Minnesota DWI Lawyer Blog

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2011-11-01T14:47:00.001-05:00

The Minnesota DWI Case of The Week is Patino v. One 2007 Chevrolet, (decided October 31, 2011) a published decision of the Minnesota Court of Appeals which stands for the proposition that in order for a DWI vehicle forfeiture to be valid, the Defendant must be convicted of the underlying offense which gave rise to the forfeiture in the first place. This case is significant as it finally overrules Mastakoski v. 2003 Dodge Durango, 738 N.W.2d 411 (Minn. App. 2007).

In Patino, the Defendant was charged with Second Degree DWI which gave rise to the forfeiture of his vehicle. The Defendant was charged with Second Degree DWI because he had one prior DWI within ten years of the current offense and he also had a child in the vehicle at the time of the current offense. The Defendant was allowed to plead guilty to Third Degree DWI (child endangerment) and then he sought the judicial return of his vehicle.

It was the Defendant's position that since he had not been convicted of a designated forfeiture offense (i.e. Second Degree DWI) he was entitled to the vehicle's return. The State on the other hand relied on Mastakoski v. 2003 Dodge Durango, which had held that the driver need not be convicted of a designated forfeiture offense as long as the driving conduct constituted the commission of a designated offense.

In rejecting the state's position and overruling Mastakoski, the Patino court held, "Forfeiture is a civil in rem cause of action; because it is punitive in nature, the reviewing court strictly construes the language of a forfeiture statute and resolves any doubts in favor of the party challenging the forfeiture...."

In Mastakoski the Court "...did not address the language of Minn. Stat. § 169A.63, subd. 9(f), which unequivocally states that if 'the forfeiture is based on the commission of a designated offense and the person charged with the designated offense appears in court as required and is not convicted of the offense, the court shall order the property returned to the person legally entitled to it."

The court in Patino therefore held that since the defendant had not been convicted of the designated forfeiture offense, he was entitled to the return of the vehicle.

Moral of the Story: Give Them Long Enough And They Will Get It Right!

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2011-09-21T14:48:00.004-05:00

The Minnesota DWI Case of the Week is unpublished Minnesota Court of Appeals decision of State v. Darling, (decided September 19, 2011), which asks the question, "When is a seizure not a seizure?" Answer: When the Court of Appeals says it is not.

On June 8, 2010, Mr. Darling, after a night of heavy drinking, decided to park his car in front of a locked gate at the entrance to a compost site in Moorhead, Minnesota. A police officer observed the parked vehicle at 12:15 a.m. and thought this was suspicious because the compost site had been closed for hours and the officer knew that there had been criminal activity at the compost site the previous summer. The officer parked his marked squad car behind Mr. Darling's vehicle, partially blocking it and shined his spotlight on the vehicle. Then officer then walked up to vehicle where he found Mr. Darling sleeping. Things went downhill from there and Mr. Darling was ultimately arrested for drunk driving.

On appeal, Mr. Darling contended the officer's action in partially blocking his vehicle and shining the spotlight on him constituted a "seizure" and that said seizure was illegal as at the time it occurred, the officer did not have a reasonable suspicion of criminal activity. In deciding the issue, the Court of Appeals correctly noted, "Ordinarily, the mere act of a police officer approaching a person sitting in a parked car and asking questions is not a seizure. (citations omitted) But such an encounter may become a seizure if there is a demonstration of authority that exceeds the behavior to be expected by a private citizen, such as blocking in a person's vehicle, activating emergency lights, or sounding the horn. State v. Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988)". So far, so good for Mr. Darling. But then the Court of Appeals ruled that no seizure occurred since the car was only "partially blocked" and the officer did not use his horn or his emergency lights but only used his spotlight!!

I respectfully submit that the Court's position is incorrect. Since when is it customary for a private citizen to partially block another private citizen's vehicle and then shine a spotlight on said vehicle? The standard for whether a seizure has occurred is whether a "reasonable person" would believe that he or she has been seized. And if a police officer pulls up in a marked squad car and partially blocks a person's vehicle and then shines a spotlight on the occupant, I respectfully submit that a reasonable person would conclude that a "seizure" has occurred.

The Court of Appeals reached the correct result as the police officer had a sufficient legal basis to make the initial seizure. But to rule, as the Court of Appeals did, that no "seizure" occurred is just plain wrong.

MORAL OF THE STORY: If you are going to go green and compost, do it when you are sober!

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2011-08-17T13:58:00.002-05:00

The Minnesota DWI Case of the Week is the unpublished Court of Appeals decision of State v. Butcher, (decided August 17, 2011) which stands for the proposition that if you have eleven prior DWI convictions it might be a good idea to never come near the wheel of an automobile!

In Butcher, a Park Rapids police officer was on routine patrol shortly before midnight when he noticed a vehicle parked in a commercial area with its lights on. As he approached the vehicle, the officer noticed Mr. Butcher get into the driver's seat of the car. The officer saw the vehicle's lights turn off but was unable to recall whether the vehicle's engine was running. The officer observed the keys in the ignition and that there was a female passenger in the front seat.

Mr. Butcher was drunk and was subsequently convicted of Felony DWI and was sentenced to prison for 79 months. On appeal, Butcher argued that he could not be convicted of DWI because the state did not introduce sufficient evidence to establish that he drove, operated or was in physical control of a motor vehicle under Minn. Stat. § 169A.20, subd. 1 (1), (5). Butcher claimed on appeal that the circumstantial evidence equally supported the conclusion that the female passenger had been driving the vehicle before it came to a stop along the road where the officer noticed it.

The Minnesota Court of Appeals had little problem dismissing Butcher's claim noting, "In this case the undisputed direct evidence shows that Butcher was in physical control of the vehicle as he sat behind the wheel of the vehicle with the key in the ignition, and this evidence is sufficient to sustain his DWI convictions. See, State v. Fleck, 777 N.W.2d 233, 235 (Minn. 2010) (holding that evidence of a person sleeping behind the wheel of his vehicle with the keys in the center console of the vehicle demonstrates physical control of the vehicle sufficient to sustain a conviction of DWI).

"The term 'physical control' in Minnesota's DWI laws is meant to cover situations when an intoxicated person 'is found in a parked vehicle under circumstances where the vehicle, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property'. State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992). Plainly, Butcher's position behind the wheel of the vehicle along with the fact that the key was in the ignition satisfied the definition of physical control. There is no merit to Butcher's argument that the evidence was insufficient to prove that he was in physical control of a motor vehicle for purposes of Minn. Stat. § 169A.20, subd. 1 (1), (5).

Moral Of The Story: Never ever get in a vehicle while drunk unless you are a passenger.

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2011-06-18T12:44:00.000-05:00

The Minnesota DWI Case of the Week is the published Minnesota Court of Appeals decision of State v. Brown (decided June 13, 2011), which stands for the proposition that a motorized wheelchair or handicap scooter does not constitute a "motor vehicle" for purposes of the DWI law.

For some reason, Mr. Brown decided it would be a good idea to get drunk and drive his battery-operated three-wheel Legend Pride Mobility Scooter on the sidewalks of the City of Grand Rapids. Mr. Brown drove his scooter to a car dealership and the dealer called the police as he was obviously drunk. Mr. Brown was subsequently charged with a DWI and the issue in the case was whether his mobility scooter constituted a "motor vehicle".

The Minnesota DWI Statute defines a "motor vehicle", in relevant part, as "every vehicle which is self-propelled", excluding "an electronic personal assistive mobility device". A "driver" is defined as "every person who drives or is in actual physical control of a vehicle". A "vehicle" is defined as "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway".

A separate Minnesota Statute, however, defines a "pedestrian" as "any person afoot or in a wheelchair". And a "wheelchair" is defined as including "any manual or motorized wheelchair, scooter, tricycle, or similar device used by a disabled person as a substitute for walking".

After reviewing all of the statutory definitions, the Minnesota Court of Appeals correctly held that, "It is plain that for purposes of the traffic regulations, Brown's scooter is a wheelchair and is not a motor vehicle and Brown, who uses the scooter as a substitute for walking, is, while operating his scooter, a pedestrian....We conclude that Brown's operation of his scooter as a substitute for walking does not make him the driver of a motor vehicle within the meaning of (the DWI statute) and does not subject him to criminal charges for operating the scooter while impaired."

Moral Of The Story: If you are going to get drunk, walk or take a wheelchair.

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2011-04-27T12:51:00.000-05:00

The Minnesota DWI Case of the Week is unpublished Minnesota Court of Appeals decision of State v. McGee, (Decided April 26, 2011) which stands for the proposition that the police are not required to tell a person under arrest for DWI of available alternative test methods where the arrestee does not refuse the test offered.

In McGee, the Defendant was placed under arrest for DWI and after she was taken to the police station, the officer asked the Defendant if she wanted to speak to an attorney prior to testing. The Defendant waived her right to speak to counsel and was then asked by the arresting officer if she would submit to a urine test. Ms. McGee responded to the request by asking, "It has to be the urine test?". The officer's response was, "We take the urine test".

The urine sample given by the Defendant tested at an alcohol concentration level of .17. The Defendant subsequently challenged the admissibility of the urine test result arguing that the officer's failure to inform her of alternative tests to the urine test was a fatal error. The district court agreed with the Defendant, concluding that the officer materially misled Ms. McGee by failing to inform her of alternative tests, and thereby coerced her consent to the urine test. The State appealed the District Court's ruling and the Minnesota Court of Appeals reversed the decision stating:

"A person arrested for a DWI may be asked to submit to chemical testing of her blood, breath, or urine to determine the person's alcohol concentration. Minn.Stat. §169A.51, subd. 1(a) (2008). The decision of which test to administer-blood, breath, or urine-is within the discretion of the police officer. Although alternative tests are available, an officer is not required to explain this or offer another means of testing until the driver refuses the first test offered."(Emphasis added)

* * *

"When asked if she would provide a urine sample, respondent replied, 'It has to be the urine test?' This is a question—not a test refusal. Absent a clear refusal of the first test, the officer had no obligation to alert respondent of alternative testing methods. The officer’s response that “We take the urine test” could have been more forthcoming, but clarification of the process is in the province of legal counsel, not the officer. See Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991) (“An attorney, not a police officer, is the appropriate source of legal advice.”). Respondent expressly declined her opportunity to consult with an attorney, stating, “No, let’s just proceed.” Because respondent did not overtly refuse the urine test, the district court erred by concluding that the officer coerced respondent to consent to urine testing by not informing her of alternative testing methods."

Moral Of The Story: NEVER, EVER WAIVE YOUR RIGHT TO COUNSEL PRIOR TO TESTING!!! (Otherwise, you may be stuck with an unreliable urine test result).

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2011-03-11T13:59:00.001-06:00

The Minnesota DWI Case of the Week is unpublished Minnesota Court of Appeals decision of State v. Adams, (Decided March 8, 2011) which stands for the proposition that the Courts should rightfully reject the testimony of a state trooper when he, in effect, testifies, "Who are you going to believe, me or your lying eyes?"

