STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2537

State of Minnesota,
Respondent,

vs.

Roger James Ritt,
Appellant.

Filed December 5, 2006

Affirmed

Stoneburner, Judge

Dakota County District Court

File No. T90552128

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

Alina Schwartz, Elliott B. Knetsch, Campbell Knutson, P.A., 1380 Corporate Center Curve, Suite 317, Eagan, MN 55121 (for respondent)

Samuel A. McCloud, Carson J. Heefner, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)

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

STONEBURNER, Judge

Appellant challenges his conviction of fourth-degree driving while impaired (DWI), arguing that the district court erred in not suppressing evidence obtained under an implied-consent statute that was later declared unconstitutional. Because appellant’s arguments are without merit, we affirm.

FACTS

On January 15, 2005, police stopped a vehicle driven by appellant Roger James Ritt. Ritt took an Intoxilyzer test, which revealed an alcohol concentration of .14. Ritt was arrested and charged with fourth-degree DWI in violation of Minn. Stat. § 169A.20 (2004).

Ritt’s driver’s license was revoked, but a hearing on the revocation was not scheduled within 60 days. After the Minnesota Supreme Court heldin Fedziuk v. Comm’r of Pub. Safety,696 N.W.2d 340 (Minn. 2005)that failure to require prompt judicial review of license revocations violates due process, the Commissioner of Public Safety rescinded the revocation.

Ritt then moved to suppress the test results in the criminal proceeding, arguing that because Fedzuik held that the implied-consent law was unconstitutional, the test results were inadmissible. The district court denied the motion. The case was submitted to the district court on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Ritt was convicted and sentenced. This appeal followed.

D E C I S I O N

When reviewing a pretrial order granting or denying the suppression of evidence, where the facts are not in dispute and the trial court’s decision is a question of law, this court independently reviews the facts and determines, as a matter of law, whether the evidence must be suppressed. State v. Othoudt,482 N.W.2d 218, 221 (Minn. 1992).

In Fedziuk v. Comm’r of Pub. Safety,the Minnesota Supreme Court determined that the 2003 amendments to Minnesota’s implied-consent law eliminated a critical due process element regarding administrative review of license revocation. 696 N.W.2d 340, 348 (Minn. 2005). Appellant argues that this ruling requires that any evidence obtained under the implied-consent statute between the purported effective date of the 2003 amendments and Fedziuk is inadmissible in a criminal proceeding.

We recently rejected this argument in State v. Polsfuss,720 N.W.2d 1 (Minn. App. 2006), holding that Fedziuk does not have any effect on evidentiary rulings in a related criminal proceeding. Id. at 2. As we stated in Polsfuss, Fedziuk declared only the 2003 amendments to the statute unconstitutional. Id. at 4. The remainder of the statute was upheld and reinstated as it existed prior to the 2003 amendments, just as if the amendments never existed. See Fedziuk,696 N.W.2d at 349 (holding that the proper remedy was to sever only the 2003 amendments and revive the version of the implied-consent law that existed immediately before the 2003 amendment). The portion of the implied-consent law that was declared unconstitutional by Fedziuk does not have any effect on evidence obtained for a criminal DWI proceeding. Polsfuss, 720 N.W.2d at 4.

The additional cases relied on by Ritt are distinguishable. In those cases, evidence was suppressed because misleading language in the implied-consent advisory was held to violate due process. See McDonnell v. Comm’r of Public Safety,473 N.W.2d 848, 855 (Minn. 1991) (holding that the language of the implied consent advisory violated the due process rights of drivers who had no potential criminal liability for refusing testing); State v. Nelson,479 N.W.2d 436, 437 (Minn. App. 1992) (holding that a criminal defendant raised an identical due process claim as that raised in McDonnell if he or she was a first-time offender); State v. Stumpf,481 N.W.2d 887, 889-90 (Minn. App. 1992) (holding that a breath test obtained through misleading language in the implied consent advisory could not be used for impeachment purposes in a criminal proceeding); State v. Wilkens,492 N.W.2d 275, 276 (Minn. App. 1992) (applying McDonnell retroactively). Ritt has not shown that the language of the implied-consent advisory misled him or that admission of the evidence would violate his due process rights in the criminal proceeding. The district court did not err in denying Ritt’s motion to suppress.

Ritt also argues that the doctrine of collateral estoppel requires suppression of the test results under State v. Victorsen, 627 N.W.2d 655 (Minn. App. 2001) superceded by statute as stated in State v. Lemmer, 716 N.W.2d 657, 659 (Minn. App. 2006), review granted (Minn. Sep. 19, 2006). In Victorsen, we stated that “if a prosecutor is given notice and an opportunity to participate in [an implied-consent] hearing, that prosecutor, at a later hearing, will be estopped from opposing the binding effect of an order resulting from the earlier hearing.” Id. at 663. Because appellant did not raise this argument in the district court, we need not consider it on appeal. See Roby v. State,547 N.W.2d 354, 357 (Minn. 1996) (stating that this court generally will not consider matters not argued and considered in the court below). Moreover, Ritt’s argument is completely without merit since there was no implied-consent hearing in this case.

Affirmed.