Tuesday, June 27, 2017

Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Miller (Decided June 26, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a court cannot order a stay of imposition of sentence in a DWI case.  

In Miller, the Defendant pled guilty to felony DWI and the presumptive sentence for this offense was a stay of execution of 42 months in prison.  Before sentencing, Miller filed an informal letter brief, moving the district court to stay imposition of the presumptive sentence. The state opposed Miller's request, arguing that Minn. Stat. § 169A.276, subd. 1(b), prohibited a stay of imposition of a sentence for first-degree DWI offenses.

At the sentencing hearing, the district court stayed imposition of Miller's sentence, ordered him to serve a staggered jail sentence of 300 days, and placed him on probation for seven years. In its order, the district court acknowledged that this sentence was prohibited by Minn. Stat. § 169.276, but stated, "It is not the role of the legislature to mandate sentences to the courts." 

Apparently, the Court of Appeals disagreed as they reversed the stay of imposition, noting:

"The legislature is vested with the power to define criminal conduct and to determine the punishment for such conduct, including providing for mandatory sentences.  This power includes setting 'the limits of discretion vested in the courts in the imposition of the sentence.' The judiciary is vested with the power to impose the final sentence for a criminal violation 'within the limits prescribed by the legislature'."

"Miller argues that Minn Stat. §§609.135 (2014) and 609.11, subd. 8(a) (2014), authorize a district court to stay imposition of a sentence in this case. Section 609.135 provides that except "when a mandatory minimum sentence is required by section 609.11, any court may stay imposition or execution of sentence." Minn. Stat. § 609.135, subd. 1(a). Because a mandatory minimum sentence under section 609.11 is not required here, Miller contends that the statute authorized the district court to stay imposition of his sentence."

"But chapter 169A contains specific provisions regarding mandatory sentencing for DWI offenses. Indeed, a person convicted of first-degree DWI is "subject to the mandatory penalties described in section 169A.276." Minn. Stat. § 169A.24, subd. 2. Section 169A.276 provides that the mandatory minimum sentence for first-degree DWI is imprisonment for not less than three years. Minn. Stat. § 169A.276, subd. 1(a). 'The court may stay execution of this mandatory sentence . . ., but may not stay imposition or adjudication of the sentence or impose a sentence that has a duration of less than three years.'"

"Here, the more specific statute is section 169A.276, subdivision 1(b), because it expressly addresses felony-level DWI sentences. In contrast, section 609.135, subdivision 1(a), which authorizes a stay of imposition of sentence, applies when a mandatory minimum sentence is not required by section 609.11. But section 609.11, subdivision 8(a), states that it applies only to "mandatory minimum sentences established by this section," which are specific to dangerous weapon, firearm, and drug offenses. Minn. Stat. § 609.11, subds. 4-5a (2014). We conclude that section 609.135 does not apply to sentencing for convictions of felony DWI offenses and chapter 169A exclusively governs sentencing of DWI offenses."

"The plain language of section 169A.276 limits a district court's discretion and prohibits a district court from staying imposition of sentence for this offense. Thus, we reject Miller's argument that the district court had discretion to stay imposition of sentence."

Moral Of The Story:  If you manage to get convicted of four dwi's in 10 years, you are going to forever have a felony conviction on your record.


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

Wednesday, June 21, 2017

Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Hunn (Decided June 19, 2017, Minnesota Court of Appeals, Published) which stands for the proposition that there is no "pre-test" right to counsel when the police fail to read to the Defendant the "Minnesota Implied Consent Advisory".

In Hunn, the Defendant was arrested for DWI and was taken to the Mower County police station.  The arresting officer had reason to suspect that the Defendant had consumed drugs so the officer asked the Defendant if he would take a urine test and the Defendant agreed. The officer did not read respondent the implied-consent advisory or advise respondent that he had a limited right to speak to an attorney before testing.1 On April 8, the deputy received respondent's test results, which indicated an alcohol concentration of 0.04 and the presence of methamphetamine and amphetamine.

The State charged the Defendant with second-degree DWI (any amount of schedule I/II drugs), no proof of insurance, and possession of drug paraphernalia. The Defendant moved to suppress the evidence and dismiss the complaint on a number of grounds, including the officer's failure to read the implied-consent advisory and the invalidity of respondent's consent to testing. The district court suppressed the urine-test results based on the deputy's failure to read respondent the implied-consent advisory, including his failure to advise respondent of, and vindicate, his limited right to counsel prior to submitting to testing.

The State appealed the district court and the Minnesota Court of Appeals reversed the lower court's decision, stating:

"In granting respondent's suppression motion, the district court relied on language from the implied-consent law, which provides that an individual "must be informed . . . that the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test." Minn. Stat. § 169A.51, subd. 2(a)(4) (2014). The district court also cited Friedman for the following propositions: (1) a driver has a right to consult an attorney before deciding whether to submit to chemical testing under the right-to-counsel clause in article 1, section 6 of the Minnesota Constitution and (2) a driver must be informed of this right and a police officer must assist in its vindication. Based on this reasoning, the district court suppressed the test results, due to the deputy's failure to read the implied-consent advisory, and declined to otherwise determine whether respondent's consent to the test was voluntary."

***
"The state maintains that the district court's conclusion was erroneous, arguing that the limited right to counsel under Friedman is inapplicable here because respondent was not read the implied-consent advisory and, therefore, did not face immediate revocation of his driver's license. We agree and conclude that the district court erred in suppressing the test because respondent never faced a possibility of immediate sanctions under the implied-consent law when deciding whether to consent to the urine test."

