Evidence Insufficient Because of Failure to Include One of Three Predicate Prior Convictions In List of Qualifying DWI Enhancement Offenses

State v. Smith, Minn.S.Ct., 7/19/2017.  Here's how this rare plurality opinion begins:

The legal question presented in this case is whether appellant Ryan Leroy Smith’s 2005 gross-misdemeanor conviction of criminal vehicular operation is a “prior impaired driving conviction” under Minn. Stat. § 169A.03, subd. 20 (2008). The question is relevant here because Smith’s current offense, driving while impaired, was enhanced to a first degree crime based on the existence of three prior impaired-driving convictions, including Smith’s 2005 criminal-vehicular-operation conviction. The court of appeals held that Smith’s current offense was properly charged and adjudicated as a first-degree crime because his 2005 conviction was a qualifying offense. State v. Smith, No. A15-0570, 2016 WL 1081154, at *1-2 (Minn. App. Mar. 21, 2016) (analyzing Minn. Stat. § 169A.03, subd. 20). We conclude that, because Smith’s 2005 conviction is not included in the list of qualifying offenses in Minn. Stat. § 169A.03, subd. 20, there was insufficient evidence to convict Smith of first-degree driving while impaired. Accordingly, we reverse.

The result is that the Court throws out on insufficiency grounds Mr. Smith's first degree DWI conviction.  One of Mr. Smith's prior convictions used for enhancement was a 2005 criminal vehicular operation offense. When the legislature subsequently reorganized the CVO statutes it moved the language under which Mr. Smith had been convictetd to a different subsection of the statute; it then stirred the pot even more when it amended the DWI enhancement statute.  That amendment listed each offense that could be used for enhancement by statutory citation, including year of enactment.  Conspicuously absent from that list was the 2005 citation (and year of enactment) of Mr. Smith's CVO offense.

Justice Stras, with Justices G. Barry Anderson and Hudson joining this plurality opinion says, "Show me the statute!"  It's not there and we don't write statutes.  Chief Justice Gildea, not signing on to Justice Stras's literalist interpretation of all things statutory, concurs only in the judgment; she finds the statutes ambiguous and she engages in legislative intent analysis.  She thought that both Mr. Smith and the State had equally compelling arguments.  That left her with "rule of lenity" under which the victory goes to Mr. Smith.

The other three justices dissent, basically concluding that what the legislature did was close enough for government work.  They thought that because the legislature had kept the very same statutory language under which Mr. Smith had been convicted back in 2005 but just in a different subsection, the legislature clearly intended to include it an a qualifying prior conviction.