Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 500 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Holtan, Judge.[*]

In this appeal from an order sustaining the revocation of her driving privileges, appellant Diane Mary Carlson challenges on constitutional grounds, the procedure for obtaining judicial review of a license revocation. Because the district court correctly found that appellant did not have standing to challenge the statute, we affirm.

At the district court, Carlson argued that Minn. Stat. § 169.123, subd. 5c(b)(3), which provides that a petition for judicial review of a driver's license revocation state the facts underlying each claim asserted as a basis for rescission, violates a petitioner's constitutional right to be free from compelled self-incrimination. Nevertheless, as the factual basis for her petition, Carlson stated that "[t]he officer had no reason to believe that petitioner was under the influence of alcohol. He also misled her about the consequences of taking the test."

The district court held that Carlson did not have standing to challenge the new provisions in the implied consent statute and sustained the revocation of her driving privileges. Carlson appeals the district court's decision.

It is an elementary doctrine of constitutional law that one who invokes the power of the court to declare a statute unconstitutional must be able to show not only that the statute is invalid but that the person has sustained or is in immediate danger of sustaining some direct injury resulting from its enforcement and not merely that the person suffers in some indefinite way in common with people generally.

Paulson v. Lapa, Inc., 450 N.W.2d 374, 380 (Minn. App. 1990), review denied (Minn. Mar. 22, 1990).

The privilege [against self-incrimination] can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory * * * and it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.

Murphy v. Waterfront Comm'n, 378 U.S. 52, 94, 84 S. Ct. 1594, 1611 (1964) (citations omitted).

The district court found that Carlson lacked standing to challenge the constitutionality of the implied consent statute because she failed to establish that she suffered, or was in immediate danger of suffering, a direct injury. Carlson has neither alleged that the statements she made were or could be used against her in court nor was she denied a hearing because of her failure to state facts supporting her claims. Hypothetical injuries are not enough to establish a justiciable controversy. Kennedy v. Carlson, 544 N.W.2d 1, 6 (Minn. 1996).

Because Carlson has not established that she has standing to challenge the constitutionality of Minn. Stat. § 169.123, subd. 5c(b)(3), we affirm the district court's order sustaining the revocation of Carlson's driver's license.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.