State v. Underdahl, No. A07-2293.

• Decision Date: 30 April 2009
• Docket Number: No. A07-2293.,No. A07-2428.
• Citation: 767 N.W.2d 677
• Parties: STATE of Minnesota, Respondent, v. Dale Lee UNDERDAHL, Appellant, Timothy Arlen Brunner, Appellant.
• Court: Minnesota Supreme Court

767 N.W.2d 677

STATE of Minnesota, Respondent, v. Dale Lee UNDERDAHL, Appellant Timothy Arlen Brunner, Appellant.

No. A07-2293.

No. A07-2428.

Supreme Court of Minnesota.

April 30, 2009.

Rehearing Denied July 22, 2009.

Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Jessica Bierwerth and Helen Brosnahan, Assistant Dakota County Attorneys, Hastings, Minnesota, for respondent.

Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, Minnesota, for appellant Dale Lee Underdahl.

Derek A. Patrin, Meaney & Patrin, P.A., Eden Prairie, Minnesota, for appellant Timothy Arlen Brunner.

OPINION

MEYER, Justice.

Dale Lee Underdahl and Timothy Arlen Brunner (appellants) each sought discovery of the complete computer source code for the Minnesota model of the Intoxilyzer 5000EN in their separate driving while intoxicated (DWI) criminal prosecutions. The district courts in both cases ordered the State to produce the computer source code within 30 days, or the courts would dismiss certain charges and find that the breath test results were not admissible. The State appealed the discovery orders, and the court of appeals consolidated the actions and reversed both orders for production. State v. Underdahl, 749 N.W.2d 117, 121 (Minn.App.2008).

We granted appellants' petitions for review concerning the district courts' discovery orders, and also asked the parties to brief two additional issues: (a) whether the State is required to show critical impact, under Minn. R.Crim. P. 28.04, in its pretrial appeal of the district court discovery orders, and (b) whether the State has shown that the district courts' pretrial orders at issue in these cases will have a critical impact on its ability to prosecute the defendants successfully. We answer both critical impact questions in the affirmative. Further, we affirm the court of appeals' decision to reverse the production order in appellant Underdahl's case. With respect to appellant Brunner, however, we reverse the court of appeals and reinstate the district court's order for State production of the complete computer source code for the Minnesota model of the Intoxilyzer 5000EN.

State v. Underdahl

On February 18, 2006, Dale Lee Underdahl was stopped on suspicion of driving while intoxicated and was arrested after performing poorly on field sobriety tests and failing a preliminary breath test. Underdahl agreed to a breath test performed with the Intoxilyzer 5000EN, the most recently approved breath-test instrument for the State of Minnesota.¹ The Intoxilyzer 5000EN revealed an alcohol content of .23. Underdahl was charged in Dakota County District Court with third-degree driving while impaired (blood alcohol concentration of .20 or more), Minn.Stat. §§ 169A.20, subd. 1(5), 169A.26 (2008), and the complaint against him was later amended to include a charge of fourth-degree driving while impaired (under the influence of alcohol), Minn.Stat. §§ 169A.20, subd. 1(1), 169A.27.

Underdahl brought a motion for discovery, seeking State production of "a complete copy of the computer source and object codes for the Minnesota model of the Intoxilyzer 5000EN that was used to test the Defendant." The State opposed the motion, arguing that the source code was not relevant and not in the State's possession because the Intoxilyzer 5000EN's manufacturer, CMI, Inc., owned the source code. The district court granted the discovery request and ordered that a complete copy of the computer source code for the Minnesota model of the Intoxilyzer 5000EN be provided to Underdahl in 30 days, or any evidence of the Intoxilyzer 5000EN test would be excluded from the State's case and the charge of third-degree driving while impaired (.20 or more) would be dismissed.

State v. Brunner

On July 28, 2007, Timothy Arlen Brunner was stopped on suspicion of driving while intoxicated. Brunner agreed to an Intoxilyzer 5000EN breath test. That test revealed an alcohol content of .18. Brunner was charged in Dakota County District Court with first-degree driving while impaired (under the influence of alcohol within 10 years of three or more qualified incidents), Minn.Stat. §§ 169A.20, subd. 1(1), 169A.24 first-degree driving while impaired (blood alcohol concentration of .08 or more), Minn.Stat. §§ 169A.20, subd. 1(5), 169A.24 and driving after cancellation of a driver's license, Minn.Stat. § 171.24, subd. 5 (2008).

Brunner brought a motion for discovery of the computer source code for the Minnesota model of the Intoxilyzer 5000EN. The district court granted the motion and ordered the State to produce the complete computer source code within 30 days, or the court would dismiss the first-degree driving while impaired (over .08) charge and find that the test result was not admissible.

The State appealed the rulings of both district courts. The court of appeals consolidated the cases and reversed the district courts, concluding that Underdahl and Brunner had made "inadequate showings in the district court on the relevancy of the source code." State v. Underdahl, 749 N.W.2d 117, 121 (Minn.App.2008). The court of appeals did not analyze whether the State had shown critical impact under Minn. R.Crim. P. 28.04. We accepted appellants' petitions for review, and also asked the parties to address whether the State was required to show critical impact in its pretrial appeal, and whether the State could show critical impact in these cases.

I.

We consider first whether the State was required to show critical impact in its pretrial appeal. Pretrial appeals by the State are governed by Minn. R.Crim. P. 28.04. We construe and interpret our rules of procedure de novo. State v. Barrett, 694 N.W.2d 783, 785 (Minn.2005).

Minnesota Rule of Criminal Procedure 28.04, subd. 1(1), provides: "The prosecuting attorney may appeal as of right to the Court of Appeals ... in any case, from any pretrial order of the trial court...." The procedure for such an appeal is set out in subdivision 2, and requires:

The prosecuting attorney shall file with the clerk of the appellate courts a notice of appeal, a statement of the case ... which shall also include a summary statement by the prosecutor as to how the trial court's alleged error, unless reversed, will have a critical impact on the outcome of the trial....

Minn. R.Crim. P. 28.04, subd. 2(2). In State v. Webber, 262 N.W.2d 157, 159 (Minn.1977), we held that a pretrial order will only be reversed if the State "demonstrates clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial." The operation of Rule 28.04, subd. 2 was reinforced by our decision in State v. Kim, where we upheld the critical impact requirement as a "fair and workable rule." 398 N.W.2d 544, 551 (Minn.1987). The critical impact requirement has evolved into a "threshold issue," so that "`in the absence of critical impact we will not review a pretrial order.'" State v. McLeod, 705 N.W.2d 776, 784 (Minn.2005) (quoting In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn.1999)); see State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (noting the change to the Webber decision's order of analysis to require critical impact to be determined before deciding whether the trial court erred).

In the notices of appeal in these cases, the State did not assert critical impact; instead, the State stated that "Minnesota Appellate Courts have held that the critical impact requirement does not apply to discovery orders on pretrial appeal." The State then cited to a Minnesota Court of Appeals decision that exempts nonsuppression orders from the critical impact requirement. State v. Renneke, 563 N.W.2d 335 (Minn.App.1997). In Renneke, the State appealed a district court order compelling disclosure of a deputy's personnel file. Id. at 337. The court of appeals concluded that the State did not have to show critical impact in a discovery dispute because the critical impact requirement "originally applied specifically to suppression orders." Id. (citing State v. Solheim, 477 N.W.2d 785, 786-87 (Minn. App.1991); State v. Cain, 427 N.W.2d 5, 9-10 (Minn.App.1988)). The court of appeals held that discovery orders are exempt from the critical impact requirement, noting that rulings that directly impact the evidence admissible at trial can have a "critical impact" on the outcome of the trial, but this rationale does not extend to discovery orders. Id.

Recently, we cautioned that the court of appeals' rule in Renneke (exempting discovery orders from the critical impact requirement) has never been adopted by our court. State v. Rambahal, 751 N.W.2d 84, 89 (Minn.2008). We further noted that the Renneke rule "appear[ed] to be at odds with our prior cases and the plain language of Minn. R.Crim. P. 28.04," but we ultimately declined to rule on critical impact as the parties had not petitioned for review or briefed the issue. 751 N.W.2d at 89. We now hold that Minn. R.Crim. P. 28.04 requires the State to show critical impact in all pretrial appeals and there is no exception for an appeal from a discovery order. Our explanation follows.

We look first to the plain language of the rule. Rubey v. Vannett, 714 N.W.2d 417, 421 (Minn.2006). Plain and unambiguous language must be followed. State v. Dahlin, 753 N.W.2d 300, 305 (Minn.2008). The rule must be read as a whole and each section interpreted "`in light of the surrounding sections to avoid conflicting interpretations.'" Id. at 306 (quoting Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000)).

Minnesota Rule of Criminal Procedure 28.04, subd. 1, allows the State to appeal from any pretrial order, while subdivision 2 requires these appeals to include a statement on "how the trial court's alleged error, unless reversed, will have a critical impact on the outcome of the trial." This language does not differentiate between suppression orders and...