Diane Phyllis Krekelberg, 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This opinion will be unpublished and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
A17-1288

Diane Phyllis Krekelberg, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed June 11, 2018
Affirmed
Bratvold, Judge

Mower County District Court
File No. 50-CV-17-707

Brandon V. Lawhead, Lawhead Law Offices, Austin, Minnesota (for appellant)

Lori Swanson, Attorney General, Stephen D. Melchionne, Maria N. Zaloker, Assistant
Attorneys General, St. Paul, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Larkin, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant challenges the district court’s order dismissing as untimely her petition
for judicial review of her driver’s license revocation. Appellant argues that (1) she cannot
be administratively punished for acting in a lawful manner, (2) her procedural due-process
rights were violated because she did not receive adequate notice of judicial review and did
2
not receive meaningful post-revocation administrative review, and (3) her substantive due-
process rights were violated because her license was revoked even though she offered
evidence that she was taking medication as prescribed. Because appellant’s petition was
untimely and her procedural and substantive due-process rights were not violated, we
affirm.
FACTS
On April 18, 2015, appellant Diane Phyllis Krekelberg was arrested on suspicion of
driving while impaired; a subsequent analysis of her urine sample indicated the presence
of amphetamine. The state charged Krekelberg with a fourth-degree DWI, but the charges
were later dismissed. On June 10, 2016, the Minnesota Department of Public Safety, Driver
and Vehicle Services (DVS) notified Krekelberg by letter that her driver’s license would
be revoked and cancelled effective June 20. Krekelberg’s license was revoked and canceled
on June 20, 2016.
Krekelberg requested an administrative review. On June 28, 2016, DVS inform ed
her that the review had occurred and that the cancellation of her license was sustained.
Krekelberg requested a second administrative review, and on July 25, 2016, DVS notified
her that additional review had occurred and the cancellation of her license wa s sustained.
The DVS letter also stated “there [was] no indication that the implied consent charges ha[d]
been dismissed” and “only that the judicial side of the 04/18/16 incident ha[d] been
removed.” The letter also stated that Krekelberg had the right “to go back to court and
request an[] Implied Consent hearing” or to “petition the Attorney General’s Office” to
have the charges dismissed.
3
In her brief to this court, Krekelberg asserts that she engaged in “lengthy phone
conversations” with “her administrative reviewer,” and that the reviewer “provid[ed] legal
advice . . . that by [Krekelberg] getting her criminal charges expunged, this would result in
a favorable administrative review in which [Krekelberg] would get her license back.”
Krekelberg asserts that because of this conversation she did not petition for judicial review
of her license revocation.
In August 2016, Krekelberg filed a petition for expungement of the criminal charges
arising from the April 18, 2015 incident. Krekelberg asserted that, while operating the
vehicle, she was taking medication as prescribed; she submitted supporting documentation
from her treating physicians. On November 17, 2016, the district court expunged
Krekelberg’s charges from April 2015.
On March 20, 2017, Krekelberg filed a petition for judicial review of the revocation
of her driving privileges, pursuant to Minn. Stat. § 171.19 (2016). On March 24, 2017,
Krekelberg amended her petition for judicial review to seek reinstatement of her license,
pursuant to Minn. Stat. § 169A.53, subd. 2(a) (2016). In her amended petition, Krekelberg
argued that her licensed was “mistakenly revoked” because her “urine test came back with
no use of illegal drugs” and “she had a valid prescription for the medications she was
taking.” She asserted that “she did [] nothing illegal, yet her situation evades review,” “she
is being punished for no reason whatsoever,” and she had been denied “Federal and State
due process of law.”
The Commissioner of Public Safety filed a motion to dismiss Krekelberg’s petition,
arguing that Krekelberg’s petition was untimely under Minn. Stat. § 171.19 and Minn. Stat.
4
§ 169A.53, subd. 2(a). The district court granted the commissioner’s motion. Krekelberg
appeals.
D E C I S I O N
I. The district court did not err by granting the commissioner’s motion to dismiss
because Krekelberg’s petition for judicial review was filed after the statutory
deadline.

