State v. Victorsen

• Decision Date: 18 April 2001
• Docket Number: No. C7-00-1795.,C7-00-1795.
• Citation: 627 N.W.2d 655
• Parties: STATE of Minnesota, Plaintiff, v. Seth James VICTORSEN, Defendant.
• Court: Minnesota Court of Appeals

627 N.W.2d 655

STATE of Minnesota, Plaintiff, v. Seth James VICTORSEN, Defendant.

No. C7-00-1795.

Court of Appeals of Minnesota.

April 18, 2001.

James M. Ventura, Lambert & Boeder, Wayzata, MN, (for appellant).

David K. Ross, Carson, Clelland & Schreder, Minneapolis, MN, (for respondent).

Considered and decided by KLAPHAKE, Presiding Judge, AMUNDSON, Judge, and HUSPENI,¹ Judge.

OPINION

AMUNDSON, Judge

The appellant, in a DWI prosecution, moved the court to apply collateral estoppel because the court, in an earlier hearing on the related implied consent matter, found the stop not supported by articulable suspicion. The DWI court denied the motion, and ruled that the stop was proper and supported by articulable suspicion. The DWI court also ruled that the failure of police to videotape the stop did not require suppression but entitled the driver to an adverse-inference instruction. The DWI court certified questions to this court on the effect of the prior implied consent ruling, the legality of the stop, and the appropriateness of an adverse-inference instruction.

FACTS

At approximately 1:30 a.m. on August 22, 1999, Officer John Keding was dispatched to the site of a hit-and-run accident. The police dispatcher said a caller had complained that a red Jeep with a black top had driven across his lawn, struck a tree, and then struck a vehicle parked in his driveway. The dispatcher also received and relayed a second call about a "red/black vehicle speeding through the area."

Officer Keding approached the scene soon after he received the dispatcher's call. Keding saw a vehicle stopped, on the wrong side of the road, in front of the accident scene. Although he could not immediately identify the vehicle type, the vehicle passed him as he approached and he identified it as a blue truck. At the scene, Keding viewed the damage and tire tracks in the lawn. The dispatcher then radioed that a blue truck had been observed stopped in front of the accident scene. Keding then pursued the blue truck and stopped it approximately one block away from the accident scene. After Keding began to pursue the blue truck, the dispatcher informed him that the red Jeep had left its front bumper, including the license plate, at the accident scene.

Consequently, Seth Victorsen, the driver of the blue truck, had his license revoked pursuant to Minnesota's implied consent law. Victorsen filed a petition for judicial review of the revocation, alleging that the stop was illegal. Shortly thereafter, the State of Minnesota issued a criminal complaint for DWI and other charges. At a pretrial conference on the criminal matter, the prosecutor was verbally advised that the implied consent hearing was to be held five days later.

At the implied consent hearing, which was not attended by the DWI prosecutor, the police reports and dispatch log were accepted into evidence. Keding's report indicated that he made the stop because he "had received information as [he] arrived on the scene that the blue Ford pickup was stopped in front of the address where the damage occurred." Keding testified that, while two blocks away, he observed the blue pickup stopped, on the wrong side of the road, at the accident scene. He also testified that, after learning that the bumper and license plate had been left behind, he thought the driver of the blue truck might have returned to the accident scene to retrieve the items left by the red truck.

Keding also testified that, after stopping the blue truck, he identified the driver as Victorsen, and observed several indicia of intoxication including bloodshot and watery eyes, loquaciousness, slurred speech, the strong smell of alcohol, and difficulties with manual dexterity. He testified that, when asked, Victorsen denied stopping in front of the accident scene, but admitted to drinking. Keding then testified that Victorsen failed a preliminary breath test and a Horizontal Gaze Nystagmus test, and was subsequently arrested. The district court hearing the implied consent matter ruled that Keding lacked the requisite articulable suspicion to stop Victorsen's vehicle and rescinded the license revocation.

A hearing on pretrial motions in the DWI prosecution was held before a different district court judge almost three months after the implied consent hearing. Victorsen moved the court to apply collateral estoppel to exclude all evidence obtained as a result of the stop. The parties briefed both the issue of collateral estoppel and the issue of the legality of the stop. The DWI court denied the motion to apply estoppel, denied the motion to suppress evidence resulting from the stop, and, on the same record that was before the implied consent court, ruled that the stop was supported by an adequate articulable suspicion.

