Monday, December 3, 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The Minnesota DWI Case Of The Week is State v. Shepard (Decided December 3, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that turning on the emergency lights of a squad car does not automatically constitute a seizure.  I don't think this is a very well-reasoned case.  

In Shepard, Deputy McKane received a report that a vehicle had crashed into the ditch of U.S. Highway 69 in a rural part of Freeborn County approximately two miles south of Albert Lea. In addition, Deputy McKane learned from the dispatcher that a man wearing a plaid shirt and khaki pants was walking along the highway near the crashed vehicle.

Deputy McKane first inspected the vehicle in the ditch, which was unoccupied. Deputy McKane believed that the vehicle had been traveling in the southbound lane before it veered across the northbound lane and entered the ditch on the east side of the highway. Deputy McKane saw damage to the front of the vehicle and a “spider-webbed crack” in the vehicle’s windshield.

Deputy McKane then drove south and, after approximately two miles, saw a man wearing a plaid shirt and khaki pants walking on the shoulder of the highway in a southerly direction. Deputy McKane turned on his squad car’s overhead emergency lights, pulled up behind the man, stopped his squad car on the shoulder, and exited the squad car. Deputy McKane approached the man, later identified as Shepherd, and had a brief conversation with him. Deputy McKane first asked Shepherd whether he had crashed the vehicle that was in the ditch; Shepherd responded that he had. Deputy McKane then asked Shepherd why he had crashed. Shepherd said that he had consumed “a couple drinks” a few hours earlier. Deputy McKane could smell alcohol on Shepherd’s breath and saw that he had bloodshot and watery eyes. Deputy McKane also observed that Shepherd was confused about where he was going because he pointed south when saying that he was walking to Albert Lea when, in fact, he should have pointed north. Deputy McKane administered field sobriety tests, which Shepherd failed, and administered a preliminary breath test, which indicated that Shepherd was intoxicated.

The Defendant was subsequently charged with DWI and he moved to suppress all of the evidence on the basis that the officer did not have a sufficient reason to justify his seizure by the side of the road.  The Defendant argued that the when the officer activated his squad emergency lights, he was seized by the police without sufficient cause.

The Minnesota Court of Appeals however ruled that no seizure occurred which, frankly, does not make much sense.  The Court of Appeals correctly noted that:

"Although a law-enforcement officer may seize a person based on a reasonable suspicion of criminal activity, “[n]ot all encounters between the police and citizens constitute seizures.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). An officer does not conduct a seizure merely because the officer approaches a person in a public place and asks the person a few questions. In re Welfare ofE.D.J., 502 N.W.2d 779, 781-82 (Minn. 1993); State v. Houston, 654 N.W.2d 727, 731-32 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003). Rather, under Minnesota law, a person is seized only if, given the totality of the circumstances, a reasonable person in that situation would not feel free to terminate the encounter."

The Court of Appeals then states, "At oral argument, Shepherd emphasized Deputy McKane’s use of his squad car’s overhead emergency lights. That fact does not make the encounter a seizure."  

Nonsense.  When the police turn on their emergency lights or "take-down" lights the purpose is to make the person stop and interact with the officers.  No reasonable person would feel that they are "free to terminate the encounter" and the Court's ruling to the contrary is just lame.

Moral of the Story:  When the lights come on, ask the officer if you are free to leave.  

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, November 26, 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 Mauch v. One 2015 Chevrolet Silverado (Decided November 26, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the current statutory "innocent owner defense" is not retroactive.

In Mauch, David Mauch was arrested for DWI in November 2015 while driving a 2015 Chevrolet Silverado.  The title to the vehicle was jointly held by David Mauch and his spouse, Helen.  The police seized the vehicle for forfeiture.  

