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This opinion will be unpublished and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
A19-0636

State of Minnesota,
Respondent,

vs.

Michal James Berger,
Appellant.

Filed December 14, 2020
Reversed
Jesson, Judge

Cottonwood County District Court
File No. 17-CR-18-354

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

Nicholas Anderson, Cottonwood County Attorney, Windom, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decide d by Jesson, Presiding J udge; Larkin, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Michal James Berger was convict ed of fourth-degree driving while under
the influence of a controlled substance. Although initially stopped for leaving a park after
hours, Berger was released because law en forcement did not belie ve he was under the

2
influence. It was only after Berger went to the jail to pick up his passenger who had been
arrested during the stop that he was suspecte d to be under the influence and placed under
arrest as well. Because the evidence does not prove beyond a reasonable doubt that Berger
was under the influence of a controlled substance while driving, we reverse.
FACTS
In September 2019, Officer Jonathon Beck saw a car leave a closed park at around
3:30 a.m. Officer Beck stopped the car, dr iven by appellant Michal James Berger, to
investigate. During the stop, Officer Beck spoke with Berger and noticed that he had
bloodshot eyes and smelled faintly of alco hol and marijuana. Officer Beck then
administered a preliminary breath test and conducted a search of the vehicle. The
preliminary breath test returned an alcohol concentration of 0.00 and a search of the vehicle
did not return any illegal items. Because Offi cer Beck did not suspect that Berger was
under the influence, he released Berger. Officer Beck did arrest one of Berger’s passengers
for a probation violation, however, and took the individual to jail.
When Officer Beck arrived at the jail, Berger was al ready there to pick up his
passenger. At that point, Officer Beck was notified by dispatch that Berger had been
previously arrested in Iowa for possession of LSD and pain pills. Based on this information
and the observations made during the traffic stop, Officer Beck d ecided to investigate
further and asked Berger to speak with him inside. Berger agreed.
During their conversation, O fficer Beck noticed that Berger’s skin was flush and his
eyes appeared dilated and bloodshot. Officer Beck then administered three standard field

3
sobriety tests: the modified Romberg test, 1 the walk-and-turn, and the one-leg stand.
Officer Beck also checked Berg er’s pulse and pupil dilation. 2 After observing Berger’s
performance on the field sobriety tests, Officer Beck concluded that Berger failed each one
and placed Berger under arrest.3 A blood sample was then taken from Berger. The results
of the test indicated the presence of THC, a controlled substance in Minnesota.4
Berger was charged with fourth-degree driving while under the influence of a
controlled substance. Minn. Stat. § 169A.20, subd. 1(2) (2018). Instead of proceeding to
trial, Berger agreed to a stipulated-facts tr ial pursuant to Minnesot a Rule of Criminal
Procedure 26.01, subdivision 4, upon the advice of his attorney. The district court accepted
the parties’ stipulated facts, and upon revi ew concluded that the facts proved beyond a
reasonable doubt that Berger was driving und er the influence of a controlled substance—
marijuana—on the day of his arrest.
Berger appealed the district court’s verdict to this court. He then moved to stay his
appeal to pursue postconviction relief on the theory that he received ineffective assistance
of counsel because his trial attorney subm itted the case for a stipulated-facts trial under
rule 26.01, subdivision 4, as opposed to rule 26.01, subdivision 3, thereby eliminating his

1 The modified Romberg test asks individuals to estimate the span of 30 seconds.
2 Berger’s pupils were 6.5 mm dilated, whic h Officer Beck reported as being above the
Drug Recognition Evaluator average of 2.5 –5 mm in room light. Officer Beck also
reported that Berger’s pulse—122 BPM—was elevated above the average of 60–90 BPM.
3 Berger claims that he passed some of the field sobriety tests, specifically the gaze
nystagmus test.
4 Minn. Stat. § 152.02, subd. 2(h) (2018).

