Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Martinez (Decided June 17, 2024, Minnesota Court of Appeals, Unpublished) which stands for the proposition that prior DWI's cannot be proven by a written summary of existing conviction records.

In Martinez, the Defendant was charged with Second Degree DWI and the complaint alleged Mr. Martinez had two previous DWI convictions, making the current charge a gross misdemeanor.

Martinez had a jury trial. At the beginning of the trial, and outside of the jury’s presence, the prosecutor informed defense counsel and the district court that he intended to introduce a “summary” of Martinez’s prior convictions under rule 1006 of the Minnesota Rules of Evidence. During the trial, the prosecutor called a paralegal as a witness. The paralegal testified that she had requested information about Martinez’s prior convictions and received “[approximately 50 to 60 pages” of material. She identified exhibit 5 as “a summary of the criminal convictions that [she] requested for this case.”  The prosecutor then asked the paralegal, “Would you mind reading for the jury Number 1 and Number 2 on that document?” But defense counsel objected, and the district court sustained the objection. The prosecutor offered exhibit 5 into evidence. Over defense counsel’s hearsay objection, the district court admitted the exhibit which stated: "1. On July 10, 2018 Rosalio Martinez was convicted of DWI...in Steele County Court File Number 74-CR-18-837. 2. On September 28, 2018 Rosalio Martinez was convicted of DWI...in Steele County Court File Number 74-CR-18-1670".

The Defendant was convicted of Second Degree DWI and on appeal he argued that exhibit 5 constituted inadmissible hearsay and violated his constitutional right of confrontation. The Minnesota Court of Appeals agreed with the Defendant and reversed the conviction, stating:

" Both the United States and Minnesota Constitutions afford a criminal defendant the right “to be confronted with the witnesses against” the defendant. U.S. Const, amend. VI; Minn. Const, art. I, § 6; see also State v. Hull, 788 N.W.2d 91, 100 (Minn. 2010) (noting that confrontation claims are analyzed the same under the federal and state constitutions). These provisions are often referred to as the “Confrontation Clause.” The Confrontation Clause prohibits testimonial statements from being offered for the truth of the matter asserted when the defendant is unable to cross-examine the declarant. Anderson v. State, 830 N.W.2d 1, 9 (Minn. 2013) (citing Crawford v. Washington, 541 U.S. 36, 59 (2004)). An appellant alleging a violation of the Confrontation Clause must show that “the statement in question was testimonial, the statement was admitted for the truth of the matter asserted, and the [appellant] was unable to cross-examine the declarant.” Id.

"Turning to the first element of a Confrontation Clause violation—whether the evidence was a testimonial statement—the “critical determinative factor ... is whether it was prepared for litigation.” Caulfield, 722 N.W.2d at 309 (citing State v. Bobadilla, 709 N.W.2d 243, 250-51 (Minn. 2006) (“[T]he testimonial question turns on whether government questioners or declarants take or give a statement ‘with an eye toward trial.’”) State v. Scacchetti, 711 N.W.2d 508, 513 (Minn. 2006) (“[T]he central considerations are . . . whether either a declarant or government questioner is acting, to a substantial degree, in order to produce a statement for trial.”)). If a document is prepared “for authentication purposes” and not “for providing evidence in litigation,” it is nontestimonial. State v. Noor, 907 N.W.2d 646, 655 (Minn. App. 2018), rev. denied (Minn. Apr. 25, 2018)."

"Martinez argues that exhibit 5 is a testimonial statement because it was prepared for litigation. We agree. The record shows that the state prepared the summary of Martinez’s prior convictions to be used at trial as substantive evidence of those convictions. The paralegal for the prosecutor’s office testified that she obtained records concerning Martinez’s prior convictions. The summary—which includes a case caption—purports to be the state’s summary of those convictions. At trial, the state introduced the summary in evidence to prove the prior-conviction element of its case. Indeed, the summary was the only evidence of Martinez’s prior convictions."

"The state contends that the summary is a nontestimonial record “that authenticates other kinds of certified copies of public records,” as was the document at issue in our Noor decision. But we are not persuaded. In Noor, the state introduced a “certificate of order sent” into evidence—a document that certified the authenticity of a Department of Public Safety order revoking Noor’s driver’s license and confirming that the order had been mailed to Noor. Noor argued on appeal that the “certificate of order sent” was a testimonial document for the purpose of the Confrontation Clause. Id. at 650. We rejected that argument, determining that the document was nontestimonial because “(1) United States Supreme Court precedent suggests documents introduced for authentication purposes, instead of to prove a fact, are nontestimonial; (2) an examination of Minnesota caselaw reaches the same result; and (3) the certificate is duplicative of nontestimonial documents.” Id. at 654."

