State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1225

State of Minnesota,
Respondent,

vs.

Jesse Richard McGinnis,
Appellant.

Filed May 13, 2019
Affirmed
Stauber, Judge*

Anoka County District Court
File No. 02-CR-16-996

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Ass istant County
Attorney, Anoka, Minnesota (for respondent)

Rory Patrick Durkin, Giancola-Durkin, P.A., Anoka, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Stauber, Judge.

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

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U N P U B L I S H E D O P I N I O N
STAUBER, Judge
In this appeal from a judgment of conviction, appellant challenges the district
court’s pretrial rulings, arguing that the provision governing the calculation of prior
qualified driving incidents under the felony driving -while-intoxicated statute is
unconstitutionally vague and the rule of lenity should apply to resolve any ambiguity. We
affirm.
FACTS
On February 11, 2016, appellant Jesse Richard McGinnis was charged with first-
degree driving while impaired while under the influence of alcohol with three or more prior
violations within the last ten years under Minn. Stat. §169A.20, subd. 1(1) (2014) , and
first-degree driving while impaired with an alcohol concentration over 0.08 with three or
more prior viol ations under Minn. Stat. §169A.20, subd. 1(5) (2014). McGinnis’s prior
impaired driving offenses occurred on February 9, 2014, December 9, 2013, and September
19, 2005. He was convicted of the September offense in March 2006. Thus, the license
revocation on September 19, 2005 , falls outside of the ten -year look -back period for
enhancing McGinnis’s offense to a first -degree felony, while his March 2006 conviction
for the same conduct falls within the look-back period.
At a hearing held on September 18, 2017, McGinnis asked the court to find his prior
offense from September 2005 ineligible for enhancing his offense and argued that Minn.
3
Stat. §§ 169A.24 (2018) and 169A.09 (2018) were unconstitutionally vague.1 Additionally,
McGinnis requested that the rule of lenity be applied and the court use the September 2005
license revocation date instead of the March 2006 conviction date when calculating his
prior offenses. The district court denied McGinnis’s motion and McGinnis agreed to a
stipulated-evidence trial under Minn. R. Crim. P. 26.01, subd. 4 . The district court found
that McGinnis had three qualifying driving -while-impaired incidents in the ten years
preceding his current offense and found him guilty of both counts. This appeal follows.
D E C I S I O N
McGinnis’s driving-while-impaired offenses were enhanced to felonies because he
had three prior qualified driving incidents within the last ten years. Minnesota Statutes
sections 169A.24 and 169.09 provide p arameters for the ten -year look -back period.
McGinnis argues on appeal that his current offenses should not have been enhanced to
felonies. He contends that the felony driving -while-intoxicated statute ’s provision
governing the calculation of prior qualified driving incidents is unc onstitutionally vague
because: (1) it is not readily discernible to ordinary people; and (2) it permits arbitrary and
discriminatory enforcement because it allows multiple “look -back” dates . McGinnis
additionally argues that the rule of lenity should apply to resolve any ambiguity.

1 Relevant portions of Minn. Stat. §§ 169A.24 (2018) and 169A.09 (2018) have not
substantially changed since McGinnis’s offense date.
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I. The statutory provisions governing the calculation of prior qualified
driving incidents are not unconstitutionally vague as applied to appellant.

Constitutional challenges to a statute are questions of law which this court reviews
de novo. State v. Bussmann, 741 N.W.2d 79, 82 (Minn. 2007). “Minnesota statutes are
presumed to be constitutional, and our power to declare a statute unconstitutional should
be exercised with extreme caution and only when absolutely necessary.” In re Haggerty,
448 N.W.2d 363, 364 (Minn. 1989).
“[T]he right to due process includes the right to not be convicted and punished based
on an unconstitutionally vague statute.” State v. Phipps, 820 N.W.2d 282, 285 (Minn. App.
2012). The void -for-vagueness doctrine requires that “a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.” Kolender v. Lawson , 461 U.S. 352, 357, 103 S. Ct. 1855 , 1858 (1983).
Additionally, statutes imposing criminal penalties are subjected to a higher standard of
certainty regarding their meaning. State v. Newstrom, 371 N.W.2d 525, 528 (Minn. 1985).
Otherwise, the statute may “permit a standardless sweep that allows policemen,
prosecutors, and juries to pursue their personal predilections.” Kolender, 461 U.S. at 358,
103 S. Ct. at 1858 (quotation omitted).
Here, McGinnis argues that Minnesota Statutes sections 169A.24 and 169.09 violate
both requirements of the void-for-vagueness doctrine: (1) that the statutes do not define the
offense with sufficient definiteness for an ordinary person to understand; and (2) that the
statutes encourage arbitrary and discriminatory behavior. McGinnis, therefore, argues that
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his prior offense from September 2005 was ineligible for enhancing his current offenses to
felonies.
Understandable to Ordinary People
McGinnis contends that the look-back dates in Minnesota Statutes sections 169A.24
and 169A.09 are not readily discernible to ordinary people and conflict. Minn. Stat.
§ 169A.24, subd. 1, provides:
A person who violates section 169A.20 (driving while
impaired) is guilty of first-degree driving while impaired if the
person:
(1) commits the violation within ten years of the first of
three or more qualified prior impaired driving
incidents[.]

