A04-2061

State of Minnesota,

Respondent,

vs.

Curtis Lee Frederickson,

Appellant.

Filed September 6, 2005

Affirmed

Hudson, Judge

Dakota County District Court

File No. K1-03-3744

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

James C. Backstrom, Dakota County Attorney, Nicole L. Fredricks, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, Minnesota 55033 (for respondent)

Ethan P. Meaney, Derek A. Patrin, Gerald Miller & Associates, P.A., 2915 Wayzata Boulevard, Minneapolis, Minnesota 55405 (for appellant)

Considered and decided by Dietzen, Presiding Judge; Stoneburner, 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 challenges the district court’s order allowing the use of a prior civil Minnesota driving while intoxicated (DWI) - related driver’s-license revocation based on an uncounseled foreign DWI conviction to enhance Minnesota impaired-driving offenses. Based on prior holdings of this court, we affirm.

FACTS

A South St. Paul police officer stopped appellant for a traffic offense in Dakota County. The investigating officer observed indicia of intoxication and arrested appellant for driving while impaired. Appellant refused to submit to any test to determine alcohol concentration. Appellant’s driving record includes a September 23, 1997 Minnesota revocation resulting from a January 1997 Wisconsin conviction for operating a motor vehicle while intoxicated. Appellant’s driving record also includes two additional revocations from 1999 and 2001 that are not in dispute.

The state charged appellant with first-degree driving while impaired in violation of Minn. Stat. ง 169A.24 (2002). The complaint alleged that appellant has three prior qualified impaired-driving incidents within the preceding ten years. Appellant moved to dismiss the first-degree count, arguing that the 1997 Minnesota revocation that was based on his Wisconsin conviction could not be used as a basis for enhancement because his Minnesota constitutional right to counsel was not vindicated during the testing procedure that led to his DWI conviction in Wisconsin. The district court denied appellant’s motion, finding that appellant did not allege any constitutional infirmity with regard to the revocation itself but, rather, with the Wisconsin conviction that resulted in the revocation.

Appellant submitted the matter to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). On July 30, 2004, the district court found appellant guilty and sentenced appellant to 54 months in prison. This appeal follows.

D E C I S I O N

Appellant challenges his conviction of first-degree driving while impaired, arguing that the charging enhancement violated his Minnesota constitutional rights. The district court’s denial of a motion to prohibit using appellant’s 1997 Minnesota driver’s-license revocation to enhance his current charges raises a question of law, which this court reviews de novo. State v. Bergh, 679 N.W.2d 734, 737 (Minn. App. 2004).

Under Minnesota law, “[a] person who violates section 169A.20 (driving while impaired) is guilty of first-degree driving while impaired if the person . . . commits the violation within ten years of the first of three or more qualified prior impaired driving incidents.” Minn. Stat. ง 169A.24, subd. 1(1) (2002). The phrase “qualified prior impaired driving incident” includes prior impaired driving-related losses of license such as a driver’s-license revocation. Minn. Stat. ง 169A.03, subds. 21(1), 22 (2002). Minn. Stat. ง 171.17 directs the department of public safety to “immediately revoke the license of a driver upon receiving a record of the driver’s conviction of . . . an offense in another state that, if committed in this state, would be grounds for revoking the driver’s license.” Minn. Stat. ง 171.17, subd. 1(a)(9) (2002). A revocation under section 171.17 qualifies as a prior impaired-driving incident for purposes of a charging enhancement under section 169A.24.

Here, appellant argues that the 1997 revocation of his Minnesota driver’s license under section 171.17 cannot be used to enhance the current charge because the Wisconsin conviction triggering the application of section 171.17 was obtained in violation of Minnesota’s constitutional right to consult with an attorney before deciding whether to submit to alcohol-concentration testing. In Minnesota, a driver has a limited right to consult with an attorney before deciding whether to submit to alcohol-concentration testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 833–34 (Minn. 1991). Wisconsin law does not provide for any right to counsel before such testing. See State v. Reitter, 595 N.W.2d 646, 659 (Wis. 1999) (holding that there is no state constitutional right to consult with an attorney before deciding whether to submit to chemical testing).

a. Collateral attack

The state contends that appellant is prohibited from challenging the enhancement because appellant cannot collaterally attack the validity of a prior license revocation in a subsequent proceeding. Because this argument contradicts controlling precedent, we disagree.

The Minnesota Supreme Court has recognized that Minnesota law extends the right to counsel, beyond the dictates of the federal constitution, to any case that may lead to incarceration. State v. Nordstrom, 331 N.W.2d 901, 904–05 (Minn. 1983). In Nordstrom, the supreme court held that a Wisconsin criminal conviction in which the defendant was not represented by counsel could not be used to enhance a subsequent DWI offense to a gross misdemeanor if the right to counsel was not properly waived. Id. at 905. Concerned that an accused person may be incarcerated without the assistance of counsel to present potential defenses, the Nordstrom court rested on federal law stating that a person may collaterally attack a prior conviction on constitutional grounds and have it invalidated in a subsequent proceeding for purposes of an enhanced penalty statute. Id. (citing Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585 (1980)). At that time, the statute did not permit enhancement based on prior civil revocations, so the court had no occasion to address whether a defendant may collaterally attack a revocation in a subsequent proceeding.

