author: BLATZ, Chief Justice. STRINGER, Justice

text:
    SENTINEL MANAGEMENT COMPANY, et al., Plaintiffs, Respondents, Kellogg Square Partnership, Respondent, v. AETNA CASUALTY AND SURETY COMPANY, et al., Defendants, New Hampshire Insurance Company, petitioner, Appellant.
    Nos. C2-98-2304, CX-98-2373.
    Supreme Court of Minnesota.
    Aug. 17, 2000.
    Rehearing Denied Sept. 13, 2000.

      Thomas A. Pearson, Cronan Pearson Quinlivan, Minneapolis, James T. Ferrini, Clausen Miller PC, Chicago, IL, Eric J. Magnuson, Rider Bennett Egan & Agun-del, Minneapolis, Stuart Cotton, Wyner R. Glaubinger, Jeffrey C. Crawford, Mound, Cotton & Wollan, New York City, for appellant.
    Lawrence A. Moloney, Gray Plant Mooty Mooty & Bennett, P.A., Minneapolis, Paul W. Mollica, Thomas R. Meites, Joan H. Burger, Meites, Mulder, Burger <& Mol-lica, Chicago, IL, for respondents.
    Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, for amicus curiae Defense Research Institute.
    Heard, considered, and decided by the court en banc.
   OPINION

BLATZ, Chief Justice.

Defendant-appellant New Hampshire Insurance Company brings this appeal contending that the district court abused its discretion in admitting expert testimony on asbestos contamination that New Hampshire claims should have been excluded under Minnesota’s evidentiary standard for scientific testimony. In addition, New Hampshire claims that even if the expert’s testimony was properly admitted, the evidence still does not support the jury’s finding that there was a direct physical loss to plaintiff-respondent Kellogg Square Partnership (KSP), which invoked coverage under New Hampshire’s all-risk policy. We affirm on these issues. Plaintiffs-respondents Sentinel Management Company, et al., argue on cross-appeal that the district court erred in granting New Hampshire’s motion for summary judgment on the ten properties other than that considered by the jury. We reverse on this issue and remand for a new trial.

This lawsuit involves 12 plaintiffs who sued 7 defendant insurers under all-risk, first-party policies issued by the insurers and covering properties owned or managed by plaintiffs. Ten of the plaintiffs are limited partnerships, and Sentinel Management is the general partner of each of these limited partnerships, and manages all of the buildings at issue. Plaintiffs alleged that asbestos fibers had been released in their ten primarily residential building complexes, and that the ensuing losses were covered under the policies provided by defendant insurers. Five defendants filed motions for summary judgment to determine which defendant’s policy was in effect when the property damage manifested. In addition, New Hampshire Insurance Company (New Hampshire) was added by stipulation as an additional defendant. Finally, plaintiffs filed an amended complaint, adding KSP, a general partnership that wholly owns the Kellogg Square building in St. Paul, also managed by Sentinel, as an additional plaintiff.

The district court concluded that for purposes of allocating indemnity between successive first-party insurers, coverage is triggered when appreciable damage becomes manifest such that the insured was or should have been aware of it. The court further concluded that the plaintiffs’ losses manifested either in July 1991 or in August 1992, and therefore only New Hampshire’s two policies were implicated as they were the only policies in effect at that time. Accordingly, the district court granted summary judgment for all remaining defendants except New Hampshire.

New Hampshire then filed a second motion for summary judgment, challenging whether plaintiffs had sustained “direct physical loss,” necessary to coverage. The district court denied the motion but certified to the court of appeals pursuant to Minn. R. Civ.App. P. 103.03(h) the questions concerning whether asbestos contamination could constitute a direct physical loss and whether such a loss was fortuitous.

The court of appeals held, inter alia, that asbestos contamination can constitute a direct physical loss to property under an all-risk insurance policy, and that such a loss is fortuitous. See Sentinel Management Co. v. New Hampshire Ins. Co., 563 N.W.2d 296, 300 (Minn.App.1997) (Sentinel I). After the case returned to the district court, New Hampshire filed a motion in limine asking the court to exclude the testimony of plaintiffs’ expert, Richard Hatfield, as well as other plaintiffs’ experts and evidence. New Hampshire argued that Hatfield extrapolated from four positive dust samples taken from five apartment units at the 450-unit Kellogg Square building to the conclusion that all of the apartments at Kellogg Square, as well as the other ten buildings at issue, were contaminated by asbestos fibers. New Hampshire further requested that the court exclude evidence of scientific sampling performed on the ten buildings other than Kellogg Square after the expiration of New Hampshire’s policy.

The district court held a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), at which it allowed a voir dire of Hatfield and two building managers. Hatfield testified at the hearing that his conclusion that all 11 buildings were contaminated was based on his visual inspection of the properties and information from the building and maintenance managers that asbestos containing materials (ACMs) were used throughout all of the buildings managed by Sentinel. He also testified that he had reviewed hundreds of maintenance work orders for the 11 buildings at issue and that the orders demonstrated that the use and maintenance of the buildings involved activities that had gouged the ACMs and thereby released asbestos fibers.

Rather than granting or denying New Hampshire’s motion in limine, the district court instead granted summary judgment to New Hampshire and dismissed plaintiffs’ claims against all properties other than Kellogg Square. In granting summary judgment to New Hampshire, the district court concluded that plaintiffs could not raise an issue of material fact as to manifestation of loss in the other ten properties because there had been no scientific testing performed within them during the relevant policy period. As a result of this ruling, only KSP continued as a plaintiff because it was the sole owner of Kellogg Square, the only building remaining at issue. In addition, the district court denied New Hampshire’s motion in limine to exclude Hatfield’s testimony in regard to Kellogg Square. In response to New Hampshire’s argument that Hatfield’s testimony was unreliable due to his extrapolation, the court noted that Hatfield’s extrapolation went to the weight rather than the admissibility of his testimony, and thus was a matter for the jury.

The matter then proceeded to trial. Hatfield testified that he tested dust gathered from five apartments and four of the samples were positive for asbestos fibers. He testified that this information, along with his visual inspection of Kellogg Square, his inspection of work orders, and information concerning tenant activities, led to his conclusion that all of Kellogg Square was contaminated by asbestos fibers. He also testified that his method for detecting asbestos contamination has been used by the Environmental Protection Agency and was published as a method by the American Society for Testing Materials and that he has been accepted as an expert on asbestos contamination by many state and federal courts. New Hampshire relied primarily on its cross-examination of Hatfield, and did not include rebuttal expert testimony in its case-in chief. The jury found that Kellogg Square sustained a direct physical loss and that the cost of removing the asbestos was $4,474,404.08.

New Hampshire then made a motion for judgment notwithstanding the verdict (JNOY) or a new trial, again arguing, among other things, that Hatfield’s conclusion that the entire 450-unit Kellogg Square building was contaminated was inadmissible as it was based on an unreliable extrapolation from only, four positive dust samples. The district court denied the motion.

New Hampshire appealed the denial of its motion and Sentinel cross-appealed the district court’s dismissal of its claims concerning the ten buildings other than Kellogg Square. The court of appeals affirmed, agreeing with the district court that “the weaknesses in Hatfield’s testimony were relevant to the weight of the evidence, not its admissibility.” See Sentinel Management Co. v. Aetna Cas. and Sur. Co., Nos. C2-98-2304, CX-98-2373, 1999 WL 540466, slip op. at 14 (MinmApp. July 27, 1999) (Sentinel II). The court of appeals also held that without scientific testing on the properties other than Kellogg Square during the relevant policy period, Sentinel could not present a genuine question of material fact on whether the contamination manifested during the policy period. See id. Both parties then appealed to this court.

I.

The first question we address is whether the district court abused its discretion by admitting Hatfield’s testimony concerning the asbestos contamination of Kellogg Square. New Hampshire claims that Hatfield’s conclusion that Kellogg Square was contaminated by asbestos fibers should have been excluded as unreliable under the Minnesota Frye-Mock standard. Minnesota adheres to the Frye-Mack standard for admission of evidence that is based on novel scientific techniques or principles. See Goeb v. Tharaldson, 615 N.W.2d 800, 814-15 (Minn.2000). Under this two-prong standard, the scientific technique or principle at issue must be generally accepted within the relevant scientific community. See id. In addition, its foundation must be rehable. See id., at 815. Foundational reliability “requires the ‘proponent of a * * * test [to] establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability.’ ” State v. Moore, 458 N.W.2d 90, 98 (Minn.1990) (quoting State v. Dille, 258 N.W.2d 565, 567 (Minn.1977)). The determination of whether a proper foundation has been established is largely within the discretion of the trial court. See State v. Bott, 310 Minn. 331, 334, 246 N.W.2d 48, 51 (1976).

Although New Hampshire argues that Hatfield’s methods are neither generally accepted nor reliable, their arguments all concern the reliability of those methods. Specifically, New Hampshire argues that Hatfield improperly extrapolated from four positive dust samples taken from only five units to conclude that the entire 450-unit building was contaminated. New Hampshire characterizes this extrapolation as unreliable “junk science” that should have been excluded, and claims the district court abused its discretion when it admitted Hatfield’s testimony.

