Wednesday, February 21, 2018

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The Minnesota DWI Case Of The Week is State v. Dunn (Decided February 20, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you have been driving drunk and make it home, under no circumstances should you allow the police to enter your home without a warrant!

In Dunn, White Bear Lake police officer Isaac Tuma was dispatched in response to a 911 call regarding a possibly intoxicated driver. The caller, N.R., had followed the suspect, who was driving a black Mercedes, as she drove away from a dry-cleaning business. Officer Tuma testified that the dispatcher relayed to him N.R.'s information about the location of the black Mercedes as N.R. followed it until the Mercedes pulled into the driveway of a residence.

N.R. explained that he was at the dry cleaners when he saw a "red-haired elderly woman get out of the Mercedes and hold herself up on the car as she walked from the driver's door around the back of the car to the passenger door." He further stated that the woman leaned on her car and the building for support. She said "oh my leg's not working" as she wobbled through the door. N.R. told Officer Tuma that he waited for the woman to leave the dry cleaners so that he could follow her car. According to N.R., he followed the woman's car and noticed that she was having trouble staying in her own lane and made a "very wide turn." Officer Tuma testified that he believed the described driving behavior was consistent with the driver being under the influence of alcohol. N.R. confirmed to the officer that he continued following the woman's car until it pulled into a driveway. Near the end of the interview, Officer Tuma told N.R. that "we have your statement so no matter what we can test her."

Officer Tuma testified that, after hearing N.R.'s description of respondent's behavior, he was concerned that the driver may have been intoxicated or having some medical issues. Officer Tuma explained that he has responded to calls of suspected drunk drivers in the past that turned out to be medical emergencies, and mentioned one case in which he responded to an accident where it turned out that the driver was having a diabetic reaction. He testified that he went to respondent's house to conduct a welfare check. When Officer Tuma and a second officer arrived at respondent's house, her husband, G.C., answered the door. Officer Tuma, wearing his police uniform and arriving in a fully marked squad car, identified himself as a police officer.

Officer Tuma told G.C. that someone had called the police because they were worried about respondent's welfare after she was seen using her vehicle to hold herself up. G.C. said that respondent was probably holding herself up because of her back issues, but that she was in the bedroom and was doing fine. Officer Tuma testified that he wanted to personally see respondent to make sure that things were okay. G.C. invited the officer inside and said that he would go get respondent.

Eventually, respondent, whom Officer Tuma recognized from her driver's license picture, entered the room. Officer Tuma noticed that respondent was having difficulty walking, which he testified that he thought might have been due to her back problem. However, Officer Tuma said that when respondent reached the couch, she tried using her hand for support as she sat down but missed the couch, which left her leaning in an awkward position such that Officer Tuma and G.C. moved to assist her. After assisting respondent, Officer Tuma began asking respondent questions about whether she had consumed any alcohol or medications. As respondent answered, Officer Tuma smelled alcohol on her breath. Officer Tuma testified that based on the smell of alcohol, respondent's lack of balance, and her slurred speech and red eyes, he believed that she was under the influence of alcohol. At that point-after smelling the alcohol-Officer Tuma testified that his purpose switched from conducting a welfare check to investigating a DWI. He later arrested respondent and obtained a breath sample that showed a 0.25 alcohol concentration. G.C, a retired physician and intellectual-property attorney, also testified at the omnibus hearing. He testified that Officer Tuma told him that his purpose was to conduct a welfare check on respondent based on a report that respondent was having difficulty walking. G.C. stated that he told Officer Tuma that respondent had a back condition, and that respondent came home and put laundry away, then went to bed and was fine apart from her back issues. According to G.C, Officer Tuma was "persistent in explaining that he really needed to satisfy himself that [respondent] was, in fact, fine." G.C. testified that he felt like he had no choice but to let Officer Tuma see respondent and that he did not think it mattered whether he said that respondent was fine or not. He felt "forced into acquiescing to [the officers'] demands that they physically see her." G.C. testified that if he had known that Officer Tuma was investigating a DWI, he would not have let the officers inside without a warrant. G.C. explained that, while he was an attorney, he did not know how welfare checks fit into Fourth-Amendment law. He practiced intellectual-property law and did not know whether he could insist on a warrant.

Respondent moved to suppress the evidence obtained after the officers entered her house, arguing that G.C.'s consent to the entry was not voluntary because Officer Tuma misrepresented the purpose for which he sought entry. The district court granted respondent's motion to suppress all of the evidence obtained by the officer following his entry into respondent's home.

