This opinion will be unpublished and

may not be cited except as provided by

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




Marty James Herman, petitioner,



Commissioner of Public Safety,


Filed June 15, 1999


Short, Judge

Steele District Court

File No. C598396

Jeffrey B. Ring, The Interchange Tower, Suite 1690, 600 South Highway 169, Minneapolis, MN 55426 (for appellant)

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

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Short, Judge.


SHORT, Judge

Marty James Herman's driver's license was revoked pursuant to Minn. Stat. § 169.123, subd. 4 (1998). After conducting a hearing under Minn. Stat. § 169.123, subd. 6 (1998), the trial court sustained revocation of Herman's license. On appeal, Herman argues: (1) he did not have physical control of the vehicle; and (2) amendments to the implied consent law violate his right against self-incrimination, his right to due process, and the separation of powers doctrine. We affirm.


The trial court's findings of fact will not be set aside unless clearly erroneous. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). Review of the constitutionality of a statute is a question of law, which this court reviews de novo. Estate of Jones by Blume v. Kvamme, 529 N.W.2d 335, 337 (Minn. 1995). As a threshold matter, we must determine whether a party has standing to challenge the constitutionality of a statute. See City of Minneapolis v. Wurtele, 291 N.W.2d 386, 393 (Minn. 1980) (requiring party to show direct, personal harm to establish standing). If there is standing, a party must then overcome a presumption that the statute is constitutional. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn. 1979). We will uphold a statute unless the challenging party demonstrates a constitutional infirmity beyond a reasonable doubt. Kvamme, 529 N.W.2d at 337.


The implied consent law applies to "[a]ny person who drives, operates, or is in physical control of a motor vehicle * * *." Minn. Stat. § 169.123, subd. 2(a) (1998). The implied consent statutes are remedial statutes and as such, are liberally interpreted in favor of the public interest against the private interests of the driver involved. State, Dep't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981). The statutory term "physical control" is more comprehensive than either "drive" or "operate," and is meant to "cover situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property." State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992). Operability of the motor vehicle or an intent to operate are not elements. Id. at 838-39. Mere presence is insufficient to establish physical control, but the overall situation is determinative. Id. at 838.

Herman argues he was a passenger who relinquished control of his vehicle to a designated driver. But the record demonstrates: (1) Herman hired a stranger to drive him and an intoxicated companion from a restaurant to a convenience store; (2) Herman was found intoxicated in the front seat of his parked pick-up truck; (3) the keys were within his reach inside the truck; (4) Herman did not explain to the officer who approached him why he was sitting intoxicated in the parked truck; and (5) Herman and his intoxicated passenger planned to go to a motel for the night. Although there is conflicting evidence, the trial court could reasonably find that Herman was in physical control of his vehicle. See LaBeau v. Commissioner of Pub. Safety, 412 N.W.2d 777, 780 (Minn. App. 1987) (finding revocation justified where intoxicated driver was sitting in driver's seat of truck and keys were in easy reach within glove compartment); Palme v. Commissioner of Pub. Safety, 366 N.W.2d 343, 344-45 (Minn. App. 1985) (upholding revocation where intoxicated person was found sleeping in truck even though he never planned to drive it), review denied (Minn. June 24, 1985).


Herman argues amendments to the implied consent law violate his right against self-incrimination, his right to due process, and the separation of powers doctrine, and the implied consent proceedings require additional safeguards. But the record shows that Herman: (1) did not make any factual statements that could be used in future criminal prosecution; (2) was advised of the commissioner's possible witnesses and documents through discovery; (3) failed to request additional discovery; (4) did not claim he was unable to proceed to hearing due to the mandatory limited discovery provisions; and (5) has not been charged with any criminal offense. Thus, Herman has not been harmed by the limited discovery or petition requirements, and lacks standing to challenge the constitutionality of Minn. Stat. § 169.123, subd. 5c(b)(3), subd. 5c(d) (1998). See Kennedy v. Carlson, 544 N.W.2d 1, 6 (Minn. 1996) (noting hypothetical injuries do not establish standing); Wurtele, 291 N.W.2d at 393 (requiring party to show direct and personal harm to establish standing). Under these circumstances, the trial court properly sustained the revocation of Herman's driver's license. See Wurtele, 291 N.W.2d at 393 (requiring party to establish standing before addressing constitutional issues).