Joseph Z. Livingston, petitioner, Appellant,

This opinion will be unpublished and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
A19-1243

Joseph Z. Livingston, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 4, 2020
Reversed and remanded
Ross, Judge

Wright County District Court
File No. 86-CR-15-6150

John G. Westrick, Samuel A. Savage, Savage Westrick, P.L.L.P, Bloomington, Minnesota
(for appellant)

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

Thomas N. Kelly, Wright Coun ty Attorney, Greg T. Kryzer, Assistant County Attorney,
Buffalo, Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Ross, Judge; and Segal,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Joseph Livingston pl eaded guilty to driving while impaired by a hazardous
substance, admitting that he drove under the influence of Difluoroethane. After the

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supreme court concluded that Difluoroethane was not a statutorily defined “hazardous
substance,” the district cour t vacated Livingston’s convicti on. Livingston petitioned the
district court to determine his eligibility fo r compensation based on his exoneration, and
the district court dismissed th e petition by reasoning that it had not vacated Livingston’s
conviction on a ground consistent with innocence, which was a prerequisite to Livingston’s
eligibility for compensation. We reverse a nd remand for further proceedings because
Livingston’s conduct was not a crime, a ground necessarily “consistent with innocence.”
FACTS
Officers found Joseph Livingston parked in the middle of a road in December 2015,
visibly impaired and slumped over his steeri ng wheel with 11 cans of compressed-air
dust remover in the car, 10 of which were em pty. Livingston’s blood tested positive for
1,1-Difluoroethane, a common propellant in canned-air dust removers. The state charged
him with driving, operating, or physically controlling a mo tor vehicle while “knowingly
under the influence of a hazardous substance.” See Minn. Stat. § 169A.20, subd. 1(3)
(2014). Livingston pleaded guilty in 2016, and the district court sentenced him to serve 62
months in prison.
In 2017, the Minnesota Supreme Court held that 1,1-Difluoroethane was not a
“hazardous substance” under Minnesota’s th en-current impaired-driving statute. State v.
Carson, 902 N.W.2d 441, 445–46 (Minn. 2017). Livingston filed a postconviction petition
based on Carson, and the district court vacated his c onviction. The state filed a notice of
dismissal acknowledging that, under Carson, the conduct alleged in the criminal complaint
did not constitute a violation of the impaired-driving law.

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Livingston petitioned for exoneration- based compensation under Minnesota
Statutes section 590.11 ( 2016), arguing that the Carson decision, the district court’s
conviction vacation, an d the state’s dismissal rendered him exonerated and eligible for
compensation. At that time, the statute defined “exonerated” in relevant part to mean that
a court had either:
(i) vacated or reversed a judgment of conviction on
grounds consistent with i nnocence and the prosecutor
dismissed the charges; or
(ii) ordered a new trial on gr ounds consistent with
innocence and the prosecutor di smissed the charges or the
petitioner was found not guilty at the new trial[.]
Minn. Stat. § 590.11, subd. 1(1). But the supreme court had severed subdivision 1(1)(i) as
unconstitutional in Back v. State , 902 N.W.2d 23, 24 (Minn. 2017). The state read
Livingston’s petition as if it were filed under subdivision 1(1)(i) and asked the district court
to dismiss the petition in light of Back. But the district court allowed the petition to survive
under subdivision 1(1)(ii), reasoning that “a new trial was effectively ordered when Mr.
Livingston’s conviction was v acated and the State’s complaint was placed back on the
docket.”1 There being no disputed facts, the partie s both asked the district court to decide
as a matter of law whether Livingston was “exonerated.”

1 The state began to challenge this decision in a related appeal, arguing that the district
court erred by determining that Back did not apply to bar Livingston’s petition. But after
we questioned jurisdiction, the state voluntarily dismissed its appeal and does not raise the
argument as an alternative basis to defend th e district court’s decision on either civil
summary-judgment grounds or crimin al alternative-th eory grounds. See Doe 76C v.
Archdiocese of St. Paul & Minneapolis , 817 N.W.2d 150, 163 (M inn. 2012) (“[W]e may
affirm a grant of summary judgment if it can be sustained on any grounds.”); State v.
Grunig, 660 N.W.2d 134, 137 (Minn. 2003) (extending a supreme court rule to require the

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The district court denied and dismissed Livingston’s pe tition. It reasoned that his
conviction “was not vacated on grounds consistent with innocence” because the vacation
resulted from “a change in interpretation of the law that stated [Difluoroethane] is no longer
a hazardous substance under the statute, not because he presented evidence that established
that a crime was not committed.” Livingston appeals.
D E C I S I O N
Livingston appeals from the district court’s denial of his petition for an order
determining him eligible for exoneration- based compensation, arguing that he was
exonerated because he never committed a cr ime. The district court concluded that
Livingston’s conviction had been vacated on an interpretative change in the law rather than
on the statutory ground of “consistent with innocence.” Whether Livingston was
“exonerated” calls for our statutory interpretation, a task we undertake de novo. See Buhl
v. State, 922 N.W.2d 435, 438 (Minn. App. 2019).
Minnesota Statutes section 590.11 gove rns the procedure by which an individual
may petition the district court for an orde r declaring his eligib ility for compensation
under the Minnesota Imprisonment and Exoneration Remedies Act. See Minn. Stat.
§§ 611.362–.368 (2016). In applying the statut e, the district court must first determine
whether the petitioner has been “exonerated.” Minn. Stat. § 590.11, subd. 1(1)–(2). At the
time of Livingston’s petition, filed af ter the supreme court’s decision in Carson,
exoneration required that a court had “order ed a new trial on grounds consistent with

court of appeals to consider an alternative theory when the arguments were supported and
would not expand relief). The issue is not before us and we do not consider it.

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innocence and the prosecutor dismissed the charges or the petitioner was found not guilty
at the new trial.” Minn. Stat. § 590.11, subd. 1(1)(ii); Back, 902 N.W.2d at 27. The sole
issue we decide is whether Livingston s ecured postconviction relief on a “ground[]
consistent with innocence.” Fo r the following reasons, we c onclude that Livingston was
exonerated simply because he committed no cr ime, which is a ground consistent with
innocence.
We draw our analysis from earlier versi ons of statutes that have since been
amended. The legislature has replaced the 2014 prohibition agains t driving under the
influence of “hazardous” substances with a prohibition against driving under the influence
of “intoxicating” substances. Compare Minn. Stat. §§ 169A.20, subd. 1(3), .03, subd. 9
(2014), with Minn. Stat. §§ 169A.20, subd. 1(3 ), .03, subd. 11 a (2018). The 2016
exoneration-compensation statute, severed in part and construed by caselaw, was amended
in 2019 to effectively restore the provision severed in Back and to clearly define “grounds
consistent with innocence.” Compare Minn. Stat. § 590.11, subd. 1 (2016), with Minn.
Stat. § 590.11, subd. 1 (Supp. 2019). See also Back, 902 N.W.2d at 27; Buhl, 922 N.W.2d
at 440.
Livingston was convicted u nder the 2014 version of th e law, which prohibited a
person from driving, operating, or being in physical control of a motor vehicle while
“knowingly under the influence of a haza rdous substance.” Minn. Stat. § 169A.20,
subd. 1(3) (2014). The statute defined hazardous substances as “any chemical or chemical
compound that is listed as a hazardous substance in rules adopted under chapter 182.”
Minn. Stat. § 169A.03, subd. 9 (2014). The Carson court concluded that Difluoroethane

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was not a “hazardous substance” under this defi nition because the co mmissioner had not
listed it as such in rules adopted under chapter 182. 902 N.W.2d at 445–46.
The district court read Carson as holding that “[Difluoroethane] is no longer a
hazardous substance.” (Emphasis added.) The state also contends that Livingston secured
postconviction relief “because of a change in the classification of [Difluoroethane] by the
[s]upreme [c]ourt,” and it declares, “There is no question [that] at the time Mr. Livingston
committed this offense and at the time of sentencing that . . . huffing [Difluoroethane] and
driving was illegal.” (Emphasis added.) These characterizations rest on a mistaken premise.
They presume that Difluoroethane was a hazardous substance until Carson decriminalized
it by switching its classification. This is just not so.
Carson actually belies the premise. Its holdi ng clarifies that, at the time of
Livingston’s inhaling Difluoroethane and driving under its influence, his conduct was not
illegal under the statute. The supreme court he ld flatly that “[Difluoroethane] is not a
hazardous substance under [Minnesota Statutes section 169A.03, su bdivision 9 (2016)].”
Carson, 902 N.W.2d at 442. Supr eme court holdings of substa ntive law generally apply
retroactively. See State v. Baird, 654 N.W.2d 105, 110 (Minn. 2002). And in pointing out
that “[Difluoroethane] is not a hazardous substance” because the legislature never
designated it as such either directly within the statute or indirectly by rule, Carson was not
altering any prior, final holding. The state is simply in error in asserting that
“[Difluoroethane] was a hazardous substance” at the time of Livingston’s conviction and
sentencing. The effect of th e supreme court’s statutory co nstruction is that any other
interpretation was never the law. See Hoven v. McCarthy Bros. Co. , 204 N.W. 29, 30

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(Minn. 1925). Difluoroethane had never been a hazardous substance under the law when
Livingston inhaled it and drove.
The state’s argument to the contrary fails. The legislature defines what conduct is
criminal. “[N]o act or omissi on is a crime unless made so ” by the legislature. Minn.
Stat. § 609.015, subd. 1 (2018). And because the legislature had not defined Difluoroethane
as a hazardous substance, drivi ng under its influence was not a crime. Having not
committed the statutory offense, Livingston was innocent of it.
We are not convinced otherwise by the st ate’s effort to analogize Livingston’s
circumstances to those of the defendant in Buhl, where we held that the erroneous
admission of Spreigl evidence was not a ground “consistent with innocence.” 922 N.W.2d
at 441. As we explained in Buhl, reversing a conviction on an evidentiary error is not
consistent with innocence because being found guilty in a trial infected by unfair evidence
is not tantamount to factual innocence. Id. at 440. By contrast to Buhl, Livingston’s reversal
did not result from recognizing that unfair evidence may have misled a jury to believe that
the charged criminal conduct occurred; it resulted from recognizin g that the charged
conduct was simply not criminal.
The state directs us to legislative history to persuade us that the legislature intended
the phrase “on grounds consistent with innocence” to apply when new evidence establishes
a petitioner’s factual innocence. But we have already defined the phrase’s meaning in Buhl,
holding that “consistent with innocence” mean s “agrees with innocence.” 922 N.W.2d at
440. And while new, exonerating evidence can establish that a convicted person committed
no crime, recognizing that the charged statut e does not actually criminalize the conduct

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similarly establishes that he committed no crim e. Both circumstances are consistent with
innocence.
The state essentially asks us to look be yond the specific word s of the law to its
general purpose, but that is not how we interpret statutes. Th e legislature urges, “[T]he
letter of the law shall not be disregarded und er the pretext of pursuing the spirit.” Minn.
Stat. § 645.16 (2018). We can suppose that the state correctly assumes that the legislature
never wanted people huffing any intoxicating chemical prope llant and driving under its
influence. The assumption finds support in common sense and in the legislature’s decision
to amend the impaired-drivi ng law to now broadly prohibit driving while under the
influence of “intoxicating substance[s].” See Minn. Stat. §§ 169A.20, subd. 1(3), .03,
subd. 11a (2018) (criminalizing driving under the influence of drugs or chemicals that
impair “the central nervous system or audio, visual, or mental processes”). And we too
doubt that the legislature really wanted the state to compen sate those who drove while so
impaired but whose dangerous conduct the legislature inadvertently failed to render illegal.
But it is now axiomatic that, consistent with the separation of powers and the
limited role of the judiciary, “[t]he rules of construction fo rbid adding words or meaning
to a statute that were intentiona lly or inadvertently left out.” Genin v. 1996 Mercury
Marquis, 622 N.W.2d 114, 117 (Minn. 2001). The legislature used plain English to define
“hazardous substance[s]” in a manner that compelled the Carson court to recognize that
Difluoroethane falls outside the category. 902 N.W.2d at 445. And the legislature failed to
define the phrase “grounds consis tent with innocence” in earlie r versions of the statute,
leaving us to determine that it meant “agrees with innocence.” Buhl, 922 N.W.2d at 440.

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Bound to apply the law strict ly as provided, we concl ude that Livingston secured
postconviction relief because his conduct did not violate the statute and therefore that his
conviction was vacated on a ground consistent with innocence. We reverse and remand for
the district court to analyze Livingston’s petition accordingly.
Reversed and remanded.