[653]*653OPINION
MEYER, Justice.
Following his arrest for boating while impaired, appellant Ronald Joseph Lem-mer challenged the administrative revocation of his driver’s license as permitted under Minnesota’s implied consent law. After an implied consent hearing, the district court concluded that the deputy sheriff did not have a particularized and objective basis for stopping Lemmer and rescinded the revocation of Lemmer’s license. At the subsequent driving while intoxicated (DWI) criminal prosecution, Lemmer asserted that the state was collaterally estopped from relitigating the validity of the stop and argued that Minn. Stat. § 169A.53, subd. 3(g) (2006), which limits the applicability of collateral estop-pel between implied consent proceedings and criminal DWI prosecutions, is an unconstitutional violation of the separation of powers doctrine. The district court concluded that section 169A.53, subd. 3(g), is unconstitutional and dismissed the criminal charges against Lemmer. On appeal, the court of appeals concluded that section 169A.53, subd. 3(g), does not violate the separation of powers doctrine and reversed and remanded for trial. We affirm the court of appeals, but on different grounds.
On June 4, 2005, a Scott County Deputy Sheriff was investigating a DWI suspect who had left the scene of a traffic accident and fled to Lemmer’s house. The suspect requested use of Lemmer’s boat, and when Lemmer declined to allow the boat’s use, the suspect obtained control of Lemmer’s boat. Lemmer boarded the boat to protect his property, and with Lemmer on board, the suspect used Lemmer’s boat to evade the authorities. Eventually, the suspect docked and left the boat, at which time he was quickly apprehended by the authorities. Meanwhile, Lemmer, having regained control of the boat, proceeded across the lake to his home. Lemmer was followed by a Scott County Deputy Sheriff, who stopped Lemmer and boarded his boat. After noticing evidence of intoxication, the deputy performed field sobriety tests and arrested Lemmer for boating while under the influence of alcohol.1
After his arrest, Lemmer was transported to the Scott County Jail where he consented to taking an Intoxilyzer 500 test, which indicated that Lemmer had an alcohol concentration of .12. Based on the test results, Lemmer’s driver’s license was revoked under the implied consent law. This was a civil revocation. Because Lem-mer’s alcohol concentration was over .10 and Lemmer had a previous impaired driving incident in 2000, Lemmer was charged with DWI in the third degree — alcohol concentration over .10; and DWI in the third degree — prior impaired driving incident within ten years, in violation of Minn. Stat. § 169A.20, subd. 1(1), (5) (2006), and Minn.Stat. § 169A.26 (2006).
Lemmer had an implied consent hearing on August 1, 2005, to challenge the license revocation. At the implied consent hearing, the Commissioner of Public Safety was represented by an assistant attorney general. Although Lemmer’s attorney sent the Scott County Attorney’s Office, which serves as the prosecuting attorney for DWI cases, a letter informing them of the hearing, the county did not attend. Based on findings made during the implied consent hearing, the district court concluded that there was no particularized and objective basis for pursuing Lemmer and [654]*654rescinded the revocation of Lemmer’s driving privileges.
An omnibus hearing regarding the criminal charges was held after the implied consent hearing. Lemmer brought a motion to dismiss the criminal charges, claiming that the state was estopped from relitigating issues decided in the implied consent hearing and arguing that Minn. Stat. § 169A.53, subd. 3(g), which legislatively eliminated the applicability of collateral estoppel to DWI prosecutions, is unconstitutional because it violates the separation of powers doctrine. At the omnibus hearing, the district court considered both Lemmer’s argument and an order in State v. Brunclik, No. T8-04-4705 (Minn.Dist.Ct. Nov. 8, 2005), that found Minn.Stat. § 169A.53, subd. 3(g), unconstitutional and enjoined “the State of Minnesota, and its various political subdivisions” from enforcing the statute.2 The district court took Brunclik into consideration and issued an order adopting the reasoning of Brunclik and dismissing the charges against Lemmer.