Mr. Adams was arrested for a DWI and his attorney challenged the validity of the initial stop in the district court.

The attorney had an uphill battle as it is well established that the police can make a limited investigatory traffic stop if the officer has a reasonable articulable suspicion that an occupant of the car is engaged in illegal activity. The "reasonable suspicion" of criminal activity must be based on specific and articulable facts, not on an unarticulated hunch. The standard is not high and is less than that required for a finding of "probable cause".

At the suppression hearing, the trooper in this case gave three reasons to support the stop:

(1) he believed the bumper on the respondent's car exceeded the legal height limit; (2) the registered owner of the car had a revoked license; and (3) he believed that respondent was watching television while driving the vehicle.

Any one of these observations could provide the reasonable suspicion needed to make the initial stop. The problem for this particular state trooper, however, was that his squad video did not back up his claims and the district court called him on it!! As noted by the Minnesota Court of Appeals:

"The district court enumerated its reasons for discounting the trooper's testimony: (1) although the trooper relied heavily at the omnibus hearing on his belief that respondent was watching television while driving, the district court noted that the flickering light described by the trooper was not apparent in the videotape and that the trooper did not mention this as a reason for the stop when he first spoke to the respondent; (2) the trooper stated that he was able to view the driver well enough while driving to determine that he matched the registered owner's description, but in fact the registered owner was six inches taller and 200 pounds heavier than respondent; the registered owner testified at the omnibus hearing and the district court was able to compare the physical appearance between the owner and respondent; (3) although the trooper measured the car's bumper height after stopping respondent and knew that it did not exceed the statutory maximum, he is recorded on the videotape telling respondent that the bumper was too high; (4) at the omnibus hearing, the trooper failed to make out his own words on the videotape when making the disputed statements, despite the fact that the district court could understand his speech. All these facts led the district court to conclude that the trooper was not credible."

The Court of Appeals then held that the district court did not commit error when it suppressed all of the evidence noting, "The district court here made extensive credibility findings, essentially rejecting much of the trooper's testimony as inherently suspect. We will reverse the district court's order suppressing evidence only when the state can clearly and unequivocally demonstrate that the district court's findings of fact are clearly erroneous and that the court 'clearly and unequivocally' erred in its legal conclusions. The state has not met this standard."

So in other words, when a trooper lies to a defendant and lies to the district court and the lies are captured on tape it is not error to conclude that the stop was bogus.

Moral of The Story: It's Not Nice To Try To Fool Mother Nature Or The District Courts!

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2011-01-11T14:52:00.003-06:00

The Minnesota DWI Case of The Week is the unpublished decision of State v. Dixon (Minnesota Court of Appeals decided January 11, 2011) which stands for the proposition that urine test results are not subject to scientific challenge in a criminal case.

In Dixon, the defendant sought to introduce expert testimony challenging the reliability of urine testing to measure the level of alcohol concentration in a person suspected to driving under the influence. The trial court, however, ruled that the defense could not offer expert or lay testimony on the reliability of urine testing because Minnesota has accepted the scientific basis of this testing method.

On Appeal, the Minnesota Court of Appeals affirmed, essentially saying they have approved the use of urine testing in the past and so they are going to uphold its use into the future. Or as stated by the Court:

"Minnesota Courts have rejected challenges to the use of urine tests based on the 'urine-pooling theory', which suggests that a urine test is scientifically invalid if the suspect is not required to void his bladder once and wait 20 to 30 minutes before providing urine for testing, to assure the accuracy of the test. Hayes, 773 N.W.2d at 138-139; Genung v. Comm'r of Pub. Safety, 589 N.W.12d 311, 313. In Hayes, this court ruled that the district court did not abuse its discretion by excluding expert testimony that would have attempted to challenge the validity of the urine testing based on this theory. In Genung, this court stated that BCA urine-testing procedures 'have been found to ensure reliability' and 'do not require voiding once before producing the test sample. In Hayes, this court relied on Genung to conclude that, even if the proffered expert testimony on the urine-pooling theory were relevant, 'it is insufficient as a matter of law to prove that the testing method is not valid and reliable' under the implied statute. Because current Minnesota law upholds the reliability of first-void urine test results, the district court did not abuse its discretion by refusing to allow appellant to introduce expert witness testimony on the reliability of the urine-pooling theory or by refusing to permit appellant to cross-examin the state's BCA expert witness on that theory."

What is interesting about this case is that the Minnesota Court of Appeals uses CIVIL CASES to reach a result in a CRIMINAL CASE. Hayes and Genung were both civil cases where the burden of proof is much lower.

In a criminal case, a defendant should always have the right to challenge the accuracy and reliability of a scientific test because the stakes are so much higher than they are in a civil action. Because a criminal defendant faces the potential loss of his or her liberty then due process, or fundamental fairness, demands that a jury have all the evidence they need to access the reliability of a chemical test.

When a person stops drinking, the ethanol is continuously being removed from the individual's blood by their metabolism. The ethanol ends up in a person’s urine, which is a waste product excreted by the kidneys. The urine, containing the ethanol, accumulates in the bladder until the person voids.Little or no oxidation of the ethanol occurs in the bladder and can result in abnormally high urine alcohol concentrations being obtained from the first void. Or to quote from A.W. Jones:

“The length of time that urine is stored in the bladder before voiding is also an important consideration because ethanol is continuously being removed from the blood by metabolism, but no oxidation of ethanol occurs in the bladder. This situation results in abnormally high UAC to BAC ratios being obtained for the first void.” Reference Limits for Urine/Blood Ratios of Ethanol in Two Successive Voids from Drinking Drivers. Journal of Analytical Toxicology, Vol. 26, p. 333 (September 2002).

If a person has not done a first void, there is no relationship or correlation between the amount of alcohol in a person’s urine and the amount actually in their blood. It is not at all uncommon for persons to have high levels of alcohol in their urine and very low or no levels of alcohol in their blood. Minnesota is the only place that does not have any promulgated rules for administering or collecting a urine test. Other states, that don’t prohibit urine testing for alcohol concentration by statute or rule, have all promulgated some rules at least for the proper administration of the test!

So even though a first-void urine test result has no support whatsoever in the scientific community, as long as the Minnesota BCA is willing to use it, the Minnesota Court of Appeals is going to back them up.

MORAL OF THE STORY: Never submit to a urine test. Always exercise your right to have a blood test done instead. At least it will be accurate and not overstate your alcohol concentration level.

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2010-11-29T13:55:00.001-06:00

The Minnesota DWI case of the week is the unpublished decision of State v. Grinsteinner, (Minnesota Court of Appeals decided November 23, 2010) which stands for the proposition that it is possible to get probation for a felony DWI if you really, really work for it.

On October 21, 2009, Mr. Grinsteinner entered a straight plea to the district court on a felony DWI and he hit the jackpot!

A "straight plea to the court" is done when the prosecutor wants more jail time than the client is willing to serve. So rather than agree to the prosecutor's recommendation, a "straight plea to the court" is entered in the hope that the district court judge will be more merciful than the county attorney.

In this case, Mr. Grinsteinner made a straight plea on his Third Felony DWI. While it is unclear from the opinion, that fact that he pled to his 3rd felony indicates that Mr. Grinsteinner has at least six DWI's in his checkered career. The presumptive sentencing guideline called for Mr. Grinsteinner to served 66 months in prison. The district court sentenced Mr. Grinsteinner to probation instead and the County Attorney appealed, arguing that the district court did not have a basis to depart from the 66-month guideline sentence.

Minnesota Court of Appeals affirmed the district court's probationary sentence and this case is significant as it demonstrates what a defendant can do to avoid a lengthy prison sentence in a felony DWI. The Minnesota Court of Appeals pointed out that Mr. Grinsteinner had: (First and foremost),undergone an extensive treatment program; submitted a letter from his sponsor at Alcoholics Anonymous detailing his attendance; submitted a letter from his employer as to his sobriety; submitted a letter from the Inmate worker crew supervisor at the Dakota County Jail; submitted letters from friends and family members detailing their support of the defendant's efforts to maintain sobriety. Mr. Grinsteinner also expressed remorse for his latest offense and had been sober for three years prior to his arrest.

The Minnesota Appellate Court noted that, "The district court has broad discretion to depart from the presumptive sentence provided by the sentencing guidelines." The Appellate Court also stated, "The district court should consider a number of factors when determining whether a defendant is amenable to probation, including the individual's age, prior record, remorse, cooperation, attitude while in court, and the support of friends and family. Here the record reflects that the respondent expressed remorse for his actions, that he had participated in and completed treatment programs while he was in jail for this offense, and that he has a strong support network of friends and family. Furthermore, respondent was sober for three years before he committed this offense, and the record reflects that respondent has the motivation to remain active in recovery and abstain from alcohol use."

The Court of Appeals, therefore, held that the District Court did not abuse its discretion when it gave Mr. Grinsteinner a probationary sentence.

Moral of the Story: It's Never Too Late To Turn Over A New Leaf!

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2010-09-19T12:56:00.004-05:00

The Minnesota case of the week is the published decision of State v. Mohomoud, _N.W.2d _ (Minn. App. decided September 14, 2010) which serves as a cautionary tale that any individual arrested for a DWI should hire an attorney who knows what he is doing!!

In Mohomoud, the Defendant was charged with felony DWI. His attorney stipulated to his prior DWI convictions to prevent the jury from learning of his prior offenses. So far, so good, as the Minnesota Supreme Court in State v. Berkelman, 355 N.W.2d 394 (Minn. 1984) recognized that the introduction of prior offenses is prejudicial to a defendant and, therefore, held that a defendant has the right to stipulate to the prior convictions to keep the jury from being influenced by the defendant's prior conduct.

At the trial, the prosecutor played a DVD recording made of the defendant's conversation with an attorney on the night of the defendant's arrest. The recording contained references of Mohomoud's prior convictions. Specifically, Mohomoud can be heard stating to the attorney, "I just got out of prison"; and "I was in prison for my fourth DWI". Mohomoud then discussed the dates of his prior convictions, fines and his prison term.

Before offering the DVD in evidence, the prosecutor discussed its content with defense counsel and the court. The court asked defense counsel for his position on the prosecutor's proposal and counsel stated that he agreed with it, stating:

"Yes, Your Honor, I have heard and he discussed this with me. The very first reference, as we agreed, we'd cue up past that first reference. Due to the nature of the software and its inability to edit it—although we'd prefer to have those removed, we also understand it's more work than it's worth and I understand that it's a minor reference. So although we'd prefer to have it out, we don't object to those other statements at this point."

When the prosecutor offered the DVD as an exhibit, defense counsel then stated that he had "no objection" to the evidence.

