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This opinion will be unpublished and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
A18-1397

State of Minnesota,
Respondent,

vs.

Edward Gary Kowalzyk,
Appellant.

Filed August 5, 2019
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Stevens County District Court
File No. 75-CR-17-221

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

Aaron K . Jordan, Stevens County Attorney, Elisabeth M. Kirchner, Assistant County
Attorney, Morris, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant challenges his two convictions of driving while impaired (DWI), arguing
that the evidence is insufficient to support the convictions. Because the evidence is
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sufficient to support appellant’s convictions, we affirm in part. However, because the
district court improperly convicted appellant of two DWI counts for a single behavioral
incident, we reverse in part and remand for the district court to vacate one of appellant’s
DWI convictions and leave the finding of guilt in place.
FACTS
On May 9, 2017, at about 7:30 p.m., dispatch received a citizen report that a green
Ford Ranger pickup truck was swerving “all over the road” and had parked at a liquor store
parking lot in Stevens County. Deputy Curfman drove to the liquor store but did not see
the truck until he checked a nearby alley, where the truck was parked and unoccupied
behind a bar. Curfman ran the license plate on the truck, which showed that the registration
was “almost a year” expired. Curfman also learned that the truck was registered to appellant
Edward Gary Kowalzyk, who had a restricted license that prohibited him from consuming
alcohol.
Curfman waited in his marked squad car nearby. Eventually, Curfman saw the truck
driving south in the alley. The truck was moving slowly , about 10 to 15 miles per hour,
and Curfman observed no swerving. Curfman followed the truck for “approximately a
minute,” and then acti vated his emergency lights to initiate a traffic stop at 8:30 p.m. As
he approached, Curfman noticed that the truck had “current tabs” on the license plate. The
driver identified himself as Kowalzyk, and was the only occupant of the truck. Curfman
told Kowalzyk that the truck registration was expired.
As they tried “to figure out the situation with his tabs,” Curfman “observed an odor
of alcoholic beverage” inside the vehicle and that Kowalzyk’s eyes were “glossy.”
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Curfman asked Kowalzyk if he had been drinking, and Kowalzyk responded that he had
“a couple of drinks.” Curfman also asked about Kowalzyk’s restricted license, and
Kowalzyk acknowledged that he was not allowed to consume alcohol. Dispatch informed
Curfman that the tab number was registered to a different vehicle, which Kowalzyk said
also belonged to him. Kowalzyk said that he might have mixed up the tabs.
Curfman asked Kowalzyk to step out of the truck to perform two field sobriety tests,
which he failed, in part, because he did not follow Curfman’s instructions. Kowalzyk told
Curfman before he took the tests that he had a “bad back” and had stomach surgeries.
Curfman placed Kowalzyk under arrest “for suspicion of driving while intoxicated.” After
the arrest, Curfman observed that Kowalzyk’s eyes were bloodshot and watery.
After waiting for about 25 minutes for a tow truck, Curfman drove Kowalzyk to a
nearby law-enforcement office to administer a breath test. Kowalzyk provided a breath
sample, but it came back as deficient becaus e “there wasn’t enough [air]flow to get an
accurate result.” Kowalzyk told Curfman that he had three drinks and that he had a cold.
Curfman then secured a search warrant to obtain Kowalzyk’s blood and drove him
to a medical center. The blood draw occurred at 11:04 p.m. on May 9—about two and a
half hours after the stop. Curfman sent the blood to the Minnesota Bureau of Criminal
Apprehension (BCA) for analysis.
In July 2017, the state charged Kowalzyk with the following counts: fourth-degree
DWI (driving a motor vehicle under the influence of alcohol) under Minn. Stat. § 169A.20,
subd. 1(1) (2016), fourth-degree DWI (driving a motor vehicle with an alcohol
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concentration of 0.08 or more) under Minn. Stat. § 169A.20, subd. 1(5) (2016), 1 violation
of limited driver’s license conditions under Minn. Stat. § 171.30, subd. 4 (2016), and
unlawful use of a certificate/tab under Minn. Stat. § 168.36, subd. 2 (2016). 2
At trial, three witnesses testified for the state —Curfman, a forensic scientist from
the BCA who analyzed Kowalzyk’s blood sample, and the medical lab technician who
drew Kowalzyk’s blood. The defense called no witnesses and Kowalzyk chose not to
testify. The state’s witnesses testified to the above facts.
The forensic scientist testified that she used “retrograde extrapolation” to calculate
Kowalzyk’s approximate alcohol concentration earlier in the evening of May 9, 2017. The
forensic scientist reported that Kowalzyk’s alcohol concentration was 0.10 at the time of
the draw. She assumed that drinking ceased at 8:30 p.m. —the time of the traffic stop.
Finally, she estimated that Kowalzyk’s alcohol concentration was between 0.10 and 0.12
at 10:00 p.m.
The jury returned a verdict of guilty on all four counts and the district court entered
judgments of conviction of all four counts. The court did not impose a sentence for count
two because it is a “different version[]” of count one , but noted that Kowalzyk will “still
have a conviction there.” For count one, the district court imposed a stay ed sentence of

