State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0263

State of Minnesota,
Respondent,

vs.

Michael John Czarnecki,
Appellant.

Filed March 22, 2021
Affirmed; motion denied
Larkin, Judge

Meeker County District Court
File No. 47-CR-18-551

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

Mark P. Wood, Litchfield City Attorney , Emily T. Wood, Assistant City Attorney, Wood
& Rue, P.L.L.P., Litchfield, Minnesota (for respondent)

Charles L. Hawkins, Charles Hawkins Law, Minneapolis, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Larkin, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges his conviction of driving while impaired (DWI), arguing that
the evidence was insufficient to sustain the jury’s guilty verdict, that the district court erred

2
by denying his requested jury instruction , and that the facts did not warrant a finding of
guilt as a matter of public policy. Appellant also moves this court to strike a footnote from
respondent’s brief. We affirm the conviction and deny appellant’s motion to strike as moot.
FACTS
In 2018, respondent State of Minnesota charged appellant Michael John Czarnecki
with one count of driving under the influence of alcohol and one count of driving a
commercial motor vehicle with an alcohol concentration of 0.04 or more. According to
the complaint, a witness saw Czarnecki stumble out of a semi-truck in the First District
parking lot in Litchfield. The witness was concerned that Czarnecki was intoxicated and
that he would drive in that condition. Officers responded and located Czarnecki at a nearby
Burger King.
The case was tried to a jury. The parties stipulated to the admission of a surveillance
video of the parking lot. The parties also stipulated that : (1) Czarnecki’s alcohol
concentration was 0.19 at 8:21 p.m. , (2) Czarnecki’s semi-truck is a commercial ve hicle,
and (3) “[t]ruck drivers are allowed to stay overnight in the First District parking lot if the
driver is hauling product to or from their facility,” and Czarnecki’s truck “was loaded with
their product.”
The surveillance video depicts the following events. At 3:15 p.m. , a semi-truck
pulled into the parking lot and parked .1 Around 25 minutes later, Czarnecki exited that
semi-truck and walked away. At 6:00 p.m., a second man drove a black truck into the

1 All of this court’s references to times depicted in the surveillance video are approximate.

3
parking lot and parked near Czarnecki’s sem i-truck. The second man assisted Czarnecki,
who appeared to be very intoxicated, out of the passenger side of the black truck and up to
the driver’s door of the semi-truck. Czarnecki appeared to fumble around for his keys and
use them to open the door. At 6:03 p.m. , Czarnecki entered the semi -truck with the
assistance of the second man . The second man closed the semi -truck’s door and drove
away at 6:05 p.m.
At 6:07 p.m., Czarnecki exited the semi -truck. The surveillance video depicts a
shiny object in his hands. He closed the door, walked into the parking lot, stumbled around
in a large circle, and fell backwards on to the ground. A third man, who had just parked
nearby, ran over to help Czarnecki. Czarnecki got up, talked to the man, and then stumbled
back to his semi-truck. The third man walked back to his vehicle. Czarnecki opened the
driver’s door to his semi-truck, stepped on the running board or side step, and reached into
the truck. Czarnecki then closed the door without entering the semi -truck and stumbled
across the parking lot and off camera at 6:10 p.m. The surveillance video depicts police
officers arriving at 6:45 p.m.
A police officer with the Litchfield Police Department testified at trial. That officer
explained that he was d ispatched to the First District parking lot after a caller reported
seeing a man exit the driver’s seat of a semi-truck in the lot. The caller saw the man stumble
and fall and surmised that he was extremely intoxicated. Officers arrived on the scene and
located the semi -truck, but they did not see Czarnecki . Officers soon located Czarnecki
about a block away at Burger King.

