State v. Smith

899 N.W.2d 120, 2017 WL 3045517, 2017 Minn. LEXIS 422

• Court: Supreme Court of Minnesota
• Decided: July 19, 2017
• Docket: A15-0570
• Status: Published

Opinions

OPINION

STRAS, Justice.

The legal question presented in this case is whether appellant Ryan Leroy Smith’s 2005 gross-misdemeanor conviction of criminal vehicular operation is a “prior impaired driving conviction” under Minn. Stat. § 169A.03, subd. 20 (2008). The question is relevant here because Smith’s current offense, driving while impaired, was enhanced to a first-degree crime based on the existence of three prior impaired-driving convictions, including Smith’s 2005 criminal-vehicular-operation conviction. The court of appeals held that Smith’s current offense was properly charged and adjudicated as a first-degree crime because his 2005 conviction was a qualifying offense. State v. Smith, No. A15-0570, 2016 WL 1081154, at *1-2 (Minn.App. Mar. 21, 2016) (analyzing Minn. Stat. § 169A.03, subd. 20). We conclude that, because Smith’s 2005 conviction is not included in the list of qualifying offenses in Minn. Stat. § 169A.03, subd. 20, there was insufficient evidence to convict Smith of first-degree driving while impaired. Accordingly, we reverse.

FACTS

This case arises out of Smith’s lengthy history of impaired-driving offenses, having been convicted in 2001 of aggravated driving while impaired, see Minn. Stat. § 169.129 (1998), and separately of operating a motor vehicle with a blood-alcohol content of .10 or greater within 2 hours of driving, see Minn. Stat. § 169A.20, subd. 1(5) (2002); and in 2005 of criminal vehicular operation resulting in bodily harm, see Minn. Stat. § 609.21, subd. 2b(6) (2004). Under Minnesota law, certain prior impaired-driving convictions increase the severity of subsequent convictions by enhancing the degree of the crime, resulting in longer sentences and, in some cases, changing the classification of the crime from a misdemeanor to a gross misdemeanor or felony. See Minn. Stat. §§ 169A.20, 169A.24-27, 169A.275-76 (2016).

This case involves one of those enhancements. In 2010, police officers stopped Smith and arrested him for driving while impaired. The State charged Smith with two counts of first-degree driving while impaired, one for driving while under the influence of alcohol, Minn. Stat. § 169A.20, subd. 1(1), and the other for having a blood-alcohol content of .08 or more within 2 hours of driving, Minn. Stat. § 169A.20, subd. l(S).¹ To convict Smith of either count, the State had to prove that Smith committed the offense “within ten years of the first of three or more qualified prior impaired driving incidents.” Minn. Stat. § 169A.24, subd. 1(1).

The parties agree that Smith’s 2001 convictions of driving while impaired and having a blood-alcohol content of .10 or greater within 2 hours of operating a motor vehicle are “qualified prior impaired driving incidents.” But the parties disagree about whether the 2005 conviction of criminal vehicular operation resulting in bodily harm is a “qualified prior impaired driving incident[ ].” At trial, after preserving his objection to the use of the 2005 conviction to enhance his current driving-while-impaired offense, Smith stipulated that he had three qualified prior impaired-driving incidents. The jury found Smith guilty of both counts of first-degree driving while impaired. The district court sentenced Smith to 72 months in prison and 5 years of conditional release.

On appeal, Smith has continued to claim that the evidence was insufficient to convict him of first-degree driving while impaired because one of the three prior convictions used to enhance his offense to a first-degree crime—his 2005 conviction of criminal vehicular operation resulting in bodily harm—is omitted from the list of qualifying offenses in Minn. Stat. § 169A.03, subd. 20. The court of appeals agreed that the list of qualifying offenses does not include the version of the criminal-vehicular-operation statute under which Smith was convicted. State v. Smith, No. A15-0570, 2016 WL 1081154, at *2 (Minn.App. Mar. 21, 2016). Even so, the court concluded that the evidence was sufficient to convict Smith of first-degree driving while impaired because excluding Smith's 2005 conviction from the list of qualifying offenses would lead to an absurd result, regardless of the statute’s plain language. Id.

