Monday, November 30, 2015

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

The Minnesota DWI Case Of The Week is Salisbury v. Commissioner of Public Safety (Decided November 30, 2015, Minnesota Court of Appeals, Unpublished) which stands for the proposition that no matter how many times you file a petition challenging the license revocation, the initial petition must still be filed within 30 days of the revocation notice.

In Salisbury, the Appellant was arrested for DWI on November 4, 2012 and received a notice and order of revocation at that time, informing her that her license would be revoked for one year starting on November 11, 2012.  


Ms. Salisbury then retained counsel, who did not file a petition for judicial review of the license revocation until December 7, 2012.  The Appellant's attorney also requested that a temporary stay of the license revocation be granted and on January 28, 2013 (pursuant to the Ramsey County policy), the district court granted the stay pending the resolution of the criminal case.


On October 1, 2013, the criminal case was resolved and an implied-consent hearing was scheduled for July 14, 2014.  On July 10, 2014 the Commissioner of Public Safety flied a motion to dismiss Salisbury's petition for judicial review on the ground that the district court had no jurisdiction to consider the petition due to the fact that it had not been filed within 30 days of the notice and order of revocation. On August 5, 2014, the district court granted the Commissioner's motion to dismiss and Ms. Salisbury did not appeal the court's order.


On August 8, 2014 the Department of Public Safety mailed to the Appellant another notice and order of revocation informing her that her license would be revoked based upon the November 4, 2012 incident. This notice indicated that the revocation would be effective on August 14, 2014 and that Salisbury had the right to petition for judicial review in accordance with the statutory requirements for such a petition.  Salisbury then filed a second petition for judicial review on August 19, 2014.


The Commissioner of Public Safety moved to dismiss the second petition for judicial review on the grounds that it was untimely and the district court agreed. 


On appeal, the Minnesota Court of Appeals noted that: "One has a statutory right to judicial review of an order revoking her driver's license if she files a petition with the district court "[w]ithin 30 days following receipt of a notice and order of revocation." See Minn. Stat. § 169A.53, subd. 2(a) (2012). "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 (Minn. July 16, 2013)."


Salisbury concedes she did not file a petition for judicial review within 30 days and that the district court did not have jurisdiction to consider her December 7, 2012 petition.  But she claims on appeal that her receipt of the August 8, 2014 notice and order of revocation triggered a new 30-day period during which the court acquired jurisdiction to consider Salisbury's August 19th petition for review.


In rejecting Salisbury's contention the Minnesota Court of Appeals held:

"But DPS had no ability to confer jurisdiction upon the district court by stating or suggesting to Salisbury that she had a right to judicial review. See Davidner, 304 Minn, at 493, 232 N.W.2d at 7. Although we question DPS's inclusion of potentially misleading language in its August 8 notice and order, we reject Salisbury's argument that the second notice conferred jurisdiction upon the court to review her initial license revocation."

"We conclude that the district court was deprived of jurisdiction to resolve Salisbury's challenge to the factual and legal bases of the original revocation as soon as Salisbury failed to assert that challenge within 30 days of her receipt of the November 4, 2012 notice and order of revocation. The August 2014 reinstatement of the revocation did nothing to change that. The court therefore lacked jurisdiction to consider Salisbury's August 19, 2014 petition for judicial review."

MORAL OF THE STORY: He who hesitates is lost!


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, November 23, 2015

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

The Minnesota DWI Case Of The Week is Telschow v. Commissioner of Public Safety (Decided November 23, 2015, Minnesota Court of Appeals, Unpublished), which stands for the proposition that the police do not need probable cause to request that a DWI suspect submit to field sobriety tests (FST's).

On September 1, 2014, a police officer saw Mr. Telschow's vehicle cross over the crosswalk and stop in the middle of an intersection in Savage, Minnesota. The officer activated the squad car's emergency lights and siren and continued to follow appellant, observing several additional traffic violations. The officer initiated a traffic stop and noticed that appellant's eyes were bloodshot and watery and there was an odor of alcohol emanating from the vehicle. Appellant admitted to drinking a few beers prior to driving. The officer asked appellant to step out of the vehicle so she could ascertain whether he was able to drive. The officer led appellant through a series of field sobriety tests, including the horizontal gaze nystagmus, the walk-and-turn test, and the one-leg-stand test, and concluded that he showed signs of impairment on each test. The officer administered a preliminary breath test which showed an alcohol concentration of 0.207.    

