Rosnow v. Commissioner of Public Safety

OPINION

EDWARD D. MULALLY, Judge.

Respondent’s driver’s license was revoked for a violation of the implied consent *592law. He petitioned for judicial review in Hennepin County. The trial court rescinded the revocation on the grounds that the action was properly venued in Anoka County and that the notice of revocation was in error. We reverse.

FACTS

On November 24, 1988, at approximately 2:04 a.m., State Trooper Mark Peterson was dispatched to a personal injury accident on “eastbound 694 at East River Road,” in the City of Fridley, County of Anoka. He arrived at 2:12 a.m. and found two vehicles which had been involved in the accident. Respondent was one of the drivers. The trooper observed signs of intoxication and arrested respondent for DWI. He was then taken to the Brooklyn Center Police Department, where Peterson read him the implied consent advisory. Respondent agreed to take an Intoxilyzer breath test. The test gave a reported alcohol concentration of .11.

The trooper gave respondent a notice of revocation which indicated “Henn” in the blank space next to “Court.” Respondent petitioned for judicial review in Hennepin County. When respondent cross-examined the trooper at the implied consent hearing, it became apparent that the accident occurred on the Anoka County side of the county line, although the trooper was not certain of it at the time of the arrest.

Respondent argued that he was given improper notification because the notice of revocation stated the proper court was Hennepin, and that was not proper jurisdiction. He contended that the revocation should be rescinded as a result. The Commissioner contended that the petition for judicial review did not raise the issue, and that in any event the proper remedy would not be rescission, but a new trial.

The trial court concluded that no stop occurred, the trooper had probable cause to believe respondent had been driving while under the influence, the arrest was lawful, respondent was properly advised of his rights, the test results indicated an alcohol concentration of .10 or more, the testing method was valid and reliable, the test results were accurately evaluated, and the trooper properly transported respondent to Hennepin County for testing. It also concluded that the action was properly venued in Anoka County, not Hennepin County, and the notice of revocation was in error. It held that respondent’s only remedy was rescission of the revocation. The Commissioner of Public Safety appeals.

ISSUE

Did the trial court properly rescind the revocation for improper venue?

ANALYSIS

The trial court rescinded the revocation because it concluded the action was properly venued in Anoka County, the notice of revocation was in error, and respondent’s only remedy was rescission of the revocation.

Venue is governed by statute. Claseman v. Feeney, 211 Minn. 266, 268, 300 N.W. 818, 819 (1941). The implied consent law provides that the petition for judicial review shall be filed in the county where the alleged offense occurred, Minn.Stat. § 169.123, subd. 5c (1988), and the hearing shall be in any county in the judicial district where the alleged offense occurred. Minn. Stat. § 169.123, subd. 6 (1988).

Venue in civil actions is not jurisdictional. Claseman, 211 Minn, at 268, 300 N.W. at 819. The implied consent law, Minn.Stat. § 169.123, which gives the Commissioner of Public Safety statewide authority to revoke driver’s licenses for violation of the implied consent law, contains no language which makes venue jurisdictional.

The remedy for improper venue is a change of venue. Minn.Stat. § 542.10 (1988). The objection may be waived. Id.; Albrecht v. Sell, 260 Minn. 566, 568, 110 N.W.2d 895, 896 (1961). Waiver may occur if a party seeks affirmative relief or acquiesces in the improper venue. Minn.Stat. § 542.10; Albrecht, 260 Minn, at 570, 110 N.W.2d at 899; In re Guardianship of Kowalke, 232 Minn. 292, 306-07, 46 N.W.2d 275, 284 (1950).

*593Even if respondent was entitled to rely upon the trooper’s incorrect designation of the county in filing his petition, respondent’s remedy was a change of venue. If the hearing in Anoka County would have occurred more than 60 days after the filing of the petition, the trial court could have stayed the balance of the revocation. Minn.Stat. § 169.123, subd. 5c. The trial court, which determined the issues on the merits in favor of the Commissioner, improperly rescinded the revocation.

DECISION

The order of the trial court rescinding the revocation is reversed.

Reversed.