dissenting.
I respectfully dissent. It is undisputed that the accident, the facts, and the trooper’s observations happened in Anoka County. The trooper gave respondent a notice of revocation which indicated that the court of jurisdiction was Hennepin County. Respondent, pursuant to the requirement that a driver wishing to contest a revocation must file a notice of judicial review, filed it in Hennepin County. No onus can be placed on a driver, as appellant’s brief suggests, to do independent investigation and attempt to verify the proper county before filing the required judicial notice of review.
Although implied consent is civil, not criminal, the burden still remains on the state to show all facts necessary for a proper revocation by a preponderance of the evidence. The Commissioner attempts to turn that burden on its head and argues that Minn.Stat. § 169.123, subd. 5c (1988) imposed on the driver the duty to file his petition for judicial review in the appropriate county, and since the driver, respondent here, filed his notice of review in Hennepin County where the state trooper had noted the matter for hearing, respondent is now somehow “precluded” from claiming that the matter was being heard in the wrong county. I simply reject the Commissioner’s argument. There is absolutely no showing in the record that respondent affirmatively shared in the state trooper’s mistake as to where the incident occurred.
The majority concedes that implied consent petitions for judicial review shall be filed in the county where the alleged offense occurred, and the hearing shall be in any county in the judicial district where the alleged offense occurred. See Minn.Stat. § 169.123, subd. 5(c) and subd. 6. But, the majority then goes on to state:
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.
I do not agree with the majority’s reasoning. It is true that Minn.Stat. § 169.123 does not contain the specific language which the majority states is not there, but, it is also true that the controlling statute does not give the Commissioner the power to set the matter for a hearing in any county in the State of Minnesota. The majority’s reasoning is close to an implied grant of power for the Commissioner to so do.
From a common sense standpoint, respondent is not the party that chose Henne-pin County for the hearing even though that is where he filed his petition for review. The initiating actor in an implied consent hearing is the law enforcement officer who hands the driver a notice of revocation with the county wherein it is to be heard marked thereon. • At trial the trooper conceded that the incident occurred in Ano-ka County, but that his notice of revocation to respondent said Hennepin.
The law is clear that a petition for judicial review must be filed in the county where the alleged offense occurred, and the hearing must be in any county in the judicial district where the alleged offense occurred. I cannot find any authority which permits the Commissioner to conduct a hearing in an improper county. The situs of the accident was Anoka County, and Anoka (10th) is not in the same judicial district as Hennepin County (4th). I find no waiver in the record of respondent’s *594right to have his hearing in the proper county.
The trial court stated at the hearing that, although he agreed the trooper could arrest in Anoka and take the driver to Henne-pin County for testing, that did not answer the question “of whether he could then note the matter for court in Hennepin County.” The trial court then went on to say:
And I’m unaware, frankly, of any case law directly to that point, at least in this area of the law. And I don’t think that jurisdiction is technical, I think it’s crucial.
After taking the matter under advisement, the trial court rescinded the revocation. I cannot find that the trial court was clearly erroneous in its decision, nor can I find any authority for the majority’s proposition that the burden of proof shifted to respondent driver to ascertain, on his own, what the proper county and judicial district were, and to make a motion for a change of venue to that county and judicial district.
I would affirm the trial court’s rescission of revocation.