Monday, August 6, 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 Grey v. Commissioner of Public Safety (Decided August 6, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that a constitutional challenge to the application of the Minnesota Implied Consent Statute can be raised even though the statute limits the types of challenges that can be raised in the revocation hearing.  

In Grey, the Appellant was an out-of-towner from Iowa, who received a notice and order of revocation following a failed breath test at the sheriffs office. But in the midst of being transported to detox, the notice was left behind. A few days later, the notice and order of revocation was mailed to him. Gray requested an implied-consent hearing at which he contended that his license revocation should be rescinded because his due-process right was violated in light of not receiving the revocation notice and because of an ambiguity in the notice stemming from his driver's license being issued by Iowa, not Minnesota. The district court disagreed, determining that Gray properly received the notice, and due to his own conduct, left the document behind.  The district court also found that the Appellant could not raise a procedural due process challenge as it is not a challenge listed as permissible for hearing in a license revocation case.

On appeal, the Minnesota Court of Appeals affirmed the district court on other grounds but it significantly found that:

"Individuals are entitled to seek administrative or judicial review after receiving a notice and order of revocation. Minn. Stat. § 169A.53, subds. 1-2 (2016). For a judicial-review hearing, also known as an implied-consent hearing, the statute explicitly limits the issues that can be addressed. Minn. Stat. § 169A.53, subd. 3 (2016) (stating that the "scope of the hearing is limited to the issues" listed). Arguments concerning procedural due process are not among the listed issues."

"Whether an argument not listed in Minnesota Statutes section 169A.53, subdivision 3(b), can be raised at an implied-consent hearing was addressed in Axelberg, where the Minnesota Supreme Court was faced with a petitioner who attempted to raise a necessity defense at an implied-consent hearing. 848 N.W.2d at 207-08. Through a statutory-interpretation analysis, the supreme court determined that because the necessity defense was not one of the delineated issues in the statute, the individual could not raise the defense.6 Id. at 208, 212. It reasoned that the language in the statute, "[t]he scope of the hearing is limited to the issues" listed, meant exactly that—the legislature limited the issues that can be raised. Id. at 208-09."

"Before us is a similar situation as that faced by the Axelberg court, but with a distinct difference. Here, as in Axelberg, Gray attempted to raise an issue outside the scope of Minnesota Statutes section 169A.53, subdivision 3(b), at the implied-consent hearing. But Gray's argument concerned his constitutional right to procedural due process, unlike the issue from Axelberg, which considered the common-law defense of necessity. 848 N.W.2d at 206 (noting that the defense of necessity is a common-law defense). We discern that this distinction—between a common-law affirmative defense and the constitutional right to due process—is significant, and conclude that Gray can raise a due-process argument at his implied-consent hearing."

"It is the critical nature of the constitutional right to due process, and its guarantee of fundamental fairness, that drives our determination. The importance of due process in judicial proceedings cannot be overstated, as it "is the primary and indispensable foundation of individual freedom." Application ofGault, 387 U.S. 1, 20, 87 S. Ct. 1428, 1439-40 (1967) (describing due process as "the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise"). The hallmark of the procedural protections afforded by the due process clause is "fundamental fairness." Ford v. Wainwright, All U.S. 399, 424, 106 S. Ct. 2595, 2609 (1986). And while difficult to define exactly what procedural due process requires, courts have explained that it is this "fundamental fairness" that must be ascertained for a given situation. Lassiter v. Dep 't ofSoc. Servs., 452 U.S. 18, 24-25, 101 S. Ct. 2153, 2158 (1981). And proper notice is engrained in the concept of due process. Lambert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 243 (1957). Simply put, as Justice Marshall explained, "it is procedural due process that is our fundamental guarantee of fairness, our protection against arbitrary, capricious, and unreasonable government action." Bd. of Regents v. Roth, 408 U.S. 564, 589, 92 S. Ct. 2701, 2715 (1972) (Marshall, J., dissenting). Because of the importance of due process, it would be improper to determine that an individual cannot raise procedural due-process concerns at an implied-consent hearing."

"Furthermore, while the Minnesota Legislature may limit what arguments can be raised at an implied-consent hearing, it cannot legislate away constitutional rights."

Moral Of The Story:  The constitution trumps legislation every time!


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, July 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. Schwartz (Decided July 23, 2018, Minnesota Court Of Appeals, Unpublished) which stands for the proposition that even a very minor traffic offense will justify the stop of a motor vehicle.  

