                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1378

                            David John Anderson, petitioner,
                                      Appellant,

                                            vs.

                             Commissioner of Public Safety,
                                    Respondent.

                                   Filed May 9, 2016
                                       Affirmed
                                  Cleary, Chief Judge

                               Polk County District Court
                                File No. 60-CV-15-630



Kevin T. Duffy, Duffy Law Office, Thief River Falls, Minnesota (for appellant)

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


      Considered and decided by Bjorkman, Presiding Judge; Cleary, Chief Judge; and

Smith, John, Judge.

                                    SYLLABUS

      A district court in an implied-consent proceeding lacks jurisdiction to hear an

untimely petition to rescind the revocation of a driver’s license, including where a driver





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
is mentally incompetent at the time of the revocation. However, in a subsequent criminal

proceeding, a driver may challenge the state’s use of such a revocation to enhance charges.

                                        OPINION

CLEARY, Chief Judge

       Appellant David John Anderson was charged in 2006 and 2008 with misdemeanor

driving while impaired (DWI) but was found mentally incompetent to stand trial for those

crimes. The commissioner revoked appellant’s driver’s license in response to each failed

sobriety test. Appellant filed a petition to rescind the revocations in 2015. He argues on

appeal that the district court erred by denying this petition. Because the district court lacked

jurisdiction over the untimely petition, we affirm.

                                           FACTS

       On December 14, 2006, appellant was charged with fourth-degree DWI. He

received a 30-day driver’s license revocation notice, but did not file a petition for judicial

review. In 2007, his license was revoked. On March 3, 2008, appellant was charged with

third-degree DWI. He received a 30-day license revocation notice, did not file a petition

for judicial review, and again his license was revoked.

       While these DWI charges were pending, appellant underwent a rule 20 mental

evaluation. On October 24, 2008, the district court found that appellant “lack[ed] sufficient

ability to consult with a reasonable degree of rational understanding” in his defense and

was “mentally deficient so as to be incapable of participating in his defense.” Because he

was not competent to stand trial, and because both were misdemeanor charges, the 2006




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and 2008 DWI charges were dismissed. Minn. R. Crim. P. 20.01, subd. 6(b). Soon after,

appellant was civilly committed as mentally ill and chemically dependent.

       On December 22, 2012, appellant was arrested and charged with felony DWI -

refusal to submit to a chemical test, felony DWI - operating a motor vehicle under the

influence of alcohol, and gross misdemeanor driving after cancellation. Appellant claims

that the state is now using the 2007 and 2008 driver’s license revocations to enhance the

pending DWI charges.1

       On April 16, 2015, appellant filed a petition for judicial review of the license

revocations, seeking to rescind the revocations. The petition was filed as an implied-

consent proceeding separate from the criminal proceeding. Appellant argued that, because

he was found mentally incompetent to face the 2006 and 2008 DWI charges, the related

revocations should be rescinded. The district court denied appellant’s petition. The court

reasoned that the 30-day period to file for judicial review of a revocation is jurisdictional

and is strictly enforced. Appellant filed his petition years beyond this deadline, and the

district court concluded that it was jurisdictionally barred from considering the petition.

This appeal followed.

                                           ISSUE

       Did the district court err by concluding that it lacked jurisdiction to consider

appellant’s untimely petition to rescind the revocations of his driver’s license?



1
  Appellant failed to cite anything in the record that establishes that the state is using the
revocations to enhance the charges against him. For the purposes of this appeal, we will
assume the truth of that unsupported assertion.

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                                       ANALYSIS

       Appellant contends that because he was found mentally incompetent to face

criminal charges stemming from his 2006 and 2008 DWI arrests, he was also mentally

incompetent to request judicial review of the corresponding license-revocation

proceedings. Therefore, he reasons, because the revocations are now being used by the

state to enhance a pending DWI prosecution, the revocations violate his due-process rights

and should be rescinded.

       “We review due-process challenges de novo.” Thole v. Comm’r of Pub. Safety, 831

N.W.2d 17, 19 (Minn. App. 2013), review denied (Minn. July 16, 2013). Questions of

state-court jurisdiction are also reviewed de novo. State v. Barrett, 694 N.W.2d 783, 785

(Minn. 2005).

       A driver may petition for judicial review of a driver’s license revocation within 30

days after receipt of a notice and order of revocation. Minn. Stat. § 169A.53, subd. 2(a)

(2014). A driver’s license represents a limited property right, and therefore revocation

proceedings are subject to certain due-process requirements, although these protections are

less stringent than the protections afforded to defendants in criminal proceedings. See

Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380, 388 (Minn. App. 1993), aff’d, 517

N.W.2d 901 (Minn. 1994). Implied-consent cases, including drivers-license revocations,

are civil proceedings. State v. Dumas, 587 N.W.2d 299, 303 (Minn. App. 1998), review

denied (Minn. Feb. 24, 1999); Davis, 509 N.W.2d at 392. “In no case does incarceration

result from these proceedings.” Dumas, 587 N.W.2d at 303.




                                            4
       However, a revocation may be used to enhance the penalties for a later DWI

conviction. State v. Wiltgen, 737 N.W.2d 561, 569 (Minn. 2007). Because of the liberty

interests at stake, the use of a license revocation as an aggravating factor is limited “to a

situation where judicial review has already occurred or been waived by the failure to file a

timely petition.” Id. at 571.

       Appellant makes two different arguments in support of his claim that his due-

process rights were violated. First, he argues that, because license revocations may be used

to enhance criminal charges, all revocation proceedings must satisfy the due-process

protections required in criminal prosecutions.          Minnesota courts have rejected this

argument. Nordvick v. Comm’r of Pub. Safety, 610 N.W.2d 659, 663 (Minn. App. 2000).

       Second, appellant argues that the use of the revocations as criminal enhancements

violates his due-process rights because he was mentally incompetent during the 30-day

periods in which he could timely request judicial review of the revocations. Driver’s

license revocations are civil proceedings designed to protect public safety, and “the 30-day

limitations period will be strictly construed even if a delay in filing is not the driver’s fault.”

McShane v. Comm’r of Pub. Safety, 377 N.W.2d 479, 482 (Minn. App. 1985), review

denied (Minn. Jan. 23, 1986); see State v. Hanson, 543 N.W.2d 84, 89 (Minn. 1996)

(stating that “the primary purpose of the [driver’s license revocation] law is to protect the

public by removing from Minnesota’s streets and highways those who drive under the

influence of alcohol”). “A failure to file a petition for judicial review within the 30-day

statutory period deprives the district court of jurisdiction to hear the petition.” Thole, 831




                                                5
N.W.2d at 19. Appellant does not dispute that he received notice of the proceedings and

failed to request judicial review of either revocation within the statutory 30-day periods.

       Appellant appears to suggest that because of his mental incompetence at the times

he received notice of the revocations, he was not given adequate notice to seek judicial

review. Therefore, he argues, enforcing the 30-day jurisdictional bar would violate his

due-process rights. Notice is adequate in an implied-consent proceeding where the state

provides “[n]otice reasonably calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an opportunity to present their

objections.” McShane, 377 N.W.2d at 482-83 (quotation omitted). “Actual receipt of the

notice is not required to meet the due process requirement.” State v. Green, 351 N.W.2d

42, 44 (Minn. App. 1984). Courts have found notice to be adequate even where the

petitioner did not receive actual notice or claimed not to understand the notice. Id.; Johnson

v. Comm’r of Pub. Safety, 394 N.W.2d 867, 868-69 (Minn. App. 1986). So long as notice

of the opportunity to seek judicial review of a revocation is “reasonably calculated” to

reach the driver, it may satisfy due process even if it never, in fact, reaches that driver.

Green, 351 N.W.2d at 44.

       Appellant does not dispute that he was provided notice, nor does he argue that the

commissioner’s method or execution of notice for implied-consent proceedings is

generally inadequate. Appellant believes that because he was incapable of understanding

the notice due to his mental incompetence, he did not receive actual notice of the

opportunity for judicial review. However, in a civil implied-consent proceeding, actual

notice is not required to satisfy due process. Here, the state provided notice that was


                                              6
reasonably calculated to reach appellant and it did, in fact, reach him. This is sufficient to

satisfy due process in the context of the civil implied-consent proceeding.

       Because the notice to appellant was sufficient to satisfy due process and appellant

did not exercise his right to request judicial review within the 30-day period, the district

court did not have jurisdiction to hear the petition. “If the result now seems harsh, it is a

criticism that may be levelled against many statutes of limitation. Furthermore, as a matter

of public policy D.W.I. laws, including the implied consent statute, are liberally construed

in the public’s favor and are strictly applied.” Qualley v. Comm’r of Pub. Safety, 349

N.W.2d 305, 307 (Minn. App. 1984).

       Nonetheless, we note that the state’s enhancement of criminal charges based on

revocations that occurred when a petitioner was mentally incompetent to seek judicial

review may constitute a violation of due process. State v. Warren, 419 N.W.2d 795, 798

(Minn. 1988) (holding that a defendant may challenge the state’s use of a prior

misdemeanor conviction as an enhancement where defendant had waived the right to

counsel in that earlier proceeding). However, an implied-consent proceeding “is not the

proper forum in which to raise” a challenge to the state’s use of a revocation as a criminal

enhancement. Davis, 509 N.W.2d at 389. “Instead, such arguments should be raised at

the time a person is charged with” a crime. Id. District courts in criminal cases must

scrutinize the use of such enhancements. The circumstances in this case may well

constitute one of the “unique” cases in which a criminal defendant may collaterally attack

a revocation to prevent it from serving as an enhancement. See State v. Schmidt, 712

N.W.2d 530, 538 (Minn. 2006) (stating that prior convictions may be collaterally attacked


                                              7
“only in unique cases” (quotation omitted)); Warren, 419 N.W.2d at 798 (holding that the

violation of a defendant’s right to counsel is a “pivotal constitutional right” that may justify

a collateral attack on a prior conviction); State v. Loeffel, 749 N.W.2d 115, 117 (Minn.

App. 2008) (holding that Schmidt also controls a defendant’s challenge to enhancements

based on a civil revocation proceeding), review denied (Minn. Aug. 5, 2008). We express

no opinion as to the outcome of this analysis, but note that the proper proceeding in which

to raise this issue is a pending criminal action.

                                       DECISION

       The district court did not err by concluding it lacked jurisdiction over appellant’s

petition for rescission of his past license revocations, despite appellant’s claim that he was

unable to timely request judicial review due to mental incompetence. However, when the

state uses such a revocation to enhance criminal charges, appellant may challenge the use

of the revocation in the criminal proceeding.

       Affirmed.




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