This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Brian Michael Dupuis,
Filed January 15, 2002
Affirmed in part, reversed in part, and remanded
Nicollet County District Court
File No. K100153
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, Suite 500, 525 Park Avenue, St. Paul, MN 55103; and
Michael K. Riley Sr., Nicollet County Attorney, 424 South Minnesota Avenue, St. Peter, MN 56082 (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Hanson, Judge.
U N P U B L I S H E D O P I N I O N
Brian Dupuis challenges his convictions of three counts of driving while under the influence, underage drinking and driving, and possession of a controlled substance, drug paraphernalia, and a small amount of marijuana. He argues that the custodial arrest underlying the search that produced the inculpatory evidence of cocaine, marijuana, and paraphernalia was unlawful. He also argues that Minnesota law prohibits the multiple convictions of all three counts of driving while under the influence and multiple sentencing on driving while under the influence and underage drinking and driving. We conclude that the custodial arrest was lawful and affirm the search incident to arrest but reverse and remand the multiple convictions and sentencing.
F A C T S
St. Peter police stopped Brian Dupuis because the car he was driving had a loud muffler. When an officer approached the car and spoke with Dupuis, he observed that Dupuis had slurred speech, an odor of alcohol, and glassy, bloodshot eyes. Dupuis told the officer that he had consumed two alcoholic drinks. From prior contacts, the officer knew that Dupuis was under 21, the legal age for consumption of alcohol.
During a pat-down search of Dupuis, the officer felt two hard objects and a plastic bag in Dupuis’s front pocket. Before the officer removed the items from the pocket, Dupuis told him the hard objects were marijuana pipes. The plastic bag contained a greenish vegetable substance later identified as marijuana. A search of Dupuis's wallet produced a bindle, or paper wrapped in a triangle shape, which Dupuis admitted contained cocaine. In Dupuis’s car, the officers found a second bindle containing a white powdery substance, later identified as cocaine.
Police transported Dupuis to the law enforcement center and administered an implied-consent advisory. The resulting urinalysis revealed the presence of alcohol, amphetamine, methamphetamine, two forms of cocaine, and a form of marijuana.
Dupuis moved to suppress the statements and evidence obtained during the search of his person and car, arguing that the search incident to arrest was improper. The district court denied Dupuis’s motion. Dupuis waived a jury trial and submitted the case to the court on stipulated facts consistent with the procedures outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found Dupuis guilty of all seven charges, including the three counts of driving while under the influence. The court sentenced Dupuis on five of the seven offenses, and Dupuis appeals the convictions and sentencing.
D E C I S I O N
When the facts underlying a pretrial motion to suppress are not in dispute, this court exercises independent review to determine, as a matter of law, whether the evidence should have been suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). We also review de novo the determination of “probable cause as it relates to warrantless searches.” In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997) (citation omitted).
Article I, Section 10, of the Minnesota Constitution and the Fourth Amendment to the United States Constitution both prohibit unreasonable searches and seizures. U.S. Const. Amend. IV; Minn. Const. art I, § 10. Under both provisions, warrantless searches are unreasonable unless the search comes within one of the narrow exceptions to the warrant requirement. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d 508 U.S. 366, 113 S. Ct. 2130 (1993).
A search incident to an arrest is an exception to the warrant requirement. If a police officer has probable cause to arrest a driver of a vehicle, the officer may conduct a search of the driver and the vehicle without a warrant. New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981); State v. Liljedahl, 327 N.W.2d 27, 30 (Minn. 1982). But a search incident to arrest is valid only if the crime is one for which a custodial arrest is authorized. State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998).
