Tuesday, May 29, 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DWI Case Of The Week is Neiland v. Commissioner of Public Safety (Decided May 29, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person's right to contact counsel of their own choosing prior to testing is not violated when the police dial the telephone.

In Neiland, the Petitioner was arrested for a DWI and was read the Minnesota Implied Consent Advisory.  The Petitioner was told he could contact an attorney or decide on his own whether to take the breath test.  Petitioner picked up a phone book and began paging through it, but stated, "I don't know who I could call." The deputy told appellant that the phone books listed attorneys with 24-hour availability. Petitioner referenced being inexperienced and asked for the deputy's recommendation. The deputy explained that he did not recommend attorneys, but that Petitioner could choose to call any attorney and could later switch attorneys.

The Petitioner then pointed to an attorney's phone number in one of the phone books. The deputy dialed the number and handed the phone to the Petitioner.  

The deputy left the holding room, and observed Petitioner through an open doorway while appellant spoke to a person on the phone. The deputy reentered the room and used a computer, but did not speak to Petitioner during the phone call. After approximately 13 to 14 minutes, appellant concluded the phone call by hanging up the receiver. The deputy asked Petitioner  "Alright, you had a chance to speak with an attorney. Will you take a breath test?" Petitioner responded, "Yes." Petitioner then submitted to a breath test, which registered an alcohol concentration of 0.11, in excess of the legal limit.

Mr. Neiland petitioned the district court for rescission of the revocation, arguing, in part, that his right to counsel was not vindicated, which the district court denied following a contested implied-consent hearing.  On appeal, the Minnesota Court of Appeals affirmed the district court, noting:

"Under the right-to-counsel clause in article I, section 6 of the Minnesota 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). Police officers must assist in the vindication of this right. Id."

"The right to counsel is considered vindicated when the driver is provided with a telephone prior to testing and given a reasonable amount of time to contact and consult with an attorney." Mell v. Comm'r of Pub. Safety, 757 N.W.2d 702, 712 (Minn. App. 2008). "If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel." Friedman, A13 N.W.2d at 835 (quotation omitted). "The right to counsel is limited in DWI cases to ensure that consultation does not unreasonably delay the administration of the test." 

"A driver has "the right to consult with a lawyer of his own choosing" before deciding whether he will submit to a chemical test. Friedman, 473 N.W.2d at 835 (quotation omitted). This right may be vindicated even if law enforcement does not allow the driver to personally dial a telephone number. Linde, 586 N.W.2d at 809-10."

"The evidence supports the district court's findings that appellant indicated his selection of an attorney and the deputy acted to assist appellant to contact rather than to select an attorney."

"Despite appellant's apparent indecisiveness over whether to contact an attorney, the evidence shows that the deputy reasonably interpreted appellant's actions as selecting an attorney and seeking the deputy's assistance to place a phone call. Had appellant wished to select a different attorney, or select no attorney at all, he had ample opportunities to tell the deputy of that decision, but he did not do so.   On this record, we conclude that the deputy vindicated appellant's right to counsel to the extent that appellant was allowed to consult with an attorney of his own choosing."

Moral Of The Story:  Exercise your right to counsel and demand to be allowed to dial the telephone!


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





Tuesday, May 22, 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 McGuire v. Commissioner of Public Safety (Decided May 21, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police can stop a vehicle if said vehicle appears to violate the law even if the police are mistaken as to the violation. Yikes!

In McGuire, Rochester Police Officer Craig Sammon saw a truck rapidly accelerate in an area with heavy foot traffic.  Sammon got into his patrol car and followed the truck, and he saw that the truck did not have a rear license plate or a temporary registration permit. Sammon believed that vehicles driven in Minnesota had to have either a rear license plate or a temporary permit displayed in the rear window,1 and he decided to stop the truck. Sammon eventually cited the driver, appellant Cole Gilbert McGuire, for fourth-degree driving while impaired, and McGuire's driver's license was revoked.

McGuire challenged the revocation of his driver's license, arguing that there was no lawful basis for the stop. McGuire testified that he was a Missouri resident who was living in Rochester for a short period of time for a temporary job. He was driving "a full-size Mega Cab Truck 4 x 4" that was rated to pull an 18,000 pound trailer, and, under Missouri law, he was required to have only a front license plate as Minnesota recognizes that if a vehicle is legal in its home state, it may be legally driven in Minnesota even if it is not in conformity with the Minnesota licensing provisions (i.e. every vehicle must have a front and rear license plate).

The district court upheld the license revocation and on Appeal, the Minnesota Court of Appeals affirmed the lower court, noting:

"A vehicle properly registered or licensed in Missouri will be treated as properly licensed in Minnesota even if the Missouri licensing requirements are different from Minnesota licensing requirements, and, for a properly licensed Missouri vehicle, the requirement to have only a front license plate is an exception from the Minnesota requirement that there be a plate displayed on the front and the rear of the vehicle."

"McGuire argues that, because his vehicle was properly licensed under Missouri law, he was driving a vehicle with a legal license-plate configuration under Minnesota law when he was stopped, and Sammon's mistaken interpretation of Minnesota's license-plate law does not support a particularized and objective basis for suspecting criminal activity, which is required for a valid stop. The supreme court has held that an officer's mistaken belief as to the law cannot provide an objective basis for an investigatory stop. George, 557 N.W.2d at 578-79. In George, an officer stopped a motorcyclist because he believed that the motorcycle had an unlawful headlight configuration, but the officer was mistaken as to the law, and the headlight configuration was lawful. Id. The supreme court concluded that there was no legal basis for the stop because the officer did not have an objective legal basis for suspecting that George was driving his motorcycle in violation of the law. Id. at 579."

