This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Kevin John Dyrhaug, petitioner,



Commissioner of Public Safety,


Filed May 25, 1999


Toussaint, Chief Judge

Hennepin County District Court

File No. 476165

Charles N. Ek, The Law Office of Charles N. Ek, Barristers Trust Building, Suite 205, Avenue South, Minneapolis, MN 55415 and

Peter B. Wold, Wold, Jacobs & Johnson, P.A., Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415; (for respondent)

Mike Hatch, Attorney General, Jeffrey F. Lebowski, Michael R. Pahl, Assistant Attorneys General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for appellant)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge,[*] and Holtan, Judge.[**]


TOUSSAINT, Chief Judge

Appellant Commissioner of Public Safety (commissioner) challenges the order rescinding the revocation of respondent Kevin John Dyrhaug's driving privileges, arguing the district court erred in concluding that the factual-statement requirement of Minn. Stat. § 169.123, subd. 5c(b)(3) (1998), violates Dyrhaug's right against self-incrimination. Because Dyrhaug could not reasonably apprehend that his factual statement enhances the threat of criminal prosecution, he has no standing to challenge the constitutionality of this statute, and we therefore reverse.


In a petition for review of the revocation of driving privileges, a petitioner must

state with specificity the grounds upon which the petitioner seeks rescission of the order of revocation, disqualification, or denial and state the facts underlying each claim asserted.

Minn. Stat. § 169.123, subd. 5c(b)(3)(1998). The district court concluded that the factual-statement requirement violates Dyrhaug's right against self-incrimination and is therefore unconstitutional.

The constitutionality of a statute is a question of law, subject to de novo review. Moe v. Commissioner of Pub. Safety, 574 N.W.2d 96, 98 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998). We need not defer to the district court's legal conclusions. Id. Statutes are presumed constitutional, and the party challenging a statute must demonstrate a violation of some constitutional provision beyond a reasonable doubt. In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (noting the court's power to declare statute unconstitutional should be exercised with extreme caution and only when absolutely necessary).

The commissioner claims Dyrhaug has no standing to challenge the constitutionality of the factual-statement requirement. Dyrhaug's petition for review disclosed the following facts:

Petitioner was not under the influence of alcohol or over .10 at the time he was driving, operating or in physical control of a motor vehicle. He was given no other option but blood testing at the critical time the test was demanded. He was denied the opportunity to select an attorney of his own choosing prior to being forced to decide if he would take a test.

The commissioner argues that these facts are exculpatory and that Dyrhaug therefore suffered no harm as a result of his disclosure.

A party has no standing to challenge the constitutionality of a statute "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). This court has previously stated:

[O]ne 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); see also Villars v. Provo, 440 N.W.2d 160, 162 (Minn. App. 1989) (stating that, to have standing, challenger of statute must allege specific, concrete facts showing personal harm).

In civil cases, the right against self-incrimination is not absolute and may be invoked only when testimony "would enhance the threat of criminal prosecution such that reasonable grounds exist to apprehend its danger." Parker v. Hennepin County Dist. Court, Fourth Judicial Dist., 285 N.W.2d 81, 83 (Minn. 1979) (citing Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814 (1951); Blau v. United States, 340 U.S. 159, 71 S. Ct. 223 (1950)); see also Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S. Ct. 1594, 1611 (1964) (stating that right protects 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").

Here, the petition disclosed exculpatory, not incriminating, facts. Dyrhaug could not reasonably apprehend his disclosure could be used in a criminal prosecution or could lead to other evidence that could be used in a criminal prosecution. Thus, Dyrhaug has not demonstrated he sustained--or was in immediate danger of sustaining--a direct and personal harm resulting from the enforcement of the factual-statement requirement.

The district court concluded that Dyrhaug's factual statement was an admission he was the driver of the stopped vehicle, a fact the state would have to prove beyond a reasonable doubt in a criminal proceeding for driving under the influence (DUI). We disagree. Dyrhaug, through his petition, denied committing the crime of DUI. See Minn. Stat. § 169.121, subd. 1(a), (d) (1998) (providing that it is illegal to drive, operate, or be in physical control of motor vehicle while under influence of alcohol or when alcohol concentration is .10 or more).

Furthermore, the commissioner did not deny Dyrhaug the opportunity to challenge his license revocation. Rather, the commissioner requested a continuance at the originally scheduled hearing, arguing that Dyrhaug's petition did not set forth sufficient facts underlying his claim that he was denied the right to an additional test. The district court granted the request for a continuance, and Dyrhaug submitted an amended petition providing facts underlying that claim. An evidentiary hearing was held on August 24, 1998, pursuant to Minn. Stat. § 169.123, subd. 6 (1998).

We therefore conclude Dyrhaug has no standing to assert his claim that the factual-statement requirement of Minn. Stat. § 169.123, subd. 5c(b)(3), violates his right against self-incrimination. The district court's order rescinding the revocation of Dyrhaug's driving privileges is reversed.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

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