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The officer testified that when he arrived at Burger King, Czarnecki was sitting on
the curb in the parking lot. The officer obs erved indicia of intoxication. Czarnecki
admitted that he drank Korbel brandy at lunch. The officer administered field sobriety tests
and ultimately arrested Czarnecki. A receipt in Czarnecki’s pocket indicated that he paid
for three double shots of Korbel and a T-shirt from “The Tavern.”
The officer testified about the surveillance video. He testified that Czarnecki
“appeared to be walking and moving just fine” when he initially arrived in the parking lot.
Approximately three hours later, a vehicle pulled up, Czarnecki was in the passenger seat,
and the driver “was someone else from [an establishment called] The Tavern.” The officer
testified that Czarnecki appeared “to have keys on a belt loop” and at times the keys could
be seen in his h and. The officer testified, “It appeared that they had to get the keys to
unlock it.” The officer testified that the video showed Czarnecki exit the semi -truck,
stumble across the lot, and fall to the ground with “something flashing” in his hand “which
looked like it was possibly keys.”
On cross-examination, the officer acknowledged that Czarnecki had permission to
spend the night in his parking space. Additionally, the following exchange occurred
between the officer and defense counsel:
Q: You never s aw in the video that he was sitting in the
driver’s seat, correct?
A: I could see him enter through the driver’s door where the
driver’s seat is --
Q: Correct.
A: -- I could see him moving in that area.
Q: Correct. That’s how you got to get in, in order t o get into
the sleeper area, correct?
A: Correct. I would imagine so.

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Q: And if you were going to put something that you’d
purchased at a bar -- away before you left to go get something
to eat and use a restroom at Burger King; that’s how’d you’d
enter to get into the “living area” of the tractor, fair?
A: I would assume so, yes.

An employee of The Tavern testified that she spent at least two hours with Czarnecki
at The Tavern. She testified that Czarnecki bought a T -shirt. She talked with Czarnecki
while he was at The Tavern and learned that he planned to sleep overnight in his semi -
truck. She instructed the bartender to give Czarnecki a ride to his semi-truck.
Czarnecki moved for judgment of acquittal, arguing that there was no evidence that
he drove, operated, or was in physical control of the vehicle. The state agreed that there
were no “ facts to support driving or operating,” but argued that a fact question existed
regarding physical control. The district court agreed that there was no evidence of driving
or operating , b ut disagreed with Czarnecki’s assertion that there was no evidence of
physical control . The district court decided to include a supplemental jury instruction
regarding physical control. Czarnecki asked the district court to instruct the jury that “mere
presence in or about the vehicle is not enough for physical control; it is the overall situation
that is determinative.” The district court denied that request.
The jury found Czarnecki guilty of driving under the influence and not guilty of
driving a commercial motor vehicle with an alcohol concentration of 0.04 or more. This
appeal followed.

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DECISION
I.
Czarnecki contends that the evidence was insufficient to sustain the jury’s guilty
verdict un der Minn. Stat. § 169A.20, subd. 1(1) (2016), which prohibits a person from
driving, operating, or being in physical control of a motor vehicle while under the influence
of alcohol. Czarnecki argues that the state failed to prove he was in physical control of his
semi-truck. We understand Czarnecki’s argument to be that the state failed to prove facts
that established “physical control” within the me aning of section 169A.20, subdivision
1(1).
Standard of Review
Traditionally, when considering a challenge to the sufficiency of the evidence to
support a guilty verdict, we carefully analyze the record to determine whether the evidence,
viewed in a light most favorable to the conviction, was sufficient to permit the jury to reach
its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We “assume that the jury
believed the state’s witnesses and disbelieved contrary evidence.” State v. Brocks , 587
N.W.2d 37, 42 (Minn. 1998). We defer to the jury’s credibility determinations and will
not reweigh the evid ence on appeal. State v. Franks , 765 N.W.2d 68, 73 (Minn. 2009);
State v. Watkins, 650 N.W.2d 738, 741 (Minn. App. 2002). We will not disturb a guilty
verdict if the jury, acting with due regard for the presumption of innocence and requirement
of proof beyond a reasonable doubt, could reasonably have concluded that the state proved
the defendant’s guilt. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

7
However, if the state relied on circumstantial evidence to prove an element of an
offense, we apply a heightened standard of review. See State v. Harris, 895 N.W.2d 592,
601-03 (Minn. 2017) (applying circumstantial -evidence standard to individual element of
criminal offense that was proved by circumstantial evidence). Circumstantial evidence is
“evidence from which the factfinder can infer whether the facts in dispute existed o r did
not exist.” Id. at 599 (quotation omitted). “In contrast, direct evidence is evidence that is
based on personal knowledge or observation and that, if true, proves a fact without
inference or presumption.” Id. (quotations omitted).
Czarnecki assert s that this court should apply the heightened circumstantial -
evidence standard of review. When this court asked Czarnecki to explain that assertion at
oral argument, Czarnecki replied that the evidence is insufficient under either standard.
The state argues that we should apply the traditional direct-evidence standard of review.
In this case, t he surveillance video provide d direct evidence of the facts necessary
to establish physical control. The jury did not need to make any inferences to determine
the existence of those facts. It simply had to apply the district court’s instruction regarding
the definition of physical-control to the facts found and determine whether th ose facts
established physical control. We therefore apply the traditional standard of review, and
not the heightened circumstantial standard. And, we determine de novo whether the facts
of this case constitute physical control within the meaning of section 169A.20, subdivision
1(1). See State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013) (stating that whether certain
conduct meets a statutory definition is reviewed de novo).