ANALYSIS

The question in this ease is whether Smith’s 2005 criminal-vehieular-operation conviction is a “qualified prior impaired driving incident[]” under Minn. Stat. § 169A.24, subd. 1(1). If it does, then Smith’s 2010 driving-while-impaired offense was properly charged and adjudicated as a first-degree offense, which requires—as relevant here—three or more prior impaired-driving incidents. See id. If it does not, then the evidence was insufficient to convict Smith of first-degree driving while impaired because he would have had only two prior impaired-driving incidents on his record rather than three. See id. Resolving this issue presents a question of statutory interpretation that we review de novo. Schwanke v. Minn. Dep’t of Admin., 851 N.W.2d 591, 593 (Minn. 2014).

Minnesota Statutes § 169A.24, subdivision 1(1), states that a person is guilty of first-degree driving while impaired if the person “commits the violation within ten years of the first of three or more qualified prior impaired driving incidents.” By statute, “qualified prior impaired driving inci-dentes]” include “prior impaired driving convictions,” Minn. Stat. § 169A.03, subd. 22 (2016), which consist of “prior conviction[s] under:”

(1) section 169A.20 (driving while impaired); 169A.31 (alcohol-related school bus or Head Start bus driving); or 360.0752 (impaired aircraft operation);

(2) section 609.21 (criminal vehicular homicide and injury, substance-related offenses), subdivision 1, clauses (2) to (6);

(3) Minnesota Statutes 1998, section 169.121 (driver under influence of alcohol or controlled substance); 169.1211 (alcohol-related driving by commercial vehicle drivers); or 169.129 (aggravated DWI-related violations; penalty);

(4) Minnesota Statutes 1996, section 84.91, subdivision 1, paragraph (a) (operating snowmobile or all-terrain vehicle while impaired); or 86B.331, subdivision 1, paragraph (a) (operating motorboat while impaired); or

(5) an ordinance from this state, or a statute or ordinance from another state, in conformity with any provision listed in clause (1), (2), (3), or (4).

A “prior impaired driving conviction” also includes a prior juvenile adjudication that would have been- a prior impaired driving conviction if committed by an adult.

Minn. Stat. § 169A.03, subd. 20 (2008). This key definitional provision provides a detailed and exhaustive list of offenses that qualify as “prior impaired driving conviction[s],” listed by statutory section and year.

It is undisputed that the statute under which Smith was convicted in 2005, Minn. Stat. § 609.21, subd. 2b(6), ,is not included in the list, even though the list specifically includes other offenses from section 609.21. See Minn. Stat. § 169A.03, subd. 20(2). Under the plain, literal.language of the statute, then, Smith’s 2005 criminal-vehicular-operation conviction is not a “prior impaired driving conviction.” The reason is simple: if a crime is not listed as a “prior impaired driving conviction,” it is not a “prior impaired driving conviction.”

The concurrence does not disagree with this line of reasoning, but nevertheless would conclude that the statute is ambiguous because the State’s interpretation—which is that Smith’s 2005 criminal-vehicular-operation conviction is a qualifying offense—is also reasonable. The State argues that, because a listed offense, Minn. Stat. § 609.21, subd. 1(6) (2008), includes the same conduct (and nearly identical language) as the statute under which Smith was convicted, Smith’s 2005 criminal-vehicular-operation conviction also qualifies as a prior ..impaired-driving conviction. The' State’s interpretation is, unreasonable, however, because section 609.21, subdivision 2b(6), whatever its similarity to other listed offenses, is not itself listed. We cannot unilaterally create criminal offenses that the Legislature has not. See State v. Soto, 378 N.W.2d. 625, 630 (Minn. 1985) (“The enactment of' criminal laws, the scope of those laws, and the sanctions for their violation, are solely within the legislative function and province.”); State v. Mims, 26 Minn. 191,2 N.W. 492, 492 (1879) (stating that we must carefully “guard against the creation by judicial construction of criminal offences not within' the contemplation of the [Legislature”).²

