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The Minnesota DWI Case Of The Week is State v. Kjono, (Decided January 3, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that in a DWI case, a prosecutor can commit blatant misconduct but still get away with it.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.