8
Physical Control
In State, Dep’t of Pub. Safety v. Juncewski, the supreme court acknowledged that
neither it, nor the legislature, has precisely defined physical control. 308 N.W.2d 316, 319
(Minn. 1981). In that case, the supreme court held that physical control does not require a
vehicle’s engine to be running . I d. at 317 . Subsequent cases have elaborated on the
concept of physical control. For example, “[p]hysical control is meant to cover situations
when an intoxicated person is found in a parked vehicle under circumstances in which the
vehicle, without too much difficulty, might again be started and become a source of danger
to the operator, to others, or to property.” State v. Fleck , 777 N.W.2d 233, 236 (Minn.
2010) (quotation omitted). “Thus, a person is in physical control of a vehicle if he has the
means to initiate any movement of that vehicle, and he is in close proximity to the operating
controls of the vehicle.” Id. The supreme court has held that the term physical control
should be interpreted as broadly as possible. Id.; see Juncewski , 308 N.W.2d at 319
(holding that the statute was amended to modify the requirement that a driver be in “actual
physical control” by deleting the word “actual” so that the statute be given the broadest
possible effect).
“The purpose underlying the offense of being in physical control of a motor vehicle
while under the influence of alcohol is to deter intoxicated persons from getting into
vehicles except as passengers and to act as a preventive measure to enable the drunken
driver to be apprehended before he strikes.” Fleck, 777 N.W.2d at 236 (quotation omitted).
“The offense, however, is not intended to cover situations in which an intoxicated person
is a passenger, having relinquished control of the vehicle to a designated driver.” Id. “Mere

9
presence in or about a vehicle is insufficient to show ph ysical control; it is the overall
situation that is determinative.” Id. A number of factors are considered in determining
whether a person is in physical control of a vehicle, including: “the person’s location in
proximity to the vehicle; the location of the keys; whether the person was a passenger in
the vehicle; who owned the vehicle; and the vehicle’s operability.” Id.
The supreme court has addressed the physical-control concept on several occasions.
In Fleck, the defendant argued:
the evidence was legally insufficient to convict him of being in
physical control of a motor vehicle when he was sleeping in his
vehicle, which was parked in an assigned residential parking
spot with the driver’s door open, keys in the center console, no
devices of the vehicle in operation, and the vehicle had not
recently been operated.

Id. at 235. The supreme court affirmed the conviction, reasoning that a jury could
reasonably have found that the defendant “was in a position to exercise dominion or control
over the vehicle and that he could, without too much difficulty, make the vehicle a sou rce
of danger.” Id. at 237.
In State v. Starfield, the supreme court reinstated the conviction of a person found
behind the wheel of a vehicle that was stuck in a snow-filled ditch even though the vehicle
could not be moved without the assistance of a tow truck. 481 N.W.2d 834, 835 (Minn.
1992). The case had gone to the jury solely on the question of physical control. Id. at 836.
The jury found the appellant guilty, but this court reversed the conviction. Id. In reinstating
the conviction, the supreme court held that intent to operate is not an element of the offense
and reasoned that the jury could have found beyond a reasonable doubt that the appellant

