State of Minnesota, Respondent, vs. Stephen Morris Bushey, Appellant.

State of Minnesota, Respondent, vs. Stephen Morris Bushey, Appellant. A04-325, Court of Appeals Unpublished, February 15, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A04-325

 

State of Minnesota,
Respondent,
 
vs.
 
Stephen Morris Bushey,
Appellant.

 

Filed February 15, 2005 Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 03042577

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

Ethan P. Meaney, Derek Patrin, Gerald Miller, Gerald Miller & Associates, P.A., 2915 Wayata  Boulevard, Minneapolis, MN  55404 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Hudson, 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 a conviction of first-degree driving while impaired, appellant challenges the district court's decision to permit a Minnesota license revocation that was based on a New York driving-while-impaired conviction to be used as a basis for charging appellant with first-degree driving while impaired.  We affirm.

FACTS

On June 20, 2003, Minneapolis police officers arrested appellant Stephen Morris Bushey on suspicion of driving while impaired (DWI).  The implied-consent advisory was read to appellant, and he submitted to an Intoxilyzer test after speaking with an attorney.  The test result indicated that appellant's alcohol concentration was .18.

            Before this incident, appellant's Minnesota driver's license had been revoked three times.  The most recent of these revocations occurred on October 24, 2002, after appellant was convicted on October 1, 2002, of DWI in the State of New York.  Based on these three driver's-license revocations, appellant was charged under Minn. Stat. §169 A. 24, subd. 1(1) (2002), with two counts of first-degree DWI.  Appellant was also charged with one count of driving after cancellation. 

Appellant moved to dismiss the two counts of first-degree DWI, arguing that because his Minnesota constitutional right to counsel was not vindicated during the incident that led to his DWI conviction in New York, the Minnesota license revocation that was based on his New York conviction could not be used as a basis for charging him with first-degree DWI. 

The district court ruled that because appellant knew or should have known that his driver's license had been revoked as a result of the New York DWI conviction, but he did not timely challenge the revocation, the revocation could be used as a basis for the first-degree DWI charges.  The court found appellant guilty of one count of first-degree DWI, dismissed the other count of first-degree DWI, and found appellant not guilty of driving after cancellation.

D E C I S I O N

Under Minnesota law, "[a] person who violates section 169 A. 20 (driving while impaired) 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."  Minn. Stat. §169 A. 24, subd. 1(1) (2002).  "‘Qualified prior impaired driving incident' includes prior impaired driving convictions and prior impaired driving-related losses of license."  Minn. Stat. §169 A. 03, subd. 22 (2002).  "Prior impaired driving-related losses of license" includes a driver's-license revocation under Minn. Stat. § 171.17.  Minn. Stat. §169 A. 03, subd. 21(1) (2002).  Minn. Stat. § 171.17 directs the Department of Public Safety to "immediately revoke the license of a driver upon receiving a record of the driver's conviction of . . . an offense in another state that, if committed in this state, would be grounds for revoking the driver's license."  Minn. Stat. § 171.17, subd. 1(a)(9) (2002).  

Based on appellant's three prior driver's-license revocations, appellant was charged with first-degree DWI.  Appellant argues that the revocation of his driver's license in 2002, which was based on a New York DWI conviction, cannot be used as one of the three prior driver's-license revocations needed for charging him with first-degree DWI.[1]

The district court's denial of a motion to prohibit using appellant's 2002 Minnesota driver's-license revocation to enhance his current charges raises a question of law, which this court reviews de novo. State v. Bergh, 679 N.W.2d 734, 737 (Minn. App. 2004).  Underlying findings of fact will not be reversed unless they are clearly erroneous. Burke v. Comm'r of Pub. Safety, 381 N.W.2d 903, 904 (Minn. App. 1986).

Under New York law, a motorist does not have a constitutional right to consult with an attorney before submitting to a chemical test for alcohol.  People v. Shaw, 531 N.E.2d 650, 650-51 (N.Y. 1988) (holding no obligation under New York Constitution to advise driver he or she may consult counsel because it is not a critical stage of adversarial process).  But "[i]n Minnesota, a driver has a limited right to consult with an attorney before deciding whether to submit to blood-alcohol testing."  Bergh, 679 N.W.2d at 737 (citing Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991)).  This right is based on the Minnesota Constitution.  Friedman, 473 N.W.2d at 833-34.

