This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2227

 

State of Minnesota,
Respondent,

vs.

Johnnie Harris, Jr.,
Appellant.

 

Filed January 23, 2007

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 05018410

 

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

 

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

Melissa V. Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN  55121 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from felony DWI convictions, appellant Johnnie Harris, Jr. argues that (1) using his prior administrative/civil license revocations to enhance his current DWI charges to felonies violated his due-process rights and his right to counsel; and (2) his December 2004 license revocation should be taken off his record because the criminal charge that arose from the same incident that led to the revocation was dismissed.  We affirm.

FACTS

            On March 25, 2005, Bloomington police officer Todd Severson stopped a car driven by appellant Johnnie Harris, Jr. outside a liquor store.  Harris told Severson that he did not have a valid driver’s license.  Severson observed that Harris’s eyes were bloodshot, he smelled of alcohol, and his speech was slurred.  Harris failed several field sobriety tests, and Severson arrested Harris.  The police administered the implied-consent advisory, and Harris stated that he understood the advisory and did not wish to speak with an attorney.  A test indicated that Harris had an alcohol concentration of .11. 

            Harris’s driving record included three prior driver’s license revocations: (1) a December 29, 2004 revocation for failing to submit to testing following an incident on December 22, 2004;[1] (2) an April 13, 1997 revocation for refusing to submit to testing following an incident on March 25, 1997;[2] and (3) a November 24, 1995 revocation for having a driving-related alcohol test result that was greater than the legal limit following an incident on November 17, 1995.[3]  Based on his prior license revocations, Harris was charged with two counts of felony first-degree driving while impaired under Minn. Stat. § 169A.20, subd. 1(1)(5) (2002),[4] and one count of gross-misdemeanor driving after cancellation (inimical to public safety) under Minn. Stat. § 171.24, subd. 5(1) (2004).

            Harris waived his right to a jury trial, and the case was submitted to the district court on stipulated facts.  The district court found Harris guilty as charged and imposed sentence.  This appeal follows.

D E C I S I O N

I.

            The constitutionality of a statute is a question of law, and as such, appellate courts are not bound by the conclusions of the district courts.  In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993), aff’d, 494 N.W.2d 877 (Minn. 1993).  Statutes are entitled to a presumption of constitutionality, and those challenging otherwise valid statutes must establish beyonda reasonable doubt that the statute violates a claimed right.  Id. In considering the constitutionality of a statute, “[e]very presumption is invoked in favor of the constitutionality of the statute.”  Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn. 1979).  Moreover, the, “power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.”  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).

 

State v. Dumas, 587 N.W.2d 299, 301 (Minn. App. 1998) (emphasis omitted), review denied (Minn. Feb. 24, 1999).

            “A person who violates section 169A.20 (driving while impaired) is guilty of first-degree driving while impaired if the person: (1) commits the violation within ten years of the first of three or more qualified prior impaired driving incidents[.]”  Minn. Stat. § 169A.24, subd. 1(1) (2004).  “‘Qualified prior impaired driving incident’ includes prior impaired driving convictions and prior impaired driving-related losses of license.”  Minn. Stat. § 169A.03, subd. 22 (2004).  “‘Prior impaired driving-related loss of license’ includes a driver’s license suspension, revocation, cancellation, denial, or disqualification under: . . . [the implied-consent law.]”  Minn. Stat. § 169A.03, subd. 21(a)(1) (2004).

            When his driver’s license was previously revoked, Harris was not represented by counsel, and he did not challenge the revocations.  Harris argues that using his prior administrative/civil license revocations to enhance the severity of his current DWI charges to felonies violated his due-process rights because the civil license-revocation procedure included almost none of the procedural protections available to a defendant in a criminal prosecution.  But in State v. Dumas, this court held that a civil license revocation could be used to enhance subsequent DWI-related charges from misdemeanors to gross misdemeanors if the license revocation was obtained without violating the defendant’s constitutional rights.  587 N.W.2d at 302-05. 

