State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A18-1491

Court of Appeals McKeig, J.

State of Minnesota,

Respondent,

vs. Filed: April 15, 2020
Office of Appellate Courts
Steven Jeffrey Anderson,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Kurt B. Glaser, Catherine A. Crane, Lexington City Attorneys, Smith & Glaser, LLC,
Minneapolis, Minnesota, for respondent.

Paul P. Sarratori, Mesenbourg & Sarratori Law Offices, P.A., Coon Rapids, Minnesota, for
appellant.

________________________

S Y L L A B U S

Under the plain language of Minn. Stat. §§ 169A.25, subd. 1(b) (2018), and
169A.03 (2016), a license revocation is “present” as an aggravating factor as of its effective
date, and may be used to enhance a charge of driving while impaired once judicial review
has occurred or the right to review has been waived.
Affirmed.

2
O P I N I O N
MCKEIG, Justice.
Appellant Steven Anderson was charged with second-degree driving while impaired
for refusal to submit to chemical testing, Minn. Stat. § 169A.25, subd. 1(b) (2018), which
requires both the refusal to submit to chemical testing and one aggravating factor. In this
case, a prior license revocation was the aggravating factor. At the time of the offense,
Anderson’s license revocation was in effect but had not yet been judicially reviewed. The
State waited until the license revocation was sustained to charge Anderson. Applying the
plain language of the driving-while-impaired statutory scheme to these facts, we conclude
that the State properly used Anderson’s license revocation as an aggravating factor to
enhance his charge of driving while impaired. Accordingly, we affirm the court of appeals.
FACTS

The facts are not in dispute. This case is the result of two driving-while-impaired
incidents, the first occurring on October 2, 2016. Anderson was arrested, and a week later
he was notified that his license had been administratively revoked for 1 year. Anderson
filed a petition for review of the license revocation, and a hearing date was set for
December 28, 2016. The hearing was delayed until April 2017 because of continuances
requested by both parties . At that hearing, Anderson waived the right to further review,
and the district court sustained the revocation.
On December 18, 2016 —after Anderson had petitioned for review of his license
revocation but before the revocation was sustained—Anderson was arrested a second time
for driving while impaired. He agreed to take a preliminary breath test, but failed to provide
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a proper sample because he “only provided short puffs of air and at times sucked on the
tube.” Anderson was taken to the police department, where he was read the Minnes ota
Implied Consent Advisory. He said he understood the advisory and wanted to talk to an
attorney. After a 10-minute phone call, Anderson agreed to take a breath test. He provided
multiple short breaths, kept stopping, blew around the mouthpiece , and otherwise
prevented a proper sample. Police determined that Anderson had refused the test.
The State waited until August 2017 —after the license revocation related to the
October 2016 charge of driving while impaired was sustained—to charge Anderson for the
December 2016 incident. He was charged with four counts, including the one on appeal:
second-degree driving while impaired for refusal to submit to chemical testing, Minn. Stat.
§ 169A.25, subd. 1(b). That charge requires one aggravating factor, which the complaint
listed as a prior impaired driving-related loss of license—Anderson’s October 2016 license
revocation.
Anderson filed a motion to dismiss, arguing that the second -degree
driving-while-impaired count should be dismissed for lack of probable cause because a
license revocation can not be used as an aggravating factor unless judicial review has
occurred or has been waived by the time of the subsequent offense. The district court
denied the motion to dismiss.
A trial was held on February 21, 2018. The parties filed an agreement advising the
court that the trial would proceed as a stipulated facts and evidence trial. S ee Minn. R.
Crim. P. 26.01, subd. 4 (detailing the proper procedure to preserve an issue for appellate
review “[w]hen the parties agree that the court’s ruling on a specified pretrial issue is
4
dispositive of the case , or that the ruling makes a contested trial unnecessary ”).1 In
accordance with Rule 26.01, Anderson entered a not guilty plea, waived his right to a trial
by jury, stipulated to certain facts and evidence, and acknowledged that his right of appeal
was limited to the pretrial district court order denying his motion to dismiss. The district
court found Anderson guilty , and h e was sentenced on the second -degree
driving-while-impaired count.
Anderson appealed and the court of appeals affirmed. State v. Anderson , 931
N.W.2d 640 (Minn. App. 2019). The court of appeals held that “a prior license revocation
is present as an aggravating factor to enhance a subsequent DWI offense after a driver
receives notice of the revocation.” Id. at 647. Further, the court of appeals concluded that
Anderson’s due process rights were not violated because Anderson had the opportunity for
judicial review of the revocation before charging. Id. at 649.
ANALYSIS

