This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Robert Jared Fiebelkorn,
Concurring Specially, Randall, Judge
Carver County District Court
File No. C702984
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Michael A. Fahey, Carver County Attorney, Martha E. Mattheis, Assistant County Attorney, 604 East Fourth Street, Chaska, MN 55318 (for appellant)
Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.
On appeal from a pretrial order granting respondent’s motion to dismiss a first-degree driving-while-impaired charge, the state argues that the district court erred in ruling that respondent’s juvenile adjudications could not be used as aggravating factors supporting the charge of first-degree DWI. Because further findings are necessary to conduct a meaningful review of this issue, we remand.
On April 13, 2002, respondent Robert Fiebelkorn was stopped by a Chaska police officer and arrested after failing a field sobriety test. A breath test revealed his alcohol concentration (BAC) to be .19. On May 22, 2002, the state filed a complaint, charging Fiebelkorn with first-degree driving while impaired (DWI), in violation of Minn. Stat. §§ 169A.20, subd. 1(1), 169A.25 (2000), and third-degree DWI, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), 169A.27 (2000).
In the complaint, the state alleged that the first-degree charge was based on “two or more aggravating factors,” specifically, Fiebelkorn’s license suspensions for two prior underage-drinking-and-driving offenses and their associated juvenile delinquency adjudications. Listing the offense dates for Fiebelkorn’s adjudications as June 14, 2000, and July 3, 2000, the complaint alleged that these offenses resulted in two suspensions of Fiebelkorn’s driver’s license, both occurring on November 27, 2000.
At an omnibus hearing on August 28, 2002, Fiebelkorn challenged the first-degree DWI charge for lack of probable cause, arguing that his underage-drinking-and-driving adjudications do not constitute aggravating factors under the DWI statute. The district court determined that Fiebelkorn’s June 14, 2000, underage-drinking-and-driving adjudications were pursuant to Minn. Stat. § 169A.33 (2000) and his BAC was .025. But the district court disregarded Fiebelkorn’s July 3, 2000, underage-drinking-and-driving adjudication and instead examined an unalleged juvenile adjudication for “minor consumption.” The district court granted Fiebelkorn’s motion and dismissed the first-degree DWI charge without considering the driver’s license suspensions or the July 3, 2000, underage-drinking-and-driving adjudication.
The state moved for reconsideration, which the district court denied. This appeal followed.
On appeal from the pretrial order, the district court’s decision may not be reversed unless it has a critical impact on the prosecution, and it is clearly and unequivocally erroneous. State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977). An order dismissing one count of a multiple-count complaint may have a critical impact. State v. Koenig, 649 N.W.2d 484, 487 (Minn. App. 2002). The critical-impact standard is met in an appeal of an order dismissing a criminal charge for lack of probable cause where further prosecution is prevented, because “the State has no additional evidence with which it [can] reinstate prosecution on the dismissed count.” State v. Olson, 382 N.W.2d 279, 281 (Minn. App. 1986). Here, the district court’s decision has a critical impact, because it prevents prosecution of the first-degree DWI count to proceed. Thus, we move to the merits of the district court’s decision.
Proper review of Fiebelkorn’s case requires us to examine the adjudications and suspensions that the state alleges are aggravating factors supporting the first-degree DWI charge. The first-degree DWI statute provides that
[a] person who violates section 169A.20 (driving while impaired) is guilty of first-degreedriving while impaired if two or more aggravating factors were present when the violation was committed.
Minn. Stat. § 169A.25, subd. 1 (2000). An “aggravating factor” is defined as “a qualified prior impaired driving incident within the ten years immediately preceding the current offense.” Minn. Stat § 169A.03, subd. 3 (2000). The statute designates two types of qualified prior impaired driving incidents: “prior impaired driving convictions” and “prior impaired driving-related losses of license.” Id., subd. 22 (2000).
A “prior impaired driving conviction” includes a “prior juvenile adjudication that would have been a prior impaired driving conviction if committed by an adult.” Id., subd. 20 (2000). A “[p]rior impaired driving-related loss of license” includes “a driver’s license suspension,” under, among other statutory provisions, Minn. Stat. §§ 169A.54, subd. 8 (underage-drinking-and-driving adjudications, in violation of section 169A.33; administrative penalties), 171.16 (court-recommended suspension), and 171.18 (suspension). Minn. Stat § 169A.03, subd. 21 (2000).
For reasons that are unclear from the record, the district court examined only one of the two underage-drinking-and-driving offenses alleged by the state as an aggravating factor. The second offense it considered was an additional “conviction for minor consumption,” which the state did not allege as an aggravating factor. Because the district court examined an adjudication not alleged by the state and did not examine an adjudication that was alleged, we remand to the district court to consider both underage- drinking-and-driving offenses.
Further, we are unable to conduct a meaningful review of whether Fiebelkorn’s adjudications and license suspensions qualify as aggravating factors for two reasons. First, although the district court’s order indicates that the June 14, 2000, underage-drinking-and-driving offense involved a BAC of .025, the district court did not make a finding as to Fiebelkorn’s BAC in connection with the July 3, 2000, underage-drinking-and-driving offense. The state argues that, since any measurable BAC for an adult driver between 18 and 21 years of age could constitute a “prior impaired driving conviction” under Minn. Stat. § 169A.03, subd. 20, appellant’s two underage-drinking-and-driving offenses are prior impaired-driving convictions regardless of his BAC. Respondent disagrees. But without additional findings and a ruling from the district court on the prior impaired-driving incidents alleged in the complaint, our decision would be merely advisory as to whether each of Fiebelkorn’s underage-drinking-and-driving offenses constitutes “a prior impaired driving conviction if committed by an adult,” where his BAC was below the over-21 impaired-driving threshold of .10. See Minn. Stat. § 169A.20, subd. 1(5). Thus, we decline to address this issue.
