A05-706

State of Minnesota,

Respondent,

vs.

John Michael Malinak,

Appellant.

Filed June 13, 2006

Affirmed

Hudson, Judge

Ramsey County District Court

File No. K4-04-600769

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

Kari Quinn, Vadnais Heights Prosecutor, Mark F. Gaughan, Assistant Prosecutor, Jensen, Bell, Converse & Erickson, P.A., 1500 Wells Fargo Place, 30 East Seventh Street, St. Paul, Minnesota 55101 (for respondent)

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, Minnesota 55113-3724 (for appellant)

Considered and decided by Hudson, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*

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

HUDSON, Judge.

Appellant challenges his convictions of second-degree test refusal and third-degree driving while impaired (DWI), arguing that the use of an earlier license revocation as an enhancement factor violated his right to due process. Appellant argues that the revocation could not be used to enhance because appellant had sought judicial review but had not received it and was not convicted of the offense until after the driving incident leading to the current charges. We affirm.

FACTS

On March 19, 2004, Ramsey County sheriff’s deputies arrested appellant John Malinak, and he was later charged with a gross-misdemeanor test refusal, a misdemeanor DWI, and leaving the scene of an accident involving an unattended vehicle or fixture. Appellant also had a prior DWI conviction from 1988. Because appellant refused testing, his driving privileges were revoked under the implied-consent law. On March 31, appellant petitioned for judicial review of the revocation; his driving privileges were temporarily reinstated because an implied-consent hearing could not be held within 60 days after his petition for review.

On June 18, 2004, Ramsey County sheriff’s deputies responded to a complaint that appellant had been observed backing his vehicle into a parked vehicle. As the deputies investigated and spoke to appellant, they observed that he was staggering, had bloodshot and watery eyes, and had a strong odor of an alcoholic beverage coming from him. Appellant refused to take field tests and refused a breath test. The state charged appellant with one count of second-degree test refusal under Minn. Stat. § 169A.20, subd. 2 (2002), and Minn. Stat. § 169A.25, subd. 1(b) (Supp. 2003); and one count of gross-misdemeanor third-degree DWI under Minn. Stat. § 169A.20, subd. 1(1) (2002), and Minn. Stat. § 169A.26 (Supp. 2003). The charges included an aggravating factor; specifically, appellant’s qualified prior impaired driving incident of loss of license for the March 2004 test refusal. Appellant’s driving privileges were again revoked. He sought judicial review of this revocation, and his driving privileges were again temporarily reinstated pending an implied-consent hearing.

Appellant moved to dismiss the June 18 second-degree test refusal charge, arguing that the prior impaired driving incident was improperly applied as an aggravating factor because appellant had sought judicial review of his March 19 revocation, a hearing had not been held, and the license revocation had not yet been sustained. Appellant then pleaded guilty to the March 19 DWI offense. After appellant was notified and failed to pursue the related implied-consent matter in district court, the court deemed the petition administratively waived. The district court denied appellant’s motion to dismiss the June 18 charges and convicted appellant of both counts under the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). This appeal follows.

D E C I S I O N

Under Minnesota law, a driver who violates Minn. Stat. § 169A.20, subd. 2 (2002), by refusing to submit to chemical testing is guilty of second-degree DWI if one aggravating factor was present when the offense was committed. Minn. Stat. § 169A.25, subd. 1(b) (Supp. 2003). One such aggravating factor is a qualified prior impaired-driving incident occurring within ten years immediately preceding the current offense. Minn. Stat. § 169A.03, subd. 3(1) (2002). A “qualified prior impaired driving incident” includes “prior impaired driving convictions and prior impaired driving-related losses of license.” Id., subd. 22. A “prior impaired driving-related loss of license” includes a license revocation, suspension, cancellation, denial, or disqualification under statutory provisions such as Minn. Stat. § 169A.50-.53, the implied-consent law. Id., subd. 21(1) (2002).

Appellant argues that he was deprived of due process by the use of his March 19 revocation as an aggravating factor under Minn. Stat. § 169A.25 to enhance the June 18 charges when he had not yet had an implied-consent hearing or a criminal conviction on the earlier offense. Appellate courts independently review legal questions of constitutionality. In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993).

A driver’s license is a property interest that is subject to due process protection. Kleven v. Comm’r of Pub. Safety, 399 N.W.2d 153, 156 (Minn. App. 1987). Due process requires “some meaningful review” of an administrative proceeding when the determination made in that proceeding “is to play a critical role in the subsequent imposition of a criminal sanction.” United States v. Mendoza-Lopez, 481 U.S. 828, 837–38, 107 S. Ct. 2148, 2155 (1987). Therefore, a means of “obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.” Id. at 838, 107 S. Ct. at 2155.

A person whose license is revoked may request administrative review or petition for judicial review under Minn. Stat. § 169A.53, subds. 1, 2 (2002). Because judicial review is available, the use of a prior revocation of driving privileges to enhance a DWI charge does not deprive a person of due process rights. State v. Goharbawang, 705 N.W.2d 198, 202–03 (Minn. App. 2005), review denied (Minn. Jan. 17, 2006); State v. Coleman, 661 N.W.2d 296, 301 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).

In Goharbawang, this court held that a defendant was not deprived of his due process rights when the state used three prior license revocations as a statutory aggravating factor to enhance subsequent DWI charges. Goharbawang, 705 N.W.2d at 202–03. The license revocations occurred within a week of each other and within ten days of the later DWI and implied-consent charges. Id. at 202. Thus, the time for judicial review of each of the revocations had not yet expired when they were used to enhance the DWI charges. Although the defendant in Goharbawang did not seek judicial review of his revocations, this court emphasized that “the availability of that review, although unexercised, satisfies the due-process requirement of meaningful review. The shortened timeframe of respondent’s qualifying revocation . . . does not alter this result.” Id.at 202–03. And the court noted that the defendant “was not prejudiced because, had he sought and obtained rescission of one of the revocations on review, the statutory requirement for an aggravating factor of his current charges would no longer have been met.” Id. at 203.

Here, as in Goharbawang, appellant’s qualifying revocation occurred only a short time before the incident giving rise to the current charges. See Goharbawang, 705 N.W.2d at 202. The revocation became effective at the time the officer notified appellant of the intention to revoke. Minn. Stat. § 169A.52, subd. 6 (2002); see also Minn. Stat. § 169A.53 subd. 2(c) (2002) (authorizing court, if hearing has not been held within 60 days after filing of petition for judicial review, to “order a stay of the balance of the revocation”) (emphasis added). And under Goharbawang, the fact that the time for judicial review on a prior revocation has not yet expired does not preclude the use of that revocation as an aggravating factor. As the court in Goharbawang noted, a short time between revocations should not affect the availability of a prior revocation for enhancement. Goharbawang,705 N.W.2d at 202–03. Therefore, we conclude that the district court properly denied the motion to dismiss and that appellant’s due process rights were not violated by enhancing his offense with the revocation, even though an implied-consent hearing had not been held.

We agree with appellant that his June 18 charges could not be enhanced on the basis of a prior impaired driving conviction because he did not yet have a criminal conviction regarding the March 19 offense when the charges were enhanced. Appellant pleaded guilty to the March 19 charges in October 2004, after the enhancement of the charges from the June 18 incident. But enhancement may be based either on a “prior impaired driving conviction” or a “prior impaired driving-related loss of license.” Minn. Stat. § 169A.03, subd. 22. Because appellant had a prior impaired driving-related loss of license, the charges were properly enhanced, and we affirm.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, §10.