Monday, May 14, 2018

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Taylor (Decided May 14, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police can rely entirely upon statements of a 3rd person to justify a Minnesota DWI vehicle stop.

In Taylor, a Wayzata police officer was on patrol in the City of Wayzata when he overheard a radio transmission from the Orono Police Department regarding a domestic disturbance in the City of Mound. The transmission indicated that the Orono Police Department received information from dispatch that a male individual "had shown up at a female's residence" and that a "verbal altercation" ensued. The female reported that she "believed the male was intoxicated" because he made "unusual" comments about wanting to kill Donald Trump. The female identified the male as appellant Brian Taylor, and stated that he left her residence in a red Jeep and would be "traveling on Highway 12."

The officer positioned his squad car along Highway 12, and a "couple of minutes" later, observed a red Jeep drive past his location. Officer Sharratt followed the Jeep and checked its license plate. The license check revealed that Taylor was the registered owner. The officer initiated a traffic stop because he believed that Taylor was involved in the reported domestic disturbance and may have been intoxicated.

Defendant Taylor was subsequently arrested for a DWI and he filed a motion to suppress arguing the initial stop was unconstitutional.  The motion to suppress was denied and on appeal, the Minnesota Court of Appeals affirmed the district court noting:

"Taylor argues that the stop of his vehicle was unconstitutional because it was "based on a hunch developed after overhearing radio traffic of another department, and not based on any observations of the officer or facts known to him that would create a reasonable articulable suspicion that [Taylor] was involved in criminal activity." But the factual basis needed to maintain a routine traffic stop need not arise from an officer's personal observations; it may also be supplied by information acquired from another person, including an informant. Marben v. State, Dep 't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). An officer properly stops a motor vehicle in reliance on a telephone tip when the caller identifies herself and states that a driver of a vehicle has just been nearby and appears to be intoxicated. See, e.g., City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890-91 (Minn. 1988) (stating that stop was proper when based on identified gas-station attendant's tip regarding intoxicated driver); Magnuson v. Comm 'r of Pub. Safety, 703 N.W.2d 557, 560-61 (Minn. App. 2005) (stating that sufficient reasonable suspicion supported stop based on personal observations of an identified citizen that driver was drunk)."

Moral Of The Story:  Never get in an argument with a woman when you are drunk.

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


Tuesday, May 8, 2018

Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Waldron (Decided May 7, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that you cannot be convicted of a DWI if you are charged under the wrong statute.  Well duh! Too bad the Defendant had to go all the way to the Court of Appeals to establish that. But then again, nothing surprises me about the decisions of some district courts.

In Waldron, the Defendant was convicted of two counts of DWI, in violation of Minnesota Statute 169A.20, subds. 1(1),  & 1(5).  At trial it was undisputed that the Defendant was driving an all terrain vehicle (ATV). 

The Defendant moved to vacate the conviction arguing the evidence was insufficient to convict him under the charged statutes as the particular statute specifically exempts ATV's. The statute states: "It is a crime for any person to drive, operate, or be in physical control of any motor vehicle, as defined in section 169A.03, subdivision 15, except for motorboats in operation and off-road recreational vehicles," while intoxicated. Minn. Stat. § 169A.20, subd. 1.

The prosecutor should have charged Mr. Waldron pursuant to Minnesota Statute Section 169A.20 subd. 1(b) which independently makes it "a crime for any person to operate or be in physical control of a[n] . . . [ATV] as defined in section 84.92, subdivision 8," while intoxicated. But since the case was not brought under the proper statute, the Minnesota Court of Appeals correctly ruled: "Because operating an ATV while intoxicated cannot form the basis for a conviction under section 169A.20, subdivisions 1(1) or 1(5), we conclude that there was insufficient evidence to conclude that Waldron violated those statutes."

Moral Of The Story: Details Matter!



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

Monday, April 30, 2018

Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Atwood (Decided April 30, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that a blood sample obtained by a doctor for purposes of medical treatment is not protected by the Minnesota Medical Privilege Statute.

In Atwood, the Defendant was in an ATV accident and was taken to the hospital for treatment.  When the deputy sheriff arrived at the scene, he found the Defendant lying on the street in a pool of blood.  The deputy smelled alcohol on the Defendant's breath.  An ambulance then took the Defendant to the hospital for treatment.

The deputy learned that the Defendant was being transferred to another hospital for further treatment and he also learned the first hospital was storing a vial of the Defendant's blood.

The deputy obtained a search warrant to seize the vial of the Defendant's blood and a subsequent lab analysis revealed the Defendant's BAC was 0.155.

