A06-963

State of Minnesota,

Respondent,

vs.

Craig Robert Johnson,

Appellant.

Filed April 17, 2007

Affirmed

Willis, Judge

Scott County District Court

File No. 70-2005-070123

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

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Justice Center, JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

Richard L. Swanson, 207 Chestnut Street, Suite 235, P.O. Box 117, Chaska, MN 55318 (for appellant)

Considered and decided by Stoneburner, 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

WILLIS, Judge

Appellant challenges his conviction of first-degree refusal to submit to a chemical test, arguing that his conviction must be reversed because the district court improperly allowed a driver’s-license revocation that was based on a Wisconsin conviction to be used to enhance the charge against appellant from a misdemeanor to a felony. We affirm.

FACTS

On March 18, 2005, police officers were called to a restaurant parking lot in Shakopee to investigate a drunk-driver complaint. A witness told the officers that he had observed appellant Craig Robert Johnson driving out of a ditch and into the parking lot and that Johnson appeared to be intoxicated. The officers found Johnson walking around the parking lot and conducted field sobriety tests, which Johnson failed. A preliminary breath test indicated that Johnson had an alcohol concentration of .18. An officer read Johnson the implied-consent advisory, and Johnson refused to take a chemical test.

Johnson has several previous impaired-driving-related incidents. In December 1998, he was convicted of driving while impaired (DWI), and his driver’s license was subsequently revoked. In February 1999, Johnson was convicted in Wisconsin of operating a vehicle while under the influence of an intoxicant, and in June 2001, his Minnesota driving privileges were revoked in response to the Wisconsin conviction. And in November 2001, Johnson was convicted of DWI.

In connection with the March 2005 incident, Johnson was charged with first-degree refusal to test, in violation of Minn. Stat. งง 169A.20, subd. 2, .24 (2004); and first-degree DWI, in violation of Minn. Stat. งง 169A.20, subd. 1(1), .24. He was also charged with driving after cancellation, in violation of Minn. Stat. ง 171.24, subd. 5 (2004), and obstruction of legal process, in violation of Minn. Stat. ง 609.50, subd. 1(1) (2004).

Johnson moved for dismissal of the first-degree refusal-to-test and first-degree DWI charges, arguing that his driver’s-license revocation could not be used to enhance the charges against him here because the revocation was based on a Wisconsin conviction. The district court denied Johnson’s motion. Johnson submitted the case to the district court in a Lothenbach proceeding. See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980) (authorizing a procedure by which the defendant pleads not guilty, waives his right to a jury trial, and stipulates to the state’s case but preserves his right to appeal a contested pretrial ruling). The district court found Johnson guilty of first-degree refusal to test and dismissed the other three charges against him. This appeal follows.

D E C I S I O N

Johnson argues that because the refusal-to-test charge was enhanced from a misdemeanor to a felony by using a driver’s-license revocation that was based on a Wisconsin conviction of operating a vehicle while under the influence of an intoxicant, the district court erred by denying Johnson’s motion to dismiss the first-degree refusal-to-test charge against him. Johnson asserts that because Wisconsin does not recognize the pre-test right to counsel that Minnesota recognizes, use of the revocation violates his right to due process. The district court’s denial of Johnson’s motion raises a question of law, which this court reviews de novo. State v. Bergh, 679 N.W.2d 734, 737 (Minn. App. 2004), abrogated on other grounds by State v. Schmidt, 712 N.W.2d 530 (Minn. 2006).

Minn. Stat. ง 169A.24, subd. 1(1) (2004), provides: “A person who violates section 169A.20 [(driving while impaired, which includes refusal to test)] is guilty of first-degree driving while impaired if the person . . . commits the violation within ten years of the first of three or more qualified prior impaired driving incidents.” A “qualified prior impaired driving incident” includes a prior DWI conviction or an impaired-driving-related license revocation. Minn. Stat. ง 169A.03, subd. 22 (2004).

The district court concluded that because the qualified prior impaired-driving incident that was at issue was the revocation of Johnson’s driver’s license by the Minnesota Commissioner of Public Safety and not the Wisconsin conviction on which that revocation was based, the enhancement of Johnson’s charge to first-degree refusal to test was proper under State v. McLellan, 655 N.W.2d 669, 671 (Minn. App. 2003). The district court interpreted McLellan to hold that an “unchallenged Minnesota license revocation is a valid ground for enhancement.” In McLellan, the defendant’s Minnesota driver’s license was revoked in response to a conviction in Wisconsin that was based on an uncounselled plea. 655 N.W.2d at 670. This court held that use of the unchallenged license revocation to enhance a subsequent DWI charge did not violate the defendant’s right to due process. Id.at 671.

Johnson claims that McLellan was wrongly decided. Although he concedes that the facts of McLellan are practically identical with the facts here, Johnson argues that “McLellan does not recognize the fact that drivers in license-revocation proceedings ‘do not have standing to challenge the effect of the revocation on a possible future DWI charge.’” But even if a driver may not challenge specifically the enhancement effect that a license revocation may have on a future DWI charge, the driver may certainly challenge the license revocation generally. We agree with the state that no due-process violation has occurred because the “availability of [judicial] review, although unexercised, satisfies the due-process requirement of meaningful review”; Johnson had an opportunity to challenge his license revocation but chose not to do so.

Johnson also argues that McLellan “perpetrates a due process violation” because it “treats similarly situated individuals [with license revocations] differently based on where the underlying DWI occurred.” Johnson provides no support for this assertion, and we find none.

We note that even if the enhancement had been based on Johnson’s Wisconsin conviction rather than the Minnesota license revocation, the enhancement would have been proper under the supreme court’s recent decision in Schmidt, 712 N.W.2d at 539 (holding that the defendant’s impaired-driving convictions in South Dakota could be used to enhance his DWI charge to a felony because to hold otherwise would allow an impermissible collateral attack on the out-of-state convictions). But because Johnson’s charge enhancement was based on a Minnesota driver’s-license revocation, not his Wisconsin conviction, the enhancement was proper under McLellan.

Affirmed.