STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Nathan Dean Schuster,
Wade William Little
Filed January 31, 2006
Clay County District
File Nos. K2-04-964,
Mike Hatch, Attorney General, 1800 Bremer
Tower, 445 Minnesota Street, St.
Paul, MN 55101; and
Lisa Nelson Borgen, Clay County
Attorney, Jenny M. Samarzja, Assistant County Attorney, 807 North Eleventh
Street, P.O. Box 280, Moorhead, MN 56560 (for respondent)
John M. Stuart, State Public
Defender, Leslie J. Rosenberg, Bridget Kearns Sabo, Assistant State Public
Defenders, 2221 University Avenue
Southeast, Suite 425, Minneapolis,
Considered and decided by Peterson,
Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.
S Y L L A B U S
failure to inform a motorist of the pretest right to counsel violates the
Minnesota Constitution and convictions resulting from the test results may not be
used to enhance a Minnesota impaired driving charge.
North Dakota law, a motorist’s right to
counsel does not include an obligation to inform the motorist of the
right. A North Dakota conviction
resulting from an uncounseled chemical test violates the Minnesota Constitution
and cannot be used to enhance Minnesota
impaired driving charges.
O P I N I O N
in these consolidated appeals challenge the district court’s refusal to
prohibit the use of North Dakota impaired
driving convictions to enhance Minnesota
impaired driving offenses. Because the
prior convictions arise from violations of appellants’ Minnesota
constitutional rights, the prior convictions cannot be used to enhance Minnesota offenses, and
Minnesota Impaired Driving Code presents a scheme of penalties and enhanced
penalties for driving, operating, or being in physical control of a motor
vehicle while impaired from alcohol or other specified chemical substances. Minn.
Stat. § 169A (2004). Certain qualified
prior impaired driving incidents can be considered aggravating factors that
permit enhancement of an impaired driving penalty. See Minn.
Stat. § 169A.03, subd. 3(1) (stating that “a qualified prior impaired
driving incident within the ten years immediately preceding the current offense”
is an aggravating factor.).
Dean Schuster and Wade William Little Owl were arrested for driving while
impaired (DWI) from alcohol in Minnesota
in separate and unrelated incidents.
Appellants’ charges were enhanced based on prior driving while impaired
convictions in North Dakota.
state charged Schuster with two counts of second-degree DWI and one count of
reckless driving. The state alleged that
Schuster had two qualified prior impaired driving offenses that permitted
enhancement of the current DWI charges to the second-degree level. See Minn. Stat. § 169A.25,
subd. 1(a) (stating a person is guilty of second-degree DWI if two or more
aggravating factors were present when the violation was committed).
had been convicted of DWI in Minnesota
in March 1995. He does not challenge the
use of this conviction as an enhancement factor. Schuster challenges the use of his North
Dakota DWI conviction from October 1998, as an enhancement factor as applied to
the current charges. During pretrial,
Schuster moved to dismiss the charges, challenging the constitutionality of
using North Dakota DWI convictions as the basis for enhanced charges because North Dakota violated
his right to assistance of counsel prior to chemical testing. Schuster provided an affidavit with the
motion, stating that he does not recall being advised of his right to counsel
prior to chemical testing.
the district court denied the motion in a pretrial order, Schuster waived his
right to a jury trial and submitted the matter to the court under a Lothenbach stipulation to preserve for
appeal the constitutional issue. See State
v. Lothenbach, 296 N.W.2d 854 (Minn.
1980). The district court counted the
North Dakota conviction as an enhancement factor and found Schuster guilty of
an enhanced count of DWI in the second-degree in violation of Minn. Stat. §§
169A.20, subd. 1(5), .25. The court
stayed Schuster’s jail sentence and placed him on probation, pending the
outcome of this appeal.
Owl was charged with two counts of first-degree DWI, one count of disobeying a
semaphore, and one count of driving after revocation. The state alleged that Little Owl had four
qualified prior impaired driving offenses that permitted enhancement of the DWI
charges from misdemeanor level offenses to felony offenses. See Minn.
Stat. § 169A.24, subd. 1(1) (stating a person who has an impaired driving
offense within ten years of three or more impaired driving incidents commits
first-degree impaired driving).
Owl had four prior convictions for DWI or test refusal within the last ten
years, one in Minnesota and three in North Dakota. Two of the North Dakota
convictions were used to enhance the charges against Little Owl to
felonies. Little Owl moved the district
court to dismiss the charges because the use of the North Dakota convictions
violated his Minnesota
constitutional right to consult with an attorney before deciding whether to
submit to chemical testing. Along with
the motion, Little Owl submitted an affidavit stating that he was not informed
of his right to counsel prior to chemical testing.
