Case Blog – State v. Wertheimer – Minn. SCt

Case Blog
– State v. Wertheimer – Minn.
SCt

Parents always tell their children
“learn from your mistakes.” 
Unfortunately, Scott Wertheimer didn’t heed this simple but
indispensable advice.  On May 12, 2007, Wertheimer
was arrested for his fourth DWI.  The date of this fourth DWI happened to be
exactly ten years to the day after he was convicted of his first.  The sole issue before the Supreme Court and
the subject of today’s case blog is whether May 12, 2007 was “within” ten years
of May 12, 1997, as Minn. Stat. §
169A.24, the felony
DWI enhancement provision, requires.  The
quick answer is no.  If you’d like to
know how the Court reached this conclusion, continue on…

 Wertheimer was charged
under § 169A.24, Subd. 1, which requires the computation of a
ten-year period and a determination of whether certain offenses fall within
that period.  Section 169A.24, Subd. 1
states that a person is guilty of first-degree DWI if he “commits the [DWI]
violation within ten years of the first of three or more qualified prior
impaired driving incidents . . . .”   Wertheimer moved to dismiss the first-degree
DWI charges on the ground that his May 12, 2007, violation was not within ten
years of his May 12, 1997 conviction, and therefore the requirements of §
169A.24, Subd. 1 were not met.

The district court felt compelled
by the Minnesota
Supreme Court’s precedents to analyze the problem using the time
computation statute, Minn. Stat. § 645.15.  Section 645.15 states that
where “the performance or doing of any act, duty, matter, payment or thing is
ordered or directed” and the “duration for the . . . doing thereof” is fixed by
law, the time shall be computed so as to “exclude the first and include the
last day of the prescribed   . . . period.”  Using this analysis, the
district court found that Wertheimer’s DWIs all fell within the same ten year
period and the court of appeals affirmed. 

Under
review, the Minnesota Supreme Court concluded that § 645.15 does not
apply to § 169A.24, Subd.  1, by pointing
out that the Court had never applied § 645.15 to a substantive provision of a
criminal statute.  Furthermore, the Court
said that by definition, a calendar year includes exactly one of each date (an
earth shattering revelation).  By extension,
the Court said, a ten-year period includes exactly ten of each date (with the
exception of Feb. 29).  The State, based
on the lower courts’ decisions, essentially defined a “year” to be a year and a
day and a ten-year-period to be ten years and one day.  The Supreme Court could not square the
State’s definition with the common meaning of the term “year.”  As a result, the Court held that the district
court erred when it denied Wertheimer’s motion to dismiss his first-degree
felony DWI charge.  The hapless
Wertheimer caught a break, was off the hook for a felony and lived to drive
another day…

Please remember that the interpretation
and analysis presented here is not intended to be legal advice.  If you
are seeking legal advice please contact us for a free consultation and actual
examination the issues that your case may present.

STATE OF MINNESOTA

 

IN SUPREME COURT

 

A08-412

 

Court of Appeals                                                                                               Anderson,
G. Barry, J.

 

State of Minnesota,

 

Respondent,

 

vs.

                                                                                                                           Filed:  April 22, 2010

Scott Garrett
Wertheimer,                                                                        Office
of Appellate Courts

 

Appellant.

 

________________________

 

Lori
Swanson, Attorney General, St. Paul,
Minnesota, and;

 

Robert M.
A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant Anoka County
Attorney, Anoka, Minnesota, for respondent.

 

Max A.
Keller, Minneapolis, Minnesota, for appellant.

________________________

 

S Y L L A B U S

The district
court erred when it denied appellant’s motion to dismiss the charges of felony
first-degree driving while impaired because May 12, 2007, is not “within ten
years of” May 12, 1997, as that phrase is used in Minn. Stat. § 169A.24,
subd. 1(1) (2008).

            Reversed
and remanded for proceedings consistent with this opinion.

O P I N I O N

ANDERSON, G.
Barry, Justice.