On appeal, Mohomoud's appellate counsel argued that the admission of the recording of his conversations with his attorney was "plain error" because it violated longstanding caselaw requiring suppression of a DWI arrestee's conversations with an attorney pursuant to the implied consent advisory, citing State v. Clark, 375 N.W.2d 59 (Minn.App. 1985).

State v. Clark is a Court of Appeals case which follows State v. Berkelman in holding that the defendant has the right to stipulate to his prior offenses to prevent their consideration by the jury.

But Sadly Now, There Can Be But One Outcome:

In the present case however, the Court of Appeals held that, "The plain-error standard applies when a party failed to object to the allegedly erroneous admission of evidence. It does not apply when a party intentionally and expressly gives up a known right. In the former instance, it is said that a forfeiture of the error has occurred; in the latter, the result is a waiver of error."

A forfeiture of the error is subject to due process review under the plain error standard. A waiver of the error is not. Or, as stated by the Court of Appeals, "The logic of the distinction is compelling. If a party knows of a right and intentionally relinquishes that right, it cannot be said that the trial court erred regarding the subject matter of that right or that there is any error to review on appeal. Defense counsel here clearly waived Mohomoud's right to have the evidence of his conversation with a lawyer excluded by acknowledging that he heard the recording, discussed it with the prosecutor ...and when the prosecutor offered the recording, defense counsel said he had no objection. Mohomoud's waiver extinguished any error that might have been predicated on the admission in evidence of the portions of the recording at issue."

Trial counsel's performance was deficient for a number of reasons:

First, he snatched defeat from the jaws of victory by obtaining the exclusion of the prior offenses but then agreed to their admission as contained in the DVD recording. What was he thinking?

Second, although it is not discussed in the present case, any conversation between a DWI suspect and an attorney is not admissible pursuant to Commissioner of Public Safety v. Campbell, 494 N.W.2d 268 (Minn.App. 1992).

In Campbell, the Minnesota Court of Appeals held that the police may be present during a DWI arrestees telephone conversation with an attorney as the police have a right to do an "observation period" of the suspect prior to the suspect's submission to alcohol testing. But the court held in Campbell that the content of the conversation with the attorney is not admissible.

So why trial counsel for Mohomoud did not object to the entire DVD is beyond me and is completely inexcusable.

It has long been held that people may not be punished for exercising their statutory and constitutional rights. For example, if a suspect invokes his right to remain silent or if he invokes his right to counsel, the exercise of those rights may not be presented to the jury. (Why? Because it is prejudicial: If juries are allowed to consider the matter instead of reviewing the evidence, they may decide that if the suspect had nothing to hide, he would not refuse to speak to the police or seek the advice of counsel.)

Moral of the Story: Don't let in the back door what you kept out of the front!

F. T. Sessoms, Minnesota DWI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2010-08-07T12:25:00.002-05:00

The Minnesota DWI Case Of The Week is the unpublished case of State v. McIlraith (Minn.App. August 3, 2010). In McIlraith, the defendant was arrested for boating while intoxicated with an intoxilyzer test result of .13. When the defendant was arrested, he consulted with an attorney who advised the defendant to obtain an independent test. The defendant called his wife to collect a urine sample but the police would not allow his spouse to collect the sample. The defendant then called an independent-testing agency and the agency was allowed to collect the urine sample. The independent test showed a urine test result of .12.

The defendant moved to suppress the state's intoxilyzer test result arguing that the police had violated the defendant's statutory right to have an independent test done "by a person of his own choosing" as required by Minn. Stat. § 169A.51, subd. 7(b). The district court denied the defendant's Motion to Suppress but on appeal, the Minnesota Court of Appeals reversed the district court and ordered the intoxilyzer test suppressed. So far so good!

After the case was remanded to the district court, the prosecution subpoenaed the test result obtained from the independent-testing agency and sought to introduce the .12 urine test to convict Mr. McIlraith. The defense moved to suppress the urine test arguing: (1) it was testimony given by a defendant in support of a motion to suppress; (2) he did not intend to introduce the result of the second test at trial and was, therefore, non-discoverable, and (3) the purpose of the independent testing statute would be defeated if the prosecution was allowed to exploit the defense efforts to investigate the case. The second motion to suppress was denied at the district court and on appeal, the Minnesota Court of Appeals rejected all of the arguments advanced by the defense.

The Minnesota Court of Appeals held:

(1) "Although McIlraith testified during the first pretrial suppression hearing that he took the independent test and testified as to what he remembered was the result of the test, it was the actual result of the test, as subpoenaed by the state from Accurate Testing, and not McIlraith's testimony, that provided the basis for the reinstatement of the charge based on testing. Because it was the test result itself rather than McIlraith's testimony that was at issue in the second Lothenbach trial, we reject his first argument."

(2) "...under Minn.R.Crim P. 9.02, subd. 1(2), which states that, [t]he defendant must disclose and permit the prosecutor to inspect and reproduce any results or reports of ...scientific tests...made in connection with the particular case within the possession or control of the defendant that the defendant intends to introduce in evidence at the trial...

However, this rule does not apply to the result of the second test because the state was able to obtain the records from Accurate Testing independently, without the consent of McIlraith. Thus the district court correctly concluded that this scientific test was not solely within the possession or control of McIlraith. Therefore, whether McIlraith intended to introduce the result of the test into evidence at trial was irrelevant."

(3) "Lastly, McIlraith argues that the purpose of Minn. Stat. § 169A.51, subd. 7(b), the independent testing provision, would be defeated if the result of an independent test could be used against the defendant without his consent. McIlraith correctly indicates that the purpose of the provision is to ensure a criminal defendant's constitutional right to due process and confrontation by facilitating effective investigation and preparation...However, the asserted purpose of the statute does not prevent the state from obtaining accurate evidence of a defendant's alcohol concentration... The statute only precludes admission of the test administered by the police if an additional test was prevented or denied. It does not prevent the admission of the result of an additional test."

I believe that the McIlraith decision is wrong because:

(1) The State only became aware of the independent test and its result through the testimony of the defendant at his original suppression hearing. The test result obtained by the State is thus the fruit of the defendant's testimony which may not be exploited.

(2) The defendant produced the urine sample and paid for the the test result. The sample and result would not exist but for his physical and financial efforts to defend his case. To claim that the result is not within his possession or control because it was subpoenaed by the prosecution seems to ignore the concept of "constructive possession". If a person produces the sample, pays for its analysis, does not intend to introduce the results of the investigative analysis, how can the state, consistent with Rule 9.02 introduce the evidence produced by the defense? After all, no scientific test result produced in a lab is ever in the exclusive "possession and control" of a defendant as the lab will always have a copy of its work!

(3) The Court admits the purpose of the statute is ensure a defendant's constitutional right to due process and confrontation and then defeats the admitted purpose of the statute by claiming that state's conduct is not prohibited by the very statute whose purpose has now been defeated.

MORAL OF THE STORY: Be Careful What You Wish For!

F.T. Sessoms, Minnesota DWI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2010-06-15T20:40:00.000-05:00

The Minnesota Case of the Week is the published decision of Mycka v. One 2003 GMC Envoy Automobile (decided June 15, 2010).

Mr. Mycka was arrested for driving while impaired (DWI) and due to his previous driving record, the City of Fridley sought the forfeiture of his 2003 GMC Envoy.

The city seized the vehicle after Mycka was released from jail and after he had retrieved his vehicle from a private towing company. Mr. Mycka then challenged in district court the city's seizure on the ground that, without process issued by a court, the city was not authorized to seize the vehicle from him. The district court denied the claim, but on appeal, the Minnesota Court of Appeals reversed the district court and ordered the vehicle returned to Mr. Mycka.

If a law enforcement agency does not obtain process issued by a court, the agency may, in the alternative, seize a motor vehicle subject to forfeiture pursuant to any of the following three exceptions:

(1) the seizure is incident to a lawful arrest or a lawful search;

(2) the vehicle subject to seizure has been the subject of a prior judgment in favor to the state in a criminal injunction or forfeiture proceeding under this section; or

(3) the appropriate agency has probable cause to believe that the delay occasioned by the necessity to obtain process would result in the removal or destruction of the vehicle.

In the present case, the City of Fridley sought to justify the forfeiture seizure without court process by claiming that the vehicle was seized, "incident to a lawful arrest".

The Minnesota Court of Appeals rejected the City's position, stating:

"Ultimately, this case can be resolved on the simple ground that the seizure occurred so late in time. The city did not initiate the administrative seizure of Mycka's vehicle while Mycka still was under arrest. Mycka was released from detention, and he retrieved his vehicle from Shorty's Towing. Not until the following day--approximately 36 hours after his arrest and approximately 24 hours after his release from the county jail--did the city's police officers seize Mycka's vehicle from his residence. There was a clear break in time between the arrest and the seizure. These facts compel the conclusion that the city did not seize Mycka's vehicle 'incident to' his arrest, as required by section 1679A.63, subdivision 2(b)(1).

Moral of the Story: He Who Hesitates Is Lost!!

F.T. Sessoms, Minnesota DWI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2010-04-20T14:13:00.003-05:00

The Minnesota DWI case of the week is the published decision of Pallas v. Commissioner of Public Safety. (decided 4/20/2010).

Mr. Pallas obtained multiple Minnesota DWI convictions and had previously taken his act on the road as he had also obtained four Illinois DWI convictions. The State of Illinois had issued a lifetime ban prohibiting him from ever receiving an Illinois license.

Mr. Pallas eventually applied for a Minnesota driver's license but the Minnesota Commissioner of Public Safety denied the application for a Minnesota license on the basis that he had not obtained a "clearance letter" from the State of Illinois indicating he was cleared to drive in Illinois, a practical impossibility.

Mr. Pallas petitioned the district court but the court upheld the Commissioner's decision to deny Mr. Pallas a Minnesota driver's license. On appeal, the Minnesota Court of Appeals reversed the district court, noting that Mr. Pallas had completed the rehabilitation requirements to obtain a Minnesota license and to refuse to issue a Minnesota license based upon the failure to provide a clearance letter from the State of Illinois violated Article V of the Interstate Driver License Compact (codified in Minnesota in § 171.50).

Minnesota Statute § 171.50 states in pertinent part, "...after the expiration of one year from the date the license was revoked, such person may make application for a new license if permitted by law. The licensing authority may refuse to issue a license to any such applicant if, after investigation, the licensing authority determines that it will not be safe to grant to such person the privilege of driving a motor vehicle on the public highways." (emphasis added).

