Jefferson Carl Pace, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0853

Jefferson Carl Pace, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed April 1, 2019
Affirmed
Jesson, Judge

Mille Lacs County District Court
File No. 48-CV-17-1171

Rodd Tschida, Minneapolis, Minnesota (for appellant)

Keith Ellison, Attorney General, Br ian F. Murn, Assistant Attor ney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Johnson, Judg e ; a n d J e s s o n ,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Jefferson Carl Pace challenges the revocation of his driver’s license
resulting from a failed breath test after his fall through a frozen lake on an ATV. Although
the police officer mistakenly did not revoke Pace’s license at the time of his failed breath
test, he later did so by mailing a notice of revocation. After an implied-consent hearing,

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the district court sustained the license revocation. Because t he revocation of Pace’s
driver’s license did not violate his statutory or procedural due process rights, we affirm.
FACTS
On February 18, 2017, a Mille Lacs police officer responded to a 911 call regarding
an ATV in a lake and a man, appellant Jefferson Carl Pace, who had fallen through the ice.
When the officer arrived, Pace was being evaluated by medical p ersonnel, so the officer
spoke with witnesses who helped get Pace out of the water. They told the officer that Pace
smelled like alcohol.
The officer then spoke with Pace, who was wet and agitated, an d confirmed that
Pace smelled like alcohol. Accordingly, the officer conducted various field sobriety tests
and administered a preliminary br eath test, which reflected an alcohol concentration of
0.09. The officer, believing Pace was unfit to be operating an ATV, arrested him and read
him the implied-consent advisory relevant for off-road recreational vehicles. After being
provided time to consult with an attorney, Pace agreed to a breath test, which registered an
alcohol concentration above .08. Although Pace’s breath test r evealed an alcohol
concentration above the legal limit, the officer mistakenly bel ieved that Pace’s driving
privileges were not subject to revocation. As such, the office r did not revoke Pace’s
driver’s license.
A few months later, in April 2017, the Minnesota Department of Public Safety
notified the officer that he should have revoked Pace’s license. The officer then mailed a
notice of revocation, dated May 8, 2017, to Pace, which stated that his license would be
revoked seven days from the date of the letter. According to P ace, he received the letter

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on either May 10 or May 11, 20 17. Although the temporary licen se was valid for seven
days—from May 8th until May 15th—Pace did not have seven days o f notice of the
temporary license because he received it two to three days after it was mailed.
Pace challenged the revocation of his driver’s license on the grounds that he
received inadequate notice. At the implied-consent hearing, the officer testified that at the
time Pace’s breath test indicated an alcohol concentration above the legal limit, he did not
revoke Pace’s license or give h im a seven-day temporary license . Pace testified that he
continued driving from the time of the incident in February unt il his license was revoked
in May, and explained that he was harmed by the shortened notic e because he had to find
rides to work, tell his boss about the situation, and could not attend some after-work
seminars. According to Pace, it would have been easier for him to coordinate his work
transportation if he had the full seven days to do so. Pace al so testified that although the
notice he received stated that there was information on the bac k relating to judicial and
administrative review, the back of the notice he received was blank. Pace stated that based
on the notice alone, he did not know how to challenge or appeal the revocation of his
driver’s license.
The district court concluded th at Pace received adequate notice of the revocation of
his driver’s license when he received the letter from the officer. Further, the district court
rejected Pace’s arguments about notice as they related to proce dural due process,
determining that he did not suffer any direct and personal harm from the failure to include
the judicial and administrative review information with the not ice or the less than
seven-day notice of his temporary license.

