tag:blogger.com,1999:blog-37355805596900343102024-03-04T15:30:32.100-06:00Minnesota DWI Lawyer BlogA Discussion of Current Minnesota DWI and Minnesota DUI Issues and Cases!F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.comBlogger263125tag:blogger.com,1999:blog-3735580559690034310.post-62006264137751768592024-03-04T15:30:00.000-06:002024-03-04T15:30:00.480-06:00Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is Alleman v. Commissioner of Public Safety (Decided March 4, 2024, Minnesota Court of Appeals, Unpublished), which stands for the proposition that a partially covered license plate is a constitutionally sufficient reason for the police to stop a motor vehicle. </span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Alleman, a Crow Wing County police officer was following the Petitioner's motorcycle when the officer noticed Mr. Alleman's backpack was obstructing the rear license plate of the motorcycle. The officer initiated a traffic stop and ultimately arrested Mr. Alleman for DWI and revoked his driver's license.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Mr. Alleman filed a challenge to the license revocation arguing the officer did not have a constitutionally sufficient basis to justify the initial stop. The district court denied the challenge and upheld the license revocation. The Minnesota Court of Appeals affirmed the lower court, noting:</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"...</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">an officer does not violate the prohibition if [the officer] stops a vehicle to conduct an investigation based on the officer’s reasonable suspicion that the driver is engaging in criminal activity.” Soucie v. Comm ’r of Pub. Safety, 957 N.W.2d 461, 463-64 (Minn. App. 2021), rev. denied (Minn. June 29, 2021). Reasonable suspicion must be based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968); see Magnuson v. Comm ’r of Pub. Safety, 703 N.W.2d 557, 559 (Minn. App. 2005). “Generally, if an officer observes a violation of a traffic law, no matter how insignificant the traffic law, that observation forms the requisite particularized and objective basis for conducting a traffic stop.” State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: x-large; text-align: left;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Under Minnesota Statutes section 169.79, subdivision 7 (2022), “[t]he person driving the motor vehicle shall keep the [license] plate legible and unobstructed ... so that the lettering is plainly visible at all times.” See Minn. Stat. § 169.011, subd. 44 (2022) (defining “motorcycle” as a “motor vehicle”). Based on the squad-car video, the district court found that it was “very clear that the backpack obstruct[ed] at least three quarters of the license plate.” Alleman disputes the district court’s finding that his license plate was obstructed by the backpack."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Alleman contends that two screenshots from the squad-car video show that his license plate was not covered by the backpack before Officer Lindman stopped his motorcycle. But a review of the squad-car video plainly shows that the license plate was partially obstructed by the backpack before Officer Lindman stopped Alleman’s motorcycle. Because the record supports the district court’s finding that Alleman’s license plate was obstructed by the backpack, the district court did not err by concluding that Officer Lindman had reasonable suspicion to stop Alleman’s motorcycle."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: Be careful of what you are packing.</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minneapolis DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><div><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;"><br /></span></span></span></div><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b><br /></b></span></span></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-88581037259157180502024-02-05T13:47:00.003-06:002024-02-05T13:50:09.194-06:00Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is Obowa v. Commissioner of Public Safety, (Decided February 5, 2024, Minnesota Court of Appeals, Unpublished) which stands, once again, for the proposition that any vehicle equipment violation justifies the stop of the motor vehicle.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Obowa, a law-enforcement officer with the Lino Lakes Public Safety Department was driving northbound on Lake Drive. A passenger vehicle was driving directly in front of the officer’s squad car. When the driver of the vehicle braked to stop for a red light, the officer observed that one of the vehicle’s brake lights was not working. The officer then initiated a traffic stop by pulling over the vehicle.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The officer spoke to the driver, James Obowa, and the officer could smelled the odor of alcohol, and observed Mr. Obowa exhibited bloodshot eyes and slurred speech. Further testing resulted in the arrest of Mr. Obowa for DWI and in the revocation of his driver's license.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Mr. Obowa challenged the license revocation but the district court sustained the revocation. On appeal, the Minnesota Court of Appeals affirmed the revocation, stating:</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"A law enforcement officer may, however, consistent with the Fourth Amendment, conduct a brief, investigatory stop of a motor vehicle when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” State v. Taylor, 965 N.W.2d 747, 752 (Minn. 2021) (quotation omitted). To satisfy the reasonable-suspicion standard, the officer “must articulate a particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotation omitted)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"In the traffic-stop context, the bar for reasonable suspicion is relatively low. See Taylor, 965 N.W.2d at 752, 757. “Generally, if an officer observes a violation of a traffic law, no matter how insignificant the traffic law, that observation forms the requisite particularized and objective basis for conducting a traffic stop.” State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">***</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Obowa challenges the district court’s determination that the officer had reasonable, articulable suspicion to support the traffic stop. More specifically, Obowa contends that the district court’s decision is based on a mistake of law and a mistake of fact because the record does not reflect that the officer had an objective basis to suspect that Obowa was operating his vehicle in violation of a traffic law. Based on our review of the applicable traffic laws and the record in this case, we are not persuaded."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">Minnesota law requires that a vehicle’s stop lamps and signal lamps “must at all times be maintained in good working condition.” Minn. Stat. § 169.57, subd. 3(a) (2022). In State v. Beall, we clarified that the statute “unambiguously applies to all lamps with which a vehicle is equipped.” 771 N.W.2d 41, 45 (Minn. App. 2009) (emphasis added). We concluded that “[a] vehicle with an inoperable [] brake light is operated unlawfully in violation of [section 169.57, subdivision 3(a)].” Id. And we held that an officer’s observation of a violation of that statutory provision “gives rise to objective, reasonable, articulable suspicion justifying a traffic stop.” Id.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Beall instructs that an officer’s mere observation of an inoperable brake light is sufficient to justify a traffic stop. See id. That is exactly what the officer testified to in this case. At the implied-consent hearing, he stated that “when the vehicle applied its brakes, the driver’s-side brake light was inoperable.” This testimony is sufficient to support the traffic stop based on a violation of section 169.57, subdivision 3(a). We therefore conclude that the district court did not err in its determination that the officer had reasonable, articulable suspicion to stop Obowa."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: An ill equipped car is like living with a snitch.</b></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/">contact Minnesota DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><b><br /></b></span></p><div><br /></div>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-74175720188660463122023-12-26T12:11:00.000-06:002023-12-26T12:11:03.941-06:00Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Waldron (Decided December 26, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it is never a good idea to talk to the police.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Waldron, the defendant approached a house in Hibbing Minnesota looking for held after a single-car crash. </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Waldron was injured and smelled of alcohol, and the homeowners summoned emergency assistance. A state trooper was the first emergency worker to arrive. The trooper located the car, which was in a ditch about 40 yards away from the road, and he confirmed that it was unoccupied. Then, the trooper went to the house to meet with Ms. Waldron.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Waldron was lying on the entryway floor, bloodied, and crying, and the homeowners were nearby. The trooper called for an ambulance. When the trooper asked Waldron for her name, she did not respond and moaned in pain. The homeowners told the trooper that Waldron had told them her name and had said her boyfriend was the driver. When the trooper asked Waldron what she had been doing at the time of the crash and whether she had been wearing a seatbelt, Waldron said she was not driving and asked about her boyfriend’s whereabouts. The trooper radioed for assistance in locating the missing boyfriend.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Another officer arrived at the home, and asked Waldron for the name of the boyfriend they should be looking for. This officer asked Waldron whether the boyfriend had been driving. Waldron responded that her boyfriend was not the driver.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Ms. Waldron was taken to a local hospital and her blood was drawn pursuant to a search warrant. The blood test result revealed an alcohol concentration level of .188%.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The Defendant was charged with DWI and moved to suppress the statements she had made to law enforcement arguing the statements were obtained in violation of Miranda v. Arizona.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The district court denied the motion to suppress and on appeal, the Court of Appeals affirmed the lower court, noting:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">To determine whether an individual was in custody for the purpose of the Miranda requirement, a court should consider the surrounding circumstances. State v. Scruggs, 822 N.W.2d 631, 637 (Minn. 2012). Factors suggesting that a person was in custody include:</span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica; text-align: left;">(1)</span><span class="Apple-tab-span" style="font-family: helvetica; text-align: left; white-space: pre;"> </span><span style="font-family: helvetica; text-align: left;">the police interviewing the suspect at the police station;</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">(2)<span class="Apple-tab-span" style="white-space: pre;"> </span>the suspect being told he or she is a prime suspect in a crime; (3) the police restraining the suspect[’]s freedom of movement; (4) the suspect making a significantly incriminating statement; (5) the presence of multiple officers; and (6) a gun pointing at the suspect.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">State v. Vue, 797 N.W.2d 5, 11 (Minn. 2011) (quotation omitted). And factors suggesting that an individual was not in custody include brief questioning, a nonthreatening environment, an explicit statement by police that the person is not under arrest, and police allowing the person to make phone calls or leave after they gave their statement. Scruggs, 822 N.W.2d at 637."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Interrogation is “express questioning or any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response.” State v. Heinonen, 909 N.W.2d 584, 589 (Minn. 2018) (quotations omitted). A custodial interrogation occurs when “questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way,” Miranda, 384 U.S. at 444, or “if, based on all the surrounding circumstances, a reasonable person under the circumstances would believe that he or she was in police custody of the degree associated with formal arrest.” Vue, 797 N.W.2d at 10-11 (quotation omitted); see also Scruggs, 822 N.W.2d at 637."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">Based on the district court’s undisputed factual findings, we determine, based on our independent review, that there was no custodial interrogation requiring a Miranda warning. We reach this conclusion for two reasons.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">First, considering the surrounding circumstances, Waldron was not in custody when she was questioned. At the outset of Waldron’s encounter with law enforcement—and, indeed, for the majority of that encounter—there was just one law enforcement officer present. The homeowners were also present during the encounter, and they were also interacting with law enforcement. Waldron was not in a police station, jail, or a squad car. She was lying on the floor of a house that she entered on her own initiative. And the responding trooper made clear that medical help had been summoned for Waldron. The questions posed by law enforcement were not accusatory. Rather, they were open-ended attempts to figure out what had happened and whether there was another injured person outside in the cold. The totality of these circumstances indicates that Waldron was not in custody when she made the statements at issue. See Vue, 797 N.W.2d at 11 (instructing district courts to consider the totality of the circumstances in deciding whether an individual is in custody for the purpose of a Miranda warning).</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Second, there was no interrogation. Police are not required to give a Miranda warning when engaging in “general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.” Miranda, 384 U.S. at 477. This includes “on-the-scene questioning” of individuals suspected of driving while under the influence. See Steinberg v. State, Dep’t of Pub. Safety, 357 N.W.2d 413, 416 (Minn. App. 1984) (“[U]pon arriving at the scene of an accident an officer need not give a Miranda warning to a person suspected of DWI.”); see also State v. Werner, 725 N.W.2d 767, 769-71 (Minn. App. 2007) (stating that asking a DWI suspect about alcohol consumption does not constitute an interrogation); State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986) (observing that an “officer’s subjective intent or . . . belief that defendant was driving under the influence” does not on its own “necessitate a Miranda warning”). Here, law enforcement officers asked Waldron general on-the-scene questions after responding to a serious car accident. These questions did not amount to an interrogation."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Because there was no custodial interrogation, no Miranda warning was required."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: Loose lips sink ships!</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minnesota DWI Attorney, F. T. Sessoms</a><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p><div style="text-align: justify;"><span style="font-size: large;"><br /></span></div><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p><div style="text-align: justify;"><span style="font-size: large;"><br /></span></div><p><br /></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-13137455822081540492023-12-11T14:03:00.000-06:002023-12-11T14:03:13.061-06:00Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is Ness v. Commissioner of Public Safety (Decided December 11, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the failure to read verbatim the Minnesota DWI Search Warrant Advisory is not fatal as long as the advisory given is not inaccurate, misleading or confusing.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Ness, the Petitioner was arrested for driving while impaired and was taken to jail. The arresting officer asked the Petitioner if he preferred to take a blood or a urine test. The Petitioner responded that the officer was not going to obtain either test from him.</span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica;">The officer obtained a search warrant authorizing him to procure either a blood or urine sample from appellant. After obtaining the warrant, the officer approached Petitioner's holding cell, stated </span><span style="font-family: helvetica;">Petitioner's</span><span style="font-family: helvetica;"> name, and asked </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;"> to come talk to him. </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;"> was lying down on the cell bed, was wrapped in a blanket with his eyes closed, and did not get up or respond to the officer. The officer informed </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;">, “as I told you before, I was drafting a search warrant for your blood or urine because of the DWI, and I have a signed search warrant in my hand, and refusing to submit to that search warrant is a crime.” The officer asked </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;"> if he understood. The officer testified that appellant did not respond and was ignoring him, but that at one point </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;"> opened his eyes and looked at him while adjusting his blanket before continuing to ignore him. The officer asked </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;"> if he was refusing to give the officer a test, to which </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;"> did not reply.</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"></span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica;">The officer then told </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;"> that he was taking his silence as a refusal, and asked if </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;"> understood. </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;"> again did not reply. The officer informed </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;"> that he was leaving </span><span style="font-family: helvetica;">Petitioner</span><span style="font-family: helvetica;"> a copy of the search warrant but </span><span style="font-family: helvetica;">Petitioner's</span><span style="font-family: helvetica;"> noncompliance with the warrant would be considered a refusal and he would be charged with an additional crime. The officer then issued a Notice and Order Of Revocation of the Petitioner's driver's license.</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Petitioner challenged the revocation of his license asserting that his refusal to submit to testing was not properly obtained. Petitioner claimed that since the officer failed to read the search warrant advisory statutory language verbatim, and failed to offer both a blood or urine test, the revocation of his license must be rescinded.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The district court sustained the revocation and on appeal, the Minnesota Court of Appeals upheld the lower court, stating:</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Minn. Stat. § 171.177, subd. 4. “At the time a blood or urine test is directed pursuant to a search warrant . . . the person must be informed that refusal to submit to a blood or urine test is a crime.” Id., subd. 1. </span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Minnesota Statutes section 171.177, subdivision 2, provides, in part, that:</span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica;">The peace officer who directs a test pursuant to a search </span><span style="font-family: helvetica;">warrant</span><span style="font-family: helvetica;"> shall direct a blood or urine test as provided in the </span><span style="font-family: helvetica;">warrant</span><span style="font-family: helvetica;">. If the warrant authorizes either a blood or urine test, the officer may direct whether the test is of blood or urine. If the person to whom the test is directed objects to the test, the officer shall offer the person an alternative test of either blood or urine.</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Action may only be taken against a person who is offered and refuses both a urine test and a blood test. Id., subd. 2."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">This court has determined that the warning requirement under Minn. Stat. § 171.177, subd. 1, is unambiguous and law enforcement is required to inform a defendant that refusal to submit to a warranted blood or urine test is a crime. State v. Mike, 919 N.W.2d 103,110 (Minn. App. 2018), rev. denied (Minn. Aug. 20,2019)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">In Nash, this court considered whether law enforcement provided the search-warrant advisory required under Minn. Stat. § 171.177, subd. 1, when a state trooper told Nash, “I applied for a search warrant for a blood draw, and refusal to take a test is a crime.” 989 N.W.2d at 706. Even though the warrant also permitted a urine test, the trooper did not mention the possibility of a urine test, and Nash did not have an opportunity to read the warrant before agreeing to the blood test. Id. at 710. We concluded that “the advisory informed Nash that he could be charged with a crime if he refused the blood test, even though the trooper had not offered Nash an alternative urine test. That was an inaccurate statement of law and misleading,” and could not be a basis for Nash’s license revocation. Id. at 710-11. We held that if a search-warrant advisory deviates from the exact wording of Minn. Stat. § 171.177, subd. 1, it “is insufficient to sustain the revocation of a person’s driving privileges if it is an inaccurate statement of law, misleading, or confusing when considered in its context as a whole.” </span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Although here the officer’s search-warrant advisory did not comply with the exact wording of Minn. Stat. § 171.177, subd. 1, Nash supports that a deviation is only problematic if it is an inaccurate statement of law, misleading, or confusing in its context. 