This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Wayne William Hietala,



Filed February 20, 2007


Shumaker, Judge


St. Louis County District Court

File No. 69-K2-03-601373



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


Alan L. Mitchell, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondent)


John M. Stuart, State Public Defender, Michael W. Kunkel, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Shumaker, Presiding Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Wayne Hietala challenges an order revoking probation imposed for first-degree DWI, arguing that the state did not prove by clear and convincing evidence that he consumed alcohol in violation of his probation.  He also alleges that the district court did not make specific findings on each Austin factor before revoking his probation.  Because testimony from several police officers observing indicia of intoxication during Hietala’s arrest provided clear and convincing evidence that Hietala had been drinking, and because the district court made a deliberate and careful analysis of each Austin factor for the record, we affirm the revocation of Hietala’s probation.


            In 2003, the state arrested appellant Wayne Hietala and charged him with two counts of first-degree DWI, one count of violation of a restricted driver’s license, and one count of unlawful transport of a firearm in a motor vehicle.  Hietala pleaded guilty to one of the felony DWI counts and the remaining counts were dismissed.  In October 2005, the court stayed execution of a 66-month sentence and placed Hietala on supervised probation.  The terms of his probation included that he refrain from consuming alcohol. 

            Later in the month that Hietala was sentenced, police officers were dispatched to his residence to investigate a possible domestic disturbance.  Three officers arrived and met Hietala’s girlfriend there.  She was crying and upset and told them that Hietala had been drinking but that he had left the residence.  She also stated that Hietala was very drunk and that he had “lost it” and had become physically abusive.

            The officers left to look for Hietala and found him minutes later sleeping in a truck nearby.  When the officers opened the door to the truck, they smelled the odor of alcohol inside.  When Hietala stepped out of the truck, the officers noticed the odor of alcohol on him as well.  He also had bloodshot, glassy eyes, the odor of alcohol on his breath, his speech was slurred, and he repeated his statements.

            A deputy sheriff who transported Hietala to jail testified that his squad car had no odor of alcohol inside before Hietala got in but that the deputy noticed such an odor once Hietala got in.

            No chemical tests for alcohol consumption were performed on Hietala.


Violation of Probation

            Hietala first argues that the state did not present sufficient evidence to show that he violated the condition of probation requiring him to abstain from the consumption of alcohol.  The district court has “broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.”  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  Probation violations must be proven by clear and convincing evidence.  Minn. R. Crim. P. 27.04, subd. 3.  Courts have defined clear and convincing evidence as “more than a preponderance of the evidence but less than proof beyond a reasonable doubt.  Clear and convincing proof will be shown where the truth of the facts asserted is ‘highly probable.’”  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). 

            Hietala argues that the evidence of his alleged alcohol consumption was not clear and convincing but rather was of dubious reliability and credibility.  He contends that the officers misunderstood his girlfriend as to her identification of who had been drinking, that she had stated that she and others in a group had been drinking and that Hietala was present.  He indicates that two of the officers who came to his residence had longstanding acrimony toward him.  He notes that, earlier in the day, he had been cleaning fish with a chemical that had the strong odor of mentholatum and that was likely what the officers smelled.  He also points out that no chemical testing was done and that the deputy who booked him into the jail smelled no odor of alcohol on him and noticed no unusual behavior by him.  He also indicates that witnesses who had been with him that day testified they did not see him drink alcohol.

            The district court considered Hietala’s evidence but did not find it persuasive.  The court noted that several trained officers accustomed to dealing with people who had consumed alcohol smelled the odor of alcohol on Hietala and on his breath and observed other indicia of alcohol consumption.  As to the allegation that the odor came from use of a fish-cleaning chemical, the court noted that Hietala had testified that, after he cleaned the fish, he cleaned himself up and changed his clothes.