The state appealed, arguing that the district court erred when it concluded that MinmStat. § 169A.53, subd. 3(g), is unconstitutional. Lemmer filed a motion to strike the state’s arguments regarding the constitutionality of the statute, arguing that any attacks on the constitutionality of Minn.Stat. § 169A.53, subd. 3(g), constituted an impermissible collateral attack on the injunction issued in Brunclik. The court of appeals concluded that the state was challenging whether the district court’s order was properly supported by the Brunclik decision, that the injunction was included by reference, and that the issue was properly before the court. State v. Lemmer, 716 N.W.2d 657, 661 (Minn. App.2006). The court of appeals, concluding that MinmStat. § 169A.53, subd. 3(g), is constitutional, denied Lemmer’s motion to strike, reversed the decision of the district court, and remanded the case for trial.
I.
In Minnesota, an arrest for DWI potentially results in two types of penalties in two separate proceedings, a civil proceeding (implied consent proceeding) under the implied consent law, Minn.Stat. §§ 169A.50-169A.53 (2006), which involves the revocation of the defendant’s driver’s license, and a criminal proceeding for DWI (DWI prosecution) under Minn.Stat. §§ 169A.20-169A.37 (2006), which involves criminal punishment.
Under the implied consent law, any individual “who drives, operates, or is in physical control of a motor vehicle within this state or on any boundary water of this state consents * * * to a chemical test of that person’s blood, breath or urine for the purpose of determining the presence of alcohol.” Minn.Stat. § 169A.51, subd. 1(a) (2006). If the individual refuses to take the chemical test or fails the test, the Commissioner of Public Safety may revoke the individual’s license or permit to drive. MinmStat. § 169A.52, subds. 3-4 (2006).3 This revocation occurs prior to the implied consent hearing. Once an individual’s license has been revoked, he or she may [655]*655request judicial review of that revocation.4 Minn.Stat. § 169A.53 (2006).5 The implied consent hearing occurs before a district court judge, and the parties before the court are the Commissioner of Public Safety, represented by the attorney general or the prosecuting attorney for the jurisdiction involved, and the defendant. See Minn.Stat. § 169A.53, subd. 3(a). The proceeding is governed by the Minnesota Rules of Civil Procedure, Minn.Stat. § 169A.53, subd. 2(d), and the scope of the hearing is limited to ten issues enumerated in section 169A.53, subd. 3(b).
In the criminal proceeding, the parties before the court are the state, represented by the attorney in the jurisdiction in which the impaired driving offense occurred, and the defendant. See Minn.Stat. § 169A.43, subd. 2 (2006). In this case, the prosecuting attorney was the Scott County Attorney, whose authority to prosecute impaired driving offenses arises from Minn.Stat. § 388.051 (2006). Because the offense is a criminal matter, the Minnesota Rules of Criminal Procedure apply, the defendant is afforded the protections due to him by both the federal and state constitutions, and the state is held to a higher burden of proof.
Issues addressed in implied consent proceedings are sometimes identical to issues addressed in DWI prosecutions. Compare Minn.Stat. § 169A.20, subd. 1 (2006) (outlining the DWI elements that include operating or being in physical control of any motor vehicle, being under the influence of aleohol, and having an alcohol concentration of 0.08 or more), with Minn.Stat. § 169A.52, subd. 4 (providing for license revocation where an individual is operating or in physical control of a motor vehicle, and test results show an alcohol concentration of 0.08 or more). In 2001, the court of appeals held that collateral estoppel could be asserted in a criminal prosecution if the identical issue had been litigated in an implied consent hearing. State v. Victor-sen, 627 N.W.2d 655 (Minn.App.2001). The Victorsen court determined that privity existed between the Commissioner of Public Safety in the implied consent proceeding and the state in the DWI prosecution because the statutory changes that had increased the potential criminal penalties on the basis of civil license revocation had made the relationship between the state and the commissioner “symbiotic” and the differing interests of the parties had become a “fictional construct.” Id. at 661-63. After concluding that the parties were in privity, the court then held that if the prosecuting attorney for the criminal matter was given notice of an implied consent hearing and the attorney failed to attend, the state would be estopped from relitigating any issue decided against it at the implied consent hearing. Id. at 664. During the next legislative session, the legislature enacted Minn.Stat. § 169A.53, subd. 3(g), abrogating Victorsen. Act of Apr. 4, 2002, ch. 314, § 1, 2002 Minn. Laws 509, 510-11. Under section 169A.53, subd. 3(g), the implied consent hearing does “not [656]*656give rise to an estoppel on any issues arising from the samé set of circumstances in any criminal prosecution.” The constitutionality of this legislative amendment is the basis for Lemmer’s appeal.
