This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Steven Arthur Doherty,
Filed September 12, 2006
St. Louis County District Court
File No. K1-04-601407
Mike Hatch, Attorney General,
Alan L. Mitchell,
John M. Stuart, State Public
Defender, Ngoc Nguyen, Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
is an appeal from an order revoking appellant Steven Arthur Doherty’s
probation, which was imposed when Doherty pleaded guilty to first-degree felony
driving while impaired (DWI). Appellant argues that the
district court abused its discretion in revoking probation without making
adequate findings on two of the three factors required by State v. Austin, 295 N.W.2d 246 (Minn. 1980). Specifically, Doherty argues that (1) the
When Steven Doherty pleaded guilty to first-degree felony DWI (test refusal) in violation of Minn. Stat. § 169A.20, subd. 2 (2004), the district court sentenced him to a guidelines sentence of 36 months with a stay of execution on the sentence. As conditions of probation, the district court ordered Doherty to serve one year in the Northeast Regional Correctional Center (NERCC) and not to use alcohol or any other mood-altering substances.
In June 2005, following a review hearing, the district court allowed Doherty to leave the NERCC to work for the summer months and to return in the fall to serve the remainder of the one-year jail sentence. The district court specifically stated that Doherty had to abide by all the terms and conditions of probation previously set out at the April 2005 hearing.
In late August 2005, Doherty submitted to a preliminary breath test and it showed a positive reading for the use of alcohol. At a September 9, 2005 revocation hearing, the state alleged that Doherty violated the terms of his probation by consuming alcohol and by failing to report to his probation officer. Doherty admitted to consuming alcohol. He also admitted failing to report, but then attempted to excuse his failure due to a job-site injury that had him “laid up for a week[.]” Doherty admitted that he should have called his probation officer. As a result of the hearing, the district court found that Doherty was in violation of the terms and conditions of probation and revoked the stay of execution. Doherty was committed to the Commissioner of Corrections for a period of 36 months. This appeal follows.
argues that the district court abused its discretion by revoking his probation
without making findings on two of the three
a preliminary matter, appellant argues that there are “no written findings of
fact at all.” Appellant’s claim is
without merit because the September 15, 2005 order includes nine findings of
fact, some of which expressly address the
first required factor is that the court specify the condition of probation that
second required factor is that the court must find that the violation of the
condition was intentional or inexcusable.
third required factor is that the district court find that the need for confinement
outweighs the policies favoring probation.
[Doherty] has at least ten prior DWI or test refusal convictions. According to the Presentence Investigation completed prior to his sentencing on April 29, 2005, [Doherty] has violated his previous probation status at least five times. [Doherty] has a lengthy history [of] alcoholism.
While this is technically Doherty’s first probation violation in this file, and drinking alcohol is not a crime in itself, given the nature of the underlying offense—his tenth DWI violation—the requirement that Doherty not consume alcohol was at the heart of his probationary agreement. Given that appellant admitted to drinking alcohol shortly after having been released on probation for his tenth DWI, a decision not to revoke the stay would trivialize the seriousness of the violation. Doherty’s behavior—including his multiple DWI convictions, his inability to refrain from using alcohol, and his failure to abide by conditions of probation on other files—supports the district court’s determination that probation was not a viable option for Doherty. Thus, the record supports the district court’s finding that Doherty’s confinement outweighed any policies favoring probation.
Because the district court systematically considered each of the three Austin factors in its written order to revoke the stay of execution of Doherty’s sentence, the district court’s determination does not appear to be a “reflexive reaction to an accumulation of technical violations,” which was the concern addressed in Austin. We conclude that the district court’s determination that Doherty was a risk to public safety and needed confinement was not an abuse of discretion.
 Even though the hearing transcript indicates that the district court also found a violation of the reporting requirement, the September 2005 order does not make such a finding. The district court relied solely on Doherty’s use of alcohol to revoke his probation. Thus, appellant’s arguments regarding the mitigation of his failure to report are irrelevant.