Ralph Ian Richardson, petitioner, Appellant,

This opinion will be unpublished and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
A16-1543

Ralph Ian Richardson, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed April 17, 2017
Affirmed
Connolly, Judge

Ramsey County District Court
File No. 62-CV-15-7661

Peter H. Dahlquist, Dahlquist Law, L.L.C., Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Cory Beth Monnens, Assistant Attorney General,
St. Paul, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges the order sustaining the revocation of his driving privileges,
arguing (1) the evidence does not support the district court’s finding th at he was driving;
2
(2) his counsel provided ineffe ctive assistance at the implied-consent hearing; and (3) the
district court erred when it rejected his post -driving consumption defense. Because the
evidence supports an inference that appellant was drivin g his vehicle while he was
intoxicated and because appellant has no Sixth Amendment right to counsel at an implied-
consent hearing, we affirm.
FACTS
Appellant Ralph Ian Richardson was arrested for driving while impaired (DWI) on
December 9, 2015. The arrest occurred in connection with an investigation of a vehicle
crashing into a St. Paul resident’s garage door. The garage door was a light tan color. At
approximately 5:00 p.m., a caller gave the officers conducting the investigation the license
plate number of the vehicle involved in the incident. The license plate number was
registered to appellant’s vehicle.
An officer first arrived at appellant’s apartment at approximately 6:00 p.m. The
officer felt the hood of appellant’s vehicle which was sti ll warm, despite it being cool
outside. The officer also discovered unopened alcoholic beverages on the passenger seat
and found fresh damage to the vehicle’s front grill and bumper, including light tan paint
scratches that he believed had been recently t ransferred onto the hood. Another officer
proceeded to appellant’s apartment door where contact was made. Appellant was the only
person in the apartment.
During their conversation, the visibly intoxicated appellant told the officer he had
been drinking t hroughout the day, that he had consumed ten beers, and that his last was
around an hour-and-a-half to two hours ago. The officer also saw the keys to the vehicle
3
on a table next to where appellant was sitting. Appellant denied driving and agreed to a
preliminary breath test. That test indicated appellant’s alcohol concentration was 0.23.
Appellant was transported to the Ramsey County Law Enforcement Center and read
the Implied-Consent Advisory. The results of the alcohol-concentration test that followed
indicated an alcohol concentration of 0.20 in appellant. Appellant was charged with DWI
and his driver’s licens e was revoked under the Implied -Consent Law. Appellant timely
challenged the revocation of his driver ’s license by filing an Implied -Consent P etition
through counsel.
At the implied-consent hearing, appellant argued that he was not driving and that
there was no temporal connection between any a lleged driving and the alcohol-
concentration t est. Appellant also offered post -driving consumption as an affirmative
defense. The district court concluded that appellant was driving and rejected the post -
driving consumption defense. The court affirmed the revocation of appellant’s driver’s
license.
D E C I S I O N
I. Did the district court clearly err when it determined that appellant drove his
vehicle?

Appellant argues that the district court erred when it determined t hat he drove on
December 9, 2015 . Additionally, appellant argues that it was clearly erroneous for the
district court to rely on the licen se plate tip as proof of driving, for to do so would be an
improper use of that evidence. However, appellant does not argue that the tip evidence
could not be used to show probable cause.
4
“In a judicial review hearing for a driver's license revocation under the implied-
consent statute, the commissioner must demonstrate by a preponderance of the evidence
that license revocation is appropriate. ” Axelberg v. Comm ’r of Pub. Safety , 831 N.W.2d
682, 684 (Minn. App. 2013) , aff’d, 848 N.W.2d 206 (Minn. 2014) . “This court reviews
the district court’ s findings supporting an order sustaining a license revocation for clear
error.” Id.
The Implied-Consent Law applies to “[a]ny person who drives, operates, or is in
physical control of a motor vehicle.” Minn. Stat. § 169A.51, subd. 1(a) (2014). In general,
the Implied-Consent Law is a remedial statute, to be liberally construed in favor of the
public’s interest and agains t the private interests of the individual driver. State, Dep’t of
Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981); Kramer v. Comm’r of Pub.
Safety, 706 N.W.2d 231, 235 (Minn. App. 2005).
Whether an individual was actually driving, operating , or in physical control of a
car can be established through either direct or circumstantial evidence. Hunt v. Comm’r of
Pub. Safety, 356 N.W.2d 801, 803 (Minn. App. 1984). There is no requirement that the
officer actually see the suspect drive a car. Llona v. Comm’r of Pub. Safety , 389 N.W.2d
210, 212 (Minn. App. 1986). Additionally, implied -consent hearings are “civil in nature,
and the standard of proof, therefore, is a preponderance of the evidence.” Id. at 211.
Appellant mistakenly argues that the district court relied on the license plate tip in
its order to establish appellant was driving. In its order, the district court did not cite or
address the tip in its analysis that appellant was driving. The court only cited the tip to
5
establish probable cause, or a reason why the officers went to appellant’s apartment and
looked at his vehicle.1
Additionally, the fact that an individual apparently drove a car to where it came to
rest is evidence of driving conduct, as well as physical control. State v . Starfield, 481
N.W.2d 834, 838 (Minn. 1992). In Starfield, the supreme court affirmed a DWI conviction
even where direct evidence of driving was missing, holding:
[T]here still may be circumstantial evidence from which the [court] could
find that [appellant] had driven the car to its resting place; and, because t his
driving is included within “physical control,” the inebriated defendant may,
with consistency, be found guilty of driving, operating, or being in control of
the motor vehicle.

