Tuesday, November 1, 2011

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

The Minnesota DWI Case of The Week is   Patino v. One 2007 Chevrolet, (decided October 31, 2011) a published decision of the Minnesota Court of Appeals which stands for the proposition that in order for a DWI vehicle forfeiture to be valid, the Defendant must be convicted of the underlying offense which gave rise to the forfeiture in the first place.  This case is significant as it finally overrules Mastakoski v. 2003 Dodge Durango,  738 N.W.2d 411 (Minn. App. 2007).

In Patino, the Defendant was charged with Second Degree DWI which gave rise to the forfeiture of his vehicle.  The Defendant was charged with Second Degree DWI because he had one prior DWI within ten years of the current offense and he also had a child in the vehicle at the time of the current offense.  The Defendant was allowed to plead guilty to Third Degree DWI (child endangerment) and then he sought the judicial return of his vehicle.

It was the Defendant's position that since he had not been convicted of a designated forfeiture offense (i.e. Second Degree DWI) he was entitled to the vehicle's return.  The State on the other hand relied on Mastakoski v. 2003 Dodge Durango, which had held that the driver need not be convicted of a designated forfeiture offense as long as the driving conduct constituted the commission of a designated offense.

In rejecting the state's position and overruling Mastakoski, the Patino court held, "Forfeiture is a civil in rem cause of action; because it is punitive in nature, the reviewing court strictly construes the language of a forfeiture statute and resolves any doubts in favor of the party challenging the forfeiture...." 

In Mastakoski the Court "...did not address the language of Minn. Stat. § 169A.63, subd. 9(f), which unequivocally states that if 'the forfeiture is based on the commission of a designated offense and the person charged with the designated offense appears in court as required and is not convicted of the offense, the court shall order the property returned to the person legally entitled to it."

The court in Patino therefore held that since the defendant had not been convicted of the designated forfeiture offense, he was entitled to the return of the vehicle.

Moral of the Story:  Give Them Long Enough And They Will Get It Right!



F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

Wednesday, September 21, 2011

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

The Minnesota DWI Case of the Week is unpublished Minnesota Court of Appeals decision of  State v. Darling,  (decided September 19, 2011), which asks the question, "When is a seizure not a seizure?" Answer: When the Court of Appeals says it is not.

On June 8, 2010, Mr. Darling, after a night of heavy drinking, decided to park his car in front of a locked gate at the entrance to a compost site in Moorhead, Minnesota.  A police officer observed the parked vehicle at 12:15 a.m. and thought this was suspicious because the compost site had been closed for hours and the officer knew that there had been criminal activity at the compost site the previous summer.  The officer parked his marked squad car behind Mr. Darling's vehicle, partially blocking it and shined his spotlight on the vehicle.  Then officer then walked up to vehicle where he found Mr. Darling sleeping.  Things went downhill from there and Mr. Darling was ultimately arrested for drunk driving.

On appeal, Mr. Darling contended the officer's action in partially blocking his vehicle and shining the spotlight on him constituted a "seizure" and that said seizure was illegal as at the time it occurred, the officer did not have a reasonable suspicion of criminal activity.  In deciding the issue, the Court of Appeals correctly noted, "Ordinarily, the mere act of a police officer approaching a person sitting in a parked car and asking questions is not a seizure.  (citations omitted) But such an encounter may become a seizure if there is a demonstration of authority that exceeds the behavior to be expected by a private citizen, such as blocking in a person's vehicle, activating emergency lights, or sounding the horn. State v. Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988)".  So far, so good for Mr. Darling.  But then the Court of Appeals ruled that no seizure occurred since the car was only "partially blocked" and the officer did not use his horn or his emergency lights but only used his spotlight!!

I respectfully submit that the Court's position is incorrect.  Since when is it customary for a private citizen to partially block another private citizen's vehicle and then shine a spotlight on said vehicle?  The standard for whether a seizure has occurred is whether a "reasonable person" would believe that he or she has been seized.  And if a police officer pulls up in a marked squad car and partially blocks a person's vehicle and then shines a spotlight on the occupant, I respectfully submit that a reasonable person would conclude that a "seizure" has occurred.

The Court of Appeals reached the correct result as the police officer had a sufficient legal basis to make the initial seizure.  But to rule, as the Court of Appeals did, that no "seizure" occurred is just plain wrong.

MORAL OF THE STORY: If you are going to go green and compost, do it when you are sober!



