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The Minnesota DWI Case Of The Week is State v. Whitaker, (Decided October 22, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that hearsay must be reliable in order to be admissible.

In Whitaker, 911 dispatch received two phones calls at approximately 11:30 p.m. regarding a single-car accident. The first caller reported seeing a "smoking" car that had hit a tree with someone still inside the vehicle. The second caller said that he saw a car hit a tree, and had tried to speak with the driver, who was still in the car and "freakin' out." He also stated that the driver did not respond to him.

Officers found the car crashed into a tree, as reported. They also found one individual—later identified as appellant Deddrick Terrell Whitaker—seatbelted in the driver's seat. According to officers, Whitaker acted erratically—he rocked back and forth, yelled gibberish, flailed his arms, and did not respond to officers. The officers noted that the car was still running and in drive. Eventually, the fire department removed Whitaker from the car, and he was transported to the hospital. Officers meanwhile searched the car and found two bags containing suspected controlled substances.

Officers obtained a search warrant, and Whitaker's blood was drawn and tested; his blood test revealed the presence of phencyclidine, a controlled substance more commonly known as PCP. Whitaker was charged with driving while impaired (DWI)—presence of a controlled substance—under Minn. Stat. § 169A.20, subd. 1(7) (2016).

In January 2017, Whitaker notified the state by motion that he intended to "rely on the affirmative defense of 'someone else was the driver of the motor vehicle.'" The day before trial was scheduled to begin, the district court conducted a pretrial hearing. Whitaker stated that the "true driver" of the vehicle was in the courtroom. The district court inquired further, the witness stated his name—K.A.—and left the courtroom at the district court's direction because he was a potential witness. Later, K.A. gave statements to investigators for the state and the defense.

During the three-day jury trial, the state offered testimony from the responding officers, a hospital employee, investigators, BCA employees, and an individual who testified that he sold the car involved in the accident to Whitaker, who was not the registered owner. After the state rested, and outside the jury's presence, the defense said it intended to call K.A. to establish that he, not Whitaker, drove the car. The district court appointed counsel to advise K.A. before he testified. After a recess, and outside the jury's presence, K.A. took the witness stand, and, under questioning from his counsel, invoked his Fifth Amendment right against self-incrimination. The district court released K.A. from the defense subpoena.

Whitaker asked to introduce K.A.'s out-of-court statements through either the defense or the state's investigators under an exception to the hearsay rule. The state objected and argued the out-of-court statements were not reliable. After determining that K.A. was unavailable, as required by the applicable rule of evidence, the district court considered several factors and excluded the evidence as inadmissible hearsay.

Whitaker then testified, stating that he had been sleeping in the car for a few days before the accident, he did not own the car, and K.A. drove the car the day of the accident. He also testified that he remembered the car hitting a tree and he was then knocked unconscious.  The jury found Whitaker guilty and on appeal, he contends the district court erred when it excluded the out of court statement of K.A.

The Minnesota Court of Appeals affirmed the conviction noting:

"Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Minn. R. Evid. 801(c). Generally, hearsay is not admissible unless an exception applies. Minn. R. Evid. 802. One exception allows the admission of hearsay by an unavailable declarant when the statement is against the declarant's interest. See Minn. R. Evid. 804(b)(3). Under this exception, a hearsay statement that is against the declarant's penal interest may be admissible to exculpate the defendant only if: (1) the declarant is unavailable to testify; (2) the statement tended to "subject the declarant to civil or criminal liability" at the time the statement was made, so that a reasonable person would not have made the statement unless they believed it to be true; and (3) "corroborating circumstances clearly indicate the trustworthiness of the statement." Ferguson v. State, 826 N.W.2d 808, 813 (Minn. 2013)."

"Here, the parties dispute only the third requirement: whether corroborating circumstances clearly indicate the trustworthiness of K.A.'s statements to investigators.2 In Ferguson v. State, the Minnesota Supreme Court directed district courts to examine six factors to determine the trustworthiness of a hearsay statement against interest: "(1) whether other evidence corroborates the facts in the hearsay statement; (2) the extent to which the hearsay statement is consistent with the declarant's prior testimony and other statements; (3) the relationship between the declarant and other witnesses and parties, including the defendant; (4) whether the declarant has reason to fabricate the statement; (5) the overall credibility and character of the declarant; and (6) the timing of the statement." 826 N.W.2d at 813. It is not necessary to address all six factors in every case; the trustworthiness of the hearsay statement under rule 804(b)(3) "depends on the totality of the circumstances, and the relevance of each of the six factors will vary depending on the facts of each case." 