989 N.W.2d at 711. Here, the officer’s advisory was legally accurate and properly advised appellant of the consequences of his refusal. The officer testified that at the jail and prior to applying for a search warrant, he asked appellant whether he preferred a blood or urine test, to which appellant responded that he would provide neither. After applying for and receiving a search warrant, the officer told appellant that he had obtained a signed search warrant for appellant’s blood or urine, and that refusing to submit to the search warrant was a crime."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The plain language of subdivision 2 does not require law enforcement to separately direct the tests. A peace officer who directs a test “shall direct a blood or urine test as provided in the warrant,” and if the warrant authorizes both, the peace officer “may direct whether the test is ofblood or urine.” Minn. Stat. § 171.177, subd. 2 (emphasis added). If a person objects to one test, the peace officer shall offer the other test. Id. The statute does not prohibit a peace officer from simultaneously offering a urine or a blood test. “Action may be taken against a person who refuses to take a blood test only if a urine test was offered and action may be taken against a person who refuses to take a urine test only if a blood test was offered.” Id. Here, the officer testified to offering both types of tests to appellant before the officer obtained a search warrant. After obtaining the warrant, the officer again indicated to appellant that both tests were authorized by the search warrant before informing appellant that refusal to comply with the search warrant was a crime. The officer therefore complied with the requirements of Minn. Stat. § 171.177, subd. 2."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: Close enough for government work. </b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face="" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minneapolis DWI Attorney, F. T. Sessoms</a><span face="" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><div><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face="" style="text-align: justify;"><br /></span></span></span></div><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b><br /></b></span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-34103153142008132312023-11-27T13:28:00.000-06:002023-11-27T13:28:13.472-06:00Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Graham (Decided November 27, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the unintentional destruction of the squad video does not violate Due Process.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Mr. Graham was charged with second-degree DWI and he challenged the stop and arrest. The arresting officer testified that he observed Mr. Graham drive his vehicle over the fog line and make a "sloppy right turn, and cross into oncoming traffic before correcting into the proper lane. The arresting officer </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">testified that his squad car’s video system automatically activates when an officer turns on the vehicle’s emergency lights, and the captured footage will often include a few minutes of video prior to the activation of the lights. He further testified he believed Graham’s driving conduct was automatically recorded by the squad camera.</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Defense counsel was then given leave by the Court to obtain a copy of the squad video. The state later informed the district court that the squad video did not exist and requested that the record be closed. </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Graham moved the district court to dismiss the charges, arguing that the loss or destruction of the squad video constituted a due-process violation. The district court held a second omnibus hearing and received testimony from the arresting officer and his chief of police.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The police chief testified </span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">testified that he oversees the sergeants assigned to managing, transferring, and storing videos; that he searched for and could not locate the video recording of Graham’s traffic stop; and that all recordings labeled as medical calls were “deleted for 2019 to free up some space on our server.” He testified that “it’s to the point where test recordings, traffic warnings and medicals take up a lot of space on our internal storage, and it’s my belief that after a year or two if there haven’t been any complaints” then “we just delete them,” and that “[t]he only person in our department that has the password to remove the files [is] myself.” He testified, “I might have deleted it if it was labeled as a test recording, as a medical or as a traffic warning.”</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The district court denied Graham’s motion to dismiss, reasoning that there was “an equal likelihood the squad video could have inculpated [Graham] as it could have exculpated him.” The district court determined that the squad video was not destroyed in bad faith, that the exculpatory value of the evidence was not apparent "at the time of destruction".</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">On appeal, the Minnesota Court of Appeals upheld the district court stating:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">In Brady v. Maryland, the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). Thus, “[u]nder Brady, the suppression by the [s]tate, whether intentional or not, of material evidence favorable to the defendant violates the constitutional guarantee of due process.” Walen v. State, 111 N.W.2d 213, 216 (Minn. 2010)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The three elements of a Brady violation are: “(1) the evidence must be favorable to the defendant because it would have been either exculpatory or impeaching; (2) the evidence must have been suppressed by the prosecution, intentionally or otherwise; and (3) the evidence must be material—in other words, the absence of the evidence must have caused prejudice to the defendant.” Id. If evidence that is only potentially useful to a defendant is destroyed, then the defendant must show bad faith on the part of the state to establish a due-process violation. Arizona v. Youngblood, 488 U.S. 51,58 (1988)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">*<span> *<span> *</span></span></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The district court reasoned that the video was not material because there was an equal likelihood that the video was inculpatory, and not exculpatory...</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The district court’s reasoning is sound, and we agree that the video was not “material.” There must be something beyond mere “hope” that the destroyed evidence could be exculpatory before it will be protected as the type of “material exculpatory evidence addressed in Brady”.</span></span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="text-align: left;"><span style="font-family: helvetica;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica;">Because the video was not material and was only “potentially useful,” Graham must show bad faith on the part of the state to succeed on his due-process claim. </span></span><span style="font-family: helvetica;">The United States </span><span style="font-family: helvetica; text-align: left;">Supreme Court and the Minnesota Supreme Court have identified two indices of bad faith: (1) the state’s purposeful destruction of evidence favorable to a defendant so as to conceal it; and (2) the state’s failure to follow standard procedures when destroying evidence. Hawkinson, 829 N.W.2d at 373."</span></span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica; text-align: left;">"</span><span style="text-align: left;"><span style="font-family: helvetica;">The record does not support a conclusion that the state purposely destroyed the video. The district court expressly found that “while the video may have been destroyed due to mistake or gross negligence, the [c]ourt does not find the video was intentionally destroyed.” And the circumstances do not suggest that the state was attempting to conceal the video. In fact, but for Officer Etshokin’s testimony at the initial omnibus hearing, which revealed the existence of the video, Graham would not have known about the video. Nor does the record support a conclusion that the state failed to follow standard procedures when it destroyed the video."</span></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">In sum, because the video was not “material” and the record does not show that the video was destroyed in bad faith, the district court did not err by denying Graham’s motion to dismiss for a due-process violation."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: Counsel should have immediately obtained the squad video as reference thereto is always contained in the police reports.</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minneapolis DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b><br /></b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><br /></span></span></p><div><span style="font-size: large;"><br /></span></div><p style="text-align: justify;"><span style="font-size: large;"><br /></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-13688015969116185722023-10-02T12:46:00.000-05:002023-10-02T12:46:09.080-05:00Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is Baumgartner v. Commissioner of Public Safety (Decided October 2, 2023, Minnesota Court Of Appeals, Unpublished) which stands for the proposition that where the facts conflict, the lower court's findings prevail.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Baumgartner, </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Olivia Police Sergeant Aaron Clouse initiated an investigative traffic stop after observing that a vehicle’s driver’s side brake light failed to illuminate. Mr. </span></span><span style="font-family: helvetica; font-size: large;">Baumgartner was subsequently arrested for DWI and he filed a challenge to the revocation of his license arguing that the officer did not have a basis to make the initial stop.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Officer Clouse testified at the license revocation hearing that </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">he saw Baumgartner’s vehicle activate its righthand turn signal as it approached an intersection. Clouse observed that the vehicle’s turn signal illuminated but not the driver’s side brake light. Clouse testified that it was “very clear” that the driver’s side brake light failed to illuminate. Clouse stopped the vehicle for the equipment violation. Baumgartner testified that his brake lights did not illuminate because he drives manual transmission and prefers to reduce speed by downshifting the vehicle rather than use his brakes.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The district court received the video recording of the stop taken from the camera on Clouse’s squad car into evidence at the hearing. The video shows the passenger’s side brake light illuminate for a moment before the vehicle’s turn signal began blinking. The driver’s side brake light, however, did not illuminate as the passenger’s side light did. The squad video also depicts Baumgartner and Clouse testing the vehicle’s lights after Baumgartner pulled over. As Baumgartner pressed on the brakes of his vehicle, the video shows that the brake lights did not immediately illuminate. Eventually, however, both the driver’s and passenger’s side brake lights illuminated as Baumgartner and Clouse tested the brake lights.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The district court issued an order sustaining the revocation of Baumgartner’s driver’s license. It found that Clouse initiated the traffic stop based on his observation of an equipment violation—that the driver’s side brake light failed to illuminate—and that this observation provided sufficient suspicion to initiate the investigative detention.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">On appeal, the Minnesota Court of Appeals affirmed the lower court noting:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Clouse’s testimony and the squad video support the district court’s finding. Clouse testified that he stopped Baumgartner’s vehicle because he “observed that the driver’s side [brake] light did not illuminate.” Clouse further explained that this it was “very clear” that the light failed to illuminate as the vehicle slowed down. In addition, the district court determined that “the vehicle[’s] . . . driver’s side brake light did not illuminate” but, “[t]he other taillights, including the passenger’s side brake light, appeared to be in working order.” Our review of the squad video does not leave us with the firm conviction that the district court erred in making this finding. Rather, consistent with Clouse’s testimony, the driver’s side brake light does not appear to illuminate as the passenger’s side brake light does before the turn signal begins to blink."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">Baumgartner directs us to his testimony that he would routinely downshift the manual transmission in the vehicle to avoid braking. The district court, however, discounted Baumgartner’s testimony, determining that Baumgartner’s testimony was “evasive, inconsistent, and not credible at times.” We must we defer to this credibility determination. Minn. R. Civ. P. 52.01 (“[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”); see also Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004) (“Based on the findings, we must assume that the district court found [the petitioner to be] credible.”); Umphlett v. Comm ’r of Pub. Safety, 533 N.W.2d 636, 639 (Minn. App. 1995) (determining that the district court “implicitly found that officer’s testimony was more credible”), rev. denied (Minn. Aug. 30, 1995)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"We conclude that the district court did not clearly err in its factual finding that Clouse observed the driver’s side brake light malfunction because we defer to the district court’s credibility determinations, do not reweigh conflicting evidence, and there is evidence in the record to support the district court’s finding."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: </b>A fact is not a fact until the district court finds that it is.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/">contact Minnesota DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></p><div><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif"><br /></span></span></div><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p><div><br /></div>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-24689882646628618282023-09-11T13:29:00.000-05:002023-09-11T13:29:24.110-05:00Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Majors (Decided September 11, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a district court judge is not required to find that something is true just because a state trooper claims that it is true!</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Majors, the defendant was stopped late Saturday night by a state trooper for driving the wrong way on a one-way street in downtown Minneapolis. When the trooper approached the vehicle, Ms. Majors explained </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">that she was on her way to work nearby and turned onto Second Avenue, despite knowing it is a one-way, because her usual path to her parking location was blocked. </span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The trooper requested her driver’s license and insurance card, which she provided “without delay or difficulty” while reiterating that she was on her way to work. He then asked, one minute into their interaction, “What time was your last drink?” She said it was at midnight and, upon further questioning, acknowledged having two drinks. The trooper directed her to get out of the vehicle for field sobriety tests and a preliminary breath test (PBT), which indicated an alcohol concentration of 0.15. He arrested Majors, and she was charged with two DWI offenses.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Majors moved to suppress evidence of her intoxication obtained after the trooper asked her about drinking, arguing that the inquiry impermissibly expanded the scope of the traffic stop because the trooper lacked reasonable suspicion of impaired driving. In support of the motion, Majors submitted the video recording from the trooper’s body-worn camera. During the suppression hearing, the trooper testified that he asked Majors about alcohol consumption because she turned the wrong way on a one-way street, there was an “overwhelming” odor of alcohol coming from the car, and Majors had bloodshot, watery eyes and “heavily slurred” speech. He explained that slurring meant running words together, slow speech, garbled words, or “drawing words out louder.” He also testified that the timing of the stop was “meaningful” because there tend to be more impaired drivers on the road at night and Saturday night is when “most people” go out drinking.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">On cross-examination, the trooper acknowledged that the brief wrong-way driving was Majors’s only concerning driving conduct; he did not observe swerving, speeding, or other traffic violations. When asked to identify where, in the recording, Majors’s speech was heavily slurred, he pointed to several moments before and after he asked about alcohol consumption. He maintained that her speech was heavily slurred “[throughout the entire time” he interacted with her but agreed that he had no difficulty understanding her. He also acknowledged that Majors’s eyes did not look bloodshot in the recording. Regarding the accuracy of the recorded image, he testified that the body-worn camera captures “only a small snippet of what’s actually happening” because it does not capture his full field of vision. But he agreed that the recording captures what was directly in front of him, including Majors’s eyes. He also clarified that the fact Majors was driving shortly after midnight was “[n]ot at all” an indication of impairment.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The district court found that the trooper’s testimony that Majors had bloodshot eyes and slurred speech was not credible because the recording showed neither. And because he was not credible on those points, the district court declined to “rely on” his testimony about smelling an odor of alcohol. The district court also found that the time of day did not create reasonable suspicion of impaired driving, pointing to Majors’s work-related reason for being out at that time and the trooper’s testimony that, while Saturday is a common time for people to drink, he did not consider the timing suspicious or indicative of impairment in this case. After concluding that there is no credible evidence to support expansion of the traffic stop, the district court granted the motion to suppress and dismissed the charges.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The State appealed the dismissal but the Court of Appeals affirmed the lower court noting:</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">In assessing credibility, a district court may weigh conflicting testimony and determine which witness to believe. State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003), rev. denied (Minn. Nov. 18, 2003). It may accept part and reject part of a witness’s testimony. Id. And it may determine the weight of any corroborating evidence. See State v. Harris, 405 N.W.2d 224, 229 (Minn. 1987). When there is video evidence of a traffic stop, the district court may make factual findings from its independent review of the video, including discrediting contrary testimony from the officer who conducted the stop. State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The district court found that the trooper was not credible in testifying that Majors’s eyes were bloodshot because the body-worn recording “did not support” the testimony. Review of the recording confirms that, during the one-minute interaction before the trooper asked about alcohol, Majors exhibited no redness in her eyes. Indeed, the trooper acknowledged in his testimony that her eyes do not appear red in the video. This evidence supports the district court’s credibility determination."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The state ... faults the district court for not explaining its determination that the trooper was not credible, such as findings addressing his experience or his demeanor while testifying. But it identifies no authority requiring a district court to do so. To the contrary, a finding that testimony conflicts with video evidence is sufficient justification for discrediting the testimony. Shellito, 594 N.W.2d at 186. Because the district court made such a finding here, and the body-worn recording supports it, the state has not demonstrated that the district court clearly erred by discrediting the trooper’s testimony regarding bloodshot eyes."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The district court also discredited the trooper’s testimony that Majors had “heavily slurred” speech because the recording “did not support” the testimony. The court found that Majors spoke rapidly but “did not slur her speech.” Again, review of the recording supports the district court’s findings: During their one minute of contact before the trooper inquired about alcohol consumption, Majors spoke quickly but intelligibly and did not slur her words."