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Pace subsequently filed motions for amended findings, a new trial, and relief from
the district court’s original order, but the district court den ied each of those motions and
sustained the revocation of Pace’s driver’s license. Pace appeals, seeking reinstatement of
his driver’s license.
D E C I S I O N
Pace argues that the manner in which his driver’s license was revoked violated both
the relevant statute, Minnesota Statutes § 169A.52 (2018), and his right to procedural due
process pursuant to the United States and Minnesota Constitutions.
To assess Pace’s arguments, we first examine the backdrop of ty pical license
revocations. Generally, after a failed alcohol test, the commi ssioner revokes an
individual’s driver’s license. Minn. Stat. § 169A.52, subd. 4( a). That process involves a
peace officer providing the individual with a notice of intention to revoke, and revocation
becomes effective at that time. Id., subds. 6, 7(a). At the time of revocation, the peace
officer invalidates the individual’s driver’s license, issues t he person a seven-day
temporary license, and notifies the commissioner. Id., subd. 7(c)(1)-(3). Afterwards,
individuals are entitled to seek a dministrative or judicial review. Minn. Stat. § 169A.53,
subds. 1, 2 (2018).
With this procedural backdrop in mind, we turn to Pace’s arguments.
I. Pace’s rights under Minnesota Statutes § 169A.52 were not violated.
Pace contends that the revocation of his driver’s license viola ted Minnesota
Statutes § 169A.52 for three reasons: (1) the provided notice f ailed to advise him of his
right to administrative and judici a l r e v i e w , ( 2 ) h e w a s d e p r i v ed of the full seven-day

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temporary license, and (3) the officer did not immediately revoke his license at the time of
his breath test. In appeals from implied-consent hearings, we do not set aside a district
court’s factual findings unless they are clearly erroneous. Jasper v. Comm’r of Pub. Safety,
642 N.W.2d 435, 440 (Minn. 2002). But we review questions of law, like the interpretation
of a statute, de novo. Thole v. Comm’r of Pub. Safety , 831 N.W.2d 17, 19 (Minn. App.
2013), review denied (Minn. July 16, 2013).
Lack of Notice Regarding Judicial and Administrative Review
Pace first argues that the revocation of his driver’s license violated Minnesota
Statutes section 169A.52, subdivision six, because the notice of revocation he received did
not contain required information about judicial or administrati ve review. In addressing
requirements for notices of revocation, the statute states:
The notice must advise the person of the right to obtain
administrative and judicial r eview as provided in section
169A.53 (administrative and judicial review of license
revocation).

Minn. Stat. § 169A.52, subd. 6 (emphasis added). Based on the use of the word “must,” it
is clear from the statutory lang uage that a notice of revocatio n is required to include
information about the right to seek judicial or administrative review of the license
revocation.
The district court found that Pace was not given any informati on about how to
reinstate his driving privileges or appeal the revocation. Non etheless, the district court
concluded that this defect did not cause the license revocation to be erroneous, noting that

6
the lack of notice about judicial and administrative review was not a “fatal defect” because
Pace contacted an attorney and filed a timely petition for judicial review. We agree.
While Pace did not receive information about his right to judicial and administrative
review as required by statute, he was not prejudiced by this la ck of notice. Pace sought
judicial review of the notice in a timely manner. Further, und er the statute, Pace is still
able to seek administrative revi ew of the revocation of his dri ver’s license. See Minn.
Stat. § 169A.53, subd. 1 (explaining that an individual may fil e for administrative review
“at any time during the period of revocation”). Accordingly, a lthough the commissioner
failed to adequately notify Pace about his right to judicial and administrative review, Pace
was not prejudiced by this defect and is not entitled to relief . See LeClair v. Comm’r of
Pub. Safety , 416 N.W.2d 209, 212 (Minn. App. 1987) (holding that a driver was not
prejudiced by a failure to provide him with notice of the right to review with an amended
notice of revocation because the driver received an original notice of revocation containing
information about his right to review, did in fact seek judicia l review, and did not request
a continuance).
Deprivation of Full Seven-Day Temporary License
Pace also argues that the revocation of his driver’s license vi olated the statute
because he did not have a full seven days to use his temporary license.1 But because Pace’s
driver’s license was not immediately revoked—instead being revoked by mail—the statute

1 The district court concluded that Pace was entitled to a seven -day temporary license—
which he received—but not a seven -day notice of the license, wh ich he did not.
Accordingly, the district court concluded that this was not a basis to rescind the revocation
of Pace’s driver’s license.