The Court of Appeals noted that:

"The statute does not expressly allow the commissioner to replace the investigative process with a clearance-letter requirement, or even to impose a clearance-letter requirement. We cannot construe the statute as allowing the commissioner to condition issuing a Minnesota license on the applicant's ability to secure a clearance letter."
* * *
"Not only was the clearance-letter condition contrary to law, but in this case the unauthorized condition was also a mirage. The commissioner through legal counsel acknowledged in 2002 that 'it will be impossible for Pallas to get a clearance letter from Illinois because he is under a lifetime revocation based upon having four DWI's on his record', and the district court acknowledged the same. It might be that 'after investigation' the commissioner would find that it will be unsafe to license Pallas in Minnesota. But neither an investigation nor factfinding occurred here. Instead, Pallas was denied a license based on his failure to meet a condition that was legally implausible and practically 'nigh impossible."
* * *
"In sum. the compact plainly provides that an applicant can be issued a license in Minnesota notwithstanding a lengthy revocation in another state and that before refusing to issue the license the commissioner must determine that issuing it would be unsafe. By requiring a clearance letter, the commissioner rendered Article V meaningless and divested himself of the discretion conferred under the compact. This cannot be the result that the legislature intended. We reverse and remand for the commissioner to decide the question of Pallas's reinstatement on the basis authorized by statute."

Gee, I wonder what the Commissioner is going to decide? But since Mr. Pallas is otherwise eligible to obtain a limited Minnesota license, the Commissioner will be hard pressed to legitimately deny the issuance of a license.

Moral of the Story: Give me your tired, your poor, your huddled masses yearning to obtain a license and I will show you how!

F. T. Sessoms, Minnesota DWI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2010-03-09T20:12:00.008-06:00

The Minnesota DWI Case of the week is State v. Cypher which stands for the proposition that it is not nice to try to fool the District Court or the Minnesota Court of Appeals.

Mr. Cypher was charged with Felony DWI and his attorney requested a pretrial hearing to contest the validity of the initial stop of vehicle. But then Mr. Cypher's attorney decided to get creative. Or, as stated by the Minnesota Court of Appeals in its decision:

"We note that when appellant requested a contested omnibus hearing he asserted that the 'sole issue' was the stop, and at the hearing, appellant's attorney reiterated that the 'one issue' was the stop. But following the arresting officer's testimony, appellant's attorney declared: 'The vehicle was never identified and appellant was never identified, the State can't uphold the stop'. Appellant challenged the officer's identification of appellant as the driver of the vehicle. The district court gave the parties an opportunity to respond to appellant's identification challenge before concluding that the officer identified appellant and that appellant was the only occupant of the vehicle."

"Appellant similarly raises this issue on appeal with misplaced confidence, deeming it a sure-fire triumph. But appellant's attorney's tactic to attempt to hoodwink the prosecutor and the district court by raising this issue in the manner in which he did, although clever from his perspective, was imprudent. We note that after appellant's attorney remarked in district court that the officer failed to identify appellant and, as a result, the state could not uphold the stop, the district court had the discretion to reopen the record and allow additional testimony from the officer, which it did not."

"Additionally, the district court could have precluded appellant from challenging identification because when appellant raised the 'sole issue' of the stop, he no longer had standing to challenge whether he was the driver. Appellant essentially conceded that he was the driver when he challenged the legality of the stop and he was the vehicle's sole occupant; he had no standing to challenge the stop if he was not the driver."

Ouch!!

"Standing" is a basic concept in the law and it means that unless you have been personally aggrieved by a police search or seizure you may not bring a challenge to the police action. For example, if the police break into my neighbor's house, I have no "standing" to challenge the search even if it was illegal as I have no interest in the area searched.

Or, as in the present case, you can't challenge the legality of the initial stop where you are claiming that you were not the driver. If you were not the driver, then you do not have any interest (i.e. standing) in the legality of the police conduct. Duh!

Had the defendant's attorney been serious about challenging the identity the driver, he should have brought a Motion to Dismiss for lack of probable cause. Instead, he decided to get cute and got spanked by the Appellate Court for forgetting about a fundamental concept in the law of search and seizure.

Moral of the Story: It's Not Nice to Fool Mother Nature or The Minnesota Court of Appeals!

F. T. Sessoms, Minnesota DWI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2010-02-18T11:15:00.010-06:00

The Minnesota DWI case of the week is the Minnesota Court of Appeals decision set forth in Melde v. State of Minnesota.

Mr. Melde was charged with two counts of Felony DWI and one count of Driving After Cancellation. He agreed to plead guilty to one count of Felony DWI and to Driving After Cancellation when the prosecutor agreed to recommend that the execution of the sentence be "stayed" (i.e. the prosecutor agreed that Mr. Melde would not be required to go to prison).

The district court judge accepted the guilty plea and adjudicated Mr. Melde guilty. The parties and the district court agreed that there would be a pre-sentence investigation and that the court would sentence Mr. Melde after reviewing the pre-sentence report.

After the pre-sentence report was prepared and reviewed by the district court, the judge decided not to accept the plea agreement. The district court offered Mr. Melde the opportunity to withdraw his guilty plea but told the defendant that it would sentence him to 46 months (i.e. at the bottom of the sentencing guidelines) if he affirmed his guilty plea.

Mr. Melde decided not to withdraw his guilty plea and was sentenced, as promised, to 46 months in prison. Mr. Melde subsequently brought a Petition for Post-Conviction Relief asserting that the district court impermissibly injected itself into the plea negotiations by promising a particular sentence.

The Minnesota Court of Appeals agreed with Mr. Melde and reversed his conviction. The Court of Appeals noted that, "The district court has a role to play in plea negotiations, but it may not usurp the responsibility of counsel or become excessively involved in plea negotiations. It is improper for a district court to offer the defendant an anticipated sentencing result that is not a part of an existing agreement between the defendant and the prosecutor."

"The district court's proper role is one of discreet inquiry into the propriety of the settlement submitted for judicial acceptance, both to make certain that an innocent person has not been induced to plead guilty to a crime and to protect society from a defendant being permitted to bargain for an excessively lenient sentence. If the district court finds the terms of the a plea agreement to be unacceptable, it must simply reject the agreement."

When a district court rejects a plea agreement, the defendant is automatically entitled to withdraw his plea if one has been entered. Here the district court properly informed Mr. Melde of his right to withdraw his guilty plea. However, the court also told Mr. Melde that it would impose a 46-month sentence if he affirmed his guilty plea. "By promising a particular sentence that was not part of an agreement between the prosecutor and the defendant, the district court improperly injected itself into plea negotiations. Therefore Melde's guilty plea was per se invalid."

My only criticism of the result is that sometimes an active role by the court facilitates a proper resolution of the case. There are times when one encounters an over-zealous prosecutor who demands a sentence far in excess of anything warranted by the offense. If the court takes an active role and indicates it is not going to go along with the prosecutor's demands, the court's involvement can go a long way in avoiding an unnecessary trial.

F.T. Sessoms, Minnesota DWI Lawyer

F.T. Sessoms Gets Police "Policy" Declared Unconstitutional! Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2010-01-27T12:22:00.004-06:00

The Minnesota Case of the week is the Minnesota Court of Appeals decision of State v. Wicklund (Opinion Issued January 26, 2010). I was the attorney for the Defendant in this case and the decision stands for the proposition that the police "policy" of collecting a blood or urine sample from a driver, whenever an accident involving serious injury or death occurs, violates the Fourth Amendment to the United States Constitution.

Brent Wicklund caused a fatal multi-vehicle accident after the brakes on his box truck failed and he attempted to stop by driving into a raised concrete median that separated the opposing lanes of a multi-lane highway. Mr. Wicklund's truck did not stop; it jumped the median, entered oncoming traffic, and struck and fatally injured a motorcyclist.

The police arrived and based upon the nature of the accident and nothing more, compelled Mr. Wicklund to provide a urine sample for drug testing. The police did not observe Mr. Wicklund exhibit any indication of drug or alcohol consumption. But it was the policy of the Plymouth Police Department to test a driver whenever there is the possibility of criminal vehicular homicide.

The urine test result revealed the presence of amphetamine and methamphetamine and as a result, Mr. Wicklund was charged with Criminal Vehicular Homicide.

I moved, in the district court, to suppress the results of the urine test arguing that the police lacked probable cause to obtain a urine sample from Mr. Wicklund. The district court held that the results were admissible because the police had probable cause to believe that the crime of criminal vehicular operation had occurred and that obtaining a blood or urine sample would aid in the prosecution of the crime.

I subsequently appealed the district court's decision and Minnesota Court of Appeals agreed with my contention that there was nothing specific to Mr. Wicklund that would justify a search of his bodily fluids.

In its opinion, the Court of Appeals noted, "The State can justify the warrantless testing of a driver's body fluids if the officer who took the sample had probable cause to believe both (1) that the driver committed the crime of criminal vehicular operation and (2) that the administration of the test would aid in the prosecution of that crime. State v. Lee, 585 N.W.2d 378, 381 (Minn. 1998) citing State v. Speak, 339 N.W.2d 741, 745 (Minn. 1983). We interpret the second prong narrowly and hold that the state's showing is insufficient."

The Court went on the explain that, "Looking only to this language apart from the restraint of other search-and-seizure caselaw, police might mistakenly conclude that they may test any driver involved in a bodily-injury traffic accident, because one might reason that in every case testing would be 'relevant' and 'aid in the prosecution' by either ruling out guilt or ruling in guilt. Because we do not interpret the Speak-Lee standard as overturning or eroding the traditional probable-cause standard for police searches, however, we must also apply the traditional standard here."

"Probable cause to search exists when, given the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. * * * The facts and circumstances known to the police to justify a warrantless extraction of body fluids, therefore, must support a reasonable belief that testing will disclose some amount of alcohol or drugs in the defendant's body. That amount need not be a level of intoxication, but the circumstances must be sufficient to indicate the likelihood of a positive test result."

In the present case, "Officer Anderson was aware of no circumstances indicating even non-intoxicating levels of chemical consumption. He noticed no alcoholic odor or signs of physical impairment, and he was aware of no facts suggesting that Wicklund had recent access to drugs or alcohol. The preliminary breath test indicated no alcohol use. This does not end the inquiry, because in Speak and Lee the supreme court declined to hold that police must observe customary physical indicia of intoxication before testing a driver's body fluids. They indicate that evidence of extreme misjudgment alone might provide the probable-cause basis for testing a driver for drug or alcohol use."

"All Officer Anderson knew when he required Wicklund to provide a urine sample was that Wicklund had been having trouble with his brakes, which ultimately failed, leading Wicklund to make a split-second decision either to ram the vehicle stopped ahead in his lane or to attempt to slow his truck and avoid a collision by some other means. Wicklund decided to try to slow the truck using friction against the median. Although in hindsight we clearly see that this decision was flawed because it averted one crash only to cause another, it is not the kind of extremely irrational choice that demonstrates that alcohol or a controlled substance affected Wicklund's judgment or driving ability. Had Wicklund failed to recognize the stopped car, or to apply his brakes, or to take evasive action to avoid a collision with the car in front of him, he might have demonstrated the kind of inattentiveness or gross misjudgment that supports involuntary testing without the observable indicia of intoxication. At worst, his late response to traffic conditions created a dilemma leading to his deadly split-second decision." * * *

"Although the state learned in retrospect that Wicklund in fact had consumed a controlled substance, we must consider only the circumstances know to Officer Anderson. On those circumstances, the district court was bound to exclude Wicklund's urine test results because the test was unconstitutional. The district court erred by denying Wicklund's motion to suppress the test results."

The Court of Appeals then reversed the conviction as all the relevant evidence has now been excluded.

Attached is the Media's Reaction to the Decision:

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2010-01-21T22:33:00.152-06:00

The Minnesota Case of the week is the Minnesota Supreme Court case of State v. Fleck, _N.W.2d _ (Minn. 1/21/2010).

Mr. Fleck is an alcoholic who managed to rack up 4 DWI's within 10 years making him eligible for felony prosecution. What is interesting about his current case is that while he made no attempt to stop drinking, he still managed to get convicted even though there wasn't any proof that he was ever driving or operating the motor vehicle. You would think that a man with his experience with the legal system would know about the "physical control" portion of the DWI statute, but perhaps he is just a slow learner.

The facts, as noted by the Court, are: "At 11:30 p.m. on June 11, 2007, police officers responded to a call from a concerned citizen who saw a man unconscious in her apartment complex parking lot in the driver's seat of a vehicle with its door open. The officers found Fleck asleep behind the wheel of his vehicle, which was legally parked in an assigned space at the apartment building where he lived. After being awakened by the officers, Fleck admitted to drinking 10 to 12 beers, but denied that he had been driving the vehicle. When asked why he was in the vehicle, Fleck initially told the officers that he had come to retrieve an item from the vehicle but later told the officers that he had come outside to sit in the vehicle. The officers concluded that Fleck had not recently driven the vehicle because the vehicle was 'cold to the touch', the lights were not on, and it did not appear that the vehicle had been running. However...the officers did observe a set of ignition keys in the vehicle console between the driver and passenger seats. The officers also concluded that Fleck was intoxicated based on observing Fleck's bloodshot and watery eyes, slurred speech, poor balance, disheveled look, and the smell of alcohol emanating from him. Subsequent testing showed that Fleck had a blood alcohol concentration of .18" (Opinion p.1-2).

"Minnesota law provides that it is unlawful for 'any person to drive, operate or be in physical control of a motor vehicle' while under the influence of alcohol or with an alcohol concentration of .08 or more. Minn. Stat. § 169A.20, subd. 1(1), (5). The term 'physical control' is more comprehensive than either the term to 'drive' or to 'operate'."

In Fleck, the Court noted that, "physical control is meant to cover situations when an intoxicated person, is found in a parked vehicle under circumstances in which the vehicle, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property. State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992). Thus a person is in physical control of a vehicle if he has the means to initiate any movement of that vehicle, and he is in close proximity to the operating controls of the vehicle. Id."

The Fleck opinion goes on to state, "the purposes underlying the offense of being in physical control of a motor vehicle while under the influence is to deter intoxicated persons from getting into vehicles except as passengers and to act as a preventive measure to 'enable the drunken driver to be apprehended before he strikes' (citation omitted). The offense, however, is not intended to cover situations in which an intoxicated person is a passenger, having relinquished control of the vehicle to a designated driver." (emphasis added).

The Court notes that "mere presence in or about the vehicle is insufficient to show physical control; it is the overall situation that is determinative." The factors to be considered in determining whether a person is in physical control of a motor vehicle include: "the person's location in proximity to the vehicle; the location of the keys; whether the person was a passenger in the vehicle (which from the court's language above would give you a free pass), who owned the vehicle and the vehicle's operability." (Opinion p.5)

The Fleck Court then states that the "intent to operate" is not an element of the physical control DWI statute. (Opinion p.6) This statement appears to be inconsistent with the court's exemption of passengers from prosecution. A passenger is ensconced in the vehicle and is presumably in close proximity to the controls, the keys etc. But since a passenger, by definition, has no intent to drive the vehicle, they are exempt from prosecution even though "intent to drive or operate" is not an element of physical control.

I do not disagree that passengers should be exempt from prosecution. After all, drunks have to get home somehow. And if you have the foresight to take a cab or obtain a designated driver then you should not be subject to prosecution, if say, your driver stops at the local Quik Trip and leaves you in the front seat of the vehicle with the motor running while he peruses the late night delicacies available at all 24 hour markets! Why? Because you as a passenger had absolutely no intent to drive or operate the motor vehicle.

So if the "lack of intent" serves to protect the passenger, why isn't that defense available to those whose status within the vehicle is less clear. Say perhaps Mr. Fleck, who only went to the vehicle to retrieve an item or to simply enjoy the pleasure of the vehicle's rich corinthian leather. If the jury does not buy the defendant's story; that's fine. But the intent of the party should be a factor in the Supreme Court's analysis of the totality of the circumstances creating "physical control".

MORAL OF THE STORY: If you are drunk, never get in a motor vehicle unless you are a passenger with proof of a designated driver.

F.T. Sessoms, Minnesota DWI Attorney

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2010-01-19T21:28:00.003-06:00

The Minnesota Case of the week is State v. Bacigalupo, an unpublished decision from the Minnesota Court of Appeals (issued January 19, 2010). In Bacigalupo, the Minnesota Court of Appeals held that an individual may be convicted and sentenced for both a Felony DWI and the offense of Driving After Cancellation.

Minnesota Statute § 609.035 provides that an individual can be convicted of only one offense arising out of the same transaction or occurrence. So for example, if you are stopped for speeding, running a stop sign or some other traffic offense and are subsequently arrested for DWI as the result of the traffic stop, you can only be convicted of one offense arising out of your driving conduct.

There is, however, an exception for a "license status" offense. So if your license is suspended, revoked or cancelled, at the time you commit the DWI, you can be convicted and sentenced for both the DWI and the "license status" crime. The theory is the license status crime is an ongoing offense and is not dependent upon, or otherwise related to, the decision to commit a DWI.

F.T. Sessoms, Minnesota DWI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2009-12-17T15:12:00.012-06:00

The Minnesota DWI Case of the Week is: Laase v. One 2007 Chevrolet Tahoe. In Laase, the Minnesota Supreme Court upended existing case law and held that the "innocent owner defense" of the DWI vehicle forfeiture statute does not apply in the case of a jointly held vehicle where one of the joint owners is also the defendant offender causing the forfeiture of the vehicle.

David and Jean Laase were a fine married couple who belonged to their local country club. David, after playing golf, headed home leaving his wife behind at the club with one of their jointly owned vehicles. Jean Laase remained at the club to play in a golf league event.

Mr. Laase did not observe his wife consume any alcohol and had no knowledge of her activities after he left the club. At approximately 1:00 a.m., David Laase received a call from his wife stating that she had been arrested for a DWI. The current offense and the driving record of Jean Laase qualified the jointly held vehicle for forfeiture under the Minnesota DWI forfeiture statute.

David Laase challenged the County's seizure of the vehicle by making a Demand for Judicial Determination pursuant to Minn.Stat. § 169A.63. After a hearing, the District Court decided that the vehicle was not subject to forfeiture because Mr. Laase had demonstrated that he was an "innocent owner" under Minn.Stat. § 169A. 63, subd. 7(d).

The County appealed the decision but the Court of Appeals affirmed the District Court. So far, so good for Mr. Laase!!

The County then Petitioned for Further Review to the Minnesota Supreme Court and alas, in a decision dated 12/17/09, the Minnesota Supreme Court reversed.

In its opinion, the Minnesota Supreme Court noted:

"The question presented in this case is whether the innocent owner defense provided for in Minnesota‘s vehicle forfeiture statute, Minn. Stat. § 169A.63, subd. 7(d), applies to prevent forfeiture of the Laases‘ vehicle. Under this defense:

A motor vehicle is not subject to forfeiture under this section if its owner can demonstrate by clear and convincing evidence that the owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the owner took reasonable steps to prevent the use of the vehicle by the offender.Minn. Stat. § 169A.63, subd. 7(d).

Each party argues that the plain language of subdivision 7(d) supports its position. The County argues that the innocent owner defense does not apply because both owners were not innocent. Mr. Laase argues that, because he is an owner and innocent, the defense is available."

The Minnesota Supreme Court went on to note:

"The parties appear to agree that the innocent owner defense in the vehicle forfeiture statute, Minn. Stat. § 169A.63, subd. 7(d), is unambiguous. The parties disagree, however, over whether all owners of the vehicle must be innocent in order for the defense to apply. The statute is written in the singular, providing that the defense is available if the vehicle‘s owner demonstrates innocence. But the County contends that we should rely on the canon in which the legislature has stated that the singular includes the plural. Minn. Stat. § 645.08(2) (2008). With owner construed as ‘owners” in subdivision 7(d), the County argues it is clear that the defense does not apply to this case because both “owners” were not innocent."

In a 4 to 3 decision, the Minnesota Supreme Court bought the county's argument and held that "owner" means "owners" and since both "owners" are not "innocent" the innocent-owner defense does not apply to a jointly held vehicle where one of the owners is the defendant/offender.

Great. So in other words, a perfectly innocent individual must now suffer an economic loss; the innocent must lose their equity in the property if they hold it jointly with someone who happens to commit a crime. I respectfully submit that the Supreme Court's decision is just not fair.

I always thought that the sins of the father shall not be visited upon the son. But I guess that does not apply to a husband and wife.

Moral of the Story: Don't drink and drive or own property with anyone who does!!

F.T. Sessoms, Minnesota DWI Attorney

2009-12-16T08:35:00.000-06:00

The following chart summarizes the cases in which the vehicle is subject to forfeiture:

Chemical Test	Prior Record (Prior means a previous DUI or alcohol related license revocation)	Vehicle Forfeiture
.20 or more	With one prior within the past 10 years	Yes
Refusal	With one prior within the past 10 years	Yes
.08 with child endangerment	With one prior within the past 10 years	Yes
Refusal with child endangerment	Without any priors	Yes
.08	With two or more priors within the past 10 years	Yes
.08 or refusal	With a "B" card or driving drunk while license has been previously cancelled as "inimical to public safety".	Yes

Minnesota DWI Lawyer Blogs on Minnesota DWI: Minnesota's Ignition Interlock Program

2009-12-10T12:29:00.016-06:00

Minnesota has an Ignition Interlock Program for people who have received a DWI offense. The ignition interlock is a device that is installed in a vehicle and is designed to measure an individual's alcohol concentration level. If the individual has been drinking, the device will not allow the vehicle to start. Individuals with multiple DWI offenses should join the interlock program as it allows most offenders (i.e. up to 6 prior offenses) to get at least a work permit within only 30 days of the offense!