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The state argues that the district court should have credited the trooper’s testimony because he described Majors’s speech as heavily slurred and discerned slurred speech at several points in the recording. But the district court was not bound to accept the trooper’s description of the recording. See id. The state’s contention that the court should have deferred to the trooper’s training and experience is similarly unpersuasive. The trooper explained that his training and experience led him to look for a person running words together, using slow or garbled speech, or drawing words out louder. The recording reveals none of these indicators, just normal, if rapid, speech. And while courts defer to law- enforcement officers’ training and experience because it enables them to make inferences and deductions that may “elude an untrained person,” Mesenburg v. Comm ’r of Pub. Safety, 969 N.W.2d 642, 648 (Minn. App. 2021) (quotation omitted), rev. denied (Minn. Mar. 15, 2022), officers are not uniquely expert in assessing whether a person’s speech suggests impairment, see State v. Ards, 816 N.W.2d 679, 683 (Minn. App. 2012) (holding that an officer’s opinion as to impairment is not “expert” testimony). On this record, we discern no clear error by the district court in finding the trooper’s testimony that Majors had heavily slurred speech not credible."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">The district court acknowledged that, unlike with the other physical indicia the trooper described, the recording does not provide an independent basis for assessing whether Majors smelled of alcohol. But the court reasoned that, “given the [trooper’s] lack of credibility” in testifying that Majors had bloodshot eyes and “heavily slurred” speech, it would “not rely on any alleged odor of alcohol in making its ruling.”</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"The state contends that this implicit credibility finding is clearly erroneous because </span><span style="font-family: helvetica; font-size: large;">the record contains evidence that corroborates his testimony about smelling alcohol—</span><span style="font-family: helvetica; font-size: large;">Majors’s admission that she drank alcohol recently, her poor performance on field sobriety </span><span style="font-family: helvetica; font-size: large;">tests, his comment at a later point in the recording that she smelled strongly of alcohol, and </span><span style="font-family: helvetica; font-size: large;">her 0.15 PBT result. This argument is unavailing. The district court was clearly aware of </span><span style="font-family: helvetica; font-size: large;">this evidence and its potential corroborative value, as its comments during the suppression </span><span style="font-family: helvetica; font-size: large;">hearing reflect. But the court was not required to accept the trooper’s testimony as to odor </span><span style="font-family: helvetica; font-size: large;">of alcohol, even with corroborating evidence, particularly in light of its supported finding </span><span style="font-family: helvetica; font-size: large;">that the trooper’s testimony regarding other physical indicia of impairment was not </span><span style="font-family: helvetica; font-size: large;">credible. See Harris, 405 N.W.2d at 229. Moreover, the district court disagreed that </span><span style="font-family: helvetica; font-size: large;">Majors’s </span><span style="font-size: large;"><span style="font-family: helvetica;">performance on field sobriety tests provided corroboration, finding “little </span><span style="font-family: helvetica;">support” in the recording for a finding “that [she] was impaired.”</span></span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica;">"Given the district court’s supported credibility determinations regarding other </span><span style="font-family: helvetica;">indicia of impairment, and its express consideration of potential corroborating evidence, </span><span style="font-family: helvetica;">the state has not demonstrated that the district court clearly erred by implicitly finding that </span><span style="font-family: helvetica;">the trooper was also not credible in testifying that Majors emitted an odor of alcohol."</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: The Court is not bound to accept the testimony of someone "lying like a cop in court".</b></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: x-large;"></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minnesota DWI Attorney, F. T. Sessoms</a><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><div><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;"><br /></span></span></span></div><div style="text-align: justify;"><br /></div><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><br /></span></span></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-29351022486125365472023-08-08T11:52:00.003-05:002023-12-11T14:01:02.702-06:00Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Wilson (Decided August 7, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it is virtually impossible to collaterally attack a prior license revocation being used to enhance the severity of the current charge.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Wilson, the Defendant was charged with Third Degree DWI (i.e. two DWI's within 10 years). </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The charge was enhanced to a third-degree offense because Wilson’s driver’s license had been revoked two months earlier based on a November 24, 2019 DWI-related traffic stop. Wilson did not seek judicial review of the prior revocation within the statutory 60-day period. After the judicial review period to contest the driver’s-license revocation had ended, Wilson successfully moved to suppress the evidence of impairment in the prior related criminal DWI proceeding.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">In the present case, Wilson moved to exclude evidence of the license revocation from being used to enhance the DWI charge. She argued that the state could not use the revocation as an aggravating factor because the evidence of impairment had been suppressed in the criminal case related to the November 24 stop. The district court denied Wilson’s motion and, in a stipulated-facts trial, found Wilson guilty of third-degree DWI.</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large; text-align: left;">On appeal, the Minnesota Court of Appeals upheld the lower court stating:</span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Use of an unreviewed license revocation as an aggravating DWI factor does not violate a defendant’s due-process rights. State v. Coleman, 661 N.W.2d 296, 301 (Minn. App. 2003), rev. denied (Minn. Aug. 5, 2003). A challenge to the validity of the underlying revocation used as an aggravating factor is a collateral challenge to the revocation. Anderson v. Comm ’r of Pub. Safety, 878 N.W.2d 926, 930 (Minn. App. 2016). A collateral challenge attacks the final outcome of another proceeding which is being used as an element of a charged offense. Davis v. Comm ’r of Pub. Safety, 509 N.W.2d 380, 391-92 (Minn. App. 1993), aff’d, 517 N.W.2d 901 (Minn. 1994). Because collateral challenges weaken the finality of judgments, they are allowed only in “unique cases.” State v. Warren, 419 N.W.2d 795, 798 (Minn. 1988); Anderson, 878 N.W.2d at 930 (citing this aspect of Warren in the implied-consent context)."</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Wilson argues that hers is a unique case because she was indigent and unable to afford counsel to help her seek review of the driver’s-license revocation. Wilson additionally argues that, had she been able to afford counsel and sought judicial review of the driver’s-license revocation, her license revocation would have been rescinded because evidence of intoxication in the related criminal proceeding was suppressed. We are not persuaded that Wilson presents a unique case."</span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"></span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"First, parties in civil implied-consent proceedings do not have the right to court-appointed counsel. Thole, 831 N.W.2d at 22. Thus, Wilson’s indigency and lack of counsel do not present a unique case."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Second... Because the proceedings for license revocation and DWI are separate such that issues decided in one proceeding are not precluded from being relitigated in the other, suppression of the evidence and dismissal of the DWI charges related to the November 24 stop do not indicate that revocation of Wilson’s license would have been rescinded, had she challenged it."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Additionally, Wilson mistakenly relies on Anderson as support for her claim. There, we concluded that the district court did not have jurisdiction to hear an untimely petition for judicial review of a license revocation and the petitioner’s due-process rights were not violated because he had adequate notice of the revocation despite alleged mental incompetence. Anderson, 878 N.W.2d at 927-28. In dicta, we also noted that arguments about the use of prior revocation as an enhancement “should be raised at the time a person is charged with a crime,” not in an implied-consent proceeding. Id. at 930 (quotation omitted). Like in Anderson, Wilson did not timely challenge her license revocation, and, as discussed, allowing a collateral challenge is not warranted in her case."</span></span></p><p style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Makes you wonder what would constitute a "unique" case.</span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: Lack of haste makes waste. </b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face="" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minneapolis DWI Attorney, F. T. Sessoms</a><span face="" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><div><br /></div>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-58316547284491464962023-05-22T14:04:00.001-05:002023-05-22T14:04:25.587-05:00Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. London (Decided May 22, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that being overcharged initially does not require a dismissal of the subsequent correct charge. </span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In London, the Defendant was arrested for DWI and was initially charged with First Degree (i.e.Felony) DWI based upon a prior Wisconsin felony DWI conviction. Once a felony DWI, always a felony DWI, provided the previous felony DWI was from Minnesota. Since the previous felony in this case was from Wisconsin, the Anoka County Attorney eventually recognized the mistake and dismissed the felony charge.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Prior to the felony dismissal, London posted $5,000 bail and was released with conditions, including compliance with the Intensive Supervision Alcohol Program (ISAP). After two ISAP violations alleging a positive test for alcohol and a failure to abstain from alcohol, as well as London’s failure to appear for a court hearing, the district court revoked London’s release with conditions. </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">London spent a total of 45 days in custody related to the felony charge.</span></span><span style="font-family: helvetica; font-size: x-large;"> </span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Fridley City attorney then took over the case and charged Mr. London with Gross Misdemeanor DWI refusal and Misdemeanor DWI. London then </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">moved to dismiss these charges “in the interests of justice,” citing the district court’s authority to dismiss under Minnesota Statutes section 631.21 (2022) and Minnesota Rule of Criminal Procedure 30.02. London argued that he was improperly deprived of his liberty and suffered financial loss because the bail and the conditions of release associated with the felony case should never have been imposed. The state opposed the motion to dismiss, and the district court denied it.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">On appeal, the Minnesota Court of Appeals affirmed the lower court, noting:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Under section 631.21, a district court “may order a criminal action, whether prosecuted upon indictment or complaint, to be dismissed.” The district court “may order dismissal of an action either on its own motion or upon motion of the prosecuting attorney and in furtherance of justice.” Minn. Stat. § 631.21. Because the use of the word “may” in the statute implies the exercise of discretion, we review the district court’s denial of London’s motion to dismiss for an abuse of that discretion. See Minn. Stat. § 645.44, subd. 15 (2022); cf State v. Olson, 884 N.W.2d 395, 398 (Minn. 2016) (stating that rule 30.02’s use of “may” “connotes discretion, which means that the district court’s denial of [defendant’s] motion ‘to dismiss the complaint, indictment, or tab charge’ is reviewed only for abuse of such discretion”)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">London argues that the district court improperly limited its discretion by applying the wrong standard to his motion to dismiss. Specifically, he argues that the district court erred by requiring him to prove undue delay, establish prejudice, and prove prosecutorial misconduct."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"In its order denying the motion to dismiss, the district court recounted the events of the county’s and the city’s cases against London. It found that London had failed to demonstrate that the city attorney had unnecessarily delayed bringing the case to trial, that London had been prejudiced by the city attorney’s action, or that the city attorney had acted improperly or sought an unfair advantage. The district court also characterized as “mere speculation” London’s contention that he could have avoided custody had conditions never been imposed in the felony case. Finally, the district court rejected the argument that the public would not be served by further prosecution given the district court’s “serious concerns” about London’s use of alcohol and the danger it poses to the public. The district court concluded, “After considering all the circumstances, including the effects upon Mr. London, the prosecution, and society as a whole, the Court believes more harm than good would flow from dismissing this matter.”</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"...</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">London’s argument mischaracterizes the district court’s order. London asserts that the district court limited its review to the requirements for a dismissal pursuant to Minnesota Rule of Criminal Procedure 30.02, which authorizes a district court to dismiss a case based on undue delay, but only if the defendant shows they have been prejudiced. See State v. Banks, 875 N.W.2d 338, 341, 345 (Minn. App. 2016), rev. denied (Minn. Sept. 28, 2016). But, as described above, the order denying London’s motion demonstrates that the district court did not so limit its analysis. To the contrary, the district court reviewed London’s arguments, the prior proceedings in both this case and the felony case, and the surrounding circumstances and decided not to dismiss the charges. London also does not identify additional facts or arguments the district court should have considered and thus has not demonstrated that the district court limited its discretion when evaluating his motion to dismiss."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: If there is any basis for a court's ruling it will rarely if ever constitute an abuse of discretion.</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minneapolis DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><div><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;"><br /></span></span></span></div><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p><div><br /></div>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-45894486482960843152023-05-01T12:01:00.000-05:002023-05-01T12:01:30.681-05:00Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is Nash v. Commissioner of Public Safety (Decided May 1, 2023, Minnesota Court of Appeals, Unpublished), which stands for the proposition that an officer cannot deviate from the exact wording of the Minnesota DWI Search Warrant Advisory if the deviation is inaccurate or misleading.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Nash, the Petitioner was stopped in Hennepin County by the Minnesota State Patrol. The trooper noted </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Nash appeared lethargic, his skin was sweaty, he had a “thick tongue” when speaking, and his pupils did not react to light. The trooper believed that Nash was under the influence, but she was not sure whether the cause was alcohol or a different substance. The trooper had Nash exit the vehicle and perform a horizontal-gaze- nystagmus (HGN) test, which is generally used to test for depressants. Nash also completed a one-leg balance test and a walk-and-tum test. The trooper thought that all three tests indicated that Nash was under the influence. Gerhard asked Nash if he was on any medications, and Nash replied that he was not. </span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Nash provided a preliminary breath test, which produced a 0.000 result. Nash then completed a fourth test, which did not reveal any signs of impairment. The trooper nonetheless told Nash that she believed he was under the influence and placed him under arrest.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The trooper </span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">applied for and obtained a search warrant for a blood or urine test. Next, while seated in her squad car with Nash in the back seat, the trooper told Nash, “I applied for a search warrant for a blood draw, and refusal to take a test is a crime.” Gerhard showed Nash the warrant, but she did not “let him hold it and look through it.”</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The blood test result revealed the presence of methadone and the Commissioner of Public Safety revoked the Petitioner's license. </span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The Petitioner challenged the license revocation alleging the trooper did not read the </span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">search-warrant advisory required under Minn. Stat. § 171.177, subd. 1, (3). </span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The District Court sustained the revocation but the Minnesota Court of Appeals reversed the lower court, stating:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Minn. Stat. § 171.177 (2022) governs the revocation of driving privileges based on a search warrant for the collection of a blood or urine sample from a person suspected of driving while impaired. If such test results indicate “the presence of a controlled substance listed in Schedule I or II or its metabolite, other than marijuana or tetrahydrocannabinols, the commissioner shall revoke the person’s license or permit to drive.” Minn. Stat. § 171.177, subd. 5. If a person refuses to submit to a blood or urine test as requested by a peace officer pursuant to a search warrant, then a test must not be given. Id., subd. 13. However, it is a crime for a person to refuse to submit to a chemical test of the person’s blood or urine pursuant to a search warrant under section 171.177. Minn. Stat. § 169A.20, subd. 2(2) (2022)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Section 171.177, subdivision 1, requires that “[a]t the time a blood or urine test is directed pursuant to a search warrant... the person must be informed that refusal to submit to a blood or urine test is a crime.” Nash argues that he is entitled to rescission of his license revocation because the officer did not advise him that refusal to submit to a blood or urine test is a crime and instead merely advised him that she had applied for a search warrant for a blood draw and that refusal to take a test was a crime."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">This court has held that the advisory requirement in Minn. Stat. § 171.177, subd. 1, is unambiguous, has no exceptions, and requires an officer to inform an individual of the criminal consequences of test refusal. State v. Mike, 919 N.W.2d 103, 110 (Minn. App. 2018), rev. denied (Minn. Aug. 20, 2019). We therefore apply the statute’s plain meaning, with guidance from caselaw."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica;">In Tyler v. Commissioner of Public Safety, 368 N.W.2d 275 (Minn. 1985), the </span><span style="font-family: helvetica;">Minnesota Supreme Court stated that “[compliance with the procedures of the implied consent law is a prerequisite to revocation pursuant to the implied consent law.” 368 N.W.2d at 280. The supreme court reasoned that “the legislature intended that a driver’s license be revoked pursuant to the implied consent law . . . only if the provisions of the law were complied with by the police.” Id. at 281 (emphasis added). Because the police did not provide a statutorily required implied-consent advisory, the test results in Tyler “could not properly serve as the basis for a revocation of [Tyler’s] license pursuant to the implied consent law.” Id.</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">***</span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica;">"</span><span style="font-family: helvetica;">The Jensen court applied the supreme court’s reasoning from Tyler and concluded that the commissioner may not revoke a driver’s license based on blood-test results under section 171.177, subdivision 5, unless the officer directing the test gives the driver the advisory required under subdivision 1 of the statute. 932 N.W.2d at 847. This court held that, because the peace officer in Jensen never warned the driver that refusing to submit to a blood test is a crime, the commissioner could not revoke her license based on her test results. Id. at 848 (reversing and remanding for the district court to rescind the license revocation).</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Under Jensen, it is clear that a license revocation cannot be sustained based on the results of a chemical test if the driver was not provided an advisory regarding the criminal consequences of failing to submit to a test. Id. at 846 (stating it was undisputed that law enforcement did not advise Jensen that refusal to submit to a blood test is a crime). But, as the commissioner notes, Jensen does not address the issue presented here: whether an advisory that deviates from the language of Minn. Stat. § 171.177, subd. 1, is nonetheless adequate to sustain a revocation."