The question of whether Anderson’s license revocation can be used as an
aggravating factor involves the application of law to undisputed facts, and so our review is
de novo. See State v. Wiltgen, 737 N.W.2d 561, 566 (Minn. 2007). This review involves
the interpretati on of the second- degree driving -while-impaired statute, Minn. Stat.
§ 169A.25, subd. 1(b), and the related statutory definitions within Minn. Stat. § 169A.03
(2016). We also review issues of statutory interpretation de novo. State v. Thonesavanh,

1 A ruling can make a contested trial unnecessary “in a DWI case where the only issue
is the validity of one or more qualified prior impaired driving incidents as a charge
enhancement.” Minn. R. Crim. P. 26 cmt.
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904 N.W.2d 432, 435 (Minn. 2017). “When the words of a law in their application to an
existing situation are clear and free from all ambiguit y, the letter of the law shall not be
disregarded under the pretext of pursuing the spirit.” Minn. Stat. § 645.16 (2018).
A person is guilty of second-degree driving while impaired if he or she has refused
to submit to a chemical test, Minn. Stat. § 169A.20, subd. 2 (2016), and “one aggravating
factor was present when the violation was committed.” Minn. Stat. § 169A.25, subd. 1(b).
A series of definitions laid out in section 169A.03 detail how a d river’s license
revocation like Anderson’s could qualify as an aggravating factor for purposes of
Minnesota Statutes chapter 169A (2016). First, “aggravating factor” includes “a qualified
prior impaired driving incident within the ten years immediately preceding the current
offense.” Minn. Stat. § 169A.03, subd. 3(1). A “qualified prior impaired driving incident”
includes “prior impaired driving -related losses of license.” Minn. Stat. § 169A.03, subd.
22. And, most importantly for this case, a “prior impaired driving-related loss of license”
includes a “driver’s license suspension, revocation, cancellation, denial, or disqualification
under . . . 169A.50 to 169A.53 (implied consent law).” Minn. Stat. § 169A.03,
subd. 21(a)(1). S ections 169A.50 to 169A.53 are Minnesota’s “Implied Consent Law.”
Minn. Stat. § 169A.50. These sections set out the requirements for chemical te sting; the
consequences of refusing chemical testing, including license revocation; and the procedure
for administrative and judicial review of license revocations.
Read together, th ese statutes provide that a driver’s license revocation under the
Implied Consent Law can be used as an aggravating factor for purposes of Mi nn. Stat.
§ 169A.25, subd. 1(b) , if the license revocation was “present when the violation was
6
committed.” Anderson asserts that a license revocation is not “present” as an aggravating
factor until it is judicially reviewed or the right to review has been waived . If neither
review nor waiver has occurred by the time of the offense, Anderson argues that the license
revocation cannot be used as an aggravating factor. Under Anderson’s interpretation, this
defect cannot be cured by delaying charging until after review has occurred , as the State
did here. We disagree.
As detailed above, Minn. Stat. § 169A.03 includes a host of definitions related to
which driving incidents qualify as aggravating factors. The statute does not, however,
define the word “present,” as that word is used in Minn. Stat. § 169A.25, subd. 1(b). “We
therefore look to dictionary definitions to d etermine [the word’s] common and ordinary
meaning[].” Thonesavanh , 904 N.W.2d at 436. “Present” simply means “ existing or
occurring now.” New Oxford American Dictionary 1381 (3d ed. 2010). When we apply
this definition to the driving-while-impaired statutory scheme, the question becomes when