The State’s interpretation is also incompatible with the interpretive canon expressio unius est exclusio alterius, which “means that the expression of one thing is the exclusion of another." State v. Caldwell, 803 N.W.2d 373, 383 (Minn. 2011). This canon, which applies to associated groups and series, creates a presumption that an omission in a statute-is “by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co,, 537 U.S. 149, 168, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003); see Caldwell, 803 N.W.2d at 383 (“Expres-sio unius generally'reflects an inference that any omissions in a statute are intentional.”). Such a presumption is particularly strong when, as in this case, a statute is uncommonly detailed and specific. See, e.g., Christ v. Beneficial Corp., 547 F.3d 1292, 1298 (11th Cir. 2008); Nissan Motor Mfg. Corp., U.S.A. v. United States, 884 F.2d 1375, 1377 (Fed. Cir. 1989); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 108 (2012) (“The more specific the enumeration, the greater the force of the [expres-sio unius] canon....”). In short, under the expressio unius canon, the presence of a detailed and exhaustive list of “prior impaired driving conviction[s]” creates a presumption that the omission of any criminal statutes, such as the criminal-vehicular-operation statute under which Smith was convicted in 2005, was due to deliberate choice, not inadvertence.

Moreover, as Smith notes, had the Legislature wished to include the version of the criminal-vehicular-operation statute in effect in 2005 within the coverage of Minn. Stat. § 169A.03, subd. 20, it could have easily done so in a number of ways. First, it could have referred to all prior criminal-vehicular-operation statutes by section and year, as it already does for other crimes, and listed the specific statute under which Smith was convicted, Minn. Stat. § 609.21, subd. 2b(6), as a qualifying offense. Second, it could have catalogued the qualifying offenses based on the underlying criminal behavior, such as by saying, as applicable here, that “pri- or impaired driving conviction[s]” includes “any conviction of criminal vehicular operation resulting in bodily harm,” without specifying certain statutory provisions and years.

Finally, the Legislature could have added a broader residual clause to the statute, something it has done in a number of other statutes.³ See, e.g., Minn. Stat. § 617.247, subd. 9 (2016) (stating that a person convicted of possession of a pornographic work involving minors will be placed on conditional release for 10 years if that person “has previously been convicted of a violation of this section, [a list of other sections], or any similar statute of the United States, this state, or any state” (emphasis added)). Notably, Minn. Stat. § 169A.03, subd. 20, contains a residual clause, which provides that the list of qualifying offenses includes “an ordinance from this state, or a statute or ordinance from another state, in conformity with any provision listed in clause (1), (2), (3), or (4).” But the residual clause, which includes ordinances of “this state” and statutes and ordinances “from another state,” says nothing about similar statutes of this state that are “in conformity with” the listed offenses. This omission, as well as the fact that the statute lists offenses using the most piecemeal approach possible, further supports the presumption of the expressio unius canon that any unlisted offenses, including the version of the criminal-vehicular-operation statute in effect in 2005, are excluded.

The State argues in the alternative that, even if the plain language of the statute unambiguously excludes the statute under which Smith was convicted, we must ignore the statute’s plain language because it would lead to absurd results. The court of appeals adopted this argument to uphold Smith’s convictions. Smith, 2016 WL 1081154, at *2. At bottom, the State -asks that we substitute our own judgment for that of the Legislature and judicially amend the statute to list the version of the criminal-vehicular-operation statute in effect in 2005 even though the Legislature did not. We decline to do so.

Only once in our history have we permitted the absurdity canon to override the plain and unambiguous language of a statute. In that case, Wegener v. Commissioner of Revenue, we concluded that applying the plain meaning of a property-tax-refund statute would have led “to absurd results or unreasonable results” that “utterly depart[ed] from the purpose of the statute.” 505 N.W.2d 612, 617 (Minn. 1998). Even assuming that the rule from Wegener applies to unambiguous criminal statutes—a question we need not decide today—Weg-ener's holding is not nearly as broad as the State suggests.

Specifically, lurking behind the Wegener rule was a potential violation of the Uniformity Clause of the Minnesota Constitution by allowing the owners of the property in that case “to forever cast upon their neighbors the burden of taxation [that] is rightfully imposed on [their] property.” Id. at 614 (citing Minn. Const, art. X, § 1). We concluded, based on this observation, that “[w]ere we to adopt [the property owners’] position, we would render a large part of [the statute] inoperative and, incidentally, invalidate it by giving it an unconstitutional effect.” Id. at 616. Although the State is correct that the absurdity canon is described broadly in Wegener, a closer examination reveals that there were two other factors at work: first, giving the statute its plain and unambiguous meaning would have led to the statute being declared unconstitutional, which is a variation on the constitutional-avoidance canon; and second, the plain-meaning interpretation would have violated the whole-statute canon. See id. Neither of those considerations is present here.

