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

The Minnesota DWI Case of the Week is  State v. Pexa  (Minnesota Court of Appeals, Unpublished, decided February 24, 2013) which stands for the proposition that in order to convict someone of having an alcohol concentration of .08 or more, the State must prove either that: the test sample was obtained within 2 hours of driving or have expert testimony concerning retrograde extrapolation of a person's blood-alcohol concentration.  Since the State in Pexa  failed to do either one of the above, the Court of Appeals reversed the conviction.

In Pexa, the Defendant was driving his car when he hit an ATV and severely injured the ATV driver.  The accident occurred shortly before 10 p.m.  When the police arrived at the scene, the officer noticed the Defendant exhibited indicia of alcohol consumption. The officer gave the Defendant field sobriety tests and placed him under arrest for DWI. The Defendant was subsequently taken to a hospital where he submitted to a blood test.  The blood sample was not collected until 12:05 a.m. and revealed an alcohol concentration level of 0.09.

The Defendant was charged, with two counts of Criminal Vehicular Operation  (i.e. Causing injury while operating a vehicle with an alcohol concentration of 0.08 or more, and; Causing injury while operating a vehicle with an alcohol concentration of 0.08 or more within two hours of driving).

On the first day of trial, the District Court found that the State violated the rules of discovery by failing to disclose that its expert would be testifying about retrograde extrapolation of a person's blood-alcohol concentration.  The court concluded that because of the discovery violation, the state's expert could not testify on that topic.

The Defendant was subsequently convicted of the criminal vehicular operation statute that required the State to prove he caused "injury to another as a result of operating a motor vehicle while having an alcohol concentration of 0.08 or more".

On appeal, the Defendant argued that because his alcohol concentration was shown to be 0.09 more than two hours after he struck the victim and because the state did not introduce any retrograde-extrapolation evidence, the jury could not infer that appellant's alcohol concentration was at least 0.08 at the time of the accident.  The Minnesota Court of Appeals agreed with the Defendant and reversed the conviction.

The Court of Appeals explained: 

"The state argues that the evidence was sufficient to sustain his conviction because a jury could reasonably infer from the evidence presented that appellant had an alcohol concentration of at least 0.08 at or within two hours of driving.  But disputes about alcohol consumption are different from alcohol concentration.  Assuming sufficient foundation, a lay witness could testify that a person seems 'drunk' based on any commonly observed indicia of drinking.  Thus, factual disputes about alcohol consumption could be resolved by a jury hearing such a lay witness.  But specific numerical alcohol concentration is a scientific matter.  In order to determine alcohol concentration, specific levels of alcohol concentration are introduced through experts who have specific knowledge of anatomy, chemistry, physiology, and timing.  For example, what may not be commonly known is that an individuals's alcohol concentration may actually rise for a short time after the individual has stopped drinking. See, State v. Favre ('Because it takes time for alcohol to reach the blood stream, blood alcohol concentration typically peaks some time after drinking.').  And there are countless variables and scenarios apart from the amount of alcohol consumed that affect a person's alcohol concentration at any given time.  Therefore, it would be impossible for a lay jury to infer a precise level of alcohol concentration at a specific point in time-here the exact time of the accident-without the aid of qualified expert testimony."

Since the State's expert was precluded from testifying because the State failed to abide by the Minnesota Rules of Criminal Procedure and because the blood sample was not obtained within two hours of the accident, the Minnesota Court of Appeals correctly reversed the conviction.

Moral of the Story: When The State Does Not Play By The Rules, It Deserves To Lose!!

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

The Minnesota DWI Case of the Week is the Minnesota Supreme Court Case of  Patino v. One 2007 Chevrolet, (decided October 2, 2012) which stands for the proposition that in order to forfeit a vehicle pursuant to the Minnesota DWI forfeiture statute, the owner of the vehicle must first be convicted of the designated DWI criminal offense.

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, however, argued that although a conviction of a designated offense creates a presumption of judicial forfeiture, such a conviction is not required under the statute. Instead, the State claimed that section 169A.63, subdivision 9(f), prohibits forfeiture only if the driver is not convicted of any charge. 

The Minnesota Supreme Court (fortunately) rejected the State's position and affirmed the Minnesota Court of Appeals ruling which had ordered the return of the vehicle.  The Minnesota Supreme Court in its ruling noted:

"It is undisputed that respondent made a timely demand for a judicial determination under subdivision 8(f). Thus, the administrative proceeding under subdivision 8 was converted into a judicial proceeding under subdivision 9, and subdivision 9 governs the judicial forfeiture proceeding. 