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does not require a seven-day temporary license. Under the stat ute, when a police officer
revokes an individual’s driver’s license at the time of a faile d test, that officer is required
to issue the driver a seven-day temporary license. Minn. Stat. § 169A.52, subd. 7(c)(2).
But nothing in the statute extends this temporary license requirement to drivers who receive
a notice of revocation by mail. See Minn. Stat. § 169A.52, subds. 4, 6. Further, this court
has stated that, in cases where revocations are mailed, “[u]nlike an immediate revocation,
there is no statutory provision either for a temporary license or for the revocation to become
effective seven days after receipt of the notice.” Williams v. Comm’r of Pub. Safety , 830
N.W.2d 442, 445 (Minn. App. 2013), review denied (Minn. July 16, 2013). Additionally,
a temporary license is provided in cases where a license is imm ediately revoked in order
to provide individuals with a brief period of time to transitio n to revocation. That same
time pressure is not present in cases where licenses are revoke d by mail. Accordingly,
because Pace’s driver’s license was revoked by mail, he was not entitled to a seven-day
temporary license.
Pace contends that Williams is not controlling because that case dealt with
individuals who submitted to urine testing rather than a breath test and were not subject to
immediate revocation of their driver’s licenses. We are not persuaded. Although Pace was
subject to immediate revocation of his driver’s license at the time that he agreed to take a
breath test, the officer mistakenly did not revoke his license at that time. Once the officer
failed to revoke Pace’s license at the time of the breath test, Pace was no longer subject to
immediate revocation of his licen se, and his license was not re voked until nearly three
months later. The fact that Pace was subject to immediate revocation, but his license was

8
not revoked until later, does not mean that he remains forever entitled to the same
protections as an individual f acing immediate revocation. See Williams, 830 N.W.2d at
445 (discussing the immediacy of revocation as a relevant consi deration). Accordingly,
we conclude that the commissioner did not violate Pace’s rights u n d e r t h e s t a t u t e w i t h
respect to the seven-day temporary license.
Failure to Immediately Revoke License at the Time of the Breath Test
Finally, Pace maintains that the commissioner violated the stat ute by failing to
immediately revoke his driver’s license at the time of the fail ed breath test. The district
court concluded that while immediate revocation is generally required in the case of a failed
breath test, nothing in the statute prohibits an officer from m ailing a notice of revocation
at a later time.2
Pace is correct that, in general, the statute requires an officer to immediately revoke
the driver’s license of a person whose breath test reflects an alcohol concentration of 0.08
or more. Minn. Stat. § 169A.52, subd. 7(a) (“[A] peace officer . . . shall serve immediate
notice of intention to revoke and of revocation . . . on a pers on who submits to a test the
results of which indicate an alcohol concentration of 0.08 or m ore.”). But nothing in the
statute prohibits an officer from mailing a notice of revocation at a later date in a situation
where an officer mistakenly did not revoke a driver’s license at the time of the failed breath
test. Further, as the commissioner notes, an interpretation of the statute concluding that an
officer cannot subsequently revoke a driver’s license after mistakenly failing to revoke the

2 Pace appears to assert that the district court did not address this contention, but the district
court did so in its order regarding several post-hearing motions made by Pace.

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license at the time of a failed breath test would be contrary t o the intent of the legislature.
See Minn. Stat. §§ 645.16 (noting that the purpose of statutory interpretation is to ascertain
and effectuate the legislature’s intent); .17 (noting that the legislature does not intend
“absurd” or “unreasonable” results) (2018).
Pace further suggests that our decision in State v. Goharbawang, 705 N.W.2d 198
(Minn. App. 2005), review denied (Minn. Jan. 17, 2006), established that immediate notice
of revocation is required for a failed breath test. But in Goharbawang, the officer
immediately provided the driver with the notice of intent to re voke his license, and we
concluded that the revocation b ecame effective “as soon as the police officer notifies the
driver of the intention to revoke and of revocation.” 705 N.W.2d at 202. As such, nothing
in Goharbawang controls whether an officer can or cannot later mail a notice of revocation
if he does not immediately revoke a driver’s license at the time of a failed breath test.
Because the statute does not prevent an officer from later mail ing a notice of
revocation when he did not immediately revoke a driver’s license after a failed breath test,
the commissioner did not violate the statute by mailing Pace the notice of revocation. As
a result, we conclude that Pace’s statutory rights were vindica ted and rescission of the
revocation of his driver’s license is not warranted.
II. Pace’s procedural due process rights were not violated.
In addition to his statutory arguments, Pace also contends that the revocation of his
driver’s license violated his procedural due process rights. Specifically, Pace contends that
the notice’s failure to advise him of his right to judicial and administrative review and the
fact that he was deprived of a full seven-day temporary license constitute violations of his

