This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Rafai A. Abrar,




Filed May 9, 2006


Halbrooks, Judge



Clay County District Court

File No. K5-04-1042



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


Lisa N. Borgen, Clay County Attorney, Jenny M. Samarzja, Assistant County Attorney, 807 N. 11th Street, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)


John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s denial of his pretrial motion to prohibit the use of his North Dakota impaired-driving convictions to enhance Minnesota impaired-driving offenses.  Because appellant’s convictions were valid under North Dakota law and he is precluded from collaterally attacking them, we affirm.


            The Minnesota Impaired Driving Code presents a scheme of offenses and penalties and enhanced offenses and penalties for driving, operating, or being in physical control of a motor vehicle while impaired from alcohol or other specified chemical substances.  Minn. Stat. §§ 169A.01-.78 (2002).  Certain qualified prior impaired-driving incidents are considered aggravating factors that permit enhancement of an impaired-driving offense.  See Minn. Stat. § 169A.03, subd. 3(1) (stating that “a qualified prior impaired driving incident within the ten years immediately preceding the current offense” is an aggravating factor).

            Appellant Rafai Abrar was pulled over in Minnesota on May 27, 2004, for unusual and suspicious driving conduct.  A police officer witnessed appellant make a U-turn at a railroad crossing and drive over a median while doing so.  Appellant was charged with one count of giving a false name to a police officer in violation of Minn. Stat. § 609.506, subd. 2 (2002); one count of failure to provide proof of insurance in violation of Minn. Stat. § 169.791 (2002); one count of driving after revocation in violation of Minn. Stat. § 171.24 (2002); one count of illegal U-turn in violation of a local city ordinance; one count of first-degree driving while impaired in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24; and one count of first-degree driving with an alcohol concentration of .10 or more in violation of Minn. Stat. §§ 169A.20, subd. 1(5), .24.

Appellant’s DWI charges were enhanced based on a prior Minnesota DWI conviction and two prior North Dakota DWI convictions.  The state alleged that appellant had three qualified prior impaired-driving incidents that permitted enhancement of the current DWI charges to the first-degree, or felony, level.  See Minn. Stat. § 169A.24, subd. 1(1) (stating that a person violating section 169A.20 is guilty of first-degree DWI if the current charge is the fourth qualified prior impaired-driving incident within ten years).

            Appellant was convicted of a DWI in Minnesota as a result of an offense committed on August 10, 2003.  He does not challenge the use of that conviction as an enhancement factor.  But appellant does challenge the use of his two prior North Dakota convictions as enhancement factors for his current charges.  Prior to trial, appellant moved to dismiss the DWI charges, challenging the constitutionality of using his North Dakota DWI convictions as the basis for enhanced Minnesota charges because North Dakota does not provide drivers with a pre-testing right to counsel.  Appellant submitted an affidavit with the motion, averring that he did not consult with counsel before refusing to submit to chemical testing and that he did not recall whether he was informed of his right to do so.

            The district court denied appellant’s motion, and, on the day of trial, appellant pleaded guilty to giving a false name to a police officer, failure to provide insurance, driving after revocation, and making an illegal U-turn.  Appellant proceeded to trial solely on the DWI charges.  The jury convicted appellant of two felony counts of DWI:  first-degree driving while impaired and driving with an alcohol content of .10 or more.  The district court imposed a 42-month sentence but stayed execution subject to conditions.  This appeal follows.



Appellant challenges the use of prior North Dakota DWI convictions to enhance his current DWI charges.  The district court’s denial of appellant’s motion to prohibit the use of his North Dakota convictions to enhance his current charges raises an issue of law, which this court reviews de novo.  State v. Bergh, 679 N.W.2d 734, 737 (Minn. App. 2004), abrogated on other grounds by State v. Schmidt, ___ N.W.2d ___, 2006 WL 947565 (Minn. Apr. 13, 2006). 

In Minnesota, a motorist has a limited right to consult with an attorney before deciding whether to submit to chemical testing.  Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  This limited right to counsel is guaranteed under article I, section 6, of the Minnesota Constitution.  Id. at 833-34.  Under North Dakota law, a motorist has a qualified statutory right to consult with counsel prior to consenting to a blood test.  Kuntz v. State Highway Comm’r, 405 N.W.2d 285, 290 (N.D. 1987); see also N.D. Cent. Code § 29-05-20 (2002).  Specifically, the North Dakota Supreme Court held that “if an arrested person asks to consult with an attorney before deciding to take a chemical test, he must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test.”  Kuntz, 405 N.W.2d at 290.  But North Dakota officers are not required to advise a motorist of the right to consult an attorney before taking a chemical test.  See McNamara v. Dir. of N. Dakota Dep’t of Transp., 500 N.W.2d 585, 591 (N.D. 1993).  In McNamara, the suspension of a motorist’s license was upheld even though, prior to blood-alcohol testing, the motorist was not informed of his right to counsel by the officer through an implied-consent advisory[1] or by recitation of Miranda warnings.  Id. at 592.  The court noted that it recognizes a limited right to pre-testing consultation with an attorney, but does not require that the motorist be advised of that right.  Id. at 591 n.4.

Previously, we held that an out-of-state conviction or revocation obtained in violation of Minnesota’s limited constitutional right to pre-test counsel could not be used to enhance Minnesota DWI charges.  Bergh, 679 N.W.2d at 738.  But the Minnesota Supreme Court recently abrogated that precedent, holding that out-of-state convictions may be qualified prior impaired-driving incidents for purposes of enhancing a current Minnesota DWI charge.  Schmidt, ___ N.W.2d at ___, 2006 WL 947565, at *8.

If a defendant were permitted to challenge the validity of his out-of-state convictions at the time they are used as enhancements in Minnesota, it would constitute a collateral attack on those prior convictions.  Id. at *2.  The supreme court held that the failure to be afforded the pre-testing right to counsel does not qualify as one of the circumstances in which a defendant may collaterally attack a prior conviction.  Id. at *3.  In so holding, the supreme court distinguished the limited pre-testing right to counsel from the right to counsel at a plea hearing or a trial.  Id. at *6-*7. 

The supreme court concluded “that Minnesota’s interest in preserving the Friedman right is not sufficient to prohibit the use of [out-of-state] convictions to enhance [a defendant’s] DWI offenses in Minnesota even though the [out-of-state] convictions were based on uncounseled test decisions.”  Id. at *8.  Thus, “the right to counsel for a test decision under the Minnesota Consitution is only triggered by a prosecution in Minnesota.”  Id. at *5.  Consequently, the district court did not err by denying appellant’s motion to dismiss and allowing his prior North Dakota DWI convictions to be used to enhance his current DWI charges to felonies.


[1]  Minnesota’s Implied Consent Advisory informs impaired-driving suspects that they have a right to consult with an attorney.  Minn. Stat. § 169A.51, subd. 2(4) (2002).  North Dakota’s Implied Consent Advisory, N.D. Cent. Code § 39-20-01 (2002), does not refer to the suspect’s pre-test right to counsel.