This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).








State of Minnesota,


Brian Joseph Dukowitz,



Filed March 5, 2002


Peterson, Judge



Benton County District Court

File No. K3991209



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and



Nathan J. Allen, Timothy R. Reuter, Sauk Rapids City Attorneys, 1287 Second Street North, Suite 101, P.O. Box 368, Sauk Rapids, MN  56379 (for respondent)



John D. Ellenbecker, 803 West St. Germain Street, P.O. Box 1127, St. Cloud, MN  56302-1127 (for appellant)



            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from a conviction of gross-misdemeanor DWI, appellant Brian Joseph Dukowitz argues that a prior out-of-state DWI conviction should not have been used to enhance the current offense to a gross misdemeanor because the record does not contain a factual basis to support a guilty plea to the prior offense.  We affirm.


            On October 18, 1995, Dukowitz was arrested for DWI in Iowa, and on October 31, 1995, he was convicted and sentenced to two days in jail and fined $500 plus a statutory surcharge.  Dukowitz was represented by counsel.  He testified that he contacted his attorney after he had been in jail for seven or eight days and that his attorney advised him that he had served enough jail time and that he could sign some papers and not have to make any court appearances.  Dukowitz testified that he signed the papers, paid a fine, and never made a court appearance.

            On October 3, 1999, Dukowitz was arrested for DWI in Minnesota.  He was charged with gross-misdemeanor driving under the influence of alcohol in violation of Minn. Stat. § 169.121, subds. (1)(a), 3(c)(2) (1998); gross-misdemeanor driving under the influence of alcohol with an alcohol concentration of .10 or greater in violation of Minn. Stat. § 169.121, subds. 1(d), 3(c)(2); and gross-misdemeanor driving under the influence of alcohol with an alcohol concentration of .10 or greater when measured within two hours of the time of driving in violation of Minn. Stat. § 169.121, subds. 1(e), 3(c)(2).

The district court denied Dukowitz’s motion to dismiss the gross-misdemeanor charges, and the parties presented the case to the district court for decision on stipulated facts.  The court found Dukowitz guilty as charged and imposed sentence.


            This court will reverse the district court’s conclusions of law when they are based on an erroneous view of the law.  Roettger v. Comm’r of Pub. Safety, 633 N.W.2d 70, 73 (Minn. App. 2001).

            Minn. Stat. § 169.121, subd. 3(c)(2) (1998), provides for the enhancement of a misdemeanor DWI into a gross-misdemeanor offense if the person had a prior DWI or implied consent driver’s license revocation or suspension within the previous five years.

            When a defendant properly challenges the constitutional validity of a prior misdemeanor conviction as the basis for a gross-misdemeanor DWI charge, the burden is then on the state, as it is with other constitutional challenges to the admissibility of evidence, to show that the prior conviction was constitutionally obtained.  State v. Nordstrom, 331 N.W.2d 901, 905 (Minn. 1983).[1]  In determining whether a constitutional violation occurred, the relevant law is Minnesota law.  See State v. Friedrich, 436 N.W.2d 475, 477-78 (Minn. App. 1989) (concluding that even though no right to counsel attached under Wisconsin law and first offense led only to civil forfeiture of money, relevant inquiry was what process was due under conforming Minnesota statute).

            Dukowitz argues that the Iowa conviction cannot be used for enhancement purposes because the record does not contain a factual basis to support a guilty plea to that offense.

A prior conviction may be collaterally attacked in a subsequent proceeding where it will result in an enhanced sentence, on the constitutional claim of no factual basis for the plea only in unique cases where the defendant was unrepresented.  * * *


            When * * * the defendant was represented by counsel at the time of his plea, the conviction is immune from collateral attack and will count for enhancement purposes.  When defendant has counsel, it may be assumed that other important trial rights, including a factual basis for the plea, are being protected, at least for the purposes of a collateral attack.  It is not that other rights are unimportant, but that the court, confronted with a collateral challenge, has a basis for reasonably assuming the other rights were in fact protected.


State v. Lang, 432 N.W.2d 478, 480 (Minn. App. 1988) (citation and quotation omitted).

The evidence in the record is insufficient to overcome the presumption that Dukowitz’s attorney in the Iowa proceeding adequately advised him of his trial rights.  Nothing in the record indicates that Dukowitz was not guilty of committing the DWI or that he would not have been convicted of a DWI if he had chosen to appear in court.  Dukowitz has made no showing that he did not understand his trial rights or that he did not understand that his decision to pay a fine without appearing in court would result in a DWI conviction being placed on his record.  The district court did not err in concluding that the Iowa conviction could be used for enhancement purposes.  See id. (reversing district court’s holding that prior DWI conviction, which was based on a counseled guilty plea, could not be used for enhancement purposes without a factual basis in the record for the prior plea).

            Under Minn. Stat. § 169.121, subd. 3(c)(2), a single prior DWI conviction within five years of the current offense is sufficient to enhance a misdemeanor offense to a gross misdemeanor.  Therefore, we need not decide whether the district court erred in also relying on a prior Wisconsin driver’s license revocation for enhancement purposes.


[1] The continuing vitality of the Nordstrom holding that a prior misdemeanor conviction may be collaterally attacked and invalidated for enhancement purposes is subject to question.  The Nordstrom court relied in part on Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585 (1980), which was overruled by Nichols v. United States, 511 U.S. 738, 748, 114 S. Ct. 1921, 1928 (1994).  For purpose of our analysis, we assume without deciding that Nordstrom continues to represent Minnesota law.  See State v. Dumas, 587 N.W.2d 299, 302 (Minn. App. 1998) (questioning but assuming for analysis purposes the continuing vitality of Nordstrom), review denied (Minn. Feb. 24, 1999).