The Duration for the Doing
The anomalously fortuned Mr. Wertheimer picked up his fourth DWI ten years to the day that he was convicted of his first one. Is May 12, 2007 “within” ten years of May 12, 1997, as Minn.Stat. § 169A.24, the felony DWI enhancement provision, requires? The trial court and court of appeals held that it is. Both courts felt themselves obliged by the Minnesota Supreme Court’s precedents to analyze the problem using the time computation statute, Minn.Stat. section 645.15. Section 645.15 states that where “the performance or doing of any act, duty, matter, payment or thing is ordered or directed” and the “duration for the . . . doing thereof” is fixed by law, the time shall be computed so as to “exclude the first and include the last day of the prescribed . . . period.” What this means in Mr. Wertheimer’s case is that, to calculate ten years from May 12, 1997, you begin counting on May 13, 1997. The ten year term then expires at the end of the day on May 12, 2007. In the parallel reality of section 645.15, ten years-and-a-day equates to ten years-and-no-day, and Mr. Wertheimer is on the hook for a felony DWI.
A Year is a Year is a Year
Ah, but it is good to be a doctrinal court, and not simply an error-correcting one. A unanimous Minnesota Supreme Court reversed the court of appeals in an opinion authored by Justice G. Barry Anderson. The Court held that, despite “apparently broad statements in our case law that section 645.15 applies to all statutes requiring the computation of time,” section 645.15 does not apply to section 169A.24. The reasons the Court gave for exercising its prerogative as a law-developing court make eminent good sense. Section 645.15 applies to statutes that require the performance of an act, duty, matter, payment or thing within a specified time period. “Only under a strained reading,” the Court observed dryly, “can section 169A.24, subdivision 1, be construed to require the performance of an act, e.g., perhaps directing everyone not to violate Minnesota’s DWI statutes.” Moreover, said the Court, at the time section 645.15 was enacted, no Minnesota statutes defining the elements of a crime required the calculation of time — doesn’t that seem a quaint notion? — and section 645.15 has only ever been applied to procedural statutes. The Court declined to apply section 645.15 to a substantive provision of criminal law.
Looking simply at the language of section 169A.24, the Court held that May 12, 2007 is not “within ten years of” May 12, 1997. The trial court erred in denying Mr. Wertheimer’s motion to dismiss the felony charge.
Coda to a Modest Case
Even though in Wertheimer, the Court acts unapologetically as a law-developing tribunal, etching new limits on old precedents, the opinion somehow only serves to underscore that this is, at heart, a minimalist Court. Wertheimer involves an issue of statutory construction, the type of analysis with which the Court seems most comfortable. Yes, G. Barry Anderson is a surprising author for a defense decision, but his prose is hardly a paean to defendants’ rights (“By definition, a calendar year includes exactly one of each date. It includes just one January 22, just one January 23, and so on throughout the year. By extension, a ten-year period includes exactly ten of each date (except for February 29, of which there are two or three). In ten years, for example, we have exactly ten birthdays or ten wedding anniversaries, no more, no less.”). It is a bit ironic that the Court has consciously donned its law-developing role in a case that is unlikely to have practical significance for anyone save Mr. Wertheimer.