In December 2015, the Mauches filed a timely demand for judicial determination of forfeiture of motor vehicle. The district court held a bench trial to determine the legality of the forfeiture in February 2017. In April 2017, before the district court had made a decision, the Minnesota Legislature amended the vehicle forfeiture statute to expand the innocent-owner defense in Minnesota forfeiture cases. The 2017 language provides that “[a] motor vehicle is not subject to forfeiture under this section if any of its owners who petition the court can demonstrate by clear and convincing evidence” that they are innocent owners. Minn. Stat. § 169A.63, subd. 7(d) (Supp. 2017) (emphasis added). Prior to amendment, the statute provided a narrower innocent-owner defense (i.e. if one of the joint-title holders was the drunk driver then the innocent owner defense was not available to the other title holder).

The more expansive innocent owner defense became law after the offense in this case but before the case was final in the district court.  The district court held that the vehicle should be forfeited to the state and on appeal, the issue was whether the 2017 statute is retroactive.

The Minnesota Court of Appeals held that the more expansive innocent owner defense is not retroactive stating:

"David’s DWI occurred in November 2015. At that time, the innocent-owner defense was not available to a joint owner of a vehicle who was unaware of the other owner’s unlawful use of the vehicle. See Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 439 (Minn. 2009). In other words, the innocent-owner defense was not available in DWI forfeiture matters unless all owners of the vehicle were “innocent.” Id. But the vehicle forfeiture statute was amended in April 2017 to permit a joint owner to keep a forfeited vehicle if they could demonstrate by clear and convincing evidence that they individually were an innocent owner. See 2017 Minn. Laws eh. 12, § 1, at 37-38. The statutory amendment contained no effective date, so the effective date defaulted to August 1, 2017. See Minn. Stat. § 645.02 (2016) (mandating an effective date of August 1 unless a different date is specified). Therefore, the only question remaining is whether the legislature clearly and manifestly intended the statutory amendment to apply retroactively. Minn. Stat. § 645.21."

"We see no clear and manifest intent on the part of the legislature that the amendment apply retroactively. There is no language in the amendment to suggest any such intent. See 2017 Minn. Laws Ch. 12, § 1, at 37-38. We therefore conclude that Helen was not entitled to claim the innocent-owner defense under the statute in effect at the time of David’s DWI."

Moral of the Story:  While you may be found "not guilty", you can't be innocent after you did it.

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, November 19, 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 Willis v. Commissioner of Public Safety, (Decided November 19, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if the police read a misleading advisory to a person under arrest for DWI, the arrestee must testify he or she relied on the misleading advisory in order to establish a due process violation.

These cases keep coming up over and over in the Court of Appeals and the reason is this:  It used to be, under Olinger v. Commissioner of Public Safety, that all the defense had to show was that the advisory was misleading in order to establish a due process violation. It did not matter if the defendant testified or not. And it did not matter if the defendant submitted to testing or not. But all that has changed under the recent Minnesota Supreme Court cases of Morehouse and Johnson v. Commissioner of Public Safety.

In Morehouse and Johnson, the Supreme Court held that in order to establish a due process violation, the Defendant must establish three things:

(1) That the person whose license was revoked submitted to a breath, blood or urine test;
(2) The person prejudicially relied on the implied consent advisory in deciding to undergo testing; and 
(3) The implied consent advisory did not accurately inform the person of the legal consequences of refusing to submit to testing.

Since everyone was relying on Olinger, no attorney was having their Minnesota DWI client testify that they relied upon what they were told when the police read the Minnesota Implied Consent Advisory. And so now, all those Olinger-type cases are getting reversed by the Minnesota Court of Appeals. AARRGH!!

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, November 5, 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 Windsor v. Commissioner of Public Safety (Decided November 5, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that if the police read a misleading advisory to a person under arrest for DWI, the arrestee must testify he or she relied on the misleading advisory in order to establish a due process violation.

In Windsor, the Petitioner was arrested for a DWI and was read a Minnesota Implied Consent advisory and was asked to submit to a blood test.  The advisory falsely advised the Petitioner that refusal to submit to a warrantless blood test was a crime.  The Petitioner submitted to a blood test and the test result indicated the presence of amphetamine.