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"The commissioner argues that “there is no specific form the advisory must take,” and that Nash “was accurately informed of the legal consequences of refusing to submit to the blood test that was requested.” The commissioner relies on McCormick v. Commissioner of Public Safety, in which this court announced the rule that whether an implied-consent advisory complies with statutory requirements “depends on whether the given advisory, considered in its context as a whole, is misleading or confusing.” 945 N.W.2d 55, 60 (Minn. App. 2020). The statute at issue in McCormick required that “[a]t the time a breath test is requested, the person must be informed . . . that refusal to submit to a breath test is a crime.” Minn. Stat. § 169A.51, subd. 2(2) (2018) (emphasis added). The officer in McCormick informed the driver that “refusal to take a test is a crime,” and not that “refusal to submit to a breath test is a crime.” 945 N. W.2d at 57 (emphasis added)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"McCormick argued that the statute required officers to read its language verbatim and that the officer’s failure to state “breath” directly before “test” misstated the law. Id. at 58. This court rejected that argument, noting that the plain language of the statute did not require officers to “read” or “recite” the statute’s language verbatim. Id. at 59. This court also noted that it had upheld advisories that deviated from the language of the implied-consent statute “so long as the information the officer provide[d] [was] not misleading or confusing.” Id. This court reasoned that, because the officer informed McCormick that “this is the breath test advisory” and that “refusal to take a test is a crime,” without mentioning any other test and offering only a breath test, the context of the advisory adequately informed McCormick that refusal to take a breath test is a crime. Id. at 60 (emphasis added). The advisory was therefore sufficient to sustain the revocation of McCormick’s driving privileges. Id.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"The McCormick rule is consistent with an earlier decision of this court in which it said that “[u]niformity in giving the implied consent advisory is highly encouraged” and recommended “that police officers read the exact words of the statute in order to avoid any possibility of confusion or improper deviation from the statute.” Hallock v. Comm ’r of Pub. Safety, 372 N.W.2d 82, 83 (Minn. App. 1985). But this court also stated that if an officer deviates from the exact words of a statutory advisory, a revocation may nonetheless be based on that advisory so long as the advisory was not “an incorrect statement of the Minnesota law, or so confusing as to render the advisory illegal.” Id. (affirming district court’s order sustaining a driver’s license revocation)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"We agree with the commissioner that the McCormick rule applies here. But for the reasons that follow, we disagree that the advisory in this case was adequate under that rule. See Jensen, 932 N.W.2d at 847 (applying to section 171.177 caselaw relied on to interpret the related implied-consent statutes). Minn. Stat. § 171.177, subd. 2, provides that:</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">'The peace officer who directs a test pursuant to a search warrant shall direct a blood or urine test as provided in the warrant. If the warrant authorizes either a blood or urine test, the officer may direct whether the test is of blood or urine. If the person to whom the test is directed objects to the test, the officer shall offer the person an alternative test of either blood or urine. Action may be taken against a person who refuses to take a blood test only if a urine test was offered and action may be taken against a person who refuses to take a urine test only if a blood test was offered.'"</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"In this case, the trooper told Nash, “I applied for a search warrant for a blood draw, and refusal to take a test is a crime.” As the commissioner concedes, if Nash had refused the blood test, the circumstances would not have supported a test-refusal charge because the trooper did not offer him a urine test. See Minn. Stat. § 171.177, subd. 2 (“Action may be taken against a person who refuses to take a blood test only if a urine test was offered . . . Thus, the advisory was an inaccurate statement of Minnesota law and misleading. Nothing about the context of the trooper’s advisory changes our view. Although the search warrant authorized a blood or urine test, the trooper did not mention the urine test. And although the trooper “show[ed]” Nash the warrant, the commissioner does not claim, and the record does not suggest, that Nash had an opportunity to read the warrant before agreeing to submit to the test."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"In sum, the advisory informed Nash that he could be charged with a crime if he refused the blood test, even though the trooper had not offered Nash an alternative urine test. That was an inaccurate statement of law and misleading. The advisory therefore cannot serve as the basis for revocation of Nash’s driving privileges, and the revocation cannot be sustained. See Tyler, 368 N.W.2d at 280 (“Compliance with the procedures of the implied consent law is a prerequisite to revocation pursuant to the implied consent law.”); Jensen, 932 N.W.2d at 847 (applying to section 171.177 caselaw relied on to interpret the related implied-consent statutes)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: You can't enforce the law if you do not read the law.</b></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/">contact Minnesota DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></p><div><span style="font-family: helvetica; font-size: large;"><br /></span></div><div><span style="font-family: helvetica; font-size: large;"><br /></span></div><div><span style="font-family: helvetica; font-size: large;"><br /></span></div><div><span style="font-family: helvetica; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></div><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><br /></span></span></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-19722649081350684402023-04-24T11:39:00.001-05:002023-04-24T11:39:20.705-05:00Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Martinez (Decided April 24, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a court cannot order restitution without discussing the defendant's ability to pay the ordered amount.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Martinez, the Defendant was driving his vehicle in Blue Earth County when the police observed his vehicle did not have a red cover on one taillight. The officer attempted to make a traffic stop of Mr. Martinez, but instead of stopping, Mr. Martinez increased his speed, ran stop signs and reached a speed of 115 miles per hour. </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Eventually, law enforcement attempted a pursuit-intervention-technique (PIT) maneuver, causing Martinez’s vehicle to come to a stop. Martinez admitted to smoking methamphetamine and being under its influence while driving.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Mr. Martinez pled guilty and the state filed two affidavits for restitution, </span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">one from the Minnesota Counties Intergovernmental Trust seeking $8,068.20 and one from Blue Earth County Finance seeking $1,000. The affidavits attested to the cost of repairs to the squad car that was damaged while pursuing Martinez.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Probation filed a presentence-investigation (PSI) report, which recommended a restitution award of $9,068.20 and also stated that if Martinez “chooses to execute his commitment,” restitution should “be paid out of prison earnings.” The PSI report specified that Martinez “has not maintained steady employment for the last five years” and that “his last employment was Burger King ... in </span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">January 2021,” where he worked for “three to four months until he started using drugs and left.” The report also noted that Martinez has “to pay child support but is behind on payments” and “would like the amount lowered.”</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The district court “ordered [Martinez] to pay restitution in the amount of $9,068.20 that is to be paid out of any prison earnings” by April 25, 2024, and stated it was “not imposing a fine . . . due to the large amount of restitution.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The Defendant appealed the restitution order and the Minnesota Court of Appeals reversed the District Court as the lower court failed to establish it had considered the Defendant's ability to pay the restitution amount. Or, as stated by the Appellate Court:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">In Wigham, the supreme court reversed and remanded a restitution award because the district court failed to fulfill its statutory duty to consider the defendant’s ability to pay. 967 N.W.2d at 664, 666. In doing so, the supreme court held that the “district court fulfills its statutory duty to consider a defendant’s income, resources, and obligations in awarding and setting the amount of restitution when it expressly states, either orally or in writing, that it considered the defendant’s ability to pay.” Id. at 664 (emphasis added). The district court need not “make specific findings about the defendant’s income, resources, and obligations to support [its] express statement that it considered the defendant’s ability to pay,” but doing so is “best practice.” Id. at 665 & n.6. Even if the district court makes specific findings, “the record must include sufficient evidence about the defendant’s income, resources, and obligations to allow a district court to consider the defendant’s ability to pay the amount of restitution ordered.” Id. at 665."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">The state first argues that the district court considered Martinez’s ability to pay by reviewing the PSI report, which “contained information regarding [Martinez’s] income and employment,” and by determining that Martinez “was financially unable to obtain counsel” when the district court appointed a public defender for Martinez. But this argument rests on the faulty premise that the district court need not expressly state that it considered a defendant’s ability to pay restitution. See Wigham, 967N.W.2d at 666 (holding that the district court “must expressly state” it considered the defendant’s “ability to pay—his income, resources, and obligations—when ordering restitution”). Thus, neither the district court’s review of the PSI report nor its appointment of a public defender, which occurred before the sentencing hearing, satisfied the district court’s statutory duty to expressly state it considered Martinez’s ability to pay restitution."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Second, the state relies on the district court’s statement that restitution should be paid out of Martinez’s prison earnings as showing the district court considered Martinez’s ability to pay restitution. The state cites State v. Tenerelli, 583 N.W.2d 1 (Minn. App. 1998), affd as modified by 598 N.W.2d 668 (Minn. 1999), which significantly predates Wigham. In Tenerelli, we determined that the district court’s reference to the defendant’s prison earnings as the source of restitution payments showed it had considered the defendant’s ability to pay. 583 N.W.2d at 3. But the supreme court adopted a bright-line rule in Wigham, stating it sought to “avoid[] the need to scour bits and pieces of information to try to glean what the district court may have considered.” 967 N.W.2d at 664 n.5 (emphasis omitted). Wigham teaches that the district court’s reference to Martinez’s prison earnings does not fulfill its statutory duty under Minn. Stat. § 611A.045."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">For the same reason, we reject the state’s third argument, which urges us to conclude that the district court’s decision not to fine Martinez also shows the district court considered Martinez’s ability to pay restitution. The district court’s statement that it was “not imposing a fine . . . due to the large amount of restitution” does not “expressly” state it considered Martinez’s “ability to pay” restitution. See id. at 666."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">In sum, we conclude that because the district court did not expressly state it considered Martinez’s ability to pay, it failed to fulfill its statutory duty to consider the income, resources, and obligations of the defendant and abused its discretion in ordering restitution. Thus, we reverse and remand. In considering restitution on remand, the district court may in its discretion reopen the record and order an updated PSI report to include information on Martinez’s income, resources, and obligations."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: You can't get blood out of a turnip!</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minnesota DWI Attorney, F. T. Sessoms</a><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b><br /></b></span></span></p><div style="text-align: justify;"><br /></div><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"> </span></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-45201745121907617692023-04-10T12:52:00.000-05:002023-04-10T12:52:59.626-05:00Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Taybom (Decided April 10, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the officer's failure to record in his report all of the reasons for the vehicle stop is irrelevant. </span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">On November 21, 2019 a police officer stopped the Defendant while she was driving her vehicle on Seventh Street in St. Paul, MN. Ms. Taybom was ultimately charged with </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">gross-misdemeanor second-degree DWI for refusing to submit to a breath test in violation of Minn. Stat. § 169A.20, subd. 2(1) (2018), and gross-misdemeanor third-degree DWI for operating a motor vehicle under the influence of alcohol in violation of Minn. Stat. § 169A.20, subd. 1 (2018). </span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">At a contested omnibus hearing, Taybom moved to suppress all evidence related to the traffic stop. She argued that the officer lacked reasonable, articulable suspicion to support the stop based on any traffic infraction and specifically contended that the reason provided in the officer’s police report—passing another vehicle on the right—was not unlawful. The state opposed the motion, arguing that the officer had reasonable, articulable suspicion justifying the stop based on three separate traffic violations observed by the officer: failing to yield to oncoming traffic, crossing the centerline, and passing another vehicle on the right in an unsafe manner.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">At the hearing, t</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">he officer testified that he observed the following driving conduct by Taybom prior to the stop. First, Taybom’s car failed to yield to his car at a stop sign, “causing [him] to have to hit [his] brakes to stop from hitting [Taybom’s] vehicle.” Second, he saw the wheels of Taybom’s car touch the centerline of the road as he followed the car westbound on 7th Street. Third, as he continued to follow Taybom’s car, he observed her car slow down as it approached another vehicle. That vehicle was stopped at a red light. When the light turned green, Taybom’s car veered onto the right shoulder (which was also a bus stop) and “quickly accelerated” to pass the other vehicle while driving through the intersection. After observing Taybom’s car pass the other vehicle, the officer initiated the traffic stop. During his testimony, the officer acknowledged that his police report indicated only that he stopped Taybom for passing on the right and that it “failed to document” the other two alleged violations—failing to yield and crossing the centerline. But the officer testified that he “did see those other violations.”</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Following the hearing, the district court issued a written order denying Tayborn’s motion to suppress. The district court determined that the officer had reasonable, articulable suspicion to conduct the traffic stop based on at least two traffic violations: Tayborn’s failure to yield to oncoming traffic and the wheels of Taybom’s vehicle touching the road’s centerline. As a result, the district court concluded that it did not need to consider whether the third potential traffic violation argued by the state— passing a vehicle on the right through an intersection—also justified the stop. But the district court noted in the fact section that the officer conducted the traffic stop “based upon [Taybom] failing to properly yield to [the officer’s] car, crossing the centerline[,] and passing the stopped car on the right through the intersection.”</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">On appeal, Taybom argued </span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">that the district court erred by denying her motion to suppress because the record does not show that the officer had reasonable, articulable suspicion to conduct a traffic stop based on his observation of any traffic violation. Specifically, Taybom challenged the district court’s factual finding that the officer stopped Taybom’s car based on three separate traffic violations: failing to yield, crossing the centerline, and passing another car on the right in an intersection. Taybom argued that this factual finding is clearly erroneous because the officer’s police report identified only one reason for the stop—passing another car on the right. Taybom further claimed that the district court’s reliance on the officer’s testimony regarding the two other traffic violations was clearly erroneous because the officer did not testify that he was subjectively aware of these violations prior to the stop. Taybom also challenged the district court’s implicit determination that the officer testified credibly regarding his observation of Taybom’s driving conduct. Taybom therefore urged the appellate court to conclude that the district court erred by denying Taybom’s motion to suppress based on its determination that the officer had reasonable, articulable suspicion to stop Taybom for failing to yield and for veering onto the centerline of the road.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The Court of Appeals affirmed the lower court stating:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The record supports the district court’s determination that the officer had reasonable, articulable suspicion to justify the traffic stop. First, video from the officer’s dashboard camera supports the district court’s findings that Taybom failed to yield to the officer, that the left-side tires of her car touched the road’s centerline, and that she passed another vehicle on the right at an intersection. In other words, the district court’s findings are supported by the evidence in the record. See Ezeka, 946 N.W.2d at 403. Second, the officer testified at the motion hearing that he “did see” all three potential violations. The district court implicitly credited that testimony, and we defer to the district court’s credibility determination. See Wilkes v. Comm ’r of Pub. Safety, 111 N.W.2d 239, 246 (Minn. App. 2010) (“[Credibility determinations are the province of the district court.”). Third, both of the noted actions relied on by the district court were traffic infractions. See Minn. Stat. §§ 169.20, subd. 3, .18, subds. 4(4), 7(1) (2018); Anderson, 683 N.W.2d at 823 (stating that an officer’s observation of any traffic violation can form the basis for a traffic stop). We therefore conclude that the record shows an objective basis for the stop."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">We are not persuaded otherwise by Taybom’s emphasis on the officer’s failure to document two of the potential traffic violations in his police report. “An officer’s failure to articulate observed violations of law as a basis for stopping a defendant is irrelevant under an objective standard.” State v. Beall, 111 N.W.2d 41, 45 (Minn. App. 2009); see also Taylor, 965 N.W.2d at 755 n.5 (explaining that “the existence of reasonable, articulable suspicion is an ‘objective test’ and is not based on the subjective beliefs of the officer”). In Beall, a police officer initiated a traffic stop on the basis that the vehicle had a “brake light out.” 771 N.W.2d at 42. The officer also observed littering from the vehicle but did not record littering as a reason for the stop. Id. The driver argued that there was no basis for the stop because his vehicle, which had three brake lights, was still equipped with two working lights and littering was not the reason for the stop. Id. The district court agreed and suppressed the evidence from the stop. Id. This court reversed, explaining that the reasonable-suspicion standard is objective and concluding that both the inoperable brake light and the littering justified the traffic stop because both were unlawful. Id. at 44-45. With respect to the littering in particular, we emphasized that the officer observed the littering prior to the traffic stop. Id. at 45. “Therefore, even if [the officer’s] subjective basis for the stop was the nonfunctioning center brake light, the stop was also [objectively] justified based on [the officer’s] observation of littering.” Id. Applying that reasoning here, we conclude that the stop of Taybom was objectively justified based on the officer’s stated observation of two traffic violations—failure to yield and veering onto the centerline—even though the officer failed to document those violations in the police report."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: Writing things down is vastly overrated.