The Defendant was charged with two counts of fourth-degree driving while impaired. Prior to trial, the Defendant moved to suppress the blood sample and the subsequent BAC test results, invoking the physician-patient privilege pursuant to Minn. Stat. § 595.02, subd. 1(d). The district court granted the motion, reasoning that defendant's blood sample constituted "information" subject to Minnesota's physician-patient privilege.

The state appealed the district court and the Minnesota Court of Appeals reversed the district court finding that the medical privilege statute does not encompass physical samples obtained for treatment.

In its decision the Minnesota Court of Appeals reasoned that:

"Minnesota's physician-patient privilege statute, in relevant part, provides that a "licensed physician . . . shall not, without the consent of the patient, be allowed to disclose any information or any opinion based thereon which the professional acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity." Minn. Stat. § 595.02, subd. 1(d) (emphasis added). The state does not dispute that the physician acquired the blood sample to enable him to act in a professional capacity; rather, the state argues that the nature of a blood sample is outside this statute's scope because it is neither "information" nor "any opinion based thereon."
***
"Whether a physical blood sample is protected by Minnesota's physician-patient privilege is a statutory-interpretation issue of first impression. The goal of statutory interpretation is to effectuate the legislature's intent..."The present issue centers on the unambiguous term "information."

"Information" has been defined as "Knowledge or facts learned, especially about a certain subject or event." The American Heritage Dictionary of the English Language 901 (5th ed. 2011). According to Webster's Dictionary, "information" is "something received or obtained through informing [such as:] knowledge communicated by others or obtained from investigation, study, or instruction^] knowledge of a particular event or situation [;] facts or figures ready for communication or use as distinguished from those incorporated in a formally organized branch of knowledge." Webster's Third New International Dictionary Unabridged 1160 (3d ed. 2002). Thus, information, by nature, is not physical and is about something. While information may be conveyed by way of a material object, such as a piece of paper, the medium by which information is communicated is not the information. On the other hand, a blood sample is material and does not, by itself, provide any information. That is, an individual cannot extract information about a patient solely by looking at a physical blood sample."

"The district court erred by applying Minn. Stat. § 595.02, subd. 1(d), to suppress respondent's blood sample as evidence. Because we conclude that a physical blood sample is not protected under Minnesota's physician-patient privilege statute, we reverse the district court's order granting respondent's motion to suppress that evidence."

The Court of Appeals did, however, note in a footnote that, "At oral argument, the state conceded that if the hospital had actually done a blood test, then those test results would be covered by the privilege because that would contain information communicating a blood-test result. We agree."

Moral Of The Story:  If you give blood at a hospital, get it back!



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


Monday, April 23, 2018

Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Sherer which stands for the proposition that the police cannot lie and tell you it is a crime to refuse to submit to a warrantless blood or urine sample when, in fact, it is not a crime to refuse.

In Sherer, the Defendant was arrested for Felony DWI and was taken to the Cook County Jail for alcohol testing.  Mr. Sherer was advised that Minnesota law requires him to take a test to determine if he is under the influence of a controlled substance and that refusal to take a test is a crime. He was offered a blood or a urine test and consented to a blood test. The blood test confirmed the presence of amphetamine and methamphetamine in his system.

Mr. Sherer moved to suppress the results of the blood test, arguing that the warrantless blood draw violated the Fourth Amendment and his right to due process. The district court denied the motion to suppress and on appeal, the Minnesota Court of Appeals correctly reversed the district court noting:

"Appellant argues that, under McDonnell v. Comm 'r of Pub. Safety, 473 N. W.2d 848, 855 (Minn. 1991), and Johnson, the state violated his due-process rights when giving the implied-consent advisory by "threaten[ing] criminal charges the state was not authorized to impose." The state argues that appellant's due-process rights were not violated by the implied-consent advisory because it was accurate at the time it was given".

"During the pendency of appellant's case, the Minnesota Supreme Court held that a defendant could not be prosecuted under Minnesota's test-refusal statute for refusing to submit to a blood test, absent a warrant or exigent circumstances. State v. Trahan, 886 N.W.2d 216, 218, 224 (Minn. 2016). The supreme court extended that holding to warrantless urine tests in State v. Thompson, holding that a defendant may not be prosecuted for refusing to submit to an unconstitutional blood or urine test. 886 N.W.2d 224, 234 (Minn. 2016)."

