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State v. Dumas12/15/1998
rohibits the use of any prior uncounseled finding to enhance a subsequent charge, or whether it prohibits the enhancement of a subsequent charge only when the prior finding was obtained in violation of a defendant's constitutional rights.
In this case, there is no allegation that respondent's past license revocation was unconstitutionally obtained. Thus, if Nordstrom prevents only the use of a prior unconstitutional proceeding to enhance subsequent charges, it would not prohibit enhancement here. However, if Nordstrom prohibits the use of any uncounseled finding to enhance a subsequent offense, Minn. Stat. § 169.121, subd. 3(c)(2), would be unconstitutional as applied to these facts.
We look first to the specific holding of the supreme court in Nordstrom. The Nordstrom court stated that once the issue is properly raised by the defendant, the state has the burden "to show that the contested evidence * * * was obtained consistent with constitutional requirements." 331 N.W.2d at 905 (emphasis added). If the court was concerned with any uncounseled finding, it arguably would have used broader language reflecting this concern. Because the Nordstrom court did not use such language, we read Nordstrom as prohibiting the use of a prior unconstitutionally obtained conviction to enhance a subsequent charge.
This Conclusion is consistent with cases from other jurisdictions that have determined that uncounseled civil findings may be used to enhance subsequent criminal charges. See, e.g., United States v. Robles-Sandoval, 637 F.2d 692 (9th Cir. 1981), cert. denied, 451 U.S. 941 (1981) (holding that where defendant received all the process that was due in the prior civil proceeding, that proceeding could be used to enhance a subsequent criminal charge); Schindler v. Clerk of Circuit Court, 715 F.2d 341 (7th Cir. 1983), cert. denied, 465 U.S. 1068 (1984) (allowing civil forfeiture after first DWI offense to enhance subsequent offenses, even though obtained without counsel and without valid waiver of counsel, because progressive statutory scheme was important to solving drunk driving problem); State v. Novak, 107 Wis.2d 31, 318 N.W.2d 364 (1982) (same).
Additional support for this reading of Nordstrom is found in State v. Host, 350 N.W.2d 479 (Minn. App. 1984), where this court dealt with a similar issue. In Host, past petty misdemeanor driving offenses were used to enhance a subsequent driving offense to a misdemeanor. Id. at 480. This enhancement allowed the trial court to sentence Host to 30 days in the county jail with 25 days suspended. Id. The Host court held that the record of the past offenses could be used to enhance the subsequent driving offense even though the guilty pleas for the past offenses were uncounseled and the right to counsel was not waived. Id. at 481-82. The court distinguished Nordstrom on the basis that petty misdemeanors are not crimes and that the defendants in such proceedings are not subject to incarceration. Id. at 481. Thus, Host appears to allow prior findings to enhance subsequent offenses where the prior findings were obtained without constitutional violations.
In the present case, as in Host, respondent was not subject to incarceration as a result of the implied consent proceeding. While respondent argues that the enhancement at issue here subjects him to incarceration, that was true in Host as well.
Further, the civil nature of the implied consent proceeding is similar to the non-criminal nature of the petty misdemeanor offenses in Host, notwithstanding the fact that implied consent proceedings are considered criminal for purposes of a right to counsel before submitting to chemical testing. Friedman v. Commissioner of Pub.
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