enforcement of the statutory requirement that she state the facts underlying each claim she asserted as a basis for rescinding her license revocation. The commissioner did not challenge the sufficiency of the factual allegations in Hartman's petition, and she was not prevented from challenging her license revocation.
We therefore conclude that Hartman lacked standing to assert her claim that a portion of Minn. Stat. § 169.123, subd. 5c(b)(3), is unconstitutional because it violates a petitioner's right to be free from compelled self-incrimination by requiring a petition for judicial review of a driver's license revocation to state the facts underlying each claim asserted as a basis for rescission.
Reversed and remanded.