II.
Before we reach the constitutionality of Minn.Stat. § 169A.53, subd. 3(g), we must first address whether the state had standing to appeal the decision of the district court. Lemmer asserts that the state’s appeal constitutes an impermissible collateral attack on the Brundik order enjoining the state from enforcing Minn.Stat. § 169A.53, subd. 3(g). Lemmer contends parties may not collaterally attack appeal-able orders for any reason other than lack of jurisdiction. The state counters that Lemmer has not preserved this issue for appeal because Lemmer only challenged the constitutionality of Minn.Stat. § 169A.53, subd. 3(g), and enforcement of the Brunlick injunction was never an issue before the district court.
On appeal, we will usually not decide issues that have not been first addressed by the district court and are raised for the first time on appeal, even if the issues involve constitutional questions regarding criminal procedure. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). Lemmer’s motion to dismiss his criminal charges addressed only the constitutionality of Minn.Stat. § 169A.53, subd. 3(g). The Brundik order was filed on November 8, 2005. In that order, the district court enjoined “the State of Minnesota, and its various political subdivisions * * * from enforcing or attempting to enforce the provisions of Minnesota Statute § 169A.53, subd. 3(g).” Lemmer’s omnibus hearing was nine days later on November 17. Although it is evident that the district court was aware of the Brundik decision, the record does not indicate that Lemmer sought to enforce the Brundik injunction.
In fact, the only reference to the Brunc-lik decision was the court’s statement that it “was aware that [the Brunclik court] struck down the applicable statute as unconstitutional and has enjoined it[s] enforcement. * * * [T]he Court took the matter under advisement.” Lemmer was given an opportunity to make an additional record on the matter, at which point he could have argued that the Scott County Attorney was enjoined from attempting to enforce Minn.Stat. § 169A.53, subd. 3(g). However, the record mentions only pretrial alcohol testing and contains no mention of enforcing the Brunclik injunction. Based on the record before us, we conclude that Lemmer only challenged the constitutionality of Minn.Stat. § 169A.53, subd. 3(g). Because Lemmer did not seek to enforce the Brunclik injunction at the district court level, we decline to address the issue now.
III.
We now turn to the question of whether Minn.Stat. § 169A.53, subd. 3(g), is an unconstitutional violation of the separation of powers doctrine. The Minnesota constitution separates the government “into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.” Minn. Const, art. Ill, § 1. Respect for the coequal branches of government “requires the court to exercise great restraint before striking down a statute as unconstitutional, particularly when it involves a determination of what is a legislative and what is a judicial function.” State v. Willis, 332 N.W.2d 180, 184 (Minn.1983). In the sepa[657]*657ration of powers context, a statute is constitutional when it “in no way interferes with the judiciary’s function of ascertaining facts and applying the law to the facts established.” Id.
Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional is exercised with extreme caution and only when absolutely necessary. In re Haggerty, 448 N.W.2d 863, 364 (Minn.1989). We review the constitutionality of a statute de novo. State v. Losh, 121 N.W.2d 886, 891 (Minn.2006). The party challenging a statute bears the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution. In re Haggerty, 448 N.W.2d at 364.