10
was in physical control of the vehicle given the evidence that she was behind the wheel, in
her own vehicle, with keys in her pocket, and towing assistance was likely available. Id.
at 838-39.
As to application of the physical-control factors in this case, the surveillance video
showed Czarnecki enter his semi -truck through the driver’s door and remain in the truck
for about four minutes. It is undisputed that Czarnecki was intoxicated at that time. In
fact, the surveillance video show ed him stagger and stumbl e before he entered the truck.
The video also show ed him stagger and fall backwards to the ground after he exited the
truck. The video, viewed in the light most favorable to the verdict, showed that he had the
keys to his semi -truck in his possession when he entered the truck. Indeed, that fact is
undisputed.
The surveillance video also show ed Czarnecki approach his semi -truck a second
time, open the driver’s door, step on the running board or side step, and reach into the truck.
Although the evidence ind icated that a trucking company owned the semi -truck, when
viewed in a light most favorable to th e verdict, the evidence showed that Czarnecki was
authorized to drive the truck. The evidence also establishe d that the truck was operable.
Lastly, there was no evidence suggesting that Czarnecki relinquished control of the semi -
truck to a ny other person, and the video does not show any other person enter the semi -
truck.
The sum of the evidence was adequate to establish physical control under the
caselaw discussed above, especially given the supreme court ’s directive that physical
control is to be interpreted as broadly as p ossible and its statement that the purpose of the

11
statute is to deter individuals who have been drinking intoxicating liquor from getting into
their vehicles, except as passengers. Fleck, 777 N.W.2d at 236.
Czarnecki’s arguments that the evidence was insufficient to establish physical
control are unpersuasive. For example, although it is undisputed that the police did not
find Czarnecki in or around his vehicle, proximity is but one relevant factor. Id. And
regardless of where the police encountered Czarne cki, the surveillance video establishes
that he entered the truck through the driver’s door, remained in the truck for a short period
of time, approached the truck a second time, opened the driver’s door, and reached inside.
See Starfield, 481 N.W.2d at 839 ( noting that the state need not prove that a defendant
entered a vehicle for the purpose of operating it). Thus, the surveillance video establishes
the necessary proximity between Czarnecki and his semi -truck. Moreover, Czarnecki’s
argument that the evidence was nonetheless insufficient just because the police did not
observe him in or near the vehicle is inconsistent with the directive that physical control be
interpreted as broadly as possible.
Czarnecki’s reliance on caselaw indicating that a passenger is not in physical control
of a vehicle is unavailing. Those cases describe a passenger as a person who was not the
driver or as someone who relinquished control of a vehicle so another person could drive
it. See Fleck, 777 N.W.2d at 236 (“The offense, however, is not intended to cover situations
in which an intoxicated person is a passenger, having relinquished control of the vehicle to
a designated driver.” ); Starfield, 481 N.W.2d at 838 (“A passenger, by definition, is
someone who is merely along for the ride.”). Indeed, the law favors such a relinquishment
by an intoxicated person. Hansen v. Comm’r of Pub. Safety, 478 N.W.2d 229, 231 (Minn.

12
App. 1991) (“Although the laws against dr iving while intoxicated are interpreted broadly
in the public interest, public policy also encourages people who have been drinking to find
another person to drive. ”). But here, there is no evidence that Czarnecki relinquished
control of his truck to any other person. Simply put, Czarnecki was not a passenger.
Lastly, Czarnecki argues that the evidence shows that he intended to spend the night
in the sleeping quarters of his semi-truck and did not intend to drive his truck until morning.
That argument is unavailing because
[a]n intent to operate is not an element of the criminal offense;
if it were, defendants found in a drunken stupor behind the
wheel could argue they lacked any intent to move the vehicle.
A drunken intent is highly probl ematic and too easily
manipulated after the fact. Indeed, an attempt to make lack of
intent an affirmative defense was defeated in the 1989
legislature.

Starfield, 481 N.W.2d at 839.
Czarnecki asserts that although intent is not an element of the offense, it is a relevant
circumstance in determining physical control. As to that point, Czarnecki heavily relies on
State, City of Falcon Heights v. Pazderski, in which this court concluded:
Where [defendant] was found sleeping in the front seat
of his properly parked car in his own driveway, and where
[defendant] had been sleeping there for three hours with the
keys out of the ignition without any sign the car was being
operated, and without any indication it was in tended to be
operated, [defendant] was not in physical control of the
automobile while under the influence of alcohol.

