State of Minnesota, Respondent, vs. John Frederick Kier, Appellant.

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-643

 

 

State of Minnesota,

Respondent,

 

vs.

 

John Frederick Kier,

Appellant.

 

 

Filed April 27, 2004

Affirmed

Robert H. Schumacher, Judge

 

Polk County District Court

File No. KX021191

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Gregory A. Widseth, Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Wright, Judge.

S Y L L A B U S

            A sentencing court may commit a person to the commissioner of corrections for a gross misdemeanor under Minnesota law when the sentence is served consecutively to a felony sentence.

O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant John Fredrick Kier was convicted of first-degree refusal to submit to testing under Minn. Stat. §§ 169 A. 20, subd. 2, and .24 (2002), possession of open bottle under Minn. Stat. § 169 A. 35, subd. 2 (2002), transportation of firearms under Minn. Stat. §§ 97B.045 (2002), and driving after cancellation under Minn. Stat. § 171.24, subd. 5 (2002).  He challenges his convictions arguing the police did not have probable cause to believe he was driving under the influence of alcohol.  Kier also challenges his 66-month commitment to the commissioner of corrections for first-degree refusal to submit to testing conviction and his consecutive 12-month commitment to the commissioner of corrections for his driving after cancellation conviction.  He argues the sentencing court erred when executing both sentences without considering its alternatives and the court did not have the authority to commit him to the commissioner of corrections for the 12-month sentence.  We affirm.

FACTS

            This is an appeal from a trial in district court pursuant to the procedures outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The only evidence presented at trial was the arresting officer's report, Kier's driving record, the implied consent advisory, and a videotape that was recorded by the in-dash video camera in the arresting officer's vehicle.  The facts of this case are derived from the statements contained in the officer's report and the videotape recording of the stop.

In August 2002, at about Midnight, Deputy Phillip Juve observed Kier's van make a U-turn from a parked position and drive away without Kier turning on the van's headlights.  Juve stopped the van because Kier's failure to illuminate his headlights was in violation of Minnesota law.

            Shortly after the stop, the following conversation took place between Juve and Kier:

Juve:   Hello there.  Do you know why I stopped you, sir.

 

Kier:   Inaudible.

 

Juve:   Do you know why I stopped you?  [No response] Do you know why I stopped you?

 

Kier:   Because I made a U-turn.

 

Juve:   That, and you also didn't have your headlights on.

 

Kier:   Yeah, I know it.  I just realized it.

 

When Juve asked Kier to sit down in the driver's seat of his vehicle, Kier responded, "I got to take a piss," and he proceeded to walk to the front of the vehicle where he disappeared from the camera's view for a short time. 

Juve stated during this initial conversation he "observed a strong odor of an alcoholic beverage coming from the driver's breath, he had blood-shot watery eyes and slurred speech."  Juve also noticed an open can of beer on a cooler next to the driver's seat and asked Kier to hand him the can. 

Once Kier was back in the driver's seat of his vehicle, Juve asked Kier for his full name.  Kier initially told Juve his name was Frederick James Kier.  Kier later admitted his name was John Frederick Kier. 

Juve ran a check on Kier's driver's license.  He was informed that Kier's license was cancelled as inimical to public safety.  The presentence investigation report shows Kier in fact had been convicted of driving-under-the-influence-of-alcohol-related charges 23 times in the past, and since his arrest in this matter, he has been charged with driving under the influence of alcohol in Carlton County.

Juve returned to Kier's vehicle and asked him to step to the back of the vehicle.  Juve asked Kier to perform routine field tests for alcohol impairment.  Kier was unable to follow Juve's pen without moving his head, and when he recited the alphabet his speech was undecipherable at times.  Juve also asked Kier to count backwards from 87 to 63.  Before completing the test, Kier said:  "This doesn't make no sense to me."  At that point, Juve arrested Kier for driving under the influence. 

            While Kier was in custody, Juve asked him to submit to a preliminary breath test.  Kier refused to take the test.  At the police station, Juve read Kier the Minnesota implied consent advisory.  Kier said he wanted to call his wife and have her contact an attorney.  He was allowed to call his wife but never asked her to get an attorney.  After Kier finished speaking to his wife, Juve requested Kier submit to a breath test.  Kier refused. 

            The state charged Kier with first-degree driving while impaired, first-degree refusal to submit to testing, possession of open bottle, transportation of firearms, and driving after cancellation.  The state dismissed the charge of driving while impaired.  Kier moved to have the complaint dismissed for lack of probable cause or, in the alternative, to exclude all statements Kier made following his arrest.  After an omnibus hearing, the court denied both motions.  The trial court found Kier guilty of all remaining charges. 

            At the sentencing hearing, the court sentenced Kier to an executed sentence of 66 months for the first-degree failure-to-submit-to-testing conviction, an executed consecutive sentence of 12 months for the driving-after-cancellation conviction, and concurrent sentences of 90 days on his other two convictions.  At the hearing, Kier argued that it was not appropriate to impose an additional sentence on top of this 66-month sentence, and, if the mandatory language applied, the district court should impose zero extra time. 

ISSUES

1.         Did the sentencing court err when it required the 12-month sentence for a gross misdemeanor to be served in prison when that sentence is served consecutive to a felony offense?

2.         Did the sentencing court err when it did not exercise its discretion to stay the 66-month sentence or the consecutive 12-month sentence?

3.         Did Juve have probable cause to believe Kier was driving under the influence of alcohol when he arrested Kier?

ANALYSIS

1.         Kier argues that the sentencing court lacked authority to commit him to the custody of the commissioner of corrections for a 12-month sentence.  We