DEFENDING MINNESOTA’S NEW FELONY DWI PENALTY

BY DAVID L. VALENTINI *

When I first started practicing in the area of DWI law, almost nobody went to jail, it wasn’t a crime to refuse a test, the prosecutor couldn’t comment at trial about the refusal, you could actually take a case to trial and win, there was no gross misdemeanor for a second offense, licenses weren’t immediately revoked, there was no such thing as Petition for Judicial Review, the breath test wasn’t conducted by a computer software program. Indeed, in 1976, Justice Todd, concurring specially in State v. Prideaux, 247 N.W.2d 385 (Minn.1976) advocated that

Considering the present demands upon law enforcement officials and the court, and also the societal interest in suspending the driving privileges of intoxicated driver, together with Minnesota’s leadership in acknowledging the medical problems involved in excessive consumption of alcoholic beverages, [a] proposal to decriminalize drunken driving should be considered by the legislature…[I]n this writer’s view…the drunken driving problem [should] be dealt with by the more relevant means--license revocation and treatment.

Instead, the Minnesota legislature has taken the opposite approach. For over 25 years it has passed legislation virtually every year intended to stiffen the DWI laws and punish offenders. If the legislature hasn’t toughened up the law in some respect, the Supreme Court, the Court of Appeals or the District Court have.

Defending DWI’s will continue to require much legal ingenuity. Litigating the pertinent issues will require that one learn as much as possible about how the applicable statutes work and what the Court of Appeals and Supreme Court have stated. These materials are not exhaustive. Instead, they are intended to be a springboard for delving deeper into this area of practice.

I. THE FELONY DWI PENALTY STATUTORY SCHEME

A. THE NEW FELONY LEVEL FIRST DEGREE DRIVING WHILE IMPAIRED

As of August 1, 2002, a felony penalty applies to a person who is driving while impaired in violation of Minn. Stat. § 169A.20 if the person commits the violation within ten years of the first of three or more qualified prior impaired driving incidents or has previously been convicted of a First Degree Driving While Impaired crime. Minn. Stat. § 169A.24, subd. 1.[1]

Aggravating factors are under Minn. Stat. § 169A.03, subd. 3, are not predicates of the new First Degree Driving While Impaired charge and the term does not appear in Minn. Stat. § 169A.24, subd. 1. Instead, only qualified prior impaired driving incidents are considered. Therefore, having an alcohol concentration of .20 or having a child under the age of 16 in the vehicle at the time of the offense if the child is more than 36 months younger than the offender have no effect on whether a case will be charged as a First Degree Driving While Impaired crime.

B. THE DRIVING WHILE IMPAIRED CRIME

Effective January 1, 2001, the existing DWI laws were recodified into Minnesota Statutes Chapter 169A. Under Minn. Stat. § 169A.20, subd. 1, there are seven different ways it is a crime to drive, operate or be in physical control of a motor vehicle:

(1) when the person is under the influence of alcohol;

(2) when the person is under the influence of a controlled substance;

(3) when the person is knowingly under the influence of a hazardous substance that affects the nervous system, brain or muscles of the person so as to substantially impair the person’s ability to drive or operate the motor vehicle;

(4) when the person is under the influence of a combination of any two or more of the elements named in clauses (1), (2) and (3);

(5) when the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating or being in physical control of the motor vehicle is .10 or more;

(6) when the vehicle is a commercial motor vehicle and the person’s alcohol concentration at the time, or as measured within two hours of the time of driving, operating or being in physical control of the commercial vehicle is .04 or more; or,

(7) when the person’s body contains any amount of a controlled substance listed in schedule I or II other than marijuana or tetrahydrocannabinols.

Flying while intoxicated does not trigger the felony penalty. It may be either a misdemeanor or a gross misdemeanor under Minn. Stat. § 360.0752, subd. 6. However, as set forth below, it counts as a prior impaired driving incident.

Operating a military vehicle while intoxicated under Minn. Stat. § 192A.555 neither triggers the felony penalty, nor counts as a prior impaired driving incident.

C. QUALIFIED PRIOR DRIVING WHILE IMPAIRED INCIDENTS

A qualified prior driving while impaired incident includes both prior impaired driving convictions and prior impaired driving-related losses of license. Minn. Stat. § 169A.03. subd. 22.

