The Free Press, Mankato, MN

August 30, 2013

Felony DWI conviction stands for St. Peter man

October hearing set to consider remainder of jail sentence

By Dan Nienaber
dnienaber@mankatofreepress.com

---- — ST. PETER — A felony drunken-driving conviction will stand and a 30-year-old St. Peter man will have to serve the second half of his sentence after the Minnesota Court of Appeals ruled against his claim that a police officer never had a reason to stop him for a traffic violation two years ago.

A three-year prison sentence was stayed for Lucas Christopher Hollerich in July 2012 when he was sentenced by District Court Judge Todd Westphal for a felony drunken-driving conviction. Hollerich had entered what's known as a "Lothenbach plea" that allowed him, and prosecutors, to avoid a trial while he challenged an earlier ruling by Westphal that denied a request to dismiss the charge.

Hollerich had been driving in a downtown St. Peter alley that runs parallel to Front Street and Minnesota Avenue when he was stopped by a police officer as he turned on to Broadway Avenue. Officer Thomas Winsell reported he made the stop because Hollerich hadn't stopped before turning.

Winsell also said he could smell alcohol on Hollerich's breath so he asked him to complete sobriety tests. A preliminary breath test showed Hollerich's blood-alcohol concentration was .10, over the legal limit of .08 for driving. Hollerich refused to submit to a more accurate blood, urine or breath test, so he was charged with his fourth drunken-driving offense within 10 years.

Hollerich's attorney asked Westphal to dismiss the case because he said the law only requires drivers to stop before turning out of an alley if there is a sidewalk. When Winsell was asked to testify for the motion to dismiss the case, he didn't specifically say there was a sidewalk and that's why he made the stop.

Westphal denied the motion, saying Winsell's testimony didn't need to include any information about a sidewalk because that was already inferred by the state statute he cited for the stop. And Windsell testified that the stop occurred downtown, where it also can be reasonably inferred that a sidewalk exists.

Hollerich then entered the special plea, to avoid going to trial, and appealed the ruling.

During a sentencing hearing on July 3, 2012, Westphal stayed a prison sentence with the conditions he serve 148 days in jail and pay a $1,000 fine. Hollerich was given credit for the the 58 days he served in jail before the plea, which includes credit for good time. Westphal also ordered another 45 days in jail, with a start date that would be determined after the appeal, and another 45 days of sentence to service in lieu of jail time.

In a ruling released this week, the Court of Appeals upheld the conviction saying it was reasonable for Westphal to infer there was a sidewalk without Winsell specifically saying so during testimony. The ruling also pointed out there was no evidence presented by Hollerich that suggested there wasn't a sidewalk.

A hearing has been set for October to address the remainder of Hollerich's sentence. For the record, there is a sidewalk that runs across the alley where Hollerich failed to stop.