The Minnesota DWI Case Of The Week is State v. Rossiter (Decided November 3, 2014, Minnesota Court of Appeals, Unpublished), which stands for the proposition that it is not an abuse of discretion to amend the complaint to charge the proper DWI.
In Rossiter, a Hennepin County Deputy Sheriff was on patrol on Fish Lake in Maple Grove. He observed another boat pass his own at a high rate of speed. The boat caught his attention because a city ordinance does not permit a wake on Fish Lake after sunset, which had occurred about ten minutes earlier. Five minutes later, he again observed the boat travelling at a high rate of speed, which he believed was a violation of the no-wake-zone ordinance. The Deputy activated his lights and stopped the boat.
The driver and sole occupant of the boat was the Defendant, Nicholas Rossiter. The Defendant appeared to be under the influence and was subsequently asked to submit to a urine test which revealed an alcohol concentration level of .09.
At trial, the State moved amend the complaint to §169A.20 (1a)(5) from §169A.20(1)(5) as the original complaint did not charge the DWI under the motorboat section of the statute.
The Defendant objected saying the complaint was amended to add a different charge and that he was prejudiced by the amendment as he had already admitted an element of the new offense in the opening statement.
On appeal, the Minnesota Court of Appeals affirmed the conviction, stating:
"Minnesota Rule of Criminal Procedure 17.05 states that a court may allow a complaint to be amended at any time before a verdict "if no additional or different offense is charged and if the defendant's substantial rights are not prejudiced."
"A 'different offense' is charged if an amendment affects an 'essential element' of the charged offense." Here, the elements do vary: subdivision 1 refers to operating motor vehicles except for motorboats, and subdivision la refers to operating motorboats. Minn. Stat. § 169A.20, subds. 1, la.
But this difference is immaterial. Under the "Driving While Impaired" statutes, a motorboat is considered a motor vehicle. Minn. Stat. § 169A.03, subd. 15 (2012). The language between the subdivisions and their applicable clauses varies only in that motorboats are specifically included in subdivision la rather than subdivision 1. Minn. Stat. § 169A.20, subds. 1, la. A minor variation in the language of subdivisions does not mean that a new or different offense has been charged."
"We are also unpersuaded that the amendment had any effect on Rossiter's trial tactics. Rossiter was aware of the charges and was prepared to try a case of operating a motorboat with an alcohol concentration above 0.08. Although Rossiter conceded in his opening statement that he was driving a motor boat, the focus of the statement and his defense was on the validity of the testing procedures, not the type of motor vehicle he was driving when stopped. Rossiter could not explain how his opening statement would have changed had the crime been charged under the proper subdivision. Because he was the sole person in the boat when it was stopped, it is difficult to imagine a successful defense that contested his operation of a boat. As the district court told Rossiter when it allowed the amendment, this case was the exact case and the exact fact situation Rossiter was prepared to try. Therefore, Rossiter was not prejudiced by the amendment."
Moral of the Story: A minor variation does not prohibit the amendment of the complaint.