Lemmer argues that Minn.Stat. § 169A.53, subd. 3(g), is unconstitutional because the legislature regulated a procedural matter and the power to regulate procedural matters belongs to the judicial branch. Lemmer contends that the court of appeals erred when it determined that collateral estoppel is a substantive issue based on the “outcome determinative” analysis utilized by federal courts in diversity jurisdiction cases. Lemmer contends that procedural issues are frequently outcome determinative and the substantive impact on the litigation’s outcome does not change the procedural nature of collateral estoppel.
The state asserts that collateral estoppel is a common law doctrine and as such the legislature has the authority to modify common law. In the alternative, the state argues that collateral estoppel is a substantive rule and therefore may be modified by the legislature without violating the separation of powers doctrine.
We first reject the state’s argument that only the legislature may modify any aspect of common law. It is an accepted principle that this court may modify common law. Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 233 (Minn.1998). Because both the judicial and legislative branches may modify common law, the important question becomes who has the authority to modify common law in this situation. When determining whether a statute impermissibly infringes on a judicial function, we examine the nature of the statute. The judicial branch governs procedural matters, while the creation of substantive law is a legislative function. State v. Johnson, 514 N.W.2d 551, 554 (Minn.1994).
In State v. Johnson, we defined what is a substantive rule and what is a procedural rule. A rule is procedural “ ‘when it neither creates a new cause of action nor deprives defendant of any defense on the merits’ ” but merely regulates how guilt or innocence is determined. Id. at 554-55 (internal quotation marks omitted); see State v. Wingo, 266 N.W.2d 508, 513 (Minn.1978). Consistent with this definition, we have concluded that evidentiary matters and matters of trial and appellate procedure are procedural rules governed by the judicial branch. State v. Lindsey, 632 N.W.2d 652, 658-59 (Minn.2001) (concluding that a statute barring minors from criminal trials “has nothing to do with defining crimes or prescribing punishments”). Although legislative enactments have addressed procedural issues, we have permitted legislative interference with procedural matters only as a matter of comity. See Losh, 721 N.W.2d at 892. In contrast, substantive rules are those that create, define, and regulate rights, declare “what acts are crimes[,] and prescribe punishment for their violation[s].” Johnson, 514 N.W.2d at 554 (internal quotation marks omitted). We have also recognized that in some instances a rule may be both procedural and substantive in nature. Id. at 555 [658]*658(explaining that the statutes of limitations were “procedural in that they regulate when a party may file a lawsuit and are substantive in that they are outcome determinative”).
Collateral estoppel “precludes parties to an action from relitigating in subsequent actions issues that were determined in the prior action.” In re Village of Byron, 255 N.W.2d 226, 228 (Minn.1977). In other words, collateral estoppel stands for the principle of issue preclusion. Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn.2004); Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn.1978). It does not stand for the principle of claim preclusion.
Because collateral estoppel bars only the relitigation of certain issues, we conclude that collateral estoppel is not substantive in function. Nothing in the application of collateral estoppel creates, defines, or regulates rights, defines a crime, or prescribes punishment. Instead, collateral estoppel functions like an eviden-tiary ruling. Where collateral estoppel is applied, the party is simply precluded from presenting evidence that would result in the relitigation of a previously litigated issue. Since collateral estoppel only prevents parties from presenting evidence about an issue that has been previously litigated, collateral estoppel does not necessarily bar a case from moving forward.
For instance, in this case, evidence of the police stop was suppressed at Lem-mer’s implied consent proceeding. In the subsequent DWI prosecution, Lemmer brought a motion to suppress evidence of the police stop, arguing that the state was estopped from relitigating the issue of the initial stop. Because the only evidence of Lemmer’s intoxication flowed from that stop, the natural consequence of applying collateral estoppel to this case would be that the case would be dismissed. But, despite the bar on relitigating this issue, if the state had sufficient evidence of intoxication unrelated to the stop, the state would have been able to proceed in its claim against Lemmer.
