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This opinion will be unpublished and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
A18-1925

State of Minnesota,
Respondent,

vs.

D. K. Z.,
Appellant.

Filed June 24, 2019
Reversed and remanded
Cochran, Judge

Hennepin County District Court
File No. 27-CR-15-3143

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

Wynn C. Curtiss, Chestnut Cambronne, Minneapolis, Minnesota (for respondent)

Adam T. Johnson, David R. Lundgren, Lundgren & Johnson, P.S.C., Minneapolis,
Minnesota (for appellant)

Considered and decided by Cleary, Presiding Chief Judge; Flore y, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant D.K.Z. challenges the district court’s denial of his expungement petition.
Because the district court base d its decision on clearly errone ous factual findings and
misapplied the law, we reverse and remand for proceedings consistent with this opinion.

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FACTS
In January 2015, appellant D.K.Z. was pulled over by an Eden Prairie police officer
when the tires of the vehicle he was driving “touched both whit e lines.” The officer
arrested D.K.Z., and D.K.Z. was tab-charged with two counts of fourth-degree driving
while impaired (DWI) and with misdemeanor careless driving. D. K.Z. pleaded guilty to
misdemeanor careless driving, and the two DWI counts were dismissed. The district court
placed D.K.Z. on probation for on e year, and he was discharged from probation in
April 2016.
In July 2018, D.K.Z. petitioned for expungement of the records relating to this case
under the expungement statute. The statute allows the district court to seal all records
relating to an arrest, trial, or verdict if “the petitioner was convicted of or received a stayed
sentence for a petty misdemeanor or misdemeanor and has not bee n convicted of a new
crime for at least two years since discharge of the sentence fo r the crime.” Minn.
Stat. § 609A.02, subd. 3(a)(3) (2018).
D.K.Z. submitted a memorandum explaining why he believed he should be granted
an expungement and briefly testified during an expungement hearing before a referee. No
state or local agency opposed D .K.Z.’s petition, and no evidenc e or argument was
introduced against the petition. Following the hearing, the referee denied D.K.Z.’s petition,
and the district court approved the referee’s order. This appeal follows.
D E C I S I O N
We review a district court’s denial of an expungement petition for an abuse of
discretion. State v. M.D.T., 831 N.W.2d 276, 279 (Minn. 2013). Under this standard, we

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will not overturn the district court’s decision unless it was arbitrary or capricious, based on
an erroneous interpretation of the law, or contrary to the facts in the record. State v. R.H.B.,
821 N.W.2d 817, 822 (Minn. 2012). This court reviews the district court’s findings of fact
for clear error. State v. A.S.E., 835 N.W.2d 513, 517 (Minn. App. 2013). We review legal
conclusions de novo. State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013).
Under Minnesota law, “expungement of a criminal record is an ex traordinary
remedy.” Minn. Stat. § 609A.03, subd. 5(a) (2018). A petition for expungement is “to be
granted only upon clear and convincing evidence that it would y ield a benefit to the
petitioner commensurate with the d isadvantages to the public an d public safety
of: (1) sealing the record; and (2) burdening the court and pub lic authorities to issue,
enforce, and monitor an expungement order.” Id. The statute provides a 12-factor test for
deciding whether expungement should be granted. Id., subd. 5(c) (2018). D.K.Z. argues
that the district court made clearly erroneous factual findings when considering several of
the 12 factors and erred in applying the law. We address each issue in turn.
1. The district court based its decision on clearly erroneous factual findings.

D.K.Z. argues that the district court made clearly erroneous fa ctual findings in
considering several of the 12 factors under Minn. Stat. § 609A. 03 subd. 5(c) and that the
district court improperly equated his careless driving offense to a DWI offense. We focus
our analysis on the district court’s treatment of the underlying crime as a DWI and the first
two factors—namely, the nature and severity of the underlying c rime and the risk, if any,
that D.K.Z. poses to individuals or society.

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The district court found that D .K.Z.’s conviction was for an “a lcohol-related
incident,” that D.K.Z. “produced an alcohol concentration test result of .08%,” and that
D.K.Z. “drove with an alcohol level at or very near the point which is prohibited by law.”
These findings are not supported by the expungement record. Al though D.K.Z. was
charged with driving with an alcohol concentration of 0.08, this charge was never proven
in court. As we stated in State v. A.S.R., 906 N.W.2d 526, 532 (Minn. App. 2017), a district
court errs when it characterizes an “unproven allegation” as fact.
No evidence or testimony was intr oduced during the expungement hearing to
support a finding regarding D.K. Z.’s alcohol concentration. Th e officer who conducted
the breath test did not testify during the hearing, and there i s no information in the record
as to the circumstances of the te st or whether there were any i rregularities with the test.
During the hearing, D.K.Z. testified that he did not feel that he was impaired and that his
careless driving was the result of bending down to do something with the radio. Because
the record does not support a finding that D.K.Z. “drove with a n alcohol level at or very
near the point which is prohibited by law,” the district court’ s analysis of D.K.Z.’s
conviction for careless driving as equivalent to a DWI conviction was clearly erroneous.
D.K.Z. further argues that the district court erred in relying entirely on generic
statistics about DWIs, rather than the specific conduct at issu e in D.K.Z.’s conviction in
analyzing the first two factors. We agree. We have previously addressed this issue in an
unpublished opinion. State v. J.E.H. , No. A15-1948, 2016 WL 3659290 (Minn. App.
July 11, 2016). Although our unpublished opinions are not prec edential, we find the
reasoning of J.E.H. persuasive. Dynamic Air, Inc. v. Bloch , 502 N.W.2d 796, 800-01

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(Minn. App. 1993) (noting that unpublished opinions of the cour t of appeals are not
precedential but may be persuasive ). When considering J.E.H.’s expungement petition,
the district court noted that J.E.H.’s alcohol concentration wa s .16, twice the legal limit.
J.E.H., 2016 WL 3659290, at *1, 5. But the district court then focus ed its analysis on the
dangers of DWIs in general, rather than the specific conduct at issue in J.E.H.’s case. Id.
We stated that “district courts must carefully consider the fac ts of each petitioner’s case
and not rely on generalizations regarding expungement or certai n categories of crimes.”
Id. at *8. We also concluded that t he district court clearly erred in its analysis because
“[m]ost of the district court’s findings . . . concern DWIs gen erally and would disqualify
any petitioner seeking to expunge a DWI record.” Id. at *5.
Similarly, in this case, the dis trict court did not put any con sideration into the
specific nature of D.K.Z.’s conduct but only into DWIs generally. The district court relied
on a report from the department of public safety and generic st atistics about DWIs to
conclude that D.K.Z.’s underlying crime was severe and that it was likely he would commit
a DWI in the future. The district court did not discuss the ca reless driving conduct that
forms the basis of D.K.Z.’s conviction.
When considering the nature and severity of the underlying crime, the district court
made generic findings such as, “No other crimes are responsible for the amount of death,
injury and destruction that resu lts from mixing alcohol with dr iving.” The district court
did not discuss the nature and severity of D.K.Z.’s conviction for careless driving, or
distinguish D.K.Z.’s conduct fro m DWIs generally. Rather, its analysis treated D.K.Z.’s
offense as identical to all DWIs.

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When considering the risk, if any, that D.K.Z. poses to society , the district court
relied entirely on generic statistics about recidivism for individuals convicted of DWI. The
district court acknowledged D.K.Z .’s arguments regarding his ag e and lack of criminal
history, but found that the argument was “belied by the statistics.” As an initial matter, we
note that the statistics reflect only people who were in fact convicted of DWI, and as such
are inapplicable to D.K.Z., who was convicted of careless drivi ng. The statistics do not
t r a c k i n d i v i d u a l s w h o w e r e c h a r g e d w i t h D W I a n d h a d t h e i r c h a r ges dismissed.
Accordingly, applying the statistics regarding individuals conv icted of DWIs to D.K.Z.
was clearly erroneous. But even if the statistics included information applicable to D.K.Z.,
relying on such statistics to the exclusion of any other consid eration of D.K.Z. as an
individual was clearly erroneous.
The legislature has provided that expungement is available to D WI offenders. As
we noted in J.E.H., it would contravene the expungement statute to effectively create a per
se rule against expungements for DWIs. J.E.H., 2016 WL 3659290, at *5. The district
court’s analysis would not only effectively create a per se rul e against expungements for
DWIs, it would create a per se rule against expungements for in dividuals who pleaded
guilty to a different crime and had DWI charges dismissed. Because this would contravene
the expungement statute, the district court clearly erred in it s analysis of the nature and
severity of the underlying crime and the risk, if any, that D.K.Z. poses to society.1

1 Because we conclude that the district court clearly erred in i ts analysis of the first two
factors and remand for further consideration, we do not address D.K.Z.’s arguments
regarding the other factors.

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2. The district court applied the wrong legal standard in considering D.K.Z.’s
expungement petition.

Pursuant to Minn. Stat. § 609A.03, subd. 5(a), expungement of a criminal record is
to be granted only upon a showing “that it would yield a benefi t to the petitioner
commensurate with the disadvantages to the public and public safety of: (1) sealing the
record; and (2) burdening the court and public authorities to issue, enforce, and monitor an
expungement order.” (Emphasis added.)
Here, the district court accurately quoted the statutory langua ge. But the district
court then concluded that D.K.Z. “has not established by clear and convincing evidence
that expungement of the record of this conviction would yield a benefit to him that would
exceed the disadvantages to the public and public safety.” (Emphasis added.) Requiring
D.K.Z. to prove that the benefit to him would exceed the disadvantages to the public goes
beyond the burden that the statu te requires. The district cour t applied the wrong legal
standard in its analysis.2 On remand, the district court must apply the correct legal standard
under Minn. Stat. § 609A.03, subd. 5(a), to determine whether g ranting D.K.Z.’s
expungement petition would yield a benefit to him commensurate with the disadvantages
to the public and public safety.

2 We note that the district court also considered whether to expunge the records of D.K.Z.’s
conviction pursuant to the court’s inherent authority. The dis trict court balanced the five
factors relevant to granting an expungement pursuant to the court’s inherent authority. The
district court then applied the correct standard for expungemen ts pursuant to the court’s
inherent authority, finding that D.K.Z. “did not prove by clear and convincing evidence
that the benefits Petitioner would receive are commensurate with the disadvantages to the
public from the elimination of the record and the burden on the court in issuing and
enforcing an expungement order.” (Emphasis added.)

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3. The proper remedy is to remand to the district court for furthe r
proceedings.

D.K.Z. urges this court to consider the merits of his petition and order expungement.
We decline to do so because factual findings are the province o f the district court. See In
re Welfare of J.T.L., 875 N.W.2d 334, 338 n.3 (Minn. App. 2015) (remanding petitioner’s
juvenile-records expungement request in the absence of findings on each factor); see also
Lumpkin v. N. Cent. Airlines, Inc. , 209 N.W.2d 397, 401 (Minn. 1973) (“[A]n appellate
court is not empowered to make or modify findings of fact and i s thereby limited in its
scope of review.”). In a footnote, D.K.Z. alternatively urges this court to instruct the
district court not to include any comparison of D.K.Z.’s crime to DWI cases. We decline
to adopt any absolute instructi on regarding how D.K.Z.’s alcoho l consumption might be
relevant to his crime of careless driving. The district court clearly erred in treating D.K.Z.’s
careless driving conviction as a DWI because the expungement re cord does not support a
finding that D.K.Z. was driving while impaired. But to the ext ent that D.K.Z.’s alcohol
consumption is supported by the record and relevant to the 12 factors enumerated in Minn.
Stat. § 609A.03, subd. 5(c), the district court may consider facts proven regarding D.K.Z.’s
alcohol consumption in its analysis. We reverse and remand for further findings and
analysis consistent with this opinion.
Reversed and remanded.