In sentencing a felony driving-while-impaired offender, qualified criminal predicate convictions must first be allocated for the purpose of enhancement of the current driving while impaired offense to a felony, and the same predicate convictions cannot be used a second time in the determination of the offender's criminal history score. Qualified criminal predicate convictions in excess of those used for enhancement will be available in the computation of the offender's criminal history score on the current offense.
The opinion of the court was delivered by: Anderson, Russell A., Justice.
Took No Part, Anderson, G. Barry, J.
Heard, considered and decided by the court en banc.
This is a sentencing appeal. Appellant Robert S. Ziemet disputes the computation of his criminal history score in sentencing for first-degree driving while impaired. Concluding that the computation of the criminal history score was inconsistent with Minnesota Sentencing Guidelines goals and policies, we reduce the sentence to 66 months, the presumptive sentence available under the guidelines when properly computed, and affirm as modified.
On August 6, 2002, appellant Robert S. Zeimet (Zeimet) was arrested and ultimately charged with two counts of first-degree driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(1) (2004) (driving when under the influence of alcohol) and Minn. Stat. § 169A.20, subd. 1(5) (2004) (driving while having an alcohol concentration of .10 or more), felony-level offenses when the driving violation is committed "within ten years of the first of three or more qualified prior impaired driving incidents." Minn. Stat. § 169A.24 (2004). Qualified prior impaired driving incidents include both criminal impaired driving convictions and civil impaired driving-related losses of license. Minn. Stat. § 169A.03, subd. 22 (2004). The probable cause portion of the complaint in this case identified six qualified prior impaired driving incidents within ten years of the August 6 violation, two civil and four criminal.*fn1 Zeimet entered a guilty plea to the second count of the complaint in exchange for the dismissal of the first count and a guidelines sentence.
The Ramsey County Corrections Department conducted a presentence investigation and prepared a sentencing worksheet recommending a presumptive sentence of 72 months based on a criminal history score of six, using the most recent three impaired driving incidents which were criminal convictions to enhance the offense to a felony and the remaining civil and criminal impaired driving incidents in the computation of the criminal history score. The worksheet also noted the statutorily mandated five-year conditional release period.
By memorandum filed on December 2, 2002, Zeimet challenged the inclusion of the civil incidents in the computation of the criminal history score, asserting that his criminal history score, as properly calculated, was five. On December 12, 2002, county corrections submitted an amended sentencing worksheet, using the two civil impaired driving incidents and one criminal impaired driving incident to enhance the offense to a felony level and the remaining three criminal incidents in the computation of the criminal history score, arriving at the same score of six and presumptive sentence of 72 months.*fn2 Following a hearing, the district court sentenced Zeimet to 72 months in prison along with the statutorily-mandated five-year conditional release period.
Zeimet appealed, challenging the computation of the criminal history score. The court of appeals affirmed, holding that under the guidelines and governing statutes, a prosecutor may elect to use qualified prior civil impaired driving incidents for enhancement purposes and preserve qualified prior criminal impaired driving incidents for use in the criminal history score computation. State v. Zeimet, 673 N.W.2d 191 (Minn. App. 2004). We granted further review.
Whether a statute or a provision of the sentencing guidelines has been properly construed is a question of law to be reviewed de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996) (applying de novo review to terroristic threats statute); State v. Garcia, 302 N.W.2d 643, 646-47 (Minn. 1981) (applying de novo review to district court's interpretation of sentencing guidelines). The object of statutory interpretation is to determine and effectuate legislative intent. In re Welfare of C.R.M.,611 N.W.2d 802, 805 (Minn. 2000). The ambit of an ambiguous criminal law should be construed narrowly according to the rule of lenity. State v. Lubitz,472 N.W.2d 131, 133 (Minn. 1991) (applying rule of lenity to ambiguous minimum sentencing provision).
In 2001, the legislature amended the impaired driving crimes statutes to include a felony-level offense. Act of June 30, 2001, ch. 8, art. 11, § 3, 2001 Minn. Laws, 1st Spec. Sess. 1943, 2112 (codified at Minn. Stat. § 169A.24 (2004)). The provision applied to offenses committed on or after August 1, 2002, but violations occurring before that date may be considered as qualified prior impaired driving incidents. Id., § 17, 2001 Minn. Laws, 1st Spec. Sess. at 2120.
As previously indicated, the first-degree impaired driving statute makes a driving-while-impaired offense a felony when the person commits the current "violation within ten years of the first of three or more qualified prior impaired driving incidents." Minn. Stat. § 169A.24, subd. 1(1).*fn3 Qualified prior impaired driving incidents include both "prior impaired driving convictions" and "prior impaired driving-related losses of license." Minn. Stat. § 169A.03, subd. 22. The term "prior impaired driving conviction" includes criminal convictions for alcohol-related driving offenses. Minn. Stat. § 169A.03, subd. 20. The term "prior impaired driving-related loss of license" includes alcohol-related driver's license suspensions, revocations, cancellations, denials and disqualifications. Minn. Stat. § 169A.03, subd. 21 (2004).*fn4 When a person has both a qualified prior impaired driving conviction and a qualified ...