In Schwartz, St. Cloud police officer Darin Vessel was on routine patrol in downtown St. Cloud. He observed a vehicle exit a parking ramp, followed the vehicle, and observed two suspected traffic violations. First, Officer Vossen observed the vehicle cross over the centerline during a right turn. Next, Officer Vossen observed the vehicle travel on the centerline. Officer Vossen stopped the vehicle and identified its driver as appellant Ashley Amy Schwartz. Based on his subsequent observations of Schwartz's appearance, Officer Vossen arrested her for DWI.

After the Defendant was convicted, she appealed arguing that the stop of her vehicle was illegal. Schwartz acknowledged that she violated traffic laws, but she argue dthat the violations did not justify the stop of her vehicle because they were "brief and minimal." She further argued that the violations "did not interrupt traffic or pose a risk to public safety." 

The Minnesota Court of Appeals, rejected her contention stating:

"These arguments are unavailing because 'no matter how insignificant the traffic law,' a violation provides the requisite particularized and objective basis for a traffic stop. Anderson, 683 N.W.2d at 823; see also State v. McKinley, 305 Minn. 297, 304,232 N.W.2d 906, 911 (1975) ("All that is required is that the stop not be the product of mere whim, caprice, or idle curiosity)." 

The Court of Appeals noted that her driving conduct violated Minnesota Statute § 169.18 ("Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway") and, therefore, affirmed her conviction.

Moral Of The Story: There is no such thing as being just a little bit pregnant.



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, July 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. Abduljabbar (Decided July 16, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you do not object to the foundation for the admission of a Minnesota DWI breath test result, you have waived the right to object on appeal. 

In Abduljabbar, the defendant was pulled over for having a loud muffler. After the officer who pulled over Abduljabbar smelled alcohol and noticed that Abduljabbar's eyes were watery and bloodshot, she arrested Abduljabbar and took him to the Osseo police department for breath testing. That test indicated an alcohol concentration of 0.12.

A jury trial was held on and the state called one witness—the police officer who arrested Abduljabbar and performed the breath test. She testified that she was certified to operate the breath-test machine and that she knew how to recognize if the machine was not functioning properly. Although the officer testified that the machine was a "DataMaster transportable gas spectrometer with infrared option," she did not testify as to the specific model number, nor does that model number appear anywhere in the record. After describing how she went about operating the machine when testing Abduljabbar's breath, the officer testified, without objection, that machine measured a 0.12 alcohol concentration.

The Defendant was found guilty and on appeal, he argued that that the district court erred in admitting the results of the breath test without the state first (1) laying foundation that the machine used was one of the models approved by the Commissioner of Public Safety or (2) if it was not one of those models, laying foundation that the machine used provides a trustworthy and reliable measure of the alcohol in breath.

The Minnesota Court of Appeals rejected the Defendant's argument finding that any objection to the test result was waived at the trial.  The Appellate Court noted:

"Generally, when a defendant fails to object to the admission of evidence at trial, the defendant forfeits review of that admission on appeal. State v. Fraga, 898 N.W.2d 263, 276 (Minn. 2017). However, "the plain-error rule provides a limited power to correct certain errors that a defendant has forfeited." Id. at 277 (quotation omitted).
The plain-error rule requires a defendant to establish (1) an error, (2) that is plain in that it violates or contradicts case law or a rule, and (3) that the error affects the defendant's substantial rights. If all three requirements are met, we then determine whether relief is required to ensure fairness and the integrity of the judicial proceedings."

***
"Although there is no on-the-record foundation that makes Abduljabbar's breath-test result admissible under Minn. R. Evid. 702 (or that exempts it from the rule's foundation requirement under Minn. Stat. § 634.16), this foundation is lacking because Abduljabbar did not object and force the state to lay it. Had Abduljabbar done so, the state could have asked the arresting officer what model of breath-test machine was used or else called an expert to testify as to the reliability of the device. Indeed, Abduljabbar is unable to cite any case where a Minnesota appellate court has, on plain-error review, reversed a conviction on the basis that otherwise admissible testimony was improperly admitted because the requisite foundation was not presented to the district court."

Moral Of The Story:  Only the squeaky wheel gets the grease!



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, July 2, 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. Deno (Decided July 2, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that defense questions must be relevant to the issue of intoxication in order to be admissible.

