State of Minnesota, Respondent, vs. Tod James Biniek, Appellant.

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State of Minnesota, Respondent, vs. Tod James Biniek, Appellant. A06-1329, Court of Appeals Unpublished Decision, September 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).







State of Minnesota,





Tod James Biniek,




Filed September 18, 2007

Affirmed in part, reversed in part, and remanded

Lansing, Judge



Dakota County District Court

File No. 19-K5-05-1886



Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


David Kendall, LeVander, Gillen and Miller, 633 South Concord Street, Suite 400, South St. Paul, MN 55075 (for respondent)


Max A. Keller, Interchange Tower, 600 Highway 169 South, Suite 1597, Minneapolis, MN  55426-1274 (for appellant)



            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from convictions for violating a restricted driver's license and for misdemeanor speeding, Tod Biniek challenges the sufficiency of the evidence to support each conviction.  In addition, Biniek argues that his license-violation conviction should be reversed because of a typographical error in the complaint.  Because the record contains adequate evidence of Biniek's license-violation conviction and Biniek understood the charges against him, we affirm in part.  But the record lacks sufficient evidence to support a speeding conviction as a misdemeanor rather than a petty misdemeanor.  Therefore we reverse in part and remand.


            A South St. Paul police officer stopped Tod Biniek for speeding in April 2005.  The radar in the officer's squad car indicated that Biniek was traveling 49 miles per hour in a 30 mile-per-hour zone.  When the officer obtained Biniek's license, he noticed that Biniek's eyes were watery and that the interior of Biniek's car emitted a strong odor of an alcoholic beverage.  The officer asked Biniek if he had been drinking, and Biniek replied that he had not.  The officer then asked Biniek to perform three field sobriety tests, all of which Biniek passed.  The officer also administered a preliminary breath test, which provided a result that was "under the legal limit to drive."

            In the course of issuing a citation for speeding, the officer checked Biniek's driver's license and learned that the license included a "B card" restriction that "any alcohol or drugs invalidates license."  The officer arrested Biniek for violating the restriction.  Biniek was later charged with violating the terms of his restricted license and speeding in a manner dangerous to persons or property.

            At trial the state provided testimony from the arresting officer and introduced Biniek's driving record.  Biniek then moved for a judgment of acquittal, arguing that the record contained no evidence of a positive result on the preliminary breath test and, therefore, no evidence that he had consumed alcohol in violation of his restricted license.  The court denied the motion, holding that the officer's testimony that the preliminary breath test result was "under the legal limit" allowed a reasonable inference that the result was positive.

            Biniek testified in his defense and explained that he did not consume alcohol but that he used two products that both contain alcoholListerine and Binacashortly before the officer stopped him.  The stop took place about 11:00 p.m., and Biniek testified that he was on his way to work for his night shift.  Biniek argued that any evidence that he consumed alcohol, including a positive preliminary-breath-test reading, was the result of using these products.

            The district court rejected Biniek's defense and found him guilty of both charges.  The court credited the officer's testimony and discredited Biniek's testimony because of the inconsistencies in Biniek's testimony about his sobriety date and his awareness that Listerine and Binaca contained alcohol.  The court issued written findings of fact and conclusions of law supporting its determination, and this appeal followed. 


Tod Biniek argues that his convictions for violating a restricted license and misdemeanor speeding must be reversed because the supporting evidence is insufficient.  When assessing the sufficiency of evidence, we apply the same standard to court trials as to jury trials.  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).  Our review is limited to a thorough analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the court to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The verdict should stand if the court, "while acting with due regard for the presumption of innocence and requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense, given the facts in evidence and the legitimate inferences that could be drawn" from those facts.  State v. Crow, 730 N.W.2d 272, 280 (Minn. 2007). 


            Under Minnesota law it is a gross misdemeanor to operate a motor vehicle while violating a restriction relating to the possession or consumption of alcohol.  Minn. Stat. § 171.09(b)(1) (2004).  Biniek argues that the evidence is insufficient to sustain the license violation because the state failed to prove that he consumed alcohol or willfully violated his license restriction. 

            Biniek argues that the evidence indicating he consumed alcohol is inadequate because the record contains no evidence of a positive preliminary-breath-test result.  Biniek asserts that, as a consequence, the district court's verdict rests in part on an illegitimate inference that the test returned a positive result.