In 1992, the legislature amended the DWI statute to allow for the first time the use of prior civil implied-consent revocations to enhance later criminal-refusal offenses from misdemeanors to gross misdemeanors. 1992 Minn. Laws ch. 570, art. 1, งง 7, 8. Thereafter, this court concluded that this change to the DWI and implied-consent statutes did not transform the implied-consent proceeding into a criminal proceeding requiring greater procedural protections. Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380, 392 (Minn. App. 1993), aff’d, 517 N.W.2d 901 (Minn. 1994). In reaching this conclusion, the Davis court noted that the drivers’ challenge to the use of civil revocations for enhancement was premature, as the drivers could show no direct harm until the enhancement actually occurred in a later DWI proceeding. Id. The Davis opinion stated that drivers “may challenge the enhancement use of an implied consent revocation in a later gross misdemeanor DWI on any appropriate grounds, just as they can challenge the enhancement use of a prior DWI.” Id. (citing Nordstrom, 331 N.W.2d at 905).

But there is no clear authority in Davisto support this proposition that drivers in a DWI prosecution may collaterally challenge a prior civil revocation, similar to what Nordstrom allowed for prior DWI convictions, on the grounds that the civil revocation was based on a conviction obtained in violation of the driver’s right to counsel.[1] The rationale for permitting collateral attacks on prior convictions used for enhancement purposes recognized in Nordstrom was weakened by the United States Supreme Court opinion in Nichols v. United States, 511 U.S. 738, 748–49, 114 S. Ct. 1921, 1928 (1994), which overruled Baldasar. As the Nichols court explained, when enhancement occurs based on a prior conviction, it constitutes a punishment for the new offense, not a punishment for the prior conviction. Id. at 747, 114 S. Ct. at 1927. Therefore, the use of a prior, unconstitutionally obtained conviction does not pose constitutional problems. Id.; but cf. State v. Dumas, 587 N.W.2d 299, 302 (Minn. App. 1998) (noting that Nordstrom’s “vitality” was called into question by the overruling of Baldasar), review denied (Minn. Feb. 24, 1999). Furthermore, the Nordstrom court’s decision to permit a collateral attack on a prior conviction vindicated the right to counsel that attaches once an accused is faced with criminal charges that could result in incarceration—to ensure the reliability of that proceeding. See Nordstrom, 331 N.W.2d at 904–05. In contrast, the purpose of the Friedman right to counsel is to provide legal advice to a driver faced with a difficult decision whether to submit to chemical testing. Friedman, 473 N.W.2d at 835. The reliability of chemical testing, or of the implied-consent revocation that results, is not affected by the limited Friedman right to counsel.

Yet, despite the lack of a clear rationale for permitting a defendant to collaterally attack a revocation in a subsequent enhancement proceeding, this court has adhered to the assumption that such a collateral attack is permitted in some circumstances. See State v. Mellet, 642 N.W.2d 779, 788–89 (Minn. App. 2002) (articulating the two-step process for a defendant to mount a collateral attack on her prior revocation), review denied (Minn. July 16, 2002). Because this court is bound by precedent and because it is for the supreme court to enunciate the law in this perplexing area, we adhere to our previous decisions permitting a defendant to mount a collateral attack on a prior revocation. See, e.g., St. Aubin v. Burke, 434 N.W.2d 282, 284 (Minn. App. 1989) (holding that the court of appeals is an error-correcting, not doctrinal, court), review denied (Minn. Mar. 29, 1989).

b. Charging enhancement

Appellant argues that his revocation cannot be used in a subsequent enhancement because the Wisconsin conviction underlying the revocation was obtained in violation of his limited Minnesota constitutional right to pretest counsel.

The outcome of appellant’s claim is controlled by this court’s decision in State v. McLellan, 655 N.W.2d 669 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003). In McLellan, this court precluded a collateral attack on a Minnesota revocation under section 171.17 that enhanced a subsequent DWI, even though the Minnesota revocation was based on a prior Wisconsin DWI conviction that resulted from an uncounseled guilty plea.[2] Id. at 671. McLellan argued that the district court violated the “Nordstrom/Friedrich prohibition” because her Wisconsin conviction “would not pass constitutional muster under Minnesota law.” Id. This court disagreed, stating that an unchallenged revocation is a valid ground for enhancement:

The Commissioner of Public Safety is directed by statute to revoke a person’s Minnesota driver’s license following conviction for DWI in another state. McLellan’s Minnesota driver’s license was revoked in 1995 following the Wisconsin conviction. McLellan did not petition for judicial review under the statute, and the revocation of her driver’s license therefore went unchallenged. The district court found that the charges against McLellan were enhanced because of the prior license revocation, not the Wisconsin conviction, and therefore [Minnesota’s prohibition on the use of uncounseled guilty pleas to enhance a subsequent DWI offense] was not violated. We agree.

