Tuesday, February 14, 2017

Minneapolis DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Galler (Decided February 13, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police cannot justify a vehicle stop based upon evidence found after the stop was made.  Well, duh! I am just shocked that the district court was unaware of the concept!

In Galler, the defendant was arrested for underage drinking and driving and a suppression hearing was held to challenge the police officer's stop of his vehicle. At the hearing, the arresting officer testified that he caught up to appellant's vehicle by traveling on side roads, and that he had been behind appellant for less than one block when he saw the backseat-driver-side passenger open the door of the moving vehicle and jump out. He testified that the passenger ran eight to ten feet before turning around, running back to the vehicle, and getting back inside. The officer testified that the passenger was outside of appellant's vehicle for a few seconds, and that once the passenger got back in the vehicle, the vehicle started moving again. The officer was less than one car length behind appellant's vehicle when he observed the passenger's conduct, and he initially testified that he activated his emergency lights after the passenger got back in the vehicle.

On cross-examination, the officer was shown a portion of Exhibit 1, his squad video from the traffic stop of appellant's vehicle. The officer acknowledged that the squad video shows that he flashed his emergency lights before the backseat passenger exited appellant's vehicle. (Darn pesky video!).

The District Court upheld the traffic stop because it concluded that the passenger could have been fleeing law enforcement when he exited the vehicle, and that the officer's observation of the passenger's conduct provided reasonable articulable suspicion to justify the stop.

On appeal, Minnesota Court of Appeals thankfully reversed the district court, noting:
"A seizure occurs when a reasonable person, in light of all of the surrounding circumstances, would not feel free to leave. Askerooth, 681 N.W.2d at 362; E.D.J., 502 N.W.2d at 781.    An officer cannot use information or observations that occurred after a suspect was seized to justify a seizure.  Diede, 795 N.W.2d at 842.   A suspect is seized when he is ordered to stop, not when he submits to the order. E.D.J., 502 N.W.2d at 783.  'Under certain circumstances, an officer's flashing red lights can be a significant factor in determining whether a seizure has occurred.' State v. Bergerson, 659 N.W.2d 791, 795 (Minn. App. 2003).  This is particularly true when the squad vehicle is positioned in a way as to communicate that the suspect vehicle is the target of the seizure. See id. at 795-96 (concluding that the appellant was seized when the officer activated his emergency lights and the appellant's vehicle was directly in front of the officer's squad vehicle); see also State v. Lopez, 698 N.W.2d 18, 22 (Minn. App. 2005) (concluding that the appellant was seized when the officer activated his emergency lights and partially blocked the forward movement of her vehicle)."

"Based on the officer's testimony and the squad video, the officer did not observe or consider the passenger's conduct prior to activating his emergency lights and seizing appellant. Aside from the unsupported allegation that appellant was speeding, the officer did not point to any other suspicious activity that occurred before the seizure that would have supported a traffic stop. Therefore, the district court erred when it allowed the passenger's conduct to be used to retroactively justify the traffic stop. Diede, 795 N.W.2d at 842. Because appellant was seized before the passenger exited the vehicle, whether or not his conduct was suspicious or indicative of criminal activity is not relevant to this analysis and appellant's motion to suppress should have been granted."

Moral Of The Story:  The ends don't justify the means!

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Tuesday, February 7, 2017

Minnesota DWI Attorney Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Boline (Decided February 6, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that sometimes, the police are entirely too suspicious.

In Boline, a Crystal police officer started following the respondent's car after she left a bar at 1:30 a.m. The officer clocked the speed of the respondent's car as 24 mph in a 35 mph zone.  The respondent used her blinker to indicate a left turn but she then turned off her blinker and continued on her course.  At the next cross street, respondent reactivated her left turn signal and made a left turn.

The officer then saw the respondent pull into a driveway and when he ran a license check, he learned the registered owner lived in a neighboring city.  The officer observed the respondent was driving in the opposite direction the car's registered address.  After circling the neighborhood, the officer saw respondent turning onto northbound West Broadway and resumed following her. Shortly thereafter, West Broadway expanded from one to two northbound lanes. The officer initiated a traffic stop after observing that respondent did not use her blinker upon entering the rightmost lane as the road expanded to two northbound lanes. After speaking with respondent and administering field sobriety tests, the officer formed the opinion that respondent was driving while under the influence of alcohol and placed her under arrest.

