                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1236

                          Robert Edward Dornbusch, petitioner,
                                      Appellant,

                                            vs.

                             Commissioner of Public Safety,
                                    Respondent.

                                  Filed March 2, 2015
                                        Affirmed
                                      Ross, Judge

                             Hennepin County District Court
                               File No. 27-CV-12-21256

Robert Edward Dornbusch, Winona, Minnesota (pro se appellant)

Lori Swanson, Attorney General, Jacob Fischmann, Assistant Attorney General, Rory C.
Mattson, Assistant Attorney General, St. Paul, Minnesota (for respondent)


       Considered and decided by Ross, Presiding Judge; Kirk, Judge; and Reilly, Judge.

                                    SYLLABUS

       When a district court reviews the commissioner of public safety’s decision under

the implied-consent statute to revoke the license of a driver whose chemical-test results

indicated the presence of a Schedule II controlled substance, the district court may not

rescind the revocation on the ground that the drug’s presence resulted from the driver’s

lawful use of the drug under a physician’s prescription.
                                      OPINION

ROSS, Judge

       A sample of Robert Dornbusch’s blood tested positive for amphetamine after

police stopped him in Deephaven in July 2012 and field sobriety testing indicated that he

was impaired. The public safety commissioner revoked Dornbusch’s driver’s license for

90 days. Dornbusch contested the revocation in district court, arguing that the revocation

cannot stand because the positive test resulted from his lawful use of a prescription drug.

The district court made no fact findings on the assertion. It instead rejected the argument

on the legal ground that the prescription-drug affirmative criminal defense does not apply

in administrative license-revocation proceedings under the implied-consent statute.

       Dornbusch appeals. Because the district court was correct, we affirm.

                                         ISSUE

       After the commissioner of public safety revokes the license of a driver whose

chemical-test results indicated the presence of a Schedule II controlled substance, may a

district court on judicial review rescind the revocation on the ground that the positive

indication resulted from the driver’s lawful use of the substance under a physician’s

prescription?

                                       ANALYSIS

       The commissioner of public safety must revoke a driver’s license under the

administrative provisions of the impaired-driving law if certain conditions exist, such as

the presence of a Schedule II controlled substance in a driver suspected of driving while

impaired:


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              Upon certification by the peace officer that there existed
              probable cause to believe the person had been driving . . . a
              motor vehicle in violation of section 169A.20 (driving while
              impaired) and that the person submitted to a test and the test
              results indicate . . . the presence of a controlled substance
              listed in Schedule I or II or its metabolite, . . . then the
              commissioner shall revoke the person’s license.

Minn. Stat. § 169A.52, subd. 4(a) (2014). The amphetamine detected in Dornbusch’s

blood after his arrest for suspected impaired driving is a Schedule II controlled substance.

Minn. Stat. § 152.02, subd. 3(d)(1) (2014). Dornbusch’s license revocation was therefore

mandatory.

       Dornbusch challenges the district court’s holding that the affirmative prescription-

drug defense does not apply to the district court’s review of the revocation. The defense

certainly could apply in a driving-while-impaired criminal proceeding in which liability

is based solely on the presence of a controlled substance in the driver’s body:

              If proven by a preponderance of the evidence, it is an
              affirmative defense to a violation of section 169A.20
              subdivision 1, clause (7) (presence of Schedule I or II
              controlled substance), that the defendant used the controlled
              substance according to the terms of a prescription issued for
              the defendant in accordance with sections 152.11 and 152.12.

Minn. Stat. § 169A.46, subd. 2 (2014). The question we must answer—whether the

defense could also apply in a driving-while-impaired administrative proceeding—is a

matter of statutory interpretation, which we review de novo. See State v. Rohan, 834

N.W.2d 223, 226 (Minn. App. 2013), review denied (Minn. Oct. 15, 2013).

       Although the statutory prescription-drug defense expressly applies in cases

involving “a violation of section 169A.20, subdivision 1, clause (7),” the impaired-



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driving chapter says nothing to suggest that it applies outside that criminal context. And

the provision that governs judicial review of license revocations specifically identifies the

“limited” issues to be resolved in a judicial-review proceeding: “The scope of the hearing

is limited to the issues in clauses (1) to (10).” Minn. Stat. § 169A.53, subd. 3(b) (2014).

The issues in four of those clauses refer to test refusal, commercial vehicles, or motor

vehicle accidents, and these involve circumstances plainly irrelevant to Dornbusch’s

revocation. See Minn. Stat. § 169A.53, subd. 3(b)(3), (4), (7), (9). The remaining six

issues are these:

              (1) Did the peace officer have probable cause to believe the
              person was driving, operating, or in physical control of a
              motor vehicle . . . in violation of section 169A.20 (driving
              while impaired)?

              (2) Was the person lawfully placed under arrest for violation
              of section 169A.20?

              ....

              (5) If the screening test was administered, did the test indicate
              an alcohol concentration of 0.08 or more?

