This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Mark Allen Fenning,




Filed January 18, 2005

Crippen, Judge


Hennepin County District Court

File No. 03075562


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


Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487  (for respondent)


John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414; and


Anthony L. Brown, Jeffrey M. Bryan, Theodore W. Moore, Special Assistant Public Defenders, Robins, Kaplan, Miller & Ciresi LLP, 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Wright, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from a conviction of a felony for driving while impaired, appellant challenges application of the enhancement provision of the statute based on a revocation that occurred almost ten years before the current conviction but was the consequence of conduct that occurred earlier, outside of the ten-year enhancement period.  Because issues stated by appellant and not resolved by prior decisions are not presented by the facts of record, we affirm. 


            On October 21, 2003, an officer properly stopped and arrested appellant Mark Fenning for driving while intoxicated.  While admitted at the hospital for treatment, appellant refused to submit to a blood or urine test.  The parties later agreed to a Lothenbach trial on resulting first-degree DWI charges.  The district court decided the case based on undisputed evidence of the current offense, including evidence of driving while intoxicated and refusal of testing.  And the court received a certified copy of appellant’s driving record, indicating that the state revoked his license on November 14, 1993, evidently within days following his conviction for driving with an alcohol concentration of .10 or more; additional records were submitted to confirm the 1993 conviction. 

            Relying on these facts, the district court convicted appellant of first-degree driving while intoxicated for refusing to submit to chemical testing, and the court merged remaining counts into this one for purposes of sentencing.  The court enhanced the conviction to a felony level based on the conclusion that the enhancement statute was unambiguously triggered by the revocation in November 1993.  The court disregarded appellant’s suggestions that his 1993 wrongdoing occurred almost one month earlier, about one week outside of the ten-year enhancement period, and that his license first should have been revoked at about the time of an arrest, contemporaneous with the offense.  Appellant was sentenced to 36 months of jail time in accord with the agreement of the parties. 


            The enhancement provision of the statute indicates that a DWI offense qualifies as a felony, first-degree DWI when a person “commits the violation within ten years of the first of three or more qualified prior impaired driving incidents.”  Minn. Stat. § 169A.24 (Supp. 2003).  The statute proceeds to define “qualified prior impaired driving incident” to include “prior impaired driving convictions and prior impaired driving-related losses of license.”  Minn. Stat. § 169A.03, subd. 22 (2002).  “When a person has a prior impaired driving conviction and a prior impaired driving-related loss of license based on the same course of conduct, either the conviction or the loss of license may be considered a qualified prior impaired driving incident, but not both.”  Minn. Stat. § 169A.09 (2002).  It is evident under this statute, as the district court concluded, that enhancement was dictated by either the 1993 conviction date or the November 14 revocation date, even though the wrongful conduct occurred several weeks earlier. 

Appellant contends, inter alia, that the earliest incident date must be based on the actual occurrence of unlawful conduct within the ten-year period.  But this court has previously recognized that the statute confines our view of the incident by specifically defining a prior qualifying incident as either a revocation or conviction.  State v. Miller, 689 N.W.2d 177, 179 (Minn. App. 2004).  Given the district court’s alternatives to look either to the revocation or conviction, we are satisfied the record supports conviction based solely on the revocation that occurred on November 14, 1993.

            Appellant also theorizes that, based on the working of the law, there must have been a revocation before the commissioner’s notice of November 14.  Under relevant statutes, officers are empowered to issue immediate revocation notice in the event of a refusal or failed test.  See Minn. Stat. § 169A.52, subd. 7 (2002) (requiring officer to serve immediate revocation if driver refuses to submit to alcohol test).  But the existence of this statute does not establish that this notice must occur in every arrest or actually occurred in this case.  This case involves only evidence of a revocation on November 14.  The case thus does not require us to decide the issue of the application of the statute when an earlier act results in a revocation more than ten years earlier, followed by a conviction or second revocation within the ten-year enhancement period.

            Appellant also questions whether the 1993 revocation date could be constitutionally used because the conviction and any resulting revocation could be delayed, prompting unequal application of the law for defendants in similar circumstances.  But appellant failed to show that the law is facially flawed, either by differentiating between people or inviting delayed prosecution for some defendants and not others.  We have no occasion to decide appellant’s equal protection contentions.

The district court properly applied the unambiguous language of the statute to include the November 14 revocation date as a prior qualifying incident for purposes of enhancing the offense.


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