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STATE OF MINNESOTA
IN COURT OF APPEALS
C5-00-1164
State of Minnesota,
Respondent,
vs.
Thane John Reimer,
Appellant.
Filed April 24, 2001
Affirmed
G. Barry Anderson, Judge
St. Louis County District Court
File No. K700100299
Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN
55103-2106; and
Alan L. Mitchell, St. Louis County Attorney, Steven C. Cundy, Assistant St. Louis County
Attorney, 300 South Fifth Avenue, Room 222, Virginia, MN 55792 (for respondent)
Gordon C. Pineo, Deal & Pineo, 230 First Street South, Suite 106, P.O. Box 1253, Virginia, MN
55792 (for appellant)
Considered and decided by Lansing, Presiding Judge, G. Barry Anderson, Judge, and Halbrooks,
Judge.
S Y L L A B U S
Driving with an expired driver's license is a continuing offense and does not arise from the same
behavioral incident as the offense of driving while intoxicated (DWI); therefore, a conviction on an
expired driver's license charge does not bar prosecution for DWI under Minn. Stat. § 609.035
(1998).
O P I N I O N
G. BARRY ANDERSON, Judge
Appellant challenges the district court's pretrial order determining that the charges of driving with an
expired driver's license and gross misdemeanor DWI did not arise out of a single behavioral
incident and could therefore be separately prosecuted. We affirm.
FACTS
Appellant Thane John Reimer was operating a motor vehicle when it went off the road into a ditch.
Appellant's motor vehicle driving record indicated that he had a prior conviction for driving while
intoxicated (DWI), and his driving privileges had expired.
The investigating officer noted that appellant was unsteady on his feet, had slurred speech,
bloodshot and watery eyes, and the odor of alcohol about his person, and appellant admitted he
had been drinking. Appellant consented to a blood test, which was taken at a local medical center.
Appellant received a citation from the officer for driving with an expired license, which he promptly
paid.
The blood test results showed an alcohol concentration of .17. Based on the test results, the state
charged appellant with two counts of gross misdemeanor Driving While Intoxicated (DWI) in
violation of Minn. Stat. § 609.121 (1998).
Appellant brought a motion to dismiss the DWI charge pursuant to Minn. Stat. § 609.035 (1998),
arguing that the DWI charges violated the state's prohibition against serial prosecution. The district
court concluded that the offenses of driving with an expired driver's license and gross misdemeanor
driving while intoxicated did not arise out of a single behavioral incident, and denied the defense
motion. Appellant subsequently entered a plea to one count of gross misdemeanor DWI on June
22, 2000. This appeal followed.
ISSUE
Did the district court err in determining that the charges of driving with an expired driver's license
and gross misdemeanor DWI did not arise out of a single behavioral incident occurring on
December 23, 1999?
ANALYSIS
Under Minn. Stat. § 609.035, subd. 1 (1998), a conviction for one offense bars prosecution for
any other offense arising from the same incident. The material facts are not in dispute here, so we
review de novo the district court's application of the law. State v. Meland, 616 N.W.2d 757, 759
(Minn. App. 2000).
The test for determining if
violations of two or more traffic statutes result from a single behavioral incident [is
whether] they occur at substantially the same time and place and arise out of a
continuous and uninterrupted course of conduct, manifesting an indivisible state of
mind or coincident errors of judgment.
State v. Johnson, 273 Minn. 394, 405, 141 N.W.2d 517, 525 (1966). The question of whether
multiple offenses arose out of the same behavioral incident “depends on the facts and circumstances
of the particular case.” State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). The state
bears the burden to establish that the conduct underlying the offenses are not part of a single
behavioral incident. State v. Zuehlke, 320 N.W.2d 79, 82 (Minn. 1982).
Here, it is undisputed that the offenses occurred at the same time and place. We are left with
ascertaining whether the offenses of DWI and driving with an expired license constituted a
“continuous and uninterrupted course of conduct, manifesting an indivisible state of mind or
coincident errors of judgment.” Johnson, 273 Minn. at 405, 141 N.W.2d at 525. Respondent
argues that his offenses were not separate and distinct, but rather constituted a single behavioral
incident.
In State v. Meland, the defendant was stopped for driving a vehicle with expired license tabs. 616
N.W.2d at 758. After stopping the vehicle, police observed that defendant appeared intoxicated.
