                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A16-0099

                             David Anthony Janssen, petitioner,
                                       Appellant,

                                              vs.

                               Commissioner of Public Safety,
                                      Respondent.

                                   Filed August 22, 2016
                                  Reversed and remanded
                                      Connolly, Judge

                                Ramsey County District Court
                                  File No. 62-CV-14-2363


Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota
(for appellant)

Lori Swanson, Attorney General, Peter D. Magnuson, Assistant Attorney General, St. Paul,
Minnesota (for respondent)



         Considered and decided by Kirk, Presiding Judge; Connolly, Judge; and Larkin,

Judge.

                                      SYLLABUS

         The issue of whether the test results used to obtain a driver’s alcohol concentration

were accurately evaluated is within the scope of an implied-consent hearing under Minn.

Stat. § 169A.53, subd. 3(b)(10) (Supp. 2015), and Minn. Stat. § 169A.53, subd. 3(b)(8)(i)

(Supp. 2015), providing that whether a driver’s alcohol concentration was 0.08 or more at
the time of testing is also within the scope of an implied-consent hearing, does not preclude

the district court at an implied-consideration hearing from considering the accuracy of test

results over 0.08.

                                       OPINION

CONNOLLY, Judge

       Appellant’s driver’s license was revoked for a year and his license plates were

impounded because a breath test indicated that he had been driving with an alcohol

concentration at least twice the legal limit of 0.08. He petitioned for judicial review of the

revocation and the impoundment, waiving all issues except whether the alcohol

concentration of his breath test was sufficient to show an alcohol concentration of 0.16 or

more. The district court sustained the revocation and the impoundment on the grounds that

(1) Minn. Stat. § 169A.53, subd. 3(b)(8)(i), restricts the scope of implied-consent hearings

to whether testing revealed an alcohol concentration is 0.08 or more and (2) appellant had

provided no evidence to rebut the prima facie case that his test result was accurate.

Appellant challenges the revocation and the impoundment.

                                          FACTS

       Appellant David Janssen was arrested for driving while intoxicated (DWI). A

preliminary breath test indicated an alcohol concentration of 0.196. After the implied-

consent advisory was read to him, appellant agreed to take a breath test. The first sample

resulted in an alcohol concentration of 0.174, the second in an alcohol concentration of

0.167. Appellant’s driver’s license was revoked for a year and his license plates were

impounded because his alcohol concentration was “twice the legal limit [of 0.08] or more

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as measured at the time or within two hours of the time of the offense.” Minn. Stat.

§ 169A.54, subd. 1(3)(iii) (2014); see also Minn. Stat. § 169A.60, subd. 1(d)(3) (2014)

(providing that driving with an alcohol concentration twice the legal limit or more is a

“plate impoundment violation”).1

       Appellant petitioned for judicial review. Because having a test result of over 0.16

was dispositive of both the length of his driver’s license revocation and the impoundment

of his license plates, he sought to challenge the test result at his implied-consent hearing.

But the district court, relying on Minn. Stat. § 169A.53, subd. 3(b)(8)(i) (providing that the

issue of whether an alcohol concentration is 0.08 or more is within the scope of an implied-

consent hearing) concluded that “whether the result was over or under [0].16 is not an

appropriate issue for judicial review” at an implied-consent hearing and did not address the

issue. The district court then stated that (1) respondent the Commissioner of Public Safety

had made a prima facie case that the testing method used on appellant was valid and reliable

and his test results were accurately evaluated and (2) appellant had not presented any

evidence to rebut this case. However, because the district court declined to consider

appellant’s 0.167 test result, it is not clear whether the district court concluded that

appellant was driving with an alcohol concentration of “twice the legal limit or more” and




1
 If appellant’s alcohol concentration had been between 0.08 and 0.159, his driver’s license
would have been revoked for 30 days and his license plates would not have been
impounded. See Minn. Stat. § 169A.54, subd. 1(1) (2014) (providing that a driver’s license
shall be revoked for “not less than 30 days for an offense under section 169A.20,
subdivision 1 (driving while impaired crime)”).
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was therefore subject to revocation of his driver’s license for a year and impoundment of

his license plates.

                                           ISSUE

       May the accuracy of test results indicating an alcohol concentration over 0.08 be

challenged at an implied-consent hearing?

                                        ANALYSIS

       “Statutory interpretation presents a question of law, which we review de novo.”

Johnson v. Comm’r of Pub. Safety, 756 N.W.2d 140, 143 (Minn. App. 2008), review denied

(Minn. Dec. 16, 2008).

              The scope of the [implied consent] hearing is limited to the
              issues in clauses (1) to (11):
              ....
              (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 .08 or more . . .?
              ....
              (10) Was the testing method used valid and reliable and were
              the test results accurately evaluated?

Minn. Stat. § 169A.53, subd. 3(b) (Supp. 2015). The district court concluded that issue

(8), whether test results indicated an alcohol concentration of 0.08 or more, restricted part

of issue (10), whether test results were accurately evaluated, to test results of 0.08.

       But a consideration of whether test results were accurately evaluated presupposes a

consideration of what the test results were, and, by the district court’s interpretation, test

results over 0.08 could not be considered. In effect, the district court read additional

language into issue (10): “Was the testing method used valid and reliable and were the test


                                              4
results accurately evaluated?” became “Was the testing method used valid and reliable and,

for test results of 0.08 or less, were the test results accurately evaluated?” But a court’s

reading of a statute may not “supply that which the legislature purposely omits or

inadvertently overlooks.” State v. Wenthe, 865 N.W.2d 293, 304 (Minn. 2015) (quotation

omitted).

