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This opinion is nonprecedential except as provided by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
A20-0529

State of Minnesota,
Respondent,

vs.

Alfred Richard Einberger, III,
Appellant.

Filed January 4, 2021
Affirmed
Connolly, Judge

Mower County District Court
File No. 50-CR-18-1961

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

Kristen M. Nelsen, Mower County Attorney, Kea Izabela Maxwell, Assistant County
Attorney, Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Adam S. Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Gaïtas,
Judge.

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NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant argues that his guilty plea to second -degree controlled-substance crime
was not accurate because he did not admit that he possessed a controlled substance and that
his guilty plea to driving while impaired (DWI) was not accurate because he did not admit
that he knew his body contained a controlled substance or its metabolite while he was
driving. Because we see no inaccuracy in appellant’s guilty pleas, we affirm.
FACTS
Following a traffic stop in September 2018, appellant Alfred Einberger III was
charged with count one: second -degree c ontrolled substance possession —felony; count
two: predatory offender failure to register —felony; count three: fifth degree controlle d
substance possession—felony; count four: fourth-degree driving while impaired (DWI)—
controlled substance —misdemeanor; and count five: fourth -degree DWI —any amount
schedule I/II—misdemeanor. He pleaded guilty to counts one and five with an agreement
that (1) the other charges would be dropped, ( 2) he would receive the bottom -of-the-box
guideline sentence of 95 months in prison for count one, and (3) the state would not oppose
his motion for a dispositional departure and a stay of the sentence.
The district court denied appellant’s departure motion, and appellant was sentenced
to 95 months in prison, executed, for count one and a concurrent 90 days for count five.
He challenges his convictions, arguing that his guilty pleas were inaccurate.

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DECISION
Standard of Review
The validity of a guilty plea is a question of law that this court reviews de novo.
State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). The defendant must show that the plea
is invalid. Id. A defendant has no absolute right to withdraw a guilty plea, but a court must
allow withdrawal if it is necessary to correct a manifest injustice. Id. at 93. A manifest
injustice exists if a plea is not valid. Id. at 94. To be constitutionally valid, a plea must be
accurate, voluntary, and intelligent. Id. A guilty plea is accurate if it is supported by a
proper factual basis. State v. Theis, 742 N.W.2d 643, 647 (Minn. 2007).
1. Plea to Second-degree Controlled Substance Possession
Appellant’s plea w as supported by testamentary evidence. At the hearing, he
responded affirmatively when asked (1) if, for a person with his criminal history, the
presumptive disposition for Count 1 would be commitment to prison ; (2) if he understood
that, while the plea ag reement allowed him to seek a departure, there was no agreement
that he would receive a departure ; and (3) if the district court did not grant the departure,
appellant would have no basis to withdraw his guilty plea.
These questions were followed by app ellant’s attorney providing the factual basis
for appellant’s guilty plea. Appellant again answered, “Yes” when asked if a deputy had
(1) stopped him, (2) had him do field sobriety tests, (3) arrested him for suspicion of DWI,
(4) searched his vehicle, and (5) located more than 25 grams of methamphetamine during
the search. Appellant was then asked if he knew the methamphetamine was there; if he
provided a urine sample when asked; if he understood that the sample had been tested and

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indicated that methamp hetamine and its metabolite, amphetamine, were in appellant’s
system when the sample was taken; and if this evidence was the basis for his pleading
guilty to Count 5 as well as Count 1. Again, he answered, “Yes” to each question. The
district court said it was satisfied there was a factual basis and accepted the plea.
Appellant says he “agreed to plead guilty to controlled substance possession” but
“did not admit . . . that he possessed controlled substances” and that his plea is inaccurate
because he admitted only to driving a vehicle in which controlled substances were found,
which “does not establish that he possessed the substances found so mewhere inside the
vehicle.” We disagree.
Constructive possession requires a showing either that the police f ound the
substance in a place under the defendant’s exclusive control to which others did not usually
have access or that, if others did have access, there is a strong probability inferable from
other evidence that the defendant was at the time consciousl y exercising dominion and
control over the substance. State v. Florine, 226 N.W.2d 609, 611 (Minn. 1975); see also
State v. Hunter , 857 N.W.2d 537, 542 (Minn. App. 2014) (clarifying that constructive
possession requires a suspect’s exercise of dominion an d control over the substance, not
over the place where it is found).
Appellant was the driver and sole occupant of a vehicle in which 0.2 grams of liquid
methamphetamine and a syringe were found in a compartment near the steering wheel and
more than 25 grams of methamphetamine, two ecstasy pills, two syringes with
hallucinogenic mushroom spores, $2,100 in cash, a digital scale, and two
methamphetamine pipes were found in the trunk. He testified that he knew the

