Filed April 26, 2005

Affirmed

Toussaint, Chief Judge

Dakota County District Court

File No. K2-02-2589

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)

John M. Stuart, State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414; and

Elizabeth Porter, 2500 West County Road 42, Ames Business Center, Suite 160, Burnsville, MN 55337 (for respondent)

Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

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

TOUSSAINT, Chief Judge

In this first-degree driving while impaired case, the state challenges the district court’s sentencing order, which reinstated probation on two prior driving while impaired convictions and imposed a 42-month executed sentence on the current offense, with a conditional release term to be served consecutively to the probationary periods. Because we find no abuse of discretion, we affirm.

FACTS

On August 12, 2002, respondent Eugene Paul Reuter was charged with first-degree driving while impaired (DWI) for an offense occurring on August 9, 2002 (file K2-02-2589). On September 24, 2002, Reuter was again charged with first-degree DWI for an offense occurring on September 22, 2002 (file K4-02-3064). Reuter pleaded guilty to both offenses on December 16, 2002. The district court imposed a 36-month sentence in file K02-2589, and a 42-month sentence in file K4-02-3064, but stayed the execution of both sentences. The district court then placed Reuter on five-years probation for each offense, consecutively, under the following conditions: (1) that Reuter complete a treatment program; (2) that he have no alcohol-related offenses; and (3) that he refrain from using drugs or alcohol.

On March 8, 2004, Reuter was charged with first-degree DWI for an offense occurring on March 7, 2004 (file K4-04-0699). On June 29, 2004, Reuter pleaded guilty to this offense and admitted to violating the conditions of his probation. At the July 9, 2004 sentencing hearing, the state requested an executed 120-month sentence, while Reuter requested that he be allowed to attend Minnesota Teen Challenge, an intensive residential treatment program. After considering the testimony of a Minnesota Teen Challenge representative and the testimony of Reuter and several of his supportive family members and friends, the district court reinstated probation in files K2-02-2589 and K4-02-3064, under the same terms as previously imposed, and imposed a 42-month prison sentence in file K4-04-0699, to be served consecutively. The state appeals.

D E C I S I O N

The state argues that the district court abused its discretion by reinstating, rather than revoking, Reuter’s probation in files K2-02-2589 and K4-02-3064. First, the state argues that revocation was required under the so-called Austin factors. See State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980) (stating that before probation can be revoked, the court must (1) designate the specific condition(s) that were violated; (2) find that the violation was intentional or inexcusable; and (3) find that need for confinement outweighs the policies favoring probation). But 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.” Id. at 249-50; see also Minn. Stat. § 609.14, subds. 1(a), 3 (2002) (stating that when probationer violates conditions of probation, the district court “may” revoke probation and execute the sentence previously imposed). Therefore, even if the Austin factors are satisfied, the presence of those factors alone does not demonstrate a clear abuse of discretion.

The state also argues that revocation of Reuter’s probation was mandatory under the sentencing guidelines. Minn. Sent. Guidelines II.C provides that “[w]hen the current conviction is for felony DWI, and the offender has a prior conviction for a felony DWI, the presumptive disposition is Commitment to the Commissioner of Corrections.” Furthermore, Minn. Sent. Guidelines II.E provides:

When an offender is sentenced for first degree (felony) driving while impaired, the court must impose a sentence of at least 36 months. The presumptive disposition is determined by the dispositional line on the Sentencing Guidelines Grid. For cases contained in cells above and to the right of the line, the sentence should be executed. For cases contained in cells below and to the left of the line, the sentence should be stayed unless the offender has a prior conviction for a felony DWI, in which case the presumptive disposition is Commitment to the Commissioner of Corrections. . . .

Here, the district court imposed the presumptive guidelines sentence when it executed a 42-month sentence for Reuter’s current offense in file K4-04-0699. Contrary to the state’s argument, the guidelines do not make it mandatory for the court to revoke Reuter’s probation on the two prior convictions. Furthermore, the district court complied with section 169A.28 by imposing consecutive sentences. See Minn. Stat. § 169A.28 (2002) (stating that a court “shall” impose consecutive sentences when it sentences a person for DWI violations arising out of “separate courses of conduct”). Finally, we do not adopt the state’s argument that the imposition of consecutive sentences is contrary to the legislature’s intent to impose a “more severe sanction” for repeat DWI offenders. See Minn. Sent. Guidelines cmt. II.F.01. Therefore, we conclude that the district court did not abuse its discretion by reinstating Reuter’s probation in files K2-02-2589 and K4-02-3064 and imposing a 42-month executed sentence in file K4-04-0699, with the conditional release term to be served consecutively to the probationary period.

Affirmed.