       Moreover, in this particular statute, Minn. Stat. § 169A.53, subd. 3(b), “the use of

the word ‘limited’ . . . means that the issues . . . at an implied consent hearing are restricted

to those that fall within the topics in clauses (1) through ([11]).” Axelberg v. Comm’r of

Pub. Safety, 848 N.W.2d 206, 208-09 (Minn. 2014) (declining to add a necessity-defense

issue to the issues for an implied-consent hearing and noting that revising the statute is a

task for the legislature). We conclude that Axelberg also prohibits adding language to the

issues provided by the legislature.

       Respondent cites our supreme court’s decision in Axelberg and this court’s decision

in Dornbusch v. Comm’r of Pub. Safety, 860 N.W.2d 381 (Minn. App. 2015), review

denied (Minn. May 27, 2015), to argue that the plain language of the implied-consent

statute prohibits consideration of the issue. We disagree. In Axelberg and Dornbusch, the

appellants wanted to add a necessity defense and a prescription-drug defense to the list of

enumerated defenses specified in the implied-consent statute. Axelberg, 848 N.W.2d at

207 (necessity defense); Dornbusch, 860 N.W.2d at 382 (prescription-drug defense). Here,

we are not adding anything to the statute. The statute specifically provides two defenses:

(1) whether there is an alcohol concentration of 0.08 or more and (2) whether the testing

method used was valid and reliable and the test results were accurately evaluated. Minn.

                                               5
Stat. § 169A.53, subd. 3(b)(8)(i),(10). As previously stated, an alcohol concentration of

0.16 is 0.08 or more, and determining the reliability of such a result cannot be done without

actually examining the result.

       Interpreting the clause “were the tests results accurately evaluated?” to refer only to

test results of 0.08 or less also violates a canon of construction: “Every law shall be

construed, if possible, to give effect to all its provisions.” Minn. Stat. § 645.16 (2014).

The provision of Minn. Stat. § 169A.53, subd. 3(b)(10), that, at an implied-consent hearing,

drivers may challenge whether the results of their tests were accurately evaluated was not

given effect in appellant’s case.

       That interpretation also violates the principle that, when two statutes “have the same

purpose, they are in pari materia and should be construed together.” Doe v. Minn. State

Bd. of Med. Exam’rs, 435 N.W.2d 45, 49 (Minn. 1989). Minn. Stat. § 169A.53, subds. 2

(2014), 3 (Supp. 2015), provides for judicial review of a driver’s license revocation, and

Minn. Stat. § 169A.60, subd. 10, provides for judicial review of license plate impoundment.

The language of the latter mandates that it be construed with the former: see Minn. Stat.

§ 169A.60, subd. 10(b) (“[T]he judicial review and hearing [for a license plate

impoundment] are governed by section 169A.53 and must take place at the same time as

any judicial review of the person’s license revocation under section 169A.53”); Minn. Stat.

§ 169A.60, subd. 10(c)(1) (if the impoundment is based on driving with an alcohol

concentration of twice the legal limit, i.e., 0.16 or more, adding to the 11 issues set out in

Minn. Stat. § 169A.53, subd. 3(b) “whether the peace officer had probable cause to believe

the violator committed the plate impoundment violation and whether the evidence

                                              6
demonstrates that the plate impoundment violation occurred”). Thus, under the district

court’s interpretation, a driver who was not allowed to challenge the 0.16 test result that

caused his license to be revoked for a year at an implied-consent hearing would, at the same

hearing, be allowed to challenge the 0.16 result that caused his license plates to be

impounded. Construing the statutes together, as we must, demonstrates that Minn. Stat.

§ 169A.53, subd. 3(b)(10), does not apply only to test results of 0.08.

       Finally, denying judicial review to an individual subject to driver’s-license

revocation and license-plate impoundment for a year because of a 0.16 alcohol

concentration while granting judicial review to an individual subject to driver’s license

revocation for only 30 days because of an alcohol concentration between 0.08 and 0.159 is

at least arguably a violation of due process.       “Due process requires a prompt and

meaningful postrevocation [judicial] review.” Fedziuk v. Comm’r of Pub. Safety, 696

N.W.2d 340, 346 (Minn. 2005). Appellant’s review was not “meaningful” because it did

not address the issue dispositive of his penalties: whether his alcohol concentration was

“twice the legal limit or more as measured at the time or within two hours of the time of

the offense.” Minn. Stat. § 169A.54, subd. 1(3)(iii). The failure to review the 0.16 alcohol

concentration was a denial of due process.

                                     DECISION

       Appellant was entitled to challenge the accuracy of his test result indicating a 0.16

alcohol concentration at the implied-consent hearing, and we reverse the determination that

Minn. Stat. § 169A.53, subd. 3(b)(8)(i), precludes such challenges. Because we cannot

determine whether the district court addressed Minn. Stat. § 169A.53, subd. 3(b)(10), or

                                             7
whether the testing method was valid and reliable and the test results were accurately

evaluated based on appellant’s over-0.164 test result, we remand for the district court to

address appellant’s challenge to his test results.

       Reversed and remanded.




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