D. PRIOR IMPAIRED DRIVING CONVICTIONS

Prior impaired driving convictions include convictions for:

(1) impaired driving under Minn. Stat. § 169A.20;

(2) alcohol-related school bus or Head Start bus driving under Minn. Stat. § 169A.31;

(3) impaired aircraft operation under Minn. Stat. § 360.0752;

(4) criminal vehicular homicide and injury, substance related offenses under Minn. Stat. § 609.21;

(5) driving under the influence of alcohol or controlled substance under Minn. Stat. § 169.121;

(6) alcohol-related driving by commercial vehicle drivers under Minn. Stat. § 169.1211;

(7) aggravated DWI-related violations under Minn. Stat. § 169.129;

(8) operating snowmobile or all-terrain vehicle while impaired under Minn. Stat. § 89.91;

(9) operating motorboat while impaired under Minn. Stat. § 86B.331;

(10) an ordinance from this state, or a statute or ordinance from another state, in conformity with any provision listed above; or

(11) a prior juvenile adjudication that would have been a prior impaired driving conviction if committed by an adult.

Minn. Stat. § 169A.03. subd. 20, (1) - (5).

E. PRIOR IMPAIRED DRIVING-RELATED LOSSES OF LICENSE

Prior impaired driving-related loss of license includes a driver’s suspension, revocation, cancellation, denial or disqualification due to:

(1) alcohol-related school bus or Head Start bus driving under Minn. Stat. § 169A.31;

(2) implied consent law under Minn. Stat. § 169A.50 to Minn. Stat. § 169A.53;

(3) impaired driving convictions and adjudications and administrative penalties under Minn. Stat. § 169A.54;

(4) persons not eligible for drivers’ licenses under Minn. Stat. § 171.04;

(5) cancellation under Minn. Stat. § 171.14;

(6) court recommended suspension under Minn. Stat. § 171.16;

(7) commercial driver’s license disqualification under Minn. Stat. § 171.17;

(8) revocation under Minn. Stat. § 171.17;

(9) suspension under Minn. Stat. § 171.18 because of an alcohol related incident;

(10) criminal vehicular homicide and injury, substance related offenses under Minn. Stat. § 609.21;

(11) driving under the influence of alcohol or controlled substance under Minn. Stat. § 169.121;

(12) alcohol-related driving by commercial vehicle drivers under Minn. Stat. § 160.1211;

(13) chemical tests for intoxication under Minn. Stat. § 169.123;

(14) an ordinance from this state, or a statute or ordinance from another state, in conformity with any provision listed above;

(15) the revocation of snowmobile or all-terrain vehicle operating privileges under Minn. Stat. § 84.911, motorboat operating privileges under Minn. Stat. § 86B.335, for violations that occurred on or after August 1, 1994;

(16) the revocation of snowmobile or all-terrain vehicle operating privileges under Minn. Stat. § 89.91 or the revocation of motorboat operating privileges under Minn. Stat. § 86B.331.

Minn. Stat. § 169A.03, subd. 21 (1) - (4).

F. SANCTIONS BASED UPON SEPARATE COURSES OF CONDUCT

Prior impaired driving convictions and prior impaired driving-related losses of license must arise out of a separate course of conduct to be considered as multiple qualified prior impaired driving incidents. When a person has a prior impaired driving conviction and a prior impaired driving-related loss of license based on the same course of conduct, either the conviction or the loss of license may be considered as a qualified prior impaired driving incident, but not both.

Minn. Stat. § 169A.09.

II. SENTENCING

A. MAXIMUM AND MANDATORY MINIMUM SENTENCING PROVISIONS APPLICABLE TO THE FELONY DWI

The maximum sentence applicable to persons convicted of a felony DWI offense is seven years imprisonment and a fine of $14,000. Minn. Stat. § 169A.276, subd. 1(a).

The mandatory minimum sentence is three years in prison. Imposition, but not execution, of the minimum sentence is mandated. Thus, the court must impose a sentence of at least three years in prison, but stay execution and place the person on probation. Minn. Stat. § 169A.276, subd. 1(b).

B. SENTENCING GUIDELINES

The purpose of the Sentencing Guidelines is to establish rational and consistent standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to severity of the offense of conviction and the extent of the offender’s criminal history.

The Minnesota Sentencing Guidelines Commission has modified the Sentencing Guidelines effective August 1, 2002. There are now eleven levels of severity, instead of ten. A new Severity Level VII has been created. The only offense ranked at the new Severity Level VII is the felony DWI.

The Guidelines incorporate the minimum 36 month felony sentence of imprisonment which must be imposed under Minn. Stat. § 169A.276, subd. 1(d). Minnesota Sentencing Guidelines II.E. As set forth above, the sentence may be stayed.

