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STATE OF MINNESOTA IN COURT OF APPEALS A07-431 State of Minnesota, Respondent, vs. Kelly Marie Rasmussen, Appellant. Filed May 27, 2008 Reversed and remanded Johnson, Judge Otter Tail County District Court File No. K7-06-660 Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and Rolf H. Nycklemoe, Fergus Falls City Attorney, 106 East Washington Avenue, Fergus Falls, MN 56538 (for respondent) Lawrence Hammerling, Chief Appellate Public Defender, Paul J. Maravigli, Assistant Public Defender, Suite 300, 540 Fairview Avenue North, St. Paul, MN 55104 (for appellant) Considered and decided by Ross, Presiding Judge; Lansing, Judge; and Johnson, Judge. SYLLABUS If an appellant successfully argues on appeal that she did not waive the right to a jury trial, she may not obtain appellate review of a pretrial suppression ruling pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).

OPINION JOHNSON, Judge After being stopped by a Fergus Falls police officer, Kelly Marie Rasmussen was charged with third-degree driving while impaired. She moved to suppress evidence arising from the traffic stop, but the district court denied the motion. The case was submitted to the district court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and the district court found Rasmussen guilty. On appeal, Rasmussen argues both that she did not waive her right to a jury trial and that the district court erred when it denied her motion to suppress evidence. We conclude that Rasmussen did not waive her right to a jury trial and, thus, reverse her conviction and remand to the district court. We further conclude, in light of our

resolution concerning her right to a jury trial, that she is not entitled at this time to appellate review of the district court's denial of her motion to suppress evidence. FACTS On April 6, 2006, at approximately 2:00 a.m., Officer Andrew A. Olson of the Fergus Falls Police Department was driving behind a vehicle when he noticed that its high, center-mounted brake light did not work when the driver applied the brakes. Thus, Officer Olson stopped the car, which was being driven by Rasmussen. When Officer Olson approached Rasmussen, he noticed the odor of alcohol coming from inside the car. He also noticed that Rasmussen had bloodshot and watery eyes, and he detected a slight slowness to her speech. Officer Olson administered a preliminary breath test, which revealed an alcohol concentration of 0.144. Rasmussen was arrested and transported to 2

the Otter Tail County Detention Facility, where she was read the implied-consent advisory. She consented to a breath test, which registered an alcohol concentration of 0.14. Rasmussen was charged with two counts of third-degree driving while impaired (DWI), in violation of Minn. Stat.

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