"Our rationale in Noor or does not apply here. The summary was not introduced to authenticate other evidence. It was introduced to prove a fact—that Martinez had prior qualifying convictions. Moreover, the summary was not duplicative of nontestimonial documents. The summary was the sole evidence of Martinez’s prior convictions presented at trial. Given these circumstances, the summary was testimonial. Accord Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009) (determining that affidavits reporting results of forensic analysis were testimonial because their “sole purpose . . . was to provide prima facie evidence of’ an element of the offense); State v. Jackson, 764 N.W.2d 612, 617-18 (Minn. App. 2009) (determining that a firearm trace report introduced to prove firearm ownership was testimonial), rev. denied (Minn. July 22, 2009); State v. Weaver, 733 N.W.2d 793, 799-800 (Minn. App. 2007) (determining that a lab report introduced to prove the cause of death in a murder trial was testimonial), rev. denied (Minn. Sept. 18, 2007); Caulfield, 722 N.W.2d at 307, 309 (determining that a lab report introduced to prove that a substance was cocaine in a drug-sale trial was testimonial)."

"The parties do not dispute that the remaining two elements of a Confrontation Clause violation occurred in this case—that the summary was offered as proof of Martinez’s prior convictions and that Martinez did not have an opportunity to cross- examine the declarant.  Because the summary was a testimonial document offered to prove the truth of the matter asserted, and Martinez did not have an opportunity to cross-examine the declarant, the admission of the summary in evidence violated Martinez’s constitutional right to confrontation. Thus, there was plain error."

"There is also no dispute that the erroneous admission of the summary affected Martinez’s substantial rights. To convict Martinez of second-degree DWI test refusal, the state was required to prove beyond a reasonable doubt that Martinez had “a qualified impaired driving incident” within ten years of his refusal. See Minn. Stat. §§ 169A.25, subd. 1(b) (“A person who violates section 169A.20, subdivision 2 . . ., is guilty of second- degree driving while impaired if one aggravating factor was present when the violation was committed.”) .03, subd. 3(1) (‘“Aggravating factor’ includes . . . a qualified prior impaired driving incident within the ten years immediately preceding the current offense.”) (2020). And the only trial evidence that Martinez had a qualified impaired driving incident was exhibit 5—the summary. There is a reasonable likelihood that the admission of the summary into evidence substantially affected the verdict. See Matthews, 800 N.W.2d at 634."

"Because the admission of the summary into evidence was plain error that affected Martinez’s substantial rights, Martinez has satisfied the first three elements of our plain- error standard of review. But before we address the error, we must determine whether doing so will “ensure fairness and the integrity of the judicial proceedings.” State v. Portillo, 998 N.W.2d 242, 255 (Minn. 2023) (quotation omitted)."

“‘[W]hen there is a reasonable likelihood that but for the . . . error,’ the result would be different,” affirming a conviction would “adversely affect the public’s confidence in the fairness and integrity of judicial proceedings.” Id. at 256 (quoting State v. Little, 851 N.W.2d 878, 886 (Minn. 2014)). Here, without the summary of Martinez’s convictions, the state would not have been able to satisfy an element of second-degree DWI test refusal. But for the error, the result of Martinez’s trial would have been different. We therefore conclude that reversing Martinez’s conviction and remanding for a new trial will “ensure fairness and the integrity of the judicial proceedings.” Id. at 255."

Moral Of The Story: Sometimes its best not to summarize.

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.

  

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Roth (Decided August 15, 2022, Minnesota Court of Appeals, Unpublished), which stands for the proposition that you can challenge a prior revocation if you can prove you were crazy during the entire 60-day challenge window.

In Roth, the Defendant was charged with Second Degree DWI as he had two prior offenses within the past ten years.  One of the prior offenses used to make the current offense a 2nd degree was a 2018 implied consent license revocation. The Defendant had been found not guilty of the related 2018 DWI charge because at the time of the DWI offense, Ruth’s mental illness had made him unable to understand the nature or wrongfulness of his behavior.