The respondent was subsequently charged with 3rd degree dwi and she challenged the validity of the initial stop in the district court.  At the district court hearing, the officer testified that he found the following conduct to be odd or indicative of an attempt to evade police: "(1) driving 11 mph slower than the 35 mph speed limit; (2) making a quick turn and parking in a driveway that was different from the car's registered address; and (3) turning onto northbound West Broadway shortly after traveling on southbound West Broadway. The officer also noted that this conduct occurred around 1:30 a.m., and "there's definitely a possibility that [respondent] was leaving the bar, that potentially [respondent] was under the influence of alcohol, and [was] trying to evade [the officer]."

The District Court granted the respondent's motion to suppress finding that the police officer lacked a reasonable, articulable suspicion to make the initial stop of her vehicle and the State appealed the court's order. 

On appeal, the Minnesota Court of Appeals affirmed the district court noting:

"As noted in State v. Johnson, there are some types of motorist behavior that are not unusual and, standing alone, will not provide justification for an investigatory stop. 444 N.W.2d 824, 826 (Minn. 1989). Here, the only observation pertaining to respondent's driving style was that she was traveling below the speed limit. However, contrary to the state's assertion, it is not odd or unusual to travel below the speed limit when driving in dark conditions. And, unlike the facts of State v. Haataja, the record does not indicate that respondent's slow driving was impeding traffic. 611 N.W.2d 353, 355 (Minn. App. 2000), review denied (Minn. May 16, 2000)."

"The facts of this case are also distinguishable from Johnson, where the defendant exited the highway after making eye contact with a police officer. 444 N.W.2d at 825. Shortly thereafter, the officer saw the defendant reemerge back onto the highway and inferred that he was attempting to avoid the officer. Id. Under those facts, the supreme court determined that the officer had a sufficient basis to stop the driver, reasoning that "if the driver's conduct is such that the officer reasonably infers that the driver is deliberately trying to evade the officer and if, as a result, a reasonable police officer would suspect the driver of criminal activity, then the officer may stop the driver." 

"Here, there is no suggestion that respondent's conduct constituted a deliberate attempt to evade the officer, nor is there any indication that respondent knew the officer was following her. Therefore, the facts of Johnson are distinguishable from the current case, and the officer's suspicion that respondent engaged in furtive conduct to evade a traffic stop was unreasonable."

"Second, the state argues that the district court's suppression order was erroneous because respondent violated Minn. Stat. § 169.19, subd. 4, by failing to use her blinker. In response, respondent argues that she did not violate the statute because she "was simply following the fog line and remaining in the most right lane." 

"The statute at issue in this case provides:
No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in this section, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a highway unless and until the movement can be made with reasonable safety after giving an appropriate signal in the manner hereinafter provided."

"The plain language of Minn. Stat. § 169.19, subd. 4, requires drivers to signal when "rurn[ing] a vehicle from a direct course or moving right or left upon a highway." There is no language requiring drivers to signal in situations where, as here, a road expands to add an additional lane. Respondent did not move right or left upon the highway or cross the broken white line when entering the rightmost lane on West Broadway. Such conduct is readily distinguishable from the typical highway lane change between established lanes, as addressed in Bissonette. See 445 N.W.2d at 844 (noting defendant's failure to signal before several highway lane changes). Nor did she turn her car from a direct course. Put another way, respondent merely continued to follow the fog line and remained in the rightmost lane as the roadway expanded from one to two northbound lanes."

Moral Of The Story: The police are entirely too suspicious; especially late at night!

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Monday, January 30, 2017

Minneapolis DUI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Helgeson (Decided January 30, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the Court of Appeals does not understand their own standard for a what constitutes a "seizure".

In Helgeson, at approximately 3:00 a.m. on March 8, 2015 a Stearns County Deputy Sheriff observed a vehicle with two occupants idling in a St. Cloud apartment complex's parking lot. The vehicle had its headlights on and was parked about five feet off of the roadway. The officer ran the license plates and discovered the vehicle was registered to an address in Sauk Centre. The officer parked his squad vehicle behind the vehicle but did not activate his emergency lights. The officer then approached the vehicle with his flashlight on and identified the driver as the appellant, Arron Helgeson. The officer subsequently determined the appellant was drunk and placed him under arrest for DWI.