The commissioner revoked Windsor’s license to drive based on the results of the blood test. Windsor petitioned the district court for rescission of the license revocation. The district court held an implied-consent hearing, at which the court received the following evidence: a peace-officer certificate, a copy of the implied-consent advisory that was read to Windsor, and a copy of Windsor’s test results. Windsor did not testify at the hearing.

The district court rejected Windsor’s Fourth Amendment argument, reasoning that Windsor “freely and voluntarily” consented to the blood test. However, the district court relied on McDonnell and found that the state violated Windsor’s right to due process because “[i]t was not a crime for [Windsor] to refuse a warrantless request for a blood test” and that Windsor was therefore “misled when he was told refusal was a crime.” The district court concluded, “Since the portion of the Implied Consent Advisory that informed [Windsor] that ‘test refusal is a crime’ was unconstitutional, his driver’s license revocation is rescinded.

The State appealed and the Minnesota Court of Appeals reversed the district court, noting:

"In its recent decision in Johnson, the supreme court stated that a due-process violation under McDonnell does not occur 'solely because a driver [has] been misled' by an implied-consent advisory. 911 N.W.2d at 508. Instead, the supreme court stated:
A license revocation violates due process when: (1) the person whose license was revoked submitted to a breath, blood, or urine test; (2) the person prejudicially relied on the implied consent advisory in deciding to undergo testing; and (3) the implied consent advisory did not accurately inform the person of the legal consequences of refusing to submit to the testing. Id. at 508-09 (citing McDonnell, 473 N.W.2d at 853-55)."
***
"The circumstances here are identical to those in Morehouse. Although Windsor submitted to a blood test, he did not establish that he prejudicially relied on the implied- consent advisory in deciding to submit to the test. He therefore is not entitled to due- process relief under McDonnell."

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 Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Thursday, November 1, 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. Went (Decided October 29, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that stopping by the side of the road and then attempting to drive away does not justify a seizure by the police. Well duh, except the prosecutor did not know that.

In Wento, the Defendant was driving southbound on Highway 53 in Koochiching County, Minnesota.  A Minnesota State Trooper was traveling northbound along the same highway when he saw Wento’s car. He observed no traffic violations as he passed her, but waited until Wento’s car was out of sight before turning around to follow her. Down the highway, Wento had pulled off to the side of the road. As the trooper pulled up behind her car, he saw the passenger door open and someone crouched beside it. The unidentified person got back into the car and closed the door, and the car pulled away from the side of the road. The trooper activated his squad car lights and stopped Wento’s car.

The trooper walked up to Wento’s car to talk with her. He learned that Wento had pulled to the side of the road because her passenger had to vomit. The trooper could smell a moderate odor of alcohol and noticed that Wento slurred her words as she spoke. Wento admitted to having a couple beers earlier in the day, and the trooper ordered her out of the car to do field sobriety tests. After showing various indicators of being impaired and failing the preliminary breath test, Wento was arrested and later consented to a breath test. Her alcohol concentration was above the legal limit and she was charged with fourth-degree driving while impaired in violation of Minn. Stat. § 169A.27, subd. 1 (2016) and operating a motor vehicle with an alcohol concentration of .08 in violation of Minn. Stat. § 169A.20, subd. 1(5) (2016). Wento filed a motion to dismiss the charges for lack of probable cause and a motion to suppress all evidence seized.

At the motion hearing, the trooper testified that he stopped Wento’s vehicle to perform a welfare check. The district court found that instead he initiated a traffic stop when he activated his lights and had no reasonable articulable suspicion for such a seizure. Finding that all evidence seized was in violation of Wento’s constitutional rights because the trooper did not have reasonable suspicion to initiate a stop, the district court granted Wento’s motion to dismiss the case for lack of probable cause. 