Id.
Here, the district court found by a preponderance of the evidence that appellant
drove on December 9, 2015. The officers observed fresh damage on the front bumper of
the vehicle registered to appellant. That damage reflected the color of the damaged garage
door. The hood of appellant’s vehicle was warm to the touch, despite the cool December

1 The ord er stated that “ [t]his information led the officers to [appellant] the vehicle’s
registered owner, and connected his vehicle to the incident scene.” However, in the
following paragraph the district court went on to state that
the [district] court finds it more likely than not that the hood
was warm because [appellant] had driven the vehicle. It was
already dark by the time [the officers] arrived on the scene. . . .
[Appellant] was the only person in the apartment and the
officers noticed the keys to the [vehicle] sitting on a table next
to where he had b een sitting. Moreover, he was “ obviously
intoxicated.” A preponderance of the evidence shows that
[appellant] drove his [vehicle].
The order does not support the argument that the district c ourt relied on the tip to prove
that appellant was driving.
6
weather, indicating that it had been recently driven. Furthermore, appellant was alone in
his apartment, visibly intoxicated, with the keys to his vehicle lying on a table next to where
he had been sitting. We conclude that the district court did not clearly err when it found
that appellant drove his vehicle.
II. Did appellant have a Sixth Amendment right to counsel given the civil nature
of the implied-consent hearing?

Appellant argues that his trial counsel provided ineffective assistance at his implied-
consent hearing. Appellant contends that his neighbor could have been called to provide
testimony concerning appellant’s whereabouts on the day of his arrest, as well a s whether
appellant had left his apartment or driven his vehicle that day. Appellant states that his
counsel failed to inform the witness to appear on the date of the hearing, which resulted in
the witness’s unintended absence. Therefore, because counsel failed to procure the
witness, appellant asks this court to rule that his counsel’s representation fell below an
objective standard of reasonableness.
“Because claims of ineffective assistance of counsel are mixed questions of law and
fact,” our review is de novo. State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013).
The Sixth Amendment guarantees the right to effective counsel in criminal
proceedings. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984).
This matter arises from the administrative revocation of appellant’s driver license, which
does not involve a criminal proceeding. Ruffenach v. Comm’r of Pub. Safety, 528 N.W.2d
254, 256 (Minn. App. 1995) (holding that an implied -consent hearing is not “a de facto
criminal proceeding”). Additionally, this court has previously held that the Sixth
7
Amendment right to counsel does not apply in civil driver’s-license proceedings. Maietta
v. Comm’r of Pub. Safety , 663 N.W.2d 595, 600 (Minn. App. 2003 ) (stating that, “given
the civil nature of the implied -consent proceeding, appellant may not bring a claim of
ineffective assistance of counsel”).
Appellant argues the rationale for refusing him Sixth Amendment rights is
inconsistent and incorrect whe n ap plied to an implied -consent revocation proceeding
stemming from a DWI charge. Appellant states that an implied-consent license revocation
can be used to enhance a future DWI charge. In sum, appellant argues that because a
license revocation can be used to enhance future criminal liability, Sixth Amendment rights
should apply. However, appellant does not cite any authority for this proposition.
In Maietta, this court stated that , while there may be criminal consequences for
refusing to submit to testing , they must be prosecuted in a separate action. Id. at 600.
Moreover, that court stated “[i]n no case does incarceration result from the proceedings.”
Id. Similarly, although appellant’s criminal liability may be enhanced by the license
revocation, that enhancement would have to be the result of a separate proceedi ng
independent from the implied-consent hearing currently on appeal.
Appellant further contends that , while this court, in Maietta, determined the
appellant did not have a right to counsel, we nonetheless proceeded with a Strickland
analysis. Appellant argues that this court should also conduct the Strickland analysis and
determine that he received ineffective assistance of counsel.
Appellant is correct that , in Maietta, we conducted an inef fective-assistance-of-
counsel analysis after determining that the Sixth Amendment right to counsel should not
8
apply. However, Maietta does not state such an analysis is required. Id. We conclude that
appellant does not have a Sixth Amendment right to counsel in an implied -consent
proceeding. Because we conclude that appellant does not have such a right, we decline to
conduct any analysis on whether such assistance was in fact ineffective.
III. Did the district court clearly err when it denied ap pellant’s post -driving
consumption defense?

Appellant argues that he presented sufficient facts to the district court demonstrating
that his alcohol concentration of 0.20 was due to alcohol he consumed after driving.
A question of fact for the district court will be reversed only if clearly erroneous.
State, Dep’t of Highways v. Beckey , 192 N.W.2d 441, 445 (Minn. 1971). Post -driving
consumption of alcohol is an affirmative defense to a DWI charge. Minn. Stat. § 169A.46,
subd. 1 (2016). In an implied -consent proceeding, for a license to be reinstated, a driver
must establish by a preponderance of the evidence that (1) he consumed alcohol after the
time of driving but before administration of the breath test, and (2) this post driving
consumption caused his alcohol to meet or exceed 0.[16] at the time of testing. Dutcher v.
Comm’r of Pub. Safety , 406 N.W.2d 333, 336 (Minn . App. 1987) (holding that post -
consumption of alcohol is an affirmative defense to a license revocation under the implied-
consent law ). “The burden of establishing this defense should fall upon [appellant],
because [he] is in the best position to know how much alcohol, if any, [he] consumed after
[driving].” Id.
As we concluded above, th e district court did not clearly err when it found that
appellant drove on December 9, 2015. The district court reasonably concluded that the
9
temperature of the hood would not have been warm —it was cool outside —if the car had
not been driven more than an hour -and-a-half before. Appellant also did n ot testify or
present any other evidence at the hearing to prove that, but for any alcohol consumed after
driving, his alcohol concentration would have been below the legal limit. He simply
contends he did not drive. We conclude that the district court d id not err in finding that
appellant drove and that his alcohol level was not the result of any alcohol he consumed
after driving.
Affirmed.