"Following Trahan and Thompson, this court applied the reasoning of McDonnell to an implied-consent advisory that warned a driver that refusal to submit to a urine test is a crime. Johnson, 887 N.W.2d at 289. We examined whether the advisory permitted police to threaten criminal charges the state was not constitutionally permitted to impose. Id. We held that the driver's due-process rights were violated when the officer informed him that he could be subjected to criminal penalties for refusing to take a urine test, when the state would not have been authorized to impose a criminal penalty. Id. at 295. We rejected an argument that, because Thompson had not been decided at the time the advisory was given, the advisory was legally accurate at the time it was given and did not violate the driver's due-process rights."

MORAL OF THE STORY: The police cannot lie to you to obtain a test!

If you or a loved one have been charged with 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 and DUI questions.





Monday, April 16, 2018

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Nordstrom (Decided April 16, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that virtually all out-of-state convictions for DWI can be used to "enhance" the current Minnesota DWI charge.

In Nordstrom, the Defendant was facing a Minnesota Felony DWI because at the time of his Minnesota DWI arrest, he had three prior DWIs within the past ten years.  One of the prior convictions was from Wisconsin and the Defendant argued the prior Wisconsin conviction could not be used to enhance the current offense because the Wisconsin conviction was based on evidence obtained from a warrantless blood draw in violation of his constitutional rights.

The Minnesota Court of Appeals rejected the Defendant's claim stating:

"A criminal defendant may collaterally attack a prior conviction to prevent it from serving as an enhancement, but "only in unique cases." State v. Schmidt, 712 N.W.2d 530, 538 n.4 (Minn. 2006). The district court determined that this was not a unique case, and we agree. Appellant entered a plea of "no contest" in Wisconsin to violating a state statute that provides: "[n]o person may drive or operate a motor vehicle while: (a) Under the influence of an intoxicant ... to a degree which renders him or her incapable of safely driving. ..." Wis. Stat. § 346.63, subd. 1(a). Wisconsin has a separate statutory provision prohibiting a person from driving while that person's alcohol concentration is above a prohibited alcohol concentration. See Wis. Stat. § 346.63, subd. 1(b) (2016) ("No person may drive or operate a motor vehicle while . . . [that] person has a prohibited alcohol concentration."). Accordingly, appellant's Wisconsin conviction did not require the state to prove that appellant had a prohibited alcohol concentration."

"Appellant argues that the results of his blood test were known at the time of his plea and were relevant to his conviction. Schmidt is again instructive. The Schmidt court considered evidence of a prior conviction, reasoning that "[w]hile [the uncounseled decision to submit to chemical testing] would preclude certain prosecutions, for example driving with an alcohol concentration of 0.08 or more, prosecution could still proceed for the general offense of driving while under the influence, based on other evidence of impairment." 712 N.W.2d at 539 (citations omitted). This case presents a similar factual scenario. Even if the results of the blood test should have been suppressed in Wisconsin, other evidence of impairment sustained the conviction."

"We conclude that appellant's conviction in Wisconsin is not subject to collateral attack. The district court properly ruled that appellant's Wisconsin conviction was a "qualified prior impaired driving incident" that could be used to enhance the impaired-driving offense in Minnesota."

It appears from the Court's reasoning that if the Defendant had pled guilty to a .08% DWI charge, the result on appeal may have been different.  Wait and see!

Moral Of The Story:  Out-Of-State priors still count!


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


Monday, April 9, 2018

Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Davis (Decided April 9, 2018, Minnesota Court of Appeals, Unpublished) which, once again, stands for the proposition that just touching a fog or lane line is sufficient to justify a stop of a motor vehicle.

In Davis, Edina Police Officer Nicholas Pedersen observed a vehicle traveling south on Highway 100 north of the access lane that split into two lanes —leftward for East Interstate 394, and rightward for West Interstate 394. Officer Pedersen saw the vehicle make a left-hand signal, but then make a right-hand signal and exit Highway 100 onto an access lane leading to both East and West Interstate 394. Officer Pedersen followed the vehicle, which continued on the East-394 access lane travelling toward the cloverleaf turn. The access lane split once more: leftward for East-394 Minneapolis, rightward for the car-pool express lane.

After the vehicle traveled on the left side of this split, for East 394, the driver signaled left for about six seconds although no left-hand turn or lane change was possible. At the same time, the vehicle drifted to the right and its tires touched the fog line without crossing it. Continuing toward the cloverleaf turn, the vehicle signaled rightward and changed lanes to the right within a second. As the vehicle entered the cloverleaf turn, its tires again touched the right fog line. Officer Pedersen suspected traffic law violations, stopped the vehicle, and identified the driver as respondent Lynae Davis. Davis smelled of alcohol, performed poorly on field sobriety tests, and Officer Pedersen arrested her.