The felony DWI offense will be treated like other felony level offenses. Criminal history will be taken into account to determine the appropriate box in the Sentencing Guidelines Grid for the Severity Level VII crime. A felony DWI offender will receive a custody status point if on probation for a gross misdemeanor. Minnesota Sentencing Guidelines II.B.6.

For the purposes of computing the criminal history, the three prior offenses that elevated the current offense to the felony level are not counted. Minnesota Sentencing Guidelines II.B.6. This means that a first time felony DWI offender who is not on probation for a gross misdemeanor and has no juvenile or felony level history, the offender has a criminal history score of “O”.

Other prior DWI’s within ten years count as two units. Four units equals one criminal history point. There is no limit to the number of misdemeanor points from prior DWI’s that can apply. Minnesota Sentencing Guidelines II.B.6. This means that if an offender had three DWI’s which elevated the present offense to a felony, plus two other DWI’s (making the current offense the sixth DWI within ten years), was not on probation for a gross misdemeanor and has no juvenile or felony level history, the offender has a criminal history score of “1”.

When an offender has a second felony DWI conviction, the Guidelines change. When the current conviction is for a felony DWI and the offender has a prior conviction for a felony DWI, the presumptive disposition is commitment to the Commissioner of Corrections. Minnesota Sentencing Guidelines II.C.

A prior felony DWI counts as 1 ½ criminal history points. The prior misdemeanor or gross misdemeanors, which elevated the first felony to a felony DWI, still do not count. Minnesota Sentencing Guidelines II.B.601.

C. DEPARTURE FROM THE SENTENCING GUIDELINES

While the guidelines are advisory to the sentencing judge, departures from the presumptive sentences established in the guidelines may be made when substantial and compelling circumstances exist. Minn.R.Crim.P. 27.03 allows the court on either its own or the State’s motion to consider departure. State v. Pierson, 368 N.W.2d 427 (Minn.App.1985).

Ordinarily, in computing a criminal history score and presumptive sentence the sentencing court need not review the procedures that led to a prior conviction. Thus far, collateral attack will be allowed only in unique cases. State v. Warren, 419 N.W.2d 795 (Minn.1988). Violation of a defendant’s right to counsel qualifies as a unique case. Id.

Therefore, there is now an additional reason for counsel to review an offender’s prior convictions. If a successful Nordstrom claim has been made, it may result in the inability of the prosecution to establish a felony level penalty. Alternatively, the prosecutor will use a different prior conviction to support the felony level penalty, one which overcomes any Nordstrom claim. Thus, for sentencing purposes, the focus may be on a prior conviction that was not used for penalty enhancement purposes to establish the felony level offense but which is being used to compute the offender’s criminal history. Presumably, the courts will apply the holding in Nordstrom, discussed at greater length below and find that a valid waiver of the right to counsel on the record when a guilty plea is entered or the conviction cannot be used for penalty enhancement purposes.

The general issue when determining a durational departure is whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question. Ture v. State, 353 N.W.2d 518, 522 (Minn.1984). In a felony case, if the sentence imposed departs from the sentencing guidelines applicable to the case, the court shall state, on the record, findings of fact as to the reasons for departure. The court shall also forward to the Sentencing Guidelines Commission a copy of the transcript of that portion of the record or a completed departure form as provided by the Commission. Minn.R.Civ.P. 27.03, subd. 4(c).

A downward durational departure is justified where defendant’s conduct is significantly less serious than that typically involved in the commission of the offense. State v. Mattson, 376 N.W.2d 413 (Minn.1985). The sentencing guidelines provide a non-exclusive list of factors justifying a downward departure. The factors relied upon by the court must somehow tend to excuse or mitigate the offender’s culpability for the offense. Herme v. State, 384 N.W.2d 205 (Minn.App.1986). Minnesota Sentencing Guidelines II.D.S.a., b.

Factors justifying departure from the sentencing guidelines are classified as either mitigating or aggravating factors. Presumably, victim related factors such as vulnerability, particularly cruel treatment, physical injury, victim aggressor will not apply in felony DWI cases.

Other felonies carry mandatory minimum prison terms. A trial court may sentence without regard to the mandatory minimum if it finds substantial mitigating factors are present. State v. Trott, 338 N.W.2d 248 (Minn.1983).

