State of Minnesota, Respondent, vs. Biniam Solomon, Appellant.

State of Minnesota, Respondent, vs. Biniam Solomon, Appellant. A06-1959, Court of Appeals Unpublished Decision, December 11, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1959

State of Minnesota,
Respondent,
 
vs.
 
Biniam Solomon,
Respondent.

 

 

 

Filed December 11, 2007

Affirmed

Worke, Judge

 

Scott County District Court

File No. 70-CR-05-2164

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

 

Stefan A. Tolin, Suite 845 Rand Tower, 527 Marquette Avenue South, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Worke, Judge.

 

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from a DWI conviction, appellant argues that the district court improperly used a prior alcohol-related license revocation to enhance his current charges to a gross misdemeanor.  We affirm.

 D E C I S I O N

            Appellant Biniam Solomon argues that the district court erred in determining that a prior alcohol-related license revocation could be used to enhance current DWI charges because license-revocation proceedings are not merely civil in nature and treating them as such denied him his due-process rights.  The constitutionality of a statute is a question of law, and as such, appellate courts are not bound by the conclusions of the district courts.  In re Blilie,494 N.W.2d 877, 881 (Minn. 1993).  Statutes are entitled to a presumption of constitutionality, and those challenging an otherwise valid statute must establish beyond a reasonable doubt that the statute violates a claimed right.  Id.  In considering the constitutionality of a statute, "[e]very presumption is invoked in favor of the constitutionality of a statute."  Miller Brewing Co. v. State,284 N.W.2d 353, 356 (Minn. 1979).  The "power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary."  In re Haggerty,448 N.W.2d 363, 364 (Minn. 1989).

In October 2005, appellant was charged with second-degree DWI.  A person can be charged with second-degree DWI, a gross misdemeanor, if the person drives while impaired and "two or more aggravating factors were present when the violation was committed."  Minn. Stat. §169 A. 25, subd. 1(a) (2004).  Aggravating factors include "a qualified prior impaired driving incident within the ten years immediately preceding the current offense."  Minn. Stat. §169 A. 03, subd. 3(1) (2004).  A "qualified prior impaired driving incident" includes impaired driving convictions and impaired driving-related losses of license, including a driver's-license revocation.  Id. subds. 21(a)(1), 22 (2004). Appellant has an alcohol-related license revocation from 1999 and a DWI conviction from 2002.  These two prior incidents constituted aggravating factors that enhanced appellant's charges.  But appellant contends that the prior alcohol-related license revocation should not have been used as an aggravating factor because he pleaded guilty to careless driving and not DWI.  Appellant's argument fails because a license revocation by itself is an aggravating factor.   See id. 

            Appellant also argues that the 1999 license revocation should not have been used as an aggravating factor because he was non-English speaking at the time and did not comprehend the implied-consent advisory.  But in Yokoyama v. Comm'r of Pub. Safety, this court held that the defendant motorist did not have a statutory right to have the implied-consent advisory read to him in Japanese.  356 N.W.2d 830, 831 (Minn. App. 1984).  Therefore, there was no requirement that appellant be read the implied-consent advisory in the language he understood.  And although appellant testified that he was non-English speaking when he moved to the United States in 1989, his offense did not occur until nine years later.  Further, while Minn. Stat. § 611.32, subd. 2 (2004) provides for an interpreter for an individual who is disabled in communication, this statute applies to criminal cases, and the implied-consent proceeding is civil in nature.  See Warner v. Comm'r of Pub. Safety, 498 N.W.2d 285, 288 (Minn. App. 1993) (holding that Minn. Stat. § 611.32, subd. 2, which entitled a deaf criminal defendant to an interpreter was not applicable to proceedings to revoke a driver's license under the implied-consent law, which is civil in nature), review denied (Minn. May 28, 1993).  Therefore, appellant's argument that the prior license revocation should not qualify as an aggravating factor because he was not fluent in English fails.   

Appellant also argues that the license revocation should not qualify as an aggravating factor because he was not represented by counsel.  Appellant testified that his publicdefender told him that he could not represent appellant in the related civil license-revocation matter, and appellant did not petition for judicial review because he could not afford an attorney.  In State v. Dumas, this court held that past uncounselled civil license revocations may be used to enhance subsequent DWI charges without violating the constitutional right to counsel.  587 N.W.2d 299, 304 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).  Appellant concedes that Dumas is controlling, but suggests that this issue should be readdressed by the supreme court.  Appellant does not, however, present any argument that this court has not already addressed to support his request to have this issue readdressed.  Appellant has failed to establish beyond a reasonable doubt that the implied-consent law is unconstitutional.

            Affirmed.