Monday, March 15, 2021

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Bonkowske (Decided March 15, 2021, Minnesota Court of Appeals, Published) which stands for the proposition that a person can only be convicted and sentenced for one DWI offense if all of the charges fall within the same statute and are a part of the "same behavioral incident".

In Bonkowske, the Defendant was arrested for DWI and taken to the police department.  The officers then read Bonkowske the breath-test advisory and after Bonkowske indicated that he wished to consult with an attorney, the officers provided him with access to a telephone and directories with the phone numbers of attorneys who handle DWI cases. Bonkowske briefly flipped through the directories but did not otherwise make any attempt to contact an attorney. The officers repeatedly informed Bonkowske that, if he was not going to attempt to contact an attorney, then they would continue with the breath-test-advisory process, but Bonkowske still made no attempt to contact an attorney. An officer then asked Bonkowske if he would consent to a breath test, and Bonkowske refused. When asked why he would not submit to a breath test, Bonkowske responded, ‘“cuz I don’t like you.”

The Defendant was charged with DWI, test refusal, and driving after suspension of his license. Bonkowske was appointed counsel, but later filed a petition to proceed pro se. The petition was granted following an omnibus hearing and Bonkowske represented himself at trial. A jury found Bonkowske guilty of all charges. The district court entered judgments of conviction and sentenced Bonkowske for each of the three offenses.

On appeal, the Defendant claimed the District Court committed reversible error by convicting and sentencing him for both DWI and DWI Refusal.  The Court of Appeals agreed and reversed the District Court stating: 

"“Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1. The

Minnesota Supreme Court has interpreted Minn. Stat. § 609.04 (2018) to “bar[] multiple convictions under different sections of a criminal statute for acts committed during a single behavioral incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985). Whether a conviction violates section 609.04 is a legal question that this court reviews de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn 2012)."


"In Jackson, the defendant was convicted of aggravated forgery and uttering a forged instrument under subdivisions one and three of Minn. Stat. § 609.625 (1982). 363 N.W.2d at 760. The supreme court ruled that, because the convictions were for offenses arising under different sections of the same statute and were committed as part of a single behavioral incident, the formal adjudication of the multiple convictions was in violation of Minn. Stat. § 609.04, subd. 1. Id. The court therefore held that “one of the two formal adjudications of conviction for violating section 609.625 must be vacated.” Id. While the present case involves convictions for DWI and test refusal, instead of forgery and forged instruments, we nevertheless determine that Jackson is the controlling precedent and governs our analysis in this case."

"The Jackson rule consists of two parts: first, the convictions must be for offenses that arise under different sections of the same statute and, second, the offenses must have been committed as part of a single behavioral incident. Id. at 759-60. Here, the first part of the rule is satisfied because Bonkowske’s convictions for DWI and test refusal arise under different sections of the same criminal statute—Minn. Stat. § 169A.20."

"The second part of the rule, whether the offenses arose out of a single behavioral incident, is also satisfied. Within hours, Bonkowske drove from the bar to his house while intoxicated, was arrested and, while in custody, committed the offense of test refusal. The supreme court and numerous decisions of this court have held that DWI and test refusal committed as part of a continuous course of conduct, as occurred here, arise out of a single behavioral incident. See State v. Simon, 493 N.W.2d 528 (Minn. 1992) (mem.) (the offense of test refusal, committed after a DWI arrest and test-refusal advisory, is part of the same behavioral incident as the preceding DWI offense); accord State v. Olson, 887 N.W.2d 692, 701 (Minn App. 2016); State v. Fichtner, 867 N.W.2d 242, 246, 253-54 (Minn App. 2015), review denied (Minn. Sept. 29, 2015); St. John, 847 N.W.2d at 708."

"Consequently, pursuant to Jackson, the entry of judgments of conviction for the two offenses violates Minn. Stat. § 609.04 and one of the convictions must be vacated. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (stating “the proper procedure to be followed by the trial court when the defendant is convicted on more than one charge for the same act is for the court to adjudicate formally and impose sentence on one count only,” retaining the guilty verdicts on the remaining charges, but not formally adjudicating those charges)."

I am surprised that the District Court made this mistake as the issue has been settled since State v. Simon in 1992.  I hope this published opinion will prevent future errors.

Moral Of The Story: Keep your crime sprees to a single offense and behavioral incident.

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.

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