The costs of the program are estimated by the Department of Public Safety to be as follows:

Estimated costs of getting your license reinstated (required whether or not you participate in the Ignition Interlock Program)

Driver’s license reinstatement fee: $680.00 Driver’s license exam fee: $24 – Cost may depend on type of license Special registration plates: $ 50.00 (Not always required)

Estimated costs of participating in the II Program (varies by vendor)

Installation fee: $35.00 -$100.00 Monthly maintenance fee: $60.00 - $125.00 Lockout fee: $35.00 - 50.00 Removal fee: $25.00 - 50.00 Switch Vehicle Fee – $55.00

Below is the eligibility table, published by the Minnesota Office of Traffic Safety, for individuals with multiple DWI offenses on their record. As you can see, most people will qualify for a driver's license as long as they are willing to abide by the terms and conditions of the interlock program.

Program Elgibility Table height="500" width="100%" > value="http://d1.scribdassets.com/ScribdViewer.swf?document_id=23941981&access_key=key-ktr5i4fvjjmaeu4it7y&page=1&version=1&viewMode=list">

Any eligible individual wishing to participate in the

Minnesota Ignition Interlock Program must sign the

attached agreement:

Ignition Interlock Participation Agreement height="500" width="100%" > value="http://d1.scribdassets.com/ScribdViewer.swf?document_id=23958246&access_key=key-17vmfzf61l176ggrfok7&page=1&version=1&viewMode=list">

Possession of Bong Juice is a Crime

2009-10-22T23:13:00.003-05:00

The Minnesota Supreme Court said today that if the water in your bong tests positive for a controlled substance, you can be prosecuted for possession of said bong juice. Since the bong water weighed 37.17 grams, the Defendant's conviction for First Degree Possession was affirmed. Yikes! I guess that will teach the Defendant to do the dishes!!!

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota Case

2009-09-01T13:30:00.017-05:00

The Minnesota DWI Case of the Week is: State v. James Peters, (Unpublished Minn.App. 9/1/2009). The case is interesting because it stands for the proposition that if you are going to get arrested for DWI you may as well lie to the cops because you can't get in any more trouble!

In Peters, the Defendant was stopped for erratic driving and when the officer approached Defendant's vehicle, Mr. Peters told the deputy, "Don't worry about this, the Department of Justice will be here shortly and this will all be taken care of." [so whenever ever you get pulled over, be sure to contact the Attorney General for the United States, Eric Holder!!!]

The deputy asked for identification and the Defendant replied that he didn't have any but he orally identified himself as "Daniel John Peters, born May 19, 1979" . (i.e. his brother). After failing field sobriety tests, the Defendant was placed under arrest for DWI. A subsequent search of his vehicle revealed the presence of the Defendant's Wisconsin license establishing his true identity as "James Christian Peters."

The Defendant had one outstanding warrant at the time of his arrest.

The Defendant was subsequently convicted of DWI and providing False Information to a Police Officer. On appeal, the Minnesota Court of Appeals threw out the False Information conviction, reasoning:

"Minnesota law 'allows multiple convictions for different incidents (counts) arising out of a single behavioral incident, but prohibits multiple sentences for conduct that is part of a single behavioral incident.' (citations omitted). When a single behavioral incident results in the violation of multiple criminal statutes, the offender may be punished only for the most severe offense. (citations omitted). This rule avoids exaggerating the criminality of the defendant's conduct and makes both punishment and prosecution commensurate with culpability."

"The determination of whether multiple offense are part of a single behavioral act ... involves an examination of all the facts and circumstances. (citation omitted). In making this determination, a court 'must consider whether the offense (1) arose from a continuous and uninterrupted course of conduct, (2) occurred at substantially the same time and place, and (3) manifested an indivisible state of mind, or were motivated by a single criminal objective'." (citation omitted).

The defendant argues that he gave the false information to law enforcement to avoid apprehension for DWI and that the state has not met its burden to prove otherwise. The State argues that the defendant gave false information not to avoid apprehension for DWI, but to avoid being arrested on an outstanding warrant.

The Court of Appeals noted that while there is "ample and contradictory case law addressing the problem of ascertaining a defendant's motivation," the Minnesota Supreme Court case of State v. Gibson, 478 N.W.2d 496, (Minn. 1991) appears to settle the issue.

In Gibson, the defendant was convicted of criminal vehicular operation resulting in injury and leaving the scene of an accident. The Supreme Court vacated the lesser of the two sentences, concluding that the defendant, "committed the felonious act of leaving the scene of an accident in part to avoid being apprehended for any crime committed in connection with the accident". Id at 497.

The Court of Appeals in Peters then held that while, "this is a close case" ... "we conclude that [defendant's] offenses constituted a single behavioral incident". Defendant's "provision of a false name and date of birth to avoid being arrested for DWI may have been misguided and futile, but the state has not met its burden to show that his desire did not serve, in part, as motivation for" defendant.

The Court of Appeals, therefore, vacated the conviction for False Information to a Police Officer.

Moral of the Story: IF YOU ARE IN FOR A PENNY, YOU MAY AS WELL BE IN FOR A POUND!

F.T. Sessoms, Minnesota DWI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota Case

2009-08-25T10:42:00.011-05:00

The Minnesota DWI Case of the Week is State v. Beall, _ N.W.2d. _ (Minn.App. 8/23/09). Beall is a pretrial appeal by the State where it challenged the District Court's ruling that the stop of the defendant's vehicle for an inoperable center brake light did not constitute a reasonable articulable suspicion of a violation of the law.

The defendant argued at the suppression hearing that the stop of his vehicle was not valid because his vehicle was equipped with two working stop lights as required by Minn. Stat. § 169.57, subd. 1(a)(2006). The District Court agreed with the defendant concluding that, "because Beall's vehicle had two working brake lights as required by Minn. Stat. § 169.57, subd. 1 (a), the inoperable third brake light did not give [the officer] a reasonable articulable basis to stop the vehicle". Id. at _.

On Appeal the Appellate Court observed, "Generally, if an officer observes a violation of a traffic law, no matter insignificant the traffic law, that observation forms the requisite particularized and objective basis for conducting a traffic stop". Id. The Court of Appeals then noted, "While we agree with the district court that such a vehicle would not be operated in violation of Minn. Stat. § 169.57, subd. 1(a), the district court failed to consider that Minn. Stat. § 169.57, subd. 3(a) requires that '[w]hen a vehicle is equipped with stop lamps or signal lamps, such lamps shall at all times be maintained in good working condition. Minn. Stat. § 169.47, subd. 1 (2006), provides, in relevant part, that '[i]t is unlawful ... for any person to ... fail to perform any act required under this chapter.' A vehicle with an inoperable center brake light is operated unlawfully in violation of Minn. Stat. § 169.57, subd. 3(a). Observation of such a violation gives rise to objective, reasonable, articulable suspicion justify a traffic stop. " Id. (Emphasis the court's).

The Minnesota Court of Appeals rejected, "...as without merit Beall's assertion that 'such lamps' as used in section 169.57, subd. 3(a), refers only to two statutorily required lamps: the provision unambiguously applies to all lamps with which a vehicle is equipped. And, the provision in Minn. Stat. § 169.57, subd. 4, prohibiting certain alterations and installations to federally required center brake lights, 'if the alteration or installation alters or obscures any portion of the lamp or affects the intensity of light emitted,' demonstrates that the legislature is aware of the importance of operable, unaltered center brake lights." The Court of Appeals then held that the district court erred by holding that the stop was not justified.

Moral of the Story: When it comes to brake lights, if you got them, you better flaunt them!

F.T. Sessoms, Minnesota DWI Attorney

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota Case

2009-08-18T19:24:00.010-05:00

The Minnesota DWI Case of the Week is: Horarik v. Commissioner of Public Safety, (Unpublished 8/18/2009 Minn. App.).

Mr. Horaik was arrested for a DWI and submitted to a urine test. The laboratory analysis of the urine sample showed an alcohol concentration level of .12.

At his license revocation hearing, Mr. Horaik challenged the constitutionality of Minn. Stat. § 634.15, subd. 1(a)(1), which allows into evidence the laboratory test result without any antecedent testimony from the chemist who performed the test. Mr Horaik argued, among other things, that the laboratory test evidence violated his right of confrontation guaranteed by the Sixth Amendment to the United States Constitution.

In Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364 (2004), the United States Supreme Court held that the Confrontation Clause encompasses witnesses' out-of-court statements when those statements are "testimonial" in nature. A laboratory test result offered in a criminal trial against a defendant meets the Crawford definition of a testimonial statement. See, Melendez-Diaz v. Massachusetts, 577 U.S. _, _, 129 S.Ct. 2527, 2532 (2009); State v. Caulfield, 722 N.W.2d 304, 310 (Minn. 2006).

The Court of Appeals, however, ruled against Mr. Horarik stating, " The significant distinction, however, is that implied-consent proceedings unlike the criminal proceedings governed by the Crawford rule, are civil in nature." And the "...due process rights associated with criminal trials do not apply. Horarik was not entitled to the protections of the Confrontation Clause in his implied-consent hearing, and his argument for relief on that basis fails."

F. T. Sessoms, Minnesota DWI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota Case

2009-08-11T19:04:00.012-05:00

This week's featured Minnesota DWI case is State v. Casey, _ N.W.2d _ (8/11/2009 Unpublished). It is an unpublished decision from the Minnesota Court of Appeals and is noteworthy only because it gives a fairly good recitation of what constitutes a "seizure" of the person for purposes of the Fourth Amendment.

In Casey, the defendant had left his vehicle and was walking when he encountered the police. The police began talking to the defendant and he admitted that he had consumed too much to drink. The police subsequently gave the defendant some field sobriety tests and placed him under arrest for DWI.

At trial, the defendant moved to dismiss the charges on the grounds that the evidence was obtained as the result of an illegal seizure of his person.

The Minnesota Court of Appeals affirmed the conviction noting:

"The United States and Minnesota Constitutions prohibit unreasonable search and seizure by the government. U.S. Const. Amend IV, Minn. Const. Art. 1 § 10. Not all contact between citizens and police officers constitutes a seizure. In re Welfare of E.D.J., 502 N.W.2D 779, 781 (MINN. 1993). A seizure occurs 'when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.' Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879 n.16 (1968). A 'person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' United States v. Mendenhall, 446 U.S. 544, 554; 100 S.Ct. 1870, 1877 (1980).

Circumstances that might indicate a seizure occurred include: (1) the threatening presence of several officers; (2) an officer's display of a weapon; (3) the officer physically touching the citizen; or (4) the officer's use of language or tone of voice indicating that compliance might be compelled. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

It is not usually a seizure for an officer to walk up to a person or an already stopped vehicle in a public place. Cobb v. Comm'r of Pub. Safety, 410 N.W.2d 902, 903 (Minn.App. 1987); See also, State v. Colosimo, 669 N.W.2d 1, 4 (Minn. 2003) (holding that initial interaction where officer was merely conversing with appellant did not amount to a stop or seizure); Norman v. Comm'r of Pub. Safety, 409 N.W.2d 544, 545 (Minn.App. 1987) (holding that officer did not seize appellant by walking up to him while he was standing outside his vehicle). So long as a reasonable person would feel free to terminate the encounter and law enforcement does not induce cooperation by coercive means, a seizure does does not occur when an officer asks for identification or poses questions of a person in public. United States v. Drayton, 536 U.S. 194, 201; 122 S.Ct. 2105, 2110 (2002). In contrast, "it is likely to be a seizure if a person is ordered out of a vehicle, or the police engage in some other action or show of authority which one would not expect between two private citizens." State v. Day, 461 N.W.2d 404, 407 (Minn.App. 1990)." Casey, at p.4-5 (slip opinion).