1 This opinion refers to a DWI charge under Minn. Stat. § 169A.20, subd. 1(1), as “driving
a motor vehicle under the influence of alcohol” and a DWI charge under Minn. Stat.
§ 169A.20, subd. 1(5), as “driving a motor vehicle with an alcohol concentration of 0.08
or more.”

2 The state also charged Kowalzyk with having no proof of insurance pursuant to Minn.
Stat. § 169.791, subd. 2(a) (2016). The state later dismissed this count of the complaint.
5
90 days for one year. Kowalzyk appeals, challenging his judgment s of conviction for
counts one and two.
D E C I S I O N
I. There is sufficient evidence to support Kowalzyk’s conviction of fourth-degree
driving a motor vehicle under the influence of alcohol.

Kowalzyk contends that the “only evidence” that he drove while under the influence
of alcohol was “circumstantial evidence prone to reasonable alternate explanations.”
Kowalzyk argues that his age and physical ailments provide a “reasonable alternate
explanation” for his “poor perform ance in physical sobriety tests,” and that his alcohol
concentration “taken over two and a half hours after driving” was “insufficient to
demonstrate impairment while driving.” The state agrees that “this is a circumstantial
case,” but argues that the evidence is sufficient for Kowalzyk’s conviction.3
When appellate courts review a sufficiency-of-the-evidence challenge, we conduct
“a painstaking analysis of the record to determine whether the evidence, when viewed in
the light most favorable to the conviction, is sufficient to allow the jurors to reach a verdict
of guilty.” State v. Porte, 832 N.W.2d 303, 307 (Minn. App. 2013) (quotation omitted).
But we apply a heightened two-step test when addressing a sufficiency-of-the-evidence
claim based on circumstantial evidence. State v. Harris , 895 N.W.2d 592, 598 (Minn.

