Monday, August 8, 2016

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

The Minnesota DWI Case Of The Week is Stoneburner v. Commissioner of Public Safety (Decided August 8, 2016, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police do not have to prove that you were speeding in order to stop you for speeding.

In Stoneburner, Cold Spring-Richmond police officer Christi Hoffman, (who had more than twelve years of law-enforcement experience), was on patrol in the city of Richmond, Minnesota. Hoffman was traveling eastbound when she noticed a westbound car on Highway 23 that she estimated was traveling over the posted 50-mile-per-hour speed limit. Hoffman activated her squad car radar unit to confirm her visual observation. The target car was about one-half mile away at that point, which is within the radar-unit range. The radar unit showed speeds of 62, 61, and 60, at which point she locked the display, confirming her visual estimate of speed. Hoffman stopped the car, which was driven by appellant Robert David Stoneburner.

After noticing some indicia of intoxication, the officer had Mr. Stoneburner perform some field sobriety tests which, according to the officer, he failed.  Mr. Stoneburner was placed under arrest and subsequently submitted to a breath test which revealed an alcohol concentration level in excess of .08.

Mr. Stoneburner challenged the revocation of his driver's license challenging Hoffman's ability to make a visual estimate of speed and primarily claiming that the radar device had not been properly calibrated because Hoffman testified that she performed only a limited internal calibration test, and not an external calibration measurement.

The district court sustained Stoneburner's license revocation, concluding that Hoffman had a reasonable and articulable basis for stopping Stoneburner's car based on her visual observation of speed.  

On Appeal, Stoneburner argued that the radar evidence did not provide a particularized and objective basis for the stop because Hoffman did not comply with Minn. Stat. § 169.14, subd. 10(a) (2014). This section states that "[i]n any prosecution in which the rate of speed of a motor vehicle is relevant" radar evidence is admissible if (1) the officer has been trained to operate the device; (2) the officer can describe how the device was set up and operated; (3) there was only minimal interference or distortion in the surrounding environment; and (4) the device was subject to testing by an external method that is accurate and reliable. Stoneburner argued that Hoffman did not testify about a reliable external testing mechanism and, therefore, she had no particularized and objective basis for the stop.

The Court of Appeals rejected Stoneburner's argument and affirmed the district court stating, "Minnesota courts have approved the use of visual speed estimation when the witness has an opportunity to observe the subject vehicle and has experience with estimating the speed of moving vehicles, particularly when the witness, like Hoffman, has years of law-enforcement experience and training." And, "...the issue here is not whether the state or the commissioner can prove beyond a reasonable doubt that Stoneburner was exceeding the speed limit prior to the stop; the issue is whether Hoffman had a "particularized and objective basis for suspecting" that Stoneburner was violating the law."

In this case, "Hoffman testified to specific facts that led her to conclude that Stoneburner was violating the law: she visually observed a car that appeared to be exceeding the speed limit; she had received training in estimating the speed of moving vehicles; and her radar unit, even if not properly calibrated, confirmed her visual observation. The district court found that Hoffman was a credible witness. Because these facts provided a basis for a brief investigatory stop, the district court did not err by determining that the stop was lawful."

Moral of The Story: If you even look guilty, the police can stop you!

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, July 25, 2016

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

The Minnesota DWI Case Of The Week is Frank v. Commissioner of Public Safety (Decided July 25, 2016, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police will "tailor" their testimony to avoid the impact of a previous appellate court decision.

In this case, Mr. Frank was driving his pickup truck in Crow Wing County at approximately 12:35 a.m.  A police officer was driving his squad in the opposite direction and as the two vehicle approached each other, Mr. Frank flashed his bright lights, "very briefly". The police officer then turned around and stopped Mr. Frank, who was subsequently arrested for DWI.

Mr. Frank challenged the validity of the stop of his vehicle in a license revocation hearing but the district court upheld the revocation.  

Minn. Stat. § 169.61(b) provides that, "[w]hen the driver of a vehicle approaches a vehicle within 1,000 feet, such driver shall use a distribution of light, or composite beam, so aimed that the glaring rays are not projected into the eyes of the oncoming driver." But in Sarber v. Commissioner of Public Safety, 819 N.W.2d 465 at 471-472 (Minn. App. 2012) the Minnesota Court of Appeals held that the statute, "Does not prohibit drivers from momentarily flashing their high beams at oncoming traffic, so long as the flashing is brief and conducted in such a manner that it does not blind or impair other drivers." 

So what did the officer testify to in this case?  The officer testified "that appellant's headlights were 'extremely bright,' to the extent that they 'literally just about blinded [him].' The officer testified that he pulled onto the shoulder and stopped because he was blinded by appellant's headlights. 

