A04-949

State of Minnesota,

Respondent,

vs.

Justin Turner,

Appellant.

Filed May 3, 2005

Affirmed

Hudson, Judge

Hennepin County District Court

File No. 03071300

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Appellant Justin Turner challenges his conviction of felony driving while impaired (DWI), arguing that, because the enhancement of the charge pursuant to Minn. Stat. § 169A.24 (2002), relied in part on two prior license revocations under the civil implied-consent statute, his constitutional right to due process was violated. Appellant argues that, although this court rejected similar arguments in State v. Dumas, 587 N.W.2d 299 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999), and State v. Coleman, 661 N.W.2d 296 (Minn. App. 2003), we should revisit the issue here. Because appellant can point to no compelling reason for this court to depart from the reasoning of Dumas and Coleman, we again find that the use of civil license revocations to enhance DWI charges does not violate the right to due process, and we affirm.

FACTS

On October 5, 2003, appellant was stopped by a City of Champlin police officer for driving with a broken rear taillight. When he approached appellant, the officer smelled alcohol and noticed that appellant’s eyes were glassy and watering. A preliminary breath test showed that appellant’s alcohol concentration was .105. In addition, an open can of beer was found during an inventory search of appellant’s car. Appellant was arrested for DWI, and, at the police station, appellant stated that he understood the implied-consent advisory, but he refused to take another alcohol-concentration test.

Because appellant had three prior alcohol-related offenses—one DWI conviction, and two license revocations under the civil implied-consent statute—he was charged with felony DWI under Minn. Stat. § 169A.24. Appellant was also charged with refusal to submit to a chemical test under Minn. Stat. § 169A.20, subd. 2 (2002). Appellant subsequently waived his right to a jury trial and agreed to submit the matter to the district court on stipulated facts. On December 3, 2003, the district court heard arguments from both sides. On January 26, 2004, the district court entered its order, finding appellant guilty of the charged offenses. This appeal follows.

D E C I S I O N

Appellant argues that the use of civil license revocations to enhance the criminality of his DWI charge, under Minn. Stat. § 169A.24, violates his constitutional right to due process. Although this court found that a civil license revocation can be used for enhancement of an offense from a misdemeanor to a gross misdemeanor in State v. Dumas, 587 N.W.2d 299, 303–04 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999), and rejected an argument mirroring appellant’s in State v. Coleman, 661 N.W.2d 296 (Minn. App. 2003), appellant invites this court to revisit this issue in light of the facts of his case.

The constitutionality of a statute is a question of law. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). “Minnesota statutes are presumed constitutional, and our 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). A party challenging the constitutionality of a statute bears the burden of demonstrating that the statute is unconstitutional. State v. Clausen, 493 N.W.2d 113, 115 (Minn. 1992).

Appellant contends that his due-process rights were violated here because the civil license revocations used to enhance his DWI charge were not subject to “meaningful judicial review.” Appellant bases his argument on the U.S. Supreme Court’s decision in United States v. Mendoza-Lopez, 481 U.S. 828, 837–38, 107 S. Ct. 2148, 2155 (1987), which states:

Where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining review must be made available before the administrative order may be used to establish conclusively the element of a criminal offense.

Appellant argues that no “meaningful review” occurred here because the two civil revocations occurred by default, without contested hearings. Further, appellant argues that, even if there had been a revocation hearing, “the problem remains that the enhancement of the criminal DWI penalty is based upon a non-criminal administrative procedure that did not require proof beyond a reasonable doubt.”

In Coleman, the defendant was convicted of first-degree DWI. On appeal, the defendant argued that the use of a civil revocation of his driving privileges as an aggravating factor violated his due-process rights because the revocation was not subject to “meaningful judicial review.” Coleman, 661 N.W.2d at 300. This court stated that revocation of driving privileges under Minnesota’s implied-consent statute is subject to both administrative review pursuant to Minn. Stat. § 169A.53, subd. 1 (2002), and judicial review pursuant to Minn. Stat. § 169A.53, subd. 2 (2002), and, therefore, the two proceedings are separate and unrelated. Id. at 301. The court also held that, although the defendant failed to exercise his right to seek judicial review for his 1999 revocation, the availability of judicial review satisfied the Mendoza-Lopez requirement that “an alternative means of obtaining review must be made available.” Id. (emphasis added) (quoting Mendoza-Lopez, 481 U.S. at 838, 107 S. Ct. at 2155).

Here, appellant fails to show how his case is any different from Coleman. Like Coleman, judicial review of the civil revocation was available to appellant, but appellant did not seek such review. Accordingly, we find that meaningful review was available to appellant, and, thus, the requirements of Mendoza-Lopez are satisfied. See Coleman, 661 N.W.2d at 301; Mendoza-Lopez, 481 U.S. at 838, 107 S. Ct. at 2155.

Minnesota courts have also consistently held that using a prior license revocation as an aggravating factor is not unconstitutional. See, e.g., State v. McLellan, 655 N.W.2d 669, 671 (Minn. App. 2003); State v. Dumas, 587 N.W.2d 299, 304–05 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999). Appellant sets forth no compelling reason for this court to depart from its prior decisions on this issue. Accordingly, we find that the state’s reliance on appellant’s prior license revocation to enhance his DWI charge was not a violation of due process.

Affirmed.