                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A14-1482


Court of Appeals                                                              Stras, J.
                                                              Took no part, Chutich, J.

State of Minnesota,

                      Appellant,

vs.                                                             Filed: August 24, 2016
                                                             Office of Appellate Courts
Douglas John Olson,

                      Respondent.

                              ________________________


Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, Jennifer Saunders, Assistant Minneapolis
City Attorney, Minneapolis, Minnesota, for appellant.

John L. Lucas, Minneapolis, Minnesota, for respondent.

Travis J. Smith, Murray County Attorney, Slayton, Minnesota, for amicus curiae
Minnesota County Attorneys Association.

William Ward, Minnesota State Public Defender, Minneapolis, Minnesota; and

Cathryn Middlebrook, Chief Appellate Public Defender, Saint Paul, Minnesota, for
amicus curiae Minnesota Board of Public Defense.

Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota, for amicus curiae
Minnesota Association of Criminal Defense Lawyers.

                               _______________________

                                           1
                                     SYLLABUS

       The district court did not abuse its discretion when it denied respondent’s motion

to dismiss under Minn. R. Crim. P. 30.02, which allows a district court to dismiss a

“complaint, indictment, or tab charge if the prosecutor has unnecessarily delayed

bringing the defendant to trial.”

       Reversed.

                                      OPINION

STRAS, Justice.

       The question presented in this case is whether the district court abused its

discretion when it denied respondent’s motion to dismiss after the State voluntarily

dismissed and refiled the criminal charges against him. Because we conclude that the

district court did not abuse its discretion, we reverse the decision of the court of appeals

and remand to the district court for further proceedings.

                                             I.

       On June 20, 2013, Trooper Gordon Shank of the Minnesota State Patrol observed

a vehicle traveling at 52 mph on a stretch of road with a posted speed limit of 40 mph.

After stopping the vehicle, Trooper Shank spoke with the driver, respondent Douglas

John Olson. Olson’s speech was slurred, his eyes were bloodshot and watery, and his

breath smelled of alcohol. The officer had Olson perform various field sobriety tests,

each of which indicated that Olson was intoxicated. Trooper Shank then administered a



                                             2
preliminary breath test (“PBT”), 1 which showed that Olson’s estimated blood alcohol

concentration (“BAC”) was .152. A later chemical test of Olson’s breath revealed a BAC

of .14.   The State charged Olson with two counts of fourth-degree driving while

impaired: one count of driving a motor vehicle while under the influence of alcohol, see

Minn. Stat. § 169A.20, subd. 1(1) (2014); and one count of driving a motor vehicle with

an alcohol concentration of .08 or more, see Minn. Stat. § 169A.20, subd. 1(5) (2014).

       The district court scheduled Olson’s jury trial for January 23, 2014, but the State

was unprepared to proceed that day because its only witness, Trooper Shank, failed to

appear in court. The State requested a continuance, but the district court denied the

request. The State then stated its intent to dismiss the case under Minn. R. Crim. P.

30.01, which allows a prosecutor to “dismiss a complaint or tab charge without the

court’s approval,” and recharge it. Olson’s counsel objected to the State’s approach,

arguing that it would allow the State to circumvent the court’s denial of a continuance.

Olson instead urged the court to dismiss the case on its own with prejudice. The court

declined, and the State dismissed the case under Rule 30.01.

       The State refiled the case less than 2 weeks later, on February 4, 2014. That same

day, Olson’s counsel sent a letter to the district court requesting that it dismiss the

1
       A preliminary breath test or a “preliminary screening test” is “used for the purpose
of deciding whether an arrest should be made and whether to require” a chemical test of a
person’s blood, breath, or urine. Minn. Stat. § 169A.41, subd. 2 (2014); see also Minn.
Stat. § 169A.51 (2014) (explaining “chemical testing”). A preliminary screening test,
unlike a chemical test, is generally not admissible in court, unless its use satisfies at least
one of several statutory exceptions. Minn. Stat. § 169A.41, subd. 2 (listing the
exceptions).

                                              3
charges against Olson with prejudice. See Minn. Stat. § 30.02. The State’s refiling of the

charges led to the assignment of a new judge, who denied Olson’s motion.

       Less than 4 months later, on July 14, 2014, Olson pleaded not guilty to the

charges. The court tried Olson on stipulated facts, which preserved his right to appeal the

court’s pretrial rulings, including the denial of his motion to dismiss. See Minn. R. Crim.

P. 26.01, subd. 4; State v. Myhre, 875 N.W.2d 799, 802 (Minn. 2016) (noting that Rule

26.01 “replaced Lothenbach as the method for preserving a dispositive pretrial issue for

appellate review in a criminal case”). The court found Olson guilty of count two: having

an alcohol concentration of .08 or more within 2 hours of driving a motor vehicle. See

Minn. Stat. § 169A.20, subd. 1(5).