F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

Wednesday, August 17, 2011

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


The Minnesota DWI Case of the Week is the unpublished Court of Appeals decision of  State v. Butcher, (decided August 17, 2011) which stands for the proposition that if you have eleven prior DWI convictions it might be a good idea to never come near the wheel of an automobile!

 In  Butcher, a Park Rapids police officer was on routine patrol shortly before midnight when he noticed a vehicle parked in a commercial area with its lights on.  As he approached the vehicle, the officer noticed Mr. Butcher get into the driver's seat of the car.  The officer saw the vehicle's lights turn off but was unable to recall whether the vehicle's engine was running.  The officer observed the keys in the ignition and that there was a female passenger in the front seat.

Mr. Butcher was drunk and was subsequently convicted of Felony DWI and was sentenced to prison for 79 months.  On appeal, Butcher argued that he could not be convicted of DWI because the state did not introduce sufficient evidence to establish that he drove, operated or was in physical control of a motor vehicle under Minn. Stat. § 169A.20, subd. 1 (1), (5).  Butcher claimed on appeal that the circumstantial evidence equally supported the conclusion that the female passenger had been driving the vehicle before it came to a stop along the road where the officer noticed it.

The Minnesota Court of Appeals had little problem dismissing Butcher's claim noting, "In this case the undisputed direct evidence shows that Butcher was in physical control of the vehicle as he sat behind the wheel of the vehicle with the key in the ignition, and this evidence is sufficient to sustain his DWI convictions. See, State v. Fleck, 777 N.W.2d 233, 235 (Minn. 2010) (holding that evidence of a person sleeping behind the wheel of his vehicle with the keys in the center console of the vehicle demonstrates physical control of the vehicle sufficient to sustain a conviction of DWI).

"The term 'physical control' in Minnesota's DWI laws is meant to cover situations when an intoxicated person 'is found in a parked vehicle under circumstances where the vehicle, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property'. State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992).  Plainly, Butcher's position behind the wheel of the vehicle along with the fact that the key was in the ignition satisfied the definition of physical control.  There is no merit to Butcher's argument that the evidence was insufficient to prove that he was in physical control of a motor vehicle for purposes of Minn. Stat. § 169A.20, subd. 1 (1), (5).

Moral Of The Story:  Never ever get in a vehicle while drunk unless you are a passenger.



F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

Saturday, June 18, 2011

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


The Minnesota DWI Case of the Week is the published Minnesota Court of Appeals decision of State v. Brown (decided June 13, 2011), which stands for the proposition that a motorized wheelchair or handicap scooter does not constitute a "motor vehicle" for purposes of the DWI law.

For some reason, Mr. Brown decided it would be a good idea to get drunk and drive his battery-operated three-wheel Legend Pride Mobility Scooter on the sidewalks of the City of Grand Rapids.  Mr. Brown drove his scooter to a car dealership and the dealer called the police as he was obviously drunk.  Mr. Brown was subsequently charged with a DWI and the issue in the case was whether his mobility scooter constituted a "motor vehicle".

The Minnesota DWI Statute defines a "motor vehicle", in relevant part, as "every vehicle which is self-propelled", excluding "an electronic personal assistive mobility device".  A "driver" is defined as "every person who drives or is in actual physical control of a vehicle". A "vehicle" is defined as "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway".

A separate Minnesota Statute, however, defines a "pedestrian" as "any person afoot or in a wheelchair". And a "wheelchair" is defined as including "any manual or motorized wheelchair, scooter, tricycle, or similar device used by a disabled person as a substitute for walking".

After reviewing all of the statutory definitions, the Minnesota Court of Appeals correctly held that, "It is plain that for purposes of the traffic regulations, Brown's scooter is a wheelchair and is not a motor vehicle and Brown, who uses the scooter as a substitute for walking, is, while operating his scooter, a pedestrian....We conclude that Brown's operation of his scooter as a substitute for walking does not make him the driver of a motor vehicle within the meaning of (the DWI statute) and does not subject him to criminal charges for operating the scooter while impaired."

Moral Of The Story:  If you are going to get drunk, walk or take a wheelchair.



F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

Wednesday, April 27, 2011

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


The Minnesota DWI Case of the Week is unpublished Minnesota Court of Appeals decision of  State v. McGee, (Decided April 26, 2011) which stands for the proposition that the police are not required to tell a person under arrest for DWI of available alternative test methods where the arrestee does not refuse the test offered.