On Appeal, the Minnesota Court of Appeals rightly affirmed the district court.  The police officer was a liar and it is good to see that the district court and court of appeals were not buying his "welfare check" testimony.  As explained by the Court of Appeals:

"The state argues that the district court erred in concluding that G.C.'s consent to Officer Tuma's entry was involuntary. "The question of whether consent is voluntary is a question of fact, and is based on all relevant circumstances." State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992) (citing Schneckloth v. Bustamonte, All U.S. 218, 227, 93 S. Ct. 2041, 2047-48 (1973)). We will not reverse a district court's finding concerning the voluntariness of consent unless it is clearly erroneous. State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992). Because the trial court is obviously in the better position to assess the credibility of the witnesses, the state on appeal must show clearly and unequivocally that the trial court erred in finding that consent was involuntary." 

"In order to be voluntary, consent must be given without coercion and must not be a mere submission to an assertion of authority. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). Voluntariness is determined by examining "the totality of the circumstances, including the nature of the encounter, the kind of person the defendant is, and what was said and how it was said." Id. "[I]f under all the circumstances it has appeared that the consent was not given voluntarily-that it was coerced by threats or force, or granted only in submission to a claim of lawful authority," then the consent is invalid."

"Misrepresentations about the nature of an investigation may be evidence of coercion." State v. Bunce, 669 N.W.2d 394, 399 (Minn. App. 2003) (quoting United States v. Turpin, 101 F.2d 332, 334 (8th Cir. 1983)), review denied (Minn. Dec. 16, 2003). If consent to search is given based on reliance upon a misrepresentation, the consent will be invalid."

"The district court found that Officer Tuma "gained entry to the home under false pretenses," and that telling G.C. that he was there for a welfare check was a "misrepresentation" that "rose to such a level of deception as to invalidate" G.C.'s consent. G.C. initially denied the officer entry. The district court found that it was only after the "misrepresentation" that G.C. allowed Officer Tuma to enter the home, and see and visit with respondent. The district court implicitly found that the officer did not actually have the purpose to do a welfare check and, instead, intentionally misidentified that as his purpose to obtain G.C.'s consent to enter the home and continue the DWI investigation."

"The district court found that Officer Tuma told G.C. only that he wanted to conduct a welfare check and made no mention of any belief that respondent may have been driving while impaired. The district court implicitly rejected the contention that Officer Tuma was conducting a welfare check. During his discussion with N.R., Officer Tuma expressed no concern about respondent's health. N.R. expressed no belief or concern that respondent was ill or injured; he thought she was drunk. At the conclusion of the interview, Officer Tuma told N.R. that "no matter what we can test her." In concluding that "Officer Tuma was investigating a DWI," the district court implicitly made a credibility determination rejecting Officer Tuma's multiple-purpose claim concerning his request to enter respondent's home. "Because the trial court is obviously in the better position to assess the credibility of the witnesses, the state on appeal must show clearly and unequivocally that the trial court erred in finding that consent was involuntary." Schweich, 414 N.W.2d at 230. We apply this standard of review, and view the record evidence as a whole. The district court did not clearly and unequivocally err in finding that Officer Tuma misrepresented the purpose for which he sought entry."

Moral of the Story: You do not have to open the door of your home unless the police have a search warrant!

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.


Monday, February 12, 2018

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 State v. Littlewind (Decided February 12, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if there is a clear violation by the police of an arrestee's pre-test right to counsel, a defense attorney is incompetent if he fails to file a motion to suppress.  I wholeheartedly agree!!

In Littlewind, the Defendant was arrested for drunk driving and the police read him the implied-consent advisory, but they refused to allow him to speak with an attorney after he repeatedly asked for one. Littlewind refused to submit to a chemical test. 

Representing Littlewind in his trial for both driving while impaired and chemical-test refusal, Littlewind's attorney never moved the district court to suppress the evidence of his refusal. After the jury convicted Littlewind, he petitioned unsuccessfully for postconviction relief, arguing that he received ineffective assistance of trial counsel. 

The Minnesota Court of Appeals reversed the District Court, ruling that, "Failing to move to suppress evidence related to Littlewind's test refusal fell below an objective standard of reasonableness, so we reverse, invalidating his conviction for test refusal."

The Court of Appeals explained it ruling as follows:

"Because the failure to litigate a suppression motion is Littlewind's principal allegation of ineffectiveness, he must prove that his suppression claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence. Kimmelman v. Morrison, All U.S. 365, 375, 106 S. Ct. 2574, 2583 (1986)."

"We begin with the merit of the hypothetical suppression motion. Applying the state constitution, "an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing." Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). It is not enough that police officers inform the person of this right, "the police officers must assist in its vindication." Id. (quotation omitted). The officers meet this duty by providing a telephone and allowing a reasonable period for the person to reach and speak with an attorney. Id. The district court must suppress evidence obtained in violation of the right to counsel in the implied-consent context. See State v. Slette, 585 N.W.2d 407, 410 (Minn. App. 1998)."