RIGHT! The problem is the district court bought the officer's testimony and on appeal, the appellate court will not reverse a finding of fact unless it is clearly erroneous as the appellate court is not in any position to judge the credibility of a witness.

Moral Of The Story: Be careful who you flash!

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

Tuesday, July 5, 2016

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

The Minnesota DWI Case Of The Week is Puro v. Commissioner of Public Safety (Decided July 5, 2016, Minnesota Court of Appeals, Unpublished) which contains a good discussion of "physical control".

In Puro, the Appellant went to a restaurant and began consuming alcohol.  Around 4:00 p.m., the bartender asked Mr. Puro to leave because he was getting rowdy from having had too much to drink.  Mr. Puro left the restaurant and made his way to his wife's Subaru which was parked in the restaurant's parking lot.  Mr. Puro fell asleep in the car and was subsequently discovered by the police.

The officer approached the Subaru and tapped on the window to try to wake up Mr. Puro who was sitting in the driver's seat but the engine was not running.  Mr. Puro appeared startled and subsequently opened the car door to speak to the officer.  The keys to the vehicle were located on the floor beneath the feet of Mr. Puro.

Mr. Puro was arrested for DWI and he challenged the revocation of his driver's license arguing that the police did not have probable cause to believe he was "in physical control" of a motor vehicle.  The district court concluded that the state proved by a preponderance of the evidence that Mr. Puro was in physical control and on appeal, the Minnesota Court of Appeals agreed, stating:

"Under Minnesota's implied-consent law, the state may revoke a person's license if he is in physical control of a vehicle in order to "deter intoxicated persons from getting into vehicles except as passengers and to act as a preventive measure to enable the drunken driver to be apprehended before he strikes." State v. Fleck, 111 N.W.2d 233, 236 (Minn. 2010) (quotation omitted). The term "in physical control" includes "when an intoxicated person is found in a parked vehicle under circumstances in which the vehicle, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property." Id. (alteration omitted) (quotation omitted). A person is in physical control of a vehicle if the person has the means to initiate any movement and is close to the operating controls of the vehicle."

"But a person is not in physical control when the person has 'relinquished control of the vehicle to a designated driver."'Id. And presence in the vehicle by itself is not enough to show physical control. Id. This court examines the overall situation to make the determination, which includes the examination of a number of factors "including: the person's location in proximity to the vehicle; the location of the keys; whether the person was a passenger in the vehicle; who owned the vehicle; and the vehicle's operability." Id. Whether a person intends to drive is not part of the analysis in determining if the person was in physical control."

"Here, the officer found Puro alone, intoxicated, and asleep or passed out in the legally parked and operable Subaru. Puro, like Fleck, was in the driver's seat. The keys, which were on the floor between his feet, were readily accessible to him. He could have picked up the keys, started the vehicle, and tried to drive home." Therefore, the district court was correct in finding that Mr. Puro was in physical control of a motor vehicle.

Moral Of The Story: If you have been drinking, do not get into a car except as a passenger!!

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, June 13, 2016

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

The Minnesota DWI Case Of The Week is Raskovich v. Commissioner of Public Safety (Decided June 13, 2016, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police do not need to see you drive, operate or physically control a motor vehicle for your license to be revoked for DWI.

In Raskovich, Shakopee police officers responded to a report of a drunk and disorderly patron at a hair salon. The salon owner identified the patron as Jodie Raskovich.  The officers approached Ms. Kaskovich as she left the salon and observed indicia of intoxication.  Ms. Raskovich admitted she had consumed "a couple" of drinks at lunch before driving to the salon and denied consuming any alcohol after she arrived to have her hair done.  Ms. Raskovich was eventually arrested and submitted to testing which yielded a breath alcohol result of .195.

Ms. Raskovich challenged the revocation of her license but the revocation was sustained by the district court. On appeal, she argued that the evidence was insufficient to justify the revocation of her license. The Minnesota Court of Appeals, however, affirmed the revocation, stating:

"In a judicial review hearing for a driver's license revocation under the implied-consent statute, the commissioner must demonstrate by a preponderance of the evidence that license revocation is appropriate." Axelberg, 831 N.W.2d at 684. License revocation is appropriate only if the arresting officer had probable cause to believe that the petitioner was driving while impaired. See Minn. Stat. §§ 169A.51, subd. 1 (providing that peace officer may invoke implied-consent law on probable cause to believe the person was driving, operating, or in physical control of a motor vehicle in violation of section 169A.20 (driving while impaired)), .53, subd. 3(b) (providing that scope of implied-consent hearing includes question, "Did the peace officer have probable cause to believe the person was driving, operating, or in physical control of a motor vehicle ... in violation of section 169A.20 (driving while impaired)?") (2014). Such probable cause exists "whenever there are facts and circumstances known to the officer which would warrant a prudent man in believing that the individual was driving or was operating or was in physical control of a motor vehicle while impaired." State v. Koppi, 798 N.W.2d 358, 362 (Minn. 2011) (quotation omitted)."