3 The state also notes that there is direct evidence that supports the conviction, such as
Curfman’s testimony that he saw Kowalzyk’s “glossy eyes,” smelled the odor of alcohol
emanating from Kowalzyk, and Kowalzyk’s admission that he had a couple of drinks.
Because direct evidence of Kowalzyk’s guilt is “not alone sufficient to sustain the verdict,”
we apply the circumstantial evidence standard of review. See Loving v. State, 891 N.W.2d
638, 643 (Minn. 2017).
6
2017). In the first step, we defer to the jury’s acceptance of the state’s evidence and
“disregard evidence that is inconsistent with the jury’s verdict,” which results in a “subset
of facts that constitute the circumstances proved.” Id. at 600-01 (quotation omitted). We
do not “re-weigh th[e] evidence” when reviewing the circumstances proved, and we defer
to the jury’s credibility findings. State v. Stein, 776 N.W.2d 709, 714 (Minn. 2010); see
also Harris, 895 N.W.2d at 600 (“[T]he first step . . . requires an appellate court to winnow
down the evidence presented at trial by resolving all questions of fact in favor of the jury’s
verdict . . . .”)
In the second step, we determine whether a reasonable inference of guilt can be
drawn from the circumstances proved and “whether a reasonable inference inconsistent
with guilt can be drawn from the circumstances proved.” Harris, 895 N.W.2d at 600. At
this stage, we give “no deference to the jury’s choice between reasonable inferences.” Id.
at 601. “Where the jury has rejected conflicting facts and circumstances, we do not draw
competing inferences from those facts on appeal.” Stein, 776 N.W.2d at 715. If this court
determines that “any rational hypothesis except that of guilt” exists, it must reverse the
conviction. Id. A “reasonable inference” cannot be based on “mere conjecture.” State v.
Pratt, 813 N.W.2d 868, 874 (Minn. 2012).
At trial, the state had to prove that Kowalzyk was driving a motor vehicle “under
the influence of alcohol.” Minn. Stat. § 169A.20, subd. 1(1). Kowalzyk does not dispute
that he was driving just before his arrest—a fact that was proven by direct evidence because
Curfman saw Kowalzyk driving. Therefore, the only element challenged for sufficiency is
whether Kowalzyk was under the influence of alcohol at the time he was driving.
7
To establish whether a driver was under the influence of alcohol, no specific alcohol
concentration is required. Compare id., with Minn. Stat. § 169A.20, subd. 1(5) (requiring
an alcohol concentration of 0.08 or more for a conviction). Instead, the state must prove
that Kowalzyk “had drunk enough alcohol so that [his] ability or capacity to drive was
impaired in some way or to some degree.” State v. Shepard, 481 N.W.2d 560, 562 (Minn.
1992). The state can prove the under-the-influence-of-alcohol element by “showing the
amount of liquor consumed (either by witnesses or chemical tests), or by evidence of
outward manifestations of intoxication, or by a combination of both methods.” State v.
Elmourabit, 373 N.W.2d 290, 293 (Minn. 1985); see also State v. Ards, 816 N.W.2d 679,
686-87 (Minn. App. 2012) (providing that an “alcohol concentration over the legal limit”
is a factor to consider under subdivision 1(1)). Outward manifestations may include an
odor of alcohol, glassy and bloodshot eyes, poor balance, and slurred speech. State v. Teske,
390 N.W.2d 388, 390-91 (Minn. App. 1986).
We first identify the circumstances proved. On May 9, 2017, at about 7:30 p.m.,
dispatch received a citizen complaint that a green Ford Ranger pickup truck was swerving
on the road and that the truck was parked at a liquor store parking lot. Curfman located the
truck parked in an alley and determined it was registered to Kowalzyk. Shortly after,
Curfman saw the truck driving slowly in the alley and observed no swerving. After
following the truck for about a minute, Curfman initiated a traffic stop at 8:30 p.m. After
the stop, Kowalzyk did not consume any alcohol. Kowalzyk initially told Curfman that he
had “a couple of drinks,” and later stated that he had “three.” Curfman smelled an odor of
alcohol when he first talked to Kowalzyk and observed that Kowalzyk had “glossy,”
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“bloodshot,” and “watery” eyes. Kowalzyk failed two field sobriety tests and was unable
to provide a sufficient breath sample. Curfman obtained a search warrant to draw
Kowalzyk’s blood, which was executed at 11:04 p.m. The BCA determined that
Kowalzyk’s alcohol concentration was 0.10 at 11:04 p.m. and, by extrapolation, that his
alcohol concentration was between 0.10 and 0.12 at 10:00 p.m.
Based on our review of the circumstances proved, we conclude that the jury
reasonably inferred that Kowalzyk was driving under the influence of alcohol because
Curfman observed “outward manifestations of intoxication,” Kowalzyk admitted that he
consumed alcohol, and Kowalzyk’s alcohol concentration was between 0.10 and 0.12
approximately one hour and a half after he stopped driving, even though he consumed no
alcohol during this period. See Elmourabit, 373 N.W.2d at 293; Ards, 816 N.W.2d at 686-
87.
Kowalzyk argues that the circumstances proved support two rational hypotheses
inconsistent with guilt. First, Kowalzyk argues that his age, his “health issues,” and his
“physical difficulty with the breath test” provide an alternative rational hypothesis for his
failure of the field sobriety tests. Kowalzyk claims his bad back and stomach surgeries
affected his performance that night, and that a cold made it difficult for him to do the breath
test.4 But the jury heard Curfman repeat Kowalzyk’s statements to him that these ailments
affected his behavior. We cannot reweigh the evidence and draw an alternative hypothesis

