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This opinion is nonprecedential except as provided by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
A20-0264

State of Minnesota,
Respondent,

vs.

Reginald Fanpatrick Wilson,
Appellant.

Filed January 19, 2021
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-19-12516

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Reginald Fanpatrick Wilson challenges his convictions for two counts of
second-degree driving while intoxicated (DWI), arguing that the state failed to prove that
the DataMaster (DMT) used in his case ha d undergone required maintenance, leaving

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reasonable doubt that the machine accurately measured his breath’s alcohol concentration.
Alternatively, Wilson argues—and the state agrees—that, under Minn. Stat. § 609.04,
subd. 1 (2018), the district court erred by entering convictions and sentences for both DWI
counts. We conclude that the evidence is sufficient to prove th e accuracy of the DMT
alcohol-concentration test result beyond a reasonable doubt and thus is sufficient to support
Wilson’s convictions. But we ag ree with the parties that W ilson should be convicted and
sentenced for only one count of DWI. We theref ore affirm in part, reverse in part, and
remand for the district court to correct the warrant of commitment to vacate one of his DWI
convictions.
FACTS
The following facts were established at W ilson’s jury trial. Around 11:30 a.m., on
May 29, 2019, Golden Valley police responded to a report of a car driving erratically. An
officer located the reported car and observed it “nearly striking other vehicles on the
roadway” and having “extreme difficulties maintaining its lane.” After conducting a traffic
stop of the car, the officer approached the driver’s-side window and “immediately detected
an overwhelming odor of an alcoholic beverage coming from within the vehicle.” Wilson
was the car’s only occupant. The officer obser ved that Wilson’s eyes were bloodshot and
watery and that his speech was slurred. He as ked Wilson to get out of the car so a second
officer could administer field sobriety tests. Wilson then failed three field sobriety tests:
the horizontal gaze nystagmus test, the one-le gged-stand test, and th e walk-and-turn test.
Wilson was arrested, searched, and taken to the police station.

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At the police station, another officer (the testing officer) used a DMT to measure
the alcohol content in Wilson’s breath sample. The testing officer was a fully trained DMT
operator: he had been certified to administ er DMTs since 2009, and his most recent
recertification training occurred six months before the offense date.
Before administering the DMT test, the testing officer observed Wilson for 15
minutes to ensure that Wilson’s alcohol concentration was not affected by any burping or
vomiting. Next, the testing officer performed a required diagnostic check on the DMT,
which included measuring a known sample and then using an air blank to clear the known
sample from the machine. The diagnostic check was passed at 12:23 p.m. Wilson provided
his first adequate breath sample, producing a result of 0.212 alcohol concentration, at
12:25 p.m. After the first sample, the officer ran an air blank and a control test on the DMT
before Wilson gave a second good breath sample. Wilson’s second sample again measured
0.212 alcohol concentration, at 12:30 p.m. The DMT then generated an average alcohol-
concentration result of 0.21.
The testing officer testified that, during administration of the diagnostic checks and
the testing of Wilson’s breath, the DMT’s control air sample was not expired and the DMT
did not display any error messages. He explained that, if the machine was malfunctioning
or Wilson had failed to provide an adequate breath sample, the DMT would have displayed
an error message and that, if it had displayed such a message, he would have been unable
to perform any DMT test. Without an error message, the testing officer had “no reason to
suspect [the DMT test result in Wilson’s case] was not [valid].”

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Respondent State of Minnesota charged Wilson with two counts of DWI: (1) driving
while under the influence of alcohol, in viol ation of Minn. Stat. § 169A.20, subd. 1(1)
(2018); and (2) having an alcohol concentrati on of 0.08 or more as measured within two
hours of driving, in viola tion of Minn. Stat. § 169A.20, subd. 1(5) (2018 ). Both counts
were enhanced to gross misdemeanors based on the presence of two aggravating factors.
See Minn. Stat. § 169A.25, subd. 1(a) (2018). The two aggravating factors alleged were a
qualified prior impaired-driving incident within the previous ten years and driving with an
alcohol concentration of 0.16 or more. See Minn. Stat. § 169A.03, subd. 3 (2018) (defining
“Aggravating factor”).
At trial, Wilson stipulated to the prior im paired-driving incident, so the state only
needed to prove the second aggravated factor of 0.16 alcohol concentration or more. To do
so, the state presented a DMT printout and officer testimony that together reported the
results of two measurements of Wilson’s breath as having an average alcohol concentration
of 0.21. Wilson did not challenge the admissibility of the DMT test result but did challenge
its reliability.
The jury found Wilson guilty of both counts of DWI. The district court entered
judgment on both DWI counts and sentenced Wilson to a stayed 365-day jail term and four
years of probation.
Wilson appeals.

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DECISION
I. The evidence is sufficient to prove that Wilson had an alcohol concentration of
0.16 or higher.