Here the officer testified that Raskovich admitted drinking before driving to the salon and she denied drinking after she arrived. The officer also found Ms. Raskovich's vehicle in the parking lot of the salon. "We conclude that the facts and circumstances known to the officer would warrant a prudent person to believe that Raskovich was driving a vehicle while impaired and that the testimony, therefore, is sufficient to affirm the revocation of her license".

Moral Of The Story:  It is never a good idea to talk to the police.

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


Wednesday, May 25, 2016

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

The Minnesota DWI Case Of The Week is Walsh v. Commissioner of Public Safety (Decided May 23, 2016, Minnesota Court of Appeals, Unpublished) which stands, once again, for the proposition that the police do not need probable cause to conduct field sobriety tests and a PBT test. I disagree but I am not on the Court of Appeals.

In Walsh, on January 30, 2015, Deputy Ryan Googins heard over his police radio that someone had called in a driving complaint. The caller identified himself and reported that he had seen a female in a vehicle at a Kwik Trip consuming what looked like small, airline-sized bottles of alcohol. The caller stated that when he made eye contact with the driver, she became nervous and drove away. The caller noted the vehicle's license-plate number, provided it to the police, and stated that he last saw the vehicle traveling south on Highway 3 from the Kwik Trip.

Deputy Googins spotted the vehicle and saw it turn into the Dakota County Library parking lot and park in an available space. Deputy Googins pulled into the parking lot, activated his lights, and parked behind the vehicle. As Deputy Googins approached appellant Shannon Forstrom Walsh, she was eating crackers and exiting her vehicle. Deputy Googins noticed an overwhelming odor of alcohol coming from the vehicle. When Deputy Googins asked appellant about the odor, she replied that she had not been drinking and suggested that the smell was coming from the crackers. Deputy Googins also noticed that appellant's eyes were watery and bloodshot.

Deputy Googins asked appellant to step out of the vehicle and take a series of tests. Appellant performed the horizontal-gaze nystagmus, walk-and-turn, and one-leg-stand tests and exhibited indicia of intoxication on all three tests, though the indicia of intoxication were subtle on the one-leg-stand test. Deputy Googins administered a PBT and placed appellant under arrest for driving while impaired (DWI). Deputy Googins read appellant the implied-consent advisory. Appellant declined to consult with an attorney. Deputy Googins offered appellant a breath test, and appellant agreed to take it. The test indicated that appellant's alcohol concentration was 0.12.

The District Court upheld the revocation of the Appellant's driver's license and on appeal, she argued that the field sobriety tests and PBT are subject to the "probable cause" and warrant requirements of the Fourth Amendment.  The Minnesota Court of Appeals, however, rejected this argument stating:

"Appellant's position is inconsistent with the applicable caselaw. An officer needs only reasonable, articulable suspicion of criminal activity to administer field sobriety tests and a PBT. State, Dep 't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981); State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (holding that administration of field sobriety testing based on officer's observations of odor of alcohol and Klamar's bloodshot and watery eyes was reasonable); State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (stating that an officer may request a PBT on the basis of specific and articulable facts), review denied (Mi\m. May 16, 1986). Appellant's reliance on Colorado and Oregon law is thus unpersuasive because it is contrary to binding Minnesota precedent."

Far be it for the Court of Appeals to change its mind.  And while it can be argued that field sobriety tests merely require a person to demonstrate their physical characteristics, (such as their ability to balance) and no "search" is involved in such tests, the same cannot be said for a preliminary breath test.  A PBT requires a person to blow a specified volume of air into a machine and the air is then analyzed for alcohol.  The PBT test is a search just like the Data Master test performed at the police station.  And to claim that the PBT test does not require probable cause is just plain wrong.

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, May 16, 2016

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

The Minnesota DWI Case Of The Week is Tomlinson v. Commissioner of Public Safety (Decided May 16, 2016, Minnesota Court of Appeals, Unpublished) which stands for the proposition that an informant's tip is sufficient to justify the stop of a vehicle even if the informant is an irate boyfriend!