An offender’s particular amenability or unamenability to probation or incarceration may be considered in determining whether to depart dispositionally. State v. Norton, 328 N.W.2d 142 (Minn.1982). Numerous factors, including the offender’s age, prior record, remorse, cooperation, attitude while in court and the support of friends and family are relevant to a determination whether the offender is particularly suitable to individualized treatment in a probationary setting. State v. Trog, 323 N.W.2d 28 (Minn.1982). Aggravating factors include prior failures in treatment, drug use or dangerousness. Jackson v. State, 329 N.W.2d 66 (Minn.1983). The need to protect the community has no bearing on a durational departure. State v. Dillener, 336 N.W.2d 268 (Minn.1983).

A mitigating factor exists where the offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants does not fall within the scope of this factor. Minnesota Sentencing Guidelines II.D.2.a.(3). It might be an extremely difficult argument, but in view of the increasing medical research regarding alcoholism and mental health, referred to as “dual diagnosis”, it is suggested that the factor could be the subject of further judicial review. Further, although it may appear otherwise, for a person with the disease of alcoholism, the use of intoxicants, may not really be “voluntary”. Obtaining and using psychological evaluations in addition to chemical dependency evaluations should be considered.

Race, sex, employment factors including occupation or impact of sentence on profession or occupation, employment history, employment at time of sentencing, social factors including educational attainment, living arrangements at time of offense or sentencing, length of residence, marital status and payment of restitution are not used as reasons for departing from a presumptive sentence.

An attempt by the parties to limit sentence duration as part of a plea agreement does not create substantial and compelling circumstances which may be relied upon to justify a departure. State v. Garcia, 302 N.W.2d 643 (Minn.1981). As part of a plea agreement, an offender may waive his or her right to be sentenced under the Sentencing Guidelines. The waiver must be knowing, intelligent, and voluntary, and the trial court must approve it. State v. Givens, 544 N.W.2d 744 (Minn.1996).

D. DWI FELONY OFFENDERS WHO ARE COMMITTED TO PRISON

An offender committed to the custody of the Commissioner of Corrections is not eligible for early release, unless the offender has successfully completed a chemical dependency treatment program while in prison. Minn. Stat. § 169A.276, subd. 1(c). In this event, offenders must serve at least two-thirds of their sentence in prison.

If an offender completes a chemical dependency treatment program while in prison, the offender is eligible for early release programs such as work release, intensive community supervision and the Challenge incarceration program. Minn. Stat. § 169A.276, subd. 1(c). See also, Minn. Stat. §§ 241.26, 244.065, 244.12 and 244.17.

When the court commits a person to the custody of the Commissioner of Corrections, it shall provide that after the person has been released from prison, the Commissioner shall place the person on conditional release for five years. Minn. Stat. § 169A.276, subd. 1(d).

When the Commissioner of Corrections places a person on conditional release, the Commissioner shall impose any conditions deemed appropriate including, but not limited to successful completion of an intensive probation program (pilot program of intensive probation for repeat DWI offenders under Minn. Stat. § 169A.74, as described below). Minn. Stat. § 169A.276, subd. 1(d).

If a person fails to comply with any conditions of release, the Commissioner may revoke the person’s conditional release and order the person to serve all or a part of the remaining portion of the conditional release term in prison. Minn. Stat. § 169A.276, subd. 1(d).

The Commissioner may not dismiss the person from supervision before the conditional release term expires. Minn. Stat. § 169A.276, subd. 1(d).

The failure of a court to direct the Commissioner of Corrections to place the person on conditional release does not effect the applicability of the conditional release provisions to the person. Minn. Stat. § 169A.276, subd. 1(d).

The Commissioner shall require persons placed on supervised or conditional release to pay as much of the costs of the supervision as possible and develop standards to determine the ability to pay. Minn. Stat. § 169A.276, subd. 1(e).

E. STAYS OF MANDATORY SENTENCE

If the court stays execution of the mandatory prison sentence set forth in Minn. Stat. § 169A.276, subd. 1, placing an offender on probation, other mandatory sentencing provision apply.

For fourth time offenders: a minimum of 180 days of incarceration, at least 30 days of which must be served consecutively in a local correctional facility, or a program of intensive supervision (pilot program of intensive probation for repeat DWI offenders under Minn. Stat. § 169A.74, as described below) that requires the person to consecutively serve at least six days in a local correctional facility. The court may order that the person serve not more than 150 days of the minimum penalty under this subdivision on home detention or in the intensive probation program. Minn. Stat. § 169A.275, subd. 3.