In Deno, a police dispatcher sent Trooper Scott Barstad to a parking lot in Rochester on a report of a suspected impaired driver with a bloody face sitting in a pickup truck. The trooper found and stopped Jerry Deno's truck after he saw it exceed the speed limit and drift over the centerline. After the stop, the trooper saw that Deno's face was bloody and bruised. The trooper also saw signs of Deno's intoxication: Deno smelled of a strong odor of an alcoholic beverage; his eyes were bloodshot; and he slurred his speech. The trooper administered the horizontal gaze nystagmus test, which supported his suspicion that Deno was impaired. Deno refused to perform any other field sobriety tests, including a preliminary breath test.

Trooper Barstad took Deno to the detention center and read him the implied-consent advisory. The trooper asked Deno at least three times if he would submit to a breath test, but Deno refused. The state charged Deno with second-degree gross-misdemeanor test refusal, third-degree gross-misdemeanor   driving   while   impaired,   and   open-bottle possession.

Deno's trial strategy was to argue that his visible facial wounds implied that he had suffered a head injury that caused him merely to appear to be impaired. The district court treated this as a valid defense theory but prohibited Deno from arguing "to th[e] jury that [the arresting trooper's] decision not to contact emergency medical care or seek out medical care somehow negates probable cause." During Deno's cross examination of Trooper Barstad, the district court sustained relevancy objections to the following questions: "[H]ow far would you say [the traffic stop] was from the closest hospital?" "Well, in any event, you did not take him to the hospital. Correct?" "Knowing now that [many of the circumstances that led you to believe Deno was impaired could have also been explained by his head injuries,] . . . if you had to do it again . . . ?"

The Defendant was convicted and on appeal argued that the district court denied him his constitutional right to present a defense to the test-refusal charge.  Deno argued that by prohibiting him from asking questions that sought to undermine the existence of probable cause (by casting doubt on the trooper's decision not to take Deno for medical treatment), the district court abused its discretion.

The Minnesota Court of Appeals affirmed Deno's conviction stating:

"A defendant must exercise his right to present a complete defense within the bounds of the rules of evidence. State v. Henderson, 620 N.W.2d 688, 698 (Minn. 2001). Deno's challenged questions were irrelevant under the rules. "Evidence is relevant when it logically or reasonably tends to prove or disprove a material fact in issue, or tends to make such a fact more or less probable, or affords a basis for or supports a reasonable inference or presumption regarding the existence of a material fact." State v. Walen, 563 N.W.2d 742, 749 (Minn. 1997)."

"Questioning the trooper about the proximity to the nearest hospital would not elicit any evidence relevant to whether probable cause existed. The location of a hospital has no bearing on whether a reasonable officer would suspect that impaired driving was caused by alcohol consumption. Deno's other two challenged questions—"[I]f you had to do it again" and "You did not take him to the hospital"—likewise would not draw any testimony about whether probable cause existed at the time of the arrest. See id. The district court appropriately sustained the state's relevancy objections."

Moral Of The Story:  If you have had too much to drink, don't drive or get into a fight!



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, June 25, 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. Meyer (Decided June 25, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if a Data Master breath test result appears to be reliable, it is incumbent upon the driver to show why the test is not trustworthy.

In Meyer, the Defendant was arrested for a DWI and he tested at .14% alcohol concentration on the Data Master Breath testing machine (DMT).  The case went to trial and the sole witness was the sheriff's deputy, who testified that he properly administered the DMT and that the DMT was working properly. The printed DMT result was admitted into evidence and published for the jury without objection. The jury found appellant guilty of second-degree DWI.

On Appeal, the Defendant challenged the sufficiency of the evidence claiming that the DMT test was not reliable.  The Defendant, however, did not produce any evidence as to why the test was not reliable.  The Minnesota Court of Appeals affirmed the conviction, noting:

"The test result of a DMT, which is an 'approved breath-testing instrument,' is admissible without expert testimony that the result is trustworthy or reliable if the test is performed by a fully trained person. Minn. Stat. § 634.16 (2016)".

"The proponent of the test must show that "the necessary steps have been taken to ensure reliability," and thereafter, "it is incumbent on the driver to suggest a reason why the [breath] test was untrustworthy." State v. Nelson, 399 N.W.2d 629, 632 (Minn. App. 1987).

