Permissive Consecutive Sentencing on a DUI Is At A Zero Criminal History Score

State v. Johnson, Minn.Ct.App., 8/18/2009.  An officer down in Scott County stopped Mr. Johnson, apparently on suspicion of driving while impaired.  He was.  The state charged him with gross misdemeanor driving after cancellation and with felony first degree driving while impaired.  He pled guilty to both charges, with an agreement for the court to sentence him first on the gross misdemeanor.

His criminal history score was eight.   The district court gave Mr. Johnson a year in jail on the gross misdemeanor.  The trial court used the history score of 8  and imposed a stayed sentence of 102 months, consecutive to the gross misdemeanor, which was a departure from the guideline sentence of 75 months executed.  Later, the district court reduced the sentence on the felony to 75 months, again using a history score of eight.

Mr. Johnson appealed, saying that the trial court should have sentenced him at the zero history score level.  The appellate gets to that after first pointing out that permissive consecutive sentencing for the felony is authorized by statute, Minn.Stat. 169A.28, subd. 3:

The court may order that the sentence imposed for a violation of section 169A.20 (driving while impaired) run consecutively to a previously imposed misdemeanor, gross misdemeanor, or felony sentence for a violation other than section 169A.20.

When it came time to sentence of the felony, he had the requisite “[just] previously imposed … gross misdemeanor … sentence for a violation other than section 169A.20.

The real fight is over the history score, zero (for permissive consecutive sentencing) or eight.  The state argued that because Guidelines II.F.2. says nothing about permissive consecutive sentencing for a felony driving while impaired then the actual criminal history score wins.  The state’s argument is based on this language from II.F.:

Except when consecutive sentences are presumptive, consecutive sentences are permissive (may be given without departure) only in the following cases . . . .

And then it lists seven instances where permissive consecutive sentencing is okay, none of which is remotely close to a felony driving while impaired sentence.  The appellate court says, no, anyway, that the correct history score is zero, mostly because it doesn’t like the result.  While the appellate court correctly points out that the statute, 169A.28, subd. 3 is more specific than the guidelines, the statute is totally silent on what criminal history score to utilize so the court’s footnoted reliance on this argument is somewhat thin.  Nonetheless, Mr. Johnson wins and gets to go back for a new sentencing hearing with a zero history score.