                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-1279

                           John Michael Kennedy, petitioner,
                                     Appellant,

                                          vs.

                            Commissioner of Public Safety,
                                   Respondent.

                                 Filed June 13, 2016
                                      Affirmed
                                     Kirk, Judge

                             Anoka County District Court
                              File No. 02-CV-14-7150


John L. Lucas, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul,
Minnesota (for respondent)


      Considered and decided by Jesson, Presiding Judge; Kirk, Judge; and Klaphake,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                           UNPUBLISHED OPINION

KIRK, Judge

          Appellant challenges the district court order denying his petition under Minn. Stat.

§ 171.19 (2014) for reinstatement of his driver’s license, which had been canceled by the

Commissioner of Public Safety for noncompliance with a total abstinence restriction. He

argues that (1) the exclusionary rule should apply to proceedings under Minn. Stat.

§ 171.19 and (2) the commissioner did not prove he knowingly consumed alcohol. We

affirm.

                                            FACTS

          In June 2008, appellant John Michael Kennedy’s driver’s license was canceled as

inimical to public safety following multiple convictions of driving while under the

influence. In December 2008, after rehabilitation, Kennedy’s driving privileges were

reinstated. The reinstatement, however, was conditioned on Kennedy’s total abstinence

from the use of alcohol or controlled substances. As part of his request for reinstatement,

Kennedy signed a statement agreeing “not [to] consume any drink or product containing

alcohol or controlled substances.”

          In October 2014, a Minnesota State Trooper was parked in the left turn lane of an

intersection looking for seat belt violators. The trooper testified that, while in this position,

he observed Kennedy fail to yield to oncoming traffic and pulled him over. During the

stop, the trooper “smelled the odor of an alcoholic beverage coming from [Kennedy’s car].”

The trooper testified that Kennedy told him that he had a beer about an hour earlier, and

Kennedy testified that he told the trooper that he had a non-alcoholic beer. After learning


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that Kennedy was driving on a restricted license, the trooper requested a preliminary breath

test (PBT). Kennedy complied and the result of the test was 0.009. Kennedy was arrested

and charged with a gross misdemeanor under Minn. Stat. § 171.09, subd. 1(f)(1) (2014),

for driving while in violation of the total abstinence restriction on his license.

       The matter was referred to the commissioner, who canceled Kennedy’s license for

noncompliance with his total abstinence restriction. Kennedy filed a petition for license

reinstatement under Minn. Stat. § 171.19. After a hearing was held, the district court denied

Kennedy’s petition for reinstatement.

       Kennedy appeals.

                                      DECISION

       There is “[a] presumption of regularity and correctness . . . when license matters are

reviewed” by this court. Constans v. Comm’r of Pub. Safety, 835 N.W.2d 518, 523 (Minn.

App. 2013). “This court will not reverse a license determination unless it finds that it is

unsupported by substantial evidence or is arbitrary and capricious.” Igo v. Comm’r of Pub.

Safety, 615 N.W.2d 358, 360 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000).

       The petitioner seeking license reinstatement under Minn. Stat. § 171.19 has the

burden of proving entitlement for reinstatement of the canceled license. Pallas v. Comm’r

of Pub. Safety, 781 N.W.2d 163, 166 (Minn. App. 2010). In a license-reinstatement

proceeding, the district court conducts a de novo review of the commissioner’s decision to

cancel and “must weigh witness credibility and all of the evidence, and independently

determine whether the cancellation is justified.” Igo, 615 N.W.2d at 361. We review de

novo the district court’s application of the law, id., and defer to the district court’s


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credibility determinations and ability to weigh the evidence, Thorson v. Comm’r of Pub.

Safety, 519 N.W.2d 490, 493 (Minn. App. 1994).

I.     The exclusionary rule does not apply to Kennedy’s proceeding under Minn.
       Stat. § 171.19.

       The exclusionary “rule is a judicially created remedy designed to safeguard Fourth

Amendment rights generally through its deterrent effect, rather than a personal

constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. 338, 348,

94 S. Ct. 613, 620 (1974). The United States “Supreme Court has consistently restricted

application of the exclusionary rule to ‘those areas where its remedial objectives are

thought most efficaciously served.’” State v. Lindquist, 869 N.W.2d 863, 868 (Minn. 2015)

(quoting Calandra, 414 U.S. at 348, 94 S. Ct. at 620).         It “has declined to apply

the . . . exclusionary rule in circumstances in which doing so would not serve the central

purposes of deterring police misconduct.” Id.

       This court analyzed whether the exclusionary rule applies to proceedings under

Minn. Stat. § 171.19 in Ascher v. Comm’r of Pub. Safety, 527 N.W.2d 122, 125-126 (Minn.