When the commissioner revokes a driver’s license, section 169A.53 allows the
driver to seek administrative review under subdivision 1, judicial review under
subdivisions 2 and 3, or both. Minn. Stat. § 169A.53, subds. 1-3. The availability of
administrative review of a revocation order “has no effect” upon the availability of judicial
review. Minn. Stat. § 169A.53, subd. 1(b). J udicial review requires a petition to be filed
with the district court administrator “[w]ithin 30 days following receipt of a notice and
order of revocation.” Minn. Stat. § 169A.53, subd. 2(a). 1 “A failure to file a petition for
judicial review within the 30-day statutory period” results in an untimely petition, and the
district court must dismiss. See Thole v. Comm’r of Pub. Safety, 831 N.W.2d 17, 19 (Minn.
App. 2013), review denied (Minn. July 16, 2013). While Krekelberg timely pursued and
received administrative review, her attempt at judicial review was dismissed as untimely.
Krekelberg concedes that she received the c ommissioner’s order and notice of
revocation from DVS on June 10, 2016. Under the applicable statute, Krekelberg’s petition

1 Recently, Minn. Stat. § 169A.53, subd. 2(a), was amended to allow for 60 days to file a
petition for judicial review. These statutory changes became effective July 1, 2017 and
only apply to “acts committed on or after that date.” 2017 Minn. Laws ch. 83, art. 2, § 6 at
5-6. Therefore, the 30-day filing deadline applies to Krekelberg.

5
for judicial review was due in July 2016. Minn. Stat. § 169A.53, subd. 2(a). But Krekelberg
filed her petitions in March 2017, over eight months after the statutory deadline. 2 We
conclude that Krekelberg’s petition was untimely. See Thole, 831 N.W.2d at 19.
In the commissioner’s brief to this court, he argues that the district court properly
dismissed Krekelberg’s petition for lack of “subject matter jurisdiction.” We disagree that
subject-matter jurisdiction is implicated. The filing deadline for a petition seeking judicial
review of a license revocation is not a jurisdictional restriction. 3 Therefore, the correct
focus is on whether Krekelberg’s petition was timely.
Krekelberg contends that the 30-day deadline was extended or renewed when the
DVS notified her on July 25, 2016, regarding administrative review. Specifically,
Krekelberg argues that the commissioner “waived the time period for statute of limitations
for which she could seek judicial review.” Krekelberg points to the following language in

2 The district court found that the amended petition, filed on March 24, 2017, under Minn.
Stat. § 169A.53, subd. 2(a), was the controlling petition in this case. We agree.
Krekelberg’s original petition was filed on March 20, 2017, and requested re lief under
Minn. Stat. § 171.19, which recognizes a right to seek a hearing in district court after
revocation and to petition for reinstatement of driving privileges. Review under Minn. Stat.
§ 171.19 does not apply here because Krekelberg’s driver’s license was revoked for failing
a urine test under Minn. Stat. § 169A.52, and thus she had to obtain judicial review under
Minn. Stat. § 169A.53. Minn. Stat. § 169A.53, subds. 1, 2. Section 171.19 explicitly states
that it applies, “except where the license is revoked or disqualified under section 169A.52.”

3 Recently, the supreme court has clarified that there is “a critical difference between a rule
governing subject -matter jurisdiction and an inflexible claim -processing rule.” Reed v.
State, 793 N.W.2d 725, 731 (Minn. 2010) (quotation omitted); see also In re Civil
Commitment of Giem, 742 N.W.2d 422, 427 (Minn. 2007) (“[T]here is a fundamental
difference between finding that a deadline is mandatory and concluding that it operates to
take away the district court’s authority to act.”); Johnson v. City of Duluth, 903 N.W.2d 1,
3 (Minn. App. 2017) (stating that timeliness requirements are “procedural tools” that do
not divest a district court of jurisdiction), review denied (Minn. Dec. 19, 2017).
6
the July 25 letter: “You have the right to either go back to court and request an[] Implied
Consent hearing or petition the Attorney General’s Office to have the Implied Consent
charges dismissed.” We are not persuaded. First, nothing in the DVS’s letter expressly or
impliedly waived the 30-day deadline to file for judicial review. Second, DVS ha s no
authority to alter or extend filing deadlines established by statute. Langer v. Comm’r of
Revenue, 773 N.W.2d 77, 81 (Minn. 2009) (“Appeal periods in statutory proceedings are
peculiarly within the legislative domain, and the courts and administrative agencies have
no power to extend or modify the periods of limitation prescribed by statute.”).
The district court correctly determined that Krekelberg’s petition was filed after the
statutory deadline had expired, and, therefore, properly granted the motion to dismiss.
II. Krekelberg’s due-process rights were not violated.