"The officers here undisputedly did not provide Littlewind a telephone or give him time to contact an attorney, but the state maintains that in this case providing a telephone was unnecessary. This is because the right to consult with counsel before submitting to chemical testing is not absolute. The implied-consent law requires a driver not to frustrate the implied-consent process. State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003). The postconviction court agreed with this position, concluding that "[t]he facts of the instant case undoubtedly indicate that Petitioner forfeited his limited right to an attorney through his unreasonable and uncooperative behavior." Our caselaw does not support the conclusion."

"The defendants in Collins and Busch, unlike Littlewind, prevented the implied-consent process from being completed. That process includes an officer's reading of the complete advisory accompanied by the officer's request for a chemical test, the defendant's opportunity to contact an attorney before deciding whether to submit to a chemical test, and the defendant's response to the officer's request for a chemical test. Here, police were able to present the implied-consent advisory completely and Littlewind plainly and repeatedly requested to speak with an attorney. As the district court put it, Littlewind "unequivocally requested an attorney after the implied consent advisory was read." That police read the complete implied-consent advisory and Littlewind then requested an attorney undermines the notion that Littlewind frustrated the implied-consent process."

"To demonstrate that he received ineffective assistance of counsel, Littlewind must also show that his attorney performed below an objective standard of reasonableness. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). To do so, he must overcome the strong presumption that his attorney's action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104. S. Ct. at 2065. We see no strategic benefit to foregoing a meritorious motion to suppress the most critical evidence in a test-refusal trial, and the state does not offer any benefit. Because his trial counsel's performance fell below an objective standard of reasonableness, Littlewind was denied his Sixth Amendment right to the effective assistance of counsel. We therefore reverse his test-refusal conviction."

Moral Of The Story: If you have been arrested for a Minnesota DWI or DUI, you should hire an attorney who knows what they are doing!

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, February 5, 2018

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. Kube (Decided February 5, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person does not have to expressly refuse to submit to testing in order to commit the crime of refusal if the person's conduct indicates they are unwilling to continue with the testing procedure.

In Kube, the Defendant was arrested in Carver County for DWI and was read the Minnesota Implied Consent Advisory after being taken to the county jail.  Ms. Kube was emotional and distraught throughout the advisory process.

The arresting officer provided Ms. Kube with telephone books to call an attorney, and she insisted that, because she has Asperger's syndrome, which is an autism spectrum disorder, she needed an attorney who represents disabled people. Kube eventually contacted an attorney's answering service. When she hung up, she remarked that her cell phone "only works half of the time," so the officer advised her to call back and leave the jail telephone number. Kube became "emotionally overwrought." 

The arresting officer advised her that failing to make a decision would be considered a test refusal. Instead of calling the answering service again, Kube threatened to kill herself, demanded to be taken to the hospital, and asked if she could go to the psych ward. Dascher terminated the implied-consent advisory, and Kube was charged with test refusal.

Ms. Kube waived her right to a jury trial and was found guilty  by the district court of the crime of refusal to submit to chemical testing.  On appeal she argued (among other things) that she did not refuse to submit to testing because the officer never asked her to take the breath test.

The Minnesota Court of Appeals affirmed her conviction noting:

"Under Minn. Stat. § 169A.20, subd. 2 (2014), it is a crime for any person who drives a motor vehicle in Minnesota to refuse to submit to chemical testing. When a person does not make an explicit verbal refusal to submit to chemical testing, the state must rely on circumstantial evidence to establish the person's intent. See State v. Ferrier, 792 N.W.2d 98, 101-02 (Minn. App. 2010) (recognizing the legitimacy of circumstantial evidence to establish intent in a test-refusal case), review denied (Minn. Mar. 15, 2011). "[Refusal to submit to chemical testing includes any indication of actual unwillingness to participate in the testing process, as determined from the driver's words and actions in light of the totality of the circumstances." Id. at 102."

The Minnesota Court of Appeals then held:

"The inference that Dascher ended the advisory process before Kube demonstrated her actual unwillingness to submit to testing is also unreasonable. Dascher advised Kube that she could discuss her disabilities with an attorney and that she could use the jail telephone number to receive a return call, but, rather than making another call to reach an attorney, Kube asked to be taken to a psych ward. That conduct indicated an actual unwillingness to participate in the testing process, and Dascher ended the advisory process only after he observed the conduct." Conviction affirmed!

Moral Of The Story: There is more than one way to say "no".


If you or a loved one are facing a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms for answers to all of your Minnesota DWI and DUI questions.