</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face="" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minneapolis DWI Attorney, F. T. Sessoms</a><span face="" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-12740063401104253172023-04-03T11:17:00.000-05:002023-04-03T11:17:51.060-05:00Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. McElree (Decided April 3, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it is never a good idea to walk up to the police after you have been drinking and driving. </span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In McElree, police officers for the city of Jordan received an harassment complaint. </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The complainant, J.L., alleged that his neighbor across the street, Defendant MacElree, had parked multiple vehicles in front of J.L.’s home, including two vehicles parked on either side of J.L.’s car. J.L. alleged that the vehicles on either side of his car were parked so close that he could not get into his car. J.L. also alleged that, while parking the vehicles, MacElree threatened to “tear [J.L.] apart” and knock his teeth out. </span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">J.L. showed the officers videos taken by his doorbell camera that seemed to confirm J.L.’s allegations. The videos showed the same man, later identified as MacElree, moving at least two vehicles and parking them in front of J.L. ’s home. The timestamps on the videos reflected that MacElree drove and parked the vehicles between approximately 8:55 and 9:05 p.m.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">At about 9:48 p.m., while the officers were still on the scene, MacElree and a companion approached the responding officers. The officers were standing near the parked vehicles. One of the officers noticed that MacElree “smelled strongly of alcohol.” He asked MacElree if he had been drinking. MacElree responded with an expletive, claimed that his companion had driven the vehicles, and aggressively insisted that he had not driven anything. The officer did not ask MacElree to perform any field sobriety tests because of his “agitated state.” But the officer placed MacElree under arrest for suspicion of DWI. A breath test later showed that MacElree had an alcohol concentration of 0.28.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The State charged MacElree with two counts of Second Degree DWI. </span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">MacElree filed a motion to suppress evidence and dismiss the two DWI counts for lack of probable cause to justify his arrest. In an accompanying memorandum, MacElree argued that the officer lacked probable cause to arrest him for DWI because he was not driving erratically, he did not demonstrate “other physical indicia of impairment,” the officer did not administer field sobriety or breath tests before his arrest, and he could have consumed alcohol “in the interim” between moving the vehicles and interacting with the officers some time later.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The state filed a brief opposing MacElree’s motion. The state argued that the officer had probable cause to arrest MacElree for DWI because the officer observed multiple signs of impairment, including a strong odor of alcohol and MacElree’s belligerent and uncooperative demeanor. In support of its position, the state filed several exhibits including: the complaint and supplemental police reports; videos taken by J.L.’s doorbell camera; and body-worn camera videos from multiple officers on the scene. The district court received these exhibits without objection from MacElree.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The district court granted MacElree’s motion and dismissed the DWI charges. The district court acknowledged that J.L. “told the officers that he saw [MacElree] drive the vehicles across the street and [the] officers identified the person in the doorbell videos as [MacElree] driving.” But the district court went on to explain that it could not “assume that [MacElree] did not consume alcohol between the time that he parked the cars and when he encountered police.” Therefore, there was “no way to prove that [MacElree] was under the influence of alcohol at the time he operated the car[s].” On that basis, the district court determined that the officer did not have probable cause to arrest MacElree for DWI and dismissed the two DWI counts against him.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The State appealed the district court's dismissal and the Minnesota Court of Appeals reversed the lower court stating:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The level of proof required to establish probable cause for a warrantless arrest is “more than mere suspicion but less than the evidence necessary for conviction.” State v. Onyelobi, 879 N.W.2d 334, 343 (Minn. 2016) (quotation omitted). In making a probable-cause determination, courts must look to “the totality of the circumstances to determine whether the police have probable cause to believe that a crime has been committed.” State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998). “The inquiry is objective, and the existence of probable cause depends on all of the facts of each individual case.” State v. Williams, 794 N.W.2d 867, 871 (Minn. 2011). Accordingly, we examine whether the district court considered all relevant facts known to the arresting officer at the time of MacElree’s arrest and whether those facts objectively establish that the officer had probable cause to arrest MacElree for DWI."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">The undisputed facts are sufficient to support the officer’s probable-cause determination under the applicable legal standard. The record reflects that MacElree drove at least two different vehicles near in time to when his neighbor reported being harassed, that MacElree was belligerent and generally combative with both his neighbor and police, and that the officer who arrested MacElree smelled a “strong” odor of alcohol coming from MacElree about 45 minutes after he drove the vehicles. For the following reasons, we conclude that these facts reasonably warranted the officer’s belief that MacElree drove under the influence of alcohol. See Reeves, 751 N.W.2d at 120."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">First, police observed multiple signs of MacElree’s intoxication. Only one objective indication of intoxication is required to establish probable cause to believe that a person is under the influence of alcohol. Kiev, 678 N.W.2d at 678. Here, police noticed a strong odor of alcohol coming from MacElree and observed his belligerent and combative behavior. See Reeves, 751 N.W.2d at 120 (identifying the odor of alcohol as an indication of intoxication); Kiev, 678 N.W.2d at 678 (identifying “an uncooperative attitude” as an indication of intoxication). Significantly, MacElree also exhibited belligerent behavior— as evidenced by the neighbor’s doorbell videos—when he shouted threats at his neighbor.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Second, the record reflects that MacElree drove two vehicles and parked them near the neighbor’s car close in time to when he was belligerent to his neighbor. But, when asked by police whether he was driving, MacElree was evasive and untruthful. He asserted that his companion had driven the vehicles instead, a claim directly contradicted by the doorbell videos showing MacElree driving and parking the vehicles in front of his neighbor’s home. And, when asked if he had been drinking, MacElree did not deny consuming alcohol but insisted that he had not been driving. Taken together, the relevant facts known to the officer—the strong smell of alcohol, the belligerent behavior, the driving of vehicles, and the untruthful and evasive responses to questions about drinking and driving—are sufficient to establish probable cause for the officer to believe that MacElree drove and parked the vehicles while under the influence of alcohol. See Costillo v. Comm ’r of Pub. Safety, 416 N.W.2d 730, 733 (Minn. 1987) (considering defendant’s lying to police, belligerent behavior, and strong odor of alcohol, among other facts, as part of the totality of the circumstances supporting probable cause for DWI arrest).</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">***</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Here, the district court did not appear to properly consider whether the facts and circumstances known to the officer at the time of MacElree’s arrest reasonably warranted the belief that MacElree was under the influence when he drove and parked the vehicles near his neighbor’s car. See id. Instead, the district court focused on the absence of evidence as to what MacElree was doing between when the neighbor observed him driving and when the officer spoke with MacElree about 45 minutes later. As a result, the district court mistakenly concluded that the state had not established probable cause for MacElree’s arrest. But, applying the proper legal standard, the facts and circumstances known to the officer at the time of MacElree’s arrest support a conclusion that the officer had probable cause to arrest MacElree for DWI, regardless of the time gap."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: If you are a mean drunk, stay home!</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minneapolis DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><div style="text-align: justify;"><br /></div><p style="text-align: justify;"><br /></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-57216623300035884242023-03-27T11:48:00.000-05:002023-03-27T11:48:57.473-05:00Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Anderson (decided March 27, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a sentence within the sentencing guidelines is not going to be disturbed on appeal.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Anderson, the Defendant was charged with felony DWI as his alcohol concentration level was over the legal limit and he had a prior felony DWI from 2006. (Once a felony, always a felony unless the felony DWI is from another state). Mr. Anderson subsequently pled guilty and the district court ordered a pre-sentence investigation (PSI). </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The probation officer who authored the PSI report recommended that the district court impose a prison sentence of 54 months (the fixed sentence duration within the applicable sentencing range of 46 to 64 months), stay execution of the sentence, place Anderson on probation, and order him to serve one year in jail. </span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The district court conducted a sentencing hearing in June 2022. The state requested that the district court impose an executed prison sentence of 48 months. The prosecutor noted that Anderson has five prior DWI convictions and two prior felony convictions, that Anderson’s alcohol concentration was more than twice the 0.08 threshold at the time of the offense, that he was driving in heavy traffic, and that his offense occurred only six months after he was charged with another felony DWI offense in Washington County. The prosecutor acknowledged that Anderson had remained sober while charges were pending but attributed his sobriety to the fact that he was subject to random testing.</span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"></span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Anderson’s attorney requested a downward dispositional departure on the ground that Anderson is particularly amenable to probation. Based on the information in the PSI report, Anderson’s attorney argued that Anderson had been sober for many years between his 2006 DWI conviction and his mid-2020 arrest for DWI in Washington County and had maintained sobriety again since being charged there. The attorney explained that, at the time of the offense in this case, Anderson was unemployed and had lost his home but that he since had regained employment and housing and was attending Alcoholics Anonymous (AA) meetings three times per week. The attorney introduced four letters of support written by persons who have attended AA meetings with Anderson.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The district court stated that it had read the letters of support and had “spent a lot of time looking at this and thinking about it.” The district court commended Anderson for doing well on probation for the Washington County offense. But the district court emphasized the fact that this is Anderson’s third felony DWI conviction. The district court noted its concern for public safety and stated that, in committing the current offense, Anderson had endangered others. The district court concluded by finding that Anderson is not particularly amenable to probation and that there are no substantial and compelling mitigating circumstances. Accordingly, the district court denied Anderson’s request for a downward dispositional departure and imposed an executed sentence of 48 months of imprisonment.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">On Appeal, the Defendant argued </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">that the district court erred by not exercising discretion in denying his request for a downward dispositional departure. He asserted that the district court did not consider the mitigating facts contained in the PSI report and, instead, focused on the fact that this offense is Anderson’s third felony DWI conviction. He relies on this court’s opinion in State v. Curtiss, 353 N.W.2d 262 (Minn. App. 1984), in which the court remanded for reconsideration after concluding that the district court had not considered all relevant mitigating factors. </span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The Minnesota Court of Appeals affirmed the lower court noting:</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"The Minnesota Sentencing Guidelines generally provide for presumptive sentences for felony offenses. Minn. Sent’g Guidelines 2.C (2020). For any particular offense, the presumptive sentence is “presumed to be appropriate for all typical cases sharing criminal history and offense severity characteristics.” Minn. Sent’g Guidelines 1.B.13 (2020). Accordingly, a district court “must pronounce a sentence . . . within the applicable [presumptive] range . . . unless there exist identifiable, substantial, and compelling circumstances to support a departure.” Minn. Sent’g Guidelines 2.D. 1 (2020)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"The sentencing guidelines provide non-exclusive lists of mitigating and aggravating factors that may justify a departure. See Minn. Sent’g Guidelines 2.D.3 (2020). One of the listed mitigating factors is “particular amenability to probation.” Minn. Sent’g Guidelines 2.D.3.a(7). In determining whether a defendant is particularly amenable to probation, a district court may consider, among other factors, “the defendant’s . . . prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.” State v. Trog, 323 N.W.2d28, 31 (Minn. 1982)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">This case is meaningfully different from Curtiss. In that case, the district court stated that there was “no justifiable reason” to depart from the presumptive sentence. Id. at 263. We determined that the district court had “abandoned” the possibility of a downward dispositional departure without “comparing reasons for and against.” Id. In this case, in contrast, the district court expressly mentioned the facts that Anderson’s attorney had cited in his argument for a departure, such as Anderson’s renewed sobriety, his success on probation in the Washington County case, and the letters of support submitted on his behalf. The record shows that the district court did consider the mitigating factors that might support a departure but determined that they did not outweigh other factors and did not allow a finding of substantial and compelling reasons for a departure. The district court did not abuse its discretion in doing so."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: If you do the crime, you are presumed to do the time.</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minnesota DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><div><br /></div>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-69337876247234161352023-03-20T13:41:00.000-05:002023-03-20T13:41:19.881-05:00Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is Maas v. Commissioner of Public Safety (Decided March 20, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that "physical control" of a motor vehicle is broader than "driving" or "operating" same.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Maas, </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">a Faribault County deputy observed a 2007 Dodge Durango (the Durango) in a snow-filled ditch. Upon approaching the Durango, the deputy noticed it was unoccupied, locked, and turned off. Through the Durango’s window, the deputy observed a plastic cup in the center console containing an amber liquid. The deputy recognized the plastic cup as a type bars and other establishments use to sell alcohol. The deputy left the Durango and did not interact with anyone.</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><span style="text-align: left;">Approximately two hours later, the deputy passed the Durango again. This time, the deputy noticed a man, later identified as the Petitioner, next to the Durango. The deputy observed appellant on the passenger side attempting to dig the Durango’s wheels out of the snow. Maas waved to the deputy seeking assistance. The deputy activated the emergency lights and parked near the Durango. The deputy did not observe anyone other than </span><span style="text-align: left;">Petitioner</span><span style="text-align: left;"> within or near the Durango. At this time, the Durango was running with the keys in the ignition. </span><span style="text-align: left;">Mr. Maas admitted he drove the Durango into the ditch.</span>The deputy noticed the Petitioner exhibit indicia of intoxication and arrested Mr. Maas after he failed field tests and refused to submit to a preliminary breath test.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Mr. Maas filed a challenge to the revocation of his driver's license asserting the deputy did not have probable cause to believe Petitioner was in physical control of a motor vehicle while impaired by alcohol. The district court sustained the revocation finding probable cause, stating </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">(1) “[appellant]’s vehicle was running, and he was in the process of trying to dig it out of the snow”; (2) “by [appellant]’s own admission, he had been consuming alcohol”; (3) appellant showed “physical symptoms of intoxication (e.g., watery and bloodshot eyes, slurring of speech and odor of alcohol)”; (4) the deputy observed a “plastic cup filled with amber liquid in the Durango’s center console”; and (5) the deputy observed “numerous empty beer cans littering the trunk of the Durango.” </span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">On appeal, the Minnesota Court of Appeals affirmed the lower court noting:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">We give the term “physical control . . . the broadest possible effect” to “enable the drunken driver to be apprehended before he strikes” and to “deter individuals who have been drinking from getting into their vehicles, except as passengers.” Shane, 587 N.W.2d at 641 (quotations omitted). Thus, “physical control” encompasses more than “drive” or “operate.” State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992). But “mere presence in or about the vehicle is insufficient [to show] physical control; it is the overall situation that is determinative.” Id. at 838. Courts consider several factors when determining whether a driver exercised physical control over a vehicle, including: “the person’s location in proximity to the vehicle; the location of the keys; whether the person was a passenger in the vehicle; who owned the vehicle; and the vehicle’s operability.” State v. Fleck, 111 N.W.2d 233, 236 (Minn. 2010)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Appellant asserts that he did not exercise physical control because the deputy never observed appellant seated in the Durango. But a person does not need to be seated behind the steering wheel to exercise physical control over the vehicle. For example, in State v. Woodward, 408 N.W.2d 927, 927-28 (Minn. App. 1987), we concluded a motorist standing alone outside the rear of her vehicle was in “physical control” when the engine was running with the key in the ignition. We noted that “a person is in physical control of a vehicle if [they have] the means to initiate any movement of that vehicle and [they are] in close proximity to the operating controls of the vehicle.” Id. (quoting State v. Duemke, 352 N.W.2d 427, 429-30 (Minn. App. 1984))."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Appellant also argues that he did not exercise physical control because the Durango was inoperable. But we have repeatedly held that a person may exercise “physical control” over a temporarily disabled vehicle. Flamang v. Comm ’r of Pub. Safety, 516 N.W.2d 577, 580-81 (Minn. App. 1994), rev. denied (Minn. July 27, 1994); see also Woodward, 408 N.W.2d at 927-28 (concluding appellant exercised physical control even though the vehicle had a flat tire); Abeln v. Comm ’r of Pub. Safety, 413 N.W.2d 546, 547-48 (Minn. App. 1987) (concluding appellant exercised physical control over a vehicle with a dead battery); Duemke, 352 N.W.2d at 429, 432 (concluding the sleeping appellant stuck in a snow-filled ditch exercised physical control over the vehicle). “Inoperability or, more precisely, the nature and duration of any inoperability, is simply a factor or circumstance to be evaluated with all the surrounding facts and circumstances ... in determining whether the situation gives rise to physical control.” Starfield, 481 N.W.2dat 839."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The deputy found appellant, by himself, digging the Durango out of the snow. When the deputy arrived, the Durango was running with the keys in the ignition. Additionally, appellant admitted the Durango belonged to him and that he drove the Durango into the snow-filled ditch. In this case, the “overall situation” supports the district court’s decision that appellant exercised physical control over the Durango. Starfield, 481 N.W.2d at 838; Fleck, 111 N.W.2d at 236."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story:<span> If you have been drinking, don't get near any of your vehicles except as a passenger.