            At trial, the arresting officer testified that Biniek's preliminary-breath-test result was "under the legal limit."  The district court's findings of fact do not interpret this statement.  In the course of denying Biniek's motion for a judgment of acquittal, however, the court expressed the view that the statement allowed "a reasonable inference that some presence of alcohol registered," because the officer issued the citation "based upon the [preliminary-breath-test] reading which was under the legal limit and then his information that the defendant had a B card." 

            Biniek argues that drawing that inference was improper for three reasons.  He first argues that the inference violated his right to a presumption of innocence.  See State v. Clausen, 493 N.W.2d 113, 116 (Minn. 1992) (discussing requirement that each element must be proved beyond reasonable doubt).  The presumption of innocence is reflected in the standard criminal jury instruction, which states that the mere fact of a defendant's arrest should not be viewed as evidence of a defendant's guilt.  10 Minnesota Practice, CRIMJIG 1.01B (2006).  Biniek alleges, "When the trial court ‘inferred' that certain evidence must be so because [the officer] was issued a citation, the trial court [was] saying, ‘He was charged, so he must be guilty.'" 

            The district court considered the officer's issuance of the citation to Biniek as evidence of the officer's thought process, and, incidentally, of the preliminary-breath-test reading.  The court considered the police officer's testimony on his observations of Biniek's condition and also of the preliminary-breath-test reading and from this testimonynot from the mere fact of the arrestthe court deduced that the preliminary-breath-test result was more than zero.  By all indications, the court presumed Biniek to be innocent, required the state to present evidence on each element, and ultimately determined that the state had met its burden of proof.  Biniek's right to the presumption of innocence was not violated.

            Biniek next argues that the statement that the preliminary-breath-test reading was "under the legal limit" is not proof that the reading was positive because "under the limit" includes a reading of zero.  Biniek cites Plaster v. Comm'r of Pub. Safety, 490 N.W.2d 904 (Minn. App. 1992), for support, but Plaster is factually distinguishable.

            In Plaster, we held that the evidence supporting the defendant's license revocation was insufficient because the state did not introduce any evidence that nonalcoholic beer consumed by the defendant actually contained alcohol. 907.  The beer's stated alcohol content of "less than 0.5 percent alcohol by volume" was not proof that the defendant consumed alcohol because "less than 0.5 percent" includes zero.  Id. Furthermore, the fact-finder could not infer that the smell of "alcohol" noted on the defendant's breath indicated that the beer contained alcohol because nonalcoholic beer smells like alcoholic beer regardless of the actual alcohol content.  Id. 

            In this case the central dispute is whether the preliminary breath test registered some amount of alcohol above zero, not whether the substances Biniek claims to have consumed contain alcohol.  More importantly, the inference that the preliminary-breath-test reading was not zero was based on the officer's use of that reading, the smell of an alcoholic beverage on Biniek's breath, and Biniek's watery eyes, not just on an inference from the reading itself ("under the legal limit").  This is unlike the Plaster case in which the inference was based solely on the label itself and on an odor of alcohol that turned out to be nonprobative.  The inference the district court made in this case about the preliminary-breath-test reading was legitimate. 

            Biniek's third argument is that, because the officer's "under the legal limit" testimony followed earlier testimony that Biniek passed three field sobriety tests, it is equally plausible that the "under the legal limit" description was an assessment of the tests rather than the preliminary-breath-test reading.  Biniek asserts that the rule of lenity required the court to adopt the more favorable inference.  But the rule of lenity applies to the interpretation of an ambiguous criminal statute.  State v. Holmes, 719 N.W.2d 904, 907 (Minn. 2006).  On a challenge to the sufficiency of the evidence, we ask whether the inferences made from the record were reasonable.  Crow, 730 N.W.2d at 280.  The fact that equally plausible inferences exist does not make the district court's inference unreasonable. 

            In addition, Biniek argues that the evidence is insufficient to show that he had notice of the restrictions.  Under State v. Rhode, "proof of willfulness is required to find a defendant to have violated a driver's-license restriction."  628 N.W.2d 617, 619 (Minn. App. 2001).  Biniek maintains that the state failed to prove that his driver's license contained an alcohol restriction or that he had seen his driving record before the date of the charged offense.  The record does not support this argument. 