4 In his brief to this court, Kowalzyk also states that he used hearing devices during trial.
However, at trial, the jury did not hear any evidence about Kowalzyk’s hearing or how it
affected his ability to follow instructions. Consequently, it is not a circumstance proved at
trial.
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from evidence that the jury rejected. See Stein, 776 N.W.2d at 714-15. Even if we were to
conclude that Kowalzyk’s physical ailments explain his failure of the field sobriety tests,
this theory is inconsistent with the other circumstances proved, including Kowalzyk’s
statement that he had three drinks, the odor of alcohol on Kowalzyk , and Kowalzyk’s
“glossy,” “bloodshot,” and “watery ” eyes. Kowalzyk’s physical ailments also do not
explain why his alcohol concentration was between 0.10 and 0.12 at 10:00 p.m.
Second, Kowalzyk appears to argue that he could have drank heavily just before he
was stopped by Curfman, therefore, at the time of driving, he would not have had
“significant alcohol in his system at 8:30 p.m .” “In DWI cases, there is always some lag
time between arrest and testing.” State v. Larson, 429 N.W.2d 674, 676 (Minn. App. 1988)
review denied (Minn. Nov. 8, 1988). “Even where the lag time is only a few minutes, the
jury necessarily must make some conclusions as to the level of intoxication of the accused
at the time of driving or control.” Id. at 676-77.
Here, the circumstances proved include that Kowalzyk consumed no alcohol after
the traffic stop. Kowalzyk’s attorney cross-examined the BCA forensic scientist about the
extrapolation being “just an estimate,” to which she agreed and explained that is why the
BCA provides a range value. But the circumstances proved also include that Kowalzyk
swerved while driving around 7:30 p.m. and that Kowalzyk failed field sobriety tests
shortly after 8:30 p.m. Curfman observed outward manifestations of intoxication on
Kowalzyk’s person —the odor of alcohol and glossy, bloodshot, and watery eyes. The
circumstances proved also include that Kowalzyk admitted to having consumed three
drinks before his arrest. Kowalzyk’s alternative theory of heavy drinking just before he
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was stopped by Curfman is inconsistent with the circumstances proved and, therefore, is
not a reasonable hypothesis inconsistent with guilt. Harris, 895 N.W.2d at 600.
Because the evidence supported the reasonable inference that Kowalzyk was driving
a motor vehicle under the influence of alcohol, and because Kowalzyk does not present a
reasonable alternative hypothesis other than guilt, we conclude that the circumstantial
evidence is sufficient to support Kowalzyk’s conviction of driving a motor vehicle under
the influence of alcohol.5
II. There was sufficient evidence to support Kowalzyk’s conviction of driving a
motor vehicle with an alcohol concentration of 0.08 or more.

In Minnesota, it is a crime for any person to drive when “the person’s alcohol
concentration at the time, or as measured within two hours of the time, of driving,
operating, or being in physical control of the motor vehicle is 0.08 or more.” Minn. Stat.
§ 169A.20, subd. 1(5). Kowalzyk does not dispute the BCA’s determination that his
alcohol concentration was over the legal limit at 10:00 p. m., or one-and-a-half hours after

5 We note that our decision in this appeal is consistent with other
sufficiency-of-the-evidence cases involving Minn. Stat. § 169A.20, subd. 1(1). In a case
with “unique facts and circumstances” that had “little precedential value,” the supreme
court set aside a conviction of driving under the influence of alcohol as a “rare exception.”
Elmourabit, 373 N.W.2d at 293-94. In Elmourabit, there was affirmative evidence of a
medical issue that affected the defendant’s behavior, the defendant’s alcohol concentration
was never measured, and video evidence showed that the defendant performed field
sobriety tests “normally.” Id. at 290-92. Cases since Elmourabit have established that it
was a “rare exception.” See Ards, 816 N.W.2d at 681-87 (upholding conviction for driving
under the influence of alcohol when defendant failed a f ield sobriety test, had a n alcohol
concentration above the legal limit, and admitted to consuming five alcoholic drinks); State
v. Mohomoud, 788 N.W.2d 152, 156-59 (Minn. App. 2010) (upholding conviction for
driving under the influence of alcohol when a defendant failed field sobriety tests, had an
alcohol concentration above the legal limit, and admitted to consuming four alcohol ic
drinks).
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he was driving. Kowalzyk argues, however, that under the plain language of Minn. Stat.
§ 169A.20, subd. 1(5), the measurement has to be taken within two hours or evidence must
establish alcohol concentration at t he time of driving. Kowalzyk appears to argue that
“retrograde extrapolation” is sufficient to support a conviction only if it establishes alcohol
concentration at the actual time of driving (here, 8:30 p.m.). Because the state did not offer
this evidence, Kowalzyk asserts that the state’s evidence is insufficient to support a
conviction on count two.
In State v. Banken, we considered whether a breath test take n more than two hours
after a car accident, which registered as 0.17, could be used to show that the defendant’s
alcohol concentration was above 0.10 one hour and fifty -nine minutes after driving.
690 N.W.2d 367, 369 (Minn. App. 2004) , review denied (Minn. Mar. 29 2005). The
question was whether retrograde a nalysis could establish an alcohol concentration above
0.10 “as measured within two hours of the time of driving.” Id.
We determined that section 169A.20, subd. 1(5) was ambiguous because
“measured” could indicate either the actual “act of measuring” or the “quantity
determined” as accurate at “a point in time within the two-hour limit.” Id. at 370. This court
looked to Minn. Stat. § 169A.45, subd. 4, for guidance, because it provides that DWI
evidence in sect ion 169A.20, “includ[es] tests obtained more than two hours after the
alleged violation.” Id. at 371. We held that “the implication of section 169A.45 is that any
accurate proof that the driver’s alcohol concentration was above the legal limit within two
hours of driving, including a test taken more than two hours after driving, can be used as
evidence for Minn. Stat. § 169A.20, sub. 1(5).” Id. at 372.
12
Kowalzyk acknowledges that Banken is directly on point but argues that it was
wrongly decided. But this court “is bound by supreme court precedent and the published
opinions of the court of appeals.” State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010),
review denied (Minn. Sept. 21, 2010). Published opinions of the court of appeals establish
precedent unless the supreme court grants review and decides differently. See State v.
Collins, 580 N.W.2d 36, 43 (Minn. App. 1998) (“This court’s decisions do not have
precedential effect until the deadline for granting review has expired.”), review denied
(Minn. July 16, 1998). In Banken, the supreme court denied review and Banken is binding
precedent.
Kowalzyk does not otherwise challenge the BCA’s determination that his alcohol
concentration was over the legal limit one-and-a-half hours after driving. Thus, we
conclude that there i s sufficient evidence supporting Kowalzyk’s conviction under Minn.
Stat. § 169A.20, subd. 1(5).
III. Remand is necessary to vacate one of Kowalzyk’s convictions.
Kowalzyk does not challenge his two separate DWI convictions on the basis that
they arose from a single behavioral incident. 6 “Generally, we consider an argument not
raised in the parties’ briefs to be forfeited.” State v. Vasko, 889 N.W.2d 551, 555-56 (Minn.
2017). But “it is the responsibility of appellate courts to decide cases in accordance with
law, and that responsibility is not to be diluted by counsel’s . . . failure to specify issues or