The State appealed the District Court's ruling, but the Minnesota Court of Appeals affirmed the District Court noting:

"A seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn 1993) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S. Ct. 1868, 1879 n. 16 (1968)). To determine if a seizure has taken place, this court looks to “whether a police officer’s actions would lead a reasonable person under the same circumstances to believe that she was not free to leave.” State v. Lopez, 698 N.W.2d 18, 21 (Minn. App. 2005). This analysis depends on the totality of the circumstances. Id.; see also E.D.J., 502 N.W.2d at 783."

"In this case, the trooper testified at the motion hearing that he did not activate his emergency lights when he pulled up behind Wento’s car, but instead waited until she “started driving away.” It is generally established that a seizure occurs when a police officer stops a vehicle. See State v. Bergerson, 659 N.W.2d 791, 795 (Minn. App. 2003) (holding that a “driver confronted with a trailing squad car with flashing red lights inevitably feels duty bound to submit to this show of authority by pulling over”); see also Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396 (1979). The state relies on State v. Hanson, which holds that activating squad lights alone does not constitute a seizure on an already stopped vehicle and can instead be construed by a reasonable person as a welfare check. 504 N.W.2d 219, 220 (Minn. 1993). In this case, though, Wento was not parked on the side of the road and was instead driving away from the trooper when he activated his emergency lights. Unlike a welfare check, the use of emergency lights signaled to Wento “that the officer [was] attempting to seize [her] for investigative purposes.” Id. The state provides no argument to counter the trooper’s testimony at the hearing: that he activated his lights after Wento pulled away from the side of the road. Therefore, because a reasonable person would feel restrained in this situation, the district court did not err in finding the seizure took place when the trooper activated his lights."

"Here, the trooper pulled up behind Wento’s car and noticed the passenger’s door was open with someone crouched outside. The passenger returned to the car and closed the door, and the car pulled away. Only after initiating the stop did the trooper learn that the passenger had been throwing up. The trooper testified at the hearing that he did not “know what [was] happening in that vehicle,” indicating that he was not motivated by the need to render aid. Additionally, he was not called to this scene to check on anyone’s wellbeing. See Lopez, 698 N.W.2d at 23 (noting that “an officer responding to a call to investigate someone unconscious or sleeping in a vehicle is justified in investigating the welfare of that individual”). Further, a reasonable person under these circumstances would not believe an emergency existed when a vehicle briefly pulled off to the side of the road, then eventually drove away with no traffic violations. Because the trooper was not reasonably motivated by the need to render assistance and no reasonable person would believe an emergency existed, the emergency-aid exception does not apply and the stop was constitutionally unreasonable."

Moral Of The Story: If you have to stop by the side of the road, make it short!



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, October 22, 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. Whitaker, (Decided October 22, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that hearsay must be reliable in order to be admissible.

In Whitaker, 911 dispatch received two phones calls at approximately 11:30 p.m. regarding a single-car accident. The first caller reported seeing a "smoking" car that had hit a tree with someone still inside the vehicle. The second caller said that he saw a car hit a tree, and had tried to speak with the driver, who was still in the car and "freakin' out." He also stated that the driver did not respond to him.

Officers found the car crashed into a tree, as reported. They also found one individual—later identified as appellant Deddrick Terrell Whitaker—seatbelted in the driver's seat. According to officers, Whitaker acted erratically—he rocked back and forth, yelled gibberish, flailed his arms, and did not respond to officers. The officers noted that the car was still running and in drive. Eventually, the fire department removed Whitaker from the car, and he was transported to the hospital. Officers meanwhile searched the car and found two bags containing suspected controlled substances.

Officers obtained a search warrant, and Whitaker's blood was drawn and tested; his blood test revealed the presence of phencyclidine, a controlled substance more commonly known as PCP. Whitaker was charged with driving while impaired (DWI)—presence of a controlled substance—under Minn. Stat. § 169A.20, subd. 1(7) (2016).