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methamphetamine was in the vehicle when he was driving. It can be inferred that appellant,
alone and driving a car he knew contained more than 25 grams of methamphetamine, was
exercising dominion and control over the methamphetamine.
Appellant relies on Hunter and on State v. Sam, 859 N.W.2d 825 (Minn. App. 2015),
for his argument that driving a vehicle in which controlled substances were found does not
establish that he possessed the substan ces. His reliance is misplaced because both cases
are distinguishable. In Hunter, a passenger was in the vehicle with the driver, and an officer
testified that he saw the driver drop what the officer believed to be a bag of cocaine onto
the passenger seat and the passenger push the bag onto the floor. Hunter, 857 N.W.2d at
540. In par t because the jury was not properly instructed on constructive possession, the
conviction was reversed. Id. at 543. Sam also involved a vehicle with a driver and a
passenger, neither of whom owned the vehicle. Sam, 85 9 N.W.2d at 828.
Methamphetamine was found in the glove box and on the passenger’s person. Id. at 829.
“[B]ecause the state failed to prove beyond a reasonable doubt that [the driver]
constructively possessed the methamphetamine in the car,” the driver’s conviction of fifth-
degree possession of a controlled substance was reversed. Id. at 829-30.
Appellant’s guilty plea provided an adequate basis for his conviction of constructive
possession of more than 25 grams of methamphetamine.
2. Plea to Fourth-Degree DWI—Any Amount Schedule I/II
The offense of “DWI —any amount Schedule I/II” requires that a person drove or
was in physical control of a motor vehicle while that person’s body contained any amount
of a Schedule I or Schedule II drug or its metabolite. Minn. Stat. § 169A.20, subd. 1 (7)

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(2018). Appellant’s urine test following his arrest indicated the presence of amphetamine
and methamphetamine in his body. He does not dispute this, but argues that “the statute
requires that [he] knew or should have known his body contained a controlled substance or
metabolite.” The statute contains no such requirement.
This court recently addressed and rejected appellant’s argument in State v. Schwartz,
943 N.W.2d 411 (Minn. App. 2020), review granted (Minn. June 30, 2020).1 After noting
that it would be absurd for the analogous statute prohibiting driving with an alcohol
concentration of 0.08 or more to require proof that the driver “must have been subjectively
aware of his own alcohol concentration in order to be guilty of the crime,” Schwartz
concluded:
Because Minn. Stat. § 169A.20, subd. 1(7), provides for
criminal liability without proof of knowledge or intent, because
the statute is a public -welfare offense, and because the
legislature specifically provided for a limited affirmative
defense for drivers with schedule I or II controlled substances
in the driver’s body, [i.e., drivers using the substance with a
prescription], we decline to read into the statute an element not
included by the legislature in the definition of the crime . The
state is not required to prove that the motor -vehicle operator
knew or had reason to know that a controlled substance was in
his body to prove a charge under Minn. Stat. § 169A.20, subd.
1(7). . . .
We conclude that appellant’s guilty plea is supported by
a sufficient factual basis.

Schwartz, 943 N.W.2d at 416-17 (emphasis added). “[T]his court is prohibited from adding
words to a statute and cannot supply what the legislature either purposely omitted or

1 We note that unless and until Schwartz is reversed, it states the applicable law. See
Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 414 (Minn. 2007) (stating that the law
existing when review of a case is pending is generally the law that applies).

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inadvertently overlooked.” Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 140 (Minn. App.
1999) (quotation omitted), review denied (Minn. Apr. 20, 1999).
Neither appellant’s guilty plea to second -degree controlled s ubstance possession,
nor his guilty plea to fourth-degree DWI—any amount schedule I/II, was inaccurate.
Affirmed.