6 Kowalzyk also did not raise this issue at his sentencing hearing. But “[a] defendant does
not waive relief from multiple sentences or convictions arising from the same behavioral
incident by failing to raise the issues at the time of sentencing.” State v. Clark, 486 N.W.2d
166, 170 (Minn. App. 1992).
13
to cite relevant authorities.” Id. (quotations omitted). We may consider an issue on appeal,
even when it is not raised in or supported by appellant’s brief, if the “prejudicial error is
obvious on mere inspection.” See State v. Andersen, 871 N.W.2d 910, 915 (Minn. 2015).
Under Minn. Stat. § 609.04, subd. 1 (2016), “Upon prosecution for a crime, the actor
may be convicted of either the crime charged or an included offense, but not both. An
included offense may be any of the following: (1) A lesser degree of the same crime;
or . . . (4) A crime necessarily proved if the crime charged were proved.” We have held
that section 609.04 forbids “ multiple convictions under different sections of a criminal
statute for acts committed during a single behavioral incident.” Clark, 486 N.W.2d at 170
(quoting State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985)).
We conclude that Kowalzyk’s two convictions were for an act committed during a
single behavioral incident. In State v. Clark, this court stated that driving under the
influence of alcohol and driving with an alcohol concentration over the legal limit “do not
necessarily rest upon the same proof and are not lesser-included offenses of each other,”
but instructed that caselaw “[n]onetheless . . . forbids” multiple convictions under the same
statute for the acts committed during a single behavioral incident. 486 N.W.2d at 170-71.
We held it was plain error for the district court to convict the defendant both of driving
while under the influence of alcohol and driving with an alcohol concentration over the
legal limit because the defendant’s dual DWI convictions stemmed from the same series
of acts. Id. at 171. This court determined that “[o]ne of the convictions must be vacated,”
and then vacated one conviction. Id.
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When a defendant is convicted under different sections of the same criminal statute
for a single criminal act, “the proper procedure to be followed by the trial court . . . is for
the court to adjudicate formally and impose sentence on one count only .” State v.
LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). But the finding of guilt should be left in
place so it can later be formally adjudicated if “the adjudicated conviction is later vacated
for a reason not relevant to the remaining unadjudicated conviction(s).” Id.
Accordingly, we reverse and remand for the district court to vacate one of
Kowalzyk’s convictions as required by Minn. Stat. § 609.04, subd. 1, but to leave both
findings of guilt in place.
Affirmed in part, reversed in part, and remanded.