            On cross-examination, Biniek admitted that he "had at the time, and actually still [has], what's called a B card license."  A "B card" license requires the holder to abstain from the use of alcohol and drugs.  Id.  The issuance of a "B card" license provides sufficient notice to the holder that the use of alcohol is prohibited.  Id. (citing State v. Tofte, 563 N.W.2d 322, 325 (Minn. App. 1997)).  Furthermore, Biniek admitted several times during his testimony that when he got his B card license he was told "not to consume alcohol."  Consequently, the evidence was sufficient to prove that Biniek was on notice of the restrictions and that he willfully violated them.

            The state presented evidence that the arresting officer smelled alcohol, that a preliminary-breath-test reading was "under the legal limit," and that Biniek was aware that the terms of his restricted license prevented him from consuming alcohol.  Considering this evidence and the legitimate inferences that flow from it, the evidence was sufficient to support Biniek's conviction for driving in violation of a restricted license.


Biniek argues that his conviction should be reversed because of a typographical error in the complaint.  The complaint alleged that:

            On April 11, 2005, in the City of South St. Paul, County of Dakota, State of Minnesota, the accused herein operated a motor vehicle after having consumed alcohol and that said accused had a restricted license which prohibited any use of alcohol, in violation of Minnesota Statutes § 171.09a(1).  As a result, said accused committed a gross misdemeanor in violation of Minnesota Statutes § 171.09.


To charge Biniek with the gross misdemeanor offense of operating a motor vehicle in violation of an alcohol-related license restriction, the complaint should have referred to Minn. Stat. § 171.09(b)(1) (2004) instead of "§ 171.09a(1)."  Currently, this prohibition is contained in Minn. Stat. § 171.09, subd. 1(d)(1) (2006).  Thus, Biniek is correct that the complaint contained a typographical error.

            An error or omission in a complaint, however, is not reversible error if the defendant understood the charges and did not request a substitute complaint.  State v. Hagen, 361 N.W.2d 407, 413 (Minn. App. 1985), review denied (Minn. Apr. 18, 1975).  The rules of criminal procedure provide:

No indictment, complaint or tab charge shall be dismissed nor shall the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in matters of form which does not tend to prejudice the substantial rights of the defendant.


Minn. R. Crim. P. 17.06, subd. 1.

            The typographical error in Biniek's complaint was minor and the correct meaning was obvious.  More importantly, the record clearly shows that Biniek understood the charges and that his substantial rights were not prejudiced.  Biniek's attorney provided a vigorous defense against the allegation that Biniek drove his car after drinking alcohol.  Although this defense was ultimately unsuccessful, Biniek is not entitled to a new trial based on the typographical error.


Biniek also argues that the evidence is insufficient to support his misdemeanor speeding conviction.  Under Minn. Stat. §§ 169.14, subd. 2; .89, subd. 1(1) (2004), a speeding violation is a misdemeanor rather than a petty misdemeanor if it is "committed in a manner or under circumstances so as to endanger or be likely to endanger any person or property."  Biniek argues that the record contains no evidence of danger to persons or property.  We agree.

The Minnesota Supreme Court recently held that a conviction under a public-nuisance statute prohibiting, in relevant part, public endangerment required proof "through testimony and evidence that the public was in fact endangered."  State v. Otterstad, 734 N.W.2d 642, 647 (Minn. 2007).  We conclude that our circumstances are analogous.

In finding Biniek guilty of the misdemeanor, the district court did not specifically address whether Biniek's conduct presented the danger to persons or property required by the statute.  The arresting officer testified that Biniek was speeding, smelled of alcohol, passed a preliminary breath test, and passed three field sobriety tests.  The district court found that the officer "smelled a strong odor of an alcoholic beverage," that Biniek "was traveling 49 mph in a 30 mph zone," and that the state "proved by proof beyond a reasonable doubt that [Biniek] was traveling in excess of the posted speed limit."

Taken as a whole, the evidence does not sufficiently demonstrate that Biniek's conduct warranted the statutorily enhanced speeding conviction.  The evidence establishes that Biniek committed petty-misdemeanor speeding, but not misdemeanor speeding.  We therefore reverse and remand Biniek's misdemeanor-speeding conviction.

            Affirmed in part, reversed in part, and remanded.