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State v. Kier

April 27, 2004

STATE OF MINNESOTA, RESPONDENT,
v.
JOHN FREDERICK KIER, APPELLANT.



Polk County District Court File No. KX021191

Considered and decided by Willis , Presiding Judge; Schumacher , Judge; and Wright , Judge.

SYLLABUS BY THE COURT

A sentencing court may commit a person to the commissioner of corrections for a gross misdemeanor under Minnesota law when the sentence is served consecutively to a felony sentence.

The opinion of the court was delivered by: Robert H. Schumacher, Judge

Affirmed

OPINION

Appellant John Fredrick Kier was convicted of first-degree refusal to submit to testing under Minn. Stat. §§ 169A.20, subd. 2, and.24 (2002), possession of open bottle under Minn. Stat. § 169A.35, subd. 2 (2002), transportation of firearms under Minn. Stat. §§ 97B.045 (2002), and driving after cancellation under Minn. Stat. § 171.24, subd. 5 (2002). He challenges his convictions arguing the police did not have probable cause to believe he was driving under the influence of alcohol. Kier also challenges his 66-month commitment to the commissioner of corrections for first-degree refusal to submit to testing conviction and his consecutive 12-month commitment to the commissioner of corrections for his driving after cancellation conviction. He argues the sentencing court erred when executing both sentences without considering its alternatives and the court did not have the authority to commit him to the commissioner of corrections for the 12-month sentence. We affirm.

FACTS

This is an appeal from a trial in district court pursuant to the procedures outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The only evidence presented at trial was the arresting officer's report, Kier's driving record, the implied consent advisory, and a videotape that was recorded by the in-dash video camera in the arresting officer's vehicle. The facts of this case are derived from the statements contained in the officer's report and the videotape recording of the stop.

In August 2002, at about Midnight, Deputy Phillip Juve observed Kier's van make a U-turn from a parked position and drive away without Kier turning on the van's headlights. Juve stopped the van because Kier's failure to illuminate his headlights was in violation of Minnesota law.

Shortly after the stop, the following conversation took place between Juve and Kier:

Juve: Hello there. Do you know why I stopped you, sir.

Kier: Inaudible.

Juve: Do you know why I stopped you? [No response] Do you know why I stopped you?

Kier: Because I made a U-turn.

Juve: That, and you also didn't have your ...


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