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ability to challenge, on appeal, the sufficiency of the ev idence sustaining his conviction.5
This court granted his stay of appeal.
In addition to seeking relief based on a cl aim of ineffective as sistance of counsel,
Berger asked the postconviction court to vacate his conviction, evaluate the sufficiency of
the evidence and facts presented at the sti pulated-facts trial, and decide whether he
was guilty under Minnesota Rule of Crimin al Procedure 26.01, subdivision 3. The
postconviction court granted Be rger’s petition in part a nd found Berger guilty of
fourth-degree misdemeanor driving while unde r the influence of a controlled substance. 6
Berger moved to dissolve the stay and now appeals.7
D E C I S I O N
Berger argues that the ev idence produced by the state was not sufficient to prove
beyond a reasonable doubt that he was driving while under the influe nce of marijuana.
When, as in this case, a conviction is based on circumstantial evidence, this court conducts
a two-step analysis to dete rmine whether the evidence s upports a guilty verdict.
State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, this court identifies the
circumstances proved by viewing any conflicting evidence in th e light most favorable to

5 On appeal from a proceeding under rule 26.01, subdivision 4, a defendant may challenge
only the dispositive pretrial ruli ng, and not other issues that could be raised on appeal.
Minn. R. Crim. P. 26.01, subd. 4; see also State v. Myhre , 875 N.W.2d 799, 802
(Minn. 2016) (“[Rule 26.01, subdivision 4] allows a criminal defendant to plead not guilty;
waive all trial-related rights, including his or her right to a jury trial; stipulate to the state’s
evidence in a trial to the court; and then appeal a dispositive, pretrial ruling.”).
6 The postconviction court “deem[ed] it unnecessa ry to address the in effective assistance
of counsel claim in [Berger’s] first petition.”
7 The state did not file a brief in this matter, so this court proceeds pursuant to Minnesota
Rule of Civil Procedure 142.03.

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the verdict. Id. Then we determine whether the circumstances proved are consistent with
the verdict of guilt and inconsistent with any other rational conclusion except that of guilt.
Id. at 599. It is not enough that circumstances or inferences pointing to guilt are reasonable.
Id. Guilt must be the only rational hypothesis this court can reach based on the proved
circumstances. Id.
Minnesota Statute § 169A.20, subdivision 1( 2) makes it a crime for any person to
“drive, operate, or be in physical control of any motor vehicle” when that person is “under
the influence of a controlled substance.” Here, the issue is limited to whether Berger was
under the influence of marijuana while he was driving his car. An individual is said to be
under the influence when they “do not posse ss that clearness of intellect and control of
himself that he otherwise would have.” State v. Ards , 816 N.W.2d 679, 686 (Minn.
App. 2012) (quotations omitted).
Viewed in the light most favorable to the verdict, and taking into account the
stipulated facts agreed to by the parties, we conclude that the following circumstances were
proved. Officer Beck conducted a stop when he saw Berger’s car leaving a closed park.
Officer Beck did not observe any traffic violations or poor driving prior to stopping Berger.
During the stop, Officer Beck observed that Berger had bloodshot eyes and smelled faintly
of alcohol and marijuana. Officer Beck also administered a preliminary breath test, which
resulted in an alcohol concentration of 0.00. Because Officer Beck did not believe Berger
was under the influence at that time, he released Berger. Later, while talking to Berger at
the jail, Officer Beck observed that Berger had flushed skin, bloods hot eyes, and dilated
pupils. After administering the field sobriety tests, Officer Beck determined that Berger

6
failed each one. Finally, Berger’s blood test confirmed the presence of THC on the day of
his arrest.8
Moving to the second st ep in our analysis, we mu st determine whether the
circumstances proved above are consistent w ith guilt and inconsis tent with any other
rational hypothesis except guilt. Silvernail, 831 N.W.2d at 599. Ag ain, the sole issue is
whether Berger was under the influence when he drove his car; that is, he did not “possess
that clearness of intellect and control of himself that he otherwise would have.” Ards,
816 N.W.2d at 686 (quotations omitted). Because “under the influence” is not defined by
statute, we turn to case law for guidance.
In instances where courts have found suffi cient evidence of driving while under the
influence, stops were typically triggered by a vehicl e collision or traffic violation, which
demonstrated that the driver lacked that “clearness of intellect and control.” For example,
in State v. Waterston, the defendant was charged with driving while under the influence of
alcohol after police officers witnessed the defendant’s one-car collision. 371 N.W.2d 650,
651 (Minn. App. 1985). There, this court de termined that evidence of defendant’s poor
driving, poor balance, and “unusually talka tive” state was sufficien t to convict him of
driving while under the influence. Id. Similarly, in State v. Shepard , police officers
suspected the defendant may have been driving while under the influence after she called

8 Unlike alcohol, there is no statutory thres hold for the amount of THC at which a person
is considered “under the influence.” Compare Minn. Stat. § 169A.20, subd. 1(5) (2018)
(setting the threshold alcohol concentration at .08), with Minn. Stat. § 169A.20, subd. 1(2)
(no threshold amount). Thus, the mere pr esence of THC in Berger’s blood does not
necessarily prove that his driving was influenced by the substance.

7
to inform police that she had rolled her tr uck into a ditch. 481 N.W.2d 560, 561–62
(Minn. 1992). Again, the court found that there was sufficient evidence of defendant’s
intoxication to convict. Id. at 562–63; see also State v. Richardson, 372 N.W.2d 368, 369
(Minn. App. 1985) (officer stopped defendan t after observing defendant speeding and
passing other cars illegally).
Erratic or aggressive driving has also often led to individu als being stopped on
suspicion of driving while under the influence. In State v. Teske , the defendant was
observed cutting off another driver, driving aggressively on a busy street, failing to stop at
a stop sign, weaving in and out of other cars, failing to yield the right of way to another
driver, and speeding. 390 N.W.2d 388, 389 (M inn. App. 1986). After stopping the
defendant, officers observed that he smelled of alcohol, had glassy , bloodshot eyes, and
swayed while walking. Id. This court upheld the conviction, concluding that the evidence
was sufficient for the jury to find the defendant guilty of driving while under the influence.
Id. at 390-91.
In sum, in cases where conv ictions for driving under the influence have been upheld,
observable traffic violations or aggressive, poor driving gene rally preceded the stop and
provided evidence that the driver was, indeed, driving under the influence.
In contrast, in State v. Elmourabit , where the state relied primarily on outward
manifestations of intoxication observed after the stop, the Minnesota Supreme Court
concluded that the proof fell short of proof beyond a reasonable doubt. 373 N.W.2d 290,
291 (Minn. 1985). In Elmourabit, the respondent was convicted of driving while under the
influence of alcohol. Id. The district court relied on evidence that the respondent had been

8
speeding, smelled of alcohol when stopped by police, had glassy and bloodshot eyes, was
difficult to understand, and be came aggressive multiple times during his interaction with
police to support its guilty verdict. Id. at 291. But the supreme court concluded that “[t]he
inferences to be draw from this evidence, however, are in somewhat uneasy equilibrium,”
and led the court to decide that this proof fell short of proof beyond a reasonable doubt. Id.
at 293-94.
Guided by this case law, we conclude that the circ umstances proved here are
inconsistent with a reasonable hypothesis of guilt. Silvernail, 831 N.W.2d at 599. Nothing
in Officer Beck’s report suggests that Berger was driving poorly, violated any traffic laws,
or acted out of the norm in any other substantive way.
In reaching this conclusion, the supreme court’s decision in State v. Elmourabit is
particularly instructive. 373 N.W.2d at 290. The circumstances in Berger’s case are less
compelling than in Elmourabit. He was not stopped by Officer Beck because of poor
driving, but because he was l eaving a park at a time that it would normally be closed.
Berger did not exhibit any aggressive behavior. Officer Beck did not suspect that Berger
was under the influence during the stop and released him. Nor was Berger’s condition at
the jail different from what Officer Beck had encountered shortly before when he decided
to release Berger. Finally, although Berger was determined to have failed three of the field
sobriety tests, we are mindful to avoid placing “too much significance” on field sobriety

9
tests.9 Cf. id. at 292 (stating principle in context of successful passing of field sobriety
tests).
When considered as a whole, the circum stances proved do not exclude a reasonable
hypothesis of innocence. We therefore reverse.
Reversed.

9 Even if a fact-finder believed that Berger’s poor performance was due to the presence of
THC in his system, the conclusion that it influenced his driving is not necessarily reached.