This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Matthew Arnold Olson,



Filed April 24, 2007


Worke, Judge


Scott County District Court

File No. 2005-7019


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


Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Special Assistant County Attorney, Justice Center JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)


Samuel A. McCloud, Carson J. Heefner, McCloud & Heefner, P.A., Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)


            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from a conviction of second-degree DWI, appellant argues that (1) double jeopardy barred appellant from being re-charged with a DWI offense after a complaint charging him with driving with an alcohol concentration of .10 or over as measured within two hours of driving had been dismissed; (2) because the first complaint was dismissed for lack of probable cause, he could be re-charged only if the state filed the new complaint within seven days after the dismissal order or if it presented newly discovered evidence; and (3) the BCA’s extrapolation of the alcohol concentration at the time of driving, which could have been done earlier, was not newly discovered evidence.  We affirm.


            Appellant Matthew Arnold Olson argues that the complaint under which he was convicted should have been dismissed because it was not timely filed.  In May 2004, appellant was charged with operating a motor vehicle with an alcohol concentration of .10 or more within two hours of driving.  On February 23, 2005, following a contested hearing, the district court dismissed the complaint for lack of probable cause “given the apparent charging error” because appellant’s alcohol concentration was measured “2.5 hours after his driving conduct.”  On March 23, 2005, a new complaint was filed charging appellant with first-degree DWI, operating a motor vehicle with an alcohol concentration of .10 or more within two hours of driving, and violation of a restricted driver’s license.  The complaint included new evidence relating to a retrograde extrapolation obtained from the Bureau of Criminal Apprehension (BCA) on March 15, 2005, which calculated appellant’s alcohol- concentration level at the time of driving as .12. 

            Appellant argues that the state is barred from reprosecuting him based on Minn. R. Crim. P. 17.06, subd. 4(3).  “The interpretation of the rules of criminal procedure is a question of law subject to de novo review.”  Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005).  Minn. R. Crim. P. 17.06, subd. 4(3), provides: 

            If the dismissal [of the complaint] is for failure to file a timely complaint as required by Rule 4.02, subd. 5(3), or for a defect that could be cured or avoided by an amended or new indictment, or complaint, further prosecution for the same offense shall not be barred, and the court shall on motion of the prosecuting attorney, made within seven (7) days after notice of the entry of the order granting the motion to dismiss, order that defendant’s bail or the other conditions of his release be continued or modified for a specified reasonable time pending an amended or new indictment or complaint.


The comment to Rule 17.06 provides:


            Under Rule 17.06, subd. 4(3) if the dismissal is for failure to file a timely complaint as required by Rule 4.02, subd. 5(3) for misdemeanor cases and also for designated gross misdemeanor cases as defined in Rule 1.04(b) or for a defect which could be cured by a new complaint, the prosecutor may within 7 days after notice of entry of the order dismissing the case move to continue the case for the purpose of filing a new complaint.

. . . .

            If no motion is made or if no new or amended complaint or indictment is filed within the times allowed, the defendant must be discharged and any further prosecution is barred unless the prosecution has appealed or unless the murder case exception applies . . . .  Rule 17.06, subd. 4(3), does not govern dismissals for defects that could not be cured at the time of dismissal by a new or amended complaint or indictment.  Therefore, when a complaint or indictment has been dismissed because of insufficient evidence to establish probable cause, the prosecutor may re-prosecute if further evidence is later discovered to establish probable cause.


            The state’s inadvertent omission of evidence available to it at the time of dismissal and necessary for probable cause is a curable defect.  State v. Viergutz, 288 N.W.2d 693, 696 (Minn. 1980).  In contrast, a dismissal for lack of evidence to support probable cause is noncurable if adequate facts have not yet been discovered.  Minn. R. Crim. P. 17.06 cmt.   In the latter case, the prosecutor may reprosecute if additional evidence is later discovered.  Id.

            The district court dismissed the May 2004 complaint because it lacked sufficient evidence to establish probable cause.  The state concedes that it did not file an amended complaint or move for a continuance within seven days; therefore, further prosecution would be barred unless one of the exceptions applies.  See id.  The state argues that the new complaint is based on new evidence—the retrograde extrapolation—which was later discovered and established probable cause.  While appellant argues that the state could have discovered this evidence before filing the original complaint, the state contends that the retrograde extrapolation was not done before the original filing because it did not believe that it was necessary based on the test results.  The retrograde extrapolation, however, was not obtained from the BCA until March 15, 2005, because it required testimony from a forensic scientist who analyzed appellant’s alcohol-concentration “based on the information provided, that [appellant] stopped drinking at 4:00 AM when he passed out, and that he had nothing to drink during the day,” and concluded that appellant’s alcohol concentration at the time of driving was .12.  Therefore, this information was not available at the time the original complaint was filed.  Because the new complaint contains further evidence that establishes probable cause and there is no evidence in the record that the defect could have been cured at the time of dismissal, the subsequent prosecution was not barred.