Additionally, we reject any contention that collateral estoppel is both a procedural and substantive rule. Although collateral estoppel bars the state’s claim entirely in this case, making it “outcome determinative” in this instance, collateral estoppel is not always outcome determinative. Unlike other doctrines that involve both procedural and substantive rules, collateral estoppel does not consistently contain a substantive element. When discussing the possibility of rules containing both a substantive and procedural element, we note that the statute of limitations is both procedural and substantive because as a procedural rule it regulates when a claim may be brought but as a substantive rule it determines outcomes because when the statute of limitations has tolled the claim can no longer be brought. Johnson, 514 N.W.2d at 555. We believe that a key consideration in determining that the statute of limitations is substantive is that the statute of limitations will always bar claims if the statute has tolled. In contrast, the application of collateral estoppel will not consistently preclude litigation of the claim because collateral estoppel only prevents the relitigation of issues, leaving open the possibility that a claim could still proceed even absent the ability to address the es-topped issue. Therefore, to the extent that the application of collateral estopppel has barred the state from prosecuting defendants in criminal proceedings, such a bar is only an incidental and indirect effect of its application.
IV.
Because we have concluded that collateral estoppel is a procedural rule gov[659]*659erned by this court, we must now determine, as applied to the facts of this case, whether collateral estoppel prevents the litigation of an issue in a DWI prosecution that was previously litigated in an implied consent proceeding. Whether collateral estoppel precludes litigation of an issue is a mixed question of law and fact that is reviewed de novo. Hauschildt, 686 N.W.2d at 837.
Collateral estoppel may be applied when:
(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the es-topped 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. Comm’r of Pub. Safety, 333 N.W.2d 619, 621 (Minn.1983) (quoting Victory Highway Village, Inc. v. Weaver, 480 F.Supp. 71, 74 (D.Minn.1979)). We do not rigidly apply collateral estoppel, and we will not apply collateral estoppel if its application would work an injustice on the party to be estopped. See Hauschildt, 686 N.W.2d at 837; Johnson v. Consol. Freightways, Inc., 420 N.W.2d 608, 613-14 (Minn.1988).
In applying collateral estoppel in this case, we will examine all four factors.
A.Identity of Issues
In this case neither party disputes that factor one, identity of issues, is met. At the implied consent proceeding the district court found that the deputy sheriff had no particularized basis to stop Lemmer. Because the stop was illegal, all of the evidence obtained from the stop, including the breath test that established that Lem-mer was intoxicated, was suppressed as a fruit of that illegal seizure. In the DWI prosecution, the state may only prosecute Lemmer if it is able to introduce the evidence of his intoxication, which was obtained as a result of the wrongful stop, putting the legality of the stop at issue. Therefore, we conclude that the issue decided in the implied consent proceeding is identical to the one to be decided in the DWI prosecution.
B. Final Judgment on Merits
Factor two, that there was a final judgment on the merits, is also met. A judicial hearing was held under Minn.Stat. § 169A.53 to review the revocation of Lemmer’s license. At that hearing, the district court concluded that the evidence against Lemmer should be suppressed and rescinded the commissioner’s revocation of Lemmer’s driver’s license. The Commissioner of Public Safety had a right to appeal this ruling under Minn.Stat. § 169A.53, subd. 3(f) but did not exercise that right. Because the Commissioner of Public Safety failed to exercise its right of appeal, the district court’s ruling is a final judgment on the merits. See Restatement (Second) of Judgments § 13, cmt. b (1982) (“[A] judgment will ordinarily be considered final in respect to a claim * ⅞ * if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court * * *.”).
C. The Estopped Party Is in Privity with the Party to the Prior Adjudication
There is significant disagreement over factor three, whether the estopped party — • the state — was a party or in privity with a party to the prior adjudication — the Commissioner of Public Safety. Lemmer argues that we need not determine whether the State of Minnesota, as represented by the Scott County Attorney, and the Com[660]*660missioner of Public Safety are in privity because the two entities are actually the same party — the State of Minnesota. The state contends that it was not in privity with the commissioner because it had no control over the litigation and had no authority to seek appellate review of the implied consent determination. The state also emphasizes that commonality of interest alone is not sufficient to find privity and suggests that the differing functions of the Commissioner of Public Safety and the state weigh against finding privity. We will address both parties’ arguments in turn.
