This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Thomas Raymond Hesse,




Filed August 17, 2004

Affirmed; motion granted
Klaphake, Judge


Hennepin County District Court

File No. 03082311



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Peter A. MacMillan, Michele R. Wallace, MacMillan & Wallace, PLLP, Assistant Crystal City Attorneys, 9955-59th Avenue North, Suite 125, Minneapolis, MN  55442-1673 (for appellant)


Deborah Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN  55102 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            The State of Minnesota appeals from a pretrial order dismissing for lack of probable cause a charge of aiding and abetting gross misdemeanor DWI brought against respondent Thomas Raymond Hesse.  Because Minn. R. Crim. P. 28.04, subd. 1, precludes the state from appealing a pretrial order dismissing a complaint for lack of probable cause based solely on a factual determination, we affirm.


            Minn. R. Crim. P. 28.04, subd. 1, states that the prosecuting attorney may appeal from

any pretrial order of the trial court, including probable cause dismissal orders based on questions of law.  However, an order is not appealable . . . if it is based solely on a factual determination dismissing a complaint for lack of probable cause to believe the defendant has committed an offense[.]


Id.  “[W]hether the dismissal is based on a legal or factual determination is a threshold jurisdictional question.”  State v. Ciurleo, 471 N.W.2d 119, 121 (Minn. App. 1991).       Respondent was charged with aiding and abetting Daniel Betland, the driver of respondents’ car, to commit gross misdemeanor DWI.  To impose liability for the crime of another, “the state must show that a defendant played a knowing role in the commission of the crime.”  State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000).  Mere presence, inaction, knowledge, or passive acquiescence is insufficient, but an active role is not required.  Id

            Here, the district court found that respondent did not know Betland lacked a driver’s license, was intoxicated, or had consumed enough alcohol to exceed the statutory limit.  The court concluded that the state failed to provide a factual basis for probable cause that respondent aided and abetted gross misdemeanor DWI. 

            The district court’s ruling is limited to finding no factual basis for probable cause.  The district court made no attempt to interpret DWI law or the law on aiding and abetting a crime.  Because this is precisely the situation covered by Minn. R. Crim. P. 28.04, the order is not appealable.  If the state provides an additional factual basis to establish probable cause, the state may recharge respondent. 

            Respondent’s counsel has moved for attorney fees and costs incurred in defense of the appeal.  A defendant forced to respond to a pretrial prosecution appeal is entitled to reasonable attorney fees and expenses, regardless of the outcome.  Minn. R. Crim. P. 28.04, subd. 2(6).  It is therefore reasonable to require the state to pay respondent’s reasonable attorney fees and costs.  Respondent’s counsel is directed to submit supporting documentation.  See Minn. R. Civ. App. P. 139.06, subd. 1.

            Affirmed; motion granted.