              (6) At the time of the request for the test, did the peace officer
              inform the person of the person’s rights and the consequences
              of taking or refusing the test as required by section 169A.51,
              subdivision 2?

              ....

              (8) If a test was taken by a person driving, operating, or in
              physical control of a motor vehicle, did the test results
              indicate at the time of testing: (i) an alcohol concentration of
              0.08 or more; or (ii) the presence of a controlled substance
              listed in Schedule I or II or its metabolite, other than
              marijuana or tetrahydrocannabinols?



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              ....

              (10) Was the testing method used valid and reliable and were
              the test results accurately evaluated?

Id. The prescription-drug defense does not appear in this list of “limited” issues. And the

supreme court has recently emphasized that the list is exclusive. See Axelberg v. Comm’r

of Pub. Safety, 848 N.W.2d 206, 208–09 (Minn. 2014) (prohibiting driver from raising

necessity defense in revocation proceeding because the defense is not in the statute’s

issues list). We therefore hold that a district court reviewing the commissioner of public

safety’s decision to revoke the license of a driver whose chemical test results indicated

the presence of a Schedule II controlled substance may not rescind the revocation on the

ground that the positive indication resulted from the driver’s prescribed, lawful use of the

substance.

       We understand the rationale behind the prescription-drug defense in criminal

proceedings. That the impaired-driving statute expressly imposes no criminal liability on

a person who is not under the influence of prescribed medicine but who drives after

ingesting the medicine follows naturally from the fact that many Schedule II controlled

substances have accepted medical uses. See Minn. Stat. § 152.02, subd. 7(2) (2014)

(setting out “currently accepted medical use” as a criterion for classification in Schedule

II). For example, Schedule II includes the stimulants amphetamine (Dexedrine, Adderall),

methamphetamine (Desoxyn), and methylphenidate (Ritalin, Concerta), and it also

includes the narcotics hydromorphone (Dilaudid), methadone (Dolophine), oxycodone

(OxyContin, Percocet), fentanyl (Sublimaze, Duragesic), morphine, codeine, and



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hydrocodone. Id., subd. 3(b)(1)(ii)(B), (F), (G), (I), (J), (c)(10), (16), (d)(1), (2), (4); see

U.S. Dep’t of Justice, D.E.A., Lists of Scheduling Actions, Controlled Substances,

Regulated Chemicals (Feb. 2015), available at www.deadiversion.usdoj.gov/schedules

(identifying commercial names of controlled substances). The statute indicates that these

drugs are listed in Schedule II primarily to address potential abuse and dependence,

Minn. Stat. § 152.02, subd. 7(2), not to thwart their intended prescribed use by drivers.

       And we recognize that nothing in the implied-consent law suggests that the

legislature intended that a driver, despite not necessarily being criminally liable for

driving while properly using a prescribed drug, would nevertheless be administratively

liable and lose his license with no judicial remedy to void the revocation. We therefore do

not suppose that the legislature contemplated this result when it limited the scope of

judicial review proceedings to the ten listed issues in section 169A.53, subdivision 3(b).

But our holding is required by the admonition not to add words when construing a statute,

even words that the legislature has apparently inadvertently omitted. Martinco v.

Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (“[C]ourts cannot supply that

which the legislature purposely omits or inadvertently overlooks.”). For these reasons, we

follow the statute’s plain language and the Axelberg court’s holding, and we affirm the

district court’s decision.

       We add that we are aware of, but have no basis to apply, a very narrow exception

to the plain-language rule. In an exceptional situation, applying a statute’s plain words

might obviously and directly controvert, rather than follow, the legislature’s clear and

manifest purpose. See, e.g., State v. Retzlaff, 807 N.W.2d 437, 440 (Minn. App. 2011)


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(“[W]e are convinced that this is one of those rare circumstances in which we cannot both

follow a statute’s plain language and avoid an absurd result that contradicts the statute’s

obvious intent.”), aff’d mem., 842 N.W.2d 565 (Minn. 2012); see also Mut. Serv. Cas.

Ins. Co. v. League of Minn. Cities Ins. Trust, 659 N.W.2d 755, 761–62 (Minn. 2003)

(summarizing decisions and clarifying that “the court could disregard the plain language

of a statute only where the legislative purpose was clear and the plain meaning would

utterly confound that purpose”). The rare exception does not apply here because,

although the legislature has expressly prevented criminal impaired-driving liability

arising from the mere presence of a prescription drug in a driver’s body due to lawful use,

it has not expressly established its intent to extend this protection to prevent license

revocation. It is not our prerogative to reconcile the gap between the criminal provisions

and the administrative provisions in the impaired-driving law. “This public policy

concern should be directed to the [l]egislature because we must read this state’s laws as

they are, not as some argue they should be.” Axelberg, 848 N.W.2d at 212.

                                     DECISION

       Because Dornbusch’s use of prescription drugs is not one of the limited issues that

the district court may resolve in its judicial review of the commissioner’s license-

revocation decision, the district court here correctly rejected Dornbusch’s attempt to

invoke the criminal prescription-drug defense.

       Affirmed.




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