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Of The Week is Leshoure v. One 2003 GMC Yukon Motor Vehicle (Decided January 17, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you are going to act as your own lawyer, you had better know what you are doing.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

Monday, December 5, 2016

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

The Minnesota DWI Case Of The Week Is Henry v. Commissioner of Public Safety (Decided December 5, 2106, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you say you want to talk to a lawyer prior to testing, you damn well better try your best to reach one!

In Henry, the Appellant was arrested for DWI and was taken to the Benton County Jail where he was read the Minnesota Implied Consent Advisory informing him that he had the right to speak to an attorney prior to testing.  

Henry told the deputy that he wished to contact an attorney. He requested access to his cellular telephone so that he could find the telephone number of a person he described as "my attorney." After some discussion, the deputy granted the request. The deputy then escorted Henry to a separate room with a desk, a telephone, and telephone directories. Henry used the jail telephone to call his attorney and left a voice-mail message.

After Henry left the voice-mail message for his attorney, the deputy told Henry that he could use the telephone directories to contact other attorneys. Henry did not attempt to do so. After further discussion with the deputy, Henry stood up as if he was ready to leave the room. Henry was in the room with the jail telephone and telephone directories for approximately four minutes.

The deputy escorted Henry back to the alcohol-testing room and asked him to submit to a breath test. Henry initially responded by asking multiple questions. He later said repeatedly that he would like to speak with an attorney. The deputy informed Henry repeatedly that he would need to make a decision to either submit to a breath test or not. 

The deputy advised Henry that an unreasonable delay in making a decision would be deemed a refusal to submit to a breath test. The deputy asked Henry several times whether he would submit to a breath test, but Henry never answered the question. Eventually the deputy said that he would ask Henry one more time whether he would submit to a breath test. Henry again did not answer in the affirmative or the negative but, rather, indicated that he wanted to consult with an attorney. The deputy deemed Henry to have refused to submit to a breath test.

The Commissioner of Public Safety revoked Mr. Henry's license. Mr. Henry petitioned the district for review of the revocation arguing that his right to counsel had been violated.  The District Court upheld the revocation and on appeal, the Minnesota Court of Appeals agreed noting:

"In deciding whether a driver's limited right to counsel was vindicated, a court generally should consider the totality of the circumstances surrounding the implied-consent advisory and the driver's opportunity to consult with an attorney. (Citations omitted). This court's caselaw has recognized a few factors that are relevant to a totality-of-the-circumstances analysis: whether the driver made a good-faith and sincere effort to reach an attorney, the time of day when the driver attempted to contact an attorney, and the length of time the driver had been under arrest when his
consultation time was ended. (Citations omitted)." 

"If a driver's challenge is based solely on the amount of time allowed for contacting an attorney, the inquiry into whether the driver made a good-faith and sincere effort to reach an attorney is a threshold issue.  (Citations omitted)."

"In this case, the district court determined the threshold issue as follows:
'Petitioner failed to make a good faith effort to contact an attorney, because he voluntarily stopped trying after he called the first attorney and left a voice message. . . . The jail video clearly shows Petitioner never making any attempts to contact other attorneys. Deputy Eisenschenk was given no indication that Petitioner wanted any more time, so he asked Petitioner if he was done contacting attorneys. Petitioner responded by restacking the directories and standing up to leave the room. Petitioner never asked Deputy Eisenschenk for more time. . . . Petitioner failed to meet the good faith threshold required to determine if he was given a reasonable amount of time to contact an attorney. Therefore, his right to consult with an attorney was vindicated.'