F.T. Sessoms, Minnesota DWI Attorney

Minnesota DWI Lawyer Blogs on Minnesota DWI: Urine Tests are Unreliable-The Pooling Effect.

2009-08-07T08:48:00.003-05:00

A number of police departments in Minnesota have stopped using the Intoxilyzer 5000 EN as the primary testing method for people arrested for DWI. The police have stopped using the Intoxilyzer machine because the software used to run the machine must be disclosed to the defense and the State has had problems complying with the request.

The two alternative authorized methods for testing individuals arrested for DWI are blood or urine. This blog article discusses the inherent unreliability of the Minnesota Urine Testing Procedure.

THE MINNESOTA URINE TESTING PROCEDURE IS INHERENTLY UNRELIABLE:

In State v. Kolander, 236 Minn. 209, 221-22, 52 N.W.2d 458, 465 (1952), the Minnesota Supreme Court adopted the standard for the admissibility of evidence obtained from new scientific techniques as set forth in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), which requires “general acceptance in the particular field in which [the scientific principle or discovery] belongs.” Frye, 293 F. at 1014. In State v. Mack, 292 N.W.2d 764, 768 (Minn.1980), the Minnesota Supreme Court subsequently held that “the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.” The Court stated that the particular evidence must have a foundation that is scientifically reliable.

As a result of Frye and Mack, a two-pronged standard has emerged in Minnesota that must be satisfied before scientific evidence may be admitted:

First, a novel scientific technique that produces evidence to be admitted at trial must be shown to be generally accepted within the relevant scientific community;

Second, the particular evidence derived from the technique and used in an individual case must have a foundation that is scientifically reliable. Mack at 819; Goeb v. Tharaldson, 615 N.W.2d 800, 810 (Minn.2000) (reaffirming adherence to Frye-Mack standard after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Put another way, the Frye-Mack standard asks first whether experts in the field widely share the view that the results of scientific testing are scientifically reliable, and second whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls. State v. Jobe, 486 N.W.2d 407, 419 (Minn.1992).

In Minnesota, the urine test result is not reliable as the police do not obtain a proper sample for analysis. The police have received no instruction in the proper procedure for obtaining urine samples. By not requiring a first void, the officer will obtain a “pooled void” urine sample which is not scientifically valid for testing.

There is no scientific literature that in any way supports an un-void or "pooled-void" urine sample as a proper sample for alcohol testing.

There are two points of view in the scientific literature and in the scientific community regarding urine testing for alcohol:

1. The majority view is that urine is improper at all as a sample because it is too hard to preserve. It is not a good sample period.

2. The minority view is that it is okay to use a urine sample if one voids the bladder first and then collect a “midstream” void. Both views agree that you can’t use a pooled sample.

When a person stops drinking, the ethanol is continuously being removed from the individual's blood by their metabolism. The ethanol ends up in a person’s urine, which is a waste product excreted by the kidneys. The urine, containing the ethanol, accumulates in the bladder until the person voids. Little or no oxidation of the ethanol occurs in the bladder and can result in abnormally high urine alcohol concentrations being obtained from the first void. Or to quote from A.W. Jones:

Minnesota Statute § 169A.03, subdivision 2, defines alcohol concentration for purposes of the DWI Statute in 3 ways:

1. the number of grams of alcohol per 100 milliliters of blood;

2. the number of grams of alcohol per 210 liters of breath;

3. the number of grams of alcohol per 67 milliliters of urine.

The number of grams of alcohol per 210 liters of breath is generally accepted as being the equivalent of the alcohol concentration in a person’s blood. The number of grams of alcohol per 67 milliliters of urine is also generally accepted as being the equivalent of the alcohol concentration in a person’s blood. It, therefore, appears that the Minnesota Legislature intended that the alcohol concentration levels for breath and urine be the rough equivalent to that contained in a person’s blood.

This legislative intent is defeated when a pooled urine sample is used for testing.

If the Defendant has not urinated prior to giving the urine sample to the police, the pooling effect of alcohol in the bladder will cause the test result to be an inaccurate and unreliable measure of the Petitioner’s actual concentration level.

“The proponent of a chemical test must establish that the test is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability.” Schultz v. Commissioner of Public Safety, 393 N.W.2d 373 at 375 (Minn.App. 1986); citing State v. Dille, 258 N.W.2d 565, 567 (Minn.1977). “After a prima facie showing of trustworthy administration, it is incumbent on the petitioner in an implied consent proceeding to suggest reasons why the test was untrustworthy.” Schultz, supra; citing Tate v. Commissioner of Public Safety, 356 N.W.2d 766, 768 (Minn.Ct.App. 1984). The burden of persuasion regarding the accuracy of the test result remains with the proponent of the evidence. Dille, supra; at 567.

In cases involving urine test results, the scientific literature demonstrates that the “pooling effect” upon the urine sample renders the test result an unreliable measure of an individual’s alcohol concentration level. To use this unreliable test result to sustain the revocation of an individual’s license, or obtain a criminal conviction, would subvert the Legislature’s intent that the three testing methods yield the same result!!

F.T. Sessoms, Minnesota DWI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota Cases

2009-07-28T13:52:00.019-05:00

This week we have two cases that merit some attention:

The first case is City of Crystal v. N.G.K.
It is a published decision of the Minnesota Court of Appeals (July 28, 2009 No. A08-1437) involving Mr. N.G.K. 's attempt to expunge his 1997 gross misdemeanor conviction for theft.

The District Court, after an evidentiary hearing, ordered: (1) that all records possessed by the judicial branch be sealed, and (2) ordered that with respect to the records possessed by the executive branch (i.e. the police department and BCA, etc.) the court ordered that those records be sealed "to the extent that no records are public regarding any pleas, findings, convictions, warrants issued by the Court, or any other data generated as a part of judicial proceedings".

The City of Crystal appealed alleging that the district court erred in ordering the expungement of the records possessed by the judicial branch and further erred by ordering the expungement of records possessed by the executive branch.

The Court of Appeals noted that a district court may exercise its inherent authority to expunge criminal records in two situations. First, a court may order expungement to prevent a serious infringement of a petitioner's constitutional rights. Second, a court may use its inherent authority if "expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing and monitoring an expungement order." Since N.G.K did not allege a constitutional violation, the Court of Appeals evaluated only the second rationale for expungement pursuant to a court's inherent authority.

The Court of Appeals noted, "When determining whether the benefit to a petitioner of expungement is commensurate with the disadvantages to the public, a district court should consider five factors:

(a) the extent that a petitioner has demonstrated difficulties in securing employment or housing as a result of the records sought to be expunged; (b) the seriousness and nature of the offense; (c) the potential risk that the petitioner poses and how this affects the public's right to access the records; (d) any additional offenses or rehabilitative efforts since the offense, and (e) other objective evidence of hardship under the circumstances."

The Court of Appeals held that the district court, after applying the above 5 factor balancing test, did not err in ordering the expungement of the records held by the judicial branch.

The records held by the executive branch are a different story, however. The Minnesota Court of Appeals held that the recent Minnesota Supreme Court case of State v S.L.H., 755 N.W.2d 271 (Minn. 2008) controls to prohibit the expungement of records held by the executive branch.

Under the Minnesota Government Data Practices Act, data relating to a person's criminal conviction are classified as public for 15 years following the discharge of the sentence imposed for conviction. Minn. Stat. § 13.87, subd. 1(b) (Supp. 2007). The conviction of the petitioner in S.L.H. was classified as public, which prompted the Supreme Court to say, "we fail to see how the legislature's policies could be accommodated if a court were to expunge records held outside the judicial branch that the legislature has classified as public." 755 N.W. 2d at 279. The Supreme Court then reasoned, "the expungement of ...criminal records held outside the judicial branch would effectively override the legislative determination that some of these records be open to the public."

The Minnesota Court of Appeals noted in the current case that while the Supreme Court has not issued a "bright line" rule concerning records held by the executive branch, "deference to a legislative determination that records of criminal convictions should be public, rather than expunged or sealed, is a recurring theme in several supreme court decisions". (citations omitted).

The Court of Appeals reversed the district court expungement order concerning the records possessed by the executive branch and it appears a safe bet that no expungement of executive branch records will ever be ordered pursuant to a Court's inherent authority until at least 15 years have passed from date of discharge from sentence. In other words, until the records are no longer classified as "public" no expungement of executive branch records will be allowed.

The second case is State v. Kessler, (Unpublished, 7/28/2009 Minn.App.) wherein Mr. Kessler appealed his conviction for Third Degree DWI. The aggravating factor elevating Mr. Kessler's charge from a 4th degree to a 3rd degree DWI was the presence of a child under the age of 16 in his vehicle at the time of the offense.

At trial, Mr. Kessler's attorney stipulated to the fact that the vehicle contained the defendant's "nearly 6 year old daughter". The stipulation was accepted by the trial court and the defendant was duly convicted of 3rd degree DWI.

On appeal, Mr. Kessler asserted that he did not personally waive his right to a jury trial on the underage-child aggravating factor and argued that he was therefore entitled to either a new trial or a reduction of his conviction from 3rd degree to 4th degree DWI.

The Court of Appeals agreed that in order for a stipulation to be valid, the defendant must personally waive his right to a jury trial on the aggravating factor and, instead of ordering a new trial, directed that the defendant be sentenced to 4TH DEGREE DWI.

THE MORAL: If you mess up the stip, you must acquit!!!

Fabulous!!

F.T. Sessoms, Minnesota DWI Attorney

Minnesota DWI Lawyer Blogs on Minnesota Plate Impoundment Law

2009-07-27T18:49:00.013-05:00

The police will remove and destroy the license plates of any vehicle involved in a Minnesota DWI if the driver has one or more of the following "aggravating factors":

1. Has a prior DWI conviction or implied consent license revocation within 10 years of the current offense, or;

2. Has an alcohol concentration level of .20 or more, or;

3. Has a "B" card which prohibits the driver from consuming any alcohol at any time, or;

4. Has a child under the age of 16 in the vehicle at the time of the violation or;

5. Is driving the vehicle after the violator's license has been canceled as "inimical to public safety".

The plate impoundment applies not only to the vehicle involved in the current offense but to all vehicles owned, leased, or registered to the violator. If the vehicle is jointly registered to the violator and another person, the plate impoundment order applies to require that the plates of the jointly held vehicle be surrendered or destroyed.

