Monday, October 30, 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The Minnesota DWI Case Of The Week is State v. Xiong (Decided October 30, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you do not challenge in the district court a police officer's qualifications to make a DWI arrest, the issue is waived for appeal.

In Xiong, Minnesota State trooper Krause was driving west on Highway 94 near Snelling Avenue in St. Paul. Trooper Krause noticed a vehicle in the right adjacent lane, about 40 feet away. Trooper Krause observed the vehicle swerve into its right adjacent lane, and both of its driver's side tires crossed over the dotted lane line. Trooper Krause slowed her squad car to continue to monitor the vehicle's operation and manually turned on her in-car camera.

Trooper Krause activated her emergency lights and initiated a traffic stop. After the vehicle pulled over, Trooper Krause exited her squad car, and approached the vehicle.  Trooper Krause asked Xiong how many drinks she had consumed. Xiong "stuttered a little" and, after additional questioning, indicated that she had had two drinks. Trooper Krause asked Xiong to get out of the vehicle so Trooper Krause could determine whether it was safe for Xiong to drive. Trooper Krause administered field sobriety tests, and Xiong performed poorly on the tests. Xiong submitted to a preliminary breath test, which registered a 0.134 alcohol concentration.  Ms. Xiong was placed under arrest and was subsequently charged with a Third Degree DWI.

Xiong moved to suppress the evidence supporting the charge, arguing that she was "unlawfully seized without reasonable, articulable suspicion of criminal activity, and her seizure was expanded without lawful justification." The district court held a hearing on Xiong's suppression motion and allowed defense counsel to submit a written memorandum.

Xiong's attorney submitted a memorandum arguing, in part, that the state did not present evidence that Trooper Krause was a licensed peace officer and therefore did not establish that she was authorized to conduct the traffic stop and DWI investigation in this case. 

The district court refused to consider this issue, concluding that it was waived because it was "not clearly presented or litigated at the motion hearing." The district court noted that at the beginning of the hearing, Xiong identified the issues to be addressed as "the basis for the stop, the expansion of the stop into a DWI investigation, the necessity of a warrant for alcohol concentration testing, and the violation of [her] due process rights." The district court further noted that Xiong did not argue that Trooper Krause was not a licensed peace officer until after the motion hearing, when Xiong submitted her supporting memorandum.

On appeal, Xiong argued that the state presented no evidence that Trooper Krause was a licensed peace officer and so she had no power to conduct a traffic stop or a DWI investigation. The Minnesota Court of Appeals, however, held that the issue has been waived, stating:

"This court generally does not decide issues that were not determined in the district court, State v. Smith, 876 N.W.2d 310, 335 (Minn. 2016), and we will not do so here. Moreover, issues that are not briefed on appeal are waived. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). Because Xiong does not argue that the district court erroneously concluded that the licensing issue was waived, we do not consider reversing and remanding for the district court to decide this issue."

"Trooper Krause testified that she is a "sworn officer" with the Minnesota State Patrol and has made over 150 DWI arrests. In fact, Xiong does not claim that Trooper Krause was unlicensed; Xiong merely complains that the state failed to present evidence regarding the trooper's licensing status. There is little reason to believe that the state would not have been able to prove that Trooper Krause was a licensed peace officer had the issue been raised at the motion hearing."

Moral Of The Story: If you do not raise it, you lose it!



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 Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.


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