A. Procedural due process
Krekelberg asserts that the revocation of her driver’s license violated her procedural
due-process rights. Krekelberg challenges the adequacy of the notice she received
regarding the availability of judicial review and alleges that her procedural due- process
rights were denied “by misleading oral and written statements by [an] agent of Department
of Public Safety.” Krekelberg also argues that she was not given prompt, meaningful
administrative review. We review procedural due-process challenges de novo. Bendorf v.
Comm’r of Pub. Safety, 727 N.W.2d 410, 413 (Minn. 2007).
The United States and Minnesota Constitutions provide that no person shall be
deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV,
§ 1; Minn. Const. art. I, § 7. To determine whether a government action violates procedural
7
due process, this court must “identify whether the government has deprived the individual
of a protected life, liberty, or property interest.” Sawh v. City of Lino Lakes, 823 N.W.2d
627, 632 (Minn. 2012). Krekelberg has satisfied this step, since a driver’s license is a
protected property interest, subject to due-process protection. McShane v. Comm’r of Pub.
Safety, 377 N.W.2d 479, 482 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986). If
the government has deprived a person of a protected interest, the court must determine if
the “procedures followed by the [government] were constitutionally sufficient.” Sawh, 823
N.W.2d at 632 (quoting Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859, 861
(2011)).
Adequate notice of judicial review
“[S]tate action affecting an interest in life, liberty or property requires the state to
provide the burdened party with notice and an opportunity to be heard.” McShane, 377
N.W.2d at 482. To satisfy the due-process notice requirement, a burdened party must
receive “notice 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.” Id. at 483 (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306,
314, 70 S. Ct. 652, 657 (1950)).
Krekelberg does not dispute that DVS initially notified her of her impending license
revocation on June 10, 2016. Also, Krekelberg does not challenge the adequacy of this
notice. The June 10 notice stated that, to challenge revocation, a “petition [for judicial
review] must be filed with the court within 33 days after the mailing date of this notice and
order of revocation as indicated on this notice.” We conclude that the June 10 letter
8
informed Krekelberg about the “pendency of the action” and afforded her the opportunity
to present her objections. See McShane, 377 N.W.2d at 483.
Krekelberg asserts that the review notice sent on July 25, 2016, denied her due
process because it was “misleading and prevented her from timely seeking judicial review.”
Krekelberg points to the following language: “You have the right to either go back to court
and request an[] Implied Consent hearing or petition the Attorney General’s Office to have
the Implied Consent charges dismissed.” We are not persuaded. The July 25 letter generally
described Krekelberg’s “right to challenge the cancellation and revocation, both through
an administrative appeal process and through a petition for judicial review.”
Krekelberg claims her case is similar to Plocher v. Comm’r of Pub. Safety, in which
this court found that Plocher was deprived of procedural due process. 681 N.W.2d 698,
705 (Minn. App. 2004). Plocher received a notice and order of revocation that stated that
he must file a petition for judicial review within 30 days of receiving the notice. Id. at 700.
Because Minn. Stat. § 169A.52, subd. 6 (2004), provided that a mailed notice and order of
revocation is deemed received three days after mailing, we held the DVS letter to Plocher
mislead him about the filing deadline and, therefore, denied due process. Id. at 704-05.
Here, the June 10 notice informed Krekelberg that she had 33 days to petition for
review, so the DVS notice satisfied the standard identified in Plocher . Krekelberg asserts
that the July 25 letter was “actively misleading” because it indicated she could petition for
judicial review, even though the time for doing so had expired. While the July 25 letter
could have been more clearly written, it was not misleading, particularly when read
9
together with the June 10 notice. We conclude that Krekelberg was provided with adequate
notice of the opportunity to seek judicial review of her license revocation.
Meaningful administrative review
Next, Krekelberg asserts that she was denied meaningful administrative review of
her license revocation. 4 To determine whether an individual’s procedural due- process
rights have been abridged by the license revocation procedures, we apply the three-factor
balancing test the United States Supreme Court announced in Mathews v. Eldridge, 424
U.S. 319, 335, 96 S. Ct. 893, 903 (1976). Williams v. Comm’r of Pub. Safety, 830 N.W.2d
442, 446 (Minn. App. 2013), review denied (Minn. July 16, 2013).
The first Mathews factor analyzes “the private interest that will be affected by the
official action.” Bendorf, 727 N.W.2d at 416. In weighing a private interest, this court
considers (1) the duration of the deprivation; i.e., the license revocation, (2) the availability
of hardship relief, and (3) the availability of prompt, meaningful review. Williams, 830
N.W.2d at 446. Krekelberg appears to challenge only the availability of prompt,
meaningful review. Krekelberg argues that DVS’s advice to “continue down an
administrative review path” resulted in a “cursory review, with no explanation for its
denial, no cross-examination or right to present witnesses”; therefore, administrative
review was “meaningless.” Krekelberg relies on Fedziuck v. Comm’r of Pub. Safety, where
the supreme court held that administrative review “although prompt, d[id] not provide a

