Prior Test Refusal Enhances Current DWI to Felony and Can Count in Criminal History Score

State v. Kjeseth, Minn.Ct.App., 4/8/2013.  A jury convicted Mr. Kjeseth of felony DWI, impaired driving, first degree DWI, test refusal, and fleeing a police officer (which no one cares about now).  The DWI counts are felony counts because some years earlier Mr. Kjeseth pled guilty to a felony DWI, test refusal.  More specifically, these counts are felonies when a defendant who violates Minn.Stat. 169A.20 “has previously been convicted of a felony “under this section.”  Mr. Kjeseth maintained that only a prior felony impaired driving offense – not a prior test refusal – can support a conviction under the first degree DWI statute.

The court of appeals rejects this claim.  The court concludes that there is nothing ambiguous about the language of the statute, which leaves its “plain meaning” in control.  169.24 “expressly provides” for enhancement of any felony violation of 169.20.  Just because the statutes – both of them – are headed “driving while impaired” test refusal is not excluded from the enhancement predicates.  The court also observes that the model criminal instruction, CRIMJIG 29.22, which is also limited to “driving while impaired” is incomplete by its omission of test refusal .

When it came time for sentencing, the district court included Mr. Kjeseth’s previous felony test refusal in his criminal history point count.  The Guidelines require this:

If the current offense is a felony DWI offense and the offender has a prior felony DWI offense, the prior felony DWI shall be used in computing the criminal history score, but the prior misdemeanor and gross misdemeanor offenses used to enhance the prior felony DWI cannot be used in the offender’s criminal history.

And State v. Zeimet, 696 N.W.2d 791 (Minn. 2005) is, according to both the court of appeals and the Guidelines Commission, limited to subsection (1) of 169A.24  – first of three or more qualified prior impaired driving incidents – and to prior misdemeanors.  Neither the court nor the Guidelines Commission seem to think that the language of Zeimet that prior predicate convictions must first be allocated for the purpose of enhancement of the current offense “and the same predicate convictions cannot be used a second time in the determination of the offender’s criminal history score” has any bearing.