</span></b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><br /></span></span></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-67697531525407331172023-03-06T12:03:00.000-06:002023-03-06T12:03:19.968-06:00Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Dolby (Decided March 6, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person can commit the crime of DWI refusal to submit to testing if their conduct tends to frustrate the process.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Dolby, the Defendant was arrested for DWI and was subsequently charged with Second Degree Refusal to submit to testing. The Defendant waived his right to a jury trial and had the matter decided by a district court judge. The district court found the Defendant guilty of DWI refusal. On appeal, the Defendant argued the evidence was insufficient to sustain the verdict.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota Court of Appeals affirmed the conviction, noting:</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The officer then read Doby the breath-test advisory form. Doby stated that he did not understand and needed an interpreter. But at trial, Doby testified that he grew up in St. Paul and spoke English as his native language. He explained that when he asked for an interpreter, he “felt like [he] needed a mediator” to help him understand what was happening. The breath-test advisory began at 1:36 a.m. and finished at 1:41 a.m., when the officer decided to treat Doby’s actions as a refusal to test. The officer testified that Doby never said he would take the test, while Doby testified that he never refused to cooperate with the test."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The implied-consent statute provides that a driver may be obligated to submit to a chemical test of their blood, breath, or urine when an officer has probable cause to believe the driver has been operating a vehicle while intoxicated and the driver has been lawfully placed under arrest for driving while intoxicated. Minn. Stat. § 169A.51, subd. 1(a), (b)(1) (2018). It is a crime to refuse to submit to this chemical test. Minn. Stat. § 169A.20, subd. 2 (2018). When the officer requests that the driver perform the test, the driver must be informed of specific information set out in the implied-consent statute. Minn. Stat. § 169A.51, subd. 2 (2018). The statute does not state that verbal refusal is required. Minn. Stat. § 169A.20, subd. 2(1). Rather, circumstantial evidence, such as the driver’s words and actions in light of the totality of the circumstances, can establish refusal without a direct statement of unwillingness. Ferrier, 792 N.W.2d at 102. An individual’s actions that completely frustrate the implied-consent procedure constitute test refusal. State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Here, the district court found that the state proved that Doby constantly interrupted the officer during the reading of the implied-consent advisory, asked for an interpreter three times but had no need for an interpreter, and refused to respond three times when the officer asked if Doby wanted an attorney. Further, the district court found that when the officer asked Doby if he would take a breath test, Doby indicated that he needed an interpreter and that he did not understand, but never said yes or no. Doby argues that these circumstances support the alternative rational hypothesis that he did not refuse the test because he was not given enough time to consider his options and the officer did not sufficiently explain the test requirement. We disagree."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Doby’s actions were inconsistent with any rational hypothesis other than that he intended to frustrate the implied-consent procedure. There is no evidence in the record other than Doby’s testimony that he ever affirmatively indicated a willingness to take the test. The officer read the required advisory to Doby and gave him time to decide before treating Doby’s behavior as a refusal, and the body-camera footage does not show Doby asking for additional time. These actions demonstrate nothing other than an actual unwillingness to submit to chemical testing."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Still, Doby argues that the officer did not give him enough time to process the implied-consent advisory and make an informed decision, and that he was not refusing. Rather, he asserts that he was asking for more time to make his decision. But the statute includes no minimum time period for giving the advisory; it only includes the information that an officer must convey to a person at the time of the breath test. Minn. Stat. § 169A.51, subd. 2. And an “officer is not required to wait for the driver to decide at his convenience whether or not he will submit to testing.” Gabrick v. Comm ’r of Pub. Safety, 393 N.W.2d 23, 25 (Minn. App. 1986) (stating that a reasonably prompt decision whether the driver will take the test aligns with the purpose of the statute to protect the public from the hazards of intoxicated drivers). Furthermore, the officer asked Doby three times if he would submit to a test, and we have held that refusing to reply after three implied-consent advisories frustrates the testing process. Busch v. Comm ’r of Pub. Safety, 614 N.W.2d 256, 257, 260 (Minn. App. 2000)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Finally, Doby posits that because his conduct was not persistent, extreme, offensive, and abusive from beginning to end, his conduct did not frustrate the testing process. But we have held that a simple refusal to answer the question “will you take the breath test” after it is asked once is enough to constitute a refusal to test. Gabrick, 393 N.W.2d at 25. Doby’s attempt to move the bar so that his conduct clears it is unavailing."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: Actions speak louder than words.</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face="" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minneapolis DWI Attorney, F. T. Sessoms</a><span face="" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-27865251885312289232023-02-27T13:06:00.000-06:002023-02-27T13:06:25.817-06:00Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The week is State v. Peterson (Decided February 27, 2023, Minnesota Court of Appeals, Unpublished), which stands for the proposition that a stop of a motor vehicle is valid if the stop is based upon a reasonable mistake of fact.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Peterson, the Defendant was stopped because the police officer ran a license plate inquiry on the Defendant's vehicle and the inquiry revealed the Defendant's license was cancelled. The Defendant was eventually arrested for Felony DWI and a search of his vehicle revealed drug paraphernalia and methamphetamine.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Peterson moved the suppress the evidence arguing the stop was unconstitutional. </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The deputy testified that the DVS system indicated that Peterson’s driving status was canceled-IPS. That testimony was supported by the district court’s receipt of a certified copy of Peterson’s driving record, which indicated that his license was canceled-IPS when the stop occurred. The district court concluded that the information from the DVS provided a lawful basis for the traffic stop and denied the motion to suppress.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Peterson appealed arguing that his convictions must be reversed </span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">because the state failed to prove that his driving privileges were “actually canceled” at the time of the traffic stop.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The Minnesota Court of Appeals affirmed the conviction, noting:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">When an officer observes a violation of the traffic laws, there is reasonable suspicion to stop the vehicle.” State v. Poehler, 935 N.W.2d 729, 733 (Minn. 2019). But the “actual violation of the vehicle and traffic laws need not be detectable.” State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996). The police need only “show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” </span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Traffic stops are routinely based on DVS record checks conducted from police squad cars. See, e.g.. Pike, 551 N.W.2d at 921-22 (upholding traffic stop based on officer’s license-plate check, which revealed the registered owner’s license was revoked). And the Minnesota Supreme Court has held that “[i]t is constitutional for an officer to make a brief, investigatory, [traffic] stop of a vehicle if the officer knows that the owner of the vehicle has a revoked license,” as long as the officer is “unaware of any facts which would render unreasonable an assumption that the owner is driving the vehicle.” Id. at 920. Under the reasoning of Pike, we similarly conclude that it is constitutional for an officer to make a traffic stop based on current DVS records, so long as the officer is unaware of any facts that would make an assumption that the records are accurate unreasonable. The record does not reveal any basis to conclude that the deputy in this case was aware of such facts."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">We note that even if the DVS records in this case were incorrect, it does not necessarily follow that the resulting stop was invalid because “honest, reasonable mistakes of fact are unobjectionable under the Fourth Amendment.” State v. Licari, 659 N.W.2d 243, 254 (Minn. 2003). So long as the deputy was unaware of any facts reasonably suggesting that the DVS records regarding Peterson’s license status were inaccurate, his reliance on incorrect DVS records would constitute an unobjectionable mistake of fact...</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">absent a showing that the officer’s reliance on the accuracy of the DVS records was unreasonable, the records provided a lawful basis for the traffic stop, regardless of their accuracy."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: Close enough for government work!</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minneapolis DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b><br /></b></span></span></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-16630796664350461372023-02-06T15:00:00.003-06:002023-02-06T15:00:36.679-06:00Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Mattingly (Decided February 6, 2023, Minnesota Court of Appeals, Unpublished) which stands, once again, for the proposition that a vehicle must travel within its lane.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Mattingly, the Defendant was driving a pickup truck that was towing a trailer containing an ATV. Carlton County Deputy Sheriff David Radzak was following the vehicle when the deputy </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">saw the truck signal a right turn, slow down, and cross the fog line separating the lane of travel and the right shoulder. He watched the truck continue slowly down the shoulder for about 20 seconds. Deputy Radzak activated his squad car’s flashing red and blue overhead lights and pulled onto the shoulder behind the truck.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Mr. Mattingly was subsequently arrested and charged with drunk driving. His attorney challenged the stop arguing the deputy did not have the constitutional authority to stop the vehicle. </span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The District Court denied the defense motion to suppress and on appeal, the Minnesota Court of Appeals affirmed the lower court noting:</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"We are unpersuaded by Mattingly’s contention that Deputy Radzak lacked reasonable suspicion to stop him...</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">An officer has reasonable suspicion to conduct a traffic stop if he sees a driver commit a traffic violation. State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004)...we are satisfied that Deputy Radzak had reasonable suspicion to stop Mattingly’s truck.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Minnesota motorists may drive only on the roadway and may not cross the fog line marking the lane of travel. Soucie v. Comm’r of Pub. Safety, 957 N.W.2d 461, 464-65 (Minn. App. 2021), rev. denied (Minn. June 29, 2021). They may not drive on the shoulder except in circumstances not relevant here: “Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway ...” Minn. Stat. § 169.18, subd. 1 (2020). A “roadway” includes only “that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder.” Minn. Stat. § 169.011, subd. 68 (2020). The legislature has carved out exceptions to the prohibition against driving on the shoulder, such as to perform a U-tum or to operate certain buses. Minn. Stat. §§ 169.19, subd. 2, .306 (2020). By leaving the roadway and operating on the shoulder in a manner that meets no statutory exception, Mattingly engaged in driving conduct for which a police officer could temporarily seize him by stopping his truck."</span></span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="text-align: left;"><span style="font-family: helvetica;">"</span></span><span style="font-family: helvetica;">We are not persuaded otherwise by Mattingly’s assertion at oral argument that an emergency exception applies. He relies on Minnesota Statutes section 169.18, subdivision 7(1) (2020), but his reliance is misplaced. That subdivision applies to roadways that have “been divided into two or more clearly marked lanes for traffic” and prohibits a driver from leaving his lane until he “first ascertained that the movement can be made with safety." </span><span style="font-family: helvetica;">Minn. Stat. § 169.18, subd. 7. This lane-change statute does not expressly or implicitly authorize a motorist to operate his vehicle on the shoulder for safety reasons. Although we need not address the district court’s motorist-assistance rationale to justify the deputy’s encounter with Mattingly, we observe that, if an emergency exception does exist and apply here because Mattingly was experiencing a safety issue, the deputy had a reason to activate his emergency lights wholly apart from reasonable suspicion of a traffic offense."</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: Stay in your lane!</b></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large; text-align: left;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minnesota DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></p><div><span style="font-family: helvetica; font-size: large; text-align: left;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;"><br /></span></span></div><div><br /></div>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-43251018625833816452023-01-23T14:08:00.001-06:002023-01-23T14:08:39.228-06:00Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is Helget v. Commissioner of Public Safety (Decided January 23, 2023, Minnesota Court of Appeals, Unpublished), which stands for the proposition that the Court of Appeals continues to erode the distinction between reasonable suspicion to detain and probable cause to arrest.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Helget, a caller notified law enforcement that a white pickup truck was “all over the road” in New Ulm. The caller provided his name, the pickup’s license-plate number, and updates regarding the pickup’s location as he followed it. Officer Patrick Fay received word of the caller’s report from police dispatch and suspected that the pickup’s driver might be impaired.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Fay drove his marked squad car to the area described by the caller and saw a pickup matching the description of the suspect vehicle. While passing the pickup, Fay saw its driver and its license-plate number, which matched the plate number provided by the caller. As Fay passed the pickup, the caller in some way indicated to him that this pickup was the vehicle that the caller had observed “all over the road.”</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><span>Fay located the pickup parked on the apron to a garage behind 810 North Payne Street in New Ulm. He parked his squad car behind the pickup and turned on his white “takedown” lights, but not </span>his emergency lights. While doing so, he saw the driver of the pickup, later identified as appellant Jesse Lee Helget, get out of the pickup and walk to the comer of the garage. Fay got out of his marked squad car and yelled at Helget to stop. Helget, who was about 25 feet away, looked back over his shoulder in Fay’s direction, but he kept walking. Helget turned at the comer of the garage and walked toward the house located beyond the garage.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">For a brief period, the garage blocked Fay’s view of Helget. After Fay walked past the garage, he saw Helget standing in the back yard of the residence at 806 North Payne Street, which was next door to the residence where Helget had parked. Fay observed that a three-foot-high chain-link fence ran between the two properties and surmised that Helget had climbed over the fence.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Upon seeing Helget, Fay again yelled at Helget to stop; this time, Helget complied. Fay, who was still on the 810 North Payne side of the fence, asked Helget to walk toward him so the two could talk. Helget did not comply. He remained standing on the far side of the adjoining lot.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The police eventually got close to Mr. Helget and one of the officers could smell alcohol on Helmet's breath.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">One of the officer's then grabbed Helget’s left wrist, and told him to put his hands behind his back. Helget minimally resisted but was quickly subdued by the officers. The officers handcuffed Helget and escorted him to Fay’s squad car, where they asked him to take a seat in the back.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">At the squad car, Helget repeatedly refused commands to sit in the squad car and stated, “I’m not being detained.” Helget did not comply until an officer threatened to tase him. He then refused to slide his feet into the squad car, despite repeated commands to do so.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Helget repeatedly asked why he was being detained, and Gramentz replied, “You’re under arrest for fleeing right now, so that’s what you’re under arrest for.” In response, Helget noted that he had not fled and that he had stopped. Later, again in response to Helget’s inquiries, Gramentz told Helget that he was being detained “for investigations.”</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The State of Minnesota charged Helget with third-degree test refusal, fourth-degree DWI, obstruction of legal process or arrest, and public urination. Helget moved the district court to suppress the evidence against him and to dismiss the criminal charges, again asserting that his arrest was not supported by probable cause. </span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The district court denied the motion to suppress and on appeal, the Minnesota Court of Appeals upheld the district court, noting:</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Helget does not dispute that reasonable articulable suspicion justified a temporary warrantless seizure to investigate whether he had been driving while impaired. Instead, he asserts that the police converted his lawful seizure into an illegal arrest and argues that the circumstances did not satisfy the higher probable-cause standard necessary for a warrantless arrest.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"To determine whether there was probable cause to arrest Helget for DWI, we must first determine the point at which Helget was arrested. “The ultimate test to be used in determining whether a suspect was under arrest is whether a reasonable person would have concluded, under the circumstances, that he was under arrest and not free to go.” State v. Beckman, 354 N.W.2d 432, 436 (Minn. 1984). There is no bright-line test separating a legitimate investigative stop from an unlawful arrest. Instead, “common sense and ordinary human experience must govern over rigid criteria.” State v. Balenger, 667 N.W.2d 133, 139 (Minn. App. 2003), rev. denied (Minn. Oct. 21, 2003)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"The supreme court has held that “briefly handcuffing a suspect while the police sort out the scene of an investigation does not per se transform an investigatory detention into an arrest, nor does placing the suspect in the back of a squad car while the investigation proceeds.” State v. Munson, 594 N.W.2d 128, 137 (Minn. 1999). Here, the police handcuffed Helget, escorted him to a squad car, and threatened to tase him if he did not enter the back seat of the squad car. Those circumstances alone might lead a reasonable person to conclude that he was under arrest and not free to go. See State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993) (“[Defendant] was under arrest from the time he was ordered to the ground at gunpoint, handcuffed, and put in the squad car.”). But in this case there is one additional circumstance that makes that conclusion unavoidable. As the officers placed Helget in the squad car, Gramentz told him, “Tow ’re under arrest for fleeing right now, so that’s what you’re under arrest for.” (Emphasis added.) Although Gramentz subsequently told Helget that he was being detained “for investigations,” under the circumstances, Gramentz’s statement that Helget was “under arrest. . . right now” would lead a reasonable person to conclude that he was under arrest and not free to go. We therefore consider whether at that point, the objective facts were such that a person of ordinary care and prudence would have entertained an honest and strong suspicion that Helget had committed the crime of DWI."