This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Nicholas Matthew Varner,



Filed June 17, 2003

Reversed and Remanded

Kalitowski, Judge


Washington County District Court

File No. K5021052


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


Doug Johnson, Washington County Attorney, Jennifer S. Bovitz, Assistant County Attorney, Washington County Government Center, P.O. Box 6, Stillwater, MN 55082 (for appellant)


Paul W. Rogosheske, Thuet, Pugh, Rogosheske & Atkins, Ltd., 222 Grand Avenue West, Suite 100, South St. Paul, MN 55075 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge, Anderson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant argues that the district court erred in concluding that Minn. Stat. § 169A.03, subds. 20(3), 21(3) (2000), prohibits pre-1998 prior impaired driving convictions and prior impaired driving-related losses of license from being used as aggravating factors.  Respondent argues that the appeal of the district court’s pretrial order dismissing appellant’s complaint is premature.  We reverse and remand.



            When the state appeals a pretrial order under Minn. R. Crim. P. 28.04, a reviewing court will reverse only if the state demonstrates clearly and unequivocally that the district court erred in its judgment and, unless reversed, the error will have a critical impact on the outcome of the trial.  State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987).  A ruling has a critical impact if it significantly reduces the likelihood of a successful prosecution.  State v. Miller, 586 N.W.2d 133, 137 (Minn. App. 1998), rev’d on other grounds, 600 N.W.2d 457 (Minn. 1999).  Dismissal of a complaint satisfies the critical impact requirement.  State v. Dendy, 598 N.W.2d 4, 6 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999). 

            Here, because the district court dismissed appellant’s complaint, this appeal of the district court’s pretrial order is not premature but is properly before this court.


Statutory construction is a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).  When interpreting a statute, this court first looks to see whether the statute’s language, on its face, is clear or ambiguous.  Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000).  “A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.”  Id. (quotation omitted).  “If a statute is ambiguous, the court, in interpreting the statute, must determine and give effect to the intent of the legislature.”  In re Estate of Ablan, 591 N.W.2d 725, 727 (Minn. App. 1999) (citing Minn. Stat. § 645.16 (1998)).

Respondent argues that the plain meaning of Minn. Stat. § 169A.03, subds. 20(3), 21(3), prohibits the use of respondent’s March 1995 DWI conviction as an aggravating factor to enhance the charges against appellant resulting from appellant’s arrest for DWI in February 2002.  Respondent also contends that recent changes in DWI laws indicate that the legislature intended to include as aggravating factors only those prior convictions and revocations that occurred under the 1998 Minnesota DWI statute and after.  We disagree.  In State v. Coleman, __ N.W.2d __, 2003 WL 21146791 (Minn. App. May 20, 2003), this court addressed this same issue and held that under Minn. Stat. § 169A.03, subd. 21(3), pre-1998 prior impaired driving-related losses of license may be used as aggravating factors. 

The court in Coleman appropriately applied the canons of statutory interpretation in its analyzing subdivision 21(3).  And the same analysis applied in Coleman for interpreting subdivision 21 is applicable for interpreting subdivision 20.  Applying those same canons of statutory interpretation, we conclude that under Minn. Stat. § 169A.03, subd. 20(3), pre-1998 DWI convictions may be used as aggravating factors.

Although subdivision 20(3) refers to the 1998 statute, “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(1) (2000).  Given this ten-year reach-back period provided for in subdivision 3(1), the language of subdivision 20(3) is ambiguous.  See Coleman, __ N.W.2d at __, 2003 WL 21146791 at *3 (concluding that the language of subdivision 21(3) is ambiguous).  We must therefore determine the legislature’s intent.  See Minn. Stat. § 645.17 (2002).

Respondent’s suggested interpretation yields an absurd and unreasonable result.  Because subdivision 20(4) goes back to 1996 for DWI convictions obtained as a result of operating snowmobiles, all-terrain vehicles, or motorboats, respondent’s suggested interpretation would treat these convictions more severely than convictions obtained as a result of operating a motor vehicle.  And given the strong public policy in favor of preventing drunk driving, it is unlikely that the legislature intended such a result.  See State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981).

Moreover, respondent’s reading renders superfluous the ten-year reach-back period described in subdivision 3(1).  Coleman, __ N.W.2d at __, 2003 WL 21146791 at *3.  If the legislature intends for all of section 169A to be effective and certain, see Minn. Stat. § 645.17 (2), we cannot ignore the ten-year reach-back period provided for in subdivision 3(1).

And while respondent contends that the rule of lenity demands interpretation of subdivision 20(3) in his favor, drunk-driving laws are remedial statutes and are to be “liberally interpreted in favor of the public interest and against the private interests of the drivers involved.”  See Juncewski, 308 N.W.2d at 319.  Interpreting subdivision 20 to allow the use of a pre-1998 conviction as an aggravating factor favors the public interest over any private interest of the driver. 

            Therefore, following Coleman we conclude that Minn. Stat. § 169A.03, subds. 20(3), 21(3) (2000), permits the use of pre-1998 prior impaired driving convictions and prior impaired driving-related losses of license as aggravating factors.  The district court’s dismissal of appellant’s complaint is reversed, and the case is remanded for further proceedings.

            Reversed and remanded.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.