"Henry contends that, even if he chose to not call more than one attorney when he was given the opportunity, he changed his mind shortly thereafter and should have been permitted to contact other attorneys at that time. Henry cites State v. Slette, 585 N.W.2d 407 (Minn. App. 1989), in which this court stated that "officers should recognize the withdrawal of a DWI arrestee's initial waiver of the right to consult with counsel when the change of mind is immediate and does not interfere with police officers' processing of a case or their ability to administer [a breath] test." Id. at 409. Henry cannot rely on Slette because the case is distinguishable, for at least three reasons:

First, the defendant in Slette waived his right to consult with an attorney without making any telephone calls. Id. at 408. But Henry exercised his right to contact an attorney and chose to call only one attorney. 
Second, Henry's renewed requests to consult with an attorney did not occur immediately after he voluntarily terminated his opportunity to use the jail telephone and telephone directories. Rather, he did not request another opportunity to consult with an attorney until he was brought to the testing room and was read the implied-consent advisory three additional times. 
Third, Henry did not expressly state that he wanted to contact an attorney other than the attorney for whom he already had left a message. Thus, it appears that he wanted Deputy Eisenschenk to allow him to wait until his attorney returned his call. But the caselaw is clear that a driver who has been arrested for DWI "cannot be permitted to wait indefinitely for a call that may never come." Palme, 541 N.W.2d at 345. For that reason, Henry's last-minute request to consult with an attorney, if granted, would have interfered with Deputy Eisenschenk's "processing" of Henry's case and the deputy's "ability to administer [a breath] test." See Slette, 585 N.W.2d at 409. Accordingly, Henry was not entitled to change his mind about continuing to try to consult with an attorney.

Thus, the district court did not err by concluding that Henry's limited right to counsel was vindicated."

Moral Of The Story:  If you want to talk to a lawyer, you had better "exercise" your right to do so.  Otherwise the police can cut you off.

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.





Monday, November 7, 2016

Minnesota DWI Lawyer 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 November 7, 2016, Minnesota Court Of Appeals, Published) which stands for the proposition that the Minnesota Implied Consent Advisory violates due process when it threatens a criminal refusal charge that the state is not authorized to impose.

In Johnson, the Petitioner was involved in a single-vehicle collision.  When the police arrived, the officer noticed a large unmarked bottle in Petitioner's vehicle which appeared to contain a number of pills.  The Petitioner appeared to be under the influence of something but the officer did not suspect that alcohol was involved.

The Petitioner was placed under arrest for driving while impaired and the officer read Johnson an implied-consent advisory, informing him that Minnesota law required him to take a test to determine if he was under the influence of alcohol or a hazardous or controlled substance and that he had the right to speak with an attorney before deciding whether to take a test. The officer also informed Johnson that refusal to take a urine test is a crime.  The officer did not request a breath test because he did not suspect that Johnson was under the influence of alcohol. Johnson refused to submit to testing.

Appellant Commissioner of Public Safety revoked Johnson's license to drive based on his refusal to submit to a chemical test. Johnson petitioned the district court for rescission of the license revocation. Johnson claimed that his right to due process was violated because the officer did not properly inform him of the consequences of test refusal. The district court rescinded the revocation of Johnson's license to drive, relying on McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991). The district court reasoned that the implied-consent advisory violated Johnson's right to due process by inaccurately informing him that refusal to take a urine test is a crime when Johnson "could not have been criminally charged for refusing an unconstitutional search." 

On appeal by the state, the Minnesota Court of Appeals upheld the District Court, noting:

"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). 
However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873 (Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). 
The district court relied on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom. "
***
"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test
13
refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873
(Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). The district court relied
on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom."
***
"Thompson holds that Minnesota's criminal test-refusal statute is unconstitutional as applied to an individual who refuses to take an unconstitutional urine test. The circumstances of this case fall squarely within Thompson's holding, and the refusal statute is therefore unconstitutional as applied to Johnson. Because a criminal test-refusal charge would be unconstitutional, the implied-consent advisory inaccurately informed Johnson that refusal to take a urine test is a crime. When the state provided that inaccurate advisory, it misinformed Johnson regarding the penalties he would face if he refused to submit to testing, in violation of his right to due process, as established in McDonnell."

Moral of the Story: Don't Make A Threat If You Can't Enforce it.



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