Subdivision 9(f) provides that when 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 upon that person’s compliance with the redemption requirements of section 169A.42. Minn. Stat. § 169A.63, subd. 9(f). Under subdivision 9(f), when a person charged with a designated offense appears in court and is not convicted of the designated offense, “the court shall order the property returned to the person legally entitled to it” provided that the redemption requirements of section 169A.42 are satisfied. The word “shall” has been interpreted as mandatory."

*     *     *

"It is certainly true that the burden of proof imposed upon the State for vehicle forfeiture is higher for a judicial forfeiture than for an administrative forfeiture. But it is within the province of the Legislature to provide for different standards for vehicle forfeiture in administrative and judicial proceedings. An administrative forfeiture under subdivision 8 requires only a showing that the vehicle was “used to commit a designated offense or used in conduct resulting in a designated license revocation . . . .” In contrast, judicial forfeiture under subdivision 9(f) provides that when 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”.

The Minnesota Supreme 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.

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

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

The Minnesota DWI Case of the week is the Minnesota Court of Appeals decision of State v. Hammann, (Unpublished, decided August 1, 2012) which stands for the proposition that it's not a refusal to submit to alcohol testing if you don't ask the right question.

In  Hammann, the Defendant was arrested for DWI and was taken to the Minnetonka Police Department.  He was read the Minnesota Implied Consent Advisory and was asked to submit to a urine test.  The Defendant asked the officers what types of tests the department offered, and an officer responded, "We're gonna offer you urine or blood...If you won't do urine we're gonna ask you for blood and that's it."  Mr. Hammann then repeatedly asked the officers about various aspects of the implied-consent process and unsuccessfully tried multiple time to call his brother and his attorney.

Approximately 48 minutes after the process began, an officer asked Mr. Hammann multiple times within the course of one minute whether he would take a urine test, and Hammann never directly responded. The officer then stated, "Jerald I will consider you to have refused the test at this point".  The Defendant immediately responded, "I am totally willing to take whatever test is appropriate. " But the officer deemed the Defendant to have refused the test.

The Defendant was convicted of 3rd Degree Refusal to Submit to Testing but on appeal, the Minnesota Court of Appeals reversed the conviction noting:

“Any person who drives . . . a motor vehicle within this state . . . consents . . . to a chemical test of that person’s blood, breath, or urine for the purpose of determining the presence of alcohol,” and “[i]t is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine.” Minn. Stat. §§ 169A.20, subd. 2, 169A.51, subd. 1(a) (2010)." 

"The peace officer who requires a test pursuant to this section may direct whether the test is of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered. 

Minn. Stat. § 169A.51, subd. 3 (2010) (emphasis added)." 

***

The plain language of the statute only allows action to be taken against a person if that person refuses to take a blood or urine test and an “alternative test was offered.” Minn. Stat. § 169A.51, subd. 3. Here, an officer at the beginning of the implied-consent process told appellant: “If you won’t do urine we’re gonna ask you blood and that’s it.” But that statement is not an offer for alternative testing. In the cases where this court has considered a person to have refused chemical testing, the facts suggest that an officer gave the person the option of choosing a blood or urine test. See State v. Ferrier, 792 N.W.2d 98, 100 (Minn. App. 2010) (“[Officer] then asked appellant if she would take a blood or urine test, and appellant chose to take a urine test.”), review denied (Mar. 15, 2011); Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 257 (Minn. App. 2000) (“[Officer] then asked Busch if he would take a blood, urine, or breath test, but Busch refused to reply.”).

The Minnesota Court of Appeals in Hammann then held that because the Defendant was not offered an alternative test as required by statute, his test refusal conviction must be reversed.

Moral of the Story:  If they don't ask, it's not a crime to not tell.

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

The Minnesota DWI Case of the week is the Minnesota Court of Appeals decision of State v. Bosaaen, (Unpublished, decided May 21, 2012) which stands for the proposition that you should not go poaching if you are already pickled!

In Bosaaen,  the defendant complained that the district court was wrong when it failed to rule that the initial stop of his vehicle was illegal.  The case is interesting as it discusses the proper standard for vehicle stops based upon an informant's tip.

In the present case,  a Mr. "L.K." was driving on a country road in Dakota County when he encountered the defendant in a red Ford F-150 stopped by the side of the road along with two other vehicles.  Thinking that the parties were having vehicle trouble, "L.K." stopped and offered his assistance.  One of the individuals at the scene asked "L.K." if he was, "headed to go hunting".  "L.K." responded that he was not, "because there was no season open right now".  The other man then stated that they were after big venison and that "they had just seen some."