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"The relevant facts were as follows. A known citizen called the police around 1:00 a.m. to report that Helget’s pickup was “all over the road.” Time of day is a relevant consideration when assessing suspicion of DWI because DWI offenses are common in the early morning hours. See Otto v. Comm’r of Pub. Safety, 924 N.W.2d 658, 661 (Minn. App. 2019) (considering 1:20 a.m. on a Saturday morning to be a “time of day when drinking is often found to be involved”). Fay located the pickup and observed Helget driving it. Although Fay did not observe Helget commit any moving offenses, the citizen caller generally alleged that Helget’s truck was “all over the road.” That comment reasonably suggested that Helget’s pickup was being driven all over the road and likely in violation of traffic laws. See, e.g., Minn. Stat. § 169.18, subd. 7(a) (2018) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"After Helget parked and exited his pickup, he was evasive. As Helget walked away from his pickup, Fay yelled at Helget to “stop.” Helget looked back over his shoulder toward Fay and kept walking away from the officer. Fay pursued Helget and observed him in the adjacent yard. Fay also observed a three-foot-high fence that Helget had to cross to get there. Although Helget stopped in response to Fay’s second command to do so, he did not comply with Fay’s subsequent command to approach."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"When Gramentz arrived and got within two feet of Helget, he noticed that Helget emitted an odor of alcohol, a common indication of intoxication. See State v. Kiev, 678 N.W.2d 672, 678 (Minn. App. 2004) (“Common indicia of intoxication include an odor of alcohol, bloodshot and watery eyes, slurred speech, and an uncooperative attitude.”), rev. denied (Minn. June 15, 2004). Helget told Gramentz that he was in his own back yard, even though he was standing in another person’s yard and had to cross over a fence to get there. Helget’s statement reasonably suggested either further evasive behavior or confusion stemming from intoxication. Lastly, Helget displayed an uncooperative attitude, which is another recognized indication of intoxication. See id. His refusal to cooperate progressed from verbal to physical resistance as the police tried to secure him in the squad car while they pursued their lawful investigation."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Admittedly, some might view the existence of probable cause to arrest Helget for DWI in this case as a close call. On one hand, the assertion of impaired driving conduct is limited to the citizen caller’s general allegation that Helget’s pickup was “all over the road.” And the record indicates that the police wanted to do more to confirm their suspicion of DWI. Indeed, the record supports a conclusion that the officers did not subjectively believe that there was sufficient probable cause for a DWI arrest. But our probable-cause determination is based on an objective standard; it is not limited to the beliefs or motives of the arresting officers. “[T]he issue is not whether the officers subjectively felt that they had probable cause but whether they had objective probable cause.” Costillo v. Comm ’r of Pub. Safety, 416 N.W.2d 730, 733 (Minn. 1987) (noting that it was “not clear from the record that the arresting officers subjectively believed that they had probable cause to believe Costillo was under the influence”). Moreover, the possibility of innocent explanations for Helget’s otherwise suspicious behavior does not preclude a finding of probable cause to arrest."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">But, as noted by Judge Ross in his dissenting opinion:</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">If all it takes to be arrested for and charged with drunk driving is a caller asserting generally that a car was “all over the road” and an officer noticing that the driver smells like he consumed any amount of alcohol, then the Fourth Amendment doesn’t do much in Minnesota to prevent unreasonable seizures. I respectfully dissent".</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">The majority does not address the district court’s primary conclusion that the officers had probable cause to arrest Helget for fleeing on foot. A person who is not in a vehicle commits the misdemeanor offense of fleeing if, “for the purpose of avoiding arrest, detention, or investigation” by “running, hiding, or by any other means” he “attempts to evade or elude a peace officer” who is discharging an official duty. Minn. Stat. § 609.487, subd. 6 (2018). Officer Fay’s uncontradicted testimony and the video footage reveal that, contrary to the district court’s findings, the officer never activated his emergency lights and Helget likely did not know a police officer had ordered him to stop. And the record likewise also uncontradictably establishes that Helget stopped immediately once Officer Fay identified himself. Helget could not have walked away and entered his neighbor’s yard “for the purpose of’ evading a police officer because, according to the officer who testified about it, Helget was unaware he was walking away from police. The circumstances did not establish probable cause to arrest Helget for fleeing.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><span>I am convinced that the same is so regarding the district court’s alternative conclusion that the officers had probable cause to arrest Helget for drunk driving. In numerous cases, we have considered whether circumstances like those the officers faced here (an imprecise nighttime complaint about bad driving and the odor of an alcoholic beverage) support an officer’s reasonable suspicion to investigate the driver for drunk </span><span style="text-align: left;">driving. But we have never suggested what the majority holds today, which is that these circumstances justify leapfrogging reasonable suspicion and landing all the way at probable cause to arrest the driver for drunk driving with no further inquiry necessary—no need to closely observe the driver, no need to question the driver, no need to look for clear characteristics of impairment, and no need to administer field sobriety tests."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><span style="text-align: left;">"</span><span style="text-align: left;">Lacking more information, we simply cannot say that Helget’s driving even began to establish probable cause of alcohol-based impairment. When considering whether a caller’s report meets even the lower standard of reasonable suspicion, “If the police chose to stop on the basis of the tip alone, the anonymous caller must provide at least some specific and articulable facts to support the bare allegation of criminal activity.” Olson v. Comm ’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985). I believe that the imprecise report and odor of alcohol here support no more than reasonable suspicion to detain and investigate. The officers chose instead to arrest first and investigate later. In doing so, they did not honor the Fourth Amendment with proper, constitutional policing."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: If you have been drinking, try to say out to the neighbors yard.</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minnesota DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b><br /></b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b><br /></b></span></span></p><div><span style="font-family: helvetica; font-size: large;"><br /></span></div><div><span style="font-family: helvetica; font-size: large;"><br /></span></div><div><span style="font-family: helvetica; font-size: large;"><br /></span></div><div><br /></div>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-63954387076018702072022-12-16T13:06:00.000-06:002022-12-16T13:06:11.317-06:00Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Baas (Decided December 12, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that an officer only needs a "reasonable" basis to believe someone is speeding in order to make a traffic stop. </span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica;">In Baas, the Defendant was observed </span><span style="font-family: helvetica;">accelerate rapidly from a stop sign </span><span style="font-family: helvetica;">by a Blue Earth County Sheriff's deputy. The deputy was a block away when he made the observation. </span></span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica;">The deputy turned onto Front Street in Mankato in the direction that the Defendant was headed while the Defendant travelled parallel to him on Second Street. Based on the time in which it took for the </span><span style="font-family: helvetica;">Defendant</span><span style="font-family: helvetica;"> to reach the intersections ahead of them, the deputy believed that the </span><span style="font-family: helvetica;">Defendant</span><span style="font-family: helvetica;"> was traveling faster than normal traffic in this area and too fast for the road conditions. While catching up to the </span><span style="font-family: helvetica;">Defendant's</span><span style="font-family: helvetica;"> vehicle, the deputy travelled at a speed up to 54 miles per hour in a 30 mph zone. </span></span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica;">The Deputy initiated a traffic stop and </span><span style="font-family: helvetica;">inevitably, placed the Defendant under arrest for DWI. </span><span style="text-align: left;"><span style="font-family: helvetica;">At a pretrial evidentiary hearing, the Defendant moved to dismiss the criminal complaint, arguing that reasonable, articulable suspicion did not support the traffic stop. The district court upheld the constitutionality of the traffic stop and denied the motion to dismiss the complaint.</span></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">On Appeal, the Minnesota Court of Appeals affirmed the district court noting:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">A police officer may conduct a “brief, investigatory stop of a motor vehicle when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” State v. Taylor, 965 N.W.2d 747, 752 (Minn. 2021) (quotation omitted). The reasonable-suspicion standard is “not high.” State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011). It “requires more than a mere hunch but is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” Taylor, 965 N.W.2d at 752."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">“When an officer observes a violation of the traffic laws, there is reasonable suspicion to stop the vehicle.” See State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Failure to drive with due care and driving above posted speed limits are both violations of traffic laws. Minn. Stat. § 169.14 subds. 1, 2 (2018). Subdivision 1 of the statute provides that “[n]o person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions.” Minn. Stat. § 169.14 subd.l. In other words, an individual may violate subdivision 1 without exceeding any posted or statutory speed limit. See id. Recently, we interpreted section 169.14 in a nonprecedential opinion in State v. Konjaric, No. A18-0724 2019, WL 1320600, at *2 (Minn. App. Mar. 25, 2019), and concluded that the standard for subdivision 1 is that of a reasonable and prudent person, “given the driving conditions and hazards.” Although Konjari is not precedential, we find its reasoning persuasive and adopt it here. Whereas subdivision 1 focuses on the reasonableness of the speed, subdivision 2 makes driving above speed limits prima facie evidence that the speed is unreasonable."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">Appellant claims it was impossible for the deputy to estimate accurately the speed at which appellant was driving, because the streets were dark, there were houses obstructing the view, and the deputy initially only observed appellant’s vehicle from a block away. Appellant further notes that the deputy did not use markers, radar, or the pacing method to estimate appellant’s speed. Lastly, appellant questions the reliability of the speed estimation because the deputy testified that he believed it should take about a minute to drive the one-half mile to where he stopped appellant, yet his squad video showed that it took him about one minute and twenty seconds."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Appellant conflates the burden of proof required for a traffic stop with the burden required for a speeding conviction. The reasonable-suspicion standard required for a traffic stop is “not high” and “less demanding than probable cause or a preponderance of evidence.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotations omitted). A traffic stop meets the standard when an “officer observes unusual conduct that leads the officer to reasonably conclude in light of his or her experience that criminal activity may be afoot.” Id. (quotation omitted). In contrast, to sustain a conviction for speeding, the evidence must be proved beyond a reasonable doubt. State v. Ali, 679 N.W.2d 359, 364 (Minn. App. 2004)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">***</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Based on the road conditions, the time of day, and the deputy’s first-hand observations, we conclude that the deputy had reasonable, articulable suspicion that appellant violated Minnesota Statute § 169.14, subdivision 1, for failing to drive with due care, and subdivision 2 for driving above the posted speed limit."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: Don't drink and drive fast.</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face="" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minneapolis DWI Attorney, F. T. Sessoms</a><span face="" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b><br /></b></span></span></p><div style="text-align: justify;"><span style="font-size: large;"><br /></span></div><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><br /></span></span></p><p style="text-align: justify;"></p><p style="text-align: justify;"><br /></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-60311104616364726052022-10-24T12:24:00.000-05:002022-10-24T12:24:06.745-05:00Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Higgins (decided October 24, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if a windshield crack is big enough, it will be presumed to interfere with the driver's vision.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Higgins, the Defendant was stopped on Highway 169 after leaving Hibbing, MN. Mr. Higgins was subsequently charged with DWI and he challenged the validity of the initial stop.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The arresting officer testified </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">he stopped Higgins because he observed (1) a crack in Higgins’s front windshield that “went three quarters of the way through the windshield,” and (2) a suspended object “swinging on the mirror.” The officer could not recall the exact item he saw “swinging” on the rearview mirror or the location of the crack on the windshield. But the officer recalled that the reflection of the sun on the windshield made the crack “very easy to see.”</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The District Court denied the Defendant's motion to suppress and on appeal, the Minnesota Court of Appeals upheld the lower court, stating:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Regarding the scope of the windshield crack, the trooper testified that the crack he observed “went three quarters of the way through the windshield.” He described it as “very easy to see” from the sunshine’s reflection on the windshield at the time of the stop. Based upon this testimony, the district court found that the crack extended across three-quarters of the vehicle’s windshield. Because a crack of this size could lead a reasonable officer to suspect that the driver’s vision was limited, this undisputed factual finding on the size and extent of the crack provides a sufficient basis for the conclusion that the trooper had a reasonable, articulable suspicion that Higgins drove in violation of the obstructed-vision statute. Diede, 795 N.W.2d at 842-43."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">To persuade us otherwise, Higgins references State v. Poehler, where we held that not every windshield crack justifies a traffic stop under the obstructed-vision statute. 921 N.W.2d 577, 580 (Minn. App. 2018), affd on other grounds, 935 N.W.2d 729 (Minn. 2019). Rather, there must be evidence to support a finding that a reasonable officer might suspect that the windshield was cracked to an extent that it limited the driver’s vision. Id. at 580-81. But unlike Poehler—where there was no factual finding about the crack’s size or location—evidence of the windshield crack size exists here."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">In sum, we conclude that the trooper had a reasonable, articulable suspicion of criminal activity when he observed the windshield crack on Higgins’s vehicle because the crack spanned “three quarters of the way through the windshield.” Under these circumstances, a reasonable officer could conclude that the crack obstructed the driver’s view in violation of the traffic law."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: The bigger the crack, the better the stop.</b></span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue", arial, helvetica, sans-serif">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/">contact Minneapolis DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue", arial, helvetica, sans-serif"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-51541175129532927332022-10-10T14:18:00.000-05:002022-10-10T14:18:36.790-05:00Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Walter (Decided October 10, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that one can only be convicted of one DWI offense arising out of a single behavioral incident. This case is nothing new as the Minnesota Supreme Court and Court of Appeals have repeatedly affirmed this principle. But the case illustrates that some district courts are still not paying attention. </span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Walter, The Defendant was found sleeping in the front driver's seat of a car parked along side Interstate 94 near Moorhead Minnesota. The Defendant was drunk and subsequently refused to submit to testing at the police station.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Mr. Walter was charged with Felony DWI and with Felony DWI Refusal to Submit to testing. The Defendant was found guilty by a jury of both charges and warrant of commitment showed convictions on both counts. </span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">On Appeal, the Minnesota Court of Appeals vacated the Felony Refusal conviction noting:</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2020). The supreme court has held that “section 609.04 bars multiple convictions under different sections of a criminal statute for acts committed during a single behavioral incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"...</span></span><span style="font-family: helvetica; font-size: large;">this court applies a two-part test to determine whether any of the multiple convictions should be vacated. State v. Bonkowske, 957N.W.2d 437, 443-44 (Minn. App. 2021). First, the convictions at issue must be for offenses that arise under different sections of the same criminal statute. Jackson, 363 N.W.2d at 760. Second, the offenses must have been for acts committed during a single behavioral incident. Id".</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Walter’s convictions for count 1 and count 2 were for offenses arising under different sections of the same criminal statute—Minn. Stat. § 169A.20. Also, this court has held that DWI and test refusal “committed as part of a continuous course of conduct, as occurred here, arise out of a single behavioral incident.” Bonkowske, 957 N.W.2d at 444. Thus, we conclude that the district court erred by entering convictions on counts 1 and 2 on the warrant of commitment."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">As explained by </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984):</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">[W]hen the defendant is convicted on more than one charge for the same act [the district court is] to adjudicate formally and impose sentence on one count only. The remaining conviction(s) should not be formally adjudicated at this time.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large; text-align: left;">If the adjudicated conviction is later vacated for a reason not relevant to the remaining unadjudicated conviction(s), one of the remaining unadjudicated convictions can then be formally adjudicated and sentence imposed, with credit, of course, given for time already served on the vacated sentence."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large; text-align: left;"><b>Moral Of The Story: One conviction is one too many but legally speaking, one is plenty!</b></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large; text-align: left;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minnesota DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></p><p style="text-align: justify;"><span style="font-size: large;"><br /></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large; text-align: left;"><br /></span></p><div><span style="font-size: large;"><br /></span></div><div><br /></div>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-63145361579353657342022-09-30T10:06:00.001-05:002022-09-30T10:06:53.977-05:00Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Hower (Decided September 26, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that refusal to submit to testing can be by words or conduct.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Hower, the Defendant was convicted of felony DWI by a jury. The facts showed that i</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">n November 2020, a law-enforcement officer responded to a call that a pickup truck had crashed in a ditch and arrived to find Hower asleep in the driver’s seat. The officer questioned Hower about what happened, and Hower—who is unable to speak—reacted by motioning to his leg, which the officer interpreted to mean that Hower’s leg was in pain. The responding officer testified at trial that he believed Hower was intoxicated based on the smell of alcoholic beverages, Hower’s inability to stand or walk, his bloodshot, watery eyes, and empty beer cans along with an opened, partially empty bottle of liquor on the floor of the truck’s passenger seat. An ambulance transported Hower to the hospital.