This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Robert John Pahl,

Filed November 16, 1999
Crippen, Judge

Nicollet County District Court
File No. TX98100346

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103

Michael C. Karp, North Mankato City Attorney, Tammy J. Dudley, Assistant City Attorney, 127 South Second Street, P.O. Box 3049, Mankato, MN 56002-3049 (for respondent)

Calvin P. Johnson, 427 South Broad Street, Mankato, MN 56001 (for appellant)

Considered and decided by Toussaint, Presiding Judge, Crippen, Judge, and Forsberg, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellant Robert John Pahl disputes the redetermination of his DUI conviction after it was first vacated on his motion, claiming that the procedure constitutes double jeopardy. We affirm.


When a North Mankato police office arrested appellant, he issued a DWI citation that referred to Minn. Stat. § 169.121, subd. 1(a) (1998) (driving when under the influence of alcohol). In subsequent testing of a blood sample, appellant’s blood alcohol was determined to be 0.15.

Appellant made a motion to suppress the results of the blood alcohol test. When the motion was denied, appellant entered into a stipulation pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), to preserve his right to appeal the denial of his motion. Appellant then was convicted for violating Minn. Stat. § 169.121, subd. 1(e) (1996) (having a blood alcohol concentration of at least 0.10 within two hours of driving).

Appellant later filed a motion to vacate his conviction on the grounds that the complaint did not charge him with a violation of subsection (e) of Minn. Stat. § 169.121, subd. 1. The trial court granted appellant’s motion to vacate because the complaint had not been amended before the conviction was entered.[1]

By leave of the court granted when the initial conviction was vacated, the state immediately filed a substitute complaint, charging appellant with violations of Minn. Stat. § 169.121, subd. 1(a), (d), and (e). After denying appellant’s motion to dismiss, a second guilty plea occurred, resulting in a renewed finding that appellant was guilty of violating Minn. Stat. § 169.121, subd. 1(e). Appellant has preserved the double jeopardy claim he asserted when moving to dismiss the amended complaint.


  1. Double Jeopardy

Retrial is appropriate when a conviction is reversed on appeal because of trial court error rather than insufficiency of the evidence. See State v. Harris, 533 N.W.2d 35, 36 (Minn. 1995) ("the double jeopardy clause in such circumstances does not bar retrial"). In this case, the circumstances are comparable to those in Harris or are even less susceptible to the conclusion that the double-jeopardy clause was implicated. The conviction was vacated on appellant’s request, based on his claim of a technical error, in circumstances not materially different than the process of appeal to another court. Moreover, the matter was first presented to the trial court without a factual dispute.

Appellant contends that a different result is required because the trial court’s initial conviction constituted an acquittal on the charge of driving under the influence of alcohol. No such finding is suggested by the trial court’s finding and nothing in the initial Lothenberg stipulation permits a finding that appellant did not violate subsection (a) of Minn. Stat. §169.121, subd. 1.[2]

2. Telephone Call to Appellant’s Parents

Appellant argues that he was deprived of his right to counsel by not being allowed to make a telephone call to his parents from the police station. When it is clear that the purpose of a telephone call is to obtain the name of counsel, it is a violation of the defendant’s constitutional rights to deny the call. See State v. Karau, 496 N.W.2d 416, 418 (Minn. App. 1993) (defendant was deprived of his right to counsel where he made it clear "that he wanted to call his parents only to get the name and telephone number of an attorney"). However, "police officers need not permit a driver, even if he is a juvenile, to call a parent merely to obtain advice." State v. Christiansen, 515 N.W.2d 110, 113 (Minn. App. 1994), review denied, (Minn. June 15, 1994) (citation omitted).

In this case, even if appellant had made it clear to the police that he wanted to call his parents, there was no evidence showing that he made it clear that he wished to do so in order to obtain an attorney. There was no error in denying appellant’s motion to suppress the blood test results.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The record does not indicate whether the parties or the court discussed an alternative of legitimating the original conviction by treating the complaint as having been amended by the trial court to conform to the stipulated facts submitted to the court for its determination of the case.

[2] We observe the trial court's view, stated when vacating the initial conviction, that the original complaint may have stated a violation of Minn. Stat. § 169.121 subd. 1a (refusing a chemical test). In the citation, the officer referred to the relevant statute as "Minn. Stat. 169.121 su 1A." Because the citation was one for "DWI," it is evident that this reference was to subdivision 1(a) and not to Minn. Stat. 169.121, subd 1a. Although the reference is properly viewed as one to subdivision 1(a), the court did not initially acquit appellant on an under-the-influence charge. According to stipulated facts, there were indicia of appellant's intoxication when he was arrested and his blood sample showed a 0.15 alcohol concentration within an hour after his arrest. The initial conviction reflected nothing more than the court's view that the stipulated evidence was most directly read as a statement of a subsection (e) offense.