The District Court ruled that the stop of the vehicle was illegal.  The State appealed and the Minnesota Court of Appeals reversed the District Court stating:

"After briefing in this case, this court held in Kruse v. Comm'r of Pub. Safety, that "the markings that establish lanes for traffic are not part of the lanes within the meaning of Minn. Stat. § 169.18, subd. 7(a), that driving onto such a marking is movement from a lane, and that such movement could constitute a violation of the statute." 906 N.W.2d 554, 560 (Minn. App. 2018)."

"In Kruse, the officer observed the driver's vehicle "move right and onto the fog line, but not over [it]," and then "move left and onto the center line, but not over [it]." 906 N.W.2d at 556. The time of day was 11:50 p.m. and the vehicle was on a county road with a center line. Id. Under those facts, we held that the officer had a reasonable suspicion of a traffic
violation under Minn. Stat. § 169.18, subd. 7(a). Id. at 560-61."

"At oral argument, the state argued that Kruse controls the result of this case. We agree. The facts here are nearly indistinguishable from the facts in Kruse. Officer Pedersen's observation that Davis's vehicle twice moved onto the fog line provided a reasonable suspicion of a traffic violation under Minn. Stat. § 169.18, subd. 7(a). Because Officer Pedersen had an objective basis to suspect a violation of section 169.18, the stop of Davis's vehicle was lawful, and the district court erred in granting her suppression motion."

The problem with the court's ruling is that it misreads Minn. Stat. § 169.18, subd. 7(a) which states:

"a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."

So there is not an absolute prohibition from moving from the lane as long as such movement can be made safely.  Unless touching the fog line or lane line potentially endangered another vehicle, I do not see how touching a line justifies a stop.

Moral Of The Story:  You should color and drive between the lines!

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

Monday, April 2, 2018

Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Olson v. One 2009 Lexus (Decided April 2, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that the Minnesota DWI Forfeiture Statute is unconstitutional because it does not provide for a prompt hearing!

The Minnesota DWI Forfeiture Statute § 169A.63, subd. 9(d) states:

"A judicial determination under this subdivision must be held at the earliest practicable date, and in any event no later than 180 days following the filing of the demand by the claimant. If a related criminal proceeding is pending, the hearing shall not be held until the conclusion of the criminal proceedings. The district court administrator shall schedule the hearing as soon as practicable after the conclusion of the criminal prosecution. The district court administrator shall establish procedures to ensure efficient compliance with this subdivision. The hearing is to the court without a jury."

In other words, no hearing on the DWI forfeiture of the vehicle can be scheduled until after the criminal case against the driver has been resolved.  The Minnesota Court of Appeals rightly held that the statute violates due process, noting:

"In Fedziuk, the supreme court considered the constitutionality of the 2003 amendments to Minnesota's implied-consent law, which authorized the court to stay a prehearing suspension of a driver's license revocation if a hearing was not held in 60 days, but which removed the previous requirement that judicial review be "held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review." 696 N.W.2d at 345-46. The supreme court noted that "[b]y eliminating the requirement for prompt postrevocation judicial review, the 2003 amendments affected the driver's private interest in continued possession and use of the license pending the outcome of a hearing, the first part of the three-part test ixom Mathews." Id. at 346."

"The Fedziuk court held that because the amended statute did not specify a time period for judicial review, it did not provide sufficiently prompt review of the prehearing deprivation of property. Id. at 347-48. It also held that the immediate administrative hardship relief contemplated by the statute, although prompt, did not provide sufficiently meaningful review to adequately protect the procedural due-process rights of deprived parties. Id. at 348. The Fedziuk court explained that "minimal due process requires that the petitioner be given the right to compel witnesses to attend the hearing and to cross-examine persons who prepared [the police reports and lab reports relied upon]" and that the immediate administrative review contemplated under the implied-consent law did not provide for such an evidentiary hearing. Id. at 347-48. It concluded that a prehearing revocation of a driver's license under the amended implied-consent law procedure offended the driver's right to constitutional due process, and reinstated the earlier version of the law. Id. at 348-49."

"Applying Fedziuk, here, the record shows that, because the resolution of the Olsons' forfeiture action was tied to the resolution of Megan's related criminal and implied-consent actions, pursuant to Minn. Stat. § 169A.63, subd. 9(d), no hearing was held on the validity of the initial or continued seizure of the Lexus for over 18 months. We agree with the district court's conclusion that this procedure unconstitutionally denied the Olsons prompt review of the prehearing seizure of the Lexus."

I have been raising this same argument in all of my Minnesota DWI forfeiture cases and it looks like all my clients will soon be sitting in the driver's seat!!

Moral Of The Story: Justice delayed is justice denied!

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