Although it is odd, perhaps even anomalous, for the Legislature to have included less-serious crimes as prior impaired-driving convictions, but not Smith’s 2005 offense, anomalous results, even if they are the product of inadvertence, do not allow us to ignore the plain language of the statute. See Int’l Bhd. of Elec. Workers, Local No. 292 v. City of St. Cloud, 765 N.W.2d 64, 68 (Minn. 2009) (“Although the result here ... seems anomalous, that is how the [Legislature wrote the statute. It is the duty of this court to apply the law as written by the [Legislature.”). Importantly, the State does not argue in this case that the omission of the criminal-vehicular-operation statute from the list of qualifying offenses would create a potential constitutional violation requiring the application of the constitutional-avoidance canon. Nor does the State claim that some other provision of the driving-while-impaired statutes would be undermined or rendered inoperative by the plain-meaning interpretation we adopt today. Indeed, other than claiming that our reading of the statute would produce what is, in its view, an unreasonable result in this case,.the State cannot identify anything that approaches absurdity, at least of the kind present in Wegener. In short, even assuming the absurdity canon is available in criminal cases, this is not the “exceedingly rare case” in which to apply it. Schatz v. Interfaith Care Ctr., 811 N.W.2d 648, 651 (Minn. 2012).

The plain language of Minn. Stat. § 169A.03, subd. 20, definitively answers the legal question presented in this case. Smith’s 2005 criminalrvehicular-operation conviction, whatever its similarity to other listed offenses, does not qualify' as a prior impaired-driving conviction and therefore the evidence was insufficient to ■ convict Smith of first-degree driving while impaired.

CONCLUSION

For the foregoing reasons; we reverse the decision of the court of appeals.

Reversed.

Concurring, Gildea, C.J. Dissenting, McKeig, Lillehaug, Chutich, JJ.

1 . The State also charged Smith with driving over the speed limit, Minn. Stat. § 169,14, subd. 2(a) (2016), and driving after the revocation of his driving privileges, Minn. Stat. § 171.24, subd. 2 (2016). Smith pleaded guilty to these counts, neither of which is at issue here.

2 . The dissent, for its part, would cast aside the structure and plain language of Minn. Stat. § 169A.03, subd. 20, to reject our reading, which it says "deifies] the clear intent of the Legislature.” The Legislature has countless ways in which it can draft a criminal statute within broad constitutional parameters, however, and nothing prevents it from enumerating a lengthy and exhaustive list of predicate crimes, as it has done here. Peeking behind the veil to determine what the Legislature may have intended, as the dissent does here, is nothing more than judicial legislation, something we have long rejected. See State v. Willrich, 72 Minn. 165, 75 N.W. 123, 124 (1898) ("We must accept the law as we find it, and not attempt any judicial legislation to supply supposed omissions.”). The statutory scheme that the Legislature enacted in this case may not have been the one that either we or the dissent would have preferred, but it is what the Legislature passed, and we cannot look past the statute’s language to construct what we may consider to be a more sensible statute. See Mims, 2 N.W. at 492.

3 . The State and the dissent also urge us to unilaterally adopt the functional equivalent of a residual clause for past versions of the statute by relying on the repeal-and-reenactment statute, Minn. Stat. § 645.37 (2016). Under the repeal-and-reenactment statute, when a law is repealed and its provisions are simultaneously reenacted "in the same or substantially the same terms” by the repealing law, "the earlier law shall be construed as continued in active operation.” Id. The statute permits "all rights and liabilities incurred” under the earlier law to be "preserved” and "enforced.” Id. The problem with this argument is clear: an essential component of repeal and reenactment, as the name of the statute suggests, is a repeal of the earlier law. In the case of Minn. Stat. § 169A.03, subd. 20, the statute at issue here, there was no repeal. Rather, the Legislature amended section 169A.03, subdivision 20, in 2007. Act of May 7, 2007, ch. 54, art. 3, § 14, 2007 Minn. Laws 206, 251. Accordingly, section 645.37, by its plain terms, does not apply.