            Harris argues that this court should revisit its decision in Dumas and hold that using a civil license revocation for enhancement violates due process because in Dumas, this court relied on its earlier holding in State v. Host, 350 N.W.2d 479, 480 (Minn. App. 1984), that using a petty-misdemeanor driving offense to enhance a later driving offense charge to a misdemeanor is constitutional.  Harris contends that in Dumas, this court erroneously likened a civil license revocation to a petty-misdemeanor prosecution even though the license-revocation procedure lacks the due-process protections available to a defendant in a petty-misdemeanor prosecution.  But in Dumas, this court did not liken the due-process protections available in a civil license-revocation proceeding to the due-process protections available in a petty-misdemeanor prosecution.  Instead, after citing United States v. Robles-Sandoval, 637 F.2d 692 (9th Cir. 1981), for the principle that when a defendant received all the process that was due in a prior civil proceeding, the outcome of that proceeding could be used to enhance a subsequent criminal charge, this court cited Host as additional support for that principle.  Id. at 302-03.  We are not persuaded that this court’s analysis in Dumas should not apply when a civil license revocation is used to enhance a DWI charge to a felony. 

            Harris also argues that because of the complete lack of procedural-due-process protections in the implied-consent process, a civil license revocation cannot be used as the basis for later charging a defendant with a felony.  But in State v. Coleman, 661 N.W.2d 296, 301 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003), this court recognized that a driver’s-license revocation under the implied-consent statute is subject to both administrative and judicial review.  This court then determined that even though the driver did not seek judicial review of a driver’s-license revocation, the availability of judicial review met the requirement under United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S. Ct. 2148, 2155 (1987), that when a decision in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.  Coleman, 661 N.W.2d at 301.  Finally, this court held that because the driver had the opportunity for meaningful judicial review of the prior license revocation, using the revocation as an aggravating factor to support an enhanced DWI charge did not violate the driver’s due-process rights.  Id. 

            Harris argues that this court should “revisit its decision in Coleman and hold that the availability of administrative and judicial review does not amount to the ‘meaningful review’ necessary to allow the use of an administrative license revocation to enhance a criminal penalty.”  But other than pointing out that a civil license-revocation proceeding does not include all of the procedural-due-process protections available to a defendant in a criminal proceeding, Harris does not explain why the judicial review available in the civil proceeding is not “meaningful review,” and we are not persuaded that the judicial review available in a license-revocation proceeding is not sufficient to ensure that a driver who seeks review received all the process that was due in the revocation proceeding.  We conclude that under Dumas and Coleman, using Harris’s prior license revocations to enhance the severity of his current DWI charge did not violate his right to due process.

II.

            Harris agues that his DWI convictions must be reversed because the license revocations that were used to enhance the current criminal charges were obtained in violation of his right to counsel under the Minnesota constitution.  Harris contends that “[i]f driver’s license revocations are to be considered the same as criminal convictions for the purpose of enhancing future criminal penalties, then the right to counsel must attach to those revocations because incarceration is a ‘real possibility.’”  But Harris has not explained how incarceration was a real possibility during the prior implied-consent proceedings.  Instead, he argues that the earlier revocations “involve a very direct threat of incarceration for subsequent criminal DWI charges” and concludes that because he “was indigent and did not have counsel appointed to represent him in his prior implied consent proceedings, the results of those proceedings should not have been used to enhance his current criminal charges.”

            Harris has not cited any authority to support what is essentially an argument for expanding his right to counsel to include a right to have counsel appointed in any proceeding where the outcome of the proceeding might, in the future, be used to enhance a criminal charge.  Harris does not even claim that without the possibility of incarceration for the current felony DWI convictions, he would have had a right to have counsel appointed to represent him during the earlier license-revocation proceedings.  His sole reason for claiming that his right to counsel was violated in the earlier license-revocation proceedings is that the revocations were used to enhance the charges in the current criminal proceeding.  But the current criminal proceeding is based on events that occurred after the earlier license-revocation proceedings were completed.  Absent citation to any authority for extending the right to appointed counsel to a civil license-revocation proceeding when the outcome of the revocation proceeding might affect the outcome of a separate, future criminal proceeding, Harris has not shown that his DWI convictions were obtained in violation of his right to counsel.

 

III.

            In a pro se supplemental brief, Harris argues that his December 2004 license revocation should be taken off his record because the criminal DWI charge that arose from the same incident that led to the revocation was dismissed when no witness appeared in court.  Harris had the right to petition for judicial review of the December 2004 revocation under Minn. Stat. § 169A.53, subd. 2 (2004), but he apparently did not seek review.  He cites no authority for removing a license revocation from a driver’s driving record because a related DWI charge was dismissed.

            Affirmed.