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This opinion is nonprecedential except as provided by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
A22-0215

State of Minnesota,
Respondent,

vs.

Albert Lomami Okitokoko,
Appellant.

Filed October 17, 2022
Affirmed in part, reversed in part, and remanded
Wheelock, Judge

Ramsey County District Court
File No. 62SU-CR-19-4501

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

Katrina E. Joseph, Mounds View City Prosecutor, Gregory P. Holly, Assistant City
Prosecutor, H|J Law, Blaine, Minnesota (for respondent)

Joseph G. Vaccaro, The Law Office of Joseph G. Vaccaro, PLLC, St. Paul, Minnesota (for
appellant)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Appellant challenges his convictions, following a bench trial, for two counts of
driving while impaired, arguing that a forklift does not fall within the definition of “motor
vehicle” for purposes of the driving-while-impaired statute. The district court did not err
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in finding appellant guilty, but because the sentencing order and warrant of commitment
included convictions for two offenses under different sections of the same criminal statute
for acts committed during a single behavioral incident, we affirm in part, reverse in part,
and remand with instructions for the district court to vacate one of the convictions.
FACTS
Appellant Albert Lomami Okitokoko appeals his convictions for driving while
impaired (DWI), arguing that a forklift is not a motor vehicle as contemplated by the
applicable statut e. The following facts are taken from the evidence presented at
Okitokoko’s bench trial.
In November 2019, law-enforcement officers responded to a commercial property
following the report of a medical concern, where they found Okitokoko recovering from a
gash on his forehead. Okitokoko told the officers that he had driven a forklift through a
door and off a loading dock, causing his head injury. Okitokoko’s coworker told officers
that he had noticed that Okitokoko was unsteady on his feet and suspected that Okitokoko
was drunk, and an officer observed that Okitokoko smelled of alcohol.
Okitokoko refused a preliminary breath test, so officers obtained a warrant for a
blood or urine test, and Okitokoko submitted to the test. After providing the sample,
Okitokoko admitted to drinking several glasses of wine before about 10:00 in the morning
before his evening shift began at 5:30 p.m. The test ultimately revealed that Okitokoko’s
alcohol concentration was over the legal limit to drive or operate a motor vehicle.
Respondent State of Minnesota charged appellant with second-degree DWI.
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Okitokoko moved the district court to dismiss the state’s case against him, arguing
that the forklift he had been driving was not a “motor vehicle” that could violate Minn.
Stat. § 169A.20, subd. 1 (2018) (DWI statute), because the forklift was not being driven on
a roadway, and it was not legally allowed on a roadway. The district court held that the
statutory definition of “vehicle” does not restrict “motor vehicles” to devices legally
permitted to be driven, or devices actually driven, on public roadways.
In an amended complaint, the state charged Okitokoko with second-degree driving
while under the influence of alcohol under Minn. Stat. § 169A.20, subd. 1(1), and
second-degree operation of a motor vehicle with an alcohol concentration of 0.08 or more
within two hours under Minn. Stat. § 169A.20, subd. 1(5) . Okitokoko agreed to a bench
trial based on stipulated evidence and facts. The district court issued a finding of guilty on
both counts. The district court’s warrant of commitment indicates that Okitokoko was
convicted of both counts, although he only received a sentence for the first count,
second-degree operation of a motor vehicle with an alcohol concentration of 0.08 or more
within two hours.
Okitokoko appeals.
DECISION
I. The district court did not err by determining that the forklift was a motor
vehicle for purposes of the DWI statute.
Okitokoko argues that the district court erred by determining that driving a forklift
while impaired is a crime under Minn. Stat. § 169A.20, subd. 1, because a forklift is not a
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motor vehicle as contemplated by Minn. Stat. § 169A.03, subd. 15 (2018). 1 We review
questions of statutory interpretation de novo. State v. Defatte, 928 N.W.2d 338, 340 (Minn.
2019).
We interpret statutes with the objective to “ascertain and effectuate the intention of
the legislature.” Minn. Stat. § 645.16 (2020). We must construe every law “to give effect
to all its provisions.” Id. “When the words of a law in their application to an existing
situation are clear and free from all ambiguity, the letter of the law shall not be disregarded
under the pretext of pursuing the spirit.” Id. When a statute is subject to two or more
reasonable interpretations, it is ambiguous. State v. Miller, 977 N.W.2d 592, 597 (Minn.
2022). “If the statute is ambiguous, . . . we apply canons of construction to resolve the
ambiguity.” Id.
It is a crime in Minnesota “for any person to drive, operate, or be in physical control
of any motor vehicle, as defined in section 169A.03, subdivision 15, ” when “the person is
under the influence of alcohol,” or when “the person’s alcohol concentration . . . is 0.08 or
more.” Minn. Stat. § 169A.20, subd. 1(1), (5). A “motor vehicle” is defined as “every
vehicle that is self-propelled and every vehicle that is propelled by electric power obtained
from overhead trolley wires.” Minn. Stat. § 169A.03, subd. 15. Section 169A.03 defines
“vehicle” as having the “meaning given in section 169.011, subdivision 92.” Id., subd. 25
(2018). Section 169.011, subdivision 92, states that a vehicle is “every device in, upon, or
by which any person or property is or may be transported or drawn upon a highway,