In this case, the sheriff's deputy testified that he did not observe any malfunction or interference with the DMT machine, and appellant concedes that the DMT was functioning properly on November 9, 2015. The record also supports that the deputy was certified to operate the DMT as of September 15, 2015, and that he had training and field practice in operating a DMT. The deputy testified that he followed the procedure and protocol consistent with his DMT training in administering appellant's DMT test.

"To rebut the state's prima facie showing of admissibility and presumed reliability, appellant must show a reason why the DMT test result is untrustworthy. Nelson, 399 N.W.2d at 632. To do so requires more than '"speculation that something might have occurred to invalidate th[e] results."

"On this record, there was sufficient evidence for the jury to reasonably infer that the DMT methodology, operation, and test result were accurate, valid, and reliable, and thus, for the jury to rely on the DMT result in reaching its verdict.   The record shows that appellant's DMT test result was 0.14 AC within two hours of driving.   Therefore, there was sufficient evidence for the jury to reasonably conclude that the state proved that appellant was guilty of second-degree DWI beyond a reasonable doubt."

Moral Of The Story:  Saying something is true does not make it so.

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, June 18, 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 Robinson v. Commissioner of Public Safety (Decided June 18, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the current Court will affirm just about any vehicle stop.

In Robinson, Officer Donahue of the Edina Police Department was on routine patrol in the area of Edina High School and Valley View Middle School. At approximately 12:55 a.m., while conducting a directed patrol of the area, Officer Donahue pulled into the east entrance of the parking lot to the west of Valley View Middle School. As he entered the parking lot, Officer Donahue observed a dark passenger car drive by the western edge of the parking lot the officer had just entered, and drive out the west entrance. The vehicle's lights were on, and the road the vehicle was driving on encircles the schools and connects all of the school parking lots. Officer Donahue testified that "there was a large construction site near that part of the school where the vehicle came out.

At the time Officer Donahue saw the vehicle, there were no other cars in the area and the lights in the high school were off; the school appeared closed. Officer Donahue testified that he found the vehicle's presence suspicious because it was late, the high school was closed, and there was a construction site at the high school near where the vehicle was located. Officer Donahue has worked for the Edina Police Department for about two years and has been a licensed peace officer in Minnesota for about nine years, and in Officer Donahue's training and experience, "construction sites are often sought out by thieves for theft and damage-related crimes." The district court found Officer Donahue's testimony credible.

After observing the vehicle, Officer Donahue followed it. Officer Donahue saw the vehicle cross Valley View Road onto Chapel Lane, where he caught up to it and ran a license plate check, which showed that a lease company owned the vehicle and that the lessee lived on the 5500 block of Goya Lane. Goya Lane is approximately one mile north of Edina High School.

Officer Donahue continued following the vehicle and thought that the route taken by the vehicle was suspicious because it was not the most direct route from the school to the address on Goya Lane. Robinson crossed Valley View Road, drove along several residential streets to the south of Valley View Road, and then turned onto Valley View Road. Officer Donahue initiated a traffic stop on Valley View Road, the vehicle stopped almost immediately, and Officer Donahue identified Robinson as the driver. From when Officer Donahue first observed the vehicle, until he stopped it on Valley View Road, he did not observe any traffic or equipment violations, inappropriate, unusual, or unlawful driving, and found no outstanding warrants.

Mr. Robinson was subsequently arrested for DWI and tested at .10% BAC at the police station.  Mr Robinson filed a challenge to the license revocation alleging the officer did not have a sufficient basis for the stop.  The district court upheld the revocation and on appeal, the Minnesota Court of Appeals affirmed, stating:

"Officer Donahue had a particularized and objective basis to stop Robinson. Robinson was driving on school grounds around 1:00 a.m., near a construction site at the high school, when the school was closed. He was driving on a road that encircled both schools and does not provide access to anywhere other than the schools, their parking lots, and the construction site at the high school—the road is more akin to a driveway than to a public thru-street. And when Robinson drove out of the school area, he drove across a main road, through several residential roads, only to return to the main road—which he could have turned directly on to as he left the school area. Standing alone, each individual fact may not be sufficient to support reasonable suspicion of wrongdoing. But viewed together, and through the eyes of Officer Donahue's experience and training that construction sites are often targeted for theft and vandalism crimes, Officer Donahue had a particularized and objective basis for an investigatory stop."

Yikes!

Moral Of The Story:  If you have been drinking, do not go to school!