App. 1995), review denied (Minn. Mar. 21, 1995). In Ascher, a driver, who had been

stopped at a sobriety checkpoint that was later found to be unconstitutional, sought

reinstatement of his driver’s license under Minn. Stat. § 171.19. Id. at 124-25. We held

that a driver’s license with a total abstinence restriction “may be cancelled and denied on

the grounds that the licensee is inimical to public safety even if the evidence of alcohol

consumption would not be admissible in an implied consent proceeding.” Id. at 123-24.

We reasoned that the “unlawful police conduct in establishing illegal checkpoints [had]



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been adequately deterred by [excluding evidence in the driver’s implied-consent

proceeding], and that applying the exclusionary rule to exclude evidence that [the driver],

having violated a condition of his licensure by consuming alcohol, is ‘inimical to public

safety’ would not deter future unlawful police conduct to any significant degree.” Id. at

126.

       Kennedy argues that the district court erred by concluding that the exclusionary rule

does not apply to proceedings under Minn. Stat. § 171.19, and because the trooper stopped

him “without reasonable suspicion of criminal activity or traffic violation,” any evidence

that was obtained as a result of the traffic stop should be excluded. Specifically, he argues

that the holding in Ascher should be limited because that case involved the unique situation

where the roadblock was determined to be unconstitutional after the stop occurred and the

driver had already received relief in his implied-consent proceeding. He also argues that

if the exclusionary rule is never applied in these types of proceedings, law enforcement

could act arbitrarily towards persons with total abstinence provisions without fear of

suppression.

       Based on Ascher, we conclude that the exclusionary rule does not apply to

Kennedy’s proceeding under Minn. Stat. § 171.19. At the time of his proceeding, Kennedy

had a pending criminal matter where he could argue that the stop was unlawful. Therefore,

any challenge to this proceeding would have minimal deterrence value. Ascher, 527

N.W.2d at 126. Moreover, Kennedy’s other arguments fail because Ascher does not

indicate its holding was intended to only apply to cases in which law enforcement was

acting legally at the time of the stop and the record here does not contain any evidence that


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the trooper was aware that Kennedy’s license was conditioned on total abstinence at the

time he initiated the stop. Based on these facts, the Fourth Amendment does not require

suppression of evidence of Kennedy’s PBT in his proceeding under Minn. Stat. § 171.19.

II.    The commissioner had sufficient cause to believe Kennedy violated the total
       abstinence restriction on his driver’s license.

       Minn. R. 7503.1700, subp. 6 (2013), states that “[t]he commissioner shall cancel

and deny the driver’s license and driving privilege of a person on sufficient cause to believe

that the person has consumed alcohol or a controlled substance after the documented date

of abstinence.” In a proceeding under Minn. Stat. § 171.19, the commissioner must present

“some evidence” to demonstrate that there was “good cause” to believe that the driver

violated a total abstinence restriction. Plaster v. Comm’r of Pub. Safety, 490 N.W.2d 904,

906 (Minn. App. 1992). Kennedy must show that the commissioner acted unreasonably.

Igo, 615 N.W.2d at 360.

       Kennedy argues that the district court erred by concluding that the commissioner

“demonstrated good cause to believe that [Kennedy] consumed alcohol in violation of the

total abstinence restriction on his license.” He argues that the commissioner did not prove

that the non-alcoholic beer consumed by him contained alcohol and, even if the beer did

contain alcohol, the commissioner did not prove that Kennedy knew it did.

       We conclude that the commissioner presented “some evidence” to demonstrate that

there was “good cause” to believe that Kennedy violated the total abstinence restriction on

his license. See Plaster, 490 N.W.2d at 906. The trooper testified that the results of the

PBT administered on Kennedy was 0.009 and that Kennedy told him that he had consumed



                                              6
a beer about an hour before he was stopped. Kennedy also admitted that he had consumed

a non-alcoholic beer. Although the commissioner did not prove that the non-alcoholic beer

consumed by Kennedy contained any alcohol, it was impossible to do so because Kennedy

testified that he did not know the brand of non-alcoholic beer he had consumed. Kennedy

also did not produce any evidence that the non-alcoholic beer he consumed had no alcohol

in it. Moreover, the fact that Kennedy did not know that non-alcoholic beer contained

alcohol is irrelevant because Minn. R. 7503.1700, subp. 6, does not require a driver

knowingly consume alcohol, it only requires the commissioner to have sufficient cause to

believe the driver has consumed alcohol. The district court did not err in denying

Kennedy’s petition for reinstatement because the record supports the conclusion that the

commissioner presented some evidence to establish good cause to believe that Kennedy

violated his total abstinence restriction and that Kennedy failed to show that the

commissioner’s actions were unreasonable.

      Affirmed.




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