This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-363

State of Minnesota,

Respondent,

vs.

Kelly D. McKee,

Appellant.

Filed December 17, 1996

Affirmed

Klaphake, Judge

Ramsey County District Court

File No. K8-95-1266

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Susan Gaertner, Ramsey County Attorney, Jessica S. McConaughey, Assistant Ramsey County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Kelly D. McKee appeals his sentence for fleeing a peace officer, arguing there was no basis for an upward durational departure. Because substantial and compelling circumstances justify the departure, we affirm.

D E C I S I O N

With a .19 blood alcohol concentration, appellant ignored and then fled from a police squad car that was attempting to pull his car over. Appellant ran at least one red light and reached speeds over 85 m.p.h. in a St. Paul residential neighborhood before taking a curve, rolling his car over, and crashing into a parked car and a tree. He crawled out of the passenger side window while his passenger remained trapped, uncommunicative, and hanging from the passenger side seat belt in the overturned vehicle.

To justify an upward durational departure in sentencing, the court must find substantial and compelling aggravating circumstances. See Minnesota Sent. Guidelines II.D. Those circumstances must indicate that appellant's conduct was significantly more serious than that typically involved in the commission of the crime in question. See State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).

The court should not analyze the egregiousness of the action in and of itself, but must rather analyze the act as compared with other acts constituting the same offense.

State v. Herrmann, 479 N.W.2d 724, 728 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).

Appellant argues that his conduct was "almost sedate" as compared to other cases of fleeing a police officer. The criminal statute defines such an offender as one who

flees or attempts to flee by means of a motor vehicle a peace officer who is acting in the lawful discharge of an official duty, and the perpetrator knows or should reasonably know the same to be a peace officer, and who in the course of fleeing causes * * * substantial bodily harm * * *.

Minn. Stat. § 609.487, subd. 4 (1994). Here, the trial court relied on the following aggravating circumstances to justify its upward departure: (1) the passenger suffered harm greater than "substantial bodily harm," see Minn. Stat. § 609.025, subd. 7a (1994) (defining substantial bodily harm as "temporary but substantial," disfigurement, loss or impairment); (2) appellant threatened the lives and safety of others, including neighborhood residents, the passenger, other drivers, and the police officer; (3) appellant fled at speeds in excess of 85 m.p.h., cf. State v. Johnson, 374 N.W.2d 285 (Minn. App. 1985) (lone driver on rural road driving fifteen m.p.h.), review denied (Minn. Nov. 18, 1985); (4) appellant has a history of chemical abuse and disregard for its effects, see State v. Loitz, 366 N.W.2d 744, 746 (Minn. App. 1985) (history of chemical use is valid consideration if not part of criminal history score), review denied (Minn. July 17, 1985); and (5) appellant drove without a valid driver's license. Despite the jury verdict of guilty, appellant also continues to deny being the driver and claims the incapacitated passenger was the driver. See State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995). In sum, the trial court had ample grounds justifying an upward departure.

Affirmed.