In Re the Marriage of: Beverly Alto, petitioner, Appellant, vs. Kenneth Alto, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-99-636

Lisa Elizabeth Lowey, petitioner,
Respondent,
 
vs.
 
1992 Honda, License #498 GLN
VIN # 1HGCB7559NA047907, by the City of Brooklyn Center,
Appellant.

 

Filed December 7, 1999
Reversed
Schumacher, Judge

Hennepin County District Court
File No. 988010

Nicholas P. Slade, 2124 Dupont Avenue South, Minneapolis, MN 55405 (for respondent)

Ann L. Harbinson, Carlson, Clelland & Schreder, 6300 Shingle Creek Parkway, Suite 305, Minneapolis, MN 55430 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Holtan, Judge.[*]

 

U N P U B L I S H E D   O P I N I O N

SCHUMACHER

, Judge

The City of Brooklyn Center appeals from adverse summary judgment in a vehicle-forfeiture action. The district court ruled that a prior implied-consent license revocation could not be used as one of the predicate prior driving-under-the-influence related offenses where criminal charges based on the same incident had been dismissed for lack of probable cause. We reverse.

 

FACTS

On April 20, 1998, Brooklyn Center police arrested respondent Lisa Elizabeth Lowey for driving under the influence, and Lowey subsequently pleaded guilty. At the time of arrest, Lowey's driving record showed a July 1994 driving-under-the-influence conviction and a November 1994 implied-consent license revocation. Accordingly, the police seized Lowey's vehicle and issued a notice of seizure and intent to forfeit vehicle.

Lowey filed a petition for judicial determination of forfeiture and then filed for summary judgment, arguing that relying on the November 1994 license revocation was improper because criminal charges based on that incident had been dismissed for lack of probable cause. The district court granted summary judgment and ordered the vehicle released, ruling that the prior license revocation "should not have occurred" where the underlying criminal case was dismissed for lack of probable cause.

 

D E C I S I O N

On appeal from summary judgment we ask whether there are any genuine issues of material fact, and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The construction of a statute is a question of law, fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

Minnesota's vehicle-forfeiture statute provides for forfeiture of a vehicle used in commission of a "designated offense." Minn. Stat. § 169.1217, subd. 6 (1998). "Designated offense" includes a driving-under-the-influence violation

within five years of two prior impaired driving convictions, or two prior license revocations, or a prior impaired driving conviction and a prior license revocation, based on separate incidents.

Minn. Stat. § 169.1217, subd. 1(c)(1)(i) (1998). Accordingly, either prior convictions or license revocations can serve as a basis for forfeiture.

A "prior license revocation" is defined as "a driver's license suspension, revocation, cancellation, denial, or disqualification" under the driving-under-the-influence statute "because of an alcohol-related incident." Minn. Stat. § 169.121, subd. 3(a)(2) (1998). At any time during a period of license revocation, a person may request administrative review by the commissioner of public safety. Minn. Stat. § 169.123, subd. 5b (1998). Within 30 days following receipt of a notice and order of revocation, a person may petition for judicial review. Minn. Stat. § 169.123, subd. 5c (1998). Judicial review allows a district court hearing at which the commissioner of public safety shall appear. Minn. Stat. § 169.123, subd. 6 (1998).

Lowey's driving record accurately lists that her license was revoked in November 1994. Lowey did not seek administrative or judicial review of that revocation. Nothing in the language of the statute suggests that relying on an unchallenged license revocation based on an incident where there has been no criminal conviction is somehow improper. Indeed, requiring a conviction in order to rely on a revocation conflicts with the language of the statute, which plainly provides that either a conviction or a revocation can support vehicle forfeiture.

Lowey cannot now collaterally attack the prior revocation. See State v. Cook, 275 Minn. 571, 571-72, 148 N.W.2d 368, 369-70 (1967) (driver could not collaterally attack validity of license suspension in prosecution for driving after suspension); State v. Hoese, 359 N.W.2d 334, 335-36 (Minn.App.1984) (attack on validity of license revocation in aggravated DWI prosecution was improper). The supreme court has explained that

the revocation of a driver's license under the implied consent law is a civil penalty imposed administratively regardless of the outcome of any criminal proceeding under section 169.121 arising from the same incident.

State v. Hanson

, 356 N.W.2d 689, 692 (Minn. 1984). Neither acquittal nor dismissal of criminal charges based on the same incident will render a prior revocation invalid. Id. Consequently, the fact that related criminal charges were dismissed for lack of probable cause does not render the November 1994 revocation invalid.

The district court erred in ruling that the November 1994 license revocation could not support vehicle forfeiture where related criminal charges were dismissed. The revocation occurred in 1994 and went unchallenged. Lowey cannot attack the validity of the prior license revocation in this vehicle-forfeiture action.

 Reversed.

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