may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
State of Minnesota,
Brian Patrick Dore,
Winona County District Court
File No. KX991045
Charles E. MacLean, Winona County Attorney, Theron J. Berg, Assistant County Attorney, 171 West Third Street, Winona, MN 55987 (for respondent)
John Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Amundson, Presiding Judge, Peterson, Judge, and Anderson, Judge.
In this appeal from his sentence for criminal vehicular homicide and criminal vehicular operation, appellant Brian Patrick Dore argues that he is particularly amenable to probation and, therefore, the district court abused its discretion when it refused to depart dispositionally. We affirm.
Dore stopped his truck at a stop sign at the intersection of Highway 61 and Highway 248. Oncoming traffic on Highway 61 was not required to stop. Dore pulled out in front of an oncoming motorcycle, and the motorcycle collided with Dore’s truck. The motorcycle driver was instantly killed, and a passenger on the motorcycle was severely injured. Dore said he did not see the motorcycle approaching.
At the accident scene, police officers questioning Dore smelled alcohol on his breath and noticed that he had red eyes. Dore refused to take a preliminary screening test and field sobriety tests. Dore told the officers that he had only had a couple of beers and that he had not taken any other medication or drugs. One witness at the scene later told an investigator that shortly after the accident, Dore cursed about the motorcycle hitting his vehicle and was concerned about the condition of his truck. Police confiscated an unlicensed pistol that Dore’s brother removed from the glove compartment of Dore’s truck after the accident.
Dore was arrested and searched. During the search, police found the lid of a film canister with a green leafy substance on it that was later determined to be marijuana. An officer later found within throwing distance of the crash site a matching film canister that also contained marijuana. Dore was taken to a hospital where he was required to provide a blood sample for analysis. Blood test results indicated that Dore had an alcohol concentration of .12 and that he had marijuana and cocaine in his system.
Dore told an investigator that he and his brother had been on a fishing trip, but when it started raining, they went into town and ended up at a bar drinking. Dore said that he had two or three beers and that he did not feel like he was drunk. There were empty beer cans and an open bottle of whiskey in Dore’s truck, which he claimed had fallen out of a cooler. Dore later said that he actually had four beers during the day.
Dore admitted that he was a former Chicago police officer who had been terminated for testing positive for a controlled substance for which he did not have a prescription.
Dore was charged by complaint with four counts of criminal vehicular homocide, four counts of criminal vehicular operation, and one count of possession of a pistol in a motor vehicle without a permit. Dore pleaded guilty to one count each of criminal vehicular homicide in violation of Minn. Stat. § 609.21, subd. 1(4) (1998), and criminal vehicular operation resulting in great bodily harm in violation of Minn. Stat. § 609.21, subd. 2(4) (1998). Dore moved for a dispositional departure
The probation/parole agent who completed the presentence investigation report stated in the final assessment portion of the report:
I believe that [Dore] will pose a threat to the community for other alcohol and/or drug related problems, unless he honestly reassesses his culpability in this crime due to his use of alcohol and controlled substances. During the pre-sentence interview, he maintained that he had had only four beers during the day of the crash. He further maintained that he had not used any chemicals, stating that he had last used marijuana in his early 30’s. It should be noted that there was a presence of both marijuana and cocaine in his system at the time of the crash. He acknowledges that he lost his job as a police officer due to his use of unprescribed controlled substances. He maintains that he is only a social drinker and does not feel he was impaired at the time of the crash.
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During the pre-sentence interview, [Dore] never mentioned the fact that he had taken a life.
At the sentencing hearing, Dore gave a statement apologizing to the victims’ families and taking full responsibility for causing the accident.
The decision whether to depart from the sentencing guidelines rests within the discretion of the district court and will not be disturbed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996); State v. Kindem, 313 N.W.2d 6, 7-8 (Minn. 1981). A district court may order a downward dispositional departure from the presumptive sentence only if “substantial and compelling circumstances” warrant such a departure. State v. Cameron, 370 N.W.2d 486, 487 (Minn. App. 1985), review denied (Minn. Aug. 29, 1985). Only in a rare case would a sentencing court’s refusal to depart warrant reversal. Kindem, 313 N.W.2d at 7. The mere fact that a mitigating factor is present in a particular case does “not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.” State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).
The court may make a dispositional departure, placing the defendant on probation if the defendant is “particularly amenable to probation of if offense-related mitigating circumstances are present.”
State v. Donnay, 600 N.W.2d 471, 473-74 (Minn. App. 1999) (quoting State v. Love, 350 N.W.2d 359, 361 (Minn. 1984)), review denied (Minn. Nov. 17, 1999). To determine the defendant's amenability to probation, the district court should consider the defendant's age, prior record, remorse, cooperation, attitude while in court, and the support of friends and family. Id. at 474. Dore argues that based on these factors, the district court abused its discretion when it denied his motion for a dispositional departure. We disagree. Although some of these factors are arguably present, their presence did not obligate the district court to depart from the presumptive sentence.
Furthermore, several of the factors indicate that Dore is not particularly amenable to probation. Specifically, Dore’s prior history of drug use, which resulted in his termination from the Chicago police department, indicates that his use of controlled substances in the past resulted in negative consequences. Nevertheless, Dore had marijuana and cocaine in his system on the day of the crash, which demonstrates continued use of controlled substances. Also, the presentence investigation indicates that Dore has little remorse for his actions. This lack of remorse is also indicated by the witness report that Dore was very angry at the scene of the crime that the motorcycle hit his truck. Finally, Dore did not initially take responsibility for his actions and did not cooperate with the police. He lied about the amount of alcohol he drank on the day of the crash and about the drugs present in his system. His uncooperative attitude was also demonstrated by his refusal to submit to field sobriety tests and a preliminary screening test.
The district court did not abuse its discretion by denying Dore’s motion for a dispositional departure.