A05-1264

State of Minnesota,

Respondent,

vs.

Roger J. Partyka,

Appellant.

Filed March 21, 2006

Affirmed

Worke, Judge

Ramsey County District Court

File No. K8-04-3849

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

Faison T. Sessoms, Jr., 840 TriTech Office Center, 331 Second Avenue South, Minneapolis, MN 55401 (for appellant)

Considered and decided by Worke, Presiding Judge; Wright, Judge; and Dietzen, Judge.

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

WORKE, Judge

On appeal from conviction of first-degree DWI, appellant argues that his 2003 implied-consent license revocation could not be used to enhance the current offense to a felony because the district court in the 2003 DWI case found that appellant’s constitutional rights had been violated. Because the revocation was properly used to enhance appellant’s current offense, we affirm.

D E C I S I O N

Appellant Roger J. Partyka challenges the use of his 2003 license revocation to enhance his current DWI charge. A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003). The application of law to undisputed facts is a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Comm'r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992).

In October 2004, appellant was charged with first-degree driving while intoxicated, in violation of Minn. Stat. งง 169A.20, subd 1(1), 169A.24, subd. 1(1) (2004). At the time of his arrest, appellant’s driving record contained two DWI convictions which occurred in 1998 and 2000, and a DWI arrest from 2003. Appellant’s license was revoked in February 2003 as a result of the DWI arrest. Appellant challenged the constitutionality of the 2003 arrest and the charge was dismissed based on a finding that a warrantless entry into appellant’s garage violated his Fourth Amendment rights. Despite the dismissal of the 2003 DWI charge, appellant never sought judicial review of his license revocation.

Under Minnesota law, a person who drives while impaired is guilty of first-degree DWI 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) (2004). A “‘qualified prior impaired driving incident’ includes prior impaired driving convictions and prior impaired driving-related losses of license.” Minn. Stat.ง 169A.03, subd. 22 (2004). A “‘[p]rior impaired driving-related loss of license’ includes a driver’s license suspension, revocation, cancellation, denial, or disqualification” under implied-consent laws. Id. at subd. 21 (2004). Appellant’s license was revoked in 2003 after registering a blood-alcohol concentration of .10 or more following an arrest for DWI. See Minn. Stat. ง 169A.52, subd. 4 (2002). Therefore, the statutes permit appellant’s 2003 license revocation to be used to enhance his current DWI charge.

Despite appellant’s acknowledgment that he failed to contest the license revocation and, therefore, it is valid, appellant argues that he was not able to contest the revocation because he did not have money to hire an attorney or pay the filing fee. A defendant may collaterally attack a prior conviction on constitutional grounds in a subsequent proceeding when the prior conviction is used for enhancement purposes. State v. Nordstrom, 331 N.W.2d 901, 904 (Minn. 1983). But appellant’s inability to obtain counsel or pay the filing fee is not a violation of his constitutional rights. See State v. Dumas, 587 N.W.2d 299, 302-03 (Minn. App. 1998) (holding a prior conviction may be used if it was obtained without a constitutional violation), review denied (Minn. Feb. 24, 1999). No Sixth Amendment right to counsel attaches to the implied-consent proceedings, which are civil in nature. See Maietta v. Comm’r of Pub. Safety, 663 N.W.2d 595, 600 (Minn. App. 2003) (barring ineffective-assistance-of-counsel claims in implied-consent hearings). Therefore, appellant’s inability to obtain counsel and pay the filing fee did not violate his constitutional rights.

Appellant also argues that the 2003 license revocation should not be used for enhancement purposes because the criminal charge was dismissed for violating appellant’s Fourth Amendment rights. A defendant bears the burden of properly challenging the constitutional validity of a prior revocation that is used for enhancement purposes. See Nordstrom, 331 N.W.2d at 905. Appellant argues that this case is similar to State v. Mellett, 642 N.W.2d 779 (Minn. App. 2002), review denied (Minn. July 16, 2002). In Mellett, the defendant claimed that her prior license revocations could not be used to enhance her current charge because she was not given a full opportunity to consult with an attorney on the license revocations. Mellett, 642 N.W.2d at 789. This case is distinguishable from Mellett because appellant was not denied the right to counsel on the license revocation. Further, even if Mellett were controlling, appellant has failed to produce enough evidence to shift the burden to the state to show that the revocation was improper. Id. at 789/90. Minn. Stat. ง 169A.53, subd. 2 (2004) states, “[w]ithin 30 days following receipt of a notice and order of revocation or disqualification pursuant to section 169A.52 (revocation of license for test failure or refusal), a person may petition the court for review.” Appellant did not file a petition for judicial review of his license revocation within the 30 days following the revocation. Further, while appellant is not asserting that because his criminal case was dismissed his license revocation should also be dismissed, he has failed to raise a specific constitutional violation regarding the license revocation. Because the record does not indicate that appellant’s 2003 license revocation was unconstitutional, appellant has not met his burden. Accordingly, the 2003 license revocation was properly used to enhance appellant’s current DWI charge.

Affirmed.