4 Krekelberg suggests that the denial of a prompt, meaningful administrative review was a
denial of her substantive due process rights. But whether a petitioner is provided with a
prompt, meaningful review is a procedural due process issue. See McShane, 377 N.W.2d
at 482.
10
sufficiently meaningful review.” 696 N.W.2d 340, 347 (Minn. 2005). Krekelberg was
provided an explanation for the commissioner’s denial in both the June 28 and July 25
letters. Due-process analysis is flexible and “calls for such procedural protections as the
particular situation demands.” See Bendorf, 727 N.W.2d at 415. We conclude that the
administrative review provided to Krekelberg was meaningful.
The second Mathews factor considers the likelihood of an erroneous deprivation of
the private interest involved. Id. at 416. The Minnesota S upreme Court has held that the
procedural protections in the driver’s license revocation statute adequately protect against
the risk of erroneous deprivation. Hamilton v. Comm’r of Pub. Safety, d, 724 (Minn. 1999)
(“We have, in the past, held that the risk of an erroneous revocation under Minnesota’s
driver’s license revocation system is within constitutional limits.”). We see no basis for
distinguishing Hamilton.
Finally, we consider the government’s interest under the third Mathews factor.
Bendorf, 727 N.W.2d at 416. The supreme court has held that impaired “drivers pose a
severe threat to the health and safety of the citizens of Minnesota.” Id. at 416-17 (quotation
omitted). The state, therefore, has a compelling interest in protecting the safety of citizens
on the highway, which justifies the commissioner’s efforts to keep impaired drivers off the
road. Id. In addition, the state has an interest in avoiding the increased costs and
administrative burdens that additional procedures would entail. Sawh, 823 N.W.2d at 635.
The “procedural due process test of Mathews leaves us then to weigh the impact on
[Krekelberg’s] private interests against the state’s interests.” Bendorf, 727 N.W.2d at 417.
Krekelberg asserts that she has been deprived of her driving privileges “unless she
11
undergoes treatment.” On balance, the government’s interest in keeping impaired drivers
off the road outweighs the risk of temporary erroneous deprivation of Krekelberg’s driving
privileges. After balancing the Mathews factors, we conclude that Krekelberg’s right to a
meaningful post-revocation review was not violated.
B. Substantive due process
The Due Process Clauses of the United States and Minnesota Constitutions “prohibit
certain arbitrary, wrongful government actions, regardless of the fairness of the procedures
used to implement them.” State v. Bernard, 859 N.W.2d 762, 773 (Minn. 2015) (quotation
omitted). A person challenging the “constitutionality of a statute must overcome every
presumption in favor of its constitutionality.” Lukkason v. 1993 Chevrolet Extended Cab
Pickup, 590 N.W.2d 803, 805 (Minn. App. 1999), review denied (Minn. May 18, 1999).
“When analyzing whether legislation violates substantive due process rights, [Minnesota
courts] apply the rational basis test unless a fundamental right is involved.” In re Individual
35W Bridge Litigation, 806 N.W.2d at 830. Under this test, “legislation is examined to
determine whether it is rationally related to a legitimate government interest.” Id. A law
“will fail rational basis review only when it rests on grounds irrelevant to the achievement
of a plausible governmental objective.” Lukkason, 590 N.W.2d at 806. The law cannot be
“unreasonable, arbitrary, or capricious.” Id.
Minnesota law permits administrative review of a driver’s license revocation, and
requires that the commissioner must “report in writing the results of the review” within 15
days. Minn. Stat. § 169A.53, subd. 1(a) (2016). The commissioner must “review the order,