First, we reject Lemmer’s argument that the state and the Commissioner of Public Safety are the same party. In State, Department of Public Safety v. House, we concluded that a prosecuting attorney, who represented the state in the criminal DWI prosecution, did not have the authority to execute a plea bargain dismissing the subsequent implied consent proceeding, which was brought by the Commissioner of Public Safety. 291 Minn. 424, 425-26, 192 N.W.2d 93, 94-95 (1971). House examined the distinctions between the two proceedings, noting that the Commissioner of Public Safety was the individual party to the implied consent action, based upon the commissioner’s statutory duties. 291 Minn, at 426, 192 N.W.2d at 95. In contrast, the county attorney acts as the attorney for the state in all criminal matters within the county and has no authority to act in civil cases, such as implied consent proceedings, in which the state is a party. Id. at 425, 192 N.W.2d at 95. These statutory distinctions remain today. See Minn.Stat. § 8.06 (2006) (granting the authority to act for state officers, such as the Commissioner of Public Safety, to the Attorney General); Minn.Stat. § 169A.43, subd. 2 (2006) (establishing that prosecution of DWI offenses is the responsibility of the attorney within the jurisdiction where the offense occurred); Minn.Stat. § 388.051 (2006)6 (outlining the duties of the county attorney, which include prosecuting felonies, and to the extent prescribed by law, gross misdemeanors, misdemeanors, and petty misdemeanors). After examining the implied consent proceeding and the criminal DWI prosecution, we stated that the two proceedings were “related only to the extent that they both generally grow out of the same set of facts” and noted that “the parties to the proceedings are not the same.” House, 291 Minn, at 425, 192 N.W.2d at 94-95. We conclude that the reasoning of House remains sound and, therefore, conclude that the state and the commissioner are not the same party.
Because we reject Lemmer’s argument that the state and the Commissioner of Public Safety are the same party, we must now consider whether the Commissioner of Public Safety and the State of Minnesota are in privity. To determine whether privity exists, we carefully examine the circumstances of each case. Margo-Kraft Distribs., Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47 (1972). Commonality of interests alone is insufficient to establish privity. Pirrotta v. Indep. Sch. Dist. No. 347, 396 N.W.2d 20, 22 (Minn.1986); see also State v. Miller, 194 W.Va. 3, 459 S.E.2d 114, 124 (1995) (stating that privity is not established merely because parties are interested in the same question or [661]*661proving the same facts); State v. Fritz, 204 Conn. 156, 527 A.2d 1157, 1165 (1987) (same), overruled on other grounds by State v. Crawford, 257 Conn. 769, 778 A.2d 947 (2001). Rather, when determining whether privity exists, the proper focus is on whether the legal rights of the party to be estopped were adequately represented by the party to the first litigation. Fritz, 527 A.2d at 1166; see also Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 403, 60 S.Ct. 907, 84 L.Ed. 1263 (1940) (noting that officers of the same government may be in privity, but that the “crucial point [in determining whether privity exists] is whether or not in the earlier litigation the representative of the United States had authority to represent its interests in a final adjudication of the issue in controversy”).
This court bases its privity determination on whether the party to be es-topped (1) had a controlling participation in the first action, (2) had an active self-interest in the previous litigation, County of Ramsey v. Stevens, 283 N.W.2d 918, 924 (Minn.1979), or (3) had a right to appeal from a prior judgment, Kaiser v. N. States Power Co., 353 N.W.2d 899, 904 (Minn.1984). A party to be estopped has control of the first action if it has a choice about legal theories and proofs to be advanced on behalf of the party to the action and control over the ability to obtain review of the judgment. Restatement (Second) of Judgments § 39, cmt. c; see Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 864 n. 3 (5th Cir.1985). Although the general rule is that litigation by one state agency is binding on other agencies of the same government, “exceptions may be warranted if there are important differences in the authority of the respective agencies.” 18A Charles Alan Wright, et al., Federal Practice and Procedure § 4458, at 560 (2d ed.2002). Collateral estoppel will not apply between the two government agencies
[i]f the second action involves an agency or official whose functions and responsibilities are so distinct from those of the agency or official in the first action that applying preclusion would interfere with the proper allocation of authority between them.
