This opinion will be unpublished and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

A05-2496

 

State of Minnesota,

Respondent,

 

vs.

 

Patti Ann Olson,

Appellant.

 

Filed November 7, 2006

Affirmed

Kalitowski, Judge

 

Martin County District Court

File No. 46-CR-05-365

 

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

 

Terry W. Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County Attorney, 123 Downtown Plaza, Fairmount, MN 56031 (for respondent)

 

John M. Stuart, State Public Defender, Stephen L. Smith, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Patti Ann Olson challenges the district court’s decision to revoke her probation.  We affirm.  

D E C I S I O N

            A 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.”  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  Whether the district court made the proper findings before revoking probation is a legal question subject to de novo review.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). 

            The district court must consider three factors on the record before revoking probation.  Id. at 607.  Specifically, it must:  “1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that need for confinement outweighs the policies favoring probation.”  Austin, 295 N.W.2d at 250.  The third factor is satisfied if:

(i)     confinement is necessary to protect the public from further criminal activity by the offender; or

(ii)    the offender is in need of correctional treatment which can most effectively be provided if he is confined; or

(iii)  it would unduly depreciate the seriousness of the violation if probation were not revoked. 

 

Id. at 251. 

            Here, appellant pleaded guilty to felony DWI (test refusal), Minn. Stat. § 169A.20, subd. 2 (2004), and received a stayed presumptive sentence of 42 months’ incarceration.  Among the conditions of probation, the district court ordered appellant to abstain from consuming alcohol.  Within two months, appellant admitted to consuming alcohol on two occasions.  The district court revoked probation.

            Appellant argues that the district court failed to adequately address the Austin factors.  We disagree.  The record reflects that the district court specifically and satisfactorily addressed each of the three Austin factors.

            Specifically, appellant contends that the district court erred by deciding that the need for appellant’s confinement outweighed the policies favoring probation.  “The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed.”  Austin, 295 N.W.2d at 250.  The record here indicates that appellant’s prior attempts at treatment have failed.  Appellant has had opportunities to seek out and succeed at community-based chemical dependency treatment programs.  And in addition to the current conviction, appellant has three prior DWI or test-refusal convictions and has undergone inpatient chemical dependency treatment twice.  Moreover, the record indicates that appellant was attending Alcoholics Anonymous meetings at the time of the probation violations. 

            Based on this record, we reject appellant’s argument that the district court was required to order additional community-based chemical dependency treatment instead of reinstating her sentence.  In addition, appellant fails to explain how the community-based chemical dependency treatment program she seeks would provide more benefits than the same program conducted at the prison. 

            We conclude that the district court did not abuse its discretion by deciding to revoke appellant’s probation and execute her sentence.

            Affirmed.