the evidence upon which the order was based, and any other material information brought
12
to the attention of the commissioner, and determine whether sufficient cause exists to
sustain the order.” Id. Krekelberg argues that it is “undisputed that she should have
prevailed” in the administrative review because the current version of the statute, Minn.
Stat. § 169A.53, subd. 3(b)(12), requires the commissioner to consider whether ae person
can “prove the defense of controlled substance use in accordance with a prescription.” We
disagree.
The implied consent statute in effect at the time of Krekelberg’s arrest did not
explicitly provide that prescription drug use is a defense to revocation. Krekelberg was
arrested for a DWI in April 2015. At that time, the ap plicable statute, Minn. Stat.
§ 169A.53, subd. 3(b) (2015), provided that the scope of the administrative hearing is
limited to the issues in clauses (1) through (10), which did not include defenses for
prescription drug use or necessity. See , e.g., Axelberg v. Comm’r of Pub. Safety, 848
N.W.2d 206, 208 (Minn. 2014) (“Specifically, under Minn. Stat. § 169A.53, subd. 3(b),
[t]he scope of the hearing is limited to the issues in clauses (1) to (10). None of the 10
issues listed involve the necessity defense.” (alteration in original) (quotation omitted)).
When section 169A.53 was amended to include a necessity defense, the legislature
specifically stated that this change would be effective “August 1, 2015, and applies to
crimes committed on or after that date.” 2015 Minn. Laws ch. 65, art. 6, § 10 at 50. Section
169A.53 also has been amended to explicitly allow for prescription drug use as a defense,
but that change in the statute became effective “July 1, 2017, and applies to acts committed
on or after that date.” 2017 Minn. Laws ch. 83, art. 2, § 8 at 7. Krekelberg’s arrest for
13
impaired driving occurred more than two years before the legislature enacted the
prescription drug use defense.
Krekelberg’s appeal requires us to consider whether the lack of a prescription drug
use defense to license revocation was rationally related to a legitimate government interest.
See In re Individual 35W Bridge Litigation, 806 N.W.2d at 830. The commissioner argues
that, “[p]ermitting the prescription drug defense in criminal cases, but not permit[ing] such
a defense in implied consent cases serves to further the compelling governmental interest
of protecting the traveling public from impaired drivers.” We agree that the state protected
the “traveling public” by revoking the licenses of impaired drivers, and therefore conclude
that the implied consent statute effective in April 2015 passes rational basis review.
Finally, Krekelberg asserts that “it is undisputed that she should have prevailed” in
her administrative review because she was taking medicine as prescribed. We disagree.
There is no record evidence that Krekelberg was not impaired while taking prescribed
medication in the recommended dose . The analysis of her urine sample indicated the
presence of amphetamine. Also, Krekelberg’s doctor stated that her prescribed medication
included “various side effects,” including “physical movements” that she “does not have
control over.” In fact, the current statute provides that a court may determine, by a
preponderance of the evidence, “that the use of the [prescription] controlled substance
impaired the person’s ability to operate a motor vehicle.” Minn. Stat. § 169A.53, subd. 3(i)
(2017). Thus, even if the prescription drug use defense had been available to Krekelberg,
14
it is far from certain that the administrative review would have resulted in a reversal of her
revocation. Accordingly, Krekelberg’s substantive due-process claim fails.
Affirmed.