A05-2499

Darcy Carol Snyder, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed October 17, 2006

Affirmed

Worke, Judge

Hennepin County District Court

File No. IC 485580

Steve M. Tallen, Tallen & Baertschi, 4560 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

Mike Hatch, Attorney General, Jeffrey F. Lebowski, Assistant Attorney General, Sean R. McCarthy, Assistant Attorney General, Peter D. Magnuson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Worke, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

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

WORKE, Judge

On appeal from the district court’s order sustaining the revocation of appellant’s driver’s license under the implied-consent law, appellant argues that because the implied-consent hearing was not conducted within 60 days after the filing of the petition for judicial review, the revocation should be rescinded under Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005). We affirm.

FACTS

Appellant Darcy Carol Snyder was stopped for driving while intoxicated, read the implied-consent advisory, and submitted to a breath test that indicated an alcohol concentration of .10. Appellant’s driver’s license was revoked, and appellant petitioned for judicial review. The implied-consent hearing was scheduled, but the commissioner requested a continuance because the arresting officer was not available. The hearing was rescheduled, and the commissioner contacted appellant’s attorney who agreed to the new hearing date. The commissioner offered to stay the balance of the revocation of appellant’s driving privileges, but appellant’s attorney declined the offer.

At the hearing on appellant’s petition to rescind the revocation of her driver’s license, appellant argued that because her implied-consent hearing was held 82 days after she filed her petition for review, her driver’s-license revocation should be rescinded based on the holding in Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005). The district court found that the Fedziuk decision was silent as to whether the 60-day rule was mandatory or directory, but ruled that the legislature provided a remedy when a hearing is not held within the 60-day period; under Minn. Stat. § 169A.53, subd. 2(c) (2004), if the implied-consent hearing has not been conducted within 60 days after filing of the petition, the “reviewing court may order a stay of the balance of the revocation . . . .” The district court sustained the revocation of appellant’s driver’s license. This appeal follows.

D E C I S I O N

The facts in this case are not disputed. 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).

Appellant argues that because her implied-consent hearing was not held within 60 days after the filing of her petition for review, she is entitled to a rescission of her driver’s-license revocation. The 2003 amendments to the implied-consent law deleted the requirement that a judicial-review hearing be “held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review.” See 2003 Minn. Laws 1st Spec. Sess. ch. 2, art. 9, § 13, at 1451; Minn. Stat. § 169A.53, subd. 3(a) (2004); see also Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 346 (Minn. 2005). The supreme court held in Fedziuk that the absence of a statutory time period was unconstitutional and revived the previous version of the statute that existed immediately prior to the 2003 amendments, which provided a 60-day time period. Fedziuk, 696 N.W.2d at 348-49. Under that version, a judicial-review hearing “must be held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review.” Minn. Stat. § 169A.53, subd. 3(a) (2002). And if a hearing is not conducted within 60 days, “[t]he reviewing court may order a stay of the balance of the revocation.” Id., subd. 2(c) (2002); see also Bendorf v. Comm’r of Pub. Safety, 712 N.W.2d 221, 224 (Minn. App. 2006) (holding that “the remedy for not providing a hearing within 60 days is not a rescission of the revocation but rather a stay of the revocation”), review granted (Minn. June 28, 2006). Thus, the remedy for not conducting a hearing within 60 days after filing is not rescission of the revocation, but is a stay of the balance of the revocation.

Appellant’s implied-consent hearing was not conducted within 60 days after the filing of her petition for judicial review. The remedy for not conducting appellant’s hearing within 60 days after filing is a stay of revocation rather than rescission; thus, the district court did not err in sustaining the revocation of appellant’s driver’s license.

Affirmed.