*1 Inc., 281 N.W.2d Aggregate, Sand in- insurer cannot seek
(Minn.1979). An incurred insured for costs from its
demnity acts independent apart defending its contract.
from the part. reversed in part,
Affirmed HEDDAN, al., Appellants, et
E.Milo
v. DIRKSWAGER, et K.
Kenneth
al., Respondents, HEDDAN, Appellant,
E.Milo SOPSIC,
John Commissioner Respondent.
Safety, CX-82-1645, C3-83-198.
Nos. of Minnesota.
Supreme Court 1, 1983. 18, 1983. Aug. Denied
Rehearing
Nichols, & Carruthers Kruger, Starks Raster, appel- Minneapolis, James H. lants. *2 Gen., III, petition mitted a Humphrey, Atty. generally denying
Hubert H. each of Gen., revocation, of Fabel, and the elements but Deputy Atty. Thomas L. asserted Jr., privilege against his Coleman, self-incrimination and Sp. Atty. Asst. Norman B. give refused to a statement fill out and Gen., Paul, for respondents. St. form sign by Depart- distributed ment of Public for Safety obtaining review. 27,1982, July On the Commissioner of Pub- Safety lic sent informing notice Heddan SCOTT, Justice. him he that found sufficient basis to sustain is a of appeal This consolidation two low the revocation. First, rulings. appeal er court this is an August 16, 1982, judi- On Heddan a had of judgment Ramsey from the order for cial review a hearing before municipal County District Court the consti upholding referee. Counsel for Heddan moved dis- of the new license tutionality prehearing miss the revocation on grounds order that proceedings revocation the judicial review as to be by heard a court Second, also consolidated referee and that the proceedings violated appeal for review is an from an order aof his rights. Fifth Amendment The motion three-judge panel affirming an order of was denied. The revocation of Heddan’s municipal court the case Milo E. Hed driving privileges was sustained at that dan v. Safety Commissioner of Public which time. upheld Heddan’s license revocation. Hed 8, 1982, July On Lundberg Paul William sought dan review before this discretionary by' Minneapolis police was stopped officers appeal court and his was consolidated with subsequently charged and with DWI and appeal Ramsey County from the Dis blood having a alcohol of .10 concentration trict We Court. affirm. or more. He to a Breathalyzer submitted declaratory judgment action chal- test which revealed a .10 blood alcohol con- lenges constitutionality of Minnesota’s that given tent. At time he was notice a license be- prehearing revocation statute on and order revocation of his driver’s half parties: Lundberg, of three Paul W. license. notice and order also carried Heddan, Craig Milo E. S. Miller. with a permit it driver’s valid temporary for a seven-day period. applied 9, 1982, Lundberg E. July On Milo Heddan was for was July issued a limited license on stopped Hennepin County charged judicial 1982. He filed his for with having DWI and a blood alcohol con- and administrative on July .10 He centration of or more. submitted to a Breathalyzer which revealed a blood Lundberg appeared re- for administrative alcohol content .22. At time he was view a August before driver evaluator on given a and order his notice petition 1982. He a generally submitted driver’s license. The notice and order also each denying of the elements of the revoca- carried it a temporary permit with driver’s tion, but privilege against asserted his self- valid seven-day period. July for a On give incrimination and refused to state- a applied Heddan for and received a ment fill sign out and the form distribut- Department limited license from the ed of Public Safety for Safety. permit- Public His limited license obtaining Lundberg repre- review. was ted him drive from hours of 8 a.m. counsel, argued sented a who .10 week, through p.m. Monday six per reading inherently was defective. On or through Saturday. August 15,1982, about Commissioner Safety Lundberg sent notice that he 21, 1982, On also his July Heddan filed found sufficient basis to sustain the revoca- request for review and administra- tion. tive he appeared review. On that date with part August 4, 1982, counsel before driver evaluator as Lundberg reapplied On his license, review. Heddan sub- and received limited as the one earlier, appeared July Miller before a obtained
he had and was due to for administrative review 30-day period driver evaluator was for was, day, the same He expire August. and was counsel. His coun- represented permitted license which a limited reissued argued Minneapolis sel Police De- 7 a.m. the hours of him drive between partment’s 21-point failure to use the BCA *3 through Friday. Monday p.m. and 5 checklist was a fatal defect in the revoca- tion. 19, 1982, judicial a August On Lundberg in the was scheduled
