This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1553

 

State of Minnesota,
Appellant,

vs.

Daniel Joseph Melde,
Respondent.

 

Filed March 14, 2006

Reversed and remanded

Peterson, Judge

Concurring specially, Randall, Judge

 

Hennepin County District Court

File No. 04075384

 

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

 

Peter A. MacMillan, Michele R. Wallace, Assistant Crystal City Attorneys, MacMillan, Wallace & Athanases, P.A., Suite 125, 9955 59th Avenue North, Minneapolis, MN 55442-1673 (for appellant)

 

Paul W. Rogosheske, Thuet, Pugh, Rogosheske & Atkins, Ltd., Suite 100, 222 Grand Avenue West, South St. Paul, MN 55075 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a pretrial order dismissing a charge of refusal to submit to a chemical test, the state argues that the district court erred in concluding that because the implied-consent advisory administered to respondent did not inform respondent that test refusal is a gross misdemeanor that may result in harsher penalties than test failure, the advisory violated respondent’s due process rights.  We reverse and remand.

FACTS

      Respondent Daniel Joseph Melde was arrested for driving while impaired.  A police officer administered the implied-consent advisory to respondent.  Respondent acknowledges that he understood the advisory and that he was given an opportunity and had enough time to contact an attorney.  Instead of contacting an attorney, respondent contacted his high-school hockey coach, who advised him to refuse testing.

Respondent refused testing and was charged by complaint with one count of second-degree driving while impaired (DWI) for refusing to submit to a chemical test, in violation of Minn. Stat. § 169A.20, subd. 2 (2004), and Minn. Stat. § 169A.25 (2004), and one count of third-degree DWI for operating a motor vehicle when under the influence of alcohol, in violation of Minn. Stat. § 169A.20, subd. 1(1) (2004), and Minn. Stat. § 169A.26 (2004).  Respondent moved to dismiss the test-refusal charge, arguing that the implied-consent advisory violated his due process rights by failing to inform him that test refusal will result in a gross misdemeanor charge or possibly a more severe charge than failing the test.

            The district court concluded that “by failing to advise arrestees of the enhanced criminality and penalties that result from refusal,” the implied-consent advisory “violates the due process requirements of both the United States and Minnesota State Constitutions.”  Based on this conclusion, the district court dismissed the test-refusal charge.  This appeal followed. 

D E C I S I O N

In reviewing a pretrial prosecution appeal from an order granting a defendant’s motion to dismiss a criminal charge, this court will only reverse the determination of the district court if the state demonstrates clearly and unequivocally that the district court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.  State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991). 

Respondent argues that although the district court dismissed the test-refusal charge, the state has not shown critical impact on the outcome of the prosecution because respondent remains subject to prosecution for the third-degree-DWI charge.  But this court concluded in Poupard that the critical-impact requirement was met when one of two charges was dismissed.  Id. In establishing the critical-impact requirement, “[t]he state is not required to show that its case becomes so weak that all possibility of conviction has been destroyed.”  State v. Carlin, 423 N.W.2d 741, 743 (Minn. App. 1988), review denied (Minn. Oct. 13, 1989).  Even though respondent may ultimately be convicted of the remaining charged offense, dismissing the test-refusal charge will have a critical impact on the outcome of a trial because respondent cannot be convicted of test refusal.

The state argues that the district court erred in its judgment when it concluded that the implied-consent advisory violates due process.  We agree.  This court held in State v. Myers, ___ N.W.2d ___ (Minn. App. Mar. 14, 2005), which is being released concurrently with this opinion, that when the implied-consent advisory is administered to a person under Minn. Stat. § 169A.51, subd. 2 (2004), failing to inform the person that test refusal is a gross misdemeanor that may result in harsher penalties than a test failure does not violate the person’s due-process rights.

Reversed and remanded.

 

 

RANDALL, Judge (concurring specially).

I concur in the result.  See State v. Myers, ___ N.W.2d ___ (Minn. App. Mar. 14, 2006) (Randall, J., concurring specially).