"Similarly, in Anderson, an officer believed that a statute required a driver to move far enough away from a stopped emergency vehicle so that there was an entire free "buffer" lane between the driver's car and the emergency vehicle. 683 N.W.2d at 821. Based on this interpretation of the statute, the officer stopped a car that had not moved far enough to the left and eventually arrested the driver for an impaired-driving offense. Id. The supreme court concluded that the officer had incorrectly interpreted the statute and held "that an officer's mistaken interpretation of a statute may not form the particularized and objective basis for suspecting criminal activity necessary to justify a traffic stop." Id. at 823-24."

SO FAR, SO GOOD!

But the Minnesota Court of Appeals goes on to hold:

"There is a significant difference between the circumstances in George and Anderson and the circumstances in this case. In both George and Anderson, the circumstances that the officers observed could not constitute a statutory violation, and, in both cases, the officer stopped the driver because the officer misunderstood the statute and incorrectly believed that he had observed a violation. Unlike George and Anderson, the circumstances that Sammon observed could be a violation of the general statute that requires both a front and a rear license plate, and, because Sammon was following McGuire's vehicle, he had no reason to know that McGuire's vehicle had a front license plate, as required in Missouri."

In other words, even if the vehicle is legal, if the vehicle could be in violation of a Minnesota licensing statute, the officer may legally stop said vehicle.  AAArgh!

Even if the stop is justified, how is the officer entitled to talk to the driver of the vehicle without walking to the front of the vehicle to determine its home state?

Moral Of The Story:  If you are going to drink and drive, make sure your vehicle is "street legal" in every state!


If you or a loved one have been charged with 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 and DUI questions.

Monday, May 14, 2018

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. Taylor (Decided May 14, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police can rely entirely upon statements of a 3rd person to justify a Minnesota DWI vehicle stop.

In Taylor, a Wayzata police officer was on patrol in the City of Wayzata when he overheard a radio transmission from the Orono Police Department regarding a domestic disturbance in the City of Mound. The transmission indicated that the Orono Police Department received information from dispatch that a male individual "had shown up at a female's residence" and that a "verbal altercation" ensued. The female reported that she "believed the male was intoxicated" because he made "unusual" comments about wanting to kill Donald Trump. The female identified the male as appellant Brian Taylor, and stated that he left her residence in a red Jeep and would be "traveling on Highway 12."

The officer positioned his squad car along Highway 12, and a "couple of minutes" later, observed a red Jeep drive past his location. Officer Sharratt followed the Jeep and checked its license plate. The license check revealed that Taylor was the registered owner. The officer initiated a traffic stop because he believed that Taylor was involved in the reported domestic disturbance and may have been intoxicated.

Defendant Taylor was subsequently arrested for a DWI and he filed a motion to suppress arguing the initial stop was unconstitutional.  The motion to suppress was denied and on appeal, the Minnesota Court of Appeals affirmed the district court noting:

"Taylor argues that the stop of his vehicle was unconstitutional because it was "based on a hunch developed after overhearing radio traffic of another department, and not based on any observations of the officer or facts known to him that would create a reasonable articulable suspicion that [Taylor] was involved in criminal activity." But the factual basis needed to maintain a routine traffic stop need not arise from an officer's personal observations; it may also be supplied by information acquired from another person, including an informant. Marben v. State, Dep 't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). An officer properly stops a motor vehicle in reliance on a telephone tip when the caller identifies herself and states that a driver of a vehicle has just been nearby and appears to be intoxicated. See, e.g., City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890-91 (Minn. 1988) (stating that stop was proper when based on identified gas-station attendant's tip regarding intoxicated driver); Magnuson v. Comm 'r of Pub. Safety, 703 N.W.2d 557, 560-61 (Minn. App. 2005) (stating that sufficient reasonable suspicion supported stop based on personal observations of an identified citizen that driver was drunk)."

Moral Of The Story:  Never get in an argument with a woman when you are drunk.

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.


Tuesday, May 8, 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. Waldron (Decided May 7, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that you cannot be convicted of a DWI if you are charged under the wrong statute.  Well duh! Too bad the Defendant had to go all the way to the Court of Appeals to establish that. But then again, nothing surprises me about the decisions of some district courts.

In Waldron, the Defendant was convicted of two counts of DWI, in violation of Minnesota Statute 169A.20, subds. 1(1),  & 1(5).  At trial it was undisputed that the Defendant was driving an all terrain vehicle (ATV). 

The Defendant moved to vacate the conviction arguing the evidence was insufficient to convict him under the charged statutes as the particular statute specifically exempts ATV's. The statute states: "It is a crime for any person to drive, operate, or be in physical control of any motor vehicle, as defined in section 169A.03, subdivision 15, except for motorboats in operation and off-road recreational vehicles," while intoxicated. Minn. Stat. § 169A.20, subd. 1.

The prosecutor should have charged Mr. Waldron pursuant to Minnesota Statute Section 169A.20 subd. 1(b) which independently makes it "a crime for any person to operate or be in physical control of a[n] . . . [ATV] as defined in section 84.92, subdivision 8," while intoxicated. But since the case was not brought under the proper statute, the Minnesota Court of Appeals correctly ruled: "Because operating an ATV while intoxicated cannot form the basis for a conviction under section 169A.20, subdivisions 1(1) or 1(5), we conclude that there was insufficient evidence to conclude that Waldron violated those statutes."

Moral Of The Story: Details Matter!



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.