Sentencing Guidelines trainers explain how priors create 'enhanced defenses,' announce DWI scoring change effective Aug. 1, 2026

Devon Terrosier of the Sentencing Guidelines opened a May “Lunch and Learn,” introduced trainer Linda McBrayer and said the short, four‑slide presentation would be followed by an open Q&A; attendees were directed to the meeting link and to sentencing.guidelines@state.mn.us for the slide deck.

McBrayer framed “enhanced defenses” as misdemeanor conduct that becomes a felony because of prior incidents and used felony DWI as the primary example. “It is the responsibility of the charging authority or the prosecutor to determine how they're going to charge it in getting it up to that felony level,” McBrayer said, warning that prosecutors sometimes list many priors (including civil‑type driving offenses) in complaints, which can make it unclear which specific priors were used to enhance a charge.

Why the prosecutor’s choice matters: McBrayer said the enhancement decision affects how probation staff complete worksheets. She told attendees that when misdemeanors or gross misdemeanors are used to enhance a current DWI to a felony, those priors are removed from the worksheet for criminal‑history scoring (they may still be considered when assigning custody). By contrast, felonies used to enhance generally remain eligible to be included on the worksheet.

On civil vs. criminal priors, McBrayer referenced case law and guidance that criminal priors generally must be exhausted before civil‑type offenses are used for enhancement; she cautioned that statutory citations in the transcript were read aloud (a transcription rendered one citation as “169 a 0.2”) and recommended that practitioners consult the practitioner supplement or the statutes for exact references rather than rely on the spoken transcription.

The trainers explained the “subsequent” designation for DWIs: certain prior felony convictions (for example, criminal vehicular operation or vehicular homicide tied to drugs or alcohol, as discussed in the session) can elevate a later DWI and create a subsequent‑offense modifier that affects disposition. McBrayer said examples can be confusing in practice and urged probation staff to use worksheet comment fields to document what a prosecutor told them had been used to enhance a case so that reviewers (including the Sentencing Guidelines office) can verify the worksheet.

Policy change announced: McBrayer told attendees that the commission’s special two‑unit scoring rule for some priors will be eliminated for offenses committed on or after Aug. 1, 2026. “That 2 unit policy is going away. Now it's going away for offenses committed on or after 08/01/2026,” she said, adding that future cases will treat those priors like other offenses (one unit each).

On non‑DWI enhancements, McBrayer said many enhanced defenses in practice are domestic‑violence related; prosecutors may use a mix of misdemeanors through felonies (and, in some situations, juvenile adjudications for felonies) to reach enhancement thresholds. She reiterated that priors used to enhance a specific offense must be left off that offense's worksheet and can reappear on worksheets for other concurrent offenses.

Participants described instances where attorneys persuaded a judge to depart from worksheet recommendations or to remove priors; McBrayer said the guidelines office will expand practitioner resources and a supplement to include clearer statute references and examples. "If the court decides that the felonies are used to enhance and should be removed from the worksheet," she said, probation should document that in the worksheet comments to help future reviewers.

The trainers closed by saying the practitioner supplement and training schedule for the 2026 guidelines year will be posted on the commission’s website and that the Lunch and Learn recordings/materials would be uploaded soon; the next set of trainings was announced for August.

What attendees can do now: when a complaint lists multiple priors that could have been used for enhancement, contact the charging authority for clarification, note the prosecutor’s direction in the worksheet comment field, and, if needed, use the subsequent modifier where applicable. For slide files or follow‑up, McBrayer and Terrosier directed practitioners to sentencing.guidelines@state.mn.us and the Sentencing Guidelines Commission website.

The session ended with thanks and a reminder that additional webinars and materials will be available ahead of the Aug. 1, 2026 change.