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This opinion will be unpublished and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
A19-1055

State of Minnesota,
Respondent,

vs.

Tiesha Monique Moore,
Appellant.

Filed May 26, 2020
Reversed and remanded
Reyes, Judge

Stearns County District Court
File No. 73-CR-17-3889

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

Janelle P. Kendall, Stearns County Attorney, River D. Thelen, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Reyes, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this direct appeal from her judgment of conviction of first-degree driving while
intoxicated (DWI), appellant argues that the state failed to provide sufficient evidence to

2
prove beyond a reasonable doubt that she had three qualified p rior impaired -driving
incidents under Minn. Stat. § 169A.24, subd. 1(1) (2016). We reverse and remand.
FACTS
On April 29, 2017, a Minnesota state trooper arrested appellant Tiesh a Monique
Moore upon probable cause that she had been DWI after she showed several signs of
intoxication. The trooper read her the impl ied-consent breath-test advisory. Appellant
agreed to take a breath test, which resulted in a 0.11 alcohol concentration.
Respondent State of Minnesota charged appellant with two counts of first-degree
felony DWI, in violation of Minn. Stat. §§ 169A.20, subd. 1(1) (2016), 169A.24, subd. 2
(2016), and one count of g ross-misdemeanor driving after cancellatio n, in violation of
Minn. Stat. § 171.24, subd. 5 (2016). The state charged the DWIs as felonies based on
appellant’s two convictions of gross-misdemeanor DWI in 2011 and, according to
appellant’s certified driving -record history, a loss of license in April 2009 related to
impaired driving.
Following appellant’s waiver of her right to testify and to a jury trial, the district
court held a court trial and heard testimony from the trooper and a breath-test expert. The
district court found appellant guilty of all three counts and sentenced her to 75 months’
imprisonment and a five-year conditional-release term on the felony DWI counts and a
concurrent one-year jail term on the gross-misdemeanor driving-after-cancellation count.
This appeal follows.

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D E C I S I O N
Appellant argues that the state presented insufficient evidence to support her felony
DWI convictions, contending that the certified copy of her driving-record history did not
establish a prior impaired -driving incident, which resulted in an incorrect sentence. 1 We
agree.
When reviewing a challenge to the sufficiency of the evidence, we conduct a
thorough analysis to determine whether the factfinder could reasonably find the defendant
guilty of the charged offense based on the facts in the record and the legitimate inferences
drawn from those facts. See State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999).2
We review factual findings for clear error and determine whether the findings are
based on evidence in the record, which we view in the light most favorable to the verdict.
Rasmussen v. Two Harbors Fish Co ., 832 N.W.2d 790, 797 (Minn. 2013 ). “To conclude
that findings of fact are clearly erroneous we must be left with the definite and firm
conviction that a mistake has been made.” Id. (quotation omitted). “We review questions
of law de novo.” State v. Dorn, 887 N.W.2d 826, 830 (Minn. 2016).
A person is guilty of first-degree DWI if they commit that violation within ten years
of the first of three or more qualified prior impaired -driving incidents. Minn. Stat.
§ 169A.24, subd. 1(1). A “[q]ualified prior impaired driving incident includes pri or

1 Appellant does not dispute the two other impaired-driving incidents, which the state
established by submitting certified copies of the convictions.
2 We decline to follow the state’s application of the circumstantial -evidence standard of
review because the state does not present evidence from which an inference of notice per
Minn. Stat. § 169A.52, subd. 6 (2016) could be drawn. See State v. Silvernail, 831 N.W.2d
594, 598-99 (Minn. 2013) (describing circumstantial-evidence standard of review).