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procedural due process rights. We review due process challenge s de novo. Thole, 831
N.W.2d at 19.
The United States and Minnesot a Constitutions provide that a p erson’s liberty
cannot be deprived by the government “without due process of law.” U.S. Const. amend.
XIV, § 1; Minn. Const. art. I, § 7. A driver’s license “is a protected interest that cannot be
deprived without procedural due process.” Riehm v. Comm’r of Pub. Safety, 745 N.W.2d
869, 877 (Minn. App. 2008), review denied (Minn. May 20, 2008). In the context of the
implied-consent statute, the Minnesota Supreme Court has confirmed that “due process is
flexible and calls for such procedural protections as the parti cular situation demands.”
Bendorf v. Comm’r of Pub. Safety , 727 N.W.2d 410, 415 (Minn. 2007) (citing Morrissey
v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972)). And the par amount question
in a procedural due process case is: “what level of prejudice h as the driver suffered?” Id.
With this construct in mind, we review each of Pace’s arguments.
Lack of Notice of Judicial and Administrative Review
Pace argues that the failure to include informa tion regarding judicial and
administrative review with his notice of revocation violated hi s procedural due process
rights. But in order to assert a due process claim, Pace must show that he “suffered a direct
and personal harm resulting from the alleged denial of his cons titutional rights.” Riehm,
745 N.W.2d at 877 (quotation omitted). We agree with the district court that Pace did not
suffer direct and personal harm from the failure to include inf ormation about the judicial
and administrative review with the notice of revocation.

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Although Pace did not receive inf ormation on the back of the n otice of revocation
regarding judicial and administrative review, Pace timely filed a petition for judicial review
of his license revocation. And, as noted above, Pace can still seek administrative review
of the revocation of his license. See Minn. Stat. § 169A.53, subd. 1 (explaining that an
individual may file for adminis trative review “at any time duri ng the period of
revocation”). Accordingly, we conclude that Pace did not suffe r any direct and personal
harm from the failure to include information regarding judicial and administrative review
with his notice of revocation.
Deprivation of Full Seven-Day Temporary License
Pace also contends tha t the deprivation of a full seven-day temporary license was a
violation of his procedural due process rights. Again, Pace mu st demonstrate that he
suffered “direct and personal harm” because of this alleged violation. Riehm, 745 N.W.2d
at 877. The district court concluded that the less-than-seven- day notice of temporary
driving privileges did not rise to the level of hardship to con stitute a direct personal harm
to Pace. We agree.
Caselaw clearly establishes that the loss of even one day’s wo rth of driving
privileges that an individual may otherwise be entitled to cons titutes harm sufficient to
support a procedural due process claim. Williams, 830 N.W.2d at 445. But it is unclear
how Pace lost any days of drivi ng privileges that he was otherw ise entitled to. Pace
testified that he continued driving from the time of his failed breath test in February until
his license was revoked in May. Thus, despite not knowing abou t the temporary driving
privileges, Pace was able to driv e—and did in fact do so—for th e full seven-day period

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that his temporary license was valid.3 Accordingly, we conclude that because Pace did not
suffer a direct and personal harm, no procedural due process violation occurred.
Because the revocation of Pace’s driver’s license did not violate either the statute or
procedural due process, we affirm the district court’s decision sustaining the revocation of
Pace’s driver’s license.
Affirmed.

3 Pace also testified he was harmed because he had to arrange ri des to work, tell his boss
about the situation, and miss af ter-work seminars based on his ride’s availability and that
it would have been easier if he had a full seven days of notice of the revocation. But Pace
has failed to demonstrate how this hardship was a result of the alleged constitutional
violation as opposed to hardship any individual faces when their license is revoked.