hearing request After Miller filed his for adminis- requested time the state a case. At that Department trative review the of Public the September to as continuance Safety attempted to obtain from the Minne- Breathalyzer op- and test arresting officer apolis Department copies Police of the im- objection, Over erator were unavailable. plied advisory, notice and order of continuance, the but granted the referee license. Al- temporary and Safety of Public Department ordered the report a was for- though police incident Lundberg’s driving privileges full reinstate Public Department Safety, warded to 19,1982, pending the hear- August effective these other documents were not. The docu- was then resched- ing. judicial hearing Minneapolis by ments were located Po- 30, 1982. After September uled to Department August lice which rescind- Lundberg’s revocation was hearing request was 15 from the for adminis- reasoned that the closeness ed. The referee However, they trative review. were not with the failure of reading, together Department received until after the to follow the Bureau of Criminal police 15-day period elapsed. had (BCA) steps recommended Apprehension 13,1982, August driving privi- On Miller’s interference, frequency dictated avoid radio leges were reinstated as a result the driver. He therefore held favor of findings of the administrative review. The meet its burden of the state failed to Safety order of the Commissioner of Public of the evidence proof by preponderance a revoking driving privileges Miller’s was was accurate and relia- that the test result Department overruled because the of Public ble. Safety had not received from the Minneap- 15, 1982, Craig Miller July On Sheridan Department olis Police information or re- stopped by Minneapolis police was ports sufficient to sustain the'review within having with DWI and a blood alco- charged 15-day required period. time hol of .10 or more. He sub- concentration test, Breathalyzer which re- mitted to a Implied Overview of the Consent Law alcohol content of .16. At
vealed a blood he was a notice and order given time question presented by appeal license. The of revocation of his driver’s (1982), whether which Minn.Stat. § temporary notice and order carried with it a suspension mandates of a driver’s license permit seven-day period. driver’s valid for a because of a a refusal take chemical test 26,1982, requested On Miller adminis- alcohol for concentration or failure of a judicial trative and review. He submitted a chemical by registering test an alcohol con- petition each of the ele- generally denying more, centration of .10 or is violative of due revocation, asserted his ments of the but process privilege against or the self-incrimi- and re- privilege against self-incrimination nation. fill give fused to a statement or out The elements of an consent viola- form distributed tion are clearly defined the statute: obtaining review. He Safety for consent; conditions; Implied Subd. applied also for a limited license. Miller (a) type Any per- election as to was a limited license because he was denied drives, operates physical son who inis employed at that time. Present em- control of a motor vehicle within this prerequisite obtaining is a for a ployment consents, subject provisions state to the limited license. 169.121, driver given 30-day this section section to a was temporary license breath, blood, chemical of his with the test notice revocation. Minn.Stat. 169.123, 5a determining urine for the subd. The driver purpose then had the presence right appeal or a the license of alcohol controlled sub- revoca- tion by requesting judicial hearing. stance. The test shall be administered at If the driver appeal, did he was issued a tem- peace direction of officer. test porary license until a final when determination on required person an revocation was made. probable officer has reasonable subd. 5a If appeal no grounds person was to believe driv- requested, was the revocation became effec- ing, or in operating, physical control of a tive period. at the of the 30-day end motor vehicle in violation of section 169.- 121 and one the following conditions This system resulted in approximately exist: has lawfully been one review out of every *4 placed under arrest for violation of sec- three implied consent reported. violations 169.121, tion anor ordinance in conformi- During 33,000 the approximately of therewith; ty (2) or the has been implied reported, consent violations there involved in a motor vehicle accident or 10,500 were approximately requests for ju- resulting collision in property damage, 10,500 dicial review. Out of requests these death; personal or injury, per- or review, for 326 drivers were able to avoid son has to take the screening refused test license revocation. 169.121, provided by for section subdivi- During legislative the 1982 session Minn. 6; sion screening test was Stat. 169.123 was in § amended order to administered and recorded an alcohol con- reduce the lapse time an implied between centration of or more. No action consent and imposition violation of may against be taken the person for de- license revocation. The delayed old law all test, a clining to take direct blood if of- 30 days revocations for from the notice of fered, unless an alternative test was of- just revocation. The new law provides fered. days. 169.123, Minn.Stat. subds. and 5a § 169.123, 2(a) (1982) (em- Minn.Stat. subd. § (1982). old law enabled additional de- added). phasis lay aby request judicial for review. The The statute on to goes require when provide new amendments filing that “[t]he requesting peace officer must of the petition shall not stay revocation of notify the driver of a consequences 169.123, or denial.” Minn.Stat. subd. 5c § to or not decision test test. Minn.Stat. (1982). 169.123, 2(b) (1982). subd. § removing While the opportunity for