4
impaired driving convictions and prior impaired driving-related losses of license.” Minn.
Stat. § 169A.03, subd. 22 (2016 ). A “[p]rior impaired driving -related loss of license
includes a driver’s license suspension, revocation, cancellation, denial, or disqualification.”
Id., subd. 21(a) (2016). An implied-consent license revocation “becomes effective” when
an officer notifies the person of the revocation and advises the person of the right to
administrative or judicial review.3 Minn. Stat. § 169A.52, subd. 6.
Because a revocation does not “become effective” without notice, in order to prove
a defendant guilty beyond a reasonable doubt of an offense that requires a prior license
revocation, the state has the burden of proving that appellant receiv ed notice of that
revocation. See State v. Burg, 648 N.W.2d 673, 677-78 (Minn. 2002) (“The Due Process
Clause of the Fourteenth Amendment to the United States Constitution ‘protects the
accused against conviction except upon proof beyond a reasonable doub t of every fact
necessary to constitute the crime with which [the accused] is charged.’”) (quoting In re
Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970 )) (alteration in original) .
Moreover, we note that, in previous license-revocation cases disputing notice, the state has
provided either testimony regarding notice or evidence that it provided notice to the
defendant. See, e.g., Gray v. Comm’r of Pub. Safety , 918 N.W.2d 220, 225 (Minn. App.
2018) (identifying officer testimon y that he personally provided notice) ; Johnson v.
Comm’r of Pub. Safety , 889 N .W.2d 36, 37, 40 (Minn. App. 2016) (identifying officer
testimony that he thought he placed notice in appellant’s property); Johnson v. Comm’r of

3 The state argues that the prior revocation resulted from an implied -consent test that
appellant took in April 2009.

5
Pub. Safety, 394 N.W.2d 867, 868 (Minn. App. 1986) (identifying officer testimony that
he placed order of revocation in front of appellant).
The Minnesota Supreme Court examined a similar situation recently. See State v.
Anderson, ___ N.W.2d ___, 2020 WL 1870182, at *2 (Minn. Apr. 15, 2020). It looked at
second-degree DWI, which requires that “one aggravating factor [be] present when the
violation was committed.” Id. (quoting Minn. Stat. § 169A.25, subd. 1(b) (2018)). An
“aggravating factor” i ncludes a qualified prior impaired -driving incident. Minn. Stat.
§ 169A.03, subd. 3(1) (2016). The supreme court held that a prior license revocation is
“present as an aggravating factor as of its effective date.” Id. at *5. It defined the effective
date as “the time the commissioner . . . notifies the person . . . of the revocation” Id. at *3.
Just as a prior license revocation is “present” when the commissioner provides notice of
the revocation to a person, similarly, a prior license revocation becomes “effective” when
the commissioner notifies a person of the intent to revoke. Without proper notice, a prior
license revocation cannot be used to enhance a current DWI charge. See Johnson, 889
N.W.2d at 40-41 (reversing DWI charge when state could not establish notice of revocation
because district court erroneously concluded that appellant received notice and therefore
dismissed petition for judicial review as untimely).
Here, the district court concluded that “the [s]tate has prove[d] beyond a reasonable
doubt all of the elements of this offense” and that th e certified copy of the driving -record
history established a qualified prior impaired-driving incident. The district court relied on
Omwega to reject appellant’s argument that the state had to prove notice. State v. Omwega,
769 N.W.2d 291, 2 96 (Minn. App. 2009) (noting officer properly placed notice in

