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State v. Zeimet

January 13, 2004

STATE OF MINNESOTA, RESPONDENT,
v.
ROBERT S. ZEIMET, APPELLANT.



Ramsey County District Court File No. K9-02-2852

Considered and decided by Lansing, Presiding Judge; Wright, Judge; and Crippen, Judge.

SYLLABUS BY THE COURT

Under Minnesota statutes and sentencing guidelines, a prosecutor may elect to use qualified prior civil impaired-driving incidents to enhance an offender's driving-while-impaired charge to a first-degree felony level, leaving qualified prior criminal impaired-driving incidents for use in augmenting the offender's criminal history score.

The opinion of the court was delivered by: Crippen, Judge*fn1

Affirmed

OPINION

Appellant, who was convicted of a felony-level enhanced DWI offense because of qualified prior impaired-driving incidents, disputes the enhancement of his offense based on prior civil incidents. Under the governing statutes, a DWI offense is enhanced to a felony level if the defendant has three or more qualified prior impaired-driving incidents, either civil or criminal.

Appellant acknowledges the existence of six impaired-driving incidents, four criminal and two civil, that qualify to enhance his DWI offense. Under the sentencing guidelines, prior criminal incidents not used for enhancement must be used in calculating appellant's criminal history score upon conviction. See Minn. Sent. Guidelines II.B.6.; Minn. Sent. Guidelines cmt. II.B.301. Appellant disputes the prosecutor's use of two prior civil impaired-driving incidents and one criminal incident for enhancement purposes, thus preserving for criminal history score calculation purposes three of the four prior criminal impaired-driving incidents. As a result of the application of these three criminal incidents, appellant's criminal history score was increased by one point and his presumptive sentence increased from 66 months to 72 months. Because we determine, as did the trial court, that the statute unambiguously permits this disputed election by the prosecutor, we affirm.

FACTS

Appellant's record included six qualified prior impaired-driving incidents between 1995 and 2002. The first two incidents were civil in nature, while the last four incidents were criminal convictions. The prosecutor elected to use appellant's two civil qualified prior impaired-driving incidents and one criminal qualified prior impaired-driving incident to enhance the DWI charge to a felony level. The remaining criminal incidents, which consisted of gross misdemeanor convictions, became the basis for appellant's criminal history score.*fn2

The trial court found that governing laws unambiguously permit the prosecutor's election to use appellant's civil qualified prior impaired-driving incidents for felony enhancement and thus preserve appellant's criminal qualified prior impaired-driving incidents for criminal history score calculation purposes.

ISSUE

Did the trial court properly permit the prosecutor to use civil incidents for ...


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