This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1998)


James Michael Roberts, petitioner,


Commissioner of Public Safety,

Filed July 13, 1999
Parker, Judge[*]

Hennepin County District Court
File No. IC476117

Samuel A. McCloud, Kelly V. Griffitts, Carson J. Heefner, McCloud & Boedigheimer, P.A., Suite 1000, Circle K, P.O. Box 216, Shakopee, MN 55379 (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 Kalitowski, Presiding Judge, Crippen, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


In an appeal from the district court order sustaining the revocation of his driver's license following an implied consent hearing, James Roberts contends his right to counsel was not vindicated. He argues that the statute's discovery limitations are unconstitutional under the separation of powers doctrine and that the statute's pleading requirements violate his Fifth Amendment right not to incriminate himself. He contends that the amendments render implied-consent proceedings quasi-criminal and, therefore, require heightened due process protection and that the discovery limitations constitute a denial of due process of law. We affirm.



The question of whether a driver has been given a reasonable amount of time to contact an attorney is a mixed question of law and fact. Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992). Once the facts are established, their import is a question of law, which this court reviews de novo. Id.; Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).

A driver has a limited right to counsel before deciding whether to submit to chemical testing. Minn. Const. Art. I, § 6; Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). That right is vindicated when the driver is provided a telephone and given reasonable time to contact an attorney. Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). Roberts contends he was not given a reasonable time to contact an attorney. The determination of a "reasonable time" may not be decided solely based on the time elapsed, rather it must be decided based on the totality of the facts. Parsons, 488 N.W.2d at 502.

In Parsons, the driver's right to counsel was held vindicated when he: (1) was provided a telephone and telephone book; (2) was able to call anyone; (3) was given 40 minutes to contact an attorney; (4) spent a considerable amount of time talking to a non-lawyer friend; and (5) understood the time to contact an attorney was limited. Id. Here, Roberts was provided with a telephone and a directory. He had access to the telephone for 35 minutes and was allowed to contact anyone he wanted. He chose to speak to a co-worker for approximately 15 minutes but, after hanging up, made no effort to contact an attorney because he did not wish to choose one at random from the telephone book. Although the officer informed Roberts his time to contact an attorney was limited to 30 minutes, the officer did not strictly enforce the time limitation. Moreover, although he had no legal obligation to do so, the officer contacted the police department in Palm Bay, Florida, Roberts' hometown, and allowed him to discuss his concerns regarding reciprocity with that state. Roberts' right to counsel was vindicated.


Roberts contends that Minn. Stat. § 169.123, subd. 5c(d) (1998), violates the separation of powers doctrine. The statute provides that

[j]udicial reviews shall be conducted according to the rules of civil procedure except that prehearing discovery is mandatory and is limited to:

(1) the notice of revocation;
(2) the test record, or in the case of blood or urine tests, the certificate of analysis;
(3) the peace officer's certificate and any accompanying documentation submitted by the arresting officer to the commissioner of public safety; and
(4) disclosure of potential witnesses, including experts, and the basis of their testimony.

Other types of discovery are not available.

Id. Statutes are presumed constitutional, and this court's power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary. In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).

The trial court, after discussing Roberts' constitutional argument, determined Roberts lacked standing to assert the challenge, having failed to show the purportedly unconstitutional provisions of the statute had been enforced against him and that he had received all the discovery he had requested. Although the latter finding is not supported by the record, we agree that Roberts does not have standing to challenge the constitutionality of the discovery provisions of the statute.

Standing to raise a constitutional challenge requires "a direct and personal harm resulting from the alleged denial of constitutional rights." Davis v. Commissioner of Pub. Safety, 509 N.W.2d 380, 391 (Minn. App. 1993) (quoting City of Minneapolis v. Wurtele, 291 N.W.2d 386, 392 (Minn. 1980)), aff'd, 517 N.W.2d 901 (Minn. 1994).

[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) (citations omitted), review denied (Minn. Mar. 22, 1990).

The Mandatory Discovery Notice and Disclosure letter the commissioner's office sent Roberts indicates he requested the arresting officer's radar, laser, and speedometer logs. The commissioner's letter advised Roberts that these documents were not within the custody or control of the commissioner's office and directed him to contact the arresting officer or the city attorney to obtain that information. Nothing in the record, however, indicates Roberts made any attempt to pursue these avenues. By failing to demonstrate that the statutory discovery limitations were the direct cause of his purported inability to obtain the requested records, Roberts has failed to demonstrate standing to challenge the provision. Cf. Davis, 509 N.W.2d at 391 (party challenging constitutionality of statute must show direct harm from alleged denial of constitutional rights).


Roberts contends that the implied consent statute's requirement that a petitioner "state with specificity the grounds upon which the petitioner seeks rescission of the order of revocation * * * and state the facts underlying each claim asserted," Minn. Stat. § 169.123, subd. 5c(b)(3) (1998), is unconstitutional under the Fifth Amendment. Roberts argues his right to remain silent has been abridged because all of the information provided in the petition for judicial review of the implied consent license revocation may be used against him in a subsequent criminal proceeding.

The trial court held Roberts did not have standing to bring a Fifth Amendment challenge because he did not set forth any facts in his petition for judicial review and, thus, the statements could not be used against him in a future criminal prosecution. We agree. Roberts received a hearing and his petition disclosed no fact that might be incriminating. The requirement, therefore, did not subject him to any personal harm and he lacks standing to challenge the constitutionality of the statute.


Roberts argues the penalty enhancing provisions of Minn. Stat. §§ 169.121, subd. 3(c)(2) and 169.121, subd. 3(d)(2) (1998), render civil implied-consent proceedings quasi-criminal, requiring that increased due process protection be afforded to implied consent petitioners. He further contends that the limited discovery provisions of Minn. Stat. § 169.123, subd. 5c(d) conflict with the Minnesota Rules of Civil Procedure governing discovery and, therefore, violate his right to due process of law. Roberts did not raise these arguments below and the trial court did not address the issues. We therefore decline to consider them on appeal. Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998) (citing Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988)) (this court will generally not consider matters not argued before or considered by the trial court). We note, however, that a challenge to the penalty enhancing provision brought before the criminal phase, if any, of this matter would be premature.


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