15-CV-23-57

Filed in Ninth Judicial District Court

2/14/2023 3:08 PM
Clearwater County, MN

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF CLEARWATER NINTH JUDICIAL DISTRICT

Matthew John Grossell, Court File No._____________

Petitioner,

vs. PETITION FOR IMPLIED

CONSENT HEARING
Commissioner of Public Safety,

Respondent.
______________________________________________________________________________

PLEASE TAKE NOTICE that Petitioner requests a hearing pursuant to Minn. Stat.
§169A.53, Subd. 3 on the revocation of his driving privileges arising out of the following incident:
Full Name of Petitioner: Matthew John Grossell
Driver's License No: M-033-198-374-206
State of Issue: Minnesota
Date of Birth: 10/15/1965
Date of Incident: 2/11/2023
Location of Incident: Clearwater County, MN

Petitioner seeks rescission on the revocation based on a violation of the Fourth, Fifth, and
Fourteenth Amendments to the United States Constitution, Article 1, Sections Five, Six, Seven,
Eight and Ten of the Minnesota Constitution, and Minn. Stat. § 169A.51, et. seq., including, but not
specifically limited to the following:
1. Whether the peace officer under the Constitution of the United States and Minnesota
properly stopped the Petitioner.

2. Whether the peace officer had reasonable and probable grounds to believe the
Petitioner was driving, operating or in physical control of a motor vehicle while
under the influence of alcohol, or a controlled substance.

3. Whether the Petitioner was driving, operating or in physical control of a motor

vehicle while under the influence of alcohol, or a controlled substance.

4. Whether Petitioner was,

(i) Lawfully placed under arrest for a violation of Minn. Stat. § 169A.20, OR,

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Clearwater County, MN

(ii) Involved in a motor vehicle accident or collision resulting in property

damage, personal injury or death, OR,

(iii) Refused to take a screening test as provided by for Minn. Stat. § 169A.41,
OR,

(iv) The screening test was administered and recorded an alcohol concentration of
.08 or greater.

5. Whether at the time of the request for the test the peace officer informed the
Petitioner of his rights and the consequences of taking or refusing the test as required
by Minn. Stat. § 169A.51, Subd. 2.

6. Whether the Petitioner was administered a test and the test result indicated an alcohol
concentration of .08 or more, AND,

(i) Whether the testing method used was valid and reliable, AND,

(ii) Whether the test results were accurately evaluated.

(iii) Whether or not the breath testing machine conforms with Mn.R. 7502.0410
and Mn.R. 7502-0425.

(iv) Whether or not the State complied with Minn. Stat. § 169A.03, Subd. 11 and
Minn. Stat. § 634.16.

7. Whether or not the Respondent complied with the Minnesota Rules of Civil
Procedure and the Minnesota Rules of Evidence.

8. Whether or not Respondent complied with the mandates of McDonnell v.

Commissioner of Public Safety, 473 N.W.2d 848 (Minn. 1991); Friedman v.
Commissioner of Public Safety, 473 N.W.2d 828 (Minn. 1991); Campbell v.
Commissioner of Public Safety, (slip opinion 8/24/92 C0-92-540); Parsons v.
Commissioner of Public Safety, 488 N.W.2d 500 (Minn. Ct. App.); and Davis, et al.
v. Commissioner of Public Safety, Court of Appeals consolidated case decided
November 22, 1993.

9. Whether or not Minn. Stats. § 169A. 51, § 169A.52 and § 169A.53, as amended by
the Minnesota Legislature, violates the Fourth, Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and Article 1, Sections Five, Six,
Seven and Eight of the Minnesota Constitution.

10. Whether or not Minn. Stats. § 169A. 51, § 169A.52 and § 169A.53 violates the
Double Jeopardy clause of the Fifth Amendment to the United States Constitution
enforceable against states through the Fourteenth Amendment as well as Article 1,
Section 7 of the Minnesota Constitution.
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11. Whether Petitioner was prevented or denied the opportunity to obtain an additional
test contrary to Minn. Stat. §169A.51, Subd. 7(b).

12. Whether or not Minn. Stats. § 169A. 51, § 169A.52 and § 169A.53, as amended by
the Minnesota Legislature violates the Separation of Powers Doctrine-Rules of
Discovery which are uniquely a matter for the supervision by the Courts.

Petitioner objects strenuously on State and Federal constitutional grounds and under
Minnesota Rules of Civil Procedure-Discovery, and under the Petitioner's right to be
compelled from self incrimination, to the newly enacted requirements that Petitioner
must state facts in order to bring a petition and does so reserving the right to seek
rescission or other appropriate remedies for this violation. This statute is also made
subject to the constitutional objections made herein, including but not limited to the
fact that it violates State and Federal Due Process of Law and the State and Federal
right to petition for the redress of grievances, to have to plead in the negative and to
be required to plead facts not known to the Petitioner all when the government has
removed Petitioner's ability to discover the facts through civil discovery. See the
mandates of Heddan vs. Dirkswager, 336 N.W.2d 54 (Minn. 1983), Davis et al. vs.
Commissioner of Public Safety, 509 N.W.2d 380 (Minn.App. 1994), affirmed, 517
N.W.2d 901 (Minn. 1994), Howard vs. City of St. Louis Park,466 N.W.2d 761
(Minn.App. 1991).

Petitioner reserves the right to amend this petition prior to the hearing or during the
same to raise additional grounds and/or additional facts not known at the time of
filing based on the Minnesota Rules of Civil Procedure.

Without waiving the Petitioner's objections, pursuant to said statute, Petition

discloses that the Petitioner will call the witnesses listed in the police report and the
basis of their testimony included in the police report. In addition, the Petitioner
reserves the right to call expert witnesses, Elden Ukestad, Robert Mooney, and Gwen
Williams from the Minnesota Bureau of Criminal Apprehension and Thomas Burr,
from Minneapolis, to challenge the reliability and implementation of the DataMaster.

Please be further advised that Petitioner, hereby reserves the right to call any other
witness not specifically listed herein and to rebut any evidence presented by the
Respondent during its case in chief not disclosed by the Respondent or to address any
grounds for rescission because of no fault of Petitioner arose during the hearing due
to the fact that the police officers did not accurately or properly prepare a police
report so that statements of fact could be generated to specifically outline any claim.
13. Whether or not the DataMaster used comports with Minn. Stat. §169A.51, and
whether the testing method used was valid and reliable and whether the results were
accurately evaluated.

14. Whether the requirements for admissibility of evidence under §169A.51, et seq. were
followed and whether the test is admissible.
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Clearwater County, MN

15. Whether or not the failure to disclose this information violates the Petitioner’s rights
to due process and the confrontation clause of the United States and Minnesota
Constitution.

16. Whether or not Minn. Stat. § 169A.53 violates the Separation of Powers Doctrine.

17. Whether or not Minn. Stat. §169A.53 violates the Petitioner’s Due Process rights.

18. Declaring that Minnesota Implied Consent Statute §169A.51, et seq. is

unconstitutional because it violates due process of law as more fully outlined in
Dakota County District Court Case No. C6-04-007458, Patricia Agnes Fedziuk v.
Commissioner of Public Safety.

19. Whether or not the Commissioner is prohibited from introducing any evidence
concerning the reliability of Petitioner’s test based on a violation of Minnesota Rules
of Civil Procedure, Rule 35, et. seq.

20. Whether or not the test itself is reliable and that its administration in the particular
incident conforms to the procedures necessary to ensure reliability.

21. Pursuant to Minn. Stat. § 169A.53, Subd. 3(d)(4), the following witnesses may be
called to testify:
01. Matthew John Grossell, Petitioner
02. Thomas Burr, Forensic Scientist
The basis of their testimony is stated in this petition.

22. Pursuant to State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003), we assume the
State is going to call the arresting and testing officers to the stand as witnesses. If
they do not intent to do so, we request that the Attorney General must notify us so the
Petitioner may subpoena the same.
23. Whether or not the State has met their burden of proof in establishing an exception to
the warrant requirement to obtain a test of the Defendant’s breath pursuant to
Missouri v. McNeely, 133 S.Ct. 1552 (2013) and State v. Bernard, A13-1245.

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Clearwater County, MN

24. Whether the test refusal statute violates due process and the Doctrines of
Unconstitutional Conditions.

25. Declaring that the State violated the Defendant’s 4th and 14th Amendment to the
United States Constitution and Article 1, Section 10 of the Minnesota Constitution by
conducting a warrantless search of an individual’s blood, breath or urine in
contradiction to the United States Supreme Court case of Missouri v. McNeely, 133
S.Ct. 1552 (2013) and State v. Bernard, A13-1245.

Dated: February 14, 2023 ROGOSHESKE, ROGOSHESKE & ATKINS, PLLC

By: /S/ Alexander W. Rogosheske

Alexander W. Rogosheske
Attorney I.D. #394904
Attorneys for Petitioner
105 Hardman Court, Suite 110
South St. Paul, MN 55075
(651) 451-6411