In McGee, the Defendant was placed under arrest for DWI and after she was taken to the police station, the officer asked the Defendant if she wanted to speak to an attorney prior to testing.  The Defendant waived her right to speak to counsel and was then asked by the arresting officer if she would submit to a urine test.  Ms. McGee responded to the request by  asking, "It has to be the urine test?".  The officer's response was, "We take the urine test". 

The urine sample given by the Defendant tested at an alcohol concentration level of .17.  The Defendant subsequently challenged the admissibility of the urine test result arguing that the officer's failure to inform her of alternative tests to the urine test was a fatal error.  The district court agreed with the Defendant, concluding that the officer materially misled Ms. McGee by failing to inform her of alternative tests, and thereby coerced her consent to the urine test.  The State appealed the District Court's ruling and the Minnesota Court of Appeals reversed the decision stating:

"A person arrested for a DWI may be asked to submit to chemical testing of her blood, breath, or urine to determine the person's alcohol concentration. Minn.Stat. §169A.51, subd. 1(a) (2008).  The decision of which test to administer-blood, breath, or urine-is within the discretion of the police officer.  Although alternative tests are available, an officer is not required to explain this or offer another means of testing until the driver refuses the first test offered."(Emphasis added)
*     *     *
"When asked if she would provide a urine sample, respondent replied, 'It has to be the urine test?' This is a question—not a test refusal. Absent a clear refusal of the first test, the officer had no obligation to alert respondent of alternative testing methods. The officer’s response that “We take the urine test” could have been more forthcoming, but clarification of the process is in the province of legal counsel, not the officer. See Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991) (“An attorney, not a police officer, is the appropriate source of legal advice.”). Respondent expressly declined her opportunity to consult with an attorney, stating, “No, let’s just proceed.” Because respondent did not overtly refuse the urine test, the district court erred by concluding that the officer coerced respondent to consent to urine testing by not informing her of alternative testing methods."


Moral Of The Story:  NEVER, EVER WAIVE YOUR RIGHT TO COUNSEL PRIOR TO TESTING!!! (Otherwise, you may be stuck with an unreliable urine test result).



F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

Friday, March 11, 2011

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

The Minnesota DWI Case of the Week is unpublished Minnesota Court of Appeals decision of  State v. Adams, (Decided March 8, 2011) which stands for the proposition that the Courts should rightfully reject the testimony of a state trooper when he, in effect, testifies, "Who are you going to believe, me or your lying eyes?"

Mr. Adams was arrested for a DWI and his attorney challenged the validity of the initial stop in the district court.  

The attorney had an uphill battle as it is well established that the police can make a limited investigatory traffic stop if the officer has a reasonable articulable suspicion that an occupant of the car is engaged in illegal activity.  The "reasonable suspicion" of criminal activity must be based on specific and articulable facts, not on an unarticulated hunch.  The standard is not high and is less than that required for a finding of "probable cause".

At the suppression hearing, the trooper in this case gave three reasons to support the stop:
(1) he believed the bumper on the respondent's car exceeded the legal height limit; (2) the registered owner of the car had a revoked license; and (3) he believed that respondent was watching television while driving the vehicle.

Any one of these observations could provide the reasonable suspicion needed to make the initial stop.  The problem for this particular state trooper, however, was that his squad video did not back up his claims and the district court called him on it!!  As noted by the Minnesota Court of Appeals:

"The district court enumerated its reasons for discounting the trooper's testimony: (1) although the trooper relied heavily at the omnibus hearing on his belief that respondent was watching television while driving, the district court noted that the flickering light described by the trooper was not apparent in the videotape and that the trooper did not mention this as a reason for the stop when he first spoke to the respondent; (2) the trooper stated that he was able to view the driver well enough while driving to determine that he matched the registered owner's description, but in fact the registered owner was six inches taller and 200 pounds heavier than respondent; the registered owner testified at the omnibus hearing and the district court was able to compare the physical appearance between the owner and respondent; (3) although the trooper measured the car's bumper height after stopping respondent and knew that it did not exceed the statutory maximum, he is recorded on the videotape telling respondent that the bumper was too high; (4) at the omnibus hearing, the trooper failed to make out his own words on the videotape when making the disputed statements, despite the fact that the district court could understand his speech.  All these facts led the district court to conclude that the trooper was not credible."

The Court of Appeals then held that the district court did not commit error when it suppressed all of the evidence noting, "The district court here made extensive credibility findings, essentially rejecting much of the trooper's testimony as inherently suspect.  We will reverse the district court's order suppressing evidence only when the state can clearly and unequivocally demonstrate that the district court's findings of fact are clearly erroneous and that the court 'clearly and unequivocally' erred in its legal conclusions. The state has not met this standard."

