may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Eugene Michael Aavang, petitioner,
Commissioner of Public Safety,
Filed August 10, 1999
Hennepin County District Court
File No. 476252
Jeffrey B. Ring, The Interchange Tower, Suite 1690, 600 South Highway 169, Minneapolis, MN 55426 (for appellant)
Mike Hatch, Attorney General, Jeffrey F. Lebowski, Assistant Attorney General, Sean R. McCarthy, Assistant Attorney General, Timothy Rank, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent).
Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.
Appellant Eugene Michael Aavang challenges a district court order sustaining the revocation of his driver's license, arguing that he was deprived of his right to consult with an attorney of his choice. He also challenges the constitutionality of the implied consent law. We affirm.
At the hospital, the trooper gave Aavang a telephone and two telephone books. Aavang had a particular attorney in mind but could not find him listed in either book. He then called his fiancée to obtain her help in finding the attorney's telephone number. The trooper remained in the room and could hear Aavang's part of the conversation. When it appeared that Aavang was not speaking to an attorney, the trooper told him to terminate the call and to call an attorney. Aavang did so, found an attorney, and left a message on his answering machine.
A few minutes later the telephone rang. Believing that the attorney was calling back, Aavang answered. It was his fiancée. Once again, when it appeared that Aavang was not speaking with an attorney, the trooper told him to end the call and to call an attorney.
Eventually, Aavang was able to speak with an attorney whose number he had found in one of the telephone books. At the end of that conversation, the trooper asked Aavang if he was satisfied and he replied that he was. Aavang then agreed to give a urine sample. The sample showed an alcohol concentration of .12, an amount in excess of the legal limit. The Commissioner of Public Safety then revoked Aavang's driver's license.
A driver has a limited right to consult with counsel before deciding whether to submit to testing. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). That right is vindicated if the driver "is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel." Id. (quoting Prideaux v. Department of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)). However, a police officer need not ensure that "the defendant has received the best or even proper counsel." Butler v. Commissioner of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984). To the extent the facts are uncontested, whether a driver was given a reasonable opportunity to consult with counsel is a question of law that is reviewed de novo. McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 914 (Minn. App. 1995).
Aavang complains that the trooper denied him a reasonable opportunity to contact an attorney of his choice. The trooper gave him a telephone and two telephone books at 8:19 p.m. Aavang concluded his conversation with the attorney at 9:02 p.m. Thus, the trooper allowed Aavang 43 minutes to locate and consult with an attorney. The trooper acknowledged that in one of the conversations with Aavang's fiancée Aavang asked about locating an attorney. In neither conversation did the fiancée provide the information but rather she scolded Aavang and spent time discussing matters unrelated to his request for the attorney's telephone number. Finally, Aavang did speak uninterruptedly with an attorney for as long as he desired and then told the trooper that he was satisfied with his opportunity to consult with an attorney. Under these circumstances we hold that Aavang's limited right to consult with an attorney was vindicated.
Here, Aavang raises three constitutional challenges to Minn. Stat. § 169.123. (1998). He argues that (1) he was denied his constitutional right against self-incrimination; (2) he was provided discovery inconsistent with due process; and (3) the enhancement provision under the implied consent statute is unconstitutional.
Aavang argues that his Fifth Amendment rights were violated by the factual pleading requirement of the implied consent statute. The district court held that his Fifth Amendment rights were not violated because the statute does not compel incriminating statements, but rather imposes a notice pleading requirement that does not implicate the Fifth Amendment.
Aavang has failed to demonstrate any personal harm from the application of the implied consent statute. Furthermore, because this is a civil proceeding, his Fifth Amendment right is not absolute and may be invoked only if the compelled statements are inherently self-incriminating so that it can reasonably be apprehended that they would be used against him in a criminal proceeding. Hedden v. Dirkswager, 336 N.W.2d 54, 63 (Minn. 1983) (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S. Ct. 1594, 1596 (1964)).
The factual statement pleading requirement under the implied consent statute provides that a Petition for Judicial Review must "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). Thus, a petitioner is required only to give notice to the Commissioner of Public Safety as to what facts the petitioner intends to present to the court at the implied consent hearing, facts that are necessarily exculpatory rather than incriminating. Because Aavang has not demonstrated beyond a reasonable doubt that the factual statement pleading requirement compelled him to incriminate himself, his argument fails.
(2) Due Process
Aavang next contends that Minn. Stat. § 169.123, subd. 5c(d), violates procedural due process because of its discovery limitations. The district court addressed and rejected that argument. In its order, the district court concluded that Aavang's interest in his driver's license does not require a higher degree of due process than is afforded under the current statute, and that the discovery provisions are constitutionally permissible because implied consent hearings are "special proceedings" exempt from the ordinary Rules of Civil Procedure.
On appeal, Aavang lacks standing because he fails to show a direct and personal harm resulting from the statutory limitations. He was given access to the entire file held by the commissioner. He was advised of the witnesses the commissioner intended to call at the implied consent hearing. He was informed that if he wanted other information not in the commissioner's possession, he could contact the Bureau of Criminal Apprehension, the arresting officer, or the City Attorney's Office. Given the information made available to him and his failure to demonstrate any resulting harm caused by the limited discovery provision, Aavang's constitutional claim fails.
Aavang next argues that the procedural protections afforded criminal defendants, including the right to counsel, the right to a jury trial, as well as other protections, should apply in this proceeding because this civil revocation can be used in a future criminal sentencing enhancement.
Aavang's argument is premature; he therefore does not have standing to raise this issue. At this point he cannot attack the constitutionality of Minn. Stat. § 169.121, but must limit his argument to Minn. Stat. § 169.123. See Davis v. Commissioner of Pub. Safety, 509 N.W.2d 380, 392 (Minn. App. 1993) (concluding appellant's attack on enhancement statute is more properly reserved to criminal proceedings because statute being invoked and challenged is the implied consent statute, Minn. Stat. § 169.123, not DWI statute Minn. Stat. § 169.121).