This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A15-1853

State of Minnesota,

Respondent,

vs.

Jose Amador Molina,

Appellant.

Filed December 5, 2016

Affirmed in part, reversed in part, and remanded

Kirk, Judge

Clay County District Court

File No. 14-CR-14-3813

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

Brian J. Melton, Clay County Attorney, Pamela Harris, Assistant County Attorney, 

Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant 

County Attorney, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and 

Bjorkman, Judge. 

U N P U B L I S H E D O P I N I O N

KIRK, Judge

After a hit-and-run accident, appellant was charged with driving after cancellation, 

felony driving while impaired (DWI), and multiple counts of criminal vehicular operation 
2

(CVO). Appellant challenges: (1) the district court’s denial of his pretrial motion to 

suppress blood-alcohol evidence; (2) the jury’s determination that he was driving the 

vehicle at the time of the accident; and (3) the district court’s decision to sentence him on 

the DWI charge after also entering a conviction for an alcohol-related CVO offense. We 

affirm in part, reverse in part, and remand.

FACTS

After a hit-and-run accident, appellant Jose Amador Molina was charged with: 

(1) criminal vehicular operation (CVO) causing great bodily harm–gross negligence; 

(2) CVO causing great bodily harm–under the influence of alcohol; (3) CVO causing 

great bodily harm–driver who causes collision leaves scene; (4) CVO causing substantial 

bodily harm–gross negligence; (5) CVO causing substantial bodily harm–under the 

influence of alcohol; (6) CVO causing substantial bodily harm–driver who causes 

collision leaves scene; (7) driving after cancellation (DAC) as inimical to public safety; 

and (8) felony driving while impaired (DWI).

Appellant moved to suppress his blood-alcohol concentration (BAC) results that 

were obtained after a warrantless blood draw, arguing that he was coerced into giving a 

blood sample and that no established exception to the warrant requirement applied. 

Following a contested omnibus hearing, the district court denied appellant’s motion to 

suppress.

A three-day jury trial was held on June 23-25, 2015. The following evidence was 

presented to the jury at trial:
3

B.O. testified that he was a guest at the Grand Inn hotel in Moorhead on 

November 10, 2014. B.O. was sitting at the open window of his second-floor hotel room 

when he witnessed a vehicle rear-end a truck on the street in front of the hotel with 

enough force to cause the rear-ends of both vehicles to go airborne. B.O. observed a 

male exit the driver-side door, run around the vehicle, and try to open the front 

passenger-side door. B.O. described the male as approximately 5’5’’, with short, black 

hair, and a dark complexion. The male was unable to open the front or back passengerside doors. The male then got back in the driver’s side of the vehicle and began rocking 

the vehicle back and forth to free it from the truck. Once the vehicle was free, the male

drove away. B.O. testified that, “I’m almost certain there was a female in the passenger 

side [of the vehicle], but she looked like she was unresponsive. She didn’t move once.”

C.C., who lives on the 3500 block of Village Green Drive, testified that he saw a 

severely damaged vehicle outside his apartment building on November 10, 2014. C.C. 

saw a male running around the vehicle from the passenger side over to the driver’s side 

and back with both of the vehicle’s front doors open. The male then ran southeast on foot 

as though he was abandoning the vehicle. C.C. did not see anyone else at the scene. 

P.C., C.C.’s wife, testified that she called the police to report the severely damaged 

vehicle. C.C. testified that the male returned to the scene after law enforcement arrived.

Officer Raul Lopez of the Moorhead Police Department (MPD) testified that he

was the first officer to respond to the Grand Inn and that he spoke to B.O. Officer Lopez 

was also the first to respond to C.C. and P.C.’s apartment complex. When Officer Lopez 
4

initially approached the damaged vehicle, all of the doors were closed, and he did not see 

anyone inside. He checked the vehicle a second time and still did not notice an occupant.

A male, later identified as appellant, then came sprinting toward the vehicle. 

Officer Lopez asked appellant where the girl was, and he replied that she was in the 

vehicle. Officer Lopez rechecked the vehicle and “saw a female that was crumbled . . . 

into the driver’s seat, covered . . . in blood.” He noted that, “[i]t wasn’t like she was 

reclining in the seat or sitting in any normal position. . . . [H]er body was so flaccid that 

she was just almost like a puddle, just melted down into the driver’s seat.” Officer Lopez

ordered appellant to the ground and tried to open the vehicle door. He was unable to 

wake the female, later identified as D.M.

Officer Lopez testified that D.M. and appellant were transported to the hospital by 

ambulance. Appellant had dried blood on his face, but he did not have any major facial 

or head injuries. While appellant was at the hospital, Officer Lopez read him the 

Minnesota Motor Vehicle Implied Consent Advisory, and appellant agreed to submit to a 

blood draw. A nurse collected a sample of appellant’s blood. Appellant was released 

from the hospital that night. Donna Zittel, a forensic scientist in the toxicology lab 

section of the Minnesota Bureau of Criminal Apprehension (BCA), testified that she 

tested appellant’s blood sample and it revealed a BAC of 0.114.

Officer Lopez also testified that at the hospital, appellant told him that D.M. was 

driving and suddenly there was a “big crash.” When they were stopped because of the 

crash, D.M. told him that they had to get out of there and she drove away. Appellant 

explained that D.M. said she had to go to sleep, and appellant left the scene to charge 
5

D.M.’s cell phone, which was inoperable, so he could call the police. Appellant did not 

claim that there was anyone else in the vehicle. Appellant called 911 shortly before 

Officer Lopez arrived at the vehicle. When he spoke to dispatch, appellant reported that 

there was a girl knocked out or asleep in a vehicle that was “crashed up,” and that the girl 

had crashed her white vehicle.

Sergeant Steven Larsen of the MPD testified that he was the second officer to 

arrive at the apartment complex. When Sergeant Larsen arrived, Officer Lopez was 

attending to a female with a traumatic head injury in the driver’s seat of the vehicle. The 

front passenger corner of the vehicle was significantly damaged and the front driver-side 

corner of the vehicle had much less damage. Although the entire windshield was 

cracked, only the passenger side was broken. There was blood on the glass of the broken 

passenger-side windshield and on the passenger-side visor. Both the driver-side and front

passenger-side airbags deployed during the accident.

Detective Ryan Nelson of the MPD testified that he collected blood evidence and 

hair from the vehicle. He also collected both airbags, as well as a piece of glass from the 

passenger-side windshield, and he obtained DNA samples from D.M. and appellant for 

comparison. Detective Nelson also met with D.M. who was conversational, but was 

having memory problems. He testified that while speaking with D.M., she said she took 

turns driving with appellant that night, but that she did not know who was driving at the 

time of the accident.

D.M. testified that appellant picked her up in his white vehicle on the night of the 

accident, that she never drove appellant’s vehicle, and that she did not have a driver’s 
6

license. D.M. testified that only she and appellant were in the vehicle that night and that 

she rode in the front passenger seat of his vehicle. D.M. suffered severe head trauma 

from the accident and does not remember the accident.

D.M. also testified that after her hospital stay, Officer Lopez visited her at her 

home, and she verified that appellant was driving on the night of the accident. Detective 

Nelson also spoke to D.M. a few days after Officer Lopez. At trial, D.M. acknowledged 

a transcript of her conversation with Detective Nelson, during which she told him that she 

was frustrated because she could not remember the accident, and that she drove 

appellant’s vehicle multiple times that night. D.M. testified that she did not remember 

telling Detective Nelson that she drove appellant’s vehicle and did not remember driving 

appellant’s vehicle on the night of the accident.

Kathryn Roche, a forensic scientist in the biology section of the BCA, testified 

that she tested the driver- and passenger-side airbags as well as the glass from the 

windshield and determined that D.M.’s DNA was present on the passenger-side airbag 

and the glass. Roche did not find DNA on the driver-side airbag. Appellant’s DNA was 

not found on any of these items.

The jury convicted appellant on all eight counts. The district court entered 

convictions on all eight counts and sentenced appellant to 79 months in prison on the 

felony-DWI conviction. This appeal follows.
7

D E C I S I O N

I. Additional findings are necessary on whether appellant freely and voluntarily 

consented to the warrantless blood test and on whether exigent circumstances 

justified the warrantless blood test.

A. Appellant forfeited his due-process claim by failing to raise it to the 

district court; appellant’s Fourth Amendment claims require further 

review by the district court.

“When reviewing a pretrial order on a motion to suppress, we review the district 

court’s factual findings under our clearly erroneous standard. We review the district 

court’s legal determinations, including a determination of probable cause, de novo.” 

State v. Milton, 821 N.W.2d 789, 798 (Minn. 2012) (citations omitted). Here, the parties 

do not challenge the district court’s factual findings. Where the facts are undisputed, 

“our review is entirely de novo.” State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).

The United States and Minnesota Constitutions protect individuals from 

unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A 

compelled blood draw for blood-alcohol content constitutes a search under the Fourth 

Amendment. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 

1412-13 (1989). “A search conducted without a warrant is per se unreasonable unless an 

exception applies.” Ellingson v. Comm’r of Pub. Safety, 800 N.W.2d 805, 807 (Minn. 

App. 2011), review denied (Minn. Aug. 24, 2011).

In addition to the Fourth Amendment arguments that were litigated before the 

district court and are addressed herein, appellant raises, for the first time on appeal, a dueprocess challenge to the warrantless draw of his blood. Because appellant failed to raise 

his due-process challenge before the district court, this court will not address it here. 
8

Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding that appellate courts 

“generally will not decide issues which were not raised before the district court, including 

constitutional questions of criminal procedure”).

B. The district court must conduct a totality-of-the-circumstances analysis 

to determine whether appellant consented to testing.

Consent is an exception to the warrant requirement. State v. Brooks, 838 N.W.2d 

563, 568 (Minn. 2013). For this exception to apply, the state must show by a 

preponderance of the evidence that consent was given freely and voluntarily. Id. The 

question of whether consent to search was voluntary and not the product of duress or 

coercion is a question of fact, which we review under the clearly erroneous standard. 

State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). “Findings of fact are clearly 

erroneous if, on the entire evidence, we are left with the definite and firm conviction that 

a mistake occurred.” Id. at 846-47. “Voluntariness” is a question of fact that depends on 

the totality of the circumstances, “including the nature of the encounter, the kind of 

person the defendant is, and what was said and how it was said.” State v. Dezso, 512 

N.W.2d 877, 880 (Minn. 1994).

Appellant argues that the district court erred when it concluded that he freely and 

voluntarily consented to have his blood drawn. He asserts that his consent was not 

voluntary and that a warrant was required because, as part of the Minnesota Motor 

Vehicle Implied Consent Advisory, he was given the false warning that refusing to 

submit to a test is a crime. Appellant argues that the warning was untrue because a 

person cannot be charged with a crime for refusing a blood test unless he or she is first 
9

given the option of submitting to an alternative test under Minn. Stat. § 169A.51, subd. 3 

(2014),1and because it is unconstitutional to criminalize refusal to submit to a 

warrantless blood draw under State v. Trahan, ___ N.W.2d ___, 2016 WL 5930153 

(Minn. 2016).

Appellant asks this court to suppress his BAC result and to reverse his convictions 

on the alcohol-related CVO convictions, the gross-negligence-related CVO convictions, 

and the felony DWI conviction.2 Appellant asserts that without the admission of his 

BAC results, the convictions where BAC is an element of the crime as well as the 

negligence convictions must be reversed because, aside from his BAC, there was 

insufficient evidence to support a finding of grossly negligent driving.

The state argues that appellant consented to the blood draw, so there was no need 

for law enforcement to obtain a search warrant. Although the state’s brief was not 

submitted until after the United States Supreme Court released the Birchfield v. North 

Dakota, 136 S. Ct. 2160 (2016) decision, the state did not address Birchfield in its brief. 

Appellant filed a reply brief partially addressing the Birchfield decision, arguing that it 

requires this court to conclude that his consent was not valid.

The district court did not conduct an analysis of the totality of the circumstances 

when it determined that appellant’s consent to testing was valid. Instead, it concluded 

that nonconsensual blood testing in CVO cases is always permissible under Minn. Stat. 

§ 169A.51, subd. 2 (2014), and that independent of that statute, appellant’s consent to 

 

1 Appellant did not raise this issue before the district court, and this court will not address 

it for the first time on appeal. Roby, 547 N.W.2d at 357.

2 Counts 1, 2, 4, 5, and 8 of the complaint.
10

testing was valid. The district court also found that Minn. Stat. § 169A.51, subd. 2(b),

does not require law enforcement to read appellant the advisory, but that his consent to 

blood-alcohol testing was valid after he was read the advisory. The district court did not 

conduct further analysis of the issue.

The Birchfield court held that “motorists cannot be deemed to have consented to 

submit to a blood test on pain of committing a criminal offense.” Birchfield, 136 S. Ct. at 

2186. Because of this, appellant’s consent to testing cannot be declared valid based 

solely on the fact that he was read an advisory that included an unconstitutional threat of 

criminal prosecution. Id. In light of Birchfield, the district court must analyze the totality 

of the circumstances, including the partial invalidity of the advisory, prior to concluding 

that appellant consented to testing. Id. (“Because voluntariness of consent to a search 

must be determined from the totality of all of the circumstances, we leave it to the 

[district] court on remand to reevaluate [appellant’s] consent given the partial inaccuracy 

of the officer’s advisory.” (quotation omitted)). If the district court determines that 

appellant’s consent was not valid on remand, and that another exception to the warrant 

requirement does not apply, appellant’s BAC result must be suppressed.

C. The district court must conduct an analysis of exigency before relying 

on Minn. Stat. § 169A.51, subd. 2, to excuse the warrant requirement.

The district court relied on Minn. Stat. § 169A.51, subd. 2(a)(3), to justify the 

warrantless blood draw in this case. Minn. Stat. § 169A.51, subd. 2(a)(3), requires an 

officer who has probable cause to believe someone has committed CVO to inform the

suspect that a test will be taken with or without his consent. Minn. Stat. § 169A.51, subd. 
11

2(b), also provides that, if an officer has probable cause to believe the suspect has 

violated the CVO laws, and “is not pursuing an implied consent revocation,” the officer 

“is not required to give the advisory.” In other words, when dealing with a CVO suspect, 

an officer is not required to warn him that a blood sample may be taken without his 

consent. But under Minnesota law, a nonconsensual warrantless blood draw is not 

permissible under Minn. Stat. § 169A.51, subd. 2, absent exigent circumstances to excuse 

the warrant requirement. State v. Stavish, 868 N.W.2d 670, 673 (Minn. 2015) (noting in 

a CVO case that prior to Missouri v. McNeely, 133 S. Ct. 1552 (2013), Minnesota law 

permitted law enforcement to rely on Minn. Stat. § 169A.51, subd. 2, to obtain

warrantless, nonconsensual blood draws from CVO suspects).

The existence of exigent circumstances may excuse the warrant requirement 

“when the exigencies of the situation make the needs of law enforcement so compelling 

that the warrantless search is objectively reasonable under the Fourth Amendment.” Id.

at 675 (quotation omitted). “Exigent circumstances . . . may exist when there is 

compelling need for official action and no time to secure a warrant.” Id. (quotation 

omitted). The evaluating court must conduct “an objective evaluation of the facts 

reasonably available to the officer at the time of the search.” Id. “[I]f under the totality 

of the circumstances, law enforcement ‘can reasonably obtain a warrant before a blood 

sample can be drawn without significantly undermining the efficacy of the search, the 

Fourth Amendment mandates that they do so.’” Id. at 676 (citing McNeely, 133 S. Ct. at 

1561). “Nothing prevents the police from seeking a warrant for a blood test when there is 
12

sufficient time to do so[,] . . . or from relying on the exigent circumstances exception to 

the warrant requirement when there is not.” Birchfield, 136 S. Ct. at 2184.

Appellant asserts that there is no “bright line rule” allowing nonconsensual blood 

testing in cases of suspected CVO, which is an accurate reflection of Minnesota law. The 

district court did not conduct the required analysis of whether exigent circumstances 

existed in this case, despite appellant raising the issue of exigency at the omnibus 

hearing, and despite there being some record on the point.3 Instead, the district court 

relied only on Minn. Stat. § 169A.51, subd. 2(a)(3), and appellant’s consent, to conclude 

that the blood draw in this case was lawful. The state did not address Minn. Stat. 

§ 169A.51, subd. 2, or exigency in its brief.

The district court improperly relied on Minn. Stat. § 169A.51, subd. 2, without 

also determining that exigent circumstances existed to justify the warrantless search. On 

remand, the district court must conduct an analysis of whether exigent circumstances

existed under the totality of the circumstances to justify the warrantless blood draw. If 

the district court determines that exigency did not exist, and that another exception to the 

warrant requirement does not apply, appellant’s BAC result must be suppressed.

II. There was sufficient evidence for the jury to reasonably conclude that 

appellant was driving at the time of the accident.

In considering a claim of insufficient evidence, this court’s review is limited to a 

painstaking analysis of the record to determine whether the evidence, when viewed in the 

light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict 

 

3 Appellant misrepresents the record on appeal by claiming that Officer Lopez testified at 

the omnibus hearing that no exigency existed at the time appellant’s blood was drawn.
13

that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court 

must assume “the jury believed the state’s witnesses and disbelieved any evidence to the 

contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court 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 doubt, could reasonably conclude that 

defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-

77 (Minn. 2004).

“Direct evidence is evidence that is based on personal knowledge or observation 

and that, if true, proves a fact without inference or presumption.” Id. at 477 n.11 

(quotation omitted). “Circumstantial evidence is defined as evidence based on inference 

and not on personal knowledge or observation and all evidence that is not given by 

eyewitness testimony.” Id. (quotation omitted). “[A] conviction based entirely on 

circumstantial evidence merits stricter scrutiny than convictions based in part on direct 

evidence.” State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). In applying the 

circumstantial evidence standard, the reviewing court uses a two-step analysis. State v. 

Silvernail, 831 N.W.2d 594, 598-99 (Minn. 2013). “While it warrants stricter scrutiny, 

circumstantial evidence is entitled to the same weight as direct evidence.” State v. Bauer, 

598 N.W.2d 352, 370 (Minn. 1999). “[W]hen a disputed element is sufficiently proven 

by direct evidence alone . . . , it is the traditional standard, rather than the circumstantialevidence standard, that governs.” State v. Horst, 880 N.W.2d 24, 39 (Minn. 2016).

Appellant only challenges the jury’s finding that he was driving the vehicle at the 

time of the accident. All eight of the offenses the jury found appellant guilty of included 
14

the element that the defendant operated a motor vehicle. Appellant argues that there is no 

direct evidence that he was driving the vehicle and that the most powerful circumstantial 

evidence points to D.M. as the driver at the time of the accident. Appellant asserts that

this court must reverse all of his convictions because the circumstantial evidence before 

the jury does not exclusively support the inference that appellant was the driver, and it 

does not eliminate the rational inference that appellant is innocent because D.M. was the 

driver. Appellant also suggests that B.O.’s eyewitness testimony was not credible, but 

we assume that the jury believed the state’s witnesses. Moore, 438 N.W.2d at 108. The 

state argues that based on the evidence presented at trial, no reasonable inference other 

than appellant’s guilt can be drawn.

Appellant misstates some of the evidence in the record and ignores that direct 

evidence was presented to the jury. Here, it is not necessary to apply the two-step 

circumstantial-evidence analysis to evaluate these convictions because they are not based 

entirely on circumstantial evidence. B.O.’s testimony established that he saw a male exit

the driver’s side of the vehicle after the accident, run around to the passenger side of the 

vehicle to try to open the passenger-side doors, then re-enter the vehicle through the 

driver’s side before leaving the scene. Appellant’s physical appearance matched B.O.’s 

description of the male. B.O. also testified that he saw a female passenger in the vehicle 

who appeared to be unconscious. This is direct evidence. The jury was also presented 

with both D.M. and appellant’s statements that they were the only two people in the 

vehicle that night. These statements are also direct evidence.
15

Based on the direct evidence presented to the jury, before the circumstantial 

evidence is even considered, and viewing the verdict in the light most favorable to the 

conviction, the jury could have reasonably concluded, beyond a reasonable doubt, that 

appellant was driving the vehicle at the time of the accident. Aside from appellant’s 

claim that he was not the driver, there is no evidence in the record to contradict B.O.’s 

testimony. As noted above, under Horst, this court need not consider circumstantial 

evidence if the direct evidence is sufficient to support the disputed element. 880 N.W.2d 

at 39.

Nonetheless, the circumstantial evidence presented to the jury further supports the 

jury’s conclusion that appellant was the driver. For example, although Officer Lopez 

found D.M. in the driver’s seat of the vehicle, his testimony about her condition was

corroborated by B.O.’s testimony that the female passenger was unresponsive. When the 

jury considered this circumstantial evidence, especially along with the direct evidence of 

C.C.’s testimony that appellant was running back and forth between the open driver and 

passenger doors of the vehicle, it was rational for the jury to infer that appellant moved 

D.M. from the passenger’s seat to the driver’s seat of the vehicle after leaving the scene 

of the accident.

Appellant’s convictions here are based on both direct and circumstantial evidence. 

Because the jury reasonably concluded that appellant was driving the vehicle at the time 

of the accident, appellant’s sufficiency-of-the-evidence challenge fails.
16

III. The district court erred when it entered convictions on all of the guilty 

verdicts returned by the jury.

Minn. Stat. § 609.04, subd. 1 (2014), provides that a person “may be convicted of 

either the crime charged or an included offense, but not both.” Minn. Stat. § 609.04, 

subd. 1(4), defines an included offense as “[a] crime necessarily proved if the crime 

charged were proved.” Minn. Stat. § 609.04 also “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). “When the defendant is 

convicted on more than one charge for the same act the court is to adjudicate formally 

and impose sentence on one count only.” Spann v. State, 740 N.W.2d 570, 573 (Minn. 

2007) (alteration in original) (quotation omitted). Whether the district court erred by 

formally adjudicating multiple convictions stemming from one behavioral incident is a 

question of law, which this court reviews de novo. See State v. Ferguson, 808 N.W.2d 

586, 590 (Minn. 2012).

Appellant argues that the district court erred by entering convictions for felony 

DWI and for the alcohol-related CVO offenses because all of the elements of DWI were 

necessarily proved when the two alcohol-related CVO offenses were proved.4 Appellant 

asks this court to vacate the DWI conviction, and to remand for resentencing. The state 

argues that because the DWI conviction carries a more severe presumptive guidelines

sentence it is not a “lesser included” offense to CVO. The state also asserts that because 

 

4 The alcohol-related CVO offenses were charged as counts 2 and 5 of the complaint.
17

the DWI was the most severely punishable offense, it was the conviction appellant should 

have been sentenced on.

Both parties fail to address the actual error that the district court made at 

sentencing and in its warrant of commitment. Problematically, the district court formally 

entered convictions on all eight counts after the jury returned eight guilty verdicts. The 

district court did not err in entering a conviction on the DAC offense, but it should have 

only formally adjudicated on one additional offense. See Minn. Stat. § 171.24, subd. 5 

(2014) (including the element of having a previously canceled or denied driver’s license). 

Not only was the DWI offense necessarily proved when the alcohol-related CVO 

offenses were proved, preventing the district court from properly adjudicating on both the 

DWI and those CVO offenses, but appellant could also only be formally adjudicated on 

one of the six CVO offenses without receiving multiple convictions under different 

subdivisions of the CVO statute involving the same victim in a single behavioral incident. 

Minn. Stat. § 609.04, subd. 1; Spann, 740 N.W.2d at 573; Jackson, 363 N.W.2d at 760. 

Aside from the DAC offense, appellant could have been formally adjudicated on the DWI 

offense and one non-alcohol related CVO offense, or on one of the alcohol-related CVO 

offenses but no others. In this case, the district court should not have adjudicated all 

eight convictions. 

On remand, the district court must, at a minimum, amend the warrant of 

commitment. If the district court ultimately suppresses appellant’s BAC result, it will 

need to determine whether the parties prefer a new trial to afford the state an opportunity 

to pursue a DWI conviction without the evidence of appellant’s BAC, or whether the 
18

parties prefer that the district court vacate a number of appellant’s convictions and 

resentence accordingly. If some of the jury’s findings of guilt are reversed, but it is 

determined that the parties do not wish to retry this case, the district court must select 

some surviving conviction for adjudication and sentencing. State v. Pflepsen, 590 

N.W.2d 759, 766 (Minn. 1999) (“‘[W]hen the defendant is convicted on more than one

charge for the same act * * * the court [is] to adjudicate formally and impose sentence on 

one count only. The remaining conviction(s) should not be formally adjudicated. . . . 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.’” (quoting State v. LaTourelle, 343 N.W.2d 277, 284 

(Minn. 1984))).

Affirmed in part, reversed in part, and remanded.