Supreme Court Grants Review on Question of Computing "Within Ten Years" of prior DUI Convictions

State v. Wertheimer, Minn.Ct.App., 4/7/ 2009, review granted, 6/*/2009.  The state charged Mr. Wertheimer with first degree driving while impaired, for an arrest on May 12, 2007.  He had thrice been convicted of DWI, one of which occurred on May 12, 1997.  (See where this is going?)

Mr. Wertheimer argued that the May 12, 1997 DWI conviction was not "within ten years of three prior qualified driving related offenses."  The trial court and the court of appeals disagreed, relying upon a statute by which to compute time, Minn. Stat. 645.15.  This statute says:

Where the performance or doing of any act, duty, matter, payment, or thing is ordered or directed, and the period of time or duration for the performance or doing thereof is prescribed and fixed by law, the time, except as otherwise provided in sections 645.13 and 645.14, shall be computed so as to exclude the first and include the last day of the prescribed or fixed period or duration of time. When the last day of the period falls on Saturday, Sunday, or a legal holiday, that day shall be omitted from the computation.

So, you don't count May 12, 1997 so the ten year term commences the next day, May 13, 1997.  You do count the last day, which would be May 12, 2007.  The 1997 conviction is in.  The Supreme Court has granted review.