            Discrepancies in evidence raise a credibility issue, and we defer to the district court’s credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  As the district court noted, the evidence need not show that Hietala was intoxicated but only that he had consumed alcohol.  Hietala’s girlfriend made statements that the police understood as being allegations that Hietala had consumed alcohol.  It was within the court’s province to determine whether the officers heard the statements correctly.  Several officers smelled the odor of alcohol on Hietala and some smelled the odor on his breath.  Hietala’s only explanation was that he had been using a chemical to clean fish and that caused the odor the officers smelled.  But as the court noted, Hietala’s own testimony negated that likelihood because he had cleaned up and changed clothes after using the chemical.  Furthermore, even if some residue of the odor of that chemical remained, it is improbable that it would be manifested on Hietala’s breath.  Thus, the evidence clearly and convincingly established that Hietala had consumed alcohol in violation of his probation.

Probation Revocation


            Hietala also argues that the district court abused its discretion because it failed to make proper findings before revoking his probation.  A district court has broad discretion to determine if there is sufficient evidence to revoke probation, and this court will reverse only if the district court clearly abused its discretion.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). A district court must consider three factors on the record before revoking probation.  Id. at 607.  Specifically, it must: “1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that need for confinement outweighs the policies favoring probation.”  Austin, 295 N.W.2d at 250.  The third factor is satisfied if

(i)     confinement is necessary to protect the public from further criminal activity by the offender; or

(ii)    the offender is in need of correctional treatment which can most effectively be provided if he is confined; or

(iii)  it would unduly depreciate the seriousness of the violation if probation were not revoked. 


Id. at 251. 

            Modtland furthered the Austin holding by announcing that “[district] courts should not assume that they have satisfied Austin by reciting the three factors and offering general, non-specific reasons for revocation, as it is not the role of appellate courts to scour the record to determine if sufficient evidence exists to support the district court’s revocation.”  Modtland, 695 N.W.2d at 608. 

Therefore, the district court’s discretion does not allow it to refrain from making three specific findings on the record before it revokes probation.  Id. at 605.  Whether the district court has made the required Austin findings presents a question of law, which is subject to de novo review.  Id.

Here, as required by Modtland, the district court addressed the three Austin factors as providing the reason for its decision to commit Hietala to the commissioner of corrections.  First, the district court determined that clear and convincing evidence showed that Hietala had violated his probation by consuming alcohol, thereby making the requisite finding of the specific condition of probation that Hietala had violated.  The court then stated, in satisfaction of the second factor, that the “violation was intentional and inexcusable, there being no evidence to the contrary.”  This came after the court’s analytical review of the evidence against and in favor of Hietala.

The court made an in-depth analysis of the third factor, concluding that the need for confinement outweighed the policies favoring probation.  First, the district court analyzed the severity and nature of the original offense and determined that confinement was necessary to protect the public from further criminal conduct.  The court then noted that Hietala refused to participate in chemical-dependency treatment; the likelihood that he would voluntarily change his mind and enter treatment was very slim; and he was a risk to the public when he consumed alcohol.  Finally, the district court noted the favorable terms of the original plea, and the fact that Hietala used alcohol within a very short period of time after he was sentenced, even though he faced a 66-month prison term, and concluded that it was “not prepared to overlook the transgressions . . . that are not excusable or involuntary,” thereby finding that the seriousness of the violation would be unduly depreciated if probation were not revoked.

Therefore, the court made sufficient oral findings on the record on each Austin factor and applied them specifically to Hietala’s probation violation.  Although Hietala argues that the court should have given him another chance at entering a chemical-dependency program, in light of his criminal history, which includes convictions of five DWIs, domestic assaults, felony fleeing, felony theft, and felony burglary, as well as the fact that his original sentence was a presumptive commitment to prison, under the circumstances, the court did not abuse its discretion in revoking Hietala’s probation.  As noted in Austin, the decision to revoke cannot be a reflexive reaction to technical violations, but requires a showing that the “offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.”  Austin, 295 N.W.2d at 251 (quotations omitted). 

The district court’s response to the allegation of a probation violation was not reflexive but rather was the product of a thoughtful, objective consideration of the entire relevant context of the matter.  Nor was Hietala’s violation merely technical since, as demonstrated by his criminal history, alcohol consumption went to the very essence of his unlawful conduct.