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The police obtained a search warrant for the Defendant's blood or urine and </span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">told Hower repeatedly that he could nod or shake his head in response to the question of how he preferred to provide a sample for testing. </span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">At first, Hower did not respond to the officer’s questions. The officer asked Hower several more times if he would provide a blood or urine sample and continued to repeat that it was a crime to refuse. After the officer repeated his questions and tried to get Hower’s attention, Hower gestured to the officer, who gave Hower a pen and paper. Hower then wrote a few words, such as, “for watt,” which the officer interpreted to mean Hower was asking why the officer needed a blood or urine sample; “Scott driving, not me,” which the officer interpreted to mean Hower was saying someone named Scott was driving the truck when it crashed; and “hospital,” to which the officer responded by </span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">telling Hower that he was in the hospital to get his leg examined. The officer then asked again how Hower would like to complete the chemical test, and Hower wrote, “P,” which the officer took to mean Hower would provide a urine sample.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The officer left to retrieve a urine-testing kit. When the officer returned with the kit, he tried to get Hower’s attention by repeatedly saying his name. Hower did not respond and appeared to be asleep. The officer reminded Hower that if he did not respond, it would be a refusal. Hower then appeared to wake up. The officer asked Hower if he would “pee in a cup” and told Hower that if he kept “messing around,” the officer would consider it to be a test refusal. The officer again repeated Hower’s name, asked several more times if Hower was going to take the test, asked Hower to open his eyes, and told Hower to nod his head yes or no. Hower motioned to his leg. The officer told Hower that on initial review, the medical staff had not identified anything wrong with Hower’s leg. The officer yet again asked Hower whether he was going to take the test, and Hower did not respond; the officer said, “See, you stop answering me when I ask those questions.” Moments later, medical staff wheeled Hower into an exam room. The officer testified at trial that he considered Hower to have refused to test once the medical-staff member came to get him; therefore, the officer did not make any additional attempts to secure a sample after that time.</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Defendant argues that the evidence supporting his conviction for test refusal was insufficient, and both parties agree that the evidence of the refusal was primarily circumstantial. Appellate courts apply greater scrutiny when assessing the sufficiency of circumstantial evidence. </span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The Court of Appeals affirmed the conviction, noting:</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"To sustain a conviction based on circumstantial evidence, the reasonable inferences that can be drawn from the circumstances proved as a whole must be consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.” Id. at 598 (quotation omitted). This court first identifies the circumstances proved, with the assumption that the jury rejected evidence in the record that is inconsistent with its verdict. Hanson, 800 N.W.2d at 622. Second, we examine the reasonableness of all inferences that might be drawn from the circumstances proved, including inferences consistent with a hypothesis other than guilt. Id. If there are no reasonable, rational inferences that are inconsistent with guilt, this court should affirm the conviction. Id."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Based on the evidence here, the state proved the following circumstances: (1) Hower initially did not respond to the officer’s request for a chemical test; (2) Hower then appeared to agree to submit to a urine test; (3) when the officer returned with a kit to begin the process of administering the urine test, Hower appeared to be asleep; (4) after the officer reminded Hower that if he did not respond, it would be a test refusal, Hower appeared to wake up; (5) Hower then refused to communicate nonverbally as he had communicated with the officer before; and (6) Hower once again did not respond to the officer’s request to complete a urine test. These circumstances are consistent with Hower indicating an actual unwillingness to submit to the test. See Ferrier, 792 N.W.2d at 102 (deeming that failure to produce urine for testing after verbally agreeing to test was sufficient circumstantial evidence of actual unwillingness to submit to testing)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Hower, however, argues that there are other reasonable inferences based on these circumstances, including that he was not unwilling to test but simply unable to communicate because after he wrote, “P,” the pen and paper were taken away, and alternatively, that he was willing to do a urine test but did not want to do so in the public waiting area. Hower also argues that there was no requirement to consent to the test a second time after he had written, “P.” Ultimately, he argues, it is a reasonable inference that it was the officer’s failure to administer the test, not Hower’s failure to comply with the test, that frustrated the testing process."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Hower’s proffered inferences are unreasonable based on the circumstances proved. The testimony and body-camera footage presented at trial support the inference that Hower demonstrated a clear disinterest in participating in the urine test. Hower’s argument that the removal of his pen and paper meant that he could no longer participate in testing is contradicted by the officer’s body-camera footage showing that Hower motioned with his head and his hands in response to other questions the officer asked. A driver’s refusal to submit to testing includes indicating, through words or actions, an “actual unwillingness to participate in the testing process,” even after initially consenting to a test."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="text-align: left;"><span style="font-family: helvetica;">"</span></span><span style="font-family: helvetica;">The record here includes evidence showing that after appearing to agree to a </span><span style="font-family: helvetica; text-align: left;">chemical test, Hower ignored the officer once he returned with the test kit and did not </span><span style="font-family: helvetica; text-align: left;">respond to questions about taking the test even as he responded nonverbally to other </span><span style="font-family: helvetica; text-align: left;">questions the officer asked. These circumstances support a reasonable, rational inference </span><span style="font-family: helvetica; text-align: left;">that Hower was indicating an actual unwillingness to participate in the testing process. We </span><span style="font-family: helvetica; text-align: left;">conclude that, when viewed in the light most favorable to the verdict, sufficient evidence </span><span style="font-family: helvetica; text-align: left;">exists in the record to support Hower’s conviction for refusal to submit to chemical testing."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><b><span style="font-family: helvetica; font-size: large;">Moral Of The Story: You can still refuse even if you cannot speak.</span></b></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large; text-align: left;"><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minnesota DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue" , "arial" , "helvetica" , sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></p><div><br /></div>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-89433290186005443692022-08-16T13:51:00.002-05:002022-08-16T13:51:43.433-05:00Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Roth (Decided August 15, 2022, Minnesota Court of Appeals, Unpublished), which stands for the proposition that you can challenge a prior revocation if you can prove you were crazy during the entire 60-day challenge window.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">In Roth, the Defendant was charged with Second Degree DWI as he had two prior offenses within the past ten years. One of the prior offenses used to make the current offense a 2nd degree was a 2018 implied consent license revocation. The Defendant had been found not guilty of the related 2018 DWI charge because </span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">at the time of the DWI offense, Ruth’s mental illness had made him unable to understand the nature or wrongfulness of his behavior.</span></span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="text-align: left;"><span style="font-family: helvetica;">Ruth filed a motion to dismiss for lack of probable cause, arguing that the state’s use of the 2018 license revocation to enhance the severity of the charges violated his constitutional rights. Ruth contended that the district court’s ruling in the corresponding 2018 criminal case that he was not guilty by reason of mental illness created an inference that he was also incompetent during the 60-day judicial-review period for the revocation of his driver’s license. He further argued that, because he was unable to challenge the 2018 revocation due to his incompetence, the state’s use of the revocation to enhance the 2020 DWI charges violated his right to due process.</span></span><span style="font-family: helvetica;"> </span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The District Court denied the motion to dismiss and on appeal the Minnesota Court of Appeals agreed with the lower court noting:</span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica;">"</span><span style="text-align: left;"><span style="font-family: helvetica;">Under Minnesota law, the revocation of an individual’s driver’s license following an impaired-driving arrest may be used to enhance the severity of subsequent DWI charges. State v. Wiltgen, 737 N.W.2d 561, 569 (Minn. 2007)</span></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Designed to protect public safety, DWI-related driver’s-license revocations are civil proceedings in which the 60-day period for requesting judicial review is strictly construed, even when a delay in pursuing judicial review is not the driver’s fault. McShane v. Comm ’r of Pub. Safety, 377 N.W.2d 479, 481-82 (Minn. App. 1985)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">***</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Ruth acknowledges that he did not timely seek judicial review of his 2018 driver’s- license revocation. But, relying on the district court’s 2018 determination that he was not guilty of the corresponding criminal DWI charges by virtue of his mental illness, he contends that he was also mentally incompetent during the 60-day window for requesting judicial review and therefore could not timely initiate that process. In further support of his assertion that he was not competent to timely seek judicial review, he asks us to take judicial notice of the evaluator’s competency report in the 2018 criminal case, which concluded that he could not appreciate the wrongfulness of driving while impaired at the time of the offense. According to Ruth, because there was no judicial review of the 2018 revocation, and because he was incapable of requesting judicial review, the revocation could not be used."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">Ruth contends that his case is unique, making his collateral attack on the validity of the 2018 revocation proper, because his incompetence precluded him from utilizing the available judicial review. In support of this argument, he cites to Anderson, where a driver attempted to challenge prior revocations by initiating an untimely civil implied-consent hearing—the judicial-review hearing afforded under the statutory scheme. 878 N.W.2d at 928. Like Ruth, the driver in Anderson argued that he had been incapable of timely requesting judicial review because, due to his mental incompetence, he had not understood the notice he received. Id. at 929. We rejected the driver’s use of an implied-consent hearing as a vehicle for challenging the revocations because the district court lost jurisdiction over such a proceeding when the driver failed to timely request review. Id. at 930. But we stated that the driver could potentially challenge the revocations in a criminal proceeding if the state sought to use the revocations to enhance criminal charges. Id."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Ruth points out that we essentially addressed his circumstances in Anderson, when we stated, “The circumstances in this case may well constitute one of the ‘unique’ cases in which a criminal defendant may collaterally attack a revocation to prevent it from serving as an enhancement.” Id. He observes that he, like the driver in Anderson, was unable to timely seek judicial review due to mental incompetence. But Ruth notes that, unlike the driver in Anderson, he used the proper vehicle for challenging his revocations—a collateral attack in the context of his criminal case."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Ruth’s attempt to collaterally challenge the 2018 revocation is flawed, however. We reject his collateral attack on the revocation for two reasons."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"First, in Anderson, we “expressed] no opinion as to the outcome of [the] analysis.” Id. at 930. Thus, Anderson does not hold that a driver’s incompetence during the judicial- review period precludes the use of the revocation to enhance a subsequent offense."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Second, and even more importantly, the record does not support Ruth’s claim that he was not competent to seek judicial review of the 2018 revocation. His claim relies entirely on the district court’s judicial notice of an order in his 2018 criminal case finding him not guilty of DWI by reason of mental illness. The record contains no evidence of Ruth’s competence to participate in judicial proceedings during the 60-day window for seeking judicial review. And the record does not even include the evaluation that the district court relied on in 2018 to find Ruth not guilty by reason of mental illness. Based on the record here, we cannot infer—as Ruth asks us to do—that he was not competent to seek judicial review in 2018. Yet, this factual assertion provides the entire foundation of Ruth’s legal argument. Because the record does not support Ruth’s claim that he was not competent to seek judicial review, his legal argument fails."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"We cannot conclude that Ruth’s mental condition prevented him from requesting judicial review of his 2018 driver’s-license revocation. Because Ruth waived judicial review by failing to timely request it, the use of the revocation to enhance his current DWI offense did not violate his constitutional right to procedural due process."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: That's one crazy driver!</b></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><span face="">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/">contact Minneapolis DWI Attorney, F. T. Sessoms</a><span face=""> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><b><br /></b></span></p><div style="text-align: justify;"><span style="font-size: large;"><br /></span></div><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p><p style="text-align: justify;"><br /></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0tag:blogger.com,1999:blog-3735580559690034310.post-58588795891800239762022-06-27T12:47:00.000-05:002022-06-27T12:47:33.043-05:00Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case<p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Minnesota DWI Case Of The Week is State v. Johnson (Decided June 27, 2022, Minnesota Court of Appeals, Nonprecedential) which stands for the proposition that jury instructions are to be read and interpreted in their entirety. </span></p><p style="text-align: justify;"><span style="font-size: large;"><span style="font-family: helvetica;">In Johnson, the Defendant was arrested for DWI and was read the Minnesota breath test advisory at a police station in St. Louis County. Defendant was asked to provide a sample of his breath and Johnson declined. The officer, without first obtaining a search warrant, then asked the Defendant to submit to a urine test. Johnson again declined to submit to testing. Mr. Johnson was subsequently charged and convicted of</span><span style="font-family: helvetica;"> felony refusal to submit to a breath test.</span></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">On appeal, Johnson argued that his conviction for test refusal must be reversed because the district court's instruction did not specify which chemical test the state had to prove Johnson refused when he refused both the breath test and a urine test. </span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Court of Appeals affirmed the conviction noting that since the Defendant did not object to the instructions in the district court, the appellate court would use the "plain error" standard of review: </span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">When reviewing jury instructions for plain error, appellate courts review them in their entirety to determine whether the instructions fairly and adequately explain the law of the case...</span></span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">Appellate courts will not reverse a district court’s decision on jury instructions absent an abuse of discretion. Id. District courts abuse their discretion if the instructions “confuse, mislead, or materially misstate the law,” State v. Taylor, 869 N. W.2d 1, 14-15 (Minn. 2015) (quotation omitted), or if the instructions omit an element of the charged offense, State v. Stay, 935 N.W.2d 428, 430 (Minn. 2019)."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">"</span></span><span style="font-family: helvetica; font-size: large;">Once an officer has (1) probable cause to believe that the person was driving while impaired, (2) placed the person under lawful arrest for DWI, (3) requested that the person take a breath test, and (4) read the person the breath-test advisory, Minn. Stat. § 169A.51, subds. 1(b)(1), 2 (2018), “[i]t is a crime for any person to refuse to submit to a chemical test. . . of the person’s breath.” Minn. Stat. § 169A.20, subd. 2(1)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large; text-align: left;">"However, a person cannot be prosecuted for refusing to submit to an unconstitutional warrantless blood or urine test. State v. Thompson, 886 N.W.2d 224, 234 (Minn 2016)."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"Here, the district court instructed:</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">First, a peace officer had probable cause to believe that the defendant drove, operated, or was in physical control of a motor vehicle while under the influence of alcohol. . . .</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Second, the peace officer placed the defendant under lawful arrest for driving while impaired. . . .</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Third, the defendant was given the breath-test advisory by the peace officer.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Fourth, the defendant was requested by the peace officer to submit to a chemical test of the defendant’s breath.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Fifth, the defendant refused to submit to the test."</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">Johnson claimed that because the fifth element of the jury instructions failed to specify which test the state had to prove Johnson refused and instead merely said “the test,” the jury was not properly instructed that Johnson could only be convicted if he refused the breath test, not the urine test.</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">The Court of Appeals rejected Johnson's claim, holding:</span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;">"</span><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;">The jury instructions given by the district court included all elements of the offense and fairly explained the law. Milton, 821 N.W.2d at 805. When read “in their entirety,” it is clear that the fifth element was referring to a breath test. Id. The contested sentence— “Fifth, the defendant refused to submit to the test”—immediately followed two sentences that listed the “[tjhird” and “[fjourth” elements of the offense and included “breath test” and “test of the defendant’s breath.” The first sentence of the instructions also stated that “whoever refuses to submit to a chemical test of the person’s breath ... is guilty of a crime.” There was no reference to a urine test in the jury instructions. Thus, when the fifth element is read in context, the jury instructions did not “confuse, mislead, or materially misstate the law.” Taylor, 869 N.W.2d at 14-15 (quotation omitted). Consequently, under the plain-error analysis, the district court did not err in its jury instructions."</span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><b>Moral Of The Story: If you refuse to submit, they will convict.</b></span></span></p><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: helvetica; font-size: large;"><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;">If you or a loved one have been charged with a Minnesota DWI, feel free to </span><a href="http://www.sessoms.com/" style="text-align: justify;">contact Minneapolis DWI Lawyer, F. T. Sessoms</a><span face=""helvetica neue", arial, helvetica, sans-serif" style="text-align: justify;"> at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.</span></span></span></p><div style="text-align: justify;"><span style="font-size: large;"><br /></span></div><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p><p style="text-align: justify;"><span style="font-family: helvetica; font-size: large;"><br /></span></p><p><br /></p>F.T. Sessomshttp://www.blogger.com/profile/17290847819377575941noreply@blogger.com0