Appellant, Scott Wertheimer, was
arrested on May 12, 2007, for driving while impaired.  Wertheimer had three previous
driving-while-impaired (DWI) convictions, with the earliest on May 12,
1997.  Following Wertheimer’s May 12,
2007, arrest, the State charged him with first-degree DWI, a felony, on the
assumption that his May 12, 2007, violation was “within ten years of” his May
12, 1997, conviction as required by Minn. Stat. § 169A.24, subd. 1(1)
(2008).  The sole issue before us is
whether May 12, 2007, is within ten years of May 12, 1997.  The parties dispute whether we should apply
Minn. Stat. § 645.15 (2008)—a time computation statute—to determine the bounds
of the ten-year period.

For purposes of
this appeal, the facts are undisputed. 
On Saturday, May 12, 2007, Wertheimer was arrested for DWI.  Wertheimer was later charged with two counts
of felony first-degree DWI under Minn. Stat. § 169A.20, subds. 1-2 (2008)
(DWI and test refusal), and one count of violation of a restricted license
under Minn. Stat § 171.09, subd. 1(d)(1) (2008).  Section 169A.24, subdivision 1, states, in
relevant part, “[a] person who violates section 169A.20 (driving while
impaired) is guilty of first-degree driving while impaired if the
person . . . commits the violation within ten years of the
first of three or more qualified prior impaired driving
incidents . . . .” 
Wertheimer was convicted of DWI on May 12, 1997; December 15, 1998; and
March 23, 2004.  Each of those three
convictions represents a “qualified prior impaired driving incident” for the
purposes of section 169A.24.  See Minn. Stat. § 169A.03, subd. 22
(2008) (defining qualified prior impaired driving incident to include “prior
impaired driving convictions”).

At his omnibus
hearing, Wertheimer moved to dismiss the first-degree DWI charges on the ground
that his May 12, 2007, violation was not within ten years of his May 12, 1997,
conviction, and therefore the requirements of section 169A.24, subdivision 1,
were not met.  The district court denied
Wertheimer’s motion.  The State then
dismissed all but one charge: felony first degree DWI (test refusal) under
sections 169A.20, subdivision 2, and 169A.24, subdivision 1.  The district court conducted Wertheimer’s Lothenbach trial under Minn. R. Crim. P.
26.01, subd. 4, see State v. Lothenbach,
296 N.W.2d 854 (Minn.
1980), and convicted Wertheimer of first-degree DWI (test refusal).  The court of appeals affirmed.  State
v. Wertheimer, No. A08-412, 2009 WL 910883 (Minn. App. Apr. 7, 2009).  We granted Wertheimer’s petition for review.

            Because
this case involves only issues of statutory interpretation, the standard of
review is de novo.  State v. Engle, 743 N.W.2d 592, 593 (Minn. 2008). 
We first address whether the time-computation statute, section 645.15,
applies to section 169A.24, subdivision 1.

            Minnesota
Statutes § 645.15 prescribes the method for computing time in certain
circumstances, under Minnesota
law.  Section 645.15 states, in relevant
part,

[w]here the performance or doing of any act, duty, matter,
payment, or thing is ordered or directed, and the period of time or duration
for the performance or doing thereof is prescribed and fixed by law, the
time . . . shall be computed so as to exclude the first and
include the last day of the prescribed or fixed period or duration of time.  When the last day of the period falls on
Saturday, Sunday, or a legal holiday, that day shall be omitted from the
computation.

 

Section 169A.24, subdivision 1,
under which Wertheimer was charged, requires the computation of a ten-year
period and a determination of whether certain offenses fall within that
period.  Section 169A.24, subdivision 1,
states that a person is guilty of first-degree DWI if he “commits the [DWI]
violation within ten years of the first of three or more qualified prior impaired
driving incidents . . . .” 
Id., subd. 1(1).