district court denied the motion, and Little Owl submitted the matter to the
court under a Lothenbach stipulation
to preserve for appeal the constitutional issue. The district court counted the North Dakota
convictions as impaired driving incidents and found Little Owl guilty of one
count of first-degree DWI pursuant to Minn. Stat. §§ 169A.20, subd. 1,
.24. Little Owl was sentenced to a
prison term of 42 months, with execution stayed for seven years on the
condition that Little Owl serve one year in the Clay County Jail. Little Owl received credit for time served
and was allowed to serve the remainder of his sentence on electronic home
followed and were subsequently consolidated.
an uncounseled North Dakota DWI conviction be used in Minnesota to enhance DWI
charges when Minnesota’s constitutional right to pretest counsel, unlike that
of North Dakota, requires that motorists be informed of their right to pretest
challenge the use of prior North Dakota DWI convictions to enhance their
current DWI charges. The district court’s denial of appellants’
motion to prohibit the use of their North Dakota
convictions to enhance their current charges raises an issue of law that this
court reviews de novo. State v. Bergh, 679 N.W.2d 734, 737 (Minn. App. 2004).
Minnesota, a motorist
has a limited right to consult with an attorney before deciding whether to
submit to chemical testing. Friedman v. Comm’r of Pub. Safety, 473
N.W.2d 828, 835 (Minn.
1991). An integral part of this right is
notice of its existence. “A police
officer not only must inform the driver of the right to counsel but also must assist
in vindicating this right[,]” including providing a telephone and a reasonable
amount of time to contact an attorney. Gergen v. Comm’r of Pub. Safety, 548
N.W.2d 307, 309 (Minn. App. 1996), review
Aug. 6, 1996); see also Jones v. Comm’r
of Pub. Safety, 660 N.W.2d 472, 475 (Minn.
App. 2003). This right to counsel is
guaranteed under article I, section 6, of the Minnesota Constitution. Friedman,
473 N.W.2d at 833-34.
North Dakota law, a motorist has a qualified
statutory right to consult with counsel prior to consenting to a blood
test. Kuntz v. State Highway Comm’r, 405 N.W.2d 285, 290 (N.D. 1987); see also N.D. Cent. Code § 29-05-20
(2004). Specifically, the North Dakota
Supreme Court held that “if an arrested person asks to consult with an attorney
before deciding to take a chemical test, he must be given a reasonable
opportunity to do so if it does not materially interfere with the
administration of the test.” Kuntz, 405 N.W.2d at 290. But officers are not required to advise a
motorist of the right to consult an attorney before taking a chemical test. See McNamara
v. Dir. of North Dakota
Dep’t of Transp., 500 N.W.2d 585, 591 (N.D. 1993). In McNamara,
a license suspension was upheld even though, prior to blood-alcohol testing,
the motorist was not informed of his right to counsel by the officer, through
the implied consent advisory,
or by recitation of Miranda warnings. Id. at
592. The court noted that it recognized a
limited right to pretesting consultation
with an attorney, but that the right is triggered only if a suspect unilaterally
requests an attorney. Id.
at 591, n.4.
out-of-state conviction or revocation obtained in violation of Minnesota’s limited
constitutional right to pretest counsel cannot be used to enhance Minnesota DWI
charges. Bergh, 679 N.W.2d at 737; see
also State v. Nordstrom, 331 N.W.2d 901, 905 (Minn. 1983) (holding that a criminal
conviction in which defendant was not represented could not be used to enhance
subsequent DWI offense if the right to counsel was not properly waived). In Bergh,
this court held that a DWI revocation obtained in Colorado
was not in accord with Minnesota’s
constitutional right to pretest counsel because, under Colorado law, a motorist has no right to
confer with counsel before deciding whether to consent to chemical
does not require that motorists be informed of their right to counsel prior to
chemical testing, the right loses its meaningful purpose in practical
application. See McNamara, 500 N.W.2d at 593 (Levine, J., dissenting) (“What
good is a statutory right to consult with counsel before deciding to take a
chemical test [citing Kuntz], if a
driver is not told of that right?”). The
purpose of the right to counsel generally “is to protect the lay person who
‘lacks both the skill and knowledge’ to defend him- or herself.” Friedman,
473 N.W.2d at 833 (citing Powell v.
Alabama, 287 U.S.
45, 69, 53 S. Ct. 55, 64 (1932)). In the
context of pretest consultation, the right to counsel is critical because “the
person suspected of drunk driving is generally an average citizen in a totally
new, confusing, and uncomfortable situation.”
Id. at 834. Given that the purpose of the right to
counsel is to protect individuals unfamiliar with the legal system, it is
implicit that those individuals first be informed that such a right
North Dakota’s right to pretest counsel
without an accompanying obligation to inform the motorist of such a right
violates the Minnesota
constitution. Thus, appellants’ North Dakota convictions, depending as they did on the
results of chemical tests to which appellants submitted without notice of their
right to pretest counsel, cannot be used to enhance appellants’ current Minnesota
contends that the “right to counsel” prior to chemical testing created by Friedman and applied by Bergh is inconsistent with Sixth
Amendment jurisprudence, public policy, and the impaired driving statutes. Respondent further argues that it is improper
to apply Minnesota constitutional protections to crimes occurring wholly
outside of this state pursuant to State
v. Heaney, 689 N.W.2d 168 (Minn. 2004).
respondent argues that this court should overturn Friedman. But this court has
no authority to overrule decisions of the supreme court. Mueller
v. Theis, 512 N.W.2d 907, 912 (Minn. App.
