Swift County District Court File No. 76-CR-11-208
SYLLABUS 1. Felony test refusal is a predicate offense for first-degree driving while impaired (DWI), Minn. Stat. § 169A.24 (2010). Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 2. A prior felony conviction of impaired driving or test refusal that is used to enhance a violation of Minn. Stat. § 169A.20 (2010) must be included in the offender's criminal-history score.
The opinion of the court was delivered by: Halbrooks, Judge
Considered and decided by Halbrooks, Presiding Judge; Larkin, Judge; and Huspeni, Judge.
On appeal from his convictions of first-degree DWI for impaired driving, first-degree DWI for test refusal, and fleeing a police officer, appellant argues that the district court's jury instruction on the enhancement element of first-degree DWI was based on an erroneous view of the law because it allowed his current violations of the DWI statute to be enhanced by a prior felony conviction of test refusal. In the alternative, appellant argues that his sentence should be reduced because the district court erred by including the prior felony conviction that was used for enhancement in his criminal-history score.
Because the first-degree DWI statute, Minn. Stat. § 169A.24, defines as predicate offenses "a felony under this section," therefore including both impaired-driving and test-refusal felony offenses, we hold that a prior felony conviction of test refusal can be used to enhance a subsequent violation of the DWI statute to a first-degree offense. And because the sentencing guidelines require that prior felonies used for enhancement be included in an offender's criminal-history score, we affirm appellant's sentence.
In 2004, appellant Clarence Peter Kjeseth was charged with first-degree DWI for impaired driving and first-degree DWI for test refusal. Those incidents were charged as first-degree offenses based on "four prior qualified impaired driving incidents" from 1999 to 2001. Kjeseth pleaded guilty to first-degree DWI for test refusal, and the other charge was dismissed.
In 2011, Kjeseth was charged with first-degree DWI for impaired driving in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24; first-degree DWI for test refusal in violation of Minn. Stat. §§ 169A.20, subd. 2, .24; and fleeing a peace officer in violation of Minn. Stat. § 609.487, subd. 6 (2010). The two DWI violations were charged as first-degree offenses based on Kjeseth's 2004 felony DWI.
Kjeseth pleaded not guilty to all three counts and went to trial. After the close of evidence, the district court proposed a jury instruction on the applicable enhancement element of first-degree DWI that asked the jury to determine whether Kjeseth had a previous felony conviction for DWI or refusal to submit to testing. Defense counsel objected to that instruction, arguing that "the legislature did not mean that refusal to submit to testing [be] included in [section 169A.24]" and noting that the CRIMJIG on first-degree DWI enhancement refers only to impaired-driving priors. The district court recognized that its proposed instruction deviated from the CRIMJIG, but explained that the CRIMJIG "doesn't include everything that is within [section 169A.24]." At the close of trial, the district court instructed the jury that if they found Kjeseth guilty of either the impaired-driving or test-refusal charge they must answer the additional question on their verdict form: "Did the defendant have a previous felony conviction for driving while impaired or refusal to submit to testing."
The jury found Kjeseth guilty on all counts and answered "yes" to the question of whether he had a prior felony conviction for impaired driving or test refusal. Before sentencing, probation calculated Kjeseth's criminal-history score to be five, a score that included 1.5 points for his 2004 conviction. The district court sentenced Kjeseth to 66 months in prison, the presumptive sentence for felony DWI by an ...