A final proce- element lengthy delay, 1982 amendments simul- peace dure is that a officer afford must taneously system created a more efficient driver a opportunity reasonable consult obtaining for review of the revocation or- counsel before to test or not opting test. der. The amendments for provided two requirement was by This established this distinct avenues review: administrative State, Prideaux Commissioner of review the Safety, of Public Safety, judicial 310 Minn. 247 N.W.2d and municipal review a county (1976). court. revocations the im- The administrative Administrative under review mechanism is entirely new. The plied days provides consent law are 90 for test fail- statute as fol- ures and 6 for test lows: months refusals. Minn. 169.123, (1982). The law Stat. subd. § Administrative At any review. time
designed encourage taking of tests during a period imposed suspected remove and certifiable a person may request this section drunken drivers from road. Under the in writing a review of the order of revo- prior effect to July public cation the commissioner safe- review, conducting the com- an administrative receiving request ty. Upon officer considers shall review the the review information designee his missioner or all relevant re- upon provided by which the order driver and order, evidence agen- law enforcement ports provided other material infor- based, was reports cies. The review officer his find- to the attention brought mation days to the driver within ings whether commissioner, determine report findings the or- for review. The includes exists to sustain cause sufficient receiving each element of the offense. Within 30 days der. Within report days following receipt shall of the notice and request the commissioner person may petition of his review. The order revocation a writing the results judicial for review. in this is not the court Minn.Stat. provided review subdivision 169.123, provisions (1982). case subd. 5c This subject to the contested § procedure pursuing act in sec- while administrative review. the administrative done tions 14.01 to 14.70. judicial provision, review as amended availability of administrative re- 1982, requires hearing that a be conduct- shall have view for an order of revocation date,” and in practicable ed “at the earliest availability judicial upon no effect filing no event later than 60 after the under this section. review. petition Minn.Stat. 169.123, subd. 5b subd. 6 Judicial district an informal review provision contemplates implement administrators are directed to remedy ob- procedure designed which is through efficient schedul- *5 procedure speedy, is vious errors. ing and the transfer of cases within their days, 15 and it promising a result within expedite hearings. districts to Court ad- process accords a certain measure due in the ministrators 10 Minnesota subjects revocation orders. scheduling sys- districts have established a judi- consent implied whereby tem for cases administrative review requesting Drivers review will with- normally cial be had from re- are asked to fill out an administrative days following filing in 10 to 40 setting pertaining view form forth facts petition. is not valid. Drivers why the revocation form, have it sign are asked to then raise the issues on Appellants following notarized, it to the commission- and submit appeal: paragraph of the form er. Each numbered (1) the prehearing Whether license revo- implied consent sets forth an element provisions of cation 169.123 § solicits the driver’s version of
violation and (1982) process guaran- violate due of law as to that element. pertaining the facts teed the United States and Minnesota Administrative reviews are conducted Constitutions. employees civil known as “driver service Whether 169.123 Minn.Stat. § All in this analysts.” employees safety persons to incriminate themselves compels past experience have with classification priv- in violation of their Fifth Amendment license revocation. governing laws and rules ilege against self-incrimination. They undergone training have also ad- process imposes 1. Procedural due legal princi- review and in the ministrative governmental constraints decisions in this area. ples deprive “liberty” which individuals of to the written for In addition meaning interests within the “property” review, for may appear drivers Due Process Fifth Clause of the day review on business Fourteenth Amendments of the United scheduled times regularly Paul or St. I, 7, Constitution and Article States Section throughout the state. Counsel locations the Minnesota Constitution. driver, there although with the may appear is an subpoenaing important proper- or cross- A license to drive provisions are no Burson, ty interest. Bell v. 535, 402 examining witnesses. U.S.