"Based on two factors—the lack of corroborating evidence and the timing of the statements—the district court decided to exclude K.A.'s statements. The district court considered other admitted evidence, specifically, the 911 call "that only identified one occupant in the vehicle," the responding officers' statements that they "did not see any other individuals," and that Whitaker "was buckled into the driver's seat" and "[t]he car was still in drive." The district court concluded that no "other information" corroborated K.A.'s statement. We agree with the district court.

Moral Of The Story:  Alibi Witness delayed is alibi witness denied.

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.

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 Susa v. Commissioner of Public Safety (Decided October 8, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that you must show you relied on the inaccurate Implied Consent advisory before you can challenge the test result.  

In Susa, the Petitioner was arrested for a DWI in Pine County.  After the deputy read the Minnesota Implied Consent Advisory, Petitioner provided a urine sample. Analysis of the sample indicated an alcohol concentration of 0.14. The Commissioner Of Public Safety revoked Petitioner's driver's license.

Petitioner challenged the license revocation in district court arguing his due-process rights were violated because the implied-consent advisory was misleading in that it advised him that it was a crime to refuse to submit to a warrantless blood or urine test, which simply was not true. 

In a memorandum in support of his motion, Petitioner argued that the warrantless urine test was unconstitutional because there were no valid exceptions to the warrant requirement and respondent had a right to refuse a warrantless blood or urine test under State v. Trahan, 870 N.W.2d 396 (Minn. App. 2015), aff'd, 886 N.W.2d 216 (Minn. 2016) (concluding test-refusal statute, which criminalized driver's refusal to take a warrantless blood test, was unconstitutional as applied to Trahan where there were no exigent circumstances justifying a warrantless search of his blood). Petitioner also relied on McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848 (Minn. 1991), to support his argument that the implied-consent advisory was misleading and violated his due-process rights. 

In an unpublished opinion, this court affirmed the district court's rescission order on McDonnell due-process grounds. Susa v. Comm 'r of Pub. Safety, No. A16-0569, 2016 WL 7188703, at *2 (Minn. App. Dec. 12, 2016). We concluded that respondent's due-process rights were violated by the misleading implied-consent advisory that threatened to criminally punish respondent for refusing to submit to a warrantless blood or urine test. Id. at *4. We reasoned that "[r]ecent holdings of the Minnesota Supreme Court and the United States Supreme Court make clear that the state cannot criminally punish respondent for his refusal to submit to either the blood or urine tests offered by the deputy.

The supreme court granted the commissioner's petition for review and stayed the proceedings pending final disposition in Morehouse v. Comm'r of Pub. Safety.  In Morehouse, the Petitioner not even claim, much less establish, that he prejudicially relied on the implied-consent advisory, The Morehouse Court ruled Petitioner was not entitled to rescission of his license revocation under McDonnell.

Morehouse overruled Olinger v. Commissioner of Public Safety in which the Minnesota Supreme Court had previously ruled a party DID NOT have to show prejudicial reliance upon the advisory.  Thus the Court of Appeals, in this case, uses Morehouse to reverse the district court, noting:

"At the time respondent petitioned for judicial review of his license revocation, this court had not required a showing of prejudicial reliance on a misleading implied-consent advisory. See Olinger v. Comm 'r of Pub. Safety, 478 N.W.2d 806, 808 (Minn. App. 1991) (concluding McDonnell due-process violation occurs when police threaten criminal charges the state is not authorized to impose, without any showing of prejudicial reliance). Respondent contends that Johnson and Morehouse "fundamentally changed the rule of law with respect to the prejudicial effect of a misleading Implied Consent Advisory." But the supreme court in Morehouse and Johnson has now clarified that a McDonnell due-process violation has three elements, one of which requires proof of prejudicial reliance. The supreme court did not remand to the district court to give Morehouse an opportunity to develop a factual record on prejudicial reliance. 911 N.W.2d at 505."

"Applying Morehouse, as we are required to do by the supreme court's remand instructions, we are persuaded that respondent did not allege or establish the second element of a McDonnell due-process violation. Respondent did not testify at the evidentiary hearing, and he did not claim prejudicial reliance in his written submissions to the district court. Because the record does not establish that respondent prejudicially relied on the misleading implied-consent advisory in making the decision to submit to testing, respondent has not established a McDonnell due-process violation, and he is not entitled to rescission of his driver's license revocation on due-process grounds"

OUCH!

Moral Of The Story:  If you have been misled, speak up!!

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.