1 Okitokoko does not dispute the facts underlying his conviction.
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excepting devices used exclusively upon stationary rails or tracks.” Minn. Stat. § 169.011,
subd. 92 (2018) (emphasis added). Section 169.011 also clarifies that the definition of a
“motor vehicle” does not include “an electric personal assistive mobility device, or a
vehicle moved solely by human power.” Id., subd. 42 (2018); see also Minn. Stat.
§ 169A.03, subd. 15 (“The term [motor vehicle] . . . does not include a vehicle moved
solely by human power.”).
Okitokoko argues that the language “is or may be transported or drawn upon a
highway” in the statutory definition of “vehicle” is ambiguous. Minn. Stat. § 169.011,
subd. 92. He argues that “may” can mean either a device that “possesses the ability to
physically be used to transport persons . . . on a highway” or “is legally permitted, to
transport persons or property on a highway.” Okitokoko argues that the word “may”
creates an ambiguity in the definition of the word “vehicle” such that we must apply canons
of construction and conclude that “may” means “legally permitted.” The state argues that
“may” unambiguously means the device is one that “can” be driven on a highway or, in
Okitokoko’s words, one that “possesses the ability” to drive on a highway.
We considered the definition of “vehicle” as used in the implied-consent statute in
Ruzic v. Commissioner of Public Safety, 455 N.W.2d 89 (Minn. App. 1990) (interpreting
Minn. Stat. § 169.123, subd. 2(a) (1988)), rev. denied (Minn. June 26, 1990). In Ruzic, we
affirmed the revocation of Ruzic’s driver’s license after he was found intoxicated while
operating a bulldozer in a private, vacant lot. 455 N.W.2d at 90. Ruzic argued that
operating a bulldozer on private property w as excluded from the implied-consent law
because the bulldozer could not be driven legally on the highway, runs on tracks, and was
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being operated on private property. Id. at 91. We concluded that “the implied consent law
does not restrict its definition of vehicles to those that can only be legally driven upon a
highway. Further, bulldozers may be legally driven upon a highway with special permits.”
Id. (emphasis added). Although Okitokoko argues that this court in Ruzic relied on
statutory authority for the operation of bulldozers on public highways found in Minn. Stat.
§ 169.72, subd. 1 (1988), the court’s mention of this provision does not undercut its initial
conclusion that the definition of “vehicle” is not limited to “those that can only be legally
driven upon a highway.” Id.
Okitokoko also argues that our prior decisions in Boschee v. Duevel , 530 N.W.2d
834 (Minn. App. 1995), rev. denied (Minn. June 14, 1995), and State v. Sherbrooke,
633 N.W.2d 856 (Minn. App. 2001), support his argument that devices not permitted on a
roadway are vehicles only if they are in fact being driven on a roadway. In Boschee, we
concluded that for purposes of the Minnesota traffic laws, “[i] n-line skates fall within the
definition of ‘vehicle,’” reasoning that “as Boschee’s actions show, a person using in-line
skates is capable of being transported on a highway via the skates, and does so solely by
human power.”2 530 N.W.2d at 839 (emphasis added). Boschee therefore supports the
interpretation of “is or may be” in the statutory definition of “vehicle” in Minn. Stat.
§ 169.011, subd. 92, to mean whether a device is driven or is capable of being driven on a
highway.