59
539,
1586, 1589,
90
involved a class action challenge
29 L.Ed.2d
to the Mas-
91 S.Ct.
dispute
(1971).
system.
The state does
sachusetts
are
interests
appellants’
property
licenses
system
Massachusetts
is similar to the new
rather, it
subject
process protection;
to due
system
respects,
Minnesota
in most
but dis-
existing procedures,
as
concludes that
tinguishable
some.
discussed, provide
process
all the
previously
Massachusetts,
The license revocation in
constitutionally
is
due before a driver
Minnesota, is only
unlike
for test refusals.
can
of his license.
deprived
upon
report
revocation is based
from
has
Supreme
The United States
Court
peace
officer to the state licensing agen-
consistently
hearing
held that some form of
takes
cy,
upon
immediate effect
is-
required
finally
is
before an individual
is
suance.
v.
deprived
property
interest. Wolff
The post-revocation
McDonnell,
539, 557-558,
U.S.
S.Ct.
Massachusetts,
Minnesota,
like
provides
2963, 2975-2976,
(1974).
the risk of erroneous deprivation signifi- as cases, cant in these deprivation stating: B. Risk of erroneous risk of erroneous observation or [T]he second factor considered the Mon- misrepresentation deliberate facts trym analysis prehearing for a license revo- the reporting officer in the ordinary case cation is the of an dep- likelihood erroneous seems insubstantial. private rivation of the interest involved. describing this factor Montrym 443 U.S. at
stated: However, Minnesota also revokes the And, although aspect Eidridge license of a driver who test, fails a chemical test further requires an assessment of the while Massachusetts does not. Appellants reliability procedures relative used strongly assert the risk of erroneous procedures sought, and the substitute deprivation of a license to drive due to the Due Process Clause has never been con- possibilities “infinite for error” inherent strued to require procedures testing for blood alcohol concentration is guard against depri- used to an erroneous the most significant difference in the Min- protectible “property” vation of a or “lib- nesota systems. and Massachusetts Appel- interest erty" comprehensive be so as to particularly lants challenge the reliability
preclude any possibility of error. The Breathalyzer testing, which is the test simply Due Process Clause does not man- given most cases. Minn.Stat. § date that governmental all decisionmak- 2 (1982). subd. ing comply with standards that assure This court has previously considered the perfect, error-free determinations. reliability Breathalyzer testing. In State Inmates, Greenholtz v. Nebraska Penal Quinn, 289 Minn. 182 N.W.2d supra, at 7 [442 1] [99 (1971), we stated: Thus, though even our legal tradi- 2103]. It generally held that the alcoholic tion regards adversary process as the content of the blood be reliably de- best means of ascetaining truth and mini- termined by such a and testimony of mizing error, the risk “ordinary the reading obtained upon properly con- principle” prior established our deci- ducted test may be admitted without an- sions is that less than “something an evi- tecedent expert testimony that the read- dentiary hearing prior is sufficient to ad- ing is a trustworthy index of alcohol in verse administrative action.” Dixon v. the blood. Love, supra at 113 S.Ct. at [431 U.S.] [97 (Citations omitted.) And, when prompt postdepriva- 1728]. tion review is available for correction of Three experts testified for the state as to error, we generally have the accuracy and reliability of the Breatha- required no more predepri- than that the lyzer test. Mr. Richard Prouty, Chief Fo- *8 procedures vation designed used be to rensic Toxicologist, Office of Medical Ex- provide a reasonably reliable basis for aminer, Oklahoma, State noted that: concluding that justifying facts Breathalyzer and its various models [T]he official responsible gov- action are as a are and have been internationally accept- ernmental official warrants them to be. ed recognized and as a reliable evidentia- at (emphasis S.Ct. at 2618 ry device for determining blood alcohol added). content. Berkom, Laboratory
Mr. Lowell Van BCA is greater tion under the Minnesota statute Director, law, stated: than under Massachusetts it is not to such a degree as to alter the balance struck Breathalyzer use of the Model
