STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2308

State of Minnesota,
Respondent,

vs.

Cole R. McLeod,
Appellant.

Filed October 3, 2006

Affirmed

Wright, Judge

Hennepin County District Court

File No. 05033459

Jerry Strauss, Strauss & Goldberger, 250 Second Avenue South, #110, Minneapolis, MN 55402 (for appellant)

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

Paul D. Baertschi, Tallen and Baertschi, 4560 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

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

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

WRIGHT, Judge

Appellant challenges his conviction of third-degree driving while impaired, arguing that, because the implied-consent statute had been declared unconstitutional and appellant was read an implied-consent advisory pursuant to that statute before he consented to an Intoxylizer test, the evidence of his alcohol concentration obtained from the test must be suppressed. We affirm.

FACTS

On the evening of May 24, 2005, Maple Grove Police Officer Tanya Petz observed a vehicle driving east on 62nd Place without its headlights on. Officer Petz saw the vehicle turn onto Sycamore Lane, where the driver turned on the headlights. Officer Petz stopped the vehicle and identified the driver as appellant Cole McLeod. Officer Petz observed that McLeod smelled of alcohol, that he had glassy and bloodshot eyes, and that his speech was slurred. After admitting that he had been drinking alcoholic beverages, McLeod failed field sobriety tests and a preliminary breath test.

Officer Petz arrested McLeod for driving while impaired by alcohol. Officer Petz read McLeod the implied-consent advisory, and McLeod submitted to an Intoxylizer test. The Intoxylizer test results indicated that McLeod had an alcohol concentration of 0.18.

McLeod was charged with one count of third-degree driving while impaired (DWI), a violation of Minn. Stat. งง 169A.20, subd. 1(1), .26 (2004), and one count of having an alcohol concentration of 0.10 or more within two hours of driving, a violation of Minn. Stat. งง 169A.20, subd. 1(5), .26 (2004). Based on the Minnesota Supreme Court’s ruling in Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005), McLeod filed a pretrial motion to dismiss the charges, arguing that the implied-consent statute in effect at the time of the offense violates the due-process clauses of the United States and the Minnesota constitutions. The district court denied the motion, concluding that the provisions of the 2003 amendments to the implied-consent statute found unconstitutional in Fedziuk did not require suppression of evidence obtained in a DWI investigation.

McLeod waived his right to a jury trial and submitted the case to the district court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), preserving for appellate review the issue raised in his motion to dismiss. The district court found McLeod guilty of both counts. This appeal followed.

D E C I S I O N

McLeod contends that the district court erred by failing to suppress evidence obtained after Officer Petz read him the implied-consent advisory. McLeod argues that the implied-consent advisory found to be violative of due process in Fedziuk was read to him before evidence of his alcohol concentration was obtained and used in his prosecution for DWI. McLeod thus contends that, because this evidence is the fruit of a due-process violation, it must be excluded and his conviction must be reversed. When a pretrial order denying the suppression of evidence is based on undisputed facts, we conduct a de novo review to determine whether, in light of the facts, the evidence must be suppressed as a matter of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

In Fedziuk, the Minnesota Supreme Court determined that the 2003 amendments to the implied-consent statute provided insufficient constitutional protection and, therefore, were unconstitutional. 696 N.W.2d at 348. Before the 2003 amendments, the implied-consent statute provided for prompt judicial review of a driver’s-license revocation with a hearing at “the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review.” Minn. Stat. ง 169A.53, subd. 3(a) (2002). The 2003 amendments eliminated the requirement for prompt postrevocation judicial review altogether. 2003 Minn. Laws 1st Spec. Sess. ch. 2, ง 13, at 1451. Because due process requires a “prompt and meaningful postrevocation review,” Fedziuk, 696 N.W.2d at 346, and because administrative review does not provide “sufficiently meaningful review to overcome due process concerns triggered by the 2003 amendments,” id. at 347, the Fedziuk court held that the prehearing-revocation process offended a driver’s constitutional guarantee of due process of law, id. at 348.

But in declaring that the 2003 amendments did not meet constitutional due-process standards, the Fedzuik court did not render the entire implied-consent statute unconstitutional. Id. at 348. Rather, the Fedziuk court noted that, “if a law is unconstitutional, only the latest amendment is severed and any previous version . . . remains in full force and effect.” Id. at 349. Accordingly, the 2002 version of the statute was valid and in effect on the date of McLeod’s offense. Moreover, we have held in State v. Polsfuss that the portion of the implied-consent law that was declared unconstitutional in Fedziuk did not affect the collection of evidence in a criminal case. 720 N.W.2d 1, 1-2 (Minn. App. 2006).

McLeod’s Intoxylizer test result obtained after a proper implied-consent advisory was read is not the product of a due-process violation. Accordingly, the district court properly denied McLeod’s motion to dismiss.

Affirmed.