Christopher Jay Hardy, 1333 Idaho Avenue South, St. Louis Park, MN 55426 (pro se appellant)

Michael J. Colich, St. Louis Park City Attorney, Darren C. Borg, Assistant City Attorney, 420 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent)

Hubert H. Humphrey, III, Minnesota Attorney General, 102 State Capitol, St. Paul, MN 55155 (for respondent)

Considered and decided by Davies, Presiding Judge, Randall, Judge, and Short, Judge.

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

SHORT, Judge

Christopher Jay Hardy was convicted of gross misdemeanor fleeing an officer, misdemeanor driving while under the influence of alcohol, misdemeanor implied consent refusal, and misdemeanor driving after revocation. On appeal from denial of postconviction relief, Hardy argues his convictions should be vacated because he was held for more than 48 hours without a determination of probable cause. Because there was no prejudice and Hardy's own conduct caused the delay, we affirm.

D E C I S I O N

Postconviction actions present an opportunity for collateral review after expiration of the time for direct appeal. 8 Henry W. McCarr, Minnesota Practice § 43.1, at 675 (2d ed. 1990); see Minn. Stat. § 590.01, subd. 1 (1996) (providing postconviction remedy for criminal conviction or sentence violative of constitution or laws). In reviewing the order of a postconviction court, our function is to determine whether the record sustains the findings and whether the decision constitutes an abuse of discretion. Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995).

A person who is arrested without a warrant and detained is entitled to a judicial determination of probable cause within 48 hours of the time of arrest. Minn. R. Crim. P. 4.03, subd. 1. A delay exceeding 48 hours before holding a probable cause hearing presumptively violates the Fourth Amendment promptness requirement. County of Riverside v. McLaughlin, 500 U.S. 44, 57, 111 S. Ct. 1661, 1670 (1991). The appropriate remedy for a violation of the constitutional promptness requirement is an issue for resolution by the state courts. See Powell v. Nevada, 511 U.S. 79, --, 114 S. Ct. 1280, 1283-84 (1994) (remanding to determine appropriate remedy for delay in determination of probable cause). Vacation of charges is an appropriate remedy only where the delay results from a deliberate violation that causes prejudice. See State v. Case, 412 N.W.2d 1, 4 (Minn. App. 1987) (refusing to vacate defendant's conviction due to passage of more than 36 hours between time of his arrest and time he first appeared in court, where defendant was not prejudiced by the delay), review denied (Minn. Oct. 28, 1987); see also State v. Golden, 519 N.W.2d 659, 661 (Wis. App.) (holding a Fourth Amendment promptness violation is not jurisdictional defect, and concluding subsequent conviction need not be voided for such a violation unless delay was deliberate and prejudiced defendant's ability to prepare defense), review denied, 524 N.W.2d 138 (Wis. 1994).

Hardy argues the postconviction court abused its discretion by not vacating his conviction, because the judicial determination of probable cause was made 62 hours after his arrest. We disagree. The record demonstrates: (1) Hardy refused to identify himself and to cooperate with the booking process throughout his confinement; (2) the state has a legitimate right to obtain booking information; (3) the state did not deliberately delay the probable cause determination; (4) the state conditionally released Hardy after 62 hours even though he never identified himself or cooperated; (5) the delay in holding a probable cause hearing did not prejudice Hardy's ability to prepare his defense; and (6) Hardy was convicted without resort to any evidence obtained during his detention. See State v. Widell, 258 N.W.2d 795, 797 (Minn. 1977) (holding Miranda warnings need not be given before asking routine booking questions); Case, 412 N.W.2d at 4 (concluding defendant was not prejudiced because "police obtained no evidence which was used against [defendant] at trial"). Under these circumstances, the postconviction court did not abuse its discretion by refusing to vacate Hardy's convictions.

Affirmed.