In January 2017, Whitaker notified the state by motion that he intended to "rely on the affirmative defense of 'someone else was the driver of the motor vehicle.'" The day before trial was scheduled to begin, the district court conducted a pretrial hearing. Whitaker stated that the "true driver" of the vehicle was in the courtroom. The district court inquired further, the witness stated his name—K.A.—and left the courtroom at the district court's direction because he was a potential witness. Later, K.A. gave statements to investigators for the state and the defense.

During the three-day jury trial, the state offered testimony from the responding officers, a hospital employee, investigators, BCA employees, and an individual who testified that he sold the car involved in the accident to Whitaker, who was not the registered owner. After the state rested, and outside the jury's presence, the defense said it intended to call K.A. to establish that he, not Whitaker, drove the car. The district court appointed counsel to advise K.A. before he testified. After a recess, and outside the jury's presence, K.A. took the witness stand, and, under questioning from his counsel, invoked his Fifth Amendment right against self-incrimination. The district court released K.A. from the defense subpoena.

Whitaker asked to introduce K.A.'s out-of-court statements through either the defense or the state's investigators under an exception to the hearsay rule. The state objected and argued the out-of-court statements were not reliable. After determining that K.A. was unavailable, as required by the applicable rule of evidence, the district court considered several factors and excluded the evidence as inadmissible hearsay.

Whitaker then testified, stating that he had been sleeping in the car for a few days before the accident, he did not own the car, and K.A. drove the car the day of the accident. He also testified that he remembered the car hitting a tree and he was then knocked unconscious.  The jury found Whitaker guilty and on appeal, he contends the district court erred when it excluded the out of court statement of K.A.

The Minnesota Court of Appeals affirmed the conviction noting:

"Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Minn. R. Evid. 801(c). Generally, hearsay is not admissible unless an exception applies. Minn. R. Evid. 802. One exception allows the admission of hearsay by an unavailable declarant when the statement is against the declarant's interest. See Minn. R. Evid. 804(b)(3). Under this exception, a hearsay statement that is against the declarant's penal interest may be admissible to exculpate the defendant only if: (1) the declarant is unavailable to testify; (2) the statement tended to "subject the declarant to civil or criminal liability" at the time the statement was made, so that a reasonable person would not have made the statement unless they believed it to be true; and (3) "corroborating circumstances clearly indicate the trustworthiness of the statement." Ferguson v. State, 826 N.W.2d 808, 813 (Minn. 2013)."

"Here, the parties dispute only the third requirement: whether corroborating circumstances clearly indicate the trustworthiness of K.A.'s statements to investigators.2 In Ferguson v. State, the Minnesota Supreme Court directed district courts to examine six factors to determine the trustworthiness of a hearsay statement against interest: "(1) whether other evidence corroborates the facts in the hearsay statement; (2) the extent to which the hearsay statement is consistent with the declarant's prior testimony and other statements; (3) the relationship between the declarant and other witnesses and parties, including the defendant; (4) whether the declarant has reason to fabricate the statement; (5) the overall credibility and character of the declarant; and (6) the timing of the statement." 826 N.W.2d at 813. It is not necessary to address all six factors in every case; the trustworthiness of the hearsay statement under rule 804(b)(3) "depends on the totality of the circumstances, and the relevance of each of the six factors will vary depending on the facts of each case." 

"Based on two factors—the lack of corroborating evidence and the timing of the statements—the district court decided to exclude K.A.'s statements. The district court considered other admitted evidence, specifically, the 911 call "that only identified one occupant in the vehicle," the responding officers' statements that they "did not see any other individuals," and that Whitaker "was buckled into the driver's seat" and "[t]he car was still in drive." The district court concluded that no "other information" corroborated K.A.'s statement. We agree with the district court.

Moral Of The Story:  Alibi Witness delayed is alibi witness denied.