For fifth time offenders: a minimum of one year of incarceration, at least 60 days of which must be served consecutively in a local correctional facility or a program of intensive supervision (pilot program of intensive probation for repeat DWI offenders under Minn. Stat. § 169A.74, as described below) that requires the person to consecutively serve at least six days in a local correctional facility. The court may order that the person serve the remainder of the minimum penalty under this subdivision using an electronic monitoring system or, if such a system is unavailable, on home detention. Minn. Stat. § 169A.275, subd. 4.

F. PILOT PROGRAM OF INTENSIVE SUPERVISION

The Commissions of Corrections and Public Safety, in cooperation with the Commissioner of Human Services, shall jointly administer a program to provide grants to counties to establish and operate programs of intense probation for repeat violators of the driving while impaired laws. Minn. Stat. § 169A.74, subd. 1.

The goals of the impaired driving repeat offender program are to protect public safety and provide an appropriate sentencing alternative for persons convicted of repeat violations of driving while impaired who are considered to be of high risk to the community. Minn. Stat. § 169A.74, subd. 2.

A county program must contain the following elements:

(a) an initial assessment of the offender’s chemical dependency, based on the results of a chemical use assessment conducted under Minn. Stat. § 169A.70, with recommended treatment and aftercare, and a requirement that the offender follow the recommended treatment and aftercare;

(b) several stages of probation supervision, including:

(i) a period of incarceration in a local or regional detention facility;

(ii) a period during which an offender is, at all times, either working, on home detention, being supervised at a program facility, or traveling between two of these locations;

(iii) a period of home detention; and,

(iv) a period of gradually decreasing involvement with the program;

(c) decreasing levels of intensity and contact with probation officials based on the offender’s successful participation in the program and compliance with its rules;

(d) a provision for increasing the severity of the program’s requirements when an offender offends again or violates the program’s rules;

(e) a provision for offenders to continue to seek employment during their period of intensive probation;

(f) a requirement that offenders abstain from alcohol and controlled substances during the their probation period and be tested for use on a routine basis; and,

(g) a requirement that all or a substantial part of the costs of the program be paid by the offenders.

Minn. Stat. § 169A.74, subd. 3.

III. THE DEFENSE: CHALLENGING THE PRESENT DRIVER’S LICENCE REVOCATION

A. INCREASED USE OF JUDICIAL REVIEW HEARINGS

Because of the use of a prior impaired driving-related loss of license as a predicate for a greater penalty in a later offense, more frequent and vigorous challenges of each offense is necessary. This need will discriminate against defendants represented by the public defender, since the public defender will generally not file petitions for judicial review on behalf of their clients. It will also discriminate against defendants who cannot afford the expense of hiring private counsel or the burden of taking the time for additional visits to court.

B. PETITION FOR JUDICIAL REVIEW

Within 30 days following receipt of a notice and order of revocation a person may petition the court for review. The petition must be filed with the district court administrator in the court where the offense occurred, together with proof of service of a copy on the Commissioner of Public Safety and the filing fee for civil actions. Minn. Stat. § 169A.53, subd. 2(a).

The petition must be captioned in the full name of the person making the petition as petitioner and the Commissioner of Public Safety as respondent; include the petitioner’s date of birth, driver’s license number and date of the offense; and, state with specificity the grounds upon which the petitioner seeks rescission of the order of revocation, disqualification or denial. Minn. Stat. § 169A.53, sub. 2(b).

The filing of the petition does not stay the revocation, disqualification, or denial. The reviewing court may order a stay of the balance of the revocation or disqualification if the hearing has not been conducted within 60 days after filing of the petition upon terms the court deems proper. Minn. Stat. § 169A.53, subd. 2(c).

Judicial reviews must be conducted according to Minnesota the Rules of Civil Procedure, except that prehearing discovery is mandatory and is limited to the notice of revocation, the test record or, in the case of blood or urine tests, the certificate of analysis, the peace officer’s certificate and any accompanying documentation submitted by the arresting officer to the Commissioner and disclosure of potential witnesses, including experts and the basis of their testimony. Other types of discovery are available only upon order of the court. Minn. Stat. § 169A.53, subd. 2(d).

A judicial review hearing must be before a district judge in any county in the judicial district where the offense occurred. The hearing is to the court and may be conducted at the same time and in the same manner as hearing upon pretrial motions in the criminal prosecution under the driving while impaired case. The hearing must be recorded. The Commissioner shall appear and be represented by the attorney general or through the prosecuting authority for the jurisdiction involved. The hearing must be held at the earliest practicable date, and in any event no later than 60 days after filing. Minn. Stat. § 169A.53, subd. 3.

The scope of the hearing is limited to the following issues: