                         This opinion will be unpublished and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.

                        UNPUBLISHED OPINION

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
(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:




                                               2
       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 passenger-

side 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




                                             3
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


                                             4
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


                                             5
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.




                                             6
                                      DECISION

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 due-

process 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.


                                              7
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



                                             8
given the option of submitting to an alternative test under Minn. Stat. § 169A.51, subd. 3

(2014),1 and 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.

                                              9
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.



                                             10
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




                                            11
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.

                                                12
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 circumstantial-

evidence 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


                                              13
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.




                                            14
         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.




                                             15
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.

                                            16
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


                                            17
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.




                                           18
