Minnesota Felony DWI Conviction Stands Despite Lawyer's Argument that Pending Appeal Meant No "Conviction" for Prior Offense
In an unpublished decision entitled State v. Johnson, the Minnesota Court of Appeals affirmed the district court's 48 month sentence on a felony DWI conviction. Judge Ross drafted the opinion.
In March of 2007 an officer approached a truck and asked its occupant to shut off the motor. The occupant, Johnson, had a blood alcohol content of .27. Johnson was charged with two counts of first-degree driving while impaired. He pleaded guilty to first-degree DWI and acknowledged that he had prior convictions for alcohol-related driving offenses in 1998, 1999, 2001 and 2005.
At the sentencing hearing, the lawyer for Johnson tried to to persuade the court to disregard the prior felony DWI because Johnson was not on probation for that offense and because it was the subject of an appeal to the Minnesota Court of Appeals at the time he committed the more recent offense. The Scott County district court had found Johnson guilty of felony DWI for the 2005 offense in early 2006. The argument, however, was that that Johnson had not been “convicted” of that offense because of the pending appeal.
Judge Ross wrote:
Johnson’s arguments regarding the timing of his prior appeal and his probation status are immaterial to whether he was previously convicted. Johnson offers no legal basis or plausible reasoning to support his contention that a defendant is not “convicted” until this court decides his appeal. Our opening line deciding that earlier appeal begins, 'Appellant challenges his conviction of first-degree refusal to submit to a chemical test.'
The Court found that because Johnson was convicted of a felony DWI before 2007, the district court properly considered Johnson’s prior conviction and did not err by imposing the presumptive 48 month executed prison sentence.
The more drunk driving convictions a defendant has on their record, the less sympathetic courts are in hearing arguments for a reduced charge or sentence. The Johnson case provides a clear example of a lack of sympathy on the part of Judge Ross, who wrote, "Johnson’s arguments miss the mark." It doesn't get much clearer than that. Kudos to counsel for trying.