The plate impoundment order will be issued by the police on the night of the violator's arrest even if the police do not have a test result indicating the violator was over the legal limit. For example, if the violator submits to a blood or urine test, the police will not receive the results of said test for several weeks or months. Under the Minnesota Plate Impoundment Law, (Minn.Stat. §169A.60), however, the police are only required to have "probable case "to believe that a violation of the dwi law has occurred and the violator has one of the aggravating factors listed above.

Since no license revocation will occur (for non "B" card violators) until the test results are known, this can lead to the absurd situation where the violator is perfectly legal to drive but has lost all the plates on his vehicles simply because he was arrested for a DWI with an aggravating factor.

The minimum plate impoundment term is for a period of one year. This can lead to additional absurd results as the license revocation period for a 2nd offense DWI or a first time over .20 or a first time DWI with underage child (factors 1, 2,and 4 above) in the vehicle is only 6 months!! A violator can be perfectly valid to drive after six months but still be subject to the vagaries of the plate impoundment law.

Specially coded license plates (i.e. "Whiskey Plates") may be obtained for the vehicle during the plate impoundment period if:

1. A member of the violator's household has a valid driver's license, or;

2. The violator has a valid license or has been relicensed or;

3. The owner of the vehicle is not the violator and has a valid license. or;

4. The violator is the owner but has a substitute driver with a valid license to operate the vehicle.

In State v. Henning, 666 N.W.2d 379 (Minn. 2003) the Minnesota Supreme Court held that the Minnesota statute which authorized stops of motorists based solely on the presence of these specially coded plates was unconstitutional. The Court held that the statute illegally eliminated the constitutional safeguard requiring police officers to have a reasonable articulable suspicion of criminal activity before stopping a motorist.

So if the police under Henning are no longer allowed to make a stop of a vehicle simply because it is wearing "Whiskey Plates", then what purpose does the plate impoundment law serve other than to brand the occupants of the vehicle with the scarlet letters of DWI?

F.T. Sessoms, Minnesota DWI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: Why I Did Not Receive a Ticket for the Underlying Offense Leading to My DWI Arrest

2009-07-23T19:42:00.011-05:00

I am often asked by clients arrested for DWI, "Well if the police stopped me for speeding (or running a stop sign, failure to yield,etc.), why didn't he give me a ticket for speeding (etc.)"

The short answer is the officer can't because the client could then pay the speeding ticket and the DWI would have to be dismissed.

This recently happened in one of my cases where the client was stopped for "failure to signal a turn" and was subsequently arrested for DWI. The client received a separate ticket for the failure to signal his turn. The client promptly paid the ticket and I then moved to dismiss his DWI case pursuant to Minnesota Statute Section 609.035.

Minnesota Statute Section 609.035, subdivision 1, states:

“Conduct; multiple crimes; chargeable for one offense. Except as provided in subdivisions 2, 3, 4, and 5, and in sections 609.251, 609.585, 609.21, subdivisions 3 and 4, 609.2691, 609.486, 609.494, and 609.856, if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.”

In State v. Johnson, 141 N.W.2d 517 (Minn. 1966), the Defendant was stopped for crossing the centerline and was subsequently arrested for driving while intoxicated. The Defendant was allowed to plead guilty to crossing the centerline.

The Defendant in Johnson then moved to dismiss the DWI charge upon the ground that following his conviction for driving over the centerline, any further prosecution for conduct constituting more than one offense was barred by Minn.Stat. § 609.035. The Supreme Court agreed in Johnson that the crossing the centerline and the DWI arose from the same behavioral incident for purposes of Minn.Stat. § 609.035 stating:

“Although the statute is commonly referred to as one prohibiting double punishment, a reading of it compels a recognition that it contains two prohibitions, one against double punishment and the other against serialized prosecutions for separate offenses similar to that afforded by our constitutional provision prohibiting placing an accused twice in jeopardy for the same offense. Conceivably, double punishment can arise where a person is convicted of two or more offenses following either one prosecution where the charges are stated as separate counts or two or more prosecutions where the charges are brought separately. The double-jeopardy prohibition can become applicable when a second prosecution is attempted following a conviction or acquittal upon a previous charge. In either case, the application of the prohibitions turns on the same determination-whether the ‘person's conduct constitutes more than one offense.’ Stated another way, a defendant can neither be punished nor prosecuted more than once where his ‘conduct constitutes more than one offense”.

In State v. Corning, 184 N.W.2d 603 (Minn. 1971), the defendant stopped at the scene of an accident but left without informing the other motorist of his name, address or vehicle registration number. The defendant was subsequently stopped by the police and charged with DWI.

In Corning, the Minnesota Supreme Court held that his acquittal of the separate charge of failure to leave his name, address and vehicle information at the scene of the accident barred his subsequent prosecution for driving under the influence under the statute prohibiting serialized prosecutions, Minn. Stat. § 609.035. See also, State v. Gibson, 478 N.W.2d 496 (Minn. 1991-Criminal vehicular operation and felony failure to notify police of personal injury accident arose from the same behavioral incident, thereby precluding imposition of separate sentences); State v. Krech, 252 N.W.2d 269 (Minn. 1977-Felony charges of Aggravated Assault must be dismissed where defendant plead guilty to petty misdemeanor traffic offenses arising out of the same behavioral incident); State v. Holcomb, _ N.W.2d _ (Unpublished Minn.App. 2004-“Because the DWI and Failure to Yield offenses arose from the same behavioral incident, subsequent prosecution on the DWI offense after appellant was convicted of failing to yield was barred by Minn. Stat. § 609.035)(A copy of the opinion is attached). As noted by the Court in Holcomb:

“An individual's conduct may constitute one offense when the “offenses occur at substantially the same time and place, arise from a continuous and uninterrupted course of conduct, and manifest an indivisible state of mind or coincident errors of judgment.” State v. Finn, 295 Minn. 520, 521, 203 N.W.2d 114, 115 (1972); see also State v. Johnson, 273 Minn. 394, 397-98, 141 N.W.2d 517, 520-21 (1966). In general, cases involving DWI and another driving or traffic offense have been held to constitute a single course of conduct. See, e.g., State v. Corning, 289 Minn. 382, 386, 184 N.W.2d 603, 606 (1971) (DWI and leaving scene of accident); State v. Gladden, 274 Minn. 533, 534, 144 N.W.2d 779, 780 (1966) (DWI and careless driving); Johnson, 273 Minn. at 397, 141 N.W.2d at 520 (DWI and driving over centerline). Cases holding that offenses were separate behavioral incidents generally include at least one licensing or regulatory offense. See, e.g., State v. Reiland, 274 Minn. 121, 124, 142 N.W.2d 635, 638 (1966) (driving after license revocation and criminal negligence); State v. Reimer, 625 N.W.2d 175, 177-78 (Minn.App.2001) (discussing cases).”

In the present case the failure to signal the turn offense and the DWI were a part of the same behavioral incident. See, Johnson, supra. The DWI charges had to be dismissed as further prosecution was barred by Minn. Stat. § 609.035.

The Judge agreed and the case was dismissed!

Minnesota DWI Lawyer Blogs on Minnesota Supreme Court's Denial of Further Review of the Source Code Issue!

2009-07-23T16:09:00.007-05:00

The State petitioned the Minnesota Supreme Court to reconsider its ruling in State v. Underdahl which ordered the State to produce the intoxilyzer source code used to convict people of exceeding the legal limit of .08.

On July 22, 2009, the Minnesota Supreme Court denied the State's motion for reconsideration. Yipee!!

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

2009-07-23T11:18:00.008-05:00

This week's featured Minnesota DWI/DUI case is (drum roll please):

State v. Omwega!!!
(Decided July 21, 2009)

There is good news and bad news in this case:

The Bad News:

The Minnesota Court of Appeals ruled, in this published decision, that the Sixth Amendment Confrontation Clause does not require the State to prove all of the underlying facts of an implied-consent license revocation beyond the existence of the revocation itself in order to use the revocation to enhance a charge of driving while impaired.

The Good News:

Citing State v. Mellett, 642 N.W.2d 779, 789 (Minn.App. 2002) , the Court in Omwega reaffirmed that the defense may collaterally attack the use of a prior revocation if the prior revocation was unconstitutionally obtained. As stated by the Court:

"To properly raise the constitutionality of a prior license revocation and shift the burden of proof to the state, an appellant must (1) promptly notify the state that [his] constitutional rights were violated during a prior license revocation; and (2) produce evidence in support of that contention with respect to each challenged [revocation]."

When the State seeks to use a prior conviction to enhance the current charge, it is well established that the prior conviction can be collaterally attacked. See, State v. Nordstrom, 331 N.W.2d 901 at 904 (Minn. 1983)(a prior conviction cannot be used to enhance where the prior conviction was the product of an uncounseled guilty plea and there was no showing of a waiver of the right to counsel); State v. Stuart, 360 N.W.2d 463 (Minn.App. 1985)(a prior conviction cannot be used to enhance where there is no factual basis on the record to support the prior plea); State v. Brown, 346 N.W.2d 187 (Minn.App. 1984)(A prior conviction cannot be used to enhance where the defendant was not informed of the penalty for the prior offense).

It would make no sense whatsoever to hold that a prior conviction, where a Defendant has appeared in Court and answered the charge, is subject to collateral attack but a license revocation, which automatically occurs upon a test failure or test refusal, is immune from collateral challenge. In State v. Mellet, 642 N.W.2d 779 (Minn.App. 2002), the Court recognized that an implied consent license revocation is subject to collateral attack and it is good to see the Court of Appeals reaffirm the Mellet holding in THIS WEEK'S FEATURED MINNESOTA DWI CASE!!

F.T. Sessoms, Minnesota DWI Attorney

Minnesota DWI Lawyer Blogs on the Minnesota Source Code Letter

2009-07-22T12:55:00.005-05:00

Since it will cost thousands of dollars and approximately 6 months to properly evaluate the software used to convict people using the Intoxilyzer 5000 EN, we have sent all of the Chief Judges of the Districts of Minnesota the attached letter asking that all criminal and civil cases be delayed pending the evaluation of the code.

Source Code Letter

Minnesota DWI Lawyer Blogs on Minnesota Intoxilyzer Source Code Settlement in United States District Court

2009-07-22T11:13:00.008-05:00

On July 16th the Federal District Court in Minnesota approved a settlement allowing individuals charged with DWI's in the state access to the source code, or software, used to run the intoxilzyer 5000 EN machine.

The problem with the settlement is that it requires that the source code be examined at the CMI plant (the manufacturer) in Kentucky. Since the costs of such an analysis will run into the thousands of dollars, this settlement is beyond the reach of most individuals charged with DWI.

I am proud to belong to the Minnesota Society for Criminal Justice (MSCJ). We are coordinating the efforts of the defense bar to retain experts to travel to Kentucky to review the source code as allowed under the terms of the settlement agreement. STAY TUNED!

State v CMI Order 7 16 09 Approving Settlement