a license revocation “exists” as an aggravating factor.
A license revocation under the Implied Consent Law, reviewed or not, come s into
existence as of its effective date. A license revocation “becomes effective at the time the
commissioner . . . notifies the person of the intention to revoke, disqualify, or both, and of
revocation or disqualification.” Minn. Stat. § 169A.52, subd. 6; see Heddan v. Dirkswager,
336 N.W.2d 54, 63 (Minn. 1983) (holding pre hearing license revocations constitutional,
with an emphasis on the availability of prompt post-revocation hearings).
Upon its effective date, a revocation comes with immediate legal consequences for
the license holder. Minn. Stat. § 169A.52, subd. 6. Revocation of a driver’s license results
7
in a revocation of the driving privilege. Minn. Stat. § 171.02 (2018). A driver whose
license has been revoked only becomes eligible for a limited license 15 days after the
revocation’s effective date. Minn. Stat. § 171.30, subd. 2a(1) (2018). Even then, issuance
of a limited license is discretionary; is appropriate only under certain, specified
circumstances; and can be subject to a broad swath of conditions. Id., subd. 1(b) –(c)
(2018). And although a person who has had a license revoked may petition for
administrative or judicial review, filing a petition does not stay a license revocation, except
under limited circumstances. Minn. Stat. § 169A.53, subds. 1, 2(a), (c).
These statutes do not mandate , or even sugges t, that to be used as an aggravating
factor, a license revocation must be reviewed by the time of a subsequent offense. To the
contrary, the language suggests that the L egislature intended that a license revocation’s
legal consequences beg in immediately upon the revocation’s effective date. Use of the
license revocation to enhance a subsequent charge of driving while impaired is one such
legal consequence.
Anderson contends that Minn. Stat. § 169A.03, subd. 21(a)(1), dictates otherwise.
Subdivision 21 (a)(1) defines qualifying losses of license to include license revocations
under “169A.50 to 169A.53 (implied consent law).” B ecause section 169A.53 —the
section detailing administrative and judicial review of license revocations—was included,
Anderson argues, the Legislature intended that license revocations qualify as aggravating
factors only after review or waiver of the right to review. Anderson misapprehends this
language.
8
We read the citation to the Implied Consent Law to me an just that: the Legislature
chose to cite the Implied Consent Law in the manner set forth in section 169A.50. The
citation is no signal that license revocations are not “present” as aggravating factors as of
their effective dates.
Our decision in State v. Wiltgen does not compel a different reading. In Wiltgen,
the State used an unreviewed license revocation to support probable cause for a charge of
second-degree driving while impaired. 737 N.W.2d at 566. The defendant argued that the
State “could not constitutionally charge her with second -degree DWI by using an
unreviewed license revocation as one of the aggr avating factors.” Id. We agreed,
concluding that the use of license revocations that were unreviewed at the time of charging
violated due process. Id. at 571. We suggested in a footnote , however, that delaying
charging until after review could remedy any constitutional defects:
This result does not seriously prejudice the state because the state can delay
the issuance of a seco nd-degree DWI complaint until after the implied
consent hearing has been conducted and the revocation has been sustained,
or can charge third -degree DWI before the implied consent hearing and
amend the complaint to add a second-degree DWI charge after the hearing.

