A06-82

State of Minnesota,

Appellant,

vs.

Adam Lee Milkent,

Respondent.

Filed June 29, 2006

Reversed and remanded

Willis, Judge

Winona County District Court

File No. K6-04-1253

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

Charles E. MacLean, Winona County Attorney, Nancy L. Bostrack, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN 55987 (for appellant)

Mark D. Nyvold, Special Assistant State Public Defender, 332 Minnesota Street, W1610, St. Paul, MN 55101 (for respondent)

Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

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

WILLIS, Judge

Appellant state challenges the district court’s pretrial dismissal of the first- and second-degree DWI charges against respondent. Because respondent’s prior Wisconsin convictions of operating a vehicle while intoxicated may be used to enhance the current Minnesota DWI charges against him, we reverse and remand.

FACTS

In May 2004, respondent Adam Lee Milkent drove his car into a parked vehicle in Winona. A blood test showed that Milkent’s alcohol concentration was .16. The state charged Milkent with two counts of first-degree driving while impaired (DWI), one count of second-degree DWI, and one count of driving without a valid driver’s license.

Since 1996, Milkent has been convicted three times in Wisconsin of operating a vehicle while intoxicated (OWI), and his Wisconsin driver’s license is revoked. The state used the three Wisconsin convictions to enhance the charges against Milkent arising from the May 2004 incident.

Milkent moved to dismiss the first- and second-degree DWI charges for lack of probable cause. After a contested omnibus hearing, the district court concluded that Milkent’s three prior Wisconsin convictions could not be used to enhance the Minnesota DWI charges and dismissed the two counts of first-degree DWI and the single count of second-degree DWI. The state appeals.

D E C I S I O N

The state argues that the district court erred by concluding that Milkent’s prior Wisconsin convictions could not be used to enhance the current Minnesota charges against Milkent and by dismissing the charges of first- and second-degree DWI. When reviewing an appeal from a pretrial determination, this court will reverse only if the state demonstrates that (1) the district court erred in its judgment, and (2) the error will have a critical impact on the trial’s outcome. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987). A district court’s dismissal of a charge “clearly has a critical impact on the outcome of the trial.” State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991).

Minnesota law provides a scheme of penalties and enhanced penalties for individuals who drive, operate, or are in physical control of a motor vehicle while impaired by chemical substances. Minn. Stat. งง 169A.01-.78 (2004). An impaired-driving incident within the ten years immediately preceding a current offense is an aggravating factor that permits enhancement of the current impaired-driving offense. Minn. Stat. งง 169A.03, subds. 3(1), 22; 169A.24, subd. 1(1). Here, the state used Milkent’s Wisconsin OWI convictions to enhance the charges for the current Minnesota DWI offense.

The Minnesota Constitution guarantees an individual “the limited right to counsel” before deciding to submit to an alcohol-concentration test. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 837 (Minn. 1991). This right attaches at “the point at which an individual is asked by law enforcement officials to undergo” the test. Id.

In Wisconsin, “drivers are deemed to have given implied consent to chemical testing as a condition of receiving” the privilege to operate a motor vehicle. State v. Reitter, 595 N.W.2d 646, 652 (Wis. 1999). And Wisconsin drivers do not have a right to counsel before deciding whether to submit to an alcohol-concentration test. Id. at 652-53.

The state argues that Milkent’s three prior Wisconsin convictions may be used to enhance the May 2004 offense because the Wisconsin convictions were based on Milkent’s conduct, not on alcohol-concentration tests. But we do not need to address this distinction. While this appeal was pending, the Minnesota Supreme Court held that the interests underlying Minnesota’s recognition of a limited right to counsel before deciding whether to submit to an alcohol-concentration test are not sufficient to justify disregarding a conviction entered in a state whose laws do not provide a right of counsel before making such test decisions. State v. Schmidt, 712 N.W.2d 530, 539 (Minn. 2006). Such convictions may be used to enhance Minnesota DWI offenses. Id. Therefore, Milkent’s prior Wisconsin convictions may be used to enhance the Minnesota DWI charges.

Reversed and remanded.