State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0875

State of Minnesota,
Respondent,

vs.

Eric Edward Nordstrom,
Appellant.

Filed April 16, 2018
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-16-21961

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Adam W. Delderfield,
Assistant County Attorneys, Minneapolis, Minnesota (for respondent)

Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)

Considered and decided by Cleary, Chie f Judge; Reilly, Judge; and Stauber, Judge.
*
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Eric Edward Nordstrom challe nges his first-degree impaired-driving
conviction, arguing that the district court e rred by using evidence of a prior impaired-

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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driving offense in Wisconsin to enhance the current offense because the prior conviction
was obtained in violation of his constitutional rights. We affirm.
D E C I S I O N
Appellant was arrested and charged with first-degree driving while impaired. The
state charged the crime as a felony because appellant had three prior impaired-driving
offenses within ten years, including two c onvictions in Minnesota and one conviction in
Wisconsin. Following a stipulated-facts trial, the district court adjudicated appellant guilty
of the impaired-driving offense and imposed a felony sentence. On appeal, appellant
argues that the district court erred by ruling th at his prior impaired-driving conviction in
Wisconsin could be used to enhance his current impaired-driving offense in Minnesota.
The state may use a “[q]ualif ied prior impaired driving incident” to enhance an
impaired-driving charge when the prior incident is an “imp aired driving conviction[].”
Minn. Stat. § 169A.03, subd. 22 (2016). A “[p]rior impaired driving conviction” includes
a prior conviction under a statute or ordinanc e from another state that is “in conformity
with” one of Minnesota’s impair ed-driving statutes. Minn. St at. § 169A.03, subd. 20(7).
Applying the impaired-driving statute to undisputed facts involves a question of law
subject to de novo review. See State v. Wiltgen, 737 N.W.2d 561, 566 (Minn. 2007).
The Wisconsin and Minnesota impaired-driving statutes are in conformity with one
another because they prohibit the same be havior: operating a motor vehicle under the
influence of alcohol. Compare Wis. Stat. § 346.63(1)(a) (2016) (prohibiting a person from
driving a vehicle while “[u]nder th e influence of an intoxicant”), with Minn. Stat.
§ 169A.20, subd. 1 (2016) (pro hibiting a person from driving a vehicle while “under the

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influence of alcohol”); see also State v. Friedrich, 436 N.W.2d 475, 477 (Minn. App. 1989)
(“A comparison of the Wisconsin and Minnesota DWI statutes shows the Wisconsin statute
conforms with the Minnesota statute.”). It is uncontested that appellant entered a plea of
no contest to, and was convicted of, violatin g Wis. Stat. § 346.63( 1)(a), by driving while
under the influence of alcohol. Accordingly, appellant’s impaired-driving offense in
Wisconsin qualifies as a basis for charge enhancement in Minnesota and the district court
properly rejected his challenge to the enhancement of the offense.
Appellant argues, however, that enhancement was improper because the Wisconsin
conviction was based on evidence obtained from a warrantless blood draw in violation of
his constitutional rights. In Birchfield v. North Dakota, the United States Supreme Court
determined that refusal of a warrantless blood test cannot be prosecuted due to the intrusive
nature of a blood draw. ___ U.S. ___, 136 S. Ct. 2160, 2184 (2016); see also State v.
Trahan, 886 N.W.2d 216, 219 (Minn. 2016) (sam e). Appellant also argues that the
arresting officer violated his due-process ri ghts by reading Wisconsin’s implied consent
advisory. See Johnson v. Comm’r of Pub. Safety, 887 N.W.2d 281, 294 (Minn. App. 2016)
(“Because a criminal test-refusal charge wo uld be unconstitutional, the implied-consent
advisory inaccurately in formed [defendant] that refusal to take a [chemical] test is a
crime.”), review granted (Minn. May 30, 2017).
A criminal defendant may co llaterally attack a prior conviction to prevent it from
serving as an enhancement, but “only in unique cases.” State v. Schmidt, 712 N.W.2d 530,
538 n.4 (Minn. 2006). The dist rict court determined that th is was not a unique case, and
we agree. Appellant entered a plea of “no contest” in Wisconsin to violating a state statute

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that provides: “[n]o person may drive or ope rate a motor vehicle while: (a) Under the
influence of an intoxicant . . . to a degree which renders him or her incapable of safely
driving. . . .” Wis. Stat. § 346.63, subd. 1(a). Wisconsin has a separate statutory provision
prohibiting a person from driving while that person’s alcohol concentration is above a
prohibited alcohol concentration. See Wis. Stat. § 346.63, subd. 1(b) (2016) (“No person
may drive or operate a motor vehicle while . . . [that] person has a prohibited alcohol
concentration.”). Accordingly, appellant’s Wisconsin conviction did not require the state
to prove that appellant had a prohibited alcohol concentration.
Appellant argues that the district court’s finding is flawed because evidence of his
alcohol concentration was still admissible to prosecute him on the impaired-driving charge,
despite his guilty plea. See Wis. Stat. § 885.235(1g)(c) (2016) (“The fact that the analysis
shows that the person had an alcohol concentration of 0.08 or more is prima facie evidence
that he or she was under the influence of an intoxicant and is prima facie evidence that he
or she had an alcohol concentr ation of 0.08 or more.”). Ap pellant argues that the results
of his blood test were known at the time of hi s plea and were relevant to his conviction.
Schmidt is again instructive. The Schmidt court considered evidence of a prior conviction,
reasoning that “[w]hile [the uncounseled decision to submit to chemical testing] would
preclude certain prosecutions, for example driv ing with an alcohol c oncentration of 0.08
or more, prosecution could still proceed for the general offense of driving while under the
influence, based on other evidence of impairment.” 712 N.W.2d at 539 (citations omitted).
This case presents a similar fact ual scenario. Even if the results of the blood test should
have been suppressed in Wisconsin, other evidence of impairment sustained the conviction.

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Moreover, appellant’s Wisconsin conviction arose as the result of a guilty plea and,
generally, “when a guilty plea is at issue, the concern with finality served by the limitation
on collateral attack has special force.” Custis v. United States, 511 U.S. 485, 497, 114 S.
Ct. 1732, 1739 (1994).
We conclude that appellant’s conviction in Wisconsin is not subject to collateral
attack. The district court properly ruled that appellant’s Wisconsin conviction was a
“qualified prior impaired driving incident” th at could be used to enhance the impaired-
driving offense in Minnesota.
Affirmed.