Monday, September 24, 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 Mortenson v. Commissioner of Public Safety (Decided September 24, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that if you refuse to submit to testing, you cannot claim you were misled by an inaccurate Implied Consent Advisory.

In Mortenson, the Petitioner was arrested for a DWI and was read a Minnesota Implied Consent Advisory.  Mr. Mortenson refused to submit to a blood or urine test and the commissioner revoked his license.  

The Petitioner challenged the license revocation arguing his license revocation should be rescinded because the state cannot constitutionally charge him with a crime for refusing warrantless blood and urine tests. The district court agreed and rescinded the revocation of Mortenson's license to drive.  The Court of Appeals agreed initially with the district court, issuing an order opinion affirming the district court's rescission based on a different theory, reasoning that the implied-consent advisory misled Mortenson by inaccurately informing him that refusal to take a blood or urine test is a crime and that the advisory therefore violated Mortenson's right to due process under McDonnell v. Comm 'r of Pub. Safety, 473 N.W.2d 848, 853-55 (Minn. 1991), and Johnson v. Comm'r of Pub. Safety, 887 N.W.2d 281, 292, 294-95 (Minn. App. 2016), rev 'd, 911 N.W.2d 506 (Minn. 2018).

The supreme court granted the commissioner of public safety's petition for review and stayed further proceedings pending final disposition in Morehouse v. Comm 'r of Pub. Safety, 911 N.W.2d 503 (Minn. 2018), and Johnson. After the supreme court issued its opinions in Morehouse and Johnson, the supreme court vacated the Court of Appeals'  decision, and remanded the matter back to the Court of Appeals for reconsideration in light of Johnson.

On remand, the Court of Appeals reversed itself, stating:

"The supreme court reversed this court's decision in Johnson and clarified that a due-process violation under McDonnell does not occur "solely because a driver [has] been misled." 911 N.W.2d at 508. Instead, the supreme court held that a due-process violation occurs only if "three key elements" are met:
(1) the person whose license was revoked submitted to a breath, blood, or urine test; (2) the person prejudicially relied on the implied consent advisory in deciding to undergo testing; and (3) the implied consent advisory did not accurately inform the person of the legal consequences of refusing to submit to the testing. Id. at 508-09 (citing McDonnell, 473 N.W.2d at 853-55)."

"The supreme court determined that Johnson could not satisfy the first two elements because he refused to submit to blood and urine tests, reasoning that "there [was] no concern . . . that [he] was prejudiced by relying on misleading statements by the officer about the consequences of refusing a test because [he] did not submit to testing." Johnson, 911 N.W.2d at 509. Because Johnson could not establish the first two elements of his McDonnell due-process claim, there was no due-process violation, and "Johnson [was] not entitled to a rescission of his license revocation." Id."

"Johnson clarified that due-process relief under McDonnell is only available to drivers who submit to testing, Johnson effectively overruled Steinolfson."

Moral Of The Story: You can't claim you were misled if you refused to follow in the first place.



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.

Tuesday, September 18, 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. Nelson (decided September 17, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person arrested for a DWI does not have the right to have an attorney present to witness the testing procedure.

In Nelson, the Defendant was arrested for a DWI and was read the Minnesota Implied Consent Advisory informing him of his right to consult with counsel prior to testing.  Mr. Nelson told the arresting officer that he wished to speak to his own attorney and was given access to a telephone. Mr. Nelson was able to contact his attorney and after speaking to the lawyer, Mr. Nelson hung up the telephone.  The officer then asked Mr. Nelson if he wanted to call another attorney, to which Mr. Nelson replied that he did.  

The officer provided appellant with several phonebooks, but appellant made no attempt to contact an attorney. The officer advised him a few more times to contact an attorney, but appellant did not do so. The officer ended appellant's phone time at about 4:45 a.m. and asked him if he would take the breath test. According to the officer, appellant stated that he "would not without his attorney present." The officer told appellant that he had to make the decision on his own, but appellant reiterated his prior response. The officer told appellant that he would consider appellant's response as refusing the test and wrote, "[h]e wants his attorney, even though he already spoke to his attorney" on the implied-consent advisory form as the reason for refusal.

The State of Minnesota charged appellant with one count of refusing to submit to chemical testing under Minn. Stat. § 169A.20, subd. 2 (2016), along with several other counts. After the trial, the jury found appellant guilty of refusing to submit to chemical testing, but acquitted him of the other charges.  