The State argues
that section 645.15 should apply to all statutes necessitating the computation
of time unless a different computation method appears in the statute
itself.  The State argues that because
section 169A.24, subdivision 1, does not provide an alternative method for
computing its ten-year period, section 645.15 should apply.  Wertheimer concedes that section 169A.24,
subdivision 1, does not include a method for computing time, but contends that,
by section 645.15’s unambiguous, plain language, section 645.15 should not
apply to section 169A.24, subdivision 1.

The State cites Nelson v. Sandkamp, 227 Minn. 177, 34
N.W.2d 640 (1948); Kokesh v. City of
Hopkins, 307 Minn. 159, 238 N.W.2d 882 (1976); and Jorgensen v. Knutson, 662 N.W.2d 893 (Minn. 2003), to support the
argument that section 645.15 applies to all statutes requiring the computation
of time unless another method is specifically included in the statute.  Noting that section 645.15 is a codification
of a common-law time-computation method, we stated in Nelson that “in making [section] 645.15 expressive of the
common-law rule, the legislature intended to provide a certain and uniform rule
for the computation of periods of time prescribed or fixed in all statutes,
except in those cases where the statutory terms affirmatively indicate the
contrary.”  227 Minn. at 181-82, 34 N.W.2d at 643.  At common law, we applied a rule very similar
to section 645.15.  In Nebola v. Minn. Iron Co., we stated
that, under the common law, “the day on which an act or event occurs is
excluded in the determination of all questions of time.”  102 Minn.
89, 92, 112 N.W. 880, 881 (1907) (applying the common-law time-calculation rule
to determine whether a party filed a cause of action before the statute of limitations
had run).

But there are
important differences between this case and the cases in which we have applied
section 645.15 and its common-law predecessor. 
First, the plain language of section 645.15 indicates that it does not
apply here.  Section 645.15 states that
it applies “[w]here the performance or doing of any act, duty, matter, payment,
or thing is ordered or directed.”  We
have consistently applied section 645.15 to statutes that required the performance of
an act within a time period.[1]  Required acts triggering application of the
statute include, for example, the filing of a cause of action before the
expiration of the statute of limitations, Nelson,
227 Minn. at
181-82, 34 N.W.2d at 643, and the statutory requirement to post notice of a construction
project three weeks before soliciting bids. 
Kokesh, 307 Minn. at 162, 238 N.W.2d at 885.  All the relevant statutes at issue in section
645.15 cases have ordered or directed an act within a time period.  Indeed, as we stated in Jorgensen, section 645.15 “is a codification of a common law
computing method that was uniformly applied to all statutes that required the performance of a legal act within a
number of days.”  662 N.W.2d at 899
(emphasis added).  This is consistent
with the application of the common-law rule in Nebola, in which we analyzed whether the plaintiff brought his
action, i.e., performed a required legal act, within the time period allowed by
the statute of limitations.  102 Minn. at 89-93, 112 N.W.
at 880-81.  But the statute at issue here
differs from statutes to which we have previously applied section 645.15.

Section 169A.24,
subdivision 1, does not order or direct the doing or performance of any act,
duty, matter, payment, or thing.  Rather,
section 169A.24, subdivision 1, describes an element of first-degree DWI, as
opposed to other driving-while-intoxicated violations under section
169A.20.  Section 169A.24, subdivision 1,
states that a defendant is guilty of first-degree DWI if that person violates
section 169A.20 “within ten years of the first of three or more qualified prior
impaired driving incidents.”  Minn. Stat.

§ 169A.24, subd. 1.  Only under a strained reading can section
169A.24, subdivision 1, be construed to require the performance of an act,
e.g., perhaps directing everyone not to
violate Minnesota’s
DWI statutes.  A general obligation to
obey criminal statutes is very different from the specific statutory acts and
duties to which we have applied section 645.15 in the past.