Id. at 572 n.7.
The parties agree that footnote 7 was dicta. See State ex rel. Foster v. Naftalin ,
74 N.W.2d 249, 266 (Minn. 1956) (defining dicta as “expressions in a court’s opinion
which go beyond the facts before the court and therefore are . . . not binding in subsequent
cases”). But see State v. Heinonen, 909 N.W.2d 584, 589 n.4 (Minn. 2018) (“[W]hen we
have expressed an opinion on a question directly involved and argued by counsel, even if
that opinion is not entirely necessary to the decision, it ‘should not be lightly disregarded.’ ”
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(quoting State v. Rainer, 103 N.W.2d 389, 396 (Minn. 1960))). As dictum, footnote 7 is
not dispositive of the discussion in this case, but, in any event, it is persuasive.
Having concluded that a licens e revocation under the Implied Consent Law is
“present” beginning with the effective date of the revocation and, per Wiltgen, may be used
to enhance a charge of driving while impaired once it has been judicially reviewed and
sustained or the right to review has been waived , we turn now to the facts of this case.
After Anderson was first arrested for driving while impaired, the Commissioner of Public
Safety notified Anderson that his license had been revoked for a period of 1 year, effective
October 9, 2016, based on his refusal to submit to a chemical test . See Minn. Stat.
§ 169A.52, subd. 3(a)(1). Although Anderson petitioned for judicial review of the
revocation as permitted under Minn. Stat. § 169A.53, subd. 2, and review had not yet
occurred, the license revocation was in effect at the time of the December 2016 offense.
This satisfies the requirement in Minn. Stat. § 169A.25, subd. 1(b) , that an aggravating
factor be present at the time of the offense.
Despite his assertions to the contrary, our interpretation does not offend Anderson’s
right to due process under the federal or state constitutions. See U.S. Const. amends. V,
XIV; Minn. Const. art. I, § 7. When deciding whether the use of a license revocation as an
aggravating factor violates the right to due process, we use the three-part test from Mathews
v. Eldridge, 424 U.S. 319, 335 (1976), which balances the private interest at stake, the risk
of erroneous deprivation, and the government’s interest. Wiltgen, 737 N.W.2d at 568.
The private interest in this case is substantial, as it involves a deprivation of liberty.
See id. at 569. If an aggravating factor was present at the time of his second offense,
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Anderson would be subject to a minimum of 30 days of incarceration. Minn. Stat.
§ 169A.275, subd. 1. T he government similarly has a compelling interest , relying on
enhanced charges to promote highway safety and “keep impaired drivers off the road,
particularly those drivers who have shown a repeated willingness to drive while impaired,”
because “ ‘drunken drivers pose a severe threat to the health and safety of the citizens of
Minnesota.’ ” Wiltgen , 737 N.W.2d at 570 (quoting Bendorf v. Comm’r of Pub. Safety ,
727 N.W.2d 410, 416– 17 (Minn. 2007)). Third, and m ost importantly for this case, t he
risk of erroneous deprivation is negligible. Anderson’s license revocation was sustained
at a hearing, which he requested by petition . Although he ultimately waived his right to
further review, Anderson does not, and could not, assert that he has not been afforded the
requisite review.
On balance, Anderson’s liberty interest and the negligible risk of erroneous
deprivation do not outweigh the government’s interest in highway and public safety. This
conclusion is consistent with our decision in Wiltgen. Id. (“[T]here remains an opportunity
for meaningful review of the administrative license revocation in the implied consent
proceeding, but until that review has been provided , the same due process concerns arise
from the use of the revocation.” (emphasis added)).
In summary, Minn. Stat. §§ 169A.25, subd. 1(b) , and 169A.03 are clear and
unambiguous as applied to the facts of this case. A license revocation is “present” as an
aggravating factor as of its effective date, and it may be used to enhance a charge of driving
11
while impaired once review has occurred or the right to review has been waived .2
Accordingly, the State properly used Anderson’s license revocation as an aggravating
factor.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.

2 In so concluding, we note that prosecutorial discretion is not unlimited. I n cases
brought under chapter 169A, “indictments or complaints shall be found or made and filed
in the proper court within three years after t he commission of the offense.” Minn. Stat.
§ 628.26(k) (2016). Even within the statute of limitations , the law p rotects would-be
defendants from undue preaccusation delays for improper purposes. See State v. F.C.R.,
276 N.W.2d 636, 639 (Minn. 1979) (“The due process clause of the Fifth Amendment
guards against long delays when the Sixth Amendment right has not atta ched and the
statute of limitations has not yet run.”); State v. Anderson, 27 5 N.W.2d 554, 555 (Minn.
1978) (“[T]he due process clause protects against delays, including preaccusation delays,
that are planned by the prosecution for the purpose of gaining a tactical advantage, if the
delays result in actual prejudice to the defendant.”).