Id. (citations omitted).

Appellant argues that McLellan is not dispositive of his claim, however, because McLellan erroneously assumed that a driver is barred from challenging the constitutionality of a prior license revocation simply because the driver failed to initially challenge that revocation by administrative hearing or petition for judicial review. Appellant’s argument has some merit. McLellan does not provide any authority for requiring a defendant to first challenge the prior civil revocation in that proceeding before the defendant may collaterally attack the revocation in a subsequent enhancement. The opinion in McLellan does not explain why it is relevant, let alone dispositive, that McLellan failed to petition for judicial review of the revocation. Moreover, the waiver rule raises the question why, if a fundamental constitutional right is at stake when the prior civil revocation is used for enhancement purposes, the defendant should be required to have raised it earlier?

Review of revocations under section 171.19, including revocation following an out-of-state DWI conviction, involves a civil court hearing on license reinstatement to determine “whether the petitioner is entitled to a license or is subject to revocation . . . .” Minn. Stat. ง 171.19 (2004). The waiver rule requires that a defendant must challenge the constitutionality of his revocation in this civil proceeding or waive his right to a collateral attack on the revocation in a subsequent enhancement of a criminal charge, an issue that might not be readily apparent to a driver facing civil revocation. Nonetheless, the waiver rule is established by precedent.

Here, appellant did not challenge the constitutionality of his revocation in a proceeding under section 171.19 and therefore waived his right to mount a collateral attack. Despite its infirmities, McLellan remains the controlling precedent for this court when determining the propriety of enhancing a DWI charge with a prior Minnesota revocation under section 171.17.

Appellant argues that our decision is controlled by the precedent established in State v. Bergh, 679 N.W.2d 734 (Minn. App. 2004). In Bergh, this court held that a prior Colorado license revocation that resulted from an uncounseled testing decision may not be used to enhance a subsequent DWI offense in Minnesota because the Colorado revocation was obtained in violation of the driver’s constitutional right to counsel before testing. Id. at 738. The Bergh opinion does not discuss McLellan. But because Colorado drivers do not have a limited pretest right to counsel, the defendant in Bergh did not have the opportunity to challenge his Colorado revocation prior to its use for enhancement in a subsequent Minnesota DWI prosecution. Bergh is therefore distinguishable, as Minnesota provides a forum for challenging Minnesota revocations under section 171.17. Cf. State v. Schmidt, ___ N.W.2d ___, 2005 WL 1869744, at *6 (Minn. App. Aug. 9, 2005) (relying on Bergh and holding that a South Dakota revocation that derived from an uncounseled chemical-testing decision violated Minnesota’s constitutional right to counsel and could not be used to enhance defendant’s current offenses).

We acknowledge that, following Bergh, Minnesota license revocations derived from uncounseled out-of-state convictions may be used as aggravating factors in subsequent DWI prosecutions per McLellan, but out-of-state revocations derived from uncounseled testing decisions are unconstitutionally obtained and cannot be used as aggravating factors in subsequent DWI prosecutions per Bergh. See 9A Henry W. McCarr & Jack S. Nordby, Minnesota Practice ง 56.42 n.16 (3d ed. Supp. 2004) (noting that “enhancement may properly result from a prior Minnesota revocation based upon an uncounseled guilty plea in another state,” but “[a] foreign revocation based on an uncounseled test may not be used.”). We also acknowledge that our conclusion today permits the use of a Minnesota license revocation for enhancement purposes when the state would be prohibited from using the uncounseled foreign conviction that underlies the revocation for enhancement purposes. This is the result of a confusing line of cases that has continued to follow Baldasar, despite its being overruled by the Supreme Court, and that has extended that approach to civil revocations. But this case is controlled by McLellan, and we decline to overturn established precedent from this court without further guidance from our supreme court.

Affirmed.

[1] The supreme court, in affirming this court’s opinion in Davis, did not address the implications of the 1992 amendment allowing enhancement by means of prior civil revocations. See Davis, 517 N.W.2d at 902–04 (rejecting the argument that the implied-consent advisory and the immediate prehearing revocation of a driver's license for violating the implied-consent law violated due process). Thus, the supreme court’s affirmance does not imply agreement with this court’s statement permitting collateral attacks on prior civil revocations.

[2] The McLellan court erroneously stated that petition for review of the defendant’s Minnesota revocation under section 171.17 was available under Minn. Stat. ง 169A.53. Revocations under section 171.17 are reviewed under Minn. Stat. ง 171.19 (2004).