2 In Boschee, we clarified that although in- line skates were a “vehicle,” they were not a
“motor vehicle” because they are moved solely by human power. 530 N.W.2d at 839.
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Sherbrooke relied on Boschee and stated that the legislature intended to regulate any
mode of transportation on state highways, and therefore, “[w]e have consistently
interpreted the term ‘vehicle’ in the broadest sense possible with the understanding that if
the legislature intended a narrower definition, it would adopt one.” Sherbrooke ,
633 N.W.2d at 860. We therefore determined in Sherbrooke that when a state trooper saw
an aircraft parked off a road after Sherbrooke had landed it on the road, the aircraft was
included in the definition of a vehicle. Id. at 859-60. Even though an aircraft does not
normally travel on state highways, regulating the use of aircraft on roadways promoted
traffic safety. Id. at 860.
Ruzic, Boschee, and Sherbrooke properly interpreted the plain language of the
definition of “vehicle,” and the district court did not err in its application of Ruzic to this
case. The plain meaning of “is or may be transported” reflects the legislature’s intent to
make it a crime to be impaired when operating or in physical control of a vehicle that either
is driven on a highway or has the ability to drive on a highway. Our caselaw recognizes
that this plain meaning reflects the legislature’s intent to criminalize operating or being in
physical control of a vehicle that could go on a highway and endanger the driver and others
when the driver is impaired. We note that common sense dictates that an impaired forklift
driver has a greater potential to be dangerous than an in-line skater.
Furthermore, “[t]his court has repeatedly recognized that laws prohibiting a person
from driving a motor vehicle while intoxicated are remedial statutes. Consequently, such
laws are liberally interpreted in favor of the public interest and against the private interests
of the drivers involved.” State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319
8
(Minn. 1981). Here, the language “is or may be transported” does not restrict the definition
of “vehicle” to only vehicles that are being driven on the highway during the offense or
that are legally allowed to be driven on the highway. Had the legislature intended the
language to mean that the vehicle must be legally allowed to be driven on the highway, it
could have defined “vehicle” as a device “permitted by law” or “legally allowed” on
roadways. The legislature had excepted “an electric personal assistive mobility device”
from its definition of “motor vehicle” at the time of Okitokoko’s offense. Minn. Stat.
§ 169.011, subd. 42 (2018). 3 Statutory exceptions are construed to exclude all others.
Minn. Stat. § 645.19 (2020). It is not the role of this court to carve out exceptions that are
within the meaning of a statute’s plain language. Ruzic, 455 N.W.2d at 91.
When read in the context of the statute, the classification of a vehicle is not one that
changes depending on where the device is driven; it is dependent on where the device is
able to be driven. We concluded in Boschee that in-line skates qualified as a vehicle
because they could be used on a roadway, and that capability was demonstrated by their
actual use on a roadway. Although Okitokoko did not demonstrate the actual use of a
forklift on a roadway in this case, he does not dispute that it would be possible to drive a
forklift on a roadway. A forklift therefore falls within the definition of “vehicle” in Minn.
Stat. § 169.011, subd. 92. And because it is undisputed that the forklift was motorized and
self-propelled, it qualifies as a “motor vehicle” under Minn. Stat. § 169A.03, subd. 15, and
the DWI statute.

3 Since Okitokoko’s offense, the legislature has further amended the statutory definition of
“motor vehicle” to also except “an electric-assisted bicycle.” Id., subd. 42(b) (Supp. 2021).
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Based on the language of section 169.011, subdivision 92, and our prior
interpretation of the statute in Ruzic, we conclude that the statute is unambiguous, and
“may” means that a vehicle “has the ability to” drive on the highway. The district court
did not err by determining that the forklift was a motor vehicle for purposes of the DWI
statute.
II. The district court erred by entering two DWI convictions for offenses under
different sections of a criminal statute for acts committed during a single
behavioral incident.
Finally, this court notes that the district court pronounced a judgment of conviction
on both counts for DWI. Although neither party discussed this issue, appellate courts have
a responsibility “to decide cases in accordance with law, and that responsibility is not to be
diluted by counsel’s . . . failure to specify issues.” State v. Hannuksela, 452 N.W.2d 668,
673 n.7 (Minn. 1990) (quotation omitted). Whether a defendant can be lawfully convicted
of a crime is a legal question that appellate courts review de novo. State v. Cox,
820 N.W.2d 540, 552 (Minn. 2012).
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2018). The
supreme court has held that “section 609.04 bars multiple convictions under different
sections of a criminal statute for acts committed during a single behavioral incident.” State
v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985).
Where, as here, an appellant does not raise a section 609.04 issue under Jackson,
this court applies a two-part test to determine whether any of the multiple convictions
should be vacated. State v. Bonkowske, 957 N.W.2d 437, 443-44 (Minn. App. 2021). First,
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the convictions at issue must be for offenses that arise under different sections of the same
criminal statute. Jackson, 363 N.W.2d at 760. Second, the offenses must have been for
acts committed during a single behavioral incident. Id.
Okitokoko’s convictions for count 1 and count 2 were for offenses arising under
different subsections of the same criminal statute—Minn. Stat. § 169A.20, subd. 1 —and
they are for the act of driving while impaired . Thus, we conclude that the district court
erred by entering two convictions on the warrant of commitment.
The supreme court has established the “proper procedure to be followed by the trial
court” and the rationale for doing so:
[W]hen the defendant is convicted on more than one charge for
the same act [the district court is] to adjudicate formally and
impose sentence on one count only. The remaining
conviction(s) should not be formally adjudicated at this time.
If the adjudicated conviction is later vacated for a reason not
relevant to the remaining unadjudicated conviction(s), one of
the remaining unadjudicated convictions can then be formally
adjudicated and sentence imposed, with credit, of course, given
for time already served on the vacated sentence.
State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). Because Okitokoko was
convicted on counts 1 and 2 for offenses arising out of the same behavioral incident, “one
of the two formal adjudications of conviction . . . must be vacated.” Jackson, 363 N.W.2d
at 760. Even so, “a finding of guilt with respect to those lesser included offenses remains
intact.” State v. Pflepsen, 590 N.W.2d 759, 766 (Minn. 1999).
Thus, the district court did not err in finding appellant guilty, but because the
sentencing order and warrant of commitment included convictions for two offenses under
different sections of the same criminal statute for acts committed during a single behavioral
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incident, we affirm in part, reverse in part, and remand with instructions for the district
court to vacate one of the convictions.
Affirmed in part, reversed in part, and remanded.