Second, there are no findings regarding the statutory basis for Fieblekorn’s driver’s license suspensions on November 27, 2000. Without such finding, we are unable to consider whether Fieblekorn’s suspensions constitute aggravating factors under Minn. Stat. § 169A.03, subd. 21.
Accordingly, we remand to the district court with instructions (1) to consider both adjudications and both driver’s license suspensions alleged in the complaint to determine whether two or more aggravating factors exist to support the first-degree DWI charge and (2) to make findings regarding each alleged aggravating factor, including the statutory basis for each of Fiebelkorn’s license suspensions on November 27, 2000.
RANDALL, Judge, concurring specially
I concur with the majority’s conclusion to remand to the district court to examine both of respondent’s prior adjudications for underage drinking and driving, and to determine which statutory provision was used to suspend respondent’s driver’s license. Nevertheless, I write separately because I believe the case should be affirmed straight up based upon trial court discretion.
The basic issue before the district court was whether it was appropriate to enhance respondent’s DUI to a first-degree charge pursuant to Minn. Stat. § 169A.25, subd. 1 (2000). This statute stipulates that a person who is in violation of 169A.20 (driving while impaired) is guilty of first-degree driving while impaired provided that two or more aggravating factors were present at the time of the violation. Minn. Stat. § 169A.25, subd. 1 (2000). According to Minn. Stat. § 169A.03, subd. 3 (2000), aggravating factors include “(1) a qualified prior impaired driving incident within the ten years immediately preceding the current offense.” Qualified prior impaired driving incidents include: “prior impaired driving convictions and prior impaired driving-related losses of license.” Minn. Stat. § 169A.03, subd. 22 (2000).
Respondent was ultimately charged with first-degree driving under the influence under Minn. Stat. §§ 169A.20 subd. 1(1) and 169A.25, and third-degree driving under the influence under Minn. Stat. §§ 169A.20 and 169A.27. The state based these charges on the contention that respondent’s driving record revealed two suspensions for under 21 alcohol consumption occurring on November 27, 2000, separately entered, as a result of two adjudications from offense dates of June 14, 2000, and July 3, 2000, for “Not a Drop/Under 21 Drink and Drive” violations. The district court found that based upon these violations and respondent’s driving record, there was not sufficient probable cause to support the state’s first-degree DUI charge.
The district court’s conclusion should be affirmed based on trial court discretion. The district court’s memorandum acknowledged that:
According to the Court records, Defendant’s prior alcohol related convictions are for minor consumption and underage drinking and driving. The conviction for minor consumption in Case File # J0-00-50525 would not qualify as an aggravated factor under the subdivisions of M.S.A. 169A.03. Similarly, the conviction for drinking and driving under M.S.A. 169A.33 in Case File # J4-00-50494 with a Blood Alcohol Content of .025 is not included in the definition of the statute. The State argues that M.S.A. 169A.03, subd. 20 is inclusive of such an offense; however, this conviction would not qualify as a violation if committed by an adult and therefore should not be included.
District courts are generally in the best position to review the facts and evidence and to make a decision based upon this information. District courts are more familiar with the parties and circumstances surrounding each case. See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (stating that the credibility of the witnesses and evidence is properly determined by the fact-finder). Further, the question of probable cause is normally in the discretion of the trial court. See State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998) (citations omitted) (stating an appellate review of a district court’s probable cause determination, is “limited, with great deference afforded to the issuing court”); see also Sarb v. Comm’r of Pub. Safety, 362 N.W.2d, 405, 406 (Minn. App. 1985). Accordingly, a district court’s conclusion should be affirmed absent an abuse of discretion.
In the present case, the district court had immediate access to respondent’s juvenile files, and determined that respondent’s conviction for minor consumption would not qualify as an aggravating factor under Minn. Stat. § 169A.03, subd. 3 (2000). The court examined respondent’s conviction for drinking and driving under Minn. Stat. § 169A.33. The court found respondent had a blood-alcohol content (BAC) of .025, an amount virtually de minimis. However, because respondent was a minor, his BAC was enough to sustain a conviction for a minor drinking and driving. The district court noted this conviction would not qualify as a violation if committed by an adult, and concluded the offense should not qualify as an aggravating factor.
If the district court failed to make adequate findings regarding each alleged aggravating factor, including the statutory basis for each of respondent’s driver’s license suspensions on November 27, 2000, the majority is correct that a remand to the district court is necessary to fill out the record. But, I emphasize that trial courts have discretion to dismiss claims when probable cause is lacking. Absent an abuse of this discretion, the district courts’ rulings should be affirmed. This could have transpired in the present case. The court made a decision based upon respondent’s past alcohol-related charges. Although respondent had prior convictions for alcohol-related offenses, the district court decided the minor consumption and the drinking and driving with a BAC of .025 were not aggravating factors under Minn. Stat. § 169A.03, subd. 3 (2000). Without these offenses, the court held the state did not have probable cause to uphold a charge for first- degree DUI. The district court did not abuse its discretion in making the decision. Accordingly, I would affirm the district court’s decision to dismiss the charge.