       Olson appealed the district court’s denial of his motion to dismiss the case with

prejudice following the State’s refiling of the charges. The court of appeals reversed the

district court’s decision, concluding that the State’s “dismiss-and-refile tactic,” which it

characterized as a “do-it-yourself continuance order,” was an act of bad faith. See State

v. Olson, 867 N.W.2d 258, 260-61, 263 (Minn. App. 2015). We granted the State’s

petition for review.

                                            II.

       Although the primary question in this case requires us to interpret and apply Minn.

R. Crim. P. 30.01 and 30.02, we first consider the standard of review. The parties

disagree about whether we must assess the district court’s decision for an abuse of

discretion, as the State proposes, or resolve the interpretive question under a de novo


                                             4
standard of review, as Olson suggests. As it happens, both accurately state part of the

standard of review, but neither articulates it completely.

        Olson is partially correct because the court of appeals adopted a per se rule that

requires district courts to dismiss criminal charges with prejudice whenever the State has

dismissed a case under Minn. R. Crim. P. 30.01 after the denial of a continuance. See

Olson, 867 N.W.2d at 264. Whether the court of appeals’ per se rule is consistent with

the Minnesota Rules of Criminal Procedure presents a question of law that we review de

novo.     Dereje v. State, 837 N.W.2d 714, 720 (Minn. 2013) (stating that “[t]he

interpretation of the rules of criminal procedure is a question of law that we review de

novo”).

        The State is also correct that, if we reject the per se rule adopted by the court of

appeals, then the next step is to determine whether the district court abused its discretion

when it denied Olson’s motion to dismiss. Under Minn. R. Crim. P. 30.02, “[t]he court

may dismiss the complaint, indictment, or tab charge if the prosecutor has unnecessarily

delayed bringing the defendant to trial.” (Emphasis added.) Use of the word “ ‘may’

customarily connotes discretion,” and the connotation is “particularly apt” when the

statute or rule in question uses the word “may” in “contraposition to” a word such as

“must” or “shall.” Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 346 (2005).

The immediately preceding rule, Minn. R. Crim. P. 30.01, uses the word “may” to

describe what type of charges the prosecutor has the authority to dismiss and “must” to

refer to the requirement that a prosecutor state the reasons for dismissing the charges in


                                              5
writing or upon the record. Read in context, the word “may” in these two rules connotes

discretion, which means that the district court’s denial of Olson’s motion “to dismiss the

complaint, indictment, or tab charge” is reviewed only for an abuse of such discretion.

See State v. Clark, 722 N.W.2d 460, 467 (Minn. 2006) (subjecting a district court’s

decision regarding whether it may appoint advisory counsel to an abuse-of-discretion

standard of review).

                                            A.

      Having explained the standard of review, we turn now to the interpretive question

of whether the per se rule adopted by the court of appeals is consistent with the

Minnesota Rules of Criminal Procedure. The prosecutor dismissed the criminal charges

against Olson under Minn. R. Crim. P. 30.01. According to Rule 30.01, “[t]he prosecutor

may dismiss a complaint or tab charge without the court’s approval, and may dismiss an

indictment with the court’s approval.” By its terms, the rule only requires the court to

approve a dismissal when the State charges a case by indictment, not when a “tab

charge” 2 initiates the prosecution. Id. Accordingly, under the plain language of the rule,

the prosecutor had the authority to dismiss the tab charge against Olson without any

review by the court.


2
       A “tab charge” is a “charging document filed by an officer at a place of detention,
or an amendment of the charges on the record by the prosecutor, that includes a reference
to the statute, rule, regulation, ordinance, or other provision of law the defendant is
alleged to have violated.” Minn. R. Crim. P. 1.04(c). It is, in other words, a “brief
statement of the offense charged” and a “substitute for a complaint.” State v. Weltzin,
630 N.W.2d 406, 407 (Minn. 2001).

                                            6
       Olson seeks to supplement the plain language of the rule by adding a good-faith

requirement to any decision by a prosecutor to dismiss a tab charge or complaint even

though he acknowledges that the rule’s text does not contain such a requirement. He

argues that we have judicially imposed a good-faith requirement in two cases that he

views as binding here. We disagree.

       To be sure, Olson correctly observes that we have, consistent with the

requirements of Rule 30.01, prohibited bad-faith dismissals of indictments by

prosecutors. See State v. Pettee, 538 N.W.2d 126, 131 n.5 (Minn. 1995); State v. Aubol,

309 Minn. 323, 325-26, 244 N.W.2d 636, 638 (1976);. In Aubol, we considered whether

the district court had the authority under Rule 30.01 to “deny a prosecutor’s motion to

dismiss an indictment where the prosecutor, acting in good faith, . . . established a factual

basis for the motion and . . . expressed reasonable doubt as to the guilt of the accused.”