[T]he Supreme Montrym. Court in and in accordance with this Breath- 900A alyzer operational 21-step checklist proce- public The C. interest served by pre- dure accurate and scien- provide highly hearing revocation. tifically acceptable analy- result of breath The third and final factor Montrym from sis for alcohol. for determining the constitutionality pre- Neese, Mr. Phillip supervisor L. hearing implied consent revocations is the chemical testing Minneapolis unit for the public interest at stake. Montrym Department, Police noted that “the Breath- public court considered two interests: instrument, alyzer was an accurate but that public keeping interest high- roads and readings slightly were lower than blood ways safe, public and the interest in avoid- added.) tests.” (Emphasis ing fiscal and administrative burdens which September On Smith & Wesson are disproportionate nature of the Corporation, the manufacturer private being interest revoked and 900A, Breathalyzer Models 900 and which risk of erroneous revocation. are the exclusive breath-testing apparatus- public interest in preserving the safe- Minnesota, es in issued an to all advisory ty of our roadways great is of importance. its customers concerning frequency radio Montrym As the court in noted: (RFI). advisory interference informed We have traditionally accorded the states Smith & Wesson’s customers that “continu- great leeway in adopting proce- summary ing investigation suggests early now protect public dures to health and safety. series of breath testing instruments surely States have at least as affected in an much inter- unpredictable manner est frequencies removing various drunken power levels.” drivers from advisory highways was a culmination of substan- their summarily as in seizing tial testing by Smith & Wesson and an drugs mislabeled or destroying spoiled independent party. third foodstuffs. [Citations omitted.] The Commonwealth’s public interest Belin, At trial product manager Mr. Herb safety is substantially served in several Wesson, & testified that the Smith Model ways by the summary suspension of those RFI, susceptible was not testing who refuse to take a breath-analysis test by the BCA confirmed this. Belin further First, upon arrest. the very existence testified that their investigation failed to summary show sanction of the problem anything “due to other statute than the RF serves as a generated by contrived fields deterrent to drunken driving. Second, our own equipment provides at our own demand.” it strong inducement to The BCA has field-tested all take Breathalyzers the breath-analysis test and thus in Minnesota for RFI. Each every effectuates the Commonwealth’s interest Breathalyzer presently operation in Min- obtaining reliable and relevant evi- nesota has been field-tested and certified dence for use in subsequent criminal pro- not to be RFI in affected the location in Third, ceedings. in promptly removing which it operating. road, such drivers from the the summary sanction of the statute contributes to the
The trial court found that:
safety
public highways.
testing
Breath
in Minnesota at certified
17-18,
locations in accordance
pro-
with the BCA
2620-2621.
tocol,
highest
merits the
confidence and
linking
Statistics
drunken driving with
remains a reliable and accurate means of
tragedy
death and
injury
our
measuring alcohol concentration.
nation’s highways abound. Forst Lowry,
The trial court’s finding
clearly
is not
erro-
the Safety Program Coordinator for the
neous.
depriva-
While the risk of erroneous
Minnesota
of Public Safety,
*9
I,
in
drivers
that
1981 52% of the
States Constitution and Article
testified
Section
had a
con-
killed in Minnesota
blood alcohol
of the Minnesota Constitution. The trial
of .10 or more
drivers
centration
and 62%of
court determined that “the availability of
some measurable
concen-
killed had
alcohol
expeditious
judi-
administrative
timely
over
tration.
It
estimated that
in 1980
cial review
the system
the
devised
be-
persons
were killed in Minnesota
of Public Safety
Commissioner
re-
does not
eco-
cause of drunken drivers and direct
sult
in
plaintiff’s
a violation of a
Fifth
nomic
amounted to approximately $114
loss
privilege against
Amendment
self-incrimi-
million.
nation.”
determined, that
the
Montrym
case,
In any DWI
the defendant
faces
and automatic
summary
character
penalties
two types
separate pro-
in two
sanction
the
suspension
available under
ceedings: (1)
penalties
criminal
under Minn.
statute is
to deter-
Massachusetts
critical
Stat.
169.121 and
civil license revoca-
§
ring
making
drunken drivers and
the state’s
tion under Minn.Stat.
