DUI Enhancement Based On License Revocation Survives Various Constitutional Challenges.

State v. Omwega, Minn.Ct.App., 7/21/2009.  In August, September and October, 2006, police arrested Mr. Omwega for driving while impaired.  Following each arrest, the driver’s license people revoked his license; Mr. Omwega did not challenge any of these revocations.  Alas, in March, 2007, police again arrested Mr. Omwega for driving while impaired, and this time the prosecutor charged him with felony first degree driving while impaired.  Mr. Omwega made numerous constitutional challenges to the use of license revocations to enhance the offense to a felony, all of which the appellate court rejects.

First, the Fifth Amendment’s due process clause does not prohibit this enhancement.  This is settled law, at least in Minnesota.  State v. Coleman, 661 N.W.2d 296 (Minn.Ct.App. 2003); State v. Goharbawang, 705 N.W.2d 198 (Minn.Ct.App. 2005).

Second, Mr. Omwega made an Apprendi argument that enhancement is forbidden unless a jury finds not only the existence of a revocation but also all of the underlying facts associated with the revocation.  The appellate court makes the conclusory pronouncement that  Apprendi requires only proof of the existence of the revocation itself.  The court also does not want to convert the revocation process into a criminal process – a jury and all that - a concern that the court used in rejecting a similar argument that the implied-consent hearing is a de facto criminal proceeding.  See Davis v. Comm’r of Pub. Safety, 517 N.W.2d 901 (Minn. 1994).

Lastly, Mr. Omwega challenged the September revocation as unconstitutionally obtained.  He complained that the state had not provided timely notice of the revocation; that his waiver of judicial review was neither considered nor knowing; and that because he was not the driver fundamental fairness prohibited revocation.  Notice, both the trial and appellate court concluded, was sufficient when the officer stuffed the notice papers into Mr. Omwega’s bag as he was headed out the door of the police station upon his release.  Waiver, the appellate court concluded, may properly consist of simply not exercising the review mechanism.  Third, while it’s true that at the time of the officer’s stop Mr. Omwega was not driving, the driver told the officer that Mr. Omwega had been driving.  This is sufficient.