This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Alyssa Ann Whiting,



Filed March 29, 2005


Toussaint, Chief Judge


Clay County District Court

File No. K2-04-1385



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


Lisa Borgen, Clay County Attorney, Heidi M. F. Davies, Assistant County Attorney, 807 11th Street North, P.O. Box 280, Moorhead, MN  56560 (for appellant);


Mark D. Nyvold, 332 Minnesota Street, W1610, St. Paul, MN  55101 (for respondent)



            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge

            This appeal is from a pretrial order dismissing the complaint charging respondent Alyssa Whiting with gross misdemeanor second-degree driving while impaired, under Minn. Stat. § 169A.20, subd. 1(1), (5) (2002).  Because the district court did not err in ruling respondent’s Texas driving while impaired conviction could not be used as an aggravating factor under the statute, we affirm.



The state argues that the district court erred in ruling that, because respondent had no pre-testing right to counsel in Texas, her 2003 Texas driving while impaired (DWI) conviction cannot be used to enhance the current offense to a gross misdemeanor.

In a pretrial appeal by the state, the district court must be affirmed unless the state shows its decision was clearly erroneous.  See State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001), review denied (Minn. June 22, 2001). 

            Our supreme court has held that in Minnesota a driver has a limited right to consult with counsel before deciding whether to submit to blood-alcohol testing.  Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991).  Friedman held that under our state constitution the pre-testing phase of an implied consent (or DWI) proceeding is a “critical stage” at which a driver has a limited right to consult an attorney.  Id. at 833-35.  In applying this ruling to out-of-state convictions used for enhancement purposes, this court has held that a DWI or alcohol-related license revocation from another state, if properly challenged, may not be used to enhance a Minnesota DWI offense when the driver was not afforded the right to consult with counsel in the other state.  State v. Bergh, 679 N.W.2d 734, 738 (Minn. App. 2004).

The state does not argue that this case can be distinguished from Bergh.  Instead, the state argues that both Friedman and Bergh were wrongly decided.  The state also argues that the Friedman right to counsel is contrary to public policy, and that Minnesota courts must give “full faith and credit” to alcohol-related revocations and convictions from other states under the interstate Driver License Compact, Minn. Stat. § 171.50 (2002).

This court has no authority to overrule decisions of the supreme court.   Mueller v. Theis, 512 N.W.2d 907, 912 (Minn. App. 1994), review denied (Minn. Apr. 28, 1994).  The Friedman decision has been applied in numerous decisions by this court and the supreme court.  And the principle of stare decisis binds this court to follow its own decisions.  See State v. DeShay, 645 N.W.2d 185, 189 (Minn. App. 2002), aff’d, 669 N.W.2d 878 (Minn. 2003).  The state cites no changed conditions since Bergh, nor any events calling into question the rationale of that decision that would warrant this court in overruling BerghSee generally State v. Victorsen, 627 N.W.2d 655, 662 n.2 (Minn. App. 2001) (noting that changes in relevant statutes justified departure from stare decisis in that case).  The public policy against drunk driving cited by the state was well recognized at the time both Friedman and Bergh were decided.  See generally State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981) (holding DWI laws are liberally construed in favor of public interest).  The interstate Driver License Compact was enacted in 1989, well before the decision in BerghSee 1989 Minn. Laws ch. 307, § 5.

In Bergh, this court held that the driver met his burden of production in challenging the out-of-state license revocation when he submitted an affidavit stating he “was not given an opportunity to consult with counsel before submitting to a blood test.”  679 N.W.2d at 738.  Respondent submitted a similar affidavit in this case.  And the state appears to concede that there is no Friedman-like right to counsel in Texas.

Respondent filed a motion to dismiss this appeal that has been deferred to this panel.  Respondent argues that because the notice of appeal was not timely served on the State Public Defender, this appeal must be dismissed.  See Minn. R. Crim. P. 28.04, subd. 2(2) (providing that state’s notice of appeal of pretrial order must be accompanied by proof of service on defendant or defense counsel, State Public Defender, attorney general, and trial court administrator).  This issue is currently before the supreme court in State v. Barrett, ___N.W.2d ___ (Minn. App. 2004), review granted (Minn. Sept. 29, 2004).  Because we have concluded this appeal is unsupported under Minnesota law, we decline to either stay this appeal pending the supreme court’s decision in Barrett or rule on the motion without the benefit of the supreme court’s decision in that case.