"L.K." called 911 and reported his belief that the men were hunting out-of-season.  "L.K." remained in the area and when the vehicles, including the defendant's, left the area, "L.K."reported their movements to the police.  The police were able to locate the defendant's Ford F-150 and made a vehicle stop to investigate the possible poaching complaint.  Unfortunately for Mr. Bosaaen, he was drunk when he was stopped by the police and was then arrested for DWI.

On appeal, Mr. Bosaaen claimed that the informant's information was insufficient to justify the stop of his vehicle and since the police did not independently observe any driving misconduct, the stop was illegal and all the evidence of intoxication must, therefore, be suppressed.

The Minnesota Court of Appeals disagreed with the defendant holding:

A police officer is permitted to make a limited investigative stop if the officer has “a reasonable, articulable suspicion that the suspect might be engaged in criminal activity". The reasonable suspicion standard can be met based on information provided by a reliable informant. But information given by an informant must bear indicia of reliability that make the alleged criminal conduct sufficiently likely to justify an investigatory stop by police.  Citizen informants are presumed to be reliable. 

Minnesota cases dealing with investigatory stops based on informant tips have focused on two factors when evaluating the reliability of the tip: (1) identifying information given by the informant, and (2) objective facts supporting the informant’s assertion that the suspect is engaging in criminal activity. Neither of these factors is dispositive, and ultimately the basis for an investigatory stop must be analyzed in light of the totality of the circumstances.

Here, L.K. adequately identified himself, and the Court, therefore, presumes the reliability of L.K.’s tip.   L.K. provided specific facts about his conversation with the occupants and  under the totality of the circumstances, these statements provided a reasonable basis for the police to suspect that the men were hunting deer out of season. The district court did not err in concluding that when appellant was stopped, the police had a reasonable articulable suspicion that appellant might be engaged in criminal activity 

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

The Minnesota DWI Case Of The Week is   State v. Tanksley,  (Decided February 8, 2012) a Minnesota Supreme Court Case which stands for the proposition that, if you have been arrested for a DWI, you should   always,   always   choose a blood test instead of a urine 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, the BCA has approved of its use and in Tanksley the Minnesota Supreme Court approved of the practice.

The District Court in Tanksley, held that the State does not have to prove that the defendant's urine alcohol level accurately reflected his blood alcohol level and therefore the "pooling effect" of a first-void sample is irrelevant.  The Minnesota Supreme Court agreed with the District Court stating:

"The alcohol-concentration offense requires the State to prove two elements.  First, the State must establish that the defendant drove, operated, or physically controlled a motor vehicle within the State of Minnesota.  Second, the State must prove that the defendant's alcohol concentration was .08 or more at the time, or within 2 hours of the time, the defendant drove, operated, or physically controlled the motor vehicle. Minn. Stat. § 169A.20, subd.1(5).  Minnesota Statutes § 169A.03, subd. 2 (2010), in turn, defines 'alcohol concentration' as: '(1) the number of grams of alcohol per 100 milliliters of blood; (2) the number of grams of alcohol per 210 liters of breath; or (3) the number of grams of alcohol per 67 milliliters of urine.'"

"Whether first-void urine results correlate with blood alcohol concentration is not relelvant to whether the State has proven the two elements of the alcohol-concentration offense.  Section 169A.20, subdivision 1(5), requires proof of 'alcohol concentration,' but under the statute, 'alcohol concentration' can be proven by the number of grams of alcohol in 100 milliliters of blood, in 210 liters of breath, or  in 67 milliliters of urine.  Minn. Stat. § 169A.03, subd. 2.  The statute thus provided three methods for proving the requisite alcohol concentration, and does not express a preference for one method over another. *   *   *"

"Put another way, even if we were to assume that the correlation between first-void urine test results and blood alcohol concentration is weak, as Tanksley argues, evidence of that fact would have not effect on the determination of whether the State proved beyond a reasonable doubt that Tanksley's  urine  alcohol concentration was at or above .08 grams per 67 milliliters of urine within 2 hours of driving, operating, or physically controlling a motor vehicle.  Therefore, the district court was not required to hold a [hearing] to decide the merit of Tanksley's criticism because a lack of correlation to blood alcohol concentration was not relevant to the alcohol-concentration offense."

The problem with the Supreme Court's opinion is that it ignores what the Minnesota DWI Statutes are designed to punish, namely drunk drivers.  The urine and breath alcohol ratios contained in the statute are designed to match the blood alcohol ratio of grams of alcohol per milliliters of blood.  A person with a pooled urine alcohol level of .12 could easily be as sober as a person with a blood alcohol level of .04.  But the urine-alcohol defendant is punished while the blood-alcohol defendant would go free.

MORAL OF THE STORY:  Never submit to a urine test.  Always exercise your right to have a blood test done instead.  At least the blood test 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