At the Frye hearing, the district court allowed an extensive voir dire of Hatfield. At the conclusion of the hearing, the court determined that Hatfield’s extrapolation went to the weight, rather than to the admissibility of his testimony. We agree. The record clearly shows Hatfield’s conclusion was based on much more than the four positive dust samples. Hatfield also relied on his visual inspection of the property and statements from the building managers that ACMs were used throughout the building. The building managers also informed Hatfield that tenant and repair activities that tend to gouge the ACMs. and release dust containing asbestos fibers occurred throughout the building. Further, Hatfield inspected hundreds of work orders for replacing light bulbs, shower curtain rods, and closet door tracks — maintenance which can also gouge the ACMs and release dust containing asbestos fibers. In addition to the evidence in the record, we note that New Hampshire failed to put forward an expert of its own to counter Hatfield’s testimony. As the district court stated, “there has been no refutation of Mr. Hatfield’s analysis of the four contaminated pieces of carpet ⅝ * *_ Whether that means that two square feet of the carpeting in Kellogg Square were contaminated or 800,000 square feet is a matter for the jury to determine.”

In addition to challenging the number of dust samples taken, New Hampshire also asserts that Hatfield’s testimony was unreliable because his conclusion as to contamination was not based on air samples. In support of its argument, New Hampshire cites to KSP’s medical expert Dr. Arthur L. Frank’s deposition testimony that asbestos fibers are only hazardous when airborne and then inhaled. New Hampshire argues that a conclusion as to asbestos contamination must be based, therefore, on air samples. This argument ignores the law of gravity. As Hatfield testified, once asbestos fibers are released, they will eventually settle, only to bé reen-trained into the air when disturbed: Further, two experts in addition to Hatfield testified that air sampling is useless unless done at a point when fibers are initially dislodged from the ACMs or disturbed in the carpet or tile and reentrained. While contamination might be proved with air samples, a jury could reasonably find that, given the presence of ACMs that were in fact disturbed or gouged, asbestos fibers were released in the air. Again, the absence of air sampling went to the weight, not the admissibility of Hatfield’s testimony, and determining evidentiary weight is within the province of the jury. Upon review of the record, we conclude that the district court did not abuse its discretion in determining Hatfield’s testimony was admissible.

II.

New Hampshire argues next that the district court must be reversed even if Hatfield’s testimony was properly admitted. Specifically, New Hampshire argues that KSP did not meet its burden of proving that a direct physical loss .occurred, as it failed to show that a health hazard existed for the tenants of Kellogg Square due to asbestos contamination. Where a district court has denied a party’s motion for JNOV, we will uphold the court’s decision if “there is any competent evidence reasonably tending to sustain the verdict.” Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn.1984). “Unless the evidence is practically conclusive against the verdict, we will not set the verdict aside.” Id. (quoting Sandhofer v. Abbott-Northwestern Hosp., 283 N.W.2d 362,' 365 (Minn.1979)). Similarly, where a district court has denied a party’s motion for a new trial based on the ground that the evidence does not justify the-verdict, we will uphold the court’s decision “unless the verdict is so contrary to the preponderance of the evidence as to imply that the jury failed to consider all the evidence or acted under some mistake or from some improper motive, bias, feeling or caprice, instead of honestly and dispassionately exercising its judgment.” Lamb v. Jordan, 333 N.W.2d 852, 855-56 (Minn.1983) (quoting LaValle v. Aqualand Pool Co., 257 N.W.2d 324, 328 (Minn.1977)).

In Sentinel I, the court of appeals held that even though “asbestos contamination does not result in tangible injury to the physical structure of a building, a building’s function may be seriously impaired or destroyed and the property rendered useless by the presence of contaminants,” thereby satisfying the definition of direct physical loss. Sentinel I, 563 N.W.2d at 300. In Sentinel II, discussing further how a direct physical loss may result from the impairment of a building’s function, the court of appeals held that “[a] principal function of any living space [is] to provide a safe environment for the occupants. If rental property is contaminated by asbestos fibers and presents a health hazard to the tenants, its function is seriously impaired.” Sentinel II, 1999 WL 540466, slip op. at 14. The court of appeals held that to meet its burden of proving a direct physical loss, KSP had to show both that Kellogg Square was contaminated by asbestos fibers, and that the contamination presented a health hazard to the building’s tenants. See id.

New Hampshire does not appeal the standard articulated, but argues that KSP did not prove a direct physical loss because KSP never established that a health hazard existed for the tenants of Kellogg Square. Specifically, New Hampshire claims that KSP’s own witnesses testified that asbestos fibers must be airborne to constitute a health hazard, and because no air sampling was performed in Kellogg Square, KSP did not establish a health hazard. The record reveals that New Hampshire misrepresents the testimony of KSP’s witnesses, and we conclude that New Hampshire’s argument is otherwise unpersuasive.

As noted previously, air sampling is of questionable utility in determining contamination because asbestos fibers, like all particulates, will settle to the ground and remain there until disturbed. Although Dr. Frank testified in deposition that only inhaled, and therefore airborne, asbestos fibers are hazardous, KSP presented ample evidence that once settled asbestos fibers are disturbed, they are reentrained into the air and thereby become hazardous. Therefore, it does not follow that testing for airborne fibers is necessary to prove that asbestos contamination in Kellogg Square constituted a health hazard for the building’s tenants.

Second, in its brief New Hampshire quotes Kellogg Square manager Alessan-dro Bernardi’s testimony that “[t]here wasn’t any asbestos in the air * * The remainder of the quote, which New Hampshire omitted, is “but at the same time, if you disturb [the ceiling ACMs], you’re going to have asbestos in the air * * Similarly, New Hampshire cites a letter sent by the managers of Kellogg Square to the building’s tenants for the proposition that the ceiling material in Kellogg Square is hard and does not release fibers. In fact, the letter was referring to asbestos-containing floor tiles. New Hampshire also ignores that portion of the letter that warns “tenants not [to] disturb the asbestos-containing materials, most specifically the ceiling material, by cutting, drilling or abrading the material,” and the letter’s statement that “it is important to avoid unnecessary damage to asbestos-containing materials because it could result in a release of asbestos fibers into the air.”

Finally, arguing that none of KSP’s experts testified that there was a health hazard, New Hampshire selectively cites to the testimony of KSP’s experts. The cited testimony, however, when read in conjunction with the surrounding testimony, does not support this claim, as KSP’s experts did in fact testify that asbestos contamination constituted a health hazard. For the foregoing reasons, we hold that New Hampshire has failed to show that KSP did not meet its burden of proving a direct physical loss and hold that New Hampshire is therefore not entitled to a JNOV or a new trial on this ground.

III.

We now address the cross-appeal of plaintiffs-respondents Sentinel that the district court erred in dismissing on summary judgment its claims of asbestos contamination in the buildings at issue other than Kellogg Square. Following the Frye hearing, the district court determined that without scientific testing to confirm that the buildings other than Kellogg Square were contaminated, Sentinel could not show that a genuine issue of material fact existed on whether asbestos fiber contamination occurred within the relevant policy period, i.e., whether appreciable damage occurred. The district court then dismissed Sentinel’s claims as to all buildings other than Kellogg Square.

The court of appeals denied Sentinel relief and adopted the district court’s “manifestation trigger” ruling that would find coverage when: (1) appreciable damage occurred during the policy period; and (2) “the damage was or should have been known to the insured, such that a reasonable insured would have been aware that his notification duty under the policy had been triggered.” Sentinel II, 1999 WL 540466, slip op. at 7-8; see also Prudential-LMI Commercial Insurance v. Superior Court of San Diego County, 51 Cal.3d 674, 274 Cal.Rptr. 387, 798 P.2d 1230, 1247 (1990) (announcing the manifestation trigger rule for first-party property insurance cases). To survive summary judgment, Sentinel needed to present evidence creating genuine issues of material fact on both prongs. See Sentinel II, 1999 WL 540466, slip op. at 9; see also State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

The court of appeals concluded that, with respect to Sentinel’s properties other than Kellogg Square:

1) Sentinel presented no evidence that any of the ten buildings other than Kellogg Square were scientifically tested for asbestos contamination during the policy period;
2) Sentinel presented evidence that similar ACMs were present throughout Kellogg Square and the other ten buildings;
3) Sentinel presented evidence that many normal activities disturb ACMs and cause the release of asbestos fibers;
4) Sentinel presented evidence that such activities took place to some degree in all eleven buildings;
5) In 1992, Sentinel confirmed that samples taken from Kellogg Square were indicative of asbestos contamination.

See Sentinel II, 1999 WL 540466, slip op. at 8-9. In light of the first prong of the manifestation trigger - that appreciable damage must occur during the policy period - the court of appeals’ first determination was key to its holding. The court of appeals held that “[d]ue to the lack of scientific evidence, we conclude the trial court was correct in determining that the available evidence was too speculative to support Sentinel’s claim that its buildings other than Kellogg Square were contaminated during the policy period.” Id., slip op. at 9.

Sentinel argues that the district court and court of appeals erred in requiring scientific testing and that its proffered evidence was sufficient to establish a question for the jury. Our standard of review for summary judgment is de novo. See Fairview Hosp. & Health Care Servs. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 341 (Minn.1995). We have held that a district court’s grant of a motion for summary judgment will not be disturbed

. when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997).

We conclude that scientific testing should not be a prerequisite for satisfying the first prong of the manifestation trigger standard. Although scientific testing was not performed during the policy period on the buildings other than Kellogg Square, there was nonetheless evidence of asbestos contamination, i.e., the same ÁCMs were used in all of the buildings, and tenant and maintenance activities that can gouge ACMs occurred in all of the buildings. This remaining evidence of asbestos contamination raises more than a metaphysical doubt about a factual issue. Therefore, Sentinel has established a genuine question of material fact as to whether appreciable damage occurred within the policy period. See Prudential-LMI Comm. Ins., 274 Cal.Rptr. 387, 798 P.2d at 1247 (stating that “the date of the manifestation and hence the date of the inception of the loss will, in many cases, be an issue of fact for the jury to decide.”) We therefore reverse the district court’s dismissal of Sentinel’s claims on the buildings other than Kellogg Square and remand for further proceedings in accordance with this opinion.

