Minnesota's Implied Consent Law: Is It (Again) Unconstitutional?

Posted On September 22, 2011 by Daniel Koewler

Shoot First â?? Ask Questions Later

Under a shoot-first-ask-questions-later philosophy, the Minnesota Commissioner of Public Safety can take away drivers' licenses without first conducting a hearing on the propriety of the revocation pursuant to the Minnesota Implied Consent Act. Although drivers may challenge the license revocation in court, it can take months before the case goes to court. Even in those cases where a judge ultimately orders license reinstatement, the damage is already done. There is no way to "undo| the loss of a license during the wait. But a major overhaul to the law may have so radically changed the legal landscape that the law is no longer constitutional.

Previous Constitutional Challenges to Minnesota's Implied Consent Law

The Minnesota Supreme Court has found the basic premise of pre-hearing license revocation to be constitutional. In balancing the interests of public safety against the rights of individual drivers, the Minnesota Supreme Court upheld in Heddan v. Dirkswager (1983) that there were sufficient procedural safeguards to protect the private interest of the driver. At the time those protections included (1) the relatively short revocation period; (2) the immediate availability of a work permit; and (3) a speedy hearing.

After the legislature tinkered with the statute, the Minnesota Supreme Court warned the legislature in the 1994 Davis case not to further erode the procedural safeguards or it would strike down the law as unconstitutional. Although the court upheld the statute, it was troubled by the fact that |a court cannot undo an erroneous revocation,| because |full retroactive relief cannot be provided| and |even a day's loss of a driver's license could inflict grave injury upon a person.|

Minnesota Supreme Court: Law Violates Constitution

While it was not |prepared at [that] time to conclude that the legislation in question violate[d] either federal or state due process guarantees,| in 2003 the legislature removed drivers' right to a prompt hearing. For the first time, the Minnesota Supreme found the law unconstitutional in Fedziuk v. Commissioner of Public Safety (2005), holding that that the law offended the constitution's right to due process.

New, Radical Changes

Despite the Supreme Court's early warnings and then later finding the Implied Consent Act unconstitutional, the 2010 legislature radically changed the implied consent law. In doing so, the legislature increased the duration of a first time misdemeanor revocation from 90 days to one year and completely removed the right to a work permit for those with an alleged alcohol concentration of .16 or more.

The legislature attempted to give the appearance of softening the blow to drivers by providing for |zero day eligibility| for ignition interlock. This is just a mirage. First, the administrative process is so unwieldy the Department of Public Safety has been unable to provide anything close to immediate reinstatement, even with the installation of the interlock devices. Second, the cost is prohibitive for most. While the costs vary, drivers must pay hundreds of dollars in fees for installation and monitoring to private carriers. They must pay a $680 reinstatement fee. Finally, they must fork over a four digit amount in advance for a one-year, non-cancellable insurance policy. Presumably, even if a court finds the revocation improper, it would be impossible to undo the erroneous revocation and provide full retroactive relief. Not only would the interim loss of the license inflict injury, but the driver would lose thousands in costs of the ignition interlock program and non-cancellable insurance.

The Risk of Erroneous License Revocation is Higher Today Than Ever

Finally, the risk of erroneous deprivation is higher today than ever. The state continues to use the Intoxilyzer 5000 for DUI breath testing, which does not always work properly according to the judge in the consolidated source code case. Or, it relies on DUI urine testing using procedures not accepted by the scientific community â?? and not used at all in any other jurisdiction in the entire country.

Our firm is raising this issue in almost every DUI case. There is no doubt it will eventually come before the Supreme Court. Will it find the law unconstitutional?