So in other words, when a trooper lies to a defendant and lies to the district court and the lies are captured on tape it is not error to conclude that the stop was bogus.

Moral of The Story:  It's Not Nice To Try To Fool Mother Nature Or The District Courts!



F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

Tuesday, January 11, 2011

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



The Minnesota DWI Case of The Week is the unpublished decision of  State v. Dixon  (Minnesota Court of Appeals decided January 11, 2011) which stands for the proposition that urine test results are not subject to scientific challenge in a criminal case.  


In  Dixon, the defendant sought to introduce expert testimony challenging the reliability of urine testing to measure the level of alcohol concentration in a person suspected to driving under the influence.  The trial court, however, ruled that the defense could not offer expert or lay testimony on the reliability of urine testing because Minnesota has accepted the scientific basis of this testing method.

On Appeal, the Minnesota Court of Appeals affirmed, essentially saying they have approved the use of urine testing in the past and so they are going to uphold its use into the future.  Or as stated by the Court:


"Minnesota Courts have rejected challenges to the use of urine tests based on the 'urine-pooling theory', which suggests that a urine test is scientifically invalid if the suspect is not required to void his bladder once and wait 20 to 30 minutes before providing urine for testing, to assure the accuracy of the test. Hayes, 773 N.W.2d at 138-139; Genung v. Comm'r of Pub. Safety, 589 N.W.12d 311, 313.  In  Hayes,  this court ruled that the district court did not abuse its discretion by excluding expert testimony that would have attempted to challenge the validity of the urine testing based on this theory.  In  Genung,  this court stated that BCA urine-testing procedures 'have been found to ensure reliability' and 'do not require voiding once before producing the test sample.  In Hayes,  this court relied on Genung to conclude that, even if the proffered expert testimony on the urine-pooling theory were relevant, 'it is insufficient as a matter of law to prove that the testing method is not valid and reliable' under the implied statute.  Because current Minnesota law upholds the reliability of first-void urine test results, the district court did not abuse its discretion by refusing to allow appellant to introduce expert witness testimony on the reliability of the urine-pooling theory or by refusing to permit appellant to cross-examin the state's BCA expert witness on that theory."


What is interesting about this case is that the Minnesota Court of Appeals uses CIVIL CASES to reach a result in a CRIMINAL CASE.  Hayes  and  Genung  were both civil cases where the burden of proof is much lower.


In a criminal case, a defendant should always have the right to challenge the accuracy and reliability of a scientific test because the stakes are so much higher than they are in a civil action.  Because a criminal defendant faces the potential loss of his or her liberty then due process, or fundamental fairness, demands that a jury have all the evidence they need to access the reliability of a chemical test. 


When a person stops drinking, the ethanol is continuously being removed from the individual's blood by their metabolism. The ethanol ends up in a person’s urine, which is a waste product excreted by the kidneys. The urine, containing the ethanol, accumulates in the bladder until the person voids.Little or no oxidation of the ethanol occurs in the bladder and can result in abnormally high urine alcohol concentrations being obtained from the first void. Or to quote from A.W. Jones:

“The length of time that urine is stored in the bladder before voiding is also an important consideration because ethanol is continuously being removed from the blood by metabolism, but no oxidation of ethanol occurs in the bladder. This situation results in abnormally high UAC to BAC ratios being obtained for the first void.” Reference Limits for Urine/Blood Ratios of Ethanol in Two Successive Voids from Drinking Drivers. Journal of Analytical Toxicology, Vol. 26, p. 333 (September 2002).

If a person has not done a first void, there is no relationship or correlation between the amount of alcohol in a person’s urine and the amount actually in their blood. It is not at all uncommon for persons to have high levels of alcohol in their urine and very low or no levels of alcohol in their blood. Minnesota is the only place that does not have any promulgated rules for administering or collecting a urine test. Other states, that don’t prohibit urine testing for alcohol concentration by statute or rule, have all promulgated some rules at least for the proper administration of the test!


So even though a first-void urine test result has no support whatsoever in the scientific community, as long as the Minnesota BCA is willing to use it, the Minnesota Court of Appeals is going to back them up.


MORAL OF THE STORY:  Never submit to a urine test.  Always exercise your right to have a blood test done instead.  At least it will be accurate and not overstate your alcohol concentration level.



F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer