An Administrative License Revocation That Is Pending at the Time of a Subsequent DUI Arrest But Later Withdrawn is Properly Considered as an Aggravated Factor (Whew!)

Heino v. One 2003 Cadillac, Minn.Ct.App. (February 17, 2009).  Police arrested  Charlotte Heino on March 7, 2007 for fourth degree DUI.  The police gave her a seven day notice of license revocation. Ms. Heino filed an implied consent petition, a hearing on which the trial court scheduled for May 1, 2007.  On April 9, 2007, however, Ms. Heino waived the sixty day hearing requirement so the hearing got re-set to August, 2007.

On May 9, 2007, police again arrested Ms. Heino for DUI, this time charging her with second degree; the aggravating factors were her blood alcohol level (0.26) and the March 7, 2007 license revocation.  Police again gave her a seven day notice of license revocation; they also gave her a forfeiture notice for the Caddy, based upon the March 7, 2007 license revocation that was, at the time, pending judicial review.  Ms. Heino judicially challenged both the second license revocation and the forfeiture.

Eventually, Ms. Heino plead guilty to both the fourth and (amended) third degree DUI charges; it looks like she withdrew both of the implied consent challenges as part of the plea deal.  She went to trial on the forfeiture.  The trial court denied forfeiture, concluding that due process required that the administrative license revocation had to be final before it could be the basis of the forfeiture.  In this instance, this administrative action was not yet final at the time of the second DUI arrest because judicial review was still pending.  The Court of Appeals reversed.

The legal fight here appears to be whether to apply State v. Wiltgen, 737 N.W.2d 561 (Minn. 2007).  There, the state had also tried to use a prior administrative license revocation as an aggravating factor in a forfeiture, even though that administrative determination was still pending judicial review at the time of arrest and forfeiture notice.  Mr. Wiltgen won, however, because it had not been his fault that the judicial review had not been concluded; rather, it had been the result of a standing order from the trial court that delayed everyone's implied consent hearings until conclusion of the underlying criminal prosecution. 

The appellate court disagreed with the trial court's conclusion that for Ms. Heino mere availability of judicial review prevented the license revocation from serving as an aggravating factor.  While this was true at the time of the second arrest, it was no longer true when the forfeiture trial commenced.  The Court of Appeals felt that Ms. Heino had been a bit too cute by half:

Under the district court’s analysis, a person accused of drunk driving may file a PJR, [implied consent],  waive the 60-day requirement, and then prevent that revocation from ever being used against him or her by withdrawing the PJR prior to the forfeiture trial but after the 60-day window has expired. This would lead to an absurd result that is contrary to the statutory framework.

The appellate court also thought that Ms. Heino's property interest in the Caddy was a bit less deserving of respect than Mr. Wiltgen's liberty interest, one of the three interests to be balanced under Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976).  (If the aggravator sticks, Mr. Wiltgen goes to jail for a longer term than without it; Ms. Heino loses her nice wheels.)  Ms. Heino's voluntary withdrawal of the implied consent hearings also rather strongly suggested that the second Mathews factor - chance of erroneous decision - was "not substantial.