MN DWI, Lesser Included Offense

Minnesota case law summary by Attorney Richard Clem MN DWI, lesser-included offense.

State of Minnesota v. Andrea Lee St. John. MN DWI, lesser-included offense

During the early morning hours of November 13, 2012, Andrea Lee St. John was driving through Moorhead without headlights, and she was pulled over by a Moorhead police officer. The officer smelled alcohol and asked her to perform some field sobriety tests and a preliminary breath test, both of which she failed. She was taken to the county jail, and read the implied-consent advisory. She refused to submit to testing.

She was charged with two counts of DWI. One charge was for second-degree DWI (refusal to submit to chemical test) and third-degree DWI, under Minnesota Statute 169A.20. She pleaded guilty, but her attorney argued that she could only be conficted of one of the two offenses. The District Court, Clay County, agreed. But the trial judge sentenced her for the second-degree offense (refusal to test), even though she desired to be sentenced for the third-degree offense. (She apparently wanted to be sentenced for this offense, since the refusal to test charge could lead to civil forfeiture of the vehicle.) Dissatisfied with that outcome, she appealed to the Minnesota Court of Appeals.

The court held that the proper procedure would have been to adjudicate the defendant guilty of both offenses, and sentence for the greater offense, the third-degree DWI. Accordingly, it reversed and remanded.

No. A13-1175 (Minn. Ct. App. May 19, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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