A qualified impaired driving incident includes both prior impaired driving convictions and
prior impaired driving -related losses of license. Minn. Stat. § 169A.09. “Whe n a person
has a prior impaired driving conviction and a prior impaired driving-related loss of license
based on the same course of conduct, either the conviction or the loss of license may be
considered a qualified prior impaired driving incident, but not both.” Id.
Under the plain language of the statutes, the meaning is readily discernable.
Ordinary people are not “left to guess at the meaning . . . nor differ as to its application.”
Newstrom, 371 N.W.2d at 528 (holding that a statute was vague because an essential term
was not defined and was ambiguous). The statutes are straightforward and provide
sufficient definiteness to avoid any void-for-vagueness challenge.
Additionally, contrary to McGinnis’s argument, the language in Minnesota Statutes
sections 169A.24 and 169A.09 does not conflict. McGinnis contends that the statutes
6
conflict because section 169A.24, subdivision 1, sets a specific deadline of ten years, while
section 169A.09 gives two different look -back dates, without regard to time limitation s.
This means, McGinnis argues, that because a license revocation can happen outside of the
ten-year period, while a conviction can happen within the ten-year period, punishment may
extend beyond the specific ten -year deadline. However, it is unclear where the alleged
conflict lies. Section 169A.24 provides a clear rule regarding the use of prior impaired
driving incidents and section 169A.09 provides the definition and instructions for
calculation. These statutes work in harmony and do not conflict.
Arbitrary and Discriminatory Enforcement
McGinnis next argues that the look -back dates encourage arbitrary and
discriminatory enforcement because law enforcement officers may “pursue their personal
predilections” when choosing a look-back date. McGinnis provides the following example
to illustrate his point:
A defendant could have violated § 169.24 in 2014, been subject
to conditions of release for two years, and been convicted of
the matter in 2016 . . . . This defendant could have remained
law abiding and then received a DUI in 2026. Based solely on
which incident the prosecuting attorney deemed desirable, this
particular defendant could still be subject to enhancement.
On the opposite end, an individual may have committed
a DUI in Nov. 2002, been convict ed in Jan. 2004, and
committed a new DUI in Dec. 2012. The prosecutor could take
those dates, and not enhance the charge by using the date of the
violation (date of loss of license).

First and foremost, “[i]t is well-settled that vagueness challenges that do not involve First
Amendment freedoms must be examined in light of the facts at hand.” State v. Becker, 351
N.W.2d 923, 925 (Minn. 1984). Therefore, McGinnis’s example is unpersuasive.
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Moreover prosecutors are afforded great discretion in their charging decisions and
their decisions to charge do not necessarily affect the vagueness analysis. State v.
Campbell, 756 N.W.2d 263, 275 (Minn. App. 2008) (noting that allegations of
prosecutorial wrongdoing “are not relevant to the question of whether the statut e itself
provides judges, attorneys, law enforcement, and jurors with fixed legal standards for
determining whether particular conduct is prohibited in a given case”) , review denied
(Minn. Dec. 23, 2008) . A statute may lead to arbitrary and discriminatory enforcement
“when it leaves judges and jurors free to decide, without any legally fixed standards, what
is prohibited and what is not in each particular case.” Id. (quotation omitted). Not only do
these statutes offer legally fixed standards, but there are also safeguards to prevent any
discriminatory charging, as the state can only use one look -back date (the license
revocation or the conviction); the prior misdemeanor and gross misdemeanor impaired
driving offenses used to enhance cannot be used in calculating the offender’s criminal -
history score; and the prosecutorial burden of proof “greatly minimizes the risk of
discriminatory and arbitrary investigation and enforcement.” Id.; see also Minn. Sent.
Guidelines 2.B.6.
The statutes do not give rise to arbitrary and di scriminatory enforcement.
McGinnis’s conviction falls within the ten-year period and it is clear under the statute that
his conviction may still be considered as a prior impaired driving incident. See Minn. Stat.
§169A.09. Because Minnesota Statutes sections 169A.24 and 169A.09 are not void for
vagueness, McGinnis’s due process rights were not violated.

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II. The rule of lenity does not apply.
McGinnis argues that the rule of lenity should apply and his loss of license should
be the reference date for the look-back period. Under the rule of lenity, if a criminal statute
is ambiguous, the ambiguity should be construed in defendant’s favor. State v. Leathers,
799 N.W.2d 606, 608 (Minn. 2011). However, McGinnis makes no argument on appeal
regarding how Minnesota Statutes sections 169A.24 and 169A.09 are ambiguous.
Moreover, this court has previously held that section 169A.24 is not ambiguous.
State v. Miller, 689 N.W.2d 177, 179 (Minn. App. 2004), review denied (Minn. Jan. 26,
2005) (holding that section 169A.24 was not ambiguous and under the plain meaning of
the statute, the district court did not err by relying on the date of conviction to enhance the
offense). Because McGinnis offers no argument as to how the statutes are ambiguous, and
this court has previously held that section 169A.24 is not ambiguous, the rule of lenity does
not apply.
McGinnis had three qualified prior impaired driving incidents, which were correctly
used to enhance his current offenses to felonies. Because Minnesota Statutes sections
169A.24 and 169A.09 are not unconstitutionally vague and the rule of lenity does not
apply, the district court did not err in denying McGinnis’s pretrial motion.
Affirmed.