The district court then certified four questions to the court of appeals:

(1) What effect, if any, should a ruling in [the implied consent] hearing have in a later hearing [in the factually related DWI prosecution] on the same issue?

* * * *

(2) On the record of the present case, * * * was the stop of the defendant supported by an adequate articulable suspicion?

* * * *

(3) Should evidence of the encounter between the officer and the defendant be suppressed where, as here, the officer was equipped to record the encounter, and strongly advised if not fully required to do so by the policies of his department as set forth in the department's manual, but chose not to do so?

* * * *

(4) Is the defendant entitled to a jury instruction that the officer's failure to record the encounter [under these circumstances] weighs against the credibility of the officer's testimony concerning the events that could have been but were not recorded?

ISSUES

I. Should a district court's determination, in an implied consent hearing, that there was no legal basis for a police stop, estop a prosecutor from litigating the identical issue involving the same evidence in a criminal prosecution?

II. Does an officer have a sufficient articulable suspicion to support the stop of a vehicle the officer observes stopped on the wrong side of the road at a fresh hit-and-run accident scene, which the officer knows contains potentially incriminating evidence relevant to the hit-and-run accident?

III. When an initial, non-custodial, encounter between an officer and a driver is not recorded, is the driver entitled to suppression of evidence from that encounter or to an adverse-inference instruction if the recording is "strongly urged" by the officer's police department?

ANALYSIS

I.

The DWI court ruled that the implied consent court's determination regarding the legality of the stop had no collateral estoppel effect in the criminal proceedings because the parties were not the same or in privity with one another. This question is a pure question of law, which we review de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639 (Minn.1984).

Collateral estoppel is appropriate where: (1) the issue is identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. Willems v. Commissioner of Pub. Safety, 333 N.W.2d 619, 621 (Minn.1983). The only elements at issue here are whether the State of Minnesota is in privity with the Commissioner of Public Safety, and whether the State of Minnesota was given a full and fair opportunity to be heard in the implied consent proceeding.

Privity

Because there is no prevailing definition of privity that is applied automatically, the distinctive facts of each case must be carefully examined. Margo-Kraft Distribs., Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47 (1972). Non-parties may be deemed to be in privity if they are connected with the action to the extent that they are "affected by the judgment with reference to interests involved in the action as if they were parties." Id. Parties in privity with those involved in the earlier action include those whose "interests are represented by a party to the action," Denzer v. Frisch, 430 N.W.2d 471, 473 (Minn.App.1988) (citing Margo-Kraft, 294 Minn. at 278,200 N.W.2d at 47-48), sufficiently enough so that "the application of collateral estoppel is not inequitable." Reil v. Benjamin, 584 N.W.2d 442, 445 (Minn.App.1998),review denied (Minn. Nov. 17, 1998) (citing Brunsoman v. Seltz, 414 N.W.2d 547, 550 (Minn.App.1987),review denied (Minn. Jan. 15, 1988)).

In this case, a city attorney represented the State of Minnesota in the criminal DWI prosecution. In the implied consent hearing, the attorney general represented the Commissioner of Public Safety. Sixteen-years ago, in State v. Juarez, we determined, in a similar context, that the State of Minnesota was not in privity with the Commissioner of Public Safety. State v. Juarez, 345 N.W.2d 801, 803 (Minn.App. 1984), review denied (Minn. July 16, 1984). Although Victorsen suggests that Juarez is fact-based and can be distinguished, the facts are not materially different. Accordingly, the continuing vitality of Juarez is placed squarely before this court.

Our courts have long held that the implied consent statute is not criminal in nature. State v. Nelson, 608 N.W.2d 913, 915 (Minn.App.2000), review denied (Minn. June 27, 2000). In Juarez, we extended that general principle in determining that the parties who prosecute DWIs (city and county attorneys) were not "in privity" with those who litigate implied consent matters (the attorney general's office). 345 N.W.2d at 803 (quoting State, Dep't of Pub. Safety v. Mulvihill, 303 Minn. 361, 368, 227 N.W.2d 813, 817-18 (1975)).

But the lack of privity is not established merely by demonstrating that implied consent proceedings are civil in nature. In the years since the decision in Juarez, the legal landscape from which...