Dupuis maintains, first, that police did not have probable cause to arrest him and, second, that the search incident to the custodial arrest was invalid because the driving-while-under-the-influence offenses are misdemeanors for which custodial arrests may not be made. With respect to Dupuis's first contention, the arresting officer observed that Dupuis had slurred speech, smelled of alcohol, had glassy, bloodshot eyes, and the officer knew that Dupuis was not of legal age to consume alcohol. Furthermore, Dupuis admitted that he had consumed two alcoholic beverages and was in possession of marijuana pipes. Based on an objective view of these indicators, the officer had probable cause to believe that Dupuis had committed the offenses of underage drinking and driving and driving while under the influence. Minn. Stat. § 169.121, subd. 3(b) (1998); Minn. Stat. § 168.1218(a) (1998); Johnson v. State, Dep't of Pub. Safety, 351 N.W.2d 2, 5 (Minn. 1984) (holding that observer may form opinion that driver is under the influence of alcohol based on one or more indicators).
With respect to Dupuis's second contention, Minn. R. Crim. P. 6.01 provides that a person arrested without a warrant for a misdemeanor shall be issued a citation in lieu of continuous detention except when it reasonably appears to the officer that detention is necessary to prevent injury or to prevent further crimes, or if the accused is likely to fail to respond to the citation. Minn. R. Crim. P. 6.01, subd. 1(1)(a). Dupuis contends that the custodial arrest was unauthorized because the police lacked any evidence that he would fail to respond to a citation or that an arrest was necessary to prevent injury or further criminal conduct.
We agree that police had no indication that Dupuis would fail to respond to a citation, but we conclude that detention was justified because the officer had reason to believe that the arrest was necessary to prevent bodily harm to Dupuis or another or to prevent further criminal conduct. Dupuis was not in a condition to drive, and, because his car was impounded, he had no means of transport. Dupuis argues that because his car was impounded, he was no longer a danger to himself or others. But impounding Dupuis's vehicle would not have prevented him from gaining access to a different vehicle and driving while under the influence, thereby endangering himself and the public in general. See State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981). (As a matter of public policy, DWI laws are to be liberally construed in the public’s favor.) Arrest was also reasonably necessary to prevent Dupuis from committing further crimes, including continuing to consume alcohol while underage. Under these circumstances, it was reasonable for the officer to believe it necessary to arrest Dupuis, and the search incident to the arrest was valid. We also note that the determination of whether to issue a citation or take a defendant into custody does not determine whether a search is constitutionally valid. See Minn. R. Crim. P. 6.01, subd. 4 ("issuance of a citation does not affect a law enforcement officer's authority to conduct an otherwise lawful search").
Because we conclude that a custodial arrest was permissible under the rules of criminal procedure, we do not address Dupuis's alternative argument that Minn. Stat. § 169.91, which specifically authorizes custodial arrest for those who have been driving while under the influence, is constitutionally infirm. See State v. Hendrickson, 395 N.W.2d 458, 461 (Minn. App. 1986) (applying statutory arrest procedures to misdemeanor driving while under the influence); State v. Galarneault, 354 N.W.2d 597, 599-600 (Minn. App. 1984) (same).
Additionally, Dupuis alleges that the district court erred by convicting him of three counts of driving while under the influence when all three counts arose out of the same behavioral incident. See Minn. Stat. § 609.04, subd. 1 (1998) (noting criminal defendant “may be convicted of either the crime charged or an included offense, but not both”). Dupuis was convicted of three counts of driving while under the influence under Minn. Stat. § 169.121, subd. 1. The state properly concedes that the district court erred by convicting Dupuis of all three counts when all three counts charged violations of the same statute and arose out of the same behavioral incident. Thus, we remand for the district court to vacate two of the three convictions.
Similarly, Dupuis argues, and the state concedes, that the district court erred by imposing separate sentences for his convictions of driving while under the influence and underage drinking and driving. Minnesota law prohibits a district court from sentencing a criminal defendant for multiple offenses that occur during a single behavioral incident. See Minn. Stat. § 609.035 subd. 1 (1998). (“[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses”.) Dupuis’s violations of driving while under the influence and underage drinking and driving occurred at the same time and place, arose out of a continuous and uninterrupted course of conduct, and manifested coincident errors of judgment. State v. Meland, 616 N.W.2d 757, 759 (Minn. App. 2000). Therefore, Dupuis may be sentenced on only one of these offenses, and we reverse and remand to the district court for resentencing.
Affirmed in part, reversed in part, and remanded.