This opinion will
be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Adam Lee Milkent,
Filed June 29, 2006
Reversed and remanded
Winona County District Court
File No. K6-04-1253
Mike Hatch, Attorney General,
1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Charles E. MacLean, Winona County
Attorney, Nancy L. Bostrack, Assistant County Attorney, Winona County
Courthouse, 171 West Third Street, Winona, MN
55987 (for appellant)
Mark D. Nyvold, Special Assistant
State Public Defender, 332
Minnesota Street, W1610, St. Paul, MN 55101
and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
state challenges the district court’s pretrial dismissal of the first- and
second-degree DWI charges against respondent.
Because respondent’s prior Wisconsin
convictions of operating a vehicle while intoxicated may be used to enhance the
current Minnesota DWI charges against him, we reverse and remand.
May 2004, respondent Adam Lee Milkent drove his car into a parked vehicle in Winona. A blood test showed that Milkent’s alcohol
concentration was .16. The state charged
Milkent with two counts of first-degree driving while impaired (DWI), one count
of second-degree DWI, and one count of driving without a valid driver’s
1996, Milkent has been convicted three times in Wisconsin
of operating a vehicle while intoxicated (OWI), and his Wisconsin
driver’s license is revoked. The state
used the three Wisconsin convictions to
enhance the charges against Milkent arising from the May 2004 incident.
moved to dismiss the first- and second-degree DWI charges for lack of probable
cause. After a contested omnibus
hearing, the district court concluded that Milkent’s three prior Wisconsin convictions could not be used to enhance the
Minnesota DWI charges and dismissed the two counts of first-degree DWI and the single
count of second-degree DWI. The state
D E C I
S I O N
The state argues that the district court erred by concluding
that Milkent’s prior Wisconsin convictions could not be used to enhance the
current Minnesota charges against Milkent and by dismissing the charges of
first- and second-degree DWI. When
reviewing an appeal from a pretrial determination, this court will reverse only
if the state demonstrates that (1) the district court erred in its judgment,
and (2) the error will have a critical impact on the trial’s outcome. State
v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987).
A district court’s dismissal of a charge “clearly has a critical impact
on the outcome of the trial.” State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991).
Minnesota law provides a scheme of penalties
and enhanced penalties for individuals who drive, operate, or are in physical
control of a motor vehicle while impaired by chemical substances. Minn.
Stat. §§ 169A.01-.78 (2004). An
impaired-driving incident within the ten years immediately preceding a current
offense is an aggravating factor that permits enhancement of the current
impaired-driving offense. Minn. Stat. §§
169A.03, subds. 3(1), 22; 169A.24, subd. 1(1).
Here, the state used Milkent’s Wisconsin OWI convictions to enhance the charges
for the current Minnesota DWI offense.
The Minnesota Constitution
guarantees an individual “the limited right to counsel” before deciding to
submit to an alcohol-concentration test.
Friedman v. Comm’r of Pub. Safety,
473 N.W.2d 828, 837 (Minn.
1991). This right attaches at “the point
at which an individual is asked by law enforcement officials to undergo” the test. Id.
are deemed to have given implied consent to chemical testing as a condition of
receiving” the privilege to operate a motor vehicle. State
v. Reitter, 595 N.W.2d 646, 652 (Wis.
1999). And Wisconsin
drivers do not have a right to counsel before deciding whether to submit to an
alcohol-concentration test. Id.
The state argues that Milkent’s three prior Wisconsin convictions may
be used to enhance the May 2004 offense because the Wisconsin
convictions were based on Milkent’s conduct, not on alcohol-concentration
tests. But we do not need to address
this distinction. While this appeal was
pending, the Minnesota Supreme Court held that the interests underlying
Minnesota’s recognition of a limited right to counsel before deciding whether
to submit to an alcohol-concentration test are not sufficient to justify
disregarding a conviction entered in a state whose laws do not provide a right
of counsel before making such test decisions.
State v. Schmidt, 712 N.W.2d 530,
2006). Such convictions may be used to
enhance Minnesota DWI offenses. Id. Therefore,
Milkent’s prior Wisconsin convictions may be
used to enhance the Minnesota DWI charges.