In Tomlinson, the Petitioner's boyfriend, Jay Janzen, called the police in March 2015.  Mr Janzen told the police that Ms. Tomlinson was driving drunk from Vernon Center to their shared home east of Ormsby.  Janzen told the police that the Petitioner was driving from a snowmobile club meeting from which she regularly drives home drunk and that his text-message exchange with Tomlinson informed him that Tomlinson had become lost.

The police went looking for Ms. Tomlinson and soon found her driving on a gravel road.  They stopped the vehicle and subsequently determined that the Petitioner was intoxicated.

The Petitioner challenged the legality of the police stop but the district court denied her challenge.  On appeal, the Minnesota Court of Appeals affirmed the district court noting that: "A reasonable suspicion may arise from information supplied by an informant" and "the deputy was aware of the following details: Tomlinson was driving very late, after midnight.  Tomlinson reportedly customarily drives home drunk after she leaves her club meeting.  Tomlinson got lost despite her familiarity with the route; Tomlinson had still not found her way home in the 45 minutes between the time of the call and the time the deputy encountered her on the road; and Tomlinson's boyfriend who lives with Tomlinson believed her communication to him indicated she was drunk. This reasonable suspicion warrants the minimal intrusion of the brief traffic stop". 

"Janzen was not an anonymous informant who provided only a bare assertion of a possible drunk driver.  Nor was he a stranger-informant who failed to provide any basis for his conclusion. Jansen expressed that Tomlinson was intoxicated, and not just possibly intoxicated, and he was convinced of it based on his personal experience with Tomlinson's regularly driving home drunk after her snowmobile club meetings and on her getting lost after leaving the meeting late that night.  This case is sufficiently similar to those in which the informant confidently communicated drunk driving and in which the basis for the report was apparent.  The district court appropriately denied Tomlinson's motion to suppress the evidence that followed the traffic stop."

Moral Of The Story:  With boyfriend's like that, who needs enemies?

If you or a loved one has 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, May 9, 2016

Minneapolis 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 May 9, 2016, Published, Minnesota Court of Appeals) which stands for the proposition that even if you are certifiably insane, you still must file a challenge to the license revocation within 30 days of the revocation.

In Johnson, the Defendant was arrested for DWI in 2006 and for a second DWI offense in 2008.  He received a notice of license revocation in each case but he never filed a license revocation challenge to either offense.  

While these DWI charges were pending, the Defendant was found mentally incompetent to stand trial for either offense.  As a result, both of the charges were subsequently dismissed.

On December 12, 2012 the Defendant was arrested for felony DWI and the state used the license revocations from the 2006 and 2008 arrests to enhance the 2012 arrest to a felony.  In April 2015, the Defendant filed an Implied Consent Challenge to the two prior license revocations but the district court dismissed the challenges as untimely.

On appeal, the Defendant asserted that because he was found incompetent to face criminal charges stemming from his 2006 and 2008 DWI arrests, he was also mentally incompetent to request judicial review of the corresponding license-revocation proceedings.  He, therefore, claims that because the revocations are now being used to enhance the pending DWI prosecution, the revocations violate his due process rights and should be rescinded.

In rejecting the Defendant's challenge, the Minnesota Court of Appeals notes:

"Appellant appears to suggest that because of his mental incompetence at the times he received notice of the revocations, he was not given adequate notice to seek judicial review. Therefore, he argues, enforcing the 30-day jurisdictional bar would violate his due-process rights. Notice is adequate in an implied-consent proceeding where the state provides "[n]otice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." McShane, 311 N.W.2d at 482-83 (quotation omitted). "Actual receipt of the notice is not required to meet the due process requirement." State v. Green, 351 N.W.2d 42, 44 (Minn. App. 1984). Courts have found notice to be adequate even where the petitioner did not receive actual notice or claimed not to understand the notice. Id.; Johnson v. Comm 'r of Pub. Safety, 394 N.W.2d 867, 868-69 (Minn. App. 1986). So long as notice of the opportunity to seek judicial review of a revocation is "reasonably calculated" to reach the driver, it may satisfy due process even if it never, in fact, reaches that driver."

"Because the notice to appellant was sufficient to satisfy due process and appellant did not exercise his right to request judicial review within the 30-day period, the district court did not have jurisdiction to hear the petition. If the result now seems harsh, it is a criticism that may be levelled against many statutes of limitation. Furthermore, as a matter of public policy D.W.I, laws, including the implied consent statute, are liberally construed in the public's favor and are strictly applied."

Moral Of The Story:  You would have to be crazy not to  file a timely challenge your license revocation. Because even if you are, that is no excuse!

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