Wilson argues that the state failed to prove his guilt beyond a reasonable doubt
because it submitted insufficien t evidence to prove that th e DMT result critical to his
convictions was valid and accurate. Specifically, Wilson contends that the state failed to
prove the validity and accuracy of the test results because it di d not present evidence that
the DMT had been regularly maintained.
The state proved Wilson’s alcohol content th rough direct evidence. In considering
the sufficiency of direct evid ence to support a conviction, we analyze the record “to
determine whether the evidence, when viewed in a light most favorable to the conviction,
was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440
N.W.2d 426, 430 (Minn. 1989). We must assu me that the jury “b elieved the state’s
witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101,
108 (Minn. 1989). “We will not di sturb the verdict if the jury , acting with due regard for
the presumption of innocence and for the necessity of overcoming it by proof beyond a
reasonable doubt, could reasonably conclude that” the defendant was guilty of the charged
offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotation omitted).
Wilson challenges the sufficiency of the evidence to prove the aggravating factor of
an alcohol concentration of 0.16 or more within two hours of driving. See Minn. Stat.
§ 169A.03, subd. 3. The state’s evidence to prove the aggravating-factor element was the
DMT test result of a 0.21 alcohol concentration.

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By statute, the result of a DMT breath test—if administered by a fully trained
person—is admissible without expert testimony to establish that the instrument provides a
trustworthy and reliable measure of alcohol in the breath. Minn. Stat. § 634.16 (2018)
(providing for admissibility of tests from “approved breath -testing instrument”); Minn.
Stat. § 169A.03, subd. 11 (2018) (defining “approved breath-testing instrument”); Minn.
R. 7502.0425, subps. 2-3 (2017) (authori zing the DMT as approved breath-testing
instrument). Thus, when the test is administered by a properl y trained person, the statute
establishes a presumpti on of reliability of the testing in strument, although a driver may
challenge that presumption. State v. Underdahl, 767 N.W.2d 677, 685 n.4 (Minn. 2009).
But, even if the foundational re liability of the instrument is es tablished and the test result
is admitted into eviden ce, the reliability of th e test remains an i ssue for the jury in
determining the weight to be given to the evidence. See State v. Ards , 816 N.W.2d 679,
688 (Minn. App. 2012) (citing 10A Minnesota Practice, CRIMJIG 29.10).
Wilson did not object to admission of the te st result at trial, nor does he challenge
its admissibility on appeal. Rather, he argues that, although the test result was admissible,
the evidence is nevertheless in sufficient to prove beyond a r easonable doubt that the test
result was accurate. The evidence is insufficient to prove ac curacy, he contends, because
the state established that a DMT requires re gular maintenance but failed to present any
evidence that the DMT in this case had undergone its required maintenance.
“Making credibility determinations and weighing evidence are tasks reserved to the
jury.” Ards, 816 N.W.2d at 687. Here, the jury hear d from the testing officer that he was
certified to operate the DMT as of 2009 and was most recently recertified as of December

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2018, six months before the offense date. The te sting officer testified that he had training
and field practice in operating a DMT and that he followed the procedure and protocol
consistent with his DMT training in administering Wilson’s DMT test. The testing officer
explained that a DMT requires maintenance if it malfunctions or the air control sample has
expired. He stated that he did not observe any malfunction or interference with the DMT
machine during Wilson’s test and that the air sample in the machine would not expire until
2021. He also testified that, if the DMT errs in any way, the administering officer is unable
to conduct the test with that DMT and must use another DMT. The testing officer testified
that the DMT used here did not malfunction or err in any way and that it produced the same
alcohol-concentration measurement twice. On this record, the jury had sufficient evidence
to find that, based on the testing officer’s knowledge of the DMT, his administration of the
test to Wilson, and the actual operation of the DMT in this case, the accuracy of the test
result was proved beyond a reasonable doubt.
We will not disturb the verdict if the jury , acting with due regard for the presumption
of innocence and the requirement of proof beyond a reasonable doub t, could reasonably
conclude that the defendant was guilty of the charged offense. See Bernhardt, 684 N.W.2d
at 476-77. On this record, ther e is sufficient evidence for a jury to reasonably find that
Wilson’s DMT test result was 0.21 alcohol conc entration within two hours of driving.
There is therefore sufficient evidence for a jury to reasonably find that the state proved that
Wilson was guilty of second-degree DWI beyond a reasonable doubt.

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II. The district court committed plain error by convicting Wilson of both counts
of second-degree DWI.

Wilson and the state agree that the distri ct court erred by entering convictions and
sentences for both counts of DWI. We, too, agree.
Under Minn. Stat. § 609.04, subd. 1, a person “may be convicted of either the crime
charged or an included offens e, but not both.” The supreme court has interpreted section
609.04 to bar multiple convictions under different sections of the same criminal statute for
acts committed during a single behavioral incident. State v. Jackson, 363 N.W.2d 758, 760
(Minn. 1985). In State v. Clark, we applied that rule to bar multiple convictions for driving
under the influence of alcohol and driving with an alcohol concentration of 0.10 when both
offenses arose out of the same behavioral incident. 486 N.W.2d 166, 170 (Minn. App.
1992). We then vacated one conviction. Id. at 171.
Wilson, like Clark, was convicted of driv ing under the influence of alcohol and
driving with an alcohol concentration over the legal limit, in violation of different sections
of the same statute, for conduct arising out of a single behavioral incident. See Minn. Stat.
§ 169A.20, subd. 1(1), (5). Accordingly, one of Wilson’s convictions must be vacated.
Because sufficient evidence supports Wilson’s conviction for second-degree DWI,
we affirm in part. But, because Wilson should not be convicted of both counts of second-
degree DWI, we reverse in part and remand fo r the district court to determine which of
Wilson’s convictions to vacate and to corre ct the warrant of commitment accordingly,
leaving the jury’s finding of guilt for both offenses intact.
Affirmed in part, reversed in part, and remanded.