169.123. Under
safer. 443
at
highways
U.S. at
99 S.Ct.
169.123 the
driver’s license is
prehearing
system
2621. The
to a
prior
hearing.
revoked
may
driver
also
to ease fiscal
helps
and administrative
request
then
administrative or
re-
judicial
burdens, a second area of
interest.
public
view of
revocation.
has
the
The driver
Montrym
As the
court stated:
high
to
incentive
review immediate-
presuspension hearing
A
would substan-
or her
ly
already
since his
license has
been
in
tially
pub-
undermine the state interest
Meanwhile,
pleads
revoked.
if the driver
safety by
significant
giving
lic
drivers
the
guilty
to
criminal
will
charges, he
breath-analysis
to refuse the
incentive
seeking
be
license revocation
while
review
presuspension hearing
test and demand a
charges
the
pending.
criminal
are
State-
dilatory
Moreover,
incen-
as a
tactic.
to the
in
ments made
administrator
delay arising
availability
tive to
from the
review
administrative
or to the court
presuspension hearing
gener-
would
law,
are not
immunized
sharp
ate a
increase in the number of
may be
against
and thus
used
driver
impose
hearings sought and therefore
fact,
the later
case.
criminal
the form
fiscal and
bur-
substantial
which a driver must submit
order
den on
Commonwealth. Dixon v.
attain administrative review
states that
Love,
U.S.,
1728],
at 114
[97
given in
information
the form
used
at 2621. Attorney
related court
Appellants
action.
Spannaus
General Warren
at trial
testified
puts
contend
in an
driver
legisla-
that his office had estimated for the
position
untenable
where he must choose
ture
annual savings
approximate-
overall
testifying during
between
revo-
license
$320,000
ly
pre-
under the new
hearing and risking
cation
the later use of
hearing revocation.
testimony
case,
in the
or re-
criminal
out,
fusing
testify
forgoing
right
statistics
and thus
point
As the
cited above
pose
fully litigate
drunken
a severe threat
to the
license revocation.
drivers
Minne-
safety
health and
citizens of
There
doubt that
have
appellants
is no
compelling
highway
sota. The
interest
right
assert their Fifth
Amendment
safety justifies the
of Minnesota in
State
privilege against self-incrimination in either
making
pending
a revocation effective
judicial hearing
the administrative or
if it
prompt post-suspension
outcome
“reasonably apprehend[ed]”
can be
that the
hearing.
against
statements could be used
them a
Water-
Appellants
prosecution. Murphy
next
criminal
contend
Commission,
front
pen
84 S.Ct.
imposes
Minn.Stat. §
alty
exercising
privilege
on them for
their
they
telling
would be
a defend-
violation —
a constitutional violation.
privilege
is
testify
not,
ant at trial to
under an
—does
is, therefore,
before this court
question
view, compel
extreme
the defendant
under
procedure
whether
Minn.Stat.
incriminate himself. He could submit to
appellants’
burdens
impermissibly
accusation,
testify
self
or
falsely (risking
rights.
exercise of their Fifth Amendment
perjury) or
to testify (risking
decline
con-
-
Neville,
v.
tempt).
South Dakota
U.S.
But the
long recog-
Court has
-,
916,
(1983),
103
self-incrimination is primarily upon based unnecessary to decide that the information person their claim that a seeking adminis requested in pre-administrative trative review must complete sign form is not violative of the privilege against Department form distributed self-incrimination. The form is not autho- Safety “Request Public entitled for Admin rized I by statute and would hold that Implied istrative Review of Consent Revo requested, information if given, is not usa- Completion cation.” of the form is not ble in a criminal proceeding. Such hold- required by statute. 169.- See Minn.Stat. § ing would make the hearing Department subd. 5b. The of Public meaningful more open because the Safety require does not its form be likely driver would be more to tell his com- completed in order to obtain administrative plete story, thus resulting fewer court- review. parties None to this action contested cases. completed signed Safety form and each had an admin WAHL, Justice (concurring specially). istrative review of his license revocation. join I the concurrence of Justice YETKA. fact, appellant driving privileges Miller’s were reinstated as a result of his adminis Furthermore, hearing.
trative review
state has the burden of each ele proving
ment of the consent violation in
order to sustain the license revocation. significant
This factor has been considered
determining
whether a
is com
pelled to testify. See United States v. U.S.
Minnesota, Respondent,
STATE of
Currency,
(6th Cir.),
indicate a basis for They reversal. need
provide no other information to have their
challenge heard. The trial court was cor-
rect in its determination that Minn.Stat. compel persons 169.123 does not to in-
criminate themselves in violation of their
federal and state constitutional privilege
against self-incrimination. have
Finally, appellants satisfy failed to U.S.C. 1983’s threshold deprived plaintiff right