Further, we have
never applied section 645.15 to a substantive statutory provision defining an
element of a crime.  Indeed, our research
suggests that at the time section 645.15 was enacted, no Minnesota statutes defining the elements of
a crime required the calculation of time. 
Rather, provisions like section 169A.24, subdivision 1, are relatively
recent innovations.[2]  In each case in which we have applied section
645.15 to a statutory provision, that provision has been procedural in
nature.  We have never applied section
645.15 to a substantive provision of a criminal statute.

Despite
apparently broad statements in our case law that section 645.15 applies to all
statutes requiring the computation of time unless the statute itself says
otherwise, we conclude that section 645.15 does not apply to section 169A.24,
subdivision 1.  Our conclusion complies
with the plain language of section 645.15, which states that it applies
“[w]here the performance or doing of any act, duty, matter, payment, or thing
is ordered or directed.”  The statute at
issue in the case before us, section 169A.24, subdivision 1, does not require
the performance or doing of any act within a time period.  Given this background, and given that the
present case involves a substantive provision of a criminal statute, we decline
to extend the application of section 645.15 here.

Because we
conclude that the time-computation statute does not apply, we turn to the
language of section 169A.24, subdivision 1, to determine whether May 12, 2007,
is within ten years of May 12, 1997.  We
construe words in statutes consistent with their common usage, unless those
words have a different technical meaning in context.  Minn.
Stat. § 645.08 (2008).  Section
169A.24, subdivision 1, states, in relevant part, “[a] person who violates
section 169A.20 (driving while impaired) is guilty of first-degree driving
while impaired if the person . . . commits the violation
within ten years of the first of three or more qualified prior impaired driving
incidents . . . .” 
Here, Wertheimer was convicted of DWI on May 12, 1997, was convicted of
DWI two more times, and violated section 169A.20 again on May 12, 2007.  We must determine whether May 12, 2007, is
“within ten years of” May 12, 1997; in other words, whether all three of
Wertheimer’s DWI convictions, as well as his most recent violation, are within
the same ten-year period.

Under Minnesota
Statutes, “year” is defined as “a calendar year, unless otherwise
expressed.”  Minn. Stat. 645.44, subd. 13
(2008).  Under the Gregorian calendar,
which we use, a calendar year consists of 12 months, 52 weeks, and 365 or 366
days (366 days during a leap year which occurs once every four years).  See The
American Heritage Dictionary of the English Language 2068 (3d ed.
1992).  In other words, a year does not
equal a year and a day.

By definition, a
calendar year includes exactly one of each date.  It includes just one January 22, just one
January 23, and so on throughout the year. 
By extension, a ten-year period includes exactly ten of each date
(except for February 29, of which there are two or three).  In ten years, for example, we have exactly
ten birthdays or ten wedding anniversaries, no more, no less.

“Within” means
“[i]nside the limits or extent of in time” and “[i]nside the fixed limits
of.”  Id. at 2051.  So, for May 12, 2007, to be “within ten years
of” May 12, 1997, both dates must be in the same ten-year period.  Beginning the ten-year period on May 12,
1997—which is necessary because section 169A.24, subdivision 1, requires that
the first violation be inside the ten-year period—and counting forward ten
years, we arrive at the last day of the period on May 11, 2007.  This construction of section 169A.24,
subdivision 1, comports with the plain meaning of both the terms “year” and
“within.”  The State would have us define
“year” to be a year and a day and a ten-year-period to be ten years and one
day.  We cannot square this definition
with the common meaning of the term “year.” 
See In re Welfare of H.A.D.,
764 N.W.2d 64, 67 (2009) (“The State’s
argument—essentially arguing that there are 366 days in a year—lacks merit.”).

Because we
conclude that section 645.15 does not apply to section 169A.24, and because we
conclude that May 12, 2007, is not “within ten years of” May 12, 1997, under section
169A.24, subdivision 1, we hold that the district court erred when it denied
Wertheimer’s motion to dismiss the State’s felony first-degree DWI charges.

Reversed and
remanded for proceedings consistent with this opinion.