State v. Retzlaff, Minn.Ct.App., 11/21/2011, petition for further review GRANTED. In August 2009, a deputy stopped a car driven by Mr. Retzlaff after observing the car twice cross the center line. The deputy arrested Mr. Retzlaff for driving while impaired; his breath sample produced an alcohol concentration of 0.19. The state charged Mr. Retzlaff with first degree driving while impaired because Mr. Retzlaff had a 2000 conviction for criminal vehicular operation.
Mr. Retzlaff did not dispute that he was operating a car while under the influence of alcohol. Rather, he zeroed in on the second requirement of a first degree DWI charge, that he “ha[d] previously been convicted of a felony under section 609.21, subdivision 1, clause (2), (3), (4), (5), or (6).” Minn.Stat. 169A.20, subd. 1(3) (2008). Let’s get the complete DWI provision out and highlight the pertinent part:
A person who violates section 169A.20 (driving while impaired) is guilty of first-degree driving while impaired if the person: (1) commits the violation within ten years of the first of three or more qualified prior impaired driving incidents; (2) has previously been convicted of a felony under this section; or (3) has previously been convicted of a felony under section 609.21, subdivision 1, clause (2), (3), (4), (5), or (6).
Minn. Stat. § 169A.24, subd. 1. Now, back in the day, at the time of Mr. Retzlaff’s conviction, criminal vehicular operation was codified at 609.21, subd. 2a; today’s 169A.20’s list of predicate felony offenses does not mention subdivision 2a, because the legislature reshuffled a bunch of the statute numbers. The court of appeals passes this off as nothing more than a “numeric irregularity,” rather like too many slices of pizza. To follow what the court concedes is the statute’s plain language leads to what it characterizes as an “absurd result that contradicts the statute’s obvious intent.” The court upholds the conviction and sentence.
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