Citing Bergh, appellant argues that because Minnesota recognizes a driver's constitutional right to consult with an attorney before deciding whether to take a chemical test for alcohol, a license revocation imposed after a denial of this constitutional right cannot be used for purposes of charging a driver with first-degree DWI.  In Bergh, a driver was charged with first-degree DWI.  679 N.W.2d at 736.  The three qualified prior impaired-driving incidents that the state alleged as a basis for the first-degree charge included a revocation of the driver's Colorado driver's license following a Colorado DWI conviction.  Id.  The Colorado conviction and revocation were based on a chemical test, and under Colorado law, the driver was not entitled to consult with an attorney before deciding whether to submit to chemical testing.  Id.  The driver argued that because Colorado law violated his Minnesota constitutional right to the assistance of counsel, neither the Colorado conviction nor revocation could be used to charge him with first-degree DWI.  Id.  The district court ruled that the Colorado conviction could not be used to enhance the Minnesota offense, but the Colorado license revocation could be used for enhancement.  Id.  On appeal, this court held that because the driver's Colorado license revocation depended on the driver's chemical-test failure and the driver was denied his right to consult with an attorney before deciding whether to submit to chemical testing, the revocation could not be used to enhance the driver's Minnesota offense.  Id. at 738.

Bergh is not controlling in the present case, however, because, in the present case the state did not use a license revocation from another state to enhance the current charges; the state used a Minnesota license revocation that resulted from a New York DWI conviction to enhance the current charges.  Upon receiving a record of appellant's 2002 New York DWI conviction, the Department of Public Safety revoked appellant's driver's license, as required under Minn. Stat. § 171.17, subd. 1(a)(9).  Appellant did not petition for judicial review of the revocation.  See Minn. Stat. § 169 A. 53, subd. 2-3 (2002) (providing for judicial review of driver's license revocation upon petition).  Under these circumstances, we conclude that using appellant's 2002 Minnesota license revocation to charge appellant with first-degree DWI is permitted under this court's decision in State v. McLellan, 655 N.W.2d 669 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003). 

In McLellan, a driver was convicted of DWI in Wisconsin after pleading guilty without advice of counsel.  Id. at 670.  Following the conviction, the driver's Minnesota driver's license was revoked pursuant to Minn. Stat. § 171.17, subd. 1(9), and the driver did not petition for judicial review of the revocation.  Id. at 671.  The driver was later arrested for DWI in Minnesota, and the revocation that resulted from the Wisconsin DWI conviction was used to enhance the driver's DWI offense.  Id. at 670.   The driver argued that because the Minnesota revocation was due to the Wisconsin DWI conviction, and the Wisconsin conviction could not pass constitutional muster under Minnesota law, the revocation could not be used to enhance the later DWI charge.  Id. at 671.  This court held that although an uncounseled guilty plea to DWI cannot be used to enhance a subsequent DWI offense, enhancement of the later DWI offense based on the unchallenged Minnesota license revocation was proper.  Id.

Like the driver in McLellan, appellant's Minnesota driver's license was revoked pursuant to Minn. Stat. § 171.17, subd. 1(9), after the Department of Public Safety received a record of appellant's conviction of a DWI offense in another state, and appellant did not petition for judicial review of the revocation.  As in McLellan, even if appellant's New York DWI conviction could not be used as a basis for an enhanced DWI charge, enhancing appellant's current offense based on the unchallenged Minnesota license revocation is proper.

Appellant argues that McLellan does not control this case because the driver in McLellan only attacked the underlying DWI conviction and did not claim, as appellant claims, that, irrespective of the DWI conviction, the license revocation itself was obtained in violation of his constitutional right to counsel before submitting to a chemical test for alcohol.  But appellant could have raised this claim in a petition for judicial review of the 2002 license revocation.  This court's decision in McLellan that the license revocation could be used to enhance the later DWI offense was based on the driver's failure to challenge the revocation when it occurred.  Because appellant did not petition for judicial review of the revocation that resulted from his New York DWI conviction, the revocation is valid and may be used to enhance appellant's current DWI offense.

Affirmed.

[1] Appellant does not dispute that his other two license revocations are qualified prior impaired-driving incidents.