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, October 8, 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 Susa v. Commissioner of Public Safety (Decided October 8, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that you must show you relied on the inaccurate Implied Consent advisory before you can challenge the test result.  

In Susa, the Petitioner was arrested for a DWI in Pine County.  After the deputy read the Minnesota Implied Consent Advisory, Petitioner provided a urine sample. Analysis of the sample indicated an alcohol concentration of 0.14. The Commissioner Of Public Safety revoked Petitioner's driver's license.

Petitioner challenged the license revocation in district court arguing his due-process rights were violated because the implied-consent advisory was misleading in that it advised him that it was a crime to refuse to submit to a warrantless blood or urine test, which simply was not true. 

In a memorandum in support of his motion, Petitioner argued that the warrantless urine test was unconstitutional because there were no valid exceptions to the warrant requirement and respondent had a right to refuse a warrantless blood or urine test under State v. Trahan, 870 N.W.2d 396 (Minn. App. 2015), aff'd, 886 N.W.2d 216 (Minn. 2016) (concluding test-refusal statute, which criminalized driver's refusal to take a warrantless blood test, was unconstitutional as applied to Trahan where there were no exigent circumstances justifying a warrantless search of his blood). Petitioner also relied on McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848 (Minn. 1991), to support his argument that the implied-consent advisory was misleading and violated his due-process rights. 

In an unpublished opinion, this court affirmed the district court's rescission order on McDonnell due-process grounds. Susa v. Comm 'r of Pub. Safety, No. A16-0569, 2016 WL 7188703, at *2 (Minn. App. Dec. 12, 2016). We concluded that respondent's due-process rights were violated by the misleading implied-consent advisory that threatened to criminally punish respondent for refusing to submit to a warrantless blood or urine test. Id. at *4. We reasoned that "[r]ecent holdings of the Minnesota Supreme Court and the United States Supreme Court make clear that the state cannot criminally punish respondent for his refusal to submit to either the blood or urine tests offered by the deputy.

The supreme court granted the commissioner's petition for review and stayed the proceedings pending final disposition in Morehouse v. Comm'r of Pub. Safety.  In Morehouse, the Petitioner not even claim, much less establish, that he prejudicially relied on the implied-consent advisory, The Morehouse Court ruled Petitioner was not entitled to rescission of his license revocation under McDonnell.

Morehouse overruled Olinger v. Commissioner of Public Safety in which the Minnesota Supreme Court had previously ruled a party DID NOT have to show prejudicial reliance upon the advisory.  Thus the Court of Appeals, in this case, uses Morehouse to reverse the district court, noting:

"At the time respondent petitioned for judicial review of his license revocation, this court had not required a showing of prejudicial reliance on a misleading implied-consent advisory. See Olinger v. Comm 'r of Pub. Safety, 478 N.W.2d 806, 808 (Minn. App. 1991) (concluding McDonnell due-process violation occurs when police threaten criminal charges the state is not authorized to impose, without any showing of prejudicial reliance). Respondent contends that Johnson and Morehouse "fundamentally changed the rule of law with respect to the prejudicial effect of a misleading Implied Consent Advisory." But the supreme court in Morehouse and Johnson has now clarified that a McDonnell due-process violation has three elements, one of which requires proof of prejudicial reliance. The supreme court did not remand to the district court to give Morehouse an opportunity to develop a factual record on prejudicial reliance. 911 N.W.2d at 505."

"Applying Morehouse, as we are required to do by the supreme court's remand instructions, we are persuaded that respondent did not allege or establish the second element of a McDonnell due-process violation. Respondent did not testify at the evidentiary hearing, and he did not claim prejudicial reliance in his written submissions to the district court. Because the record does not establish that respondent prejudicially relied on the misleading implied-consent advisory in making the decision to submit to testing, respondent has not established a McDonnell due-process violation, and he is not entitled to rescission of his driver's license revocation on due-process grounds"

OUCH!

Moral Of The Story:  If you have been misled, speak up!!


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.