Multiple Children in The Vehicle Is Still Only A Single Aggravating Factor Under DWI Statute

State v. Fichtner, Minn.Ct.App., 7/13/2015.  The state charged Ms. Fichtner with driving while impaired, test refusal and child endangerment.  A deputy stopped Ms. Fichtner's van on a report from her parents that she was driving intoxicated with three kids in the vehicle.  A jury convicted her of all three offenses and the trial judge imposed three sentences.

At trial and on appeal Ms. Fichtner challenged the constitutionality of the test refusal statute.  State v. Bernard, 844 N.W.2d 41 (Minn.Ct.App. 2014), affirmed on other grounds, 859 N.W.2d 762 (Minn. 2015) pretty much shuts the door on that challenge in state court.  

This was Ms. Fichtner's first DWI charge which would be misdemeanor fourth degree DWI.  The state, however, charged her with second degree DWI because of the presence of "one or more" aggravating factors, namely the three kids in the van.  The DWI laws say that "having a child under the age of 16 in the motor vehicle at the time of the offense if the child is more than 36 months younger than the offender" is an "aggravating factor." Now, each qualified prior impaired driving incident within the specified time period counts as a separate aggravating factor.  But, there's no statute that says whether multiple children in the vehicle may be counted as multiple aggravating factors.  The state went ahead and counted each of the three children anyway as separate aggravating factors, which upped the charge from fourth degree to second degree DWI.  

The court of appeals concludes that having more than one kid in the car does not allow the judge to aggregate aggravating factors.  One kid or a bus load, doesn't matter, it's only one aggravating factor. If the legislature had wanted each child to count as a separate aggravating factor it could have said so, as it did for each qualified prior impaired driving incident. The upshot is that Ms. Fichtner's second degree DWI gets reduced to a third degree DWI conviction.

The trial court admitted the 911 recording both as substantive and impeachment evidence.  The court of appeals concludes that although the recording was not admissible under Rule 801(d)(1)(A) because it was not made under oath, the erroneous admission was harmless error under a Crawford analysis.

Finally, the state agreed that Ms. Fitchner's conduct was part of a single behavioral incident and so she could only be sentenced on one of the three gross misdemeanors.  The court of appeals sent the case back to the trial court to decide which of the three was the "most serious."