309 Minn. at 325, 244 N.W.2d at 638. Relying on federal cases, we stated that there is a

limited role for district courts to play in the dismissal of indictments. We concluded that

a court should dismiss an indictment only when the “prosecutor has acted improperly.”

Id. at 330, 244 N.W.2d at 640. In Pettee, the other case cited by Olson, we stated in

dictum that prosecutors may “not act[] in bad faith” when they “voluntarily dismiss an

indictment without prejudice” and then later reindict the defendant “on the same or

similar charges.” Pettee, 538 N.W.2d at 131 n.5.

       Aubol itself, however, establishes the boundaries of the rule. We said that the

“obvious intent” of Rule 30.01 was “to facilitate the court’s satisfaction that the


                                             7
prosecutor has neither summarily ignored nor preempted the considered decision of the

grand jury without a sufficient factual basis.” Aubol, 309 Minn. at 329, 244 N.W.2d at

640. Our statement was consistent with the plain language of the rule, which limits the

court’s supervisory function to the dismissal of indictments and does not require the court

to approve a prosecutor’s decision to dismiss charges brought by tab or complaint. We

accordingly reject the per se rule adopted by the court of appeals because nothing in

either Aubol or Pettee, or in the plain language of Rule 30.01, supports the imposition of

a good-faith requirement for dismissals of tab charges and complaints.

                                             B.

       Because we decline to add a good-faith requirement to the dismissal of tab charges

and complaints under Minn. R. Crim. P. 30.01, we now turn to the question of whether

the district court abused its discretion when it denied Olson’s motion to dismiss the

charges. District courts play a different role when prosecutors attempt to refile charges

that they have voluntarily dismissed.       Minnesota Rule of Criminal Procedure 30.02

provides that “[t]he court may dismiss the complaint, indictment, or tab charge if the

prosecutor has unnecessarily delayed bringing the defendant to trial.” In contrast to Rule

30.01, Rule 30.02 does not distinguish between prosecutions brought by complaint,

indictment, and tab charge. Rather, any time a prosecutor files charges against a criminal

defendant, including when a prosecutor refiles previously dismissed charges, the court

has the authority under Rule 30.02 to dismiss the charges if the prosecutor “unnecessarily

delayed bringing the defendant to trial.”


                                              8
       The district court relied on the unnecessary-delay standard from Rule 30.02 when

it addressed Olson’s motion to dismiss the refiled charges:

       [The State] did not charge the case in order to obtain an unfair advantage
       and did not blatantly delay the [d]efendant’s trial. The witness’s
       unavailability was unknown to the State until the day before trial and the
       State promptly disclosed the information, continued to negotiate the case
       and made its intent to recharge known prior to making the continuance
       request. Further, the case had not been unnecessarily delayed by any
       continuances prior to the continuance request on the day of trial and the
       [d]efendant’s trial in the new recharged case was set promptly at the first
       available date for the parties.

The record supports the findings that the prosecutor was not aware of the unavailability

of his only witness, Trooper Shank, until the day before trial; that the prosecutor

promptly disclosed Trooper Shank’s unavailability; that there were no continuances in

the case; and that the court promptly retried Olson after the State refiled the charges. The

court’s factual findings were not clearly erroneous. See Riley v. State, 792 N.W.2d 831,

833 (Minn. 2011) (applying a clearly erroneous standard to the factual findings

underlying a discretionary decision).

       In addition to being consistent with the record, the district court’s ruling applied

the legal standard correctly. See In re Pamela Andreas Stisser Grantor Trust, 818

N.W.2d 495, 508 (Minn. 2012) (explaining that a “district court abuses its discretion

when its decision is based on an erroneous view of the law”). Each of the facts the court

considered was relevant to determining whether the prosecutor “unnecessarily delayed

bringing [Olson] to trial.” Minn. R. Crim. P. 30.02. Moreover, Olson acknowledges that

Rule 30.02 explicitly adopts an unnecessary-delay standard.         Yet Olson renews his


                                             9
argument that the standard in Rule 30.02 is inconsistent with the bad-faith standard from

Aubol and Pettee, which is an argument that we have already rejected here for charges

brought by tab or complaint. Accordingly, the district court did not abuse its discretion

when it denied Olson’s motion to dismiss the refiled charges. 3

                                             III.

       For the foregoing reasons, we reverse the decision of the court of appeals and

remand to the district court for further proceedings consistent with this opinion.

       Reversed.

       CHUTICH, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.




3
      We acknowledge that the district court could have reached a different conclusion.
For example, the district court could have concluded that it was unreasonable under the
circumstances for the prosecutor not to have issued a subpoena for Trooper Shank or
communicated with him in the days leading up to the trial. Just because we “might have
come to a conclusion different from that arrived at by the district court,” however, does
not provide sufficient reason to reverse the district court’s discretionary decision.
Reagan v. Madden, 17 Minn. 402, 403, 17 Gil. 378, 380 (1871).

                                             10