352 N.W.2d 85, 86 (Minn. App. 1984). In reaching that conclusion, this court focused on
the defendant’s intent, reasoning that “no facts in the record supported any inference other
than that [defendant] had been soundly sleeping and had the intention of sleeping the rest

13
of the night there as he claimed,” that defendant “had no intention of restarting the vehicle
and/or driving any place else,” and that defendant “returned t o his car, not with any
intention of using or operating it as a motor vehicle but merely using it as a place to get
some sleep.” See id. at 87-88.
This court’s emphasis on the Pazderski defendant’s intent is inconsistent with the
Minnesota Supreme Court’s later statement that the state need not prove that a defendant
was in a vehicle for the purpose of operating it because “intent to operate is not an element
of the criminal offense” and the court’s notation that “an attempt to make lack of intent an
affirmative defense was defeated in the 1989 legislature.” Starfield, 481 N.W.2d at 839.
Moreover, to the extent that intent is a relevant factor, we must consider the evidence in
the light most favorable to the verdict, which leads us to conclude that the jury did not find
or weigh that factor in Czarnecki’s favor.
Admittedly, the jury could have rejected the state’s evidence and concluded that
Czarnecki was not in physical control of the ve hicle. Nonetheless, the jury’s verdict is
consistent with the concept of physical control described in caselaw. Viewed in a light
most favorable to the conviction, the evidence was sufficient to permit a reasonable jury to
conclude that Czarnecki was in a position to exercise dominion or control over the vehicle
and that he could, without too much difficulty, make the vehicle a source of danger. We
therefore do not disturb the verdict.

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II.
Czarnecki contends that the district court committed reversible error by refusing to
instruct the jury that “mere presence in or about the vehicle is not enough for physical
control; it is the overall situation that is determinative.”
A district court has “considerable latitude” in selecting the language for its jury
instructions. State v. Gatson , 801 N.W.2d 134, 147 (Minn. 2011) (quotation omitted).
Nevertheless, an instruction must not “confuse, mislead, or materially misstate th e law.”
State v. Kelley , 855 N.W.2d 269, 274 (Minn. 2014). On appeal, the instruction s are
reviewed “in their entirety to determine whether they fairly and adequately explained the
law of the case.” State v. Kuhnau, 622 N.W.2d 552, 555 -56 (Minn. 2001). We will not
reverse a district court’s decision on jury instructions absent an abuse of discretion.
State v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007). If the district court abused its
discretion, we will reverse unless we conclude that “beyond a reasonable doubt . . . the
error had n o significant impact on the verdict.” State v. Koppi , 798 N.W.2d 358, 364
(Minn. 2011) (quotations omitted).
Generally, a district court must give an instruction regarding the defendant’s theory
of the case if there is evidence to support it. State v. Johnson, 719 N.W.2d 619, 629 (Minn.
2006). In evaluating whether to give an instruction, “the evidence is viewed in the light
most favorable to the party requesting the instruction.” State v. Edwards, 717 N.W.2d 405,
410 (Minn. 2006). Nonetheless, even wh ere the evidence supports giving a party’s
proposed instruction, “[t]he court need not give the instruction as requested by the party if

15
it determines that the substance of that request is contained in the court’s charge.”
State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977).
The district court gave the following jury instruction regarding physical control:
A person is in physical control of a motor vehicle when the
person is present in a motor vehicle and is in position to either
direct the movement of the vehicle or keep the vehicle in
restraint. It is not necessary for the engine to be running in
order for a person to be in physical control of a motor vehicle.

The district court further instructed the jury that

[i]n considering whether or not the defend ant was in physical
control of the motor vehicle while under the influence of
alcohol, you may consider defendant’s location in or by the
vehicle, the location of the ignition keys, whether the defendant
had been a passenger in the vehicle before it came to rest, who
owned the vehicle, the extent to which the vehicle was
inoperable, and whether the vehicle if inoperable might have
been rendered operable so as to be a danger to persons or
property. You may consider these as well as any other facts or
circumstances bearing on whether or not the defendant was
then in physical control of a motor vehicle which was or
reasonably could become a danger to persons or property while
the defendant was under the influence of alcohol.

That portion of the instruction is identical to the instructional language suggested by the
Minnesota Supreme Court in Starfield. See 481 N.W.2d at 839.
In denying Czarnecki’s requested instruction regarding mere presence, the district
court explained:
All right. So, in considering that request I’ll note that I
think that that language is inclusive when it talks about
determining all of the facts and circumstances. Also, ordinarily
I don’t want to draw attention to particular kinds of evidence
and so in this case I th ink I’m going to limit it to what the
[s]upreme [c]ourt has already proved for supple – for

16
supplemental instruction and so I’ll deny that additional piece
at this time.

