This opinion will be unpublished and

may not be cited except as provided by

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




Richard Jerome Johnson,



Commissioner of Public Safety,


Filed August 17, 1999


Halbrooks, Judge

Washington County District Court

File No. C6-98-1393

Samuel A. McCloud, Kelly Vince Griffitts, McCloud & Boedigheimer, P.A., Suite 1000, Circle K, 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 Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.



Richard Johnson appeals the denial of his petition to rescind the revocation of his driver's license following an implied consent hearing. Johnson challenges the constitutionality of the 1997 amendments to the implied consent statute alleging: (1) the statute's discovery limitations violate the separation of powers doctrine and the due process clauses of the state and federal constitutions; (2) the factual-statement pleading requirements of the statute violate his Fifth Amendment right not to incriminate himself; and (3) the amendments render the implied consent proceedings quasi-criminal, requiring increased due process protections. Because we find Johnson lacks standing to assert any of these claims, we affirm the district court.


Johnson was arrested on February 24, 1998, for driving while intoxicated. Johnson submitted to an alcohol concentration test, and it indicated he had an alcohol concentration of .16. His driving privileges were revoked.

On March 10, 1998, Johnson sought judicial review of the license revocation order. He subsequently served a subpoena on the arresting officer for the purpose of conducting a deposition. The county attorney made a motion to quash the subpoena due to the discovery limitations of the implied consent statute, and the motion was granted.

On December 14, 1998, the district court reviewed the revocation order. At the hearing, Johnson waived all factual issues and submitted three constitutional issues for consideration. He argued (1) the discovery limitations of Minn. Stat. § 169.123, subd. 5c(d), violate the separation of powers doctrine and the due process clauses of the state and federal constitutions; (2) Minn. Stat. § 169.123, subd. 5c(b)(3), violates his right to be free from compelled self-incrimination; and (3) the 1997 amendments to Minn. Stat. § 169.121, subds. 3(c)(2) and (d)(2), have transformed the civil implied consent proceeding into a quasi-criminal proceeding requiring increased due process protections.

The district court sustained the commissioner's order of revocation on each constitutional ground raised by Johnson. This appeal followed.


Review of the constitutionality of a statute is a question of law, which this court considers de novo. Moe v. Commissioner of Pub. Safety, 574 N.W.2d 96, 98 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998).

Minnesota 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).

It is axiomatic that a party challenging the constitutionality of a statute must first demonstrate standing. 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. June 24, 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), review denied (Minn. Mar. 22, 1990).


Johnson contends the discovery limitations imposed by Minn. Stat. § 169.123, subd. 5c(d) (Supp. 1997), violate the separation of powers doctrine and due process. The subdivision provides:

[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.


We conclude Johnson lacks standing to bring these constitutional challenges. Although the district court granted the commissioner's motion to quash Johnson's subpoena of the arresting officer, Johnson did not challenge the recorded facts at the implied consent hearing; he submitted only the constitutional issues. Thus, whether Johnson was actually injured by the prohibition of his discovery request is at best speculative. See Byrd v. Independent School Dist. No. 194, 495 N.W.2d 226, 231 (Minn. App. 1993) (holding in order to have standing injury must not be merely "speculative"), review denied (Minn. Apr. 20, 1993).


Minn. Stat. § 169.123, subd. 5c(b)(3) (Supp. 1997), provides a petition for judicial review of a revocation under Minnesota's implied consent law 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.


Johnson alleges the fact specificity requirements of the statute abridge his Fifth Amendment right to remain silent because all of the information provided in the petition may be used against a petitioner in a subsequent criminal proceeding. The district court found Johnson lacked standing to bring a Fifth Amendment challenge because he failed to establish he suffered, or was in immediate danger of suffering, a direct injury. We agree.

Johnson did not set forth any underlying facts in his petition for judicial review that could be used against him in a future criminal proceeding, and he was not denied a hearing because of his failure to do so. The statute's specificity requirement, therefore, did not subject him to any personal harm.


Johnson argues the penalty enhancing provisions of Minn. Stat. § 169.121, subds. 3(c)(2) and (d)(2) (Supp. 1997), render the civil implied-consent proceedings quasi-criminal, requiring increased due process protection to be afforded to implied consent petitioners. Johnson's constitutional challenge is premature. Johnson is appealing from the implied consent proceeding and as such he is not yet subject to the enhancement provision. There is also no indication he will be subject to the statute's enhancement provisions even if he is criminally prosecuted. The record does not indicate whether Johnson has ever previously had his license revoked. Thus, Johnson lacks standing to pursue a constitutional challenge of the DWI enhancement provisions. See Davis, 509 N.W.2d at 391 (holding implied consent proceeding is not proper forum to raise the argument that implied consent proceeding affects the liberty interest of the driver, requiring additional due process protections; such arguments should be raised at the time the person is charged with gross misdemeanor driving while intoxicated).