Monday, May 19, 2014
The Minnesota DWI Case Of The Week is State v. St. John (A Published Decision, Minnesota Court of Appeals, issued May 19, 2014) which stands for the proposition that Third Degree DWI is not a lesser included offense of Second Degree Refusal and, for sentencing and conviction purposes, the Third Degree DWI offense is more serious than the Second Degree DWI Refusal.
In St. John, the Defendant had one prior DWI within the past ten years when she was arrested for the current DWI offense. The Defendant refused to submit to testing at the police station and was subsequently charged with Third Degree DWI (i.e. DWI with one prior offense) and Second Degree DWI Refusal (i.e. Refusal with one prior DWI).
The Defendant entered a plea of guilty to both the Second Degree DWI Refusal and the Third Degree DWI. At sentencing, the Defendant's attorney argued that the Defendant could be convicted of only one offense but not both. The District Court agreed and held that Third Degree DWI is a lesser included offense of Second Degree DWI and sentenced the Defendant for the Second Degree offense.
On Appeal, the Minnesota Court of Appeals reversed the District Court in part, finding that the District Court erred when it held that Third Degree DWI was a lesser included offense of Second Degree Refusal. The Court of Appeals noted at in order for an offense to be a "lesser included" one, all of the elements of the "lesser" offense MUST BE contained in the elements of the "greater" offense.
The Court of Appeals pointed out that in order to be convicted of Third Degree DWI, the State must prove beyond a reasonable doubt that the Defendant was under the influence at the time of driving. But Second Degree Refusal only requires that the officer have "probable cause" to believe the Defendant was under the influence at the time of the refusal. Because an officer could have probable cause to believe that a driver was under the influence of alcohol even though the driver was not, in fact, under the influence of alcohol, a driver could commit the second-degree test-refusal offense without committing the third-degree driving-under-the-influence offense. Thus the District Court erred when it held that the Third Degree DWI was a lesser included offense of Second Degree Refusal.
The Minnesota Court of Appeals further held that it was error to sentence the Defendant on the Second Degree DWI count instead of the Third Degree DWI offense.
The Court of Appeals noted that in State v. Simon, the Minnesota Supreme Court held that the offenses of driving under the influence and test refusal, "arose from a single behavioral incident and therefore, under Minnesota Statute § 609.035 the driver may only be sentenced for one offense". But which one?
Minnesota Statute § 609.035 contemplates that the defendant will be sentenced for the "most serious" of the offenses arising out of the single behavioral incident because imposing up to the maximum punishment for the most serious offense will include punishment for all offenses. In determining which offense is the most serious, the court should first look to the maximum sentence for each offense. Where, as here, the maximum penalties are the same, the court must then look to the nature of the offenses to determine which is the most serious.
In this case, the Court of Appeals found that the Third Degree DWI was more serious than the Second Degree Refusal offense and held that the Defendant should have been sentenced to Third Degree DWI. The Court reasoned that, "A person driving while under the influence of alcohol directly threatens public safety, but a driver in police custody who refuses to submit to a chemical test is not a threat to public safety". The driving under the influence offense was the "essence" of her criminal conduct as the driver could not have committed the test refusal offense if the officer did not first believe that the Defendant was driving under the influence. Therefore, the district court should have imposed a sentence for the driving under the influence offense rather than the second degree refusal offense.
THIS CASE IS HUGE because under Patino v. One 2007 Chevrolet, the Minnesota Supreme Court held that a person must be convicted of a Second Degree DWI offense before forfeiture of a motor vehicle may occur. A conviction does not occur until the Defendant is sentenced. So if a prosecutor charges a Defendant with Second Degree Refusal and Third Degree DWI, the defendant is better off pleading to both counts as the conviction will only be for the Third Degree DWI and any forfeiture of the motor vehicle must be dismissed!