6
appellant’s bag with his other property when released from custody), review denied (Minn.
Sept. 29, 2009). First, as discussed above, the state has the burden of proving notice. Burg,
648 N.W.2d at 677 -78. Second, Omwega is distinguishable because there, the state
presented evidence that the police provided the appellant with notice . Omwega, 769
N.W.2d at 296 . There is no such evidence here, and without it, we cannot make the
reasonable inference that she received this notice. See Chambers, 589 N.W.2d at 477. Nor
does appellant’s certified driving-record history allow for a reasonable inference that she
received notice. The only inference the statute allows is that, if the police mailed the notice,
appellant received it three days later. See Minn. Stat. § 169A.52, subd. 6.
Here, the certified copy of appellant’s driving -record history notes a revocation of
appellant’s license on April 18, 2009, following a test reflecting an alcohol concentration
of 0.08 or more on April 11, 2009. It notes a penalty for the 2009 DWI of a 90-day license
revocation.4 Finally, the driving record notes that, three months later, “notice re
requirements sent.” The district court found “that [appellant] had been given notice of the
cancellation, or reasonably should have known of it” based on “her admission to [the
trooper] at the time of the stop as well as her certified driving record.” The record does not
support these findings.
First, appellant’s certified driving record may prove the occurrence of a license
revocation, but it does not prove that she received notice of that revocation. The state
contends that the driving-record notation of “notice re requirements sent” constituted proof

4 See Minn. Stat. § 169A.52, subd. 4(a)(1) (2016) (providing 90-day license revocation if
driver had an alcohol concentration of 0.08 or more).

7
that the state provided appellant notice of the license revocation. But the state offers no
testimony that the notation referred to the revocation, and the district court made no finding
on it. Nor does the certifi ed driving record contain any explanation of its headings,
terminology, or abbreviations.
Second, appellant’s “admission to the trooper” refers to the trooper asking appellant
whether she knew she had any “priors,” and her response of , “I guess, yeah.” But the
trooper never asked appellant about the specific April 2009 license revocation, and because
appellant’s certified driving-record history lists more than 50 incidents, we cannot
determine which prior driving incident either the trooper or appellant were referring to in
that exchange.
Moreover, the state apparently sent this ambiguous notice three mont hs after the
license revocation, which is inconsistent with the statutory requirement that notice be
provided before revocation becomes effective. Minn. Stat. § 169A.52, subd. 6. Thus, if
the July 2009 notation referred to notice of the listed April 2009 license revocation, that
revocation would not have been valid until its 90-day term expired, which is an inconsistent
result. See i d. Caselaw discussing notice demonstrates that officers generally provide
notice the day of the driv ing incident or soon thereafter, as opposed to months later . See,
e.g., Gray, 918 N.W.2d at 225 (in-person notice provided same day and mailed to appellant
four days later); Johnson, 889 N.W.2d at 40 (claimed in-person notice provided same day);
Omwega, 769 N.W.2d at 296 (same). And we have reversed convictions when the state
cannot establish that the appellant received notice . See, e.g., Johnson, 889 N.W.2d at 40
(concluding officer’s testimony that he believed he placed notice with appellant’s

8
belongings and that someone at police department would have mailed him notice
insufficient to establish appellant’s receipt of notic e). A record with a vague notation
regarding an undefined notice does not establish that appellant received notice.
Finally, we note that the driving record by itself cannot establish notice because
certified driving records are documents internal to the Department of Public Safety . See
Minnesota Department of Public Safety , https://dps.mn.gov/divisions/dvs/Pages/records-
request-procedure.aspx (last visited April 2, 2020) (providing that only criminal
enforcement, court agencies, and government agencies have access to driving records,
whereas ordinary citizens must submit form and pay fee to receive certified driving record);
see also State v. Vonderharr , 733 N.W.2d 847, 852 (Minn. App. 2007) (“[T]he primary
purpose of DPS driver’s-license records is to provide current information about the license
status of drivers to ensure that only drivers with valid licenses operate motor vehicles in
the state.”). When “there is no evidence that [appellant] ever actually received [notice], it
would be erroneous to find receipt of the notice.” Johnson, 889 N.W.2d at 40.
We need not reach appellant’s due-process argument because we conclude that the
state failed to prove that appellant received notice of the license revocation, without which
the state cannot demonstrate the required three qualified prior impaired-driving incidents.
We reverse appellant’s conviction of first -degree DWI and remand for sentencing for
second-degree DWI. Minn. R. Crim. P. 28.02, subd. 12(c).
Reversed and remanded.