Gary Wennerlyn, Appellant, vs. City of Minneapolis, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat § 480 A. 08, subd. 3 (1996)

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-98-362

William Michael Schneider, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed September 1, 1998
Affirmed
Huspeni, Judge

Ramsey County District Court
File No. C1979441

Richard L. Swanson, 1059 Stoughton Ave., P. O. Box 85, Chaska, MN 55318 (for appellant)

Hubert H. Humphrey III, Attorney General, Ann M. Offermann, Jeff Lebowski, Asst. Attorneys General, 525 Park St., Suite 200, St. Paul, MN 55103 (for respondent)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appellant, alleging denial of due process, challenges the trial court's finding that he was not entitled to reinstatement of his driver's license. Because we find neither denial of due process nor abuse of discretion, we affirm.

FACTS

Appellant William Michael Schneider's driving privileges were revoked pursuant to DWI and implied consent laws for a series of violations committed in 1982, 1986, and 1989. All driving privileges were also cancelled and denied as "inimical to public safety" pursuant to Minn. Stat. §§ 171.04, 171.14 (1988), until appellant could demonstrate his rehabilitation according to the standards set by the Commissioner of Public Safety.

In July of 1990, appellant's driving privileges were reinstated. As part of the reinstatement, appellant signed a last drink statement, whereby he agreed to total abstinence and to the immediate cancellation and denial of his driving privileges if any use of alcohol or controlled substances came to the attention of the commissioner. Appellant was also issued a "B" card, which stated that any use of alcohol or drugs would invalidate the license.

For the next four or five years, appellant carried the driver's license and accompanying B card. When it was time to renew his license, appellant turned in the license and B card and received only a driver's license back without a B card. He argues his new license did not contain any restrictions.

In August 1997, a sheriff's deputy stopped appellant on the river for a boating violation. Appellant had a half can of beer with him, and candidly told the deputy he drank a half can of beer. The deputy testified that he asked appellant for his driver's license, flipped the license over, and observed the total abstinence restriction. The deputy further testified that appellant told him he was unaware he was still subject to a restricted license. The deputy then confirmed the restriction with his supervisor. Finding that appellant had consumed alcohol in violation of his license restriction, the commissioner cancelled appellant's driving privileges as "inimical to public safety."

In a subsequent license reinstatement hearing, the trial court concluded that appellant had not demonstrated that his license was actually issued without the total abstinence restriction and denied appellant's request for license reinstatement.

Appellant asserts that because the state failed to advise him of the consequences that would occur if he consumed alcohol, the revocation of his driver's license violated his constitutional guarantees of due process.

D E C I S I O N

Appellant argues that "[i]n order to establish appellant violated the restrictions imposed in a restricted license, the state must prove appellant was in violation * * *." We disagree. In license revocation proceedings under Minn. Stat. § 171.19 (1986), the petitioner has the burden of proving he is entitled to reinstatement. Gardner v. Commissioner of Pub. Safety, 423 N.W.2d 110, 113 (Minn. App. 1988). Further, the decision whether to cancel or deny driving privileges is the commissioner's, and his decision is presumptively correct. Id. The agency's decision will not be reversed unless it was fraudulent, arbitrary, unreasonable, or beyond the scope of the agency's jurisdiction or powers. Id.

Appellant argues that his license failed to contain the license restriction. However, testimony presented at the hearing contradicts that position. The deputy testified that he looked at the license, turned it over, and noticed the total abstinence restriction. Appellant contends that because the deputy did not include this statement in the police report, it could not have happened. However, even without this statement in the report, the deputy's oral testimony was sufficient for the court to make a credibility determination.

Appellant also argues that it was the commissioner's burden to produce the license to refute appellant's claim. We disagree. The burden remained with appellant and at no time shifted to the state. Had appellant deemed either the actual license or a photocopy was instrumental to the presentation of his case, he could have acquired and presented the license or a copy to the court. Appellant failed to meet his burden of proof.

Finally, appellant himself admitted, under oath, that the restriction was located on the back of his license. Direct examination of appellant contains the following colloquy:

Q. And would you disagree, then, with the deputy sheriff's information that he first learned about that restriction from reading it on the back of your driver's license?

A. Well, I would say that - that I looked over my license, seeing no restrictions. He pointed it out to me.

Q. So he did point out to you that your license said there was a restriction on it?

A. I guess so.

Thus, according to appellant's own testimony, the restriction was printed on the license, but he had not noticed it.

Because appellant failed to meet his burden of proof and demonstrate that his license was actually issued without the total abstinence restriction, there was no due process violation and the court did not clearly err in denying appellant's request for reinstatement.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.