***
"Here, as in Nielsen, and unlike the facts presented in Friedman, the deputy did not read respondent the implied-consent advisory or seek chemical testing under the implied-consent law. This distinction from the facts of Friedman is significant. As a result, respondent's decision regarding whether to consent to testing never carried a possibility of immediate license-revocation sanctions or criminal prosecution for test refusal. Instead, respondent only "faces the traditional [criminal] penalties for driving under the influence, and imposition of those penalties only after a jury trial at which he has the right to counsel." Nielsen, 530 N.W.2d at 215. Accordingly, "[t]he process of chemical testing in this case was merely an investigatory stage which necessarily preceded the decision to prosecute." Id. (citing Friedman, 473 N.W.2d at 833 (noting that ticket or tab charge, usually issued after test is performed, is equivalent to formal complaint))."

"Because respondent was not read the implied-consent advisory, and, therefore, never faced immediate sanctions under the implied-consent law for test refusal, we conclude that there was no violation of the Minnesota Constitution's right-to-counsel clause that required the district court to suppress the chemical-test results."

Moral of the Story: If An Officer Asks You To Submit To A Blood Or Urine Test, Tell The Officer To Get A Search Warrant!



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




Monday, June 12, 2017

Minnesota DWI Lawyer F. T. Sessoms 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 June 12, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the Data Master breath tests results are admissible without antecedent expert testimony.  The case also stands for the proposition that if you choose to represent yourself in a DWI case, you have absolutely no chance of winning.

In January 2016, Johnson petitioned the district court for rescission of the revocation of his driver's license. The district court conducted an implied-consent hearing in late March 2016. Johnson appeared pro se. The commissioner called three witnesses: Officer Lasher, Officer Garcia, and Officer Hicks. Johnson testified but did not call any other witnesses. In July 2016, the district court issued an order sustaining the revocation and Mr Johnson appealed claiming the Data Master Breath test result  of .12 was unreliable.

The Minnesota Court of Appeals rejected Mr. Johnson's appeal noting:

"A driver may challenge the revocation of his or her driver's license by raising the following issue: "Was the testing method used valid and reliable and were the test results accurately evaluated?" Minn. Stat. § 169A.53, subd. 3(b)(10) (Supp. 2015). If a breath test is challenged, the commissioner has the initial burden of showing that the test is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability...If the commissioner satisfies the initial burden,[t]he driver must then produce evidence to impeach the credibility of the test results."

"Officer Hicks testified that he is a certified DataMaster operator, that he received training from the bureau of criminal apprehension (BCA), and that the DataMaster performed diagnostic tests within acceptable limits on the day in question. Johnson cross-examined Officer Hicks by asking him whether he is an "international scientist in measurement," a "doctor," or a "forensic scientist." Officer Hicks answered each question in the negative. Johnson concluded by asking Officer Hicks whether he "performed any diagnostic tests that would have recorded bias and uncertainties of your DataMaster machine?" Officer Hicks again answered in the negative."

"The district court noted the evidence that Officer Hicks is a
certified DataMaster operator and that he had received training and certification from the BCA. The district court also found that "nothing out of the ordinary occurred that would skew the reliability of the test results."

"On appeal, Johnson contends that the DataMaster is not accurate or reliable. He makes a few broad assertions in support of that contention, but he does not cite any evidence that was introduced at the implied-consent hearing. His cross-examination of Officer Hicks did not expose any particular reasons why the test results might not be accurate or reliable. Likewise, Johnson did not testify to the assertions that he makes in his appellate brief. His own testimony was very brief and was limited to introducing evidence that he was taking prescription medication on the day of his arrest. Given the scarcity of relevant evidence elicited by Johnson, we conclude that he failed to introduce any evidence that might "impeach the credibility of the test results." See Bielejeski, 351 N.W.2d at 666. Thus, the DataMaster test results are reliable."

Moral Of The Story:  Once again proving that 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 Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.



Monday, June 5, 2017

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Norgaard (Decided June 5, 2017, Minnesota Court of Appeals, Published) which stands for the proposition that the State can admit the results of a DataMaster test without expert testimony as to the reliability of the testing machine.

In Norgaard, the Defendant was arrested for DWI and agreed to submit to a breath test at the police station.  The DataMaster breath test result was 0.13.  

Trial took place on January 5, 2016. Norgaard waived his right to a jury trial (never a good idea).  The arresting officer testified that he administered the breath test with a DataMaster breathalyzer, that he is trained to operate the device, and that he is a certified DataMaster operator. He further explained the limitations of the breathalyzer and how he administers the test. The state introduced the results of the breath test. Norgaard objected, arguing that the state failed to produce evidence regarding the reliability of the DataMaster breathalyzer.

The district court took judicial notice of the fact that the commissioner of public safety had approved the DataMaster breathalyzer. Norgaard again objected, arguing that the district court could not take judicial notice in a criminal case.  The district court found Norgaard guilty of driving with an alcohol concentration of 0.08 or more and the Defendant appealed but to no avail.

In its opinion, the Court of Appeals notes that, "Judicial notice of adjudicative facts is not appropriate in criminal cases" but "Adjudicative facts are facts about the parties, their activities, properties, motives, and intent."  The Appellate Court then observed, "Courts regularly take notice of legislative facts, such as statutes, caselaw, and regulations, in criminal cases.  Here, the district court took judicial notice that the commissioner of public safety has approved the DataMaster breathalyzer as an "infrared or other approved breath-testing instrument." Minn. Stat. § 169A.03, subd. 11 (2014); see Minn. R. 7502.0425 (2015). Minn. Stat. § 634.16 (2014) permits the admission of any breath test performed by a fully trained individual using an approved breath-testing instrument, "without antecedent expert testimony that [the instrument] provides a trustworthy and reliable measure of the alcohol in the breath." The Court held the district court did not abuse its discretion in admitting the test results.

Moral Of The Story:  Once again proving that 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 Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.