Restatement (Second) of Judgments § 36, cmt. f.
We conclude that in this case the differing functions and responsibilities of the Commissioner of Public Safety and the State of Minnesota are sufficiently distinct to support the conclusion that the parties are not in privity. It is undeniable that at one level there is a connection between the State of Minnesota and the Commissioner of Public Safety; the latter directs an agency of the former. But we do not believe that alone is determinative. See Huelsman v. Kan. Dep’t of Revenue, 267 Kan. 456, 980 P.2d 1022, 1025 (1999) (noting that the fact that a city exists by virtue of laws adopted by the state is not determinative in deciding whether a city prosecutor and state administrative agency are in privity). The Department of Public Safety, which is headed by the commissioner, was established for the purpose of regulating drivers’ licensing and safety responsibility. See Minn.Stat. § 171.015 (2006). That purpose is separate and distinct from the prosecution of crimes, which is the function that the state is serving in the DWI prosecution. The state specifically delegates the duties of prosecuting crimes to the offices of county attorneys and city attorneys. See Minn.Stat. § 388.051 (outlining the duties of the county attorney); MinmStat. § 487.25, subd. 10 (2004) (outlining the authority of attorneys of municipalities and statutory or home rule cities to prosecute certain crimes) (current version at Minn.Stat. § 484.87, [662]*662subds. 2-3 (2006)); Minn.Stat. § 488A.10, subd. 11 (2004) (outlining the authority of attorneys of municipalities and statutory or home rule cities within Hennepin County to prosecute certain crimes) (current version at Minn.Stat. § 484.87, subds. 2-3 (2006)); Minn.Stat. § 488A.27, subd. 11 (outlining the authority of attorneys of municipalities and statutory or home rule cities within Ramsey County to prosecute certain crimes) (current version at Minn. Stat. § 484.87, subds. 2-3 (2006)).
With respect to the prosecution of crimes, the state acts almost exclusively through county attorneys or city attorneys. The attorney general plays only a limited role in criminal prosecutions and then only at the request of the county attorney or the governor. Minn.Stat. § 8.01 (2006) (“Upon request of the county attorney, the attorney general shall appear in court in such criminal cases * * ⅜. Whenever the governor shall so request, in writing, the attorney general shall prosecute any person charged with an indictable offense, and in all such cases may attend upon the grand jury and exercise powers of a county attorney.”). Therefore, although the Commissioner of Public Safety may have been an agent of the state in the license revocation proceeding, the commissioner’s role and responsibilities are so distinct from the responsibilities of the state as represented by the county attorney that applying collateral estoppel would “interfere with the proper allocation of authority between” the commissioner and the state. Restatement (Second) of Judgments § 36, cmt. f; see Cook v. State, 921 So.2d 631, 643 — 44 (Fla.Dist.Ct.App.2005) (concluding that the different responsibilities of the Florida Department of Education, Education Practices Commission, whose purpose is to discipline educators, and the state, as represented by the state attorneys for the purpose of prosecuting crimes, supported a finding that the parties were not in privity).
Moreover, the different functions of an implied consent proceeding and a DWI prosecution underscore the state’s inability to establish controlling participation in the implied consent proceeding. In this case, the Commissioner of Public Safety and the state both have an interest in establishing that Lemmer was intoxicated. But this common interest is insufficient to establish controlling participation. See Pirrotta, 396 N.W.2d at 22 (holding that even though the school board’s interests were similar to those of the appellant teacher where the school board acted on its own behalf without accountability to the teacher, there was no privity and collateral es-toppel does not apply). The state has no authority over decisions made by the commissioner in implied consent proceedings and vice versa. See State, Dep’t of Pub. Safety v. Mulvihill, 303 Minn. 361, 368, 227 N.W.2d 813, 818 (1975) (noting that license revocation is imposed by the commissioner “regardless of the outcome of the criminal proceeding”); House, 291 Minn, at 425-26, 192 N.W.2d at 95 (concluding that the county attorney has no authority to litigate implied consent proceedings without receiving permission from the attorney general). Because the state had no input into litigation strategy, the state cannot be said to have exercised controlling participation in the litigation. See Miller, 459 S.E.2d at 125 (concluding that privity did not exist between the prosecuting attorney and government agency because the prosecuting attorney’s interest in having guilt or innocence determined is not met in an administrative proceeding where the prosecuting attorney has “no control over the timing, substance, or litigation of charges”); Fritz, 527 A.2d at 1166-67 (concluding that the department of consumer protection, which had the authority to investigate licensing complaints
[663]*663and could bring administrative proceedings to deal with license violations, and the division of criminal justice, which governed the state’s attorneys who investigated and prosecuted criminal matters, were not in privity because “the state’s interest in having guilt or innocence determined is not adequately served in an administrative proceeding because * * * the state’s attorney has no control over the timing, substance or litigation of charges lodged against the defendant by the department of consumer protection”).7 The lack of controlling participation by the state, combined with the state’s lack of interest in the outcome of the hearing and the state’s inability to appeal an adverse ruling against the commissioner in an implied consent proceeding, supports our conclusion that the differing functions and responsibilities of the Commissioner of Public Safety and the State of Minnesota weigh against the existence of privity. We conclude that privity does not exist between the Commissioner of Public Safety and the state in these circumstances.
D. Full and Fair Opportunity to Be Heard
In this case, Lemmer’s trial counsel informed the Scott County Attorney in writing of Lemmer’s implied consent hearing. The state, apparently relying on Minn. Stat. § 169A.53, subd. 3(g), did not attend the implied consent hearing.
Because the state was relying in good faith on section 169A.53, subd. 3(g), it had no incentive to participate in the implied consent proceeding. Moreover, given the statutory limitations on the state’s role in implied consent proceedings, it is unclear to us the extent to which the state would have been allowed to participate. Therefore, we conclude that the state did not have a full and fair opportunity to be heard on the litigated issue. See In re Miller, 153 B.R. 269, 274 (Bankr.D.Minn. 1993) (concluding that a full and fair opportunity to be heard existed where the party had an opportunity and incentive to litigate the issue and failed to do so); Reynolds v. State, 4 S.W.3d 13, 16-18 (Tex.Crim.App.1999) (concluding that the Department of Public Safety and the county district attorney were not the same party for collateral estoppel purposes, particularly where the district attorney had no opportunity to litigate the issue decided in the administrative proceeding).
In sum, we conclude that collateral es-toppel is inapplicable to issues litigated in DWI prosecutions that were previously litigated in implied consent proceedings because the Commissioner of Public Safety and the state are not in privity, and in this instance the state did not have a full and fair opportunity to be heard.
V.
We will only exercise our power to declare a statute unconstitutional when absolutely necessary and only with extreme caution. In re Haggerty, 448 N.W.2d at 364. When a statute encroaches upon a judicial function, this court may permit the statute to stand as a matter of comity so long as the statute does not conflict with the court’s inherent authority to make the final decision. State v. Jim Lupient Oldsmobile Co., 509 N.W.2d 361, 363 (Minn.1993); see also Sharood v. Hatfield, 296 Minn. 416, 422-25, 210 N.W.2d [664]*664275, 279-80 (1973). In this case, because we conclude that the elements of collateral estoppel have not been satisfied and that public policy weighs against the application of collateral estoppel, we believe that Minn.Stat. § 169A.53, subd. 3(g), should be allowed to stand as a matter of comity.
Affirmed.
Dissenting, HANSON, PAGE, and ANDERSON, PAUL H., JJ.