On appeal, Mr. Telshow argued that field sobriety tests and preliminary breath tests are searches that must be supported by probable cause. 

But the Minnesota Court of Appeals rejected that claim, stating: "The appropriate standard for conducting a field sobriety test or a preliminary breath test is whether an officer has a reasonable, articulable suspicion that the driver is impaired. See State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (determining an officer's "observation of two indicia of intoxication"n . . . reasonably justified further intrusions in the form of field sobriety and preliminary breath testing."); State, Dep't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981) (stating an officer has the authority to administer a preliminary breath test where "specific and articulable facts" form the basis to believe that a driver is impaired). A reasonable articulable suspicion exists if the police officer can present "a particularized and objective basis for suspecting the seized person of criminal activity." State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). The district court concluded that the officer observed indicia of intoxication which provided the necessary articulable suspicion to require field sobriety tests and a preliminary breath test, and the record supports that determination."

I agree with Mr. Telschow.  The Fourth Amendment requires that searches, other than pat-down frisks, be supported by probable cause.  Taking a breath sample of a suspect at the scene of a stop is not a limited "pat-down" type search. The breath test taken at the police station requires probable cause.  So it seems to me that the Court of Appeals in this case has created a distinction without a difference.

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.


Wednesday, November 18, 2015

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

The Minnesota DWI Case Of The Week is State v. Wurtz (Decided November 16, 2015, Minnesota Court of Appeals, Unpublished), which stands for the proposition that if you think you are in trouble, it is NEVER a good idea to talk to the police!

In Wurtz, the Defendant was hunting-while-under-the-influence-of alcohol (guns and booze. What could go wrong?) and as the Defendant was approaching his parked car, he encountered officer Beckman of Cottonwood County.  


Officer Beckmann was able to smell a moderate odor of an alcoholic beverage coming from Mr. Wurtz. Officer Beckmann asked the Defendant to submit to field-sobriety testing but the Defendant claimed previous injuries that he thought would prevent him from doing the field-sobriety testing. Officer Beckmann then asked appellant to submit to a PBT. Defendant agreed, and his PBT result was . 114.  Mr. Wurtz then admitted he had consumed six or seven beers.


On Appeal, the Defendant argued that the district court erred by concluding that he was not in custody for Miranda purposes at the time he admitted in response to questions that he had consumed six or seven beers while hunting.  


The Minnesota Court of Appeals rejected this contention, explaining:



"A statement produced by a custodial interrogation is inadmissible unless the suspect is first advised of certain constitutional rights, including the Fifth Amendment right against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); State v. Tibiatowski, 590 N.W.2d 305, 308 (Minn. 1999). A person is in custody for Miranda purposes when there has been a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Minnesota v. Murphy, 465 U.S. 420, 430, 104 S. Ct. 1136, 1144 (1984) (quotation omitted). We apply an objective standard to determine whether, "based on all the surrounding circumstances, a reasonable person under the circumstances would believe that he or she was in police custody of the degree associated with formal arrest." State v. Thompson, 788 N.W.2d 485, 491 (Minn. 2010) (quotation omitted). But general on-scene questions such as "Have you been drinking?" and "How much?" do not convert a detention into an arrest, and therefore, do not trigger the need for a Miranda warning."

In this case, the Defendant was standing in a parking lot when he made the incriminating statements to the officer.  The Defendant argued that Officer Beckman's failure to tell the Defendant he could leave, shows that he was in custody.  But the Court of Appeals disagreed, stating:



"But the custody determination does not turn on "merely whether a reasonable person would believe he or she was not free to leave." Scruggs, 822 N.W.2d at 637. Instead, "an interrogation is custodial if, based on all the surrounding circumstances, a reasonable person would believe he or she was in police custody to the degree associated with formal arrest.'"
 
Moral Of The Story:  If you are suspected of a crime, keep your mouth shut!!!




If you or a loved one has 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.