State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0817

State of Minnesota,
Respondent,

vs.

Robby Lee Vaughn,
Appellant.

Filed April 3, 2017
Affirmed
Smith, Tracy M., Judge

Houston County District Court
File No. 28-CR-14-623

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and

Samuel Jandt, Houston County Attorney, Caledonia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy. G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Pr esiding Judge; Hooten, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
On appeal from his conv iction of first-degree driv ing while impaired (DWI),
appellant Robby Lee Vaughn argues that th e use of his 2011 implied-consent license

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revocation to enhance the DWI charge to a felony violates his right to due process. Because
the law permits the enhancement of a DWI ch arge to a felony based on an uncounseled
implied-consent license revocation and Vaughn was not deprived of his rights to counsel
or due process, we affirm.
FACTS
The prior implied-consent li cense revocation that Vaughn challenges as an improper
basis for enhancement stems from a 2011 driving incident. In August of that year, Vaughn
was charged with criminal refusal to take a breath test for alcohol concentration. Based on
the test refusal, the Commissioner of Public Safety revoked Vaughn ’s driver’s license
pursuant to the civil implied-consent law. Vaughn did not seek judicial review of the civil
license revocation. In the criminal case on the test-refusal charge, Vaughn prevailed. The
district court granted Vaughn’s motion for a directed verdict of acquittal after finding that
the officer did not give Vaughn enough time to provide a sample and Vaughn’s act of
striking the testing machine did not amount to refusal.
The current case arose in 2014, when Vaughn was charged with two felony DWI
offenses, among other charges. The two charges were enhanc ed to felonies using three
prior impaired-driving incidents, one of which was the 2011 imp lied-consent license
revocation.
At the request of Vaughn’s attorney, the district court ordered an examination to
assess Vaughn’s competency. Minn. R. Crim. P. 20.01. The examination report discussed
the effects of a 1996 snowmobile accident th at put Vaughn in a coma for 98 days and
resulted in a “serious traumatic brain injury.” The examination report noted that, as a result

3
of the traumatic brain injury , Vaughn has “cognitive limitati ons” that “are not going to
improve over time.” Specifically, the examination found that Vaughn has difficulties with
memory, word recognition, vo cabulary, anger, and mood control, and may “experience
some difficulty with being cognitively overwh elmed if he is faced with an extensive
amount of new information.” Ultimately, though, the examin ation report concluded that
Vaughn “generally functions without significant difficulty” and “has sufficient ability to
consult with a reasonable degree of rational understanding with his defense counsel.” The
district court concluded that Vaughn was competent to stand trial.
Vaughn moved to preclude the use of his 2011 license revocation as a prior qualified
impaired-driving incident to enhance the charges to felonies, arguing that, “under the
specific circumstances of this case,” it woul d violate his right to due process. Vaughn
asserted that the combination of his traumatic brain injury, his indigence, and the lack of a
right to appointed counsel in the license-revocation proc eeding “foreclose[d] the
opportunity for judicial review” of the revocation of his driver’s license. The district court
denied Vaughn’s motion, ruling that the 2011 driver’s license revocation could be used for
enhancement.
Vaughn waived his ri ght to a jury trial and stipulated to the prosecution’s case under
Minn. R. Crim. P. 26.01, subd. 4, in order to obtain review of the order denying his pretrial
motion. The district court adjudicated Vaughn guilty of DWI with an alcohol concentration
of 0.08 or higher. The offense was enhanced to a felony first-degree DWI because it was
committed “within ten years of the first of th ree or more qualified prior impaired driving

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incidents,” including the 2011 license revoca tion. Minn. Stat. § 169A.24, subd. 1(1)
(2014).
Vaughn appeals.
D E C I S I O N
Vaughn asserts that under his “unique” ci rcumstances, the state should not have
been permitted to use his 2011 license revocation to enhance his DWI charge. We review
de novo the district court’s legal conclusion regarding the use of a prior license revocation
to enhance current DWI charges. State v. Goharbawang , 705 N.W.2d 198, 201 (Minn.
App. 2005), review denied (Minn. Jan. 17, 2006). We defe r to the district court’s factual
findings absent a showing of clear error. Erickson v. State, 842 N.W.2d 314, 318 (Minn.
2014).
A driver may raise a constitu tional challenge to the use of a prior implied-consent
license revocation as an enhancement factor in a DWI case in which the revocation is used
for enhancement. Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380, 391-92 (Minn. App.
1993), aff’d 509 N.W.2d 380 (Minn. 1994). When a defendan t challenges the final
outcome of a prior proceeding in order to pr event the state from using it to satisfy an
element of a charged offense, the challenge is called a collateral challenge. State v. Warren,
419 N.W.2d 795, 798 (Minn. 1988). Collate ral challenges are allowed only in “unique
cases,” such as where a defendant’s “pivotal constitutional right” to counsel was violated.
Id. Due process also requires that a collateral challenge to the use of an administrative or
civil proceeding as an element of a crim inal offense be permitted where the prior
proceeding “effectively eliminates the right of the [defendant] to obtain judicial review.”

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United States v. Mendoza-Lopez , 481 U.S. 828, 839, 107 S. Ct. 2148, 2156 (1987). The
“unavailability of effective judicial review” of the prior determination warrants a collateral
challenge to its use as an enhancem ent factor in a criminal case. Id. at 841, 107 S. Ct. at
2157.
Vaughn asserts that his “unique” circum stances resulted in both the unavailability
of judicial review and violation of his right to counsel.
Availability of Judicial Review
Vaughn asserts that his failure to timely seek review of the license revocation “is
excused by his circumstances—lack of appoint ed counsel, lack of resources to retain
counsel, and effects of his brain injury.” Under these circumstances, Vaughn argues, an
opportunity for review was not available to him.
Vaughn could have challenged the license revocation by filing a timely petition for
judicial review under Minn. Stat. § 169A.53, subd. 2 (2014). “When a driver does not seek
judicial review of a revocatio n of driving privileges, subseq uent use of the revocation as
an aggravating factor . . . does not violate the driver’s due-process rights.” State v.
Coleman, 661 N.W.2d 296, 297 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003);
see Goharbawang, 705 N.W.2d at 202 (stating that “[t]he availability of [judicial] review,
although unexercised, satisfies the due-process requirement of meaningful review” where
the revocation came within ten days before the criminal charges in which the revocation
was used for enhancement).
Vaughn’s lack of appointed counsel and la ck of resources to obtain counsel in the
implied-consent matter are not unique. Minnesota law establishes that an indigent person

6
is not entitled to appointed counsel in an im plied-consent license-revocation proceeding.
Thole v. Comm’r of Pub. Safety , 831 N.W.2d 17, 22 (Minn. App. 2013), review denied
(Minn. July 16, 2013). Thus, the only factor that might make Vaughn’s situation unique is
the fact that his traumatic brain injury may have made it more difficult for him to litigate
his own case than it would have been for the average person.
Vaughn cites Anderson v. Comm’r of Pub. Safety , in which the court of appeals
concluded that it lacked juri sdiction to hear an untimely petition to rescind a driver’s
license revocation but “note[d] that the state’s enhancement of criminal charges based on
revocations that occurred when a petitioner wa s mentally incompeten t to seek judicial
review may constitute a violation of due pr ocess.” 878 N.W.2d 926, 930 (Minn. App.
2016). Anderson did not decide whether such a case necessarily would preclude the use of
a license revocation as enhancement. Id. But, even if it would, the record here contains
no evidence that Vaughn was inco mpetent at the time of the re vocation and, although he
suffers some cognitive difficulties from a tr aumatic brain injury , Vaughn was found
competent to stand tria l on the instant charge in 2014. We are not aware of any legal
authority that would “excuse” a person from the statutory requirements for challenging an
implied-consent license revocation due to cognitive limitations like Vaughn’s. Thus, we
conclude that Vaughn is not entitled to collaterally chal lenge his 2011 license revocation
due to a lack of opportunity for meaningful review. See Mendoza-Lopez, 481 U.S. at 839,
107 S. Ct. at 2156; Coleman, 661 N.W.2d at 297.

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Right to Counsel
Vaughn also argues that his unique circ umstances resulted in a violation of his due
process right to counsel. A defendant may collaterally challenge a prior conviction used
to enhance a current charge if the prior conviction was obtained in violation of his right to
counsel. State v. Nordstrom, 331 N.W.2d 901, 904 (Minn. 1983). Under the Minnesota
Constitution, a defendant has a right to coun sel in any criminal matter in which the
defendant stands a substantial ch ance of facing incarceration. State v. Borst , 278 Minn.
388, 397, 154 N.W.2d 888, 894 (1967). But, again, there is no due-process right to court-
appointed legal counsel in an implied- consent license revocation proceeding. Thole, 831
N.W.2d at 22. Because there is no right to counsel in im plied-consent license revocation
cases, the use of an uncounseled license revocation to enhance DWI charges does not
violate a defendant’s right to counsel. State v. Dumas, 587 N.W.2d 299, 302 (Minn. App.
1998), review denied (Minn. Feb. 24, 1999).
Vaughn essentially asks us to recognize a right to ap pointed counsel for a person
affected by a traumatic brain injury to ch allenge an implied-consent license revocation
before it may be used to enhance a DWI to a felony. No existing federal or Minnesota law
recognizes such a right, and this court cannot create one. “[T]he task of extending existing
law falls to the supreme court or the legislature, but it does not fall to [the court of appeals].”
Tereault v. Palmer , 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn.
Dec. 18, 1987). We therefore conclude that Vaughn was not deprived of a right to counsel
in connection with his 2011 implied-consent license revocation. See Dumas, 587 N.W.2d

8
at 302. The district court thus did not e rr in permitting the state to use Vaughn’s 2011
license revocation to enhance the DWI charge to a felony.
Vaughn asserts, based on his acquittal in his 2012 criminal test -refusal case, that
“the lack of counsel really matters because had an attorney challenged the civil revocation,
Appellant would have prevailed on the same legal theory as he did in the criminal case.”
We decline to speculate as to the likely outcome of a hypothetical ch allenge to the 2011
license revocation, but we note that an acquittal on a DWI charge “does not render the prior
implied-consent revocation based on the same incident invalid.” See State v. Hanson, 356
N.W.2d 689, 692 (Minn. 1984). Furthermor e, the proposition that Vaughn could have
prevailed had he challenged the license revoca tion has no bearing on th e fact that he had
no right to counsel in that case and has no right to preclude its use for enhancement now.
Affirmed.