On appeal the Appellant argued that the evidence was insufficient to support the jury's guilty verdict because he was exercising his right to have a reasonable opportunity to obtain legal advice rather than refusing the test, and therefore did not demonstrate an "actual unwillingness" to submit to a chemical test.  The Court of Appeals was not persuaded, noting:

""[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." State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010) (emphasis added), review denied (Mi\m. Mar. 15, 2011). Whether a driver refused to submit to chemical testing is a question of fact, which we review under the clearly erroneous standard. Lynch v. Comm 'r of Pub. Safety, 498 NW.2d 37, 38-39 (Minn. App. 1993)."

"Appellant told the officer that "he would not [take the test] without his attorney present." Appellant's statement is direct evidence indicating his refusal to take the test and is sufficient evidence supporting the jury's guilty verdict."

"Appellant argues that his statement is insufficient to support the jury's guilty verdict because his statement indicated that he was exercising his right to have a reasonable opportunity to obtain legal advice, which includes having an attorney present during the test. Appellant's argument is unavailing. A driver has a state constitutional 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). However, such right is "limited" in DWI cases, and may be vindicated when a police officer provides the driver with "a telephone and a reasonable amount of time to contact and speak with an attorney." Gergen v. Comm 'r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). In Sturgeon v. Comm V. of Pub. Safety, we held that this right does not include having counsel "present during the test itself, even though counsel was already present at the station before the test was administered and no delay would result," as long as the driver is allowed to use a phone and have a private conversation with his attorney."

Moral Of The Story: While absence may make the heart grow fonder, it does not justify a refusal to submit to DWI testing.



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.



Wednesday, September 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. Hyrdahl (Decided September 4, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if the Implied Consent Advisory is technically correct as read to the Defendant, then the advisory does not violate due process.

In Hyrdahl, the Defendant was arrested for DWI and at the jail, the arresting the officer read the breath-test advisory to Mr. Hyrdahl. The Defendant contacted an attorney and, after speaking to his attorney, agreed to take the offered breath test. Defendant's alcohol concentration was 0.14.

The Defendant filed a motion to suppress the evidence resulting from his agreement to take the breath test, alleging that the breath-test advisory violated his due-process rights. Defendant agreed that while it is against the law to refuse to consent to a breath test, the advisory seemed to suggest that it was against the law to refuse to consent to any test, a misstatement of the law. The district court agreed and suppressed evidence resulting from his agreement to take the breath test, finding that the advisory, as read by the officer, was misleading and violated defendant's due-process rights. 

The State appealed the District Court and the Minnesota Court of Appeals reversed the lower court, stating:

"Minnesota law requires law enforcement to provide an advisory prior to administering a breath test to a driver. Minn. Stat. § 169A.51, subd. 2 (2016). The advisory must inform drivers that "Minnesota law requires [them] to take a test," "that refusal to submit to a breath test is a crime," and that they may consult with an attorney. Id. Failing or refusing such a test can result in license revocation. Minn. Stat. § 169A.52, subds. 3, 4 (2016)."

"In the criminal context, like this case, due process requires that criminal defendants be treated with fundamental fairness. Id. A due-process violation in a criminal prosecution for driving while impaired occurs when a breath test is obtained through coercion. Id. An implied-consent advisory is coercive if it is misleading. State v. Stumpf, 481 N.W.2d 887, 889-90 (Minn. App. 1992)."

"Here, the advisory given by law enforcement did not violate respondent's due-process rights because it was not misleading. The officer informed respondent that Minnesota law required him to take "a test" to determine the presence of alcohol. The officer then informed respondent that refusal to take "a test" is a crime. The officer informed respondent that he had a right to consult with an attorney, and respondent then spoke with an attorney. Lastly, the officer offered respondent a "breath test," and respondent consented to take the breath test. The officer accurately informed respondent that his failure to take the breath test could result in criminal penalties. Therefore the advisory did not misstate the law."

"The district court determined that the instruction was misleading because the officer informed respondent that refusal to take a "chemical test" is a crime. The court determined this was a misstatement of the law because a driver may refuse certain chemical tests like those for blood or urine and such a refusal is not a crime. See State v. Thompson, 886 N.W.2d 224, 234 (Minn. 2016); State v. Trahan, 886 N.W.2d 216, 224 (Minn. 2016). But based on the record, the officer did not instruct respondent that refusal to take a chemical test is a crime and instead explained that refusal to take a test is a crime. And, the only test offered to respondent was a breath test; the instruction accurately described that refusal to take the offered breath test would be a crime. The officer never asked respondent to take a blood or urine test. Given the circumstances, the breath-test advisory was not misleading."

Moral Of The Story: Close enough for government work!
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.