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Plocher v. Commissioner of Public Safety

June 29, 2004

MARK ALLAN PLOCHER, PETITIONER, APPELLANT,
v.
COMMISSIONER OF PUBLIC SAFETY, RESPONDENT.



Carver County District Court. File No. CV03633.

Considered and decided by Peterson, Presiding Judge; Anderson, Judge; and Crippen, Judge.*fn1

SYLLABUS BY THE COURT

1. Minn R. Civ. P. Rule 6.01 does not require that two days be added to the three-day mailing period in Minn. Stat. § 169A.52, subd. 6 (2002), when the three-day period includes a Saturday and a Sunday.

2. Because Minn. Stat. § 169A.52, subd. 6 (2002), provides that a mailed notice and order of driver's-license revocation is deemed received three days after mailing, stating in a mailed notice and order that a petition for judicial review must be filed "within 30 days from receiving a notice and order of revocation," rather than within 33 days after the date of mailing, actively misleads the driver about the period during which a petition must be filed, and, therefore, denies the driver due process of law.

The opinion of the court was delivered by: Peterson, Judge

Reversed and remanded

OPINION

This appeal is from a district court order dismissing appellant Mark Allan Plocher's petition for judicial review of the revocation of Plocher's driver's license. The district court determined that it did not have subject-matter jurisdiction because Plocher's petition was untimely. Plocher argues that (1) the district court incorrectly applied Minn. R. Civ. P. 6.01 when it determined that his petition was untimely; and (2) he was denied due process of law because the notice of revocation that he received from respondent Commissioner of Public Safety misled him about his right to seek judicial review of the revocation. Because the notice of revocation incorrectly described the period during which Plocher could seek judicial review, we conclude that Plocher was denied due process of law, and we reverse and remand.

FACTS

Respondent Commissioner of Public Safety revoked appellant Mark Allan Plocher's driver's license after police stopped Plocher for a traffic violation and a urine sample tested positive for controlled substances. The commissioner mailed Plocher a notice and order of revocation. Each page of the notice indicates that the mailing date was May 15, 2003. The notice also contains the following statement:

PETITION FOR JUDICIAL REVIEW

YOU HAVE THE RIGHT TO PETITION FOR A JUDICIAL REVIEW. PETITIONS MUST BE FILED IN WRITING AS OUTLINED IN MINNESOTA STATUTE, SECTION 169A.53, SUBDIVISION, 2, IN THE COUNTY IN WHICH THE INCIDENT OCCURRED AND WITHIN 30 DAYS FROM RECEIVING A NOTICE AND ORDER OF REVOCATION. IF YOU DO NOT PETITION FOR JUDICIAL REVIEW OF THE IMPLIED CONSENT REVOCATION EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES, YOU LOSE THE RIGHT TO JUDICIAL REVIEW OF THE IMPLIED CONSENT REVOCATION.

On June 18, 2003, Plocher served and filed a petition for judicial review of the license revocation. The commissioner moved to dismiss the petition, arguing that the district court lacked subject-matter jurisdiction because Plocher did not file the petition within 30 days after he received the notice of revocation, as required by Minn. Stat. § 169A.53, subd. 2(a) (2002).

Plocher submitted an affidavit in which he stated that he received the notice of revocation on May 20, 2003; his address is as stated on the notice; he picks up his mail every day; and there was no notice of the revocation from the state before May 20, 2003.

Following a hearing, the district court determined that under Minn. Stat. § 169A.52, subd. 6 (2002), a mailed notice of revocation is deemed received three days after mailing, and the third day after notice was mailed to Plocher was May 18, 2003. Based on this date, the district court determined that because Minn. Stat. § 169A.53, subd. 2(a), requires a petition for judicial review of a license revocation to be filed within 30 days following receipt of a notice and order of revocation, Plocher had until June 17, 2003, to serve and file his petition for review. The district court concluded that Plocher's petition was untimely because it was not served and filed until June 18, 2003. The district court did not determine when Plocher actually received the notice and order of revocation.

The district court rejected Plocher's argument that under Minn. R. Civ. P. 6.01, two days should be added to the three-day period in Minn. Stat. ยง 169A.52, subd. 6, because May 15, 2003, was a Thursday, and, therefore, the ...


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