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I am often asked by clients arrested for DWI, "Well if the police stopped me for speeding (or running a stop sign, failure to yield,etc.), why didn't he give me a ticket for speeding (etc.)"
The short answer is the officer can't because the client could then pay the speeding ticket and the DWI would have to be dismissed.
This recently happened in one of my cases where the client was stopped for "failure to signal a turn" and was subsequently arrested for DWI. The client received a separate ticket for the failure to signal his turn. The client promptly paid the ticket and I then moved to dismiss his DWI case pursuant to Minnesota Statute Section 609.035.
Minnesota Statute Section 609.035, subdivision 1, states:
“Conduct; multiple crimes; chargeable for one offense. Except as provided in subdivisions 2, 3, 4, and 5, and in sections 609.251, 609.585, 609.21, subdivisions 3 and 4, 609.2691, 609.486, 609.494, and 609.856, if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.”
In State v. Johnson, 141 N.W.2d 517 (Minn. 1966), the Defendant was stopped for crossing the centerline and was subsequently arrested for driving while intoxicated. The Defendant was allowed to plead guilty to crossing the centerline.
The Defendant in Johnson then moved to dismiss the DWI charge upon the ground that following his conviction for driving over the centerline, any further prosecution for conduct constituting more than one offense was barred by Minn.Stat. § 609.035. The Supreme Court agreed in Johnson that the crossing the centerline and the DWI arose from the same behavioral incident for purposes of Minn.Stat. § 609.035 stating:
“Although the statute is commonly referred to as one prohibiting double punishment, a reading of it compels a recognition that it contains two prohibitions, one against double punishment and the other against serialized prosecutions for separate offenses similar to that afforded by our constitutional provision prohibiting placing an accused twice in jeopardy for the same offense. Conceivably, double punishment can arise where a person is convicted of two or more offenses following either one prosecution where the charges are stated as separate counts or two or more prosecutions where the charges are brought separately. The double-jeopardy prohibition can become applicable when a second prosecution is attempted following a conviction or acquittal upon a previous charge. In either case, the application of the prohibitions turns on the same determination-whether the ‘person's conduct constitutes more than one offense.’ Stated another way, a defendant can neither be punished nor prosecuted more than once where his ‘conduct constitutes more than one offense”.
In State v. Corning, 184 N.W.2d 603 (Minn. 1971), the defendant stopped at the scene of an accident but left without informing the other motorist of his name, address or vehicle registration number. The defendant was subsequently stopped by the police and charged with DWI.
In Corning, the Minnesota Supreme Court held that his acquittal of the separate charge of failure to leave his name, address and vehicle information at the scene of the accident barred his subsequent prosecution for driving under the influence under the statute prohibiting serialized prosecutions, Minn. Stat. § 609.035. See also, State v. Gibson, 478 N.W.2d 496 (Minn. 1991-Criminal vehicular operation and felony failure to notify police of personal injury accident arose from the same behavioral incident, thereby precluding imposition of separate sentences); State v. Krech, 252 N.W.2d 269 (Minn. 1977-Felony charges of Aggravated Assault must be dismissed where defendant plead guilty to petty misdemeanor traffic offenses arising out of the same behavioral incident); State v. Holcomb, _ N.W.2d _ (Unpublished Minn.App. 2004-“Because the DWI and Failure to Yield offenses arose from the same behavioral incident, subsequent prosecution on the DWI offense after appellant was convicted of failing to yield was barred by Minn. Stat. § 609.035)(A copy of the opinion is attached). As noted by the Court in Holcomb:
“An individual's conduct may constitute one offense when the “offenses occur at substantially the same time and place, arise from a continuous and uninterrupted course of conduct, and manifest an indivisible state of mind or coincident errors of judgment.” State v. Finn, 295 Minn. 520, 521, 203 N.W.2d 114, 115 (1972); see also State v. Johnson, 273 Minn. 394, 397-98, 141 N.W.2d 517, 520-21 (1966). In general, cases involving DWI and another driving or traffic offense have been held to constitute a single course of conduct. See, e.g., State v. Corning, 289 Minn. 382, 386, 184 N.W.2d 603, 606 (1971) (DWI and leaving scene of accident); State v. Gladden, 274 Minn. 533, 534, 144 N.W.2d 779, 780 (1966) (DWI and careless driving); Johnson, 273 Minn. at 397, 141 N.W.2d at 520 (DWI and driving over centerline). Cases holding that offenses were separate behavioral incidents generally include at least one licensing or regulatory offense. See, e.g., State v. Reiland, 274 Minn. 121, 124, 142 N.W.2d 635, 638 (1966) (driving after license revocation and criminal negligence); State v. Reimer, 625 N.W.2d 175, 177-78 (Minn.App.2001) (discussing cases).”
In the present case the failure to signal the turn offense and the DWI were a part of the same behavioral incident. See, Johnson, supra. The DWI charges had to be dismissed as further prosecution was barred by Minn. Stat. § 609.035.
The Judge agreed and the case was dismissed!
The Judge agreed and the case was dismissed!
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
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