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, June 11, 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. Horn (Decided June 11, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police cannot ask for consent to search your vehicle if the search is unrelated to the traffic stop. 

In Horn, Minnesota State Patrol Sergeant Thostenson observed Mr. Horn driving an automobile and stopped him because he was not wearing a seatbelt. Sergeant Thostenson asked Horn for proof of insurance. Horn gave Sergeant Thostenson an expired insurance card and did not look for any other proof of insurance in his vehicle. Sergeant Thostenson thought this behavior was odd and testified that some people avoid opening areas where insurance cards are normally kept because they have contraband or weapons in those areas. Sergeant Thostenson observed that Horn avoided eye contact, appeared excessively nervous, talked very fast and was slow to respond to some questions. Sergeant Thostenson also smelled a faint odor of marijuana coming from Horn's vehicle.

Sergeant Thostenson returned to his squad car, printed a ticket for the seatbelt violation, returned to Horn's car, and asked Horn to step out of his vehicle. Sergeant Thostenson noticed that Horn's front teeth were discolored and decaying. He testified that such conditions indicated drug use. Sergeant Thostenson explained the seatbelt citation to Horn, handed Horn the ticket, and asked Horn if he had any questions before the sergeant let him go. Horn responded, "No." Sergeant Thostenson then asked Horn if he could take a quick look in Horn's vehicle. Horn agreed to the ensuing vehicle search.

During the search of Horn's vehicle, Sergeant Thostenson found a zippered container, which he recognized as the type of container commonly used for drugs and paraphernalia. He opened the container and found a pipe and methamphetamine inside. Horn admitted that he had used methamphetamine earlier that morning. Horn agreed to perform field sobriety tests and performed poorly on the tests. Sergeant Thostenson arrested Horn, obtained a search warrant to test his blood, and the blood sample was positive for methamphetamine.

Mr. Horn was charged with DWI and possession of a controlled substance.  The defense moved to suppress all of the evidence arguing that Sergeant Thostenson's incremental intrusion of asking to search Horn's vehicle was unrelated to the purpose of the stop for failure to wear a seatbelt and that the circumstances did not otherwise justify the request to search the vehicle. Horn therefore argued that the evidence obtained as a result of the search should be suppressed.

At the suppression hearing, Sergeant Thostenson admitted that after he handed Horn the seatbelt-violation ticket, Horn was free to go, but that he nonetheless asked to search Horn's car after he gave Horn the ticket.  

The district court denied Horn's motion to suppress, concluding that "the odor of marijuana along with the other factors was sufficient to justify" the trooper's request to search the vehicle.  On appeal, however, the Minnesota Court of Appeals reversed the district court  noting:

"When a search is conducted pursuant to consent . . . , neither probable cause nor a warrant is required." State v. Pilot, 595 N.W.2d 511, 519 (Minn. 1999). However, a "suspect's consent, taken alone, is insufficient to permit expansion of a routine traffic stop; the police officer must have a reasonable, articulable suspicion of further criminal activity in order to request to expand the stop.   State v. Volkman, 675 N.W.2d 337, 341 (Minn. App. 2004)."

"Horn contends that any suspicions that might have justified the request to search his vehicle were dispelled prior to the request. He notes that Sergeant Thostenson "had completed the initial stop and immediately before asking to search the car, he had admittedly concluded that Horn was 'free to go.' Horn therefore argues that 'regardless of anything [Sergeant Thostenson] may have observed prior to handing [him] the ticket, when he asked to search the car, no reasonable suspicion remained.' Horn concludes that "because the search of [his] car was invalid, the fruits of the search and all related evidence must be suppressed."

The Minnesota Court of Appeals justifiably ruled in favor of the Defendant, stating:

"We would have a difficult time concluding that Sergeant Thostenson articulated constitutionally adequate support for his request to search Horn's vehicle given his testimony that Horn was free to go before the request. Sergeant Thostenson's agreement that Horn was no longer seized when he asked to search Horn's vehicle significantly undercuts the state's argument that the trooper articulated reasonable suspicion of criminal activity that justified the request to search. In our view, this record does not support a conclusion that Sergeant Thostenson articulated reasonable suspicion justifying his request to search Horn's vehicle. We therefore hold that the search was unconstitutional and reverse the district court's order denying Horn's motion to suppress."

Moral Of The Story:  Never, ever, ever consent to a search! Ever!!

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.