Affirmed in part, reversed in part, and remanded.

STRINGER, Justice

(concurring in part, dissenting in part).

I concur with the holding of the majority that the Frye-Mack reliability standard was met with respect to the Kellogg Square building and that direct physical loss was demonstrated to trigger coverage, but I respectfully disagree with and dissent from the court’s holding that the manifestation trigger standard can be met with respect to the remaining ten buildings in the absence of testing.

There is coverage under the manifestation trigger standard when appreciable damage occurred during the policy period and the damage was or should have been known to the insured. See Sentinel Management Co. v. Aetna Cas. and Surety, Nos. C2-98-2304, CX-98-2373, 1999 WL 540466, slip op. at 7-8 (Minn.App. July 27, 1999) (Sentinel II). What the majority fails to recognize is that appreciable damage can only be demonstrated by proving that the buildings were contaminated during the policy period, and contamination can only be proven by expert opinion, admissible because it meets the Frye-Mack reliability standard.

The Frye-Mack two-prong standard requires, first, that the scientific technique or principle must be generally accepted within the scientific community and, second, that its foundation must be reliable. See Goeb v. Tharaldson, 615 N.W.2d 800, 814-15 (Minn.2000); see also State v. Moore, 458 N.W.2d 90, 97 (Minn.1990). In Moore we further held as to scientific testing that “[a] proper foundation for a scientific test requires the ‘proponent of a * * * test [to] establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability!,]’ ” and that the reliability of a particular test or technique in a given case must be demonstrated. Moore, 458 N.W.2d at 98 (quoting State v. Dille, 258 N.W.2d 565, 567 (Minn.1977)).

Sentinel presented no evidence of scientific testing in the remaining ten buildings. It relied on samples from Kellogg Square indicative of asbestos contamination and piggy-backed the sample testing at Kellogg Square on evidence that ACM’s, as well as maintenance activities that disturb ACM’s and cause the release of asbestos fibers, were present in the remaining ten buildings. But this is all Sentinel proved with respect to the other buildings. There was no evidence to meet even the requirement of Sentinel’s own scientific expert that the “only way to definitely establish that asbestos is present in a * * * sample-of dust is to perform a microscopic analysis of [the] material * * Sentinel II, 1999 WL 540466, slip op. at 9. Sentinel’s expert stated the obvious-that without evidence to conclude asbestos is present through microscopic testing of samples, differences in the nature of the material or construction could result in wide variations in the asbestos suspension-for example the composition of the wall and ceiling materials in each building may be different, affecting the characteristics of suspension of asbestos in the dust particles. But without testing a conclusion that asbestos is present is pure speculation, and thus proof of appreciable damage and manifestation fails.

Beyond the holding here however, by its ruling that testing of the other buildings is not required, the majority dilutes to the point of near meaninglessness the Frye-Mack standard requiring that the scientific testing be reliable and “in the particular instance” conform to reliable procedures. In one fell swoop the majority allows the issue of appreciable damage to proceed to trial and rules that the Frye-Mack reliability standard is satisfied as to Hatfield’s testimony. The majority leapfrogs over the Frye-Mack analysis in its rush to conclude that there was appreciable damage in the form of asbestos contamination. Making the leap that the Frye-Mack reliability standard is met with respect to ten separate buildings in the absence of testing of any of those buildings guts the Frye-Mack analysis and I can only assume that the majority would now reach the same conclusion with respect to any building where the “Kellogg Square formula”(presence of asbestos) + (routine maintenance activities) = (contaminated building)-is met.

In the absence of meeting even minimal Frye-Mack requirements of reliable testing, the manifestation trigger standard cannot be reached. I would affirm the conclusion of both the district court and court of appeals that the evidence presented by Sentinel does not satisfy the manifestation trigger standard.

      . There were 11 original plaintiffs and 6 original defendant insurers. The original plaintiffs were Sentinel Management Company and the following limited partnerships that had ownership interests in the buildings at issue: Ballantrae Associates, Chancellor Manor, Colonial Village, Equinox Properties, Sentinel II Limited Partnership, Oak Grove Towers Associates, Gateway Investors, Ltd., Stagecoach Company, Skyline Towers Company and Woodmere Associates. The original defendant insurers were Aetna Casualty and Surety Company, Reliance Insurance Company, Continental Insurance Company, Hartford Accident and Indemnity Company, Mission Insurance Company, and Mission National Insurance Company.

      . We note that the district court dismissed Mission Insurance Company and Mission National Insurance Company as defendants, as both companies were in the process of liquidation.

      . During trial, prior to submission of the case to the jury, the district court revised this ruling, finding that there was no evidence of manifestation during the New Hampshire policy covering January 1, 1991 through January 1, 1992, and therefore only the New Hampshire policy covering January 1, 1992 through January 1, 1993 was implicated.

      . All-risk policies include coverage "for all fortuitous losses not resulting from misconduct or fraud, unless the policy contains a specific provision expressly excluding loss from coverage.” 13A George E. Couch, Couch on Insurance 2d § 48:141 (rev. ed.1982). New Hampshire's policy provided indemnity against "all risks of direct physical loss.” Therefore, plaintiffs had to prove that the loss was both fortuitous and a direct physical loss.

      . The work orders were for such maintenance tasks as replacing light bulbs, shower curtain rods, and closet door tracks.

      . To avoid confusion between parties, all plaintiff parties other than KSP will hereinafter be referred to collectively as Sentinel.

      .The district court entered an amended judgment on December 7, 1998, that raised KSP's award to $5,291,460.92, equal to the original award plus interest accrued to that date.

      . In addition to . challenging the district court’s admission of the evidence under Frye-Mack, New Hampshire also urges this court to adopt the principles of Daubert and its progeny to avoid the risks of unreliable scientific evidence being admitted. We rejected this argument in Goeb v. Tharaldson, 615 N.W.2d 800, 814-15 (Minn.2000) and therefore need not address it here.

      . In addition, KSP points out that New Hampshire admitted that ACMs are used as ceiling material throughout Kellogg Square, and that once ACMs are disturbed, asbestos fibers are released.

      . Although the Frye hearing occurred in the context of a motion in limine brought by New Hampshire, the record demonstrates that the motion was actually treated as a motion for summary judgment by . the district court and was reviewed as such by the court of appeals. See Sentinel II, 1999 WL 540466, slip op. at 8.

      . Although scientific testing confirming asbestos contamination was performed at several of the properties other than Kellogg Square, it was performed in 1994 and 1995, after New Hampshire’s policy period had ended.

      . We note that our reading of the record indicates that the district court agreed with Sentinel that there was a genuine issue of material fact on the second prong of the manifestation trigger. The court of appeals, concluding that Sentinel had not satisfied the first prong, declined to reach the second prong. See Sentinel II, 1999 WL 540466, slip op. at 9.

      . The dissent asserts that "without testing!,] a conclusion that asbestos is present is pure speculation, and thus proof of appreciable damage and manifestation fails.” The dissent goes on to then blend together its analysis of whether appreciable damage occurred during the policy period with its analysis of what scientific evidence may come in under Frye-Mack. In doing so, the dissent substitutes the standard of review for evidentiary determinations for the standard of review for summary judgment. Under Frye-Mack, a district court's determination on whether a proper foundation of reliability has been established for the admission of scientific evidence is reviewed under an abuse of discretion standard. See Goeb, at 814-15. In contrast, we review a district court's determination on summary judgment de novo. See Russ, 566 N.W.2d at 71.
      Contrary to the dissent's contention, in reversing the district court's determination on summary judgment we do not hold that the district court abused its discretion in excluding evidence. In fact, it is unclear from the transcript that the district court ever excluded any evidence of asbestos contamination at the ten buildings other than Kellogg Square, other than the scientific testing performed after the policy period had expired. What is clear is that both the district court and court of appeals concluded that without scientific testing performed during the policy period, Sentinel could not present a genuine issue of material fact to the jury as to whether appreciable damage occurred in the ten properties during the relevant policy period. It is with this conclusion, and the dissent's, that we disagree.
      Should Sentinel wish to proceed to trial on the ten properties other than Kellogg Square, the court will determine then whether Sentinel’s proffered evidence of contamination is reliable under Frye-Mack. Like the district court, we have not ruled on this issue. What we have ruled is that, as a matter of law, scientific testing is simply not the only form of evidence that is sufficient to raise a question of fact on whether appreciable damage occurred in the ten properties during the policy period. To that end, we disagree with the dissent’s statements suggesting that the prospective Frye-Mack hearing is an all-or-nothing proposition. The district court may allow, limit or exclude expert testimony offered in any future hearings on this matter. The admissibility and limits of that testimony are not before us at this time.


source: Caselaw Access Project

author: Alan C. Page Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST David T. ERICKSON, an Attorney at Law of the State of Minnesota.
    No. C1-87-1357.
    Supreme Court of Minnesota.
    Aug. 21, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed an application for suspension pursuant to Rule 12(c)(1), Rules on Lawyers Professional Responsibility (RLPR), and evidence that respondent cannot be found in the state or served personally with the Director’s petition for disciplinary action.

IT IS HEREBY ORDERED that respondent David T. Erickson be suspended from the practice of law. Within one year from the date of this order respondent may move the court for vacation of the order of suspension and for leave to answer the petition for disciplinary action.

BY THE COURT:

Alan C. Page Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Barrie S. SCHUMACK, an Attorney at Law of the State of Minnesota.
    No. C6-99-1781.
    Supreme Court of Minnesota.
    Aug. 21, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Barrie S. Schumack has committed professional misconduct warranting public discipline, namely, engaging in a pattern of neglect and noncommunication, failing to return client files, failing to provide accountings and return unearned fees, failing to properly pay court-ordered judgments against him, and failing to cooperate in the investigation of disciplinary complaints filed against him in violation of Minn. R. Prof. Conduct 1.3, 1.4, 1.16(d) 8.1(a)(3) and 8.4(d). Respondent received an admonition in 1992 and private probation in 1993 for similar misconduct.

In mitigation, respondent submitted medical reports from a physician and a licensed clinical psychologist providing evidence that a sleep disorder, coupled with depression, caused or substantially contributed to his misconduct. It appears that while respondent’s misconduct cannot be characterized as nonserious, no client has suffered lasting injury.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a public reprimand and two years of supervised probation subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by a licensed Minnesota attorney appointed by the Director to monitor compliance with the terms of this probation. Until a supervisor has signed a consent to supervise, the respondent shall, on the first day of each month, provide the Director with an inventory of active client files described in paragraph d. below. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Within 30 days from the execution of this stipulation, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
f. So long as respondent remains in solo practice he shall maintain an office-sharing arrangement with other attorneys which provides daily interaction with other professionals who are aware of this probation.
g. Respondent shall continue treatment of his sleep disorder including the regular use of a CPAP as recommended by his physician. Respondent’s physician shall monitor his use of the CPAP and report respondent’s compliance with this requirement as requested by the Director’s Office.
h. Respondent shall commence or continue direct therapy for the psychological conditions and personality factors which contributed to the impairment identified by Dr. Wojcik. Respondent’s mental health professional must be aware of his physical, psychological and disciplinary history and shall report quarterly to the Director’s Office on the status of respondent’s treatment. Respondent shall provide authorizations to the Director’s Office and to the mental health professional allowing unrestricted communication regarding respondent’s mental health treatment and his probation, including future disciplinary complaints, if any.
i. Respondent shall complete repayment of the $8,764.37 judgment against him in the Weller bankruptcy matter and shall provide copies of his payments to the Director’s Office on a monthly basis.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Barrie S. Schumack is publicly reprimanded and placed on two years supervised probation subject to the above-stated conditions, and that he shall pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT:

Alan C. Page Associate Justice


author: G. BARRY ANDERSON, Judge.

text:
    In the Matter of the WELFARE OF C.P.K.
    No. C6-99-2090.
    Court of Appeals of Minnesota.
    June 27, 2000.
    Review Denied Aug. 22, 2000.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuehar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, MN (for respondent).
    William E. McGee, Hennepin County Public Defender, Warren R. Sagstuen, Assistant Public Defender, Minneapolis, MN (for appellant).
    Considered and decided by AMUNDSON, Presiding Judge, CRIPPEN, Judge, and G. BARRY ANDERSON, Judge.
   G. BARRY ANDERSON, Judge.

Juvenile C.P.K. appeals from adjudication of delinquency for committing felony possession of incendiary devices in violation of Minn.Stat. § 609.668, subd. 2 (1998). Appellant argues that burning crosses are not incendiary devices within the meaning of Minn.Stat. § 609.668, subd. 1(b) (1998), and contends that Minn.Stat. § 609.668, subd. 2 is unconstitutionally overbroad as applied to him. We disagree and affirm.

FACTS

In May 1999, police recovered a burned wooden cross measuring two-and-a-half feet tall from a public school in Minneapolis. A fire investigator discovered burn marks on the school lawn. One week later, police and firefighters responded to another report of a burning cross at the same school and found a three-foot-tall wooden cross smoldering on the school’s front lawn. The school custodian had managed to extinguish the fire, but not before the school lawn sustained $100 in damage.

In the course of investigating the incidents, the school vice-principal spoke with 14-year-old appellant C.P.K. Appellant told the vice-principal that he knew how to make bombs and was affiliated with the Aryan Nation. The next day, appellant talked to a police sergeant. Appellant told the officer that he followed the Ku Klux Klan and found hate groups and the Nazi era in Germany interesting. Appellant admitted that he made both crosses in his basement using wood, gasoline-soaked rags and duct tape, and set them ablaze at the school.

Following a hearing on stipulated facts, the district court adjudicated appellant delinquent for committing two acts of felony possession of incendiary devices in violation of Minn.Stat. § 609.668, subd. 2 (1998). Appellant challenges that ruling, arguing that burning crosses do not fall within the statutory definition of incendiary devices and that the statute unconstitutionally interferes with his right to free expression.

ISSUES

I. Is a burning cross an incendiary device as defined in Minn.Stat. § 609.668, subd. 1(b) (1998)?

II. Is Minn.Stat. § 609.668, subd. 2 (1998) unconstitutionally overbroad as applied to appellant?

ANALYSIS

I.

Appellant first challenges the district court’s interpretation of Minn.Stat. § 609.668, subd. 1(b) (1998), arguing that the burning crosses in this ease do not fall within the statute’s definition of incendiary devices. Statutory interpretation is a question of law that this court reviews de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188,190 (Minn.1990).

Minn.Stat. § 609.668, subd. 2 (1998) prohibits certain persons from possessing explosive and incendiary devices. The statute defines “incendiary device” as

a device so articulated that an ignition by fire, friction, concussion, detonation, or other method may produce destructive effects primarily through combustion rather than explosion. The term does not include a manufactured device or article in common use by the general public that is designed to produce combustion for a lawful purpose, including but not limited to matches, lighters, flares, or devices commercially manufactured primarily for the purpose of illumination, heating, or cooking. The term does not include firearms ammunition.

Id., subd. 1(b). The persons prohibited from possessing incendiary devices include minors, persons convicted of crimes of violence or certain controlled substance offenses, the mentally ill and mentally disabled, and those institutionalized during the course of chemical dependency treatment. Id., subd. 2(a)-(f). The statute makes several exceptions for law enforcement, safety, governmental and educational purposes. Id., subds. 3, 5.

When interpreting a statute, we are guided by the natural and obvious meaning of the questioned statutory language. State v. Newman, 538 N.W.2d 476, 477 (Minn.App.1995), review denied (Minn. Nov. 30, 1995). “In choosing between possible definitions of a statutory term, courts must accept the interpretation which is more logical and practical.” State v. Murphy, 545 N.W.2d 909, 916 (Minn.1996) (citation omitted). We may presume that the legislature does not intend an absurd result. Minn.Stat. § 645.17(1) (1998). The natural and obvious meaning of the language in Minn.Stat. § 609.668, subd. 1(b) is that an incendiary device is something “homemade” to burn, capable of damage. Because made-to-burn items could be constructed from a vast array of flammable materials, and produce a variety of effects, it is logical and practical that the statutory language is neither specific nor limiting.

Appellant fashioned the burning crosses in his basement with materials capable of causing damage by fire. The crosses were made to burn, and do not fall within the statute’s permissible exceptions. See id. (excluding manufactured items, or articles commonly used by the general public). See also Minn.Stat. § 609.668, subds. 3, 5 (excepting certain safety, educational, governmental and law enforcement purposes). As the condition of the school lawn in this case shows, a burning cross has destructive potential.

Appellant claims that the crosses he made do not fall within the definition of incendiary devices because he did not create the crosses to produce a destructive effect, but to produce a special form of symbolic speech. Concluding that a destructive burning cross is transformed into a safe symbolic burning cross simply by virtue of the maker’s desire to communicate a message produces an absurd result. Otherwise culpable offenders could escape liability under Minn.Stat. § 609.668 simply by claiming that the explosive or incendiary devices they possessed were made to convey a message. See Murphy, 545 N.W.2d at 916 (reasoning that treating an oral terroristic threat differently from a threat accomplished by someone clever enough to threaten by way of a physical act would produce an absurd result). The wooden crosses here, wrapped in cloth soaked in flammable liquid, were made to burn, had the capacity to damage people and property, and did damage a school lawn. They fall squarely within the statutory definition of an “incendiary device.”

II.

Appellant next challenges the constitutionality of Minn.Stat. § 609.668, subd. 2 as applied to the facts of this case, but specifically declines to contest its facial constitutionality. Minnesota statutes are presumed constitutional, and this court reviews challenges to their constitutionality de novo. State v. Machholz, 574 N.W.2d 415, 419 (Minn.1998). Appellant bears the burden of proving uneonstitutionality beyond a reasonable doubt. State v. Merrill, 450 N.W.2d 318, 321 (Minn.1990).

Cross-burning, a form of symbolic speech, is an expressive activity that the United States Supreme Court has held to be protected under the First Amendment to the United States Constitution. R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Overbroad restrictions of expression are unconstitutional. New York v. Ferber, 458 U.S. 747, 768-69, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982). A statute is overbroad if it is “so drawn as to sweep within its ambit protected speech or expression.” Doran v. Salem Inn, Inc., 422 U.S. 922, 933, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648 (1975). Appellant, however, does not seek to void the entire statute by claiming that Minn. Stat § 609.668 is facially overbroad. See Machholz, 574 N.W.2d at 419 (holding that a facially overbroad statute is void). Rather, appellant contends that the statute unconstitutionally criminalizes his own acts of cross burning, which are protected by the First Amendment.

The United States Supreme Court has observed that

when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. * * * [A] governmental regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

United States v. O’Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968). This court has adopted the O’Brien test. State v. Miner, 556 N.W.2d 578, 585 (Minn.App.1996), review denied (Minn. Feb. 26, 1997). Applying the O’Brien test to the facts of this case leads us to conclude that Minn.Stat. § 609.668, subd. 2 is constitutional as applied to appellant.

First, the legislature has the “un-. questioned authority” to declare which acts or conduct are so adverse to the public welfare as to constitute a crime. State v. Mathiasen, 273 Minn. 372, 378, 141 N.W.2d 805, 810 (1966). The legislature clearly had the authority to enact Minn. Stat. § 609.668, subd. 2 to prohibit certain classes of persons (including minors) from possessing incendiary devices.

Second, public safety is an important and substantial government interest. The Minnesota Supreme Court has observed that

[t]he interest in public safety is * * * fundamental, and serves as a rationale for the very formation of our state government. Article I, section 1 of the Minnesota Bill of Rights establishes, “Government is instituted for the security, benefit and protection of the people

State v. Hershberger, 462 N.W.2d 393, 398 (Minn.1990) (citation omitted). The statute challenged here, Minn.Stat. § 609.668, subd. 2, appears in Minnesota’s criminal code, enacted to “protect the public safety and welfare.” Minn.Stat. § 609.01, subd. 1(1) (1998). Regulation of explosive and incendiary devices furthers the state’s interest in public safety. See Minn.Stat. § 609.668.

Third, Minn.Stat. § 609.668, subd. 2 does not directly regulate appellant’s cross-burning as a method of expression. In R.A.V. v. City of St. Paul, 505 U.S. at 385, 112 S.Ct. at 2544, the United States Supreme Court explained that

nonverbal expressive activity can be banned because of the action it entails but not because of the ideas it expresses — so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.

Id. Like the Supreme Court’s example of an ordinance against outdoor fires, the statute here regulates explosive or incendiary devices without regard to ideas expressed.

Finally, the statute’s restriction on appellant’s free-expression rights is incidental. Appellant’s cross-burning conduct falls within the Minn.Stat. § 609.668’s prohibitions only because he is, at age 14, a minor. See Minn.Stat. § 645.45, subd. 14 (1998) (Minnesota’s age of majority is 18 years of age). The statute challenged here does not prohibit everyone from burning crosses. Instead, statute is narrowly tailored to apply to carefully enumerated classes of persons, including minors, who may endanger others, or be endangered, by possessing an explosive or incendiary device. See Minn.Stat. § 609.668, subd. 2(a)-(f).

Because of their youth and inexperience, minors are subject to different rules with respect to contractual responsibilities, criminal law, voter rights, and driver’s license requirements. Backdahl v. Commissioner of Pub. Safety, 479 N.W.2d 89, 91 (Minn.App.1992), review denied (Minn. Feb. 27, 1993). This is no less true when the First Amendment is implicated. See R.A.V., 505 U.S. at 389, 112 S.Ct. at 2546 (“A state could, for example, permit all obscene live performances except those involving minors.”). This court may presume that by extending Minn.Stat. § 609.668, subd. 2 to minors, the legislature intended to protect minors from the obvious potential danger that comes with handling explosive or incendiary devices. See Kasdan v. Berney, 587 N.W.2d 319, 322 (Minn.App.1999) (language of a statute free from ambiguity may be presumed to manifest legislative intent).

We are able to separate appellant’s speech from his unprotected conduct. Appellant could have been adjudicated delinquent under Minn.Stat. § 609.668, subd. 2 for igniting a wooden rectangle that, as far as we know, would convey no special message. See Machholz, 574 N.W.2d at 421 (shouting words while riding through crowd on horseback were linked, and because prosecution under a harassment statute would not have been possible had the defendant not said a word, the harassment statute was unconstitutional as applied). In R.A.V., the United States Supreme Court stated:

Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul [the governmental body that enacted the challenged ordinance] has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.

R.A.V., 505 U.S. at 396, 112 S.Ct. at 2549. Minn.Stat. § 609.668 is an example of Minnesota’s legitimate and “sufficient means” of preventing behavior that endangers its citizens without offending First Amendment freedoms.

We hold that appellant’s acts of igniting pieces of wood tied with rags soaked in flammable liquid fall within the prohibitions of Minn. Stat. § 609.668, subd. 2 notwithstanding any message he wished to convey. Appellant’s acts are not constitutionally protected because his First Amendment freedoms are only incidentally regulated by Minn.Stat. § 609.668.

DECISION

Burning crosses are incendiary devices within the meaning of Minn.Stat. § 609.668, subd. 1(b) (1998). Minn.Stat. § 609.668, subd. 2 (1998), which prohibits minors from possessing incendiary devices, is not unconstitutionally overbroad as applied to appellant, a minor.

Affirmed.


author: G. BARRY ANDERSON, Judge

text:
    Kirt Fitzgerald GROE, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C4-99-1665.
    Court of Appeals of Minnesota.
    June 27, 2000.
    Review Denied Sept. 13, 2000.

      Richard Lee Swanson, Chaska, MN (for appellant).
    Mike Hatch, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, Jeffrey F. Lebowski, Special Assistant, St. Paul, MN (for respondent).
    Considered and decided by CRIPPEN, Presiding Judge, AMUNDSON, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge

Appellant’s driver’s license was revoked pursuant to Minn.Stat. § 169.123, subd. 4(e) (1998) and the district court sustained the revocation. Appellant challenges the district court’s decision, arguing that the police did not have probable cause to believe he was driving under the influence of alcohol, and that his right to counsel was not vindicated. Because (1) the police had probable cause to invoke the implied consent law and (2) it was impossible for appellant to invoke his right to counsel, we affirm.

FACTS

On March 10, 1999, appellant Kirt Groe was seriously injured in a two-car accident. Appellant failed to yield before turning left in front of oncoming traffic. When Corporal Buck of the Minnesota State Patrol arrived at the scene he was unable to speak to appellant because paramedics were attending to his injuries and appellant was unresponsive. Buck concluded that appellant was impaired in some way because he had made such an elementary driving error. Buck requested that dispatch send an officer to the hospital to question appellant regarding possible alcohol consumption.

Lieutenant Raiter went to the hospital to investigate the accident. A paramedic and an attending physician told Raiter that appellant smelled of alcohol. Appellant was unconscious and, therefore, Raiter could not ask appellant if he had been drinking. While appellant was unconscious, Raiter instructed a nurse to obtain a blood sample but this attempt was unsuccessful because the needle broke. Raiter left the hospital to get another test kit and when he returned appellant had regained consciousness.

Appellant was in serious condition when he regained consciousness; he had intravenous tubes in both arms, was fitted with a neck brace, and had at least three medical personnel attending him at all times; a helicopter was en route to transport him to another hospital. Raiter asked appellant if he had been drinking, and appellant answered yes. Raiter then read appellant the implied consent advisory. Raiter told appellant that it was impossible for him to consult with counsel about taking the test and appellant agreed to take the test without speaking to counsel. The test results revealed that appellant’s alcohol concentration was in excess of .10, the legal limit. Appellant was charged with gross misdemeanor driving while intoxicated (DWI) and his driver’s license was revoked.

ISSUES

I. Did police have probable cause to give appellant the implied consent advisory?

II. Did police violate appellant’s limited right to counsel?

ANALYSIS

I.

Appellant asserts that the district court wrongly concluded that the police had probable cause to invoke the implied consent law. A determination of probable cause is a mixed question of fact and of law. Clow v. Commissioner of Pub. Safety, 362 N.W.2d 360, 363 (Minn.App. 1985), review denied (Minn. Apr. 26, 1985). After the facts are determined, this court must apply the law to determine if probable cause existed. Id. This court does not review probable cause determinations de novo, instead, we determine if the police officer “had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law.” State v. Olson, 342 N.W.2d 638, 641 (Minn.App.1984) (citing Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). A reviewing court must consider the totality of the circumstances when determining probable cause. Eggersgluss v. Commissioner of Pub. Safety, 393 N.W.2d 183, 185 (Minn.1986).

To invoke the implied consent law, a police officer must have probable cause to believe the person was driving in violation of Minn.Stat. § 169.121, and one of the following conditions exists:

(1) the person has been lawfully placed under arrest for violation of section 169.121, or an ordinance in conformity with it;
(2) the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death;
(3) the person has refused to take the screening test provided for by section 169.121, subdivision 6; or
(4) the screening test was administered and indicated an alcohol concentration of 0.10 or more. .

Minn.Stat. § 169.123, subd. 2(a) (1998). It is a crime to drive a motor vehicle while under the influence of alcohol. Minn.Stat. § 169.121, subd.. 1(a) (1998). Appellant does not dispute that he was involved in a motor vehicle accident resulting in property damage, but does dispute, the existence of probable cause to believe that he was driving in violation of section 169.121 subd. 1(a).

“Probable cause exists when all the facts and circumstances would lead a cautious person to believe that the driver was under the influence.” Davis v. Commissioner of Pub. Safety, 509 N.W.2d 380, 392 (Minn.App.1993) (circumstances consisting of probable cause included: suspect smelled of alcohol, had bloodshot and glossy eyes, had slurred speech, admitted to drinking and failed the field sobriety tests), aff'd, 517 N.W.2d 901 (Minn.1994); see also Heuton v. Commissioner of Pub. Safety, 541 N.W.2d 361, 363 (Minn.App. 1995) (under certain circumstances an officer may need only “one objective indication of intoxication to constitute probable cause to believe a person is under the influence”). In addition, the collective knowledge of all the police officers is imputed to the arresting officer for the purpose of determining if the requisite probable cause exists for an arrest. State v. Conaway, 319 N.W.2d 35, 40 (Minn.1982).

While at the accident scene Buck concluded that appellant might have been drinking based on the substantial damage to the vehicles and the elementary nature of the driving mistake. Based on these factors, Buck requested that an officer go to the hospital to investigate whether appellant had been drinking. ■ At the hospital, Ratter, the investigating officer, was unable to assess appellant’s condition because appellant was unconscious and medical personnel were attending to his injuries. Ratter learned from a paramedic and an attending doctor that appellant smelled of alcohol. Statements by medical personnel may be used to assess probable cause. See Heuton, 541 N.W.2d at 363 (probable cause found when officer relied on paramedic’s statement that he detected alcohol on the driver’s breath and there was no apparent reason for such a serious one car accident absent driver impairment). Additionally, when appellant regained consciousness, Raiter asked appellant if he had been drinking and appellant answered “yes.” When a driver admits to drinking, the admission may support probable cause to believe that the driver is under the influence. Foster v. Commissioner of Pub. Safety, 381 N.W.2d 512, 515 (Minn.App.1986). It was after this admission that Raiter read appellant the implied consent advisory and successfully obtained a blood sample.

It is clear that Raiter had probable cause to invoke the implied consent advisory.

II.

Appellant also claims that his right to counsel was violated because he was not able to vindicate his right. The determination of whether an officer vindicated a driver’s right to counsel is a mixed question of law and fact. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn.App.1992), review denied (Minn. Oct. 20, 1992). Once the facts are established, their significance becomes a question of law for de novo review. Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn.App.1996), review denied (Minn. Aug. 6, 1996). An individual has a limited right, upon request, to obtain legal advice before deciding whether to submit to chemical testing, provided the consultation does not unreasonably delay administration of the test. Minn.Stat. § 169.123, subd. 2(b)(4) (1998); Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn.1991). A driver must be informed of this right, and a police officer must assist in its vindication. Id. But this limited right is “contingent upon the driver’s physical ability to consult with counsel and the reasonably timely exercise of this ability.” State, Dep’t of Pub. Safety v. Wiehle, 287 N.W.2d 416, 419 (1979).

As a general rule, the right to counsel is vindicated if the driver “is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.” Linde v. Commissioner of Pub. Safety, 586 N.W.2d 807, 809 (Minn.App.1998) (quotation omitted). But, “[i]f counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.” Friedman, 473 N.W.2d at 835 (quoting with approval Prideaux v. State, Dep’t of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)). Whether a person’s right to counsel has been vindicated is determined by the totality of the circumstances, including the evanescent nature of alcohol. Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 502 (Minn.App.1992).

The parties do not dispute that Raiter read appellant the implied consent advisory and specifically told appellant that he had the right to consult an attorney. While it is unclear whether appellant asserted his right to consult an attorney, the district court concluded this fact was irrelevant because it was impossible for appellant to speak to an attorney under the prevailing conditions. Appellant asserts that the record does not support a finding of impossibility and that Raiter improperly convinced appellant to take the test without the assistance of an attorney. Test results may be disregarded if an individual has been coerced into making the decision to submit to chemical testing without the assistance of counsel. Kuhn, 488 N.W.2d at 840.

There is little Minnesota case law concerning physical impossibility as a barrier to invoking the right to counsel. In this case, appellant was not offered a telephone and was required to make a decision without the assistance of counsel. The district court found that the severity of appellant’s injuries and the constant medical attention appellant was receiving made it physically impossible for appellant to use a telephone. The district court found that: (1) appellant had intravenous tubes in both arms; (2) appellant was strapped to a backboard awaiting helicopter transport; (3) at least three medical personnel were attending to appellant at all times; (4) a helicopter was en route to the hospital; and (5) that medical staff indicated that they would not interrupt treatment to permit appellant to use the phone. All but one of these findings of facts are directly supported by the record.

Raiter properly administered the implied consent advisory, and specifically notified appellant of his right to speak to an attorney. Ratter’s statement to appellant that it would be impossible for him to speak to an attorney is supported by the record and was not made to mislead appellant. Under these circumstances we conclude that the evidence supports the district court’s finding that it was physically impossible for appellant to use a telephone to contact counsel.

In addition, the right to contact counsel is limited by the evanescent nature of aleo-hol. Delmore v. Commissioner of Pub. Safety, 499 N.W.2d, 839, 841, (Minn.App.1993). Here a helicopter was en route and the medical personnel were in the process of preparing appellant for helicopter transport. If the implied consent blood test was not taken before the helicopter arrived, the next possible opportunity, if at all, would not occur until appellant arrived at a hospital in the metropolitan area.

We hold that, due to appellant’s physical inability to use the telephone before leaving the Glencoe hospital and the evanescent nature of alcohol, the district court did not err in concluding appellant’s right to counsel was not violated.

DECISION

The right to counsel of a driver prior to taking a blood test pursuant to implied consent procedures is not violated if the driver’s need for medical treatment makes it impossible for the driver to use the telephone.

Affirmed.

      . There are two unpublished Minnesota cases that deal with this issue. See Arias v. Com

        missioner of Pub. Safety, No. C8-95-2275, 1996 WL 208450 (Minn.App. Apr.30, 1996) (unpublished opinion) (an officer did not violate a driver's right to counsel by failing to interrupt medical treatment in a hospital emergency room to provide access to a telephone when medical personnel advised that they could not delay treatment while the driver used the telephone); but see State v. Day, No. C7-98-1682, 1999 WL 243398 (Minn. App. Apr.27, 1999) (unpublished opinion) (where an officer did not read the statement regarding right to consult an attorney because the doctor was in a hurry to take the driver to another part of the hospital for further testing. This court held that the individual’s rights were not vindicated because the officer should have informed the driver of his constitutional right and told him that he needed to make a quick decision).

      . The district court’s finding that "medical staff indicated that they would not interrupt treatment to permit the [appellant] to use the phone” seems to have been inferred from Raiter’s testimony. Raiter did not testify that medical staff said they would not stop treatment nor did any medical personnel testify to that effect. Although the district court’s choice of words, "medical staff indicated," appears to be in error, the finding itself does not appear to be clearly erroneous. District courts may make reasonable inferences from the facts. State v. Lee, 585 N.W.2d 378, 383-84 (Minn.1998). The court’s finding that medical staff would not stop treatment to allow appellant to use the phone is a reasonable inference based on the severity of appellant’s injuries and the continuous medical treatment received by appellant.


author: AMUNDSON, Judge

text:
    STATE of Minnesota, Respondent, v. William GLOWACKI, Appellant.
    No. C8-99-1507.
    Court of Appeals of Minnesota.
    July 18, 2000.
    Review Granted Sept. 27, 2000.
    Mike Hatch, Attorney General, St. Paul, and Peter A. MacMillan, Rondoni, MacMil-lan & Schneider, Ltd., Minneapolis, for respondent.
    Deborah K. Ellis, St. Paul, for appellant.

      Considered and decided by CRIPPEN, Presiding Judge, AMUNDSON, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

AMUNDSON, Judge

Appellant challenges his convictions of domestic assault, fifth-degree assault, and disorderly conduct, arguing that the district court erred in instructing the jury that appellant had a duty to avoid the danger, even in his own home. We reverse and remand.

FACTS

This appeal arises from an incident occurring on April 8, 1999, between appellant William Glowacki and P.A. When they met, P.A. resided in Alabama. They began a long-distance romantic relationship, visited each other, communicated frequently by telephone, and began talking of living together and marriage. In March 1999, P.A. began moving her belongings to Glowacki’s Minnesota residence and quit her job, intending to relocate to Minnesota permanently. On April 1, 1999, P.A. traveled to Minnesota to stay with Glowacki with plans to return to Alabama only briefly.

On April 8, 1999, the two were at Glo-wacki’s home when they began arguing. The parties presented conflicting testimony about the events that evening. P.A. testified that Glowacki followed her to the den in the basement of the residence, and that he kicked her, placed his hands around her throat, and threatened to kill her. P.A. eventually ran upstairs and called 911. P.A. suffered bruises, cuts, and other injuries. When the police arrived, they did not note any injury to Glowacki, nor did he report to the responding officers that he had been assaulted or injured by P.A.

Glowacki testified that it was P.A. who followed him downstairs to the den, where she yelled at him and hit his shoulder. To prevent P.A. from following him upstairs, Glowacki testified that he put his arm out, which caused her to fall to the floor. He then testified that P.A. told him that she was going to “destroy him” and called 911.

At trial, Glowacki asserted the legal excuse of self-defense, which applied to the charges of domestic assault and fifth-degree assault. The district court instructed the jury that “[t]he legal excuse of self-defense * * * includes the duty to avoid the danger if reasonably possible.” The jury convicted Glowacki of fifth-degree domestic assault, fifth-degree assault, and disorderly conduct. This appeal followed.

ISSUE

Did the district court err when it instructed the jury that appellant had a duty to retreat from the danger presented in his own home before acting in self-defense?

ANALYSIS

Glowacki contends that the district court erred by incorrectly instructing the jury on the law of self-defense. The district court instructed the jury that

[t]he legal excuse of self-defense is available only to those who act honestly and in good faith and this includes the duty to avoid danger if reasonably possible.

Of course, in reviewing the district court’s charge to the jury, it must be read as a whole. State v. Anderson, 261 Minn. 481, 435, 113 N.W.2d 4, 7 (1962). And while district courts are afforded considerable latitude in choosing the language of jury instructions, an instruction must not materially misstate the law. State v. Pendleton, 567 N.W.2d 265, 268 (Minn.1997).

Glowacki argues that his conduct involves defense of a dwelling, and that is set out in State v. Carothers, 594 N.W.2d 897 (Minn.1999). In Carothers, the supreme court concluded that the defense of dwelling defense does not include a duty to retreat. Id. at 904. In so holding, the court noted that it would be logically inconsistent to insist that persons may stand their ground when protecting home or property, but that if they are protecting themselves in their own homes, they must retreat. See id. at 903 (stating that “the law clearly values life above property”). But this is not a defense-of-dwelling case. The defense of dwelling defense is not available between co-residents, but only for those who use force against an intruder. State v. Hare, 575 N.W.2d 828, 832 (Minn.1998).

Instead, this case involves self-defense between co-residents of the same dwelling. Even if Glowacki and P.A. had decided to terminate their relationship, they were still sharing a residence and P.A. had been living there for eight days, with plans to move in permanently. While in assessing a self-defense claim, the jury is afforded the discretion to decide whether it was more or less reasonable for a person to “advance towards or retreat from a danger within his or her home,” Carothers, 594 N.W.2d at 904, an instruction on a duty to reasonably retreat from the danger should not be given to a jury on a self-defense claim occurring between co-residents. Accordingly, the district court’s instruction was erroneous.

Did Glowacki receive a fair trial in the face of this misstatement of the law? A defendant should be given a new trial if we cannot conclude, beyond a reasonable doubt, that the district court’s erroneous jury instruction had no significant impact on the jury. State v. Olson, 482 N.W.2d 212, 216 (Minn.1992). Based on the instruction given here, the jury could have concluded that Glowacki was obligated to leave his own residence to avoid the alleged altercation with P.A. That error is significant and entitles Glowacki to a new trial.

The state suggests that because Glowacki failed to challenge the jury instruction at trial, he waived his right to raise the issue on appeal. But even where a defendant does not object to the instructions submitted to the jury, the reviewing court may “reverse if the instructions were misleading or confusing on fundamental points of law * * State v. Butler, 295 N.W.2d 658, 659 (Minn.1980).

DECISION

Because we conclude the district court’s jury instruction that the legal excuse of self-defense includes a duty to avoid the danger if reasonably possible misstated the law, we reverse the appellant’s convictions of domestic assault and fifth-degree assault and remand for a new trial. The conviction of disorderly conduct, to which the legal excuse of self-defense does not apply, is unaffected by this decision.

Reversed and remanded.

      . Minn.Stat. § 609.06, subd. 1(4) (1998), provides that defense of dwelling defense is only available to one "resisting a trespass” upon his or her property. Minn.Stat. § 609.605, subd. 1(b)(3) (1998), defines trespasser as one who "trespasses on the premises of another and, without claim of right, refuses to depart from the premises on demand of the lawful possessor.”

      . We note this holding seems contrary to State v. Hennum, 428 N.W.2d 859 (Minn.App.1988), aff'd in part, rev'd. in part, 441 N.W.2d 793 (Minn.1989), to the extent that it addresses whether a duty to retreat is encompassed within the legal excuse of self-defense between co-residents. In Hennum, the district court's jury instructions included an instruction that the excuse of self-defense encompasses a duty to retreat. Id. at 866. This court upheld the decision and the supreme court, without discussion and by footnote, affirmed this court's conclusion that the district court’s jury instructions on the law of self-defense were proper. Id. at 867, aff'd, 441 N.W.2d at 800 n. 5. But the later review of this issue by the supreme court in Carothers inevitably leads to the present holding.


author: DAVIES, Judge.

text:
    Martin SALCIDO-PEREZ, Appellant, v. STATE of Minnesota, Respondent.
    No. C6-99-1750.
    Court of Appeals of Minnesota.
    July 18, 2000.
    Review Denied Sept. 13, 2000.

      Daniel S. Adkins, Richard A. Sand, Sand & Associates, St. Paul, for appellant.
    Mike Hatch, Attorney General, St. Paul; and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, St. Paul, for respondent.
    Considered and decided by DAVIES, Presiding Judge, HALBROOKS, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

DAVIES, Judge.

Police executed a search warrant of residential premises and discovered more than eight pounds of marijuana in a detached garage and a loaded pistol in the house. On these stipulated facts, the district court found appellant guilty of fifth-degree possession of a controlled substance (possession with intent to sell) and sentenced him under the firearm-enhancement statute. Appellant challenges his sentence, claiming the firearm-enhancement statute does not apply. We affirm.

FACTS

In February 1999, a search warrant was issued for the following premises: “132 E. Jenks Av, St Paul, Minnesota and all appurtenances and curtilage * * * .” The warrant also covered the person of appellant. When officers later observed appellant leaving 132 East Jenks Avenue, they stopped his vehicle and transported him back to the house and executed the search warrant.

In executing the warrant, the officers searched the house and discovered a loaded Colt .357 pistol in a kitchen closet. The officers also searched a detached garage. Inside the garage, the officers discovered approximately eight-and-a-half pounds of marijuana packaged in nine plastic bags. The officers also found two unloaded shotguns lying across the garage rafters. The officers found no shotgun ammunition. The officers searched a Cadillac parked in the garage, finding gun stocks and gun parts in the trunk and about a quarter pound of marijuana in a plastic bag behind the license plate. They also searched a Ford Bronco parked in the yard, finding two unloaded assault rifles in a gun case in the back seat and a scale under the hood.

After appellant was advised of his Miranda rights, he explained that he had lived at that address for approximately one year. He admitted he owned the marijuana. He stated that he did not own any of the firearms, but he did admit that he had placed them where they were found and that he was keeping them for a friend.

On these stipulated facts, under a Loth-enbach stipulation, the district court found appellant guilty of fifth-degree possession of a controlled substance (possession with intent to sell) and imposed the three-year mandatory minimum sentence required by the firearm-enhancement statute, Minn. Stat. § 609.11, subd. 5.

ISSUE

Did the district court err in sentencing appellant under the firearm-enhancement statute?

ANALYSIS

The district court found that the presence of the loaded pistol in the house increased the risk of violence and sentenced appellant under the firearm-enhancement statute, Minn.Stat. § 609.11, subd. 5. On appeal of a sentence, the court may review the sentence imposed to determine whether the sentence is inconsistent with statutory requirements. Minn. R.Crim. P. 28.05, subd. 2.

Minnesota law imposes a three-year mandatory minimum sentence on offenders who “had in possession or used” a firearm at the time of specified offenses; those offenses include appellant’s offense. For purposes of this statute, the term “had in possession” includes both actual possession and constructive possession. State v. Royster, 590 N.W.2d 82, 83-84 (Minn. 1999). An individual has constructive possession of a firearm if he consciously exercises dominion and control over it. State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982).

If the sentence was enhanced based on constructive possession, the next inquiry on appeal is whether the constructive possession “increased the risk of violence.” Royster, 590 N.W.2d at 85. This inquiry includes

examin[ing] all aspects of the firearm in possession to determine whether it was reasonable to assume that its presence increased the risk of violence and to what degree the risk is increased: the nature, type and condition of the firearm, its ownership, whether it was loaded, its ease of accessibility, its proximity to the drugs, why the firearm was present and whether the nature of the predicate offense is frequently or typically accompanied by use of a firearm, to name a few of the considerations.

Id. The district court determines whether the firearm-enhancement requirements have been met by a preponderance of the evidence. State v. Hannam, 601 N.W.2d 454, 456 (Minn.App.1999), review denied (Minn. Dec. 21,1999).

Here, the district court found that the firearm-enhancement statute applied. Based on the presence of the loaded pistol in the house, we agree. There is sufficient evidence to support the finding that appellant had constructive possession of the loaded pistol and that the pistol increased the risk of violence in connection with the drug offense.

Appellant admitted that he had lived in the residence for more than a year. The loaded pistol was discovered in a closet near the kitchen. Although appellant claimed he did not own any of the firearms, he did admit that he placed them where they were discovered. The state produced evidence that appellant had possessed the firearms .for the entire week that he possessed the marijuana. Those facts demonstrate that appellant exercised dominion and control over the firearms at the time he possessed the marijuana. Ap-, pellant, thus, had constructive possession of the firearms at the time of his criminal offense.

The loaded pistol also increased the risk of violence related to the drug offense. The pistol was inherently dangerous, easily accessible to appellant,’ and, according to the státe’s evidence; a type of weapon commonly used by drug dealers in the course of their business. Moreover, it was likely that the pistol was purposely ’kept to increase the risk of violence; it is difficult to imagine any purpose, other than violence, for an individual with nearly nine pounds of marijuana — packaged for sale — to keep a loaded pistol in his kitchen. Finally, the record supports that prior drug sales occurred out of the house.

Appellant urges this court to “establish a brighter-line rule for future tribunals” by holding that here the spatial proximity between the firearms, drugs, and defendant was insufficient to permit application of Minn.Stat. § 609.11, subd. 5. The supreme court has, however, adopted a totality-of-circumstances test instead of a proximity test. Royster, 590 N.W.2d at 85. Under Royster, proximity of the firearm to the drugs is only one of several nonexclusive factors. Id. Consequently, proximity is not essential to trigger the statute.

Appellant argues that there was no actual threat of violence in this case because he was apprehended away from his residence and was under police control when the firearms were discovered. But the statute does not require possession of a firearm at the time of arrest; it merely requires possession of a firearm “at the time of the offense.” Minn.Stat. § 609.11, subd. 5. Appellant had constructive possession of the loaded pistol when he possessed the marijuana.. The risk of violence thus produced was enough to trigger the statute, regardless of where appellant was actually arrested.

As the state suggests, a loaded, easily accessible firearm presents a significant threat of violence to police officers and others. The loaded pistol in this case operated as an “insurance policy * * to be used to further the crime if need be.” Royster, 590 N.W.2d at 85 (quoting Hearing on H.F. 2114, Judiciary Conference Comm., Minn. Leg., March 18, 1994 (statement of Richard Hodsdon, Assistant Washington County Attorney)).

The totality of the circumstances supports the district court decision to apply the statute. The evidence was sufficient to impose the mandatory minimum sentence.

DECISION

Appellant constructively possessed a firearm in a manner that significantly increased the risk of violence associated with his controlled-substance crime. Consequently, the district court did not err in imposing the mandatory minimum sentence under Minn.Stat. § 609.11, subd. -5.

Affirmed.

      . Appellant also appealed from denial of a pretrial motion to suppress evidence of the weapons found in the two motor vehicles (one parked in the garage and the other parked in the yard). Because we hold that the presence of the loaded pistol in the kitchen is by itself sufficient to meet the firearm-enhancement statutory 'requirements, we do not address this issue.


author: DORIS O. HUSPENI, Judge.

text:
    Marlette Lea SMITH, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C8-99-2088.
    Court of Appeals of Minnesota.
    July 18, 2000.
    Review Denied Sept. 26, 2000.

      John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant Public Defender, Minneapolis, for appellant.
    Mike Hatch, Attorney General, Robert A. Stanich, Kelly O’Neill Moller, Assistant Attorneys General, St. Paul; and Lisa Borgen, Clay County Attorney, Moorhead, for respondent.
    Considered and decided by DAVIES, Presiding Judge, HALBROOKS, Judge, and HUSPENI, Judge .

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

DORIS O. HUSPENI, Judge.

On appeal from the denial of a petition for postconviction relief, appellant Mar-lette Lea Smith argues that the postcon-viction court erred in concluding that post-conviction relief was unavailable to her. Although we rely on an analysis different from that of the district court, there was no error in denial of postconviction relief, and we affirm.

FACTS

Appellant Marlette Smith was charged by complaint with one count of fifth-degree controlled substance crime in violation of Minn.Stat. § 152.025, subd. 2(1) (1994). Smith filed a pretrial motion to suppress her two statements to police and evidence discovered in her purse during a search of her friend’s residence. Following an omnibus hearing, the district court denied Smith’s motion to suppress her initial statement to police, granted her motion to suppress her second statement to police, and denied her motion to suppress the evidence discovered in her purse.

The parties submitted the case to the district court for a decision based on stipulated facts. The district court found Smith guilty as charged, stayed the adjudication of guilt pursuant to Minn.Stat. § 152.18, subd. 1 (1998), and placed Smith on probation for up to five years. Smith appealed to this court, challenging the district court’s denial of her motion to suppress her initial statement to police and the evidence discovered in her purse. This court dismissed the appeal pursuant to State v. Verschelde, 595 N.W.2d 192 (Minn.1999), and denied Smith’s request to extend discretionary review. State v. Smith, No. C7-98-841 (MinmApp. June 4, 1999), review denied (Minn. Aug. 25,1999).

Smith then filed a petition for postcon-viction relief, requesting that the district court vacate its finding of guilt and adjudicate her not guilty based on the allegedly unconstitutional search of her purse. The district court denied Smith’s petition, stating that “this issue was or could have been raised at the time of [Smith’s] direct appeal.” The district court also addressed Smith’s suppression issue on its merits and determined that there had been no violation of her constitutional rights. This appeal followed.

ISSUE

May a defendant seek postconviction relief from a stay of adjudication entered pursuant to Minn.Stat. § 152.18, subd. 1 (1998)?

ANALYSIS

Statutory interpretation is a question of law subject to de novo review. State v. Coauette, 601 N.W.2d 443, 445 (Minn.App.1999), review denied (Minn. Dec. 14,1999). We conclude that the resolution of this appeal rests on interpretation of Minn.Stat. § 590.01 (Supp.1999); therefore, we need not address either of the bases relied upon by the postconviction court in denying relief.

Postconviction relief is available only to “a person convicted of a crime.” MinmStat. § 590.01, subd. 1. Smith argues that a stay of adjudication should be considered a conviction for purposes of Minn. Stat. § 590.01. We disagree. A stay of adjudication functions in effect as a continuance for dismissal and for purposes of appellate review is treated as a pretrial order. State v. Verschelde, 595 N.W.2d 192, 196 (Minn.1999); State v. Thoma, 569 N.W.2d 205, 208 (Minn.App.), aff'd, 571 N.W.2d 773 (Minn.1997). Therefore] the Verschelde court held that a defendant does not have an appeal as of right from a stay of adjudication. 595 N.W.2d at 196. There is no basis for treating a stay of adjudication differently for purposes of posteonviction relief.

As the Verschelde court explained, a stay of adjudication cannot result in a conviction unless a defendant violates the conditions of probation. Id. at 195-96. If a defendant meets the probation conditions, the defendant is discharged and the case dismissed. Id. at 196; Minn.Stat. § 152.18, subd. 1 (1998).

Smith urges that a stay of adjudication under section 152.18 is, in fact, a conviction, and, therefore, she should be entitled to bring a postconviction petition. We will not strain to place such an interpretation upon the language of this statute, which provides that discharge and dismissal under Minn.Stat. § 152.18, subd. 1, “shall be without court adjudication of guilt” and “shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose.” Minn.Stat. § 152.18, subd. 1. Because Minn.Stat. § 590.01, subd. 1, applies only to “a person convicted of a crime” and because no conviction can result from a stay of adjudication unless a defendant violates her probation conditions, we hold that a defendant may not seek postconviction relief from a stay of adjudication.

We decline to extend discretionary review to Smith’s constitutional claim. Although a stay of adjudication can have collateral consequences in that Minn.Stat. § 152.18, subd. 1, does not permit a person to receive a second stay of adjudication, a stay of adjudication requires a defendant’s consent. Minn.Stat. § 152.18, subd. 1; Verschelde, 595 N.W.2d at 196. We recognize that the Verschelde decision was released after Smith had received her stay of adjudication and that before release of Verschelde there was some uncertainty regarding the right to appeal from a stay of adjudication. See Verschelde, 595 N.W.2d at 196-97 (noting confusion about right to appeal and remanding to allow defendant to withdraw consent to stay of adjudication). Nonetheless, if Smith had concerns about the consequences of the stay of adjudication, she could have declined to accept it. Further, since the dismissal of her first appeal, Smith has not sought to withdraw her consent to the stay of adjudication, and she is not seeking such relief in this appeal. She is, therefore, bound by the stay of adjudication.

DECISION

The postconviction court properly denied Smith’s petition for postconviction relief.

Affirmed.

      . If Smith violates her probation conditions and a conviction is entered against her, she will have the right to raise her constitutional claim in a direct appeal from the conviction. See Verschelde, 595 N.W.2d at 196.


author: HARTEN, Judge.

text:
    STATE of Minnesota, Appellant, v. Keith Bernard REECE, Respondent.
    No. C4-00-684.
    Court of Appeals of Minnesota.
    July 18, 2000.
    Review Granted Aug. 22, 2000.

      Mike Hatch, Attorney General, Henne-pin County Attorney, Paul R. Scoggin, Assistant County Attorney, Minneapolis, MN (for appellant).
    John M. Stuart, Minnesota State Public Defender, Susan K. Maki, Assistant State Public Defender, Minneapolis, MN (for respondent).
    Considered and decided by SHUMAKER, Presiding Judge, SCHUMACHER, Judge, and HARTEN, Judge.
   OPINION

HARTEN, Judge.

The state challenges respondent’s sentence, arguing that the district court did not have discretion to overlook two of respondent’s four criminal history points. We reverse and remand for resentencing.

FACTS

On October 11, 1999, a jury found respondent Keith Bernard Reece guilty of third-degree criminal sexual conduct for forcing his girlfriend’s niece to engage in nonconsensual sexual penetration, a severity level VII offense. The pre-sentence investigation revealed that respondent was still on parole for a 1980' murder conviction in Texas and had a 1991 conviction for second-degree assault. Together, these facts gave him a criminal history score of four. The presumptive sentence for third-degree criminal sexual conduct based on a severity level VII offense and a criminal history .score of four is 88-months’ imprisonment.

The district court, however, decided that '“four criminal history points * * * overstate * * * [respondent’s] criminal history,” that “an 88-month sentence is more than is necessary to accomplish the purposes that I think sentencing needs to accomplish in this case,” and that “two points rather than four would be an appropriate way to take [his] prior convictions into account.” The district court sentenced respondent to 68 months, as if his criminal history score were two instead of four. The state challenges respondent’s sentence.

ISSUE

Did the district- court have discretion to overlook two of respondent’s four criminal history points?

ANALYSIS

The purposes of the sentencing guidelines will not be served if the trial courts generally fail to apply the presumptive sentences found in the guidelines. In fact, a sentencing court has no discretion to depart from the sentencing guidelines únless aggravating or mitigating factors are present.

State v. Spain, 590 N.W.2d 85, 88 (Minn.1999) (citations omitted).

Here, the district court found neither aggravating nor mitigating factors; it simply disregarded two criminal history points. But a district court cannot ignore criminal history points. See State v. Schmit, 601 N.W.2d 896, 899 (Minn.1999) (“nothing in the sentencing guidelines or in any of our previous cases * * * would permit the district court * * * to simply ignore [a defendant’s] criminal history score”).

Respondent argues that courts should be able to conduct a “qualitative analysis” of a defendant’s prior criminal history. Such an analysis, however, is prohibited by existing caselaw and is contrary to the purpose of the sentencing guidelines. See, e.g., Schmit, 601 N.W.2d at 899; Spain, 590 N.W.2d at 88.

DECISION

The sentencing court erred in disregarding two of respondent’s four criminal history points.

Reversed and remanded.

      . The district court denied both the state's motion for an upward departure and respondent’s motion for a downward departure.