The district court’s instruction regarding physical control accurately stated the law.
Although the supreme court has said that “mere presence” in a vehicle is insufficient to
establish physical control , Starfield, 481 N.W.2d at 838 , the instruction provided by the
district court required more than mere presence. It required a determination that Czarnecki
was “in position to either direct the movement of the vehicle or keep the vehicle in
restraint.” See Ruud , 259 N.W.2d at 578. Moreover, the substance of Czarnecki’s
requested instruction was contained in the district court’s instruc tion that the jury could
consider “any other facts or circumstances bearing on whether or not the defendant was
then in physical control of a motor vehicle which was or reasonably could become a danger
to persons or property while the defendant was under the influence of alcohol.” (Emphasis
added.) In sum, t he district court did not abuse its discretion by denying Czarnecki’s
request to include language regarding mere presence.2

2 Because we conclude that the district court did not err, we do not address the parties’
arguments regarding whether the alleged instructional error was harmless. Nonetheless,
we note that when determining whether a district court’s refusal to instruct a j ury on a
particular concept was harmless, an appellate court may consider whether the defense
argued the excluded concept to the jury in closing argument. See State v. Daniels , 361
N.W.2d 819, 832 (Minn. 1985) (concluding that the district court’s refusal to give a
requested instruction was not prejudicial because counsel for both parties argued the issue
in closing argument ). We would not be able to do so here because Czarnecki did not
provide a transcript of the closing arguments. “[A] party seeking review has a duty to see
that the appellate court is presented with a record which is sufficient to show the alleged
errors and all matters necessary to consider the questions presented.” State v. Carlson, 161
N.W.2d 38, 40 (Minn. 1968). An appellate court may decline to address an assignment of
error if an appellant has failed to provide the transcripts necessary for review. See, e.g.,
State v. Heithecker, 395 N.W.2d 382, 383 (Minn. App. 1986) (declining to consider issues
because appellant failed to provide trial transcript necessary for appellate review).

17
III.
Czarnecki contends that a finding of guilt in this case is inconsiste nt with the
purpose of the DWI statute and is bad policy. He argues that this court should hold, as a
matter of policy, that the “DWI physical control statute is not applicable in these
circumstances because it is inconsistent with the purposes of the statute.”
This court is limited in its function to correcting errors; it cannot create public
policy. State v. Christenson, 827 N.W.2d 436, 441 n.2 (Minn. App. 2012), review denied
(Minn. Feb. 19, 2013); LaChapelle v. Mitten , 607 N.W.2d 151, 159 (Minn. App. 2000),
review denied (Minn. May 16, 2000). In any event, in State v. Thurmer, this court stated
that the physical-control offense “is a preventive measure intended to deter drunken drivers
from getting into their vehicles except as passengers.” 348 N.W.2d 776, 778 (Minn. App.
1984). Given the facts of this case, the jury’s finding of guilt is not inconsistent with the
purpose of the driving-while-impaired statute.
Czarnecki also argues that this court should create a p resumption that semi -truck
drivers “lawfully parked for the night who have a tractor with a sleeping berth or sleeping
compartment” are not in physical control of that vehicle. Such a presumption would be
inconsistent with the supreme court’s directive that laws prohibiting a person from driving
a motor vehicle while intoxicated are to be “liberally interpreted in favor of the public
interest and against the private interests of the drivers involved.” Juncewski, 308 N.W.2d
at 319. It would also be incons istent with the legislature’s intent to have the DWI statute
cover “the broadest possible range of conduct” and to be given “the broadest possible
effect.” Id. Lastly, the creation of such a presumption is a matter of public policy for the

18
legislature, and not a matter to be decided by an intermediate error -correcting appellate
court. See Christenson, 827 N.W.2d at 441 n.2.
IV.
Czarnecki moved to strike a footnote from the state’s brief to this court. The
footnote referenced testimony from the omnibus hearing in this case. We have not relied
on the footnote or considered the alleged testimony in reaching our decisions. We therefore
deny the motion to strike as moot. See Drewitz v. Motorwerks, Inc., 728 N.W.2d 231, 233
n.2 (Minn. 2007) (denying motion to strike as moot because the supreme court did not rely
on the challenged material).
Affirmed; motion denied.