The appellant moved in the district court to suppress all the evidence arguing that the officer seized him without a reasonable, articulable suspicion of criminal activity.  The district court denied the motion to suppress and on appeal, the Court of Appeals affirmed the district court, stating:

"Appellant argues that the investigating officer's actions constitute a seizure because the officer 'boxed [his] car in with a marked squad car.' The officer testified that there was room for appellant to back around the officer's squad vehicle. The district court reviewed the investigating officer's testimony, along with squad video from the night of the incident and the assisting officer's report, and determined that appellant was 'not seized when the [investigating officer] initially approached him,' because the officer parked behind appellant's vehicle 'without his emergency lights on and parked ... so that [appellant] could have backed around [the squad vehicle] in order to leave.'

"We agree with the district court. In Minnesota, a seizure occurs when "a reasonable person in the defendant's shoes would have concluded that he or she was not free to leave," given the totality of the circumstances. In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993). Not every interaction between a police officer and a citizen amounts to a seizure. State v. Klamar, 823 N.W.2d 687, 692 (Minn. App. 2012). "Courts generally have held that it does not by itself constitute a seizure for an officer to simply walk up and talk ... to a driver sitting in an already stopped car." Id. (quotation omitted); see, e.g., Mi, 873 N.W.2d at 152. Here, the evidentiary record, including the squad video, supports the district court's finding that the investigating officer pulled up behind appellant's already-parked vehicle but did not position his squad vehicle in such a way as to completely block appellant's exit. Further, the officer did not use any physical force or make an express show of authority toward appellant. Cf State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (noting that an officer's use of physical force or show of authority may constitute a seizure)."

"Because a seizure generally does not occur "when an officer merely walks up to and speaks with a driver sitting in an already-stopped vehicle," ////, 873 N.W.2d at 152, and because the investigating officer did not block appellant's exit or otherwise exert force or authority against him, Cripps, 533 N.W.2d at 391, we conclude that the officer's conduct did not constitute a seizure."

The problem with the Court of Appeals' decision is that it ignores its own standard regarding what constitutes a seizure, to wit: "A seizure occurs when "a reasonable person in the defendant's shoes would have concluded that he or she was not free to leave."  So who in their right mind would feel that they are free to leave when a police officer, in a marked squad, parks behind you and then approaches with his flashlight on? Answer: No one. The Court of Appeals got this one wrong.

MORAL OF THE STORY:  If a police officer parks behind your vehicle but does not turn on his emergency lights, leave immediately.

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DUI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Tuesday, January 17, 2017

Minneapolis DWI Attorney Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Leshoure v. One 2003 GMC Yukon Motor Vehicle (Decided January 17, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you are going to act as your own lawyer, you had better know what you are doing.

In Leshoure, the Appellant's son was arrested for DWI while driving his mother's GMC Yukon.  Because this was the son's third DWI in ten years, the State issued a notice of intent to forfeit the vehicle. Appellant Leshoure challenged the forfeiture in conciliation court arguing that the vehicle belonged to her and that she was an innocent owner of the vehicle.

After a conciliation court trial, the conciliation court dismissed Leshoure's challenge to the forfeiture action by ruling that she was not the owner of the vehicle. The district court determined that the state satisfied its burden in overcoming the presumption created by Leshoure's submission of title and insurance paperwork to prove ownership of the vehicle. The conciliation court stayed judgment to give Leshoure time to appeal to a district court.

On January 19, 2016, Leshoure improperly filed her demand for removal with the district court. A deficiency notice was sent to Leshoure ten days after her filing because she failed to serve her pleading document on the state. Leshoure never responded to the deficiency notice, nor did she properly serve the state. The state alleges that it only became aware of Leshoure's appeal when it received a copy of the deficiency notice sent by the district court. The state subsequently filed a motion to dismiss for lack of personal jurisdiction.  

The district court granted the state's motion to dismiss and on appeal Leshoure argued that the district court was wrong to dismiss her claim for lack of jurisdiction.  The Minnesota Court of Appeals did not think much of her claim, stating:

"Here it is undisputed that the state was not properly served. Leshoure at no point attempted to serve her statement of claims and summons on the state. Even though Leshoure appeared pro se, she is held to the same standards as an attorney. See Minn. R. Gen. Pract. 1.04 ("Whenever these rules require that an act be done by a lawyer, the same duty is required of a party appearing pro se"). Ultimately, when service of process is insufficient and there has been no waiver of service, the district court must dismiss the action. See Uthe v. Baker, 629 N.W.2d 121, 123 (Minn. App. 2001) (citation omitted). Therefore, because the state was never properly served and did not waive service of process, the district court appropriately dismissed Leshoure's removal action for lack of personal jurisdiction."

Moral of the Story:  There is nothing more expensive than a cheap lawyer.

If you or a loved one have been arrested for a Minnesota DWI, or are facing the forfeiture of your vehicle feel free to contact Minneapolis DWI Forfeiture Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

In June of 2016 I came up with a new DWI forfeiture defense based upon a challenge to the constitutionality of the Minnesota DWI forfeiture statute.  Since June, I have won back three cars and I have not lost any forfeiture cases since implementing this new DWI forfeiture defense. So if the state is trying to forfeit your vehicle, give me a call. I promise I can help!
F.T. Sessoms
(612) 344-1505

Tuesday, January 3, 2017

Minneapolis DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Kjono, (Decided January 3, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that in a DWI case, a prosecutor can commit blatant misconduct but still get away with it.

In Kjono, the defendant drove away from the Z103 Bar & Grill in Fergus Falls in a manner that left police suspecting that he was intoxicated. He took them on a high-speed chase that ended when he crashed into a ditch. Kjono fled through brush and across a frozen lake, where he happened upon an empty rural house. He found the door unlocked and went inside. Then he made his way into the home's attached garage and saw a Chevy Impala. The keys were in the ignition, and Kjono took the car.

Kjono drove back to Fergus Falls and parked on a street. He walked to a gas station and hitched a ride back to the bar. Eventually, from a hotel connected to the bar, he called his parents and told them his car had been stolen. But Kjono's parents had already been contacted by the police. They urged him to stay put until police arrived. He did. He cleaned up in a hotel restroom, and Officer Brooks Johnson found him at about 3:00 a.m.

Officer Johnson administered field sobriety tests, all of which corroborated his suspicion that Kjono was intoxicated. Kjono agreed to a breath test. Four hours had passed since the chase began. The breath test indicated that Kjono's alcohol content was 0.10.

The state charged Kjono with seven counts: second-degree burglary of a dwelling; theft of a motor vehicle; fleeing a peace officer in a motor vehicle; second-degree impaired driving (under the influence of alcohol); second-degree impaired driving (0.08 within two hours); driving in violation of a restricted driver's license; and fleeing a police officer by means other than a motor vehicle.

Kjono discharged his appointed attorney and proceeded to trial representing himself. He stipulated to having two prior drunk-driving convictions. The district court explained to him that, by so stipulating, the state would not be allowed to discuss the prior convictions at trial.

But at trial, the prosecutor had the following exchange with Officer Johnson:

Q: Officer Johnson, did you at some point run a driving record of the defendant? A: Yes, I did.
Q: What ~ what [did] you learn when you [ran] the defendant's driving record?
A: That he had previous DWI convictions and that he also had a no use of alcohol or drugs restriction on his driver's license.

After the officer's testimony concluded, the court called the
parties to the bench to discuss the inappropriate prior-drunk-driving testimony. With the parties' consent, the court gave the jury the following instruction:

"Folks, you did hear some testimony regarding ... the defendant's driving record. You should disregard this testimony and rely solely upon the information about the defendant's driving records which I will give you at the conclusion of the trial."

In State v. Berkleman, the Minnesota Supreme Court said that when a person is on trial for a DWI and they have a prior DWI offense that is being used to enhance the current charge to a gross misdemeanor or felony, then the person charged ALWAYS has the right to stipulate to the prior offense to remove it from the jury's consideration.  The Supreme Court came up with this procedure because it recognized that a jury might impermissibly use its knowledge of the prior DWI in deciding whether the defendant had driven under the influence in the current offense.

So if a defendant agrees to the existence of a prior offense, the prior is no longer an element which the jury needs to decide and its admission can only be prejudicial to the  jury's consideration of the current offense.

Alas, in this case, the pro-se defendant did not object to the admission of the prior and Minnesota Court of Appeals held that the admission was harmless error.  Or as stated by the Court:

"Kjono claims that the state committed prosecutorial misconduct by failing to prepare Officer Johnson as a witness, resulting in the officer's testifying about Kjono's prior drunk driving convictions. Kjono did not object at the time of the officer's testimony, and we review claims of unobjected-to prosecutorial misconduct under a modified plain-error test. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Kjono can prevail on appeal only if he shows that the prosecutor committed error and that the error was plain. See id. If he succeeds, the burden shifts to the state to demonstrate that the misconduct did not affect Kjono's substantial rights. See id. If the state fails to carry this burden, we still will reverse only if a new trial is necessary to ensure the fairness, integrity, and public reputation of judicial proceedings. See id."

"We can assume, without deciding, that the state committed plain error here. The state easily carries its burden to show that there is no reasonable likelihood that the misconduct had any significant effect on the verdict. See Ramey, 721 N.W.2d at 302. First, the officer's reference to the prior convictions was isolated and brief. Second, the district court conferred with the parties and, with their consent, gave the jury a cautionary instruction to disregard the officer's testimony about Kjono's driving record and instead to rely on the driving record provided during the final instructions. We presume that jurors follow the district court's instructions. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998)."

"And third, the evidence of Kjono's guilt for driving while impaired was overwhelming. Kjono's only defense to that charge was that he did not "feel" drunk enough to register a 0.10 breath test after his arrest. We do not suppose that a jury will be heavily persuaded to reject a scientific test of a person's intoxication level after hearing from the accused drunk driver that he did not "feel" as intoxicated as the test indicated he was. And Kjono admitted to almost everything else: drinking at home, drinking at the bar, leading police on a high-speed chase, crashing his car, fleeing police on foot, stumbling while he fled, entering someone else's home, taking a car from a garage, and driving back to town and returning to the bar. Jurors also heard from Officer Johnson about Kjono's red, bloodshot eyes, his failed sobriety tests, and Kjono's alcoholic odor. And they learned that the metabolic rate of alcohol in the human body would suggest that Kjono's alcohol level was more likely closer to 0.16 during the chase and 0.13 during his drive back to town. Kjono's only witness, his father, gave conflicting testimony about how Kjono sounded on the phone, saying both, "He sure sounds sober," and, "By his voice he's been drinking too much."

"We have no doubt that the overwhelming evidence that Kjono drove drunk the night of his arrest, not the brief testimony that Kjono drove drunk previously, convinced the jury to find Kjono guilty of driving while impaired."

Moral Of The Story: If you choose to represent yourself, you have a fool for a client!

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Tuesday, December 27, 2016

Minnesota DUI Attorney Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Johnson v. Commissioner of Public Safety (Decided December 27, 2016, Minnesota Court of Appeals, Published), which stands for the proposition that the limited time period to file a challenge to a license revocation does not begin to run until the driver is actually served with the revocation notice.

In Johnson, the Appellant was arrested for DWI on April 23, 2015.  The police asked Mr. Johnson to submit to a blood or urine sample and he refused both tests.  The arresting officer then told Mr Johnson that his license would be revoked Mr. Johnson was asked to sign an electronic copy of the notice and order of revocation.  Mr. Johnson refused to provide an electronic copy of his signature.  The officer then left the room to get a physical copy of the revocation notice from the printer. When the officer returned to the room, Mr. Johnson was having a medical episode, lying on the ground and screaming of stomach pain. The officer asked dispatch to send an ambulance.

The officer never handed the notice and order of revocation to Mr. Johnson.  The officer testified he believed he placed the notice and order of revocation with Johnson's personal belongings and gave them to paramedics to be brought to the hospital with Johnson. The officer testified that he "can't remember exactly what happened with the paperwork" and was "not 100 percent" certain that it was delivered to the hospital with Johnson's personal belongings. But the officer testified that if the notice had been left behind, someone at the police department would have mailed it to Johnson. The officer did not believe there was a police officer with Johnson when he was released from the hospital and did not know if anyone ever gave Johnson the paperwork.

Mr. Johnson testified that no one gave him any paperwork regarding his driver's license and that he did not find any papers with his personal belongings at the hospital. Johnson testified that he believed he was allowed to drive after April 23 and that he first found out his license was revoked when he received a letter from the state sometime during the next month.

Mr. Johnson filed a petition for judicial review on June 22, 2015 and the commissioner of public safety moved to dismiss the petition, arguing that the district court lacked subject matter jurisdiction to hear the matter is the petition was not filed within 30 days after the receipt of the notice and order of revocation as required by Minnesota Statute.

The district court found that the officer told Johnson his license would be revoked and asked Johnson to electronically sign the notice on a computer. The district court also found that, during Johnson's medical episode, the officer placed the notice and order of revocation with Johnson's personal belongings and gave them to ambulance staff to be brought to the hospital with Johnson. The district court further found that the notice document was not at the police station after Johnson left. The district court did not make findings as to whether Johnson actually received a copy of the notice and order of revocation or whether the notice was actually with Johnson's belongings when he left the hospital. However, the district court found it credible that Johnson "was aware of what took place," that "the paperwork went with him [to the hospital]," and that Johnson was notified "at least as required by the statute, that he needed to review that paperwork and take action if he wanted to avoid the revocation going on his record." The district court reasoned that it didn't "know what else [the officer] could have done," other than contact the Minnesota Department of Public Safety and ask it to send notice by mail because of the "unusual set of circumstances."

The district court dismissed Johnson's petition as untimely and sustained the revocation based upon the conclusion that the officer "properly" served the notice and order of revocation on April 23, 2015.

On appeal, the Minnesota Court of Appeals quite properly reversed the district court, stating:

"The commissioner of public safety is authorized to revoke a driver's license "[u]pon certification by the peace officer that there existed probable cause to believe the person had been [driving while impaired], and that the person refused to submit to a test." Minn. Stat. § 169A.52, subd. 3(a) (2014). Such a revocation becomes effective when the commissioner or a peace officer 'notifies the person of the intention to revoke . . . and of revocation." Id., subd. 6 (2014). 'The notice must advise the person of the right to obtain administrative and judicial review as provided in section 169A.53.' Id."

"A person may obtain judicial review by serving and filing a petition "[w]ithin 30 days following receipt of a notice and order of revocation or disqualification pursuant to section 169A.52." Minn. Stat. § 169A.53, subd. 2(a). "A failure to file a petition for judicial review within the 30-day statutory period deprives the district court of jurisdiction to hear the petition." Thole v. Comm'r of Pub. Safety, 831 N.W.2d 17, 19 (Minn. App. 2013), review denied (Mi\m. July 16, 2013)."

"The issue is whether the 30-day period began to run on April 23. If Johnson received a notice and order of revocation on April 23, then the 30-day period began to run and Johnson's petition was untimely. But if he did not receive a notice and order of revocation, then the 30-day period did not begin to run, Johnson's petition was timely, and the district court had jurisdiction to decide the petition."
"Here the district court found that the officer never offered a copy of the notice and order of revocation to Johnson. Instead, the notice was placed with other items not secured in a bag, at least one non-law-enforcement intermediary handled it, and it was moved from the police station to the ambulance and then into the hospital before it reached Johnson's possession, all amidst a medical emergency. Under the facts of this case, where no officer ever offered a copy of the notice and order of revocation to Johnson personally, and there is no evidence that Johnson ever actually received it, it would be erroneous to find receipt of the notice document by Johnson."

Moral Of The Story: If they tell you your license is going to be revoked, it does not hurt to throw a fit!

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minnesota DUI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Sunday, December 25, 2016

Minneapolis DUI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case of the Week is Patten v. Commissioner of Public Safety (Decided December 19, 2016, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it does not pay to be a blowhard!

In Patten, the Petitioner was arrested for DWI and after he was taken to the police station, he agreed to submit to a breath test.  The result of said breath test was .08.

The Petitioner challenged the revocation of his driver's license in court arguing that his substantive due-process rights were violated when he was required to provide a sample greater than that required by law and that additional breath volume increased his alcohol concentration to above the legal limit.  The district court sustained the revocation and on appeal  the Minnesota Court of Appeals affirmed the lower court.

The arresting officer testified in the district court that once a breath sample has begun, the DataMaster emits a solid tone while a subject is providing a breath sample. According to the officer, the solid tone emitted by the DataMaster stops when all of the machine's criteria have been satisfied and the DataMaster has accepted the subject's breath sample. The officer further explained that the following criteria must be satisfied in order for a breath test to be accepted by the DataMaster: (1) the subject must blow at a rate of at least three liters per minute; (2) the subject must provide 1.5 liters of air; and (3) the slope of the sample must level out; once the subject's blow-rate dips below three liters per minute, the test ends. The officer testified that if any of these criteria have not been satisfied, the DataMaster will not accept the breath sample.

The officer testified that once appellant started the test, he stood next to appellant and instructed him to "keep blowing, keep blowing, keep blowing." The officer stated that he continued these instructions throughout the test and that he stopped his instructions when the solid tone stopped. The officer further testified that appellant provided two samples, with the first sample registering a 0.091 alcohol concentration and the second sample registering a 0.087. 

On cross-examination, the arresting officer admitted that a screen on the DataMaster depicted appellant's breath sample profile while the test was being administered. The officer also admitted that throughout the test, appellant's breath volume and alcohol concentration were visible on this screen. Although the officer admitted that he instructed appellant to continue blowing for about 20 seconds, the graphs depicted on the DataMaster showed that appellant had met the minimum volume requirement for a valid breath test within five seconds, and that "at the [five] second mark, [appellant] was . . . well below a 0.08." But the officer stated that if he had told appellant "to stop blowing while the tone was solid," the DataMaster would have rejected the test result as "invalid." 

On appeal, the Minnesota Court of Appeals first notes that they rejected this argument 20 years ago in Brooks v. Commissioner of Public Safety and in State v. Rader.  In those cases the Court held that there was no due process violation as there was no evidence that the police officer, "manipulated the test or that he purposefully treated [the defendant] differently than he treated others".

In this case Patten argued to the Court of Appeals that Brooks and Radar are distinguishable because the previous cases involved the use of the Intoxilyzer 5000 whereas this case involved the use of a Data Master Breath machine.  Patten claimed that the difference between machines is significant because, unlike the Intoxilyzer 5000, the DataMaster "allows the officer to watch in real time as a breath sample is introduced into the machine and see how much alcohol is in the sample." 

Patten contends that because the officer was using the DataMaster, he "could see as [appellant's] alcohol concentration climbed toward the 'magic number' that would be the difference between a crime and not a crime," and that "[i]n the face of that information coming to him in real time, the officer had the choice of telling [appellant] when he had complied with the legal requirement and could stop blowing, or telling him to keep blowing well beyond that point." Thus, Patten argues that unlike in Brooks and Rader, the arresting officer provided the court with evidence that he "can and did manipulate the test by having [appellant] provide more than four times the required breath volume, and evidence that the manipulation actually made a difference in the outcome of the test where it is clear that [appellant's] level didn't cross the legal limit until late in the test."

But the Minnesota Court of Appeals rejected Patten's argument stating: 
"We acknowledge that there may be some merit to appellant's claim that an increase in breath volume could cause the alcohol concentration to increase. But, as the district court found, appellant failed to provide any scientific evidence beyond speculation that a quantity of breath volume greater than the minimum adequate sample inaccurately reflects the actual alcohol concentration in the subject's body. Moreover, although the officer admitted that appellant's breath volume and alcohol concentration were visible on the DataMaster screen, he also testified that he was not watching the screen while the test was in progress, nor was he calculating appellant's breath volume per second while the test was being administered. Instead, the officer testified that he performed the breath tests consistent with his training, that the DataMaster informs the driver when to blow and when to stop blowing, and that if the test is not performed consistent with the specifications of the DataMaster, the machine gives "an invalid result." Appellant provided no evidence that the manner in which the test was administered to him was manipulated or any different than the manner in which the test was administered to others. Therefore, appellant has failed to establish that his substantive due-process rights were violated."

Moral Of The Story: When the tone stops, stop blowing!

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DUI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.