Robert Allen Dushek, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

Robert Allen Dushek, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. A05-1932, Court of Appeals Unpublished, July 25, 2006.

This opinion will be unpublished and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

A05-1932

 

Robert Allen Dushek, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed July 25, 2006

Affirmed

Hudson, Judge

 

Hennepin County District Court

File No. IC 483823

 

Ethan P. Meaney, Derek Patrin, Meaney & Patrin, P.A., 1902 Mainstreet, Hopkins, Minnesota 55343 (for appellant)

 

Mike Hatch, Attorney General, Jeffrey F. Lebowski, Sean R. McCarthy, Peter D. Magnuson, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant challenges the district court's decision sustaining the revocation of appellant's driver's license pursuant to the implied-consent law and rejecting his procedural due process challenge to the implied-consent advisory.  Because his due process challenge was rejected under recent caselaw and because a challenge to the scheduling procedure for implied consent hearings in Hennepin County district court is not properly before us, we affirm.

FACTS

            The facts as found by the district court are undisputed.  Appellant was arrested for DWI on April 2, 2004, and a breath test revealed an alcohol concentration of .11.  He was served with a notice and order of revocation informing him that his driver's license would be revoked for a 90-day period, effective April 9, 2004.

            Also on April 2, 2004, appellant petitioned for judicial review in Hennepin County district court.  Pursuant to that judicial district's policy, the criminal matter had to be resolved before the petition for judicial review could be heard.  An implied-consent hearing was scheduled for July 22, 2004, more than 60 days after the filing of the petition, and appellant then continued the hearing twice.  On April 19, 2004, appellant applied for and received a stay of the balance of his revocation.

            The hearing was held on January 20, 2005, and the court allowed appellant additional time after the hearing to submit written argument.  On April 15, 2005, the court issued a decision sustaining the revocation, but indicated it would reconsider its ruling, if appropriate, upon release of Fedziuk v. Comm'r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005).  Shortly after Fedziuk was released, appellant sought reconsideration from the district court.  The district court sustained the revocation under Fedziuk.  This appeal follows.

D E C I S I O N

            Constitutional issues are reviewed de novo.  Fedziuk v. Comm'r of Pub. Safety, 696 N.W.2d 340, 344 (Minn. 2005).

            Before the 2003 amendments to the implied-consent law came into effect, the statute provided that when a driver petitioned for judicial review of his or her license revocation, the postrevocation hearing "must be held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review."  Minn. Stat. § 169 A. 53, subd. 3(a) (2002).  "The judicial district administrator shall establish procedures to ensure efficient compliance with this subdivision."  Id.  There were no consequences for failing to hold the hearing within that time, but the court was authorized to stay the balance of the revocation if the hearing was not held within 60 days.  Id., subd. 2(c) (2002).

            In the 2003 amendments, the legislature removed the requirement that the hearing be held "at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review."  2003 Minn. Laws 1st Spec. Sess. ch. 2, art. 9, § 13.  The law continued to provide that the court could stay the revocation if the hearing was not held within 60 days.  Minn. Stat. § 169 A. 53, subd. 2(c) (2002).

The amendment removing the prompt-hearing requirement was challenged on due-process grounds, and the supreme court held that the lack of provisions for prompt postrevocation judicial review rendered the law unconstitutional as violating due process.  Fedziuk, 696 N.W.2d at 34547.  The court also held that the version of the law that existed immediately prior to the 2003 amendments was revived.  Id. at 349.

            Appellant argues in his brief to this court that because his license revocation occurred under the version of the implied-consent law that was declared unconstitutional in Fedziuk, his revocation was unconstitutional under Fedziuk.  At oral argument, appellant acknowledged that this issue has since been resolved against him in an opinion issued after briefing was completed.  Bendorf v. Comm'r of Pub. Safety, 712 N.W.2d 221, 22324 (Minn. App. 2006), review granted (Minn. June 28, 2006).  In Bendorf, the appellant's revocation was stayed after he filed his petition for review pending release of Fedziuk, after which the district court sustained the revocation.  Bendorf, 712 N.W.2d at 223.  The appellant argued to this court that he was entitled to rescission of the revocation because the hearing was scheduled under the statutory provision later declared unconstitutional in Fedziuk.  Id.  This court rejected the argument and held that when the hearing is not held within the 60-day period, the remedy is a stay of the revocation, not rescission of the revocation.  We presently determine that Bendorf is controlling.[1]

            In his brief, appellant asserts in a summary fashion that the court administrator prevented him from obtaining a hearing "for nearly 111 days."  At oral argument, appellant expanded this argument to contend that the Hennepin County district court's policy of scheduling implied-consent cases after the completion of the related criminal matter violates the statutory requirement revived in Fedziuk that the hearing must be held within 60 days.

            First, we note that appellant's petition for review was filed on April 2, 2004, and on April 19, 2004, he applied for and received a stay of the revocation.  His hearing was scheduled by the court for July 22, 2004, 81 days after he petitioned for judicial review.  He sought and received two continuances, and the hearing was ultimately held on January 20, 2005.  It is undisputed that appellant's hearing was initially scheduled after the 60-day statutory period.  In any event, we decline to address appellant's challenge to the Hennepin County district court policy.  The district court did not rule on it, and appellant's substantive arguments were made for the first time at oral argument.  Consequently, the issue is not properly before this court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

            Finally, appellant also briefly argues that even if he received temporary reinstatement, he still faces numerous collateral challenges, including the possible enhancement of a new DWI based on the revocation of his driving privileges under the law deemed unconstitutional or possible increased insurance premiums.  Both arguments are premature, and appellant lacks standing to raise them because neither event has happened yet.  See Bendorf, 712 N.W.2d at 224 (holding appellant lacked standing to challenge enhancement provision in criminal statute when it had not yet been applied against him).

            The decision of the district court sustaining the license revocation is affirmed.

            Affirmed.

[1]On June 28, 2006, the supreme court granted review in Bendorf.  Pending that decision, we continue to follow our decision in Bendorf.