1994), review denied (Minn. Apr. 28, 1994). The Friedman
decision has been applied both by this court and the supreme court. And the principle of stare decisis binds this court to follow its own decisions. See
State v. DeShay, 645 N.W.2d 185, 189 (Minn.
App. 2002), aff’d 669 N.W.2d 878 (Minn. 2003).
respondent’s concerns of inconsistency were addressed in the Friedman decision. In regard to respondent’s contention that the
right to pretest counselis overly
broad and therefore inconsistent with the Sixth Amendment of the United States
Constitution, the Friedman court
stated “[courts] are free to interpret their own law, however, so as to provide
greater protection for individual rights than that which the federal
Constitution minimally mandates.” Friedman, 473 N.W.2d at 830 (citing PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S. Ct.
2035, 2040 (1980)). The supreme court
also addressed respondent’s public policy argument, noting that while drunk
driving is a serious problem, “[t]he rights of all citizens embodied in our
Minnesota Bill of Rights, however, are so important that they cannot be
overridden for temporary expediency in building statistics.” Id. at
835. Further, the interstate Driving
License Compact and the Impaired Driving Statutes were enacted in 1989 and
2000, respectively, well before the decision in Bergh. See 1989 Minn. Laws ch. 307, § 5;
Laws ch. 478, art. 1, § 2.
also argues that the Minnesota Supreme Court’s recent holding in Heaney rendered the application of Friedman and the Minnesota Constitution
to DWIs occurring outside the State of Minnesota
improper. 689 N.W.2d at 177. Specifically, respondent contends that
because the supreme court refused to apply the Minnesota
physician-patient privilege to acts occurring out-of-state in Heaney, it is improper to apply Minnesota constitutional protections to crimes occurring
wholly outside Minnesota.
a motorist had an accident in Minnesota and
was transported to Wisconsin
where blood-alcohol testing was performed.
Id.at 170-71. The tests showed that the motorist’s alcohol
concentration was more than .10 within two hours after the accident. Id. The district court granted, and the court of
appeals affirmed, the driver’s motion to suppress the alcohol-concentration
evidence obtained at the Wisconsin medical center on grounds that it violated Minnesota’s
physician-patient-privilege statute. Id. at 171. On appeal, the state argued that the
exclusionary rule of State v. Lucas,
372 N.W.2d 731 (Minn. 1985), should be applied to the circumstances, permitting
the forum state to admit the evidence, even though it would have been
unlawfully obtained in the forum state, because the seizure of the evidence was
valid in the search state. Heaney, 689 N.W.2d at 172. Ultimately, the Heaney court reversed, but agreed with the lower courts that an
exclusionary-rule analysis was not appropriate for the facts in Heaney, stating:
Where the police have
engaged in illegal conduct in obtaining evidence or where, as in Lucas,
police conduct was lawful but a statute concerning privacy interests renders
the evidence inadmissible, an exclusionary rule analysis is appropriate. But where,
as here, there is neither conduct by police that is illegal under the statutes
or constitution of either the forum or search jurisdictions, nor any statute or
principle in the search jurisdiction that would make the evidence inadmissible,
an exclusionary rule analysis does little to determine which state’s law should
172. The supreme court held that a
traditional conflict-of-law analysis was appropriate to determine the
admissibility of evidence obtained in another state in a criminal case. Id.
This court recently addressed the
application of Heaney to out-of-state
DWI convictions. State v. Schmidt, 701 N.W.2d 313 (Minn.
App. 2005), review granted (Minn. Oct. 26,
2005). In Schmidt,the state argued
that because the South Dakota police officers’
performance of uncounseled tests was not illegal in the search state, but such
conduct is illegal in the forum state rendering the evidence inadmissible, the
court should perform an exclusionary-rule analysis and conclude that the prior
South Dakota DWI convictions and license revocations are admissible to enhance
respondent’s current Minnesota offense. Id.
at 318. This court found the state’s
argument flawed because neither of the two appropriate situations for the
exclusionary-rule was present. Id. The South
Dakota police did not engage in illegal conduct in
obtaining evidence and the case did not involve state statutes. Id. This court determined that the exclusionary
rule did not apply when an individual’s limited constitutional right to counsel
in a pretesting situation is implicated.
Because this case presents the same circumstances addressed in Schmidt, respondent’s reliance on Heaney necessarily fails.
D E C I S I O N
Because appellants’ prior North
Dakota convictions resulted from chemical tests administered without appellants
being informed of their pretest right to counsel, they violate appellants’ Minnesota constitutional rights and may not be used to
enhance their current Minnesota