Id. The defendant submitted to a urine test. Id. at 759. Police cited defendant for expired tabs and
released him. Id. The defendant pleaded guilty to the license tab offense and paid the fine. Id. The
urine test results later revealed a blood alcohol concentration of .167, and a complaint was filed
charging Meland with DWI. Id. The defendant filed a motion to dismiss pursuant to Minn. Stat. §
609.035 (1998). Id. After the district court granted the motion, we reversed, holding that
[c]aselaw distinguishes between continuing offenses and offenses limited in time and
place.
* * * *
Meland's DWI offense took place at a particular time and place. In contrast,
driving with expired tabs is a continuing offense that recurs every time a driver
drives or parks the subject vehicle on a public highway.
Id. at 759-60. We conclude that the Meland analysis applies here.
Similar to driving with expired tabs, driving with an expired driver's license is a continuing offense
that recurs every time appellant drives. See Minn. Stat. § 171.02, subd. 1 (1998) (stating that “[n]o
person, except those hereinafter expressly exempted, shall drive any motor vehicle upon any street
or highway in this state unless such person has a license valid under the provisions of this chapter
for the type or class of vehicle being driven”). Moreover, the offenses of DWI and driving with an
expired license do not “manifest[ ] an indivisible state of mind or coincident errors of judgment.”
Meland, 616 N.W.2d at 760 (quoting Johnson, 273 Minn. at 405, 141 N.W.2d at 525).
Appellant's decision to drive with an expired license may be attributed to errors in judgment wholly
independent of his decision to drink and drive.
Minnesota courts have reached similar results in a variety of factual situations involving one or more
motor vehicle violations. In State v. Butcher, 563 N.W.2d 776 (Minn. App. 1997), review
denied (Minn. Aug. 5, 1997), the defendant was charged with transporting an uncased firearm and
driving after cancellation, among other charges, all occurring in a single time frame. Id. at 779. We
held that these offenses were independent of each other because they did not share “an indivisible
state of mind or coincidental errors of judgment.” Id. at 784.
In State v. Bishop, 545 N.W.2d 689 (Minn. App. 1996), the defendant was charged with driving
after cancellation and aggravated DWI. Id. at 690. We held that the offenses, while occurring at
different times and places, also involved distinct and dissimilar errors in judgment, and thus did not
arise out of the same behavioral incident. Id. at 692.
In State v. Holland, 421 N.W.2d 382 (Minn. App. 1988), we held that the offenses of driving
after cancellation and unsafe equipment violations were continuing offenses which were committed
the moment Holland started his car, and were not linked with the felony offense of aggravated
criminal damage to property. [1] Id. at 389. The criminal damage offense was found to be
motivated by a criminal objective separate and distinct from that present in either the driving after
cancellation or unsafe equipment violations. Id.
In State v. Wheat, 296 Minn. 97, 206 N.W.2d 655 (1973), the supreme court, relying on State
v. Reiland, 274 Minn. 121, 142 N.W.2d 635 (1966), held that although acts leading to charges of
operating a motor vehicle without a license and speeding occurred at the same time and place, the
offenses were separate and distinct. Wheat, 296 Minn. at 98, 206 N.W.2d at 656. In State v.
Reiland, the supreme court held that the offense of driving after revocation was separate and
distinct from conduct constituting the offense of criminal negligence, [2] and, therefore, a conviction
for driving after revocation did not bar a subsequent prosecution for criminal negligence even
though the offenses occurred at the same time and place. Id. at 124, 142 N.W.2d at 638. The
offense of driving after revocation was found to be “continuous” in nature. Id. The court went on to
hold that the violations did not manifest an indivisible state of mind or coincidental error in
judgment. Id.
This is not to say, of course, that, as a matter of public policy, appellant's argument is without merit.
The logic behind distinguishing between driver's license violations on the one hand, and moving
violations on the other hand, thus avoiding the application of Minn. Stat. § 609.035 subd. 1 (1998),
is not transparently clear. Nonetheless, as Meland acknowledges, case law in Minnesota does
distinguish between continuing offenses and offenses limited in time and place, and based on that
established precedent, we affirm the district court's order determining that the statutory bar to
prosecution found in Minn. Stat. § 609.035 (1998) does not apply here.
D E C I S I O N
The prosecution of Reimer for DWI did not violate the Minn. Stat. § 609.035 prohibition against
serialized prosecution.
Affirmed.
Footnotes
[1] Holland slammed his vehicle into a police squad car as he was attempting to get away. Id. at
384.
[2] Reiland struck and killed a pedestrian with his automobile.
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