Ruth filed a motion to dismiss for lack of probable cause, arguing that the state’s use of the 2018 license revocation to enhance the severity of the charges violated his constitutional rights. Ruth contended that the district court’s ruling in the corresponding 2018 criminal case that he was not guilty by reason of mental illness created an inference that he was also incompetent during the 60-day judicial-review period for the revocation of his driver’s license. He further argued that, because he was unable to challenge the 2018 revocation due to his incompetence, the state’s use of the revocation to enhance the 2020 DWI charges violated his right to due process. 

The District Court denied the motion to dismiss and on appeal the Minnesota Court of Appeals agreed with the lower court noting:

"Under Minnesota law, the revocation of an individual’s driver’s license following an impaired-driving arrest may be used to enhance the severity of subsequent DWI charges. State v. Wiltgen, 737 N.W.2d 561, 569 (Minn. 2007)

***

"Designed to protect public safety, DWI-related driver’s-license revocations are civil proceedings in which the 60-day period for requesting judicial review is strictly construed, even when a delay in pursuing judicial review is not the driver’s fault. McShane v. Comm ’r of Pub. Safety, 377 N.W.2d 479, 481-82 (Minn. App. 1985)."

***

"Ruth acknowledges that he did not timely seek judicial review of his 2018 driver’s- license revocation. But, relying on the district court’s 2018 determination that he was not guilty of the corresponding criminal DWI charges by virtue of his mental illness, he contends that he was also mentally incompetent during the 60-day window for requesting judicial review and therefore could not timely initiate that process. In further support of his assertion that he was not competent to timely seek judicial review, he asks us to take judicial notice of the evaluator’s competency report in the 2018 criminal case, which concluded that he could not appreciate the wrongfulness of driving while impaired at the time of the offense. According to Ruth, because there was no judicial review of the 2018 revocation, and because he was incapable of requesting judicial review, the revocation could not be used."

"Ruth contends that his case is unique, making his collateral attack on the validity of the 2018 revocation proper, because his incompetence precluded him from utilizing the available judicial review. In support of this argument, he cites to Anderson, where a driver attempted to challenge prior revocations by initiating an untimely civil implied-consent hearing—the judicial-review hearing afforded under the statutory scheme. 878 N.W.2d at 928. Like Ruth, the driver in Anderson argued that he had been incapable of timely requesting judicial review because, due to his mental incompetence, he had not understood the notice he received. Id. at 929. We rejected the driver’s use of an implied-consent hearing as a vehicle for challenging the revocations because the district court lost jurisdiction over such a proceeding when the driver failed to timely request review.  Id. at 930. But we stated that the driver could potentially challenge the revocations in a criminal proceeding if the state sought to use the revocations to enhance criminal charges. Id."

"Ruth points out that we essentially addressed his circumstances in Anderson, when we stated, “The circumstances in this case may well constitute one of the ‘unique’ cases in which a criminal defendant may collaterally attack a revocation to prevent it from serving as an enhancement.” Id. He observes that he, like the driver in Anderson, was unable to timely seek judicial review due to mental incompetence. But Ruth notes that, unlike the driver in Anderson, he used the proper vehicle for challenging his revocations—a collateral attack in the context of his criminal case."

"Ruth’s attempt to collaterally challenge the 2018 revocation is flawed, however. We reject his collateral attack on the revocation for two reasons."

"First, in Anderson, we “expressed] no opinion as to the outcome of [the] analysis.” Id. at 930. Thus, Anderson does not hold that a driver’s incompetence during the judicial- review period precludes the use of the revocation to enhance a subsequent offense."

"Second, and even more importantly, the record does not support Ruth’s claim that he was not competent to seek judicial review of the 2018 revocation. His claim relies entirely on the district court’s judicial notice of an order in his 2018 criminal case finding him not guilty of DWI by reason of mental illness. The record contains no evidence of Ruth’s competence to participate in judicial proceedings during the 60-day window for seeking judicial review. And the record does not even include the evaluation that the district court relied on in 2018 to find Ruth not guilty by reason of mental illness.  Based on the record here, we cannot infer—as Ruth asks us to do—that he was not competent to seek judicial review in 2018. Yet, this factual assertion provides the entire foundation of Ruth’s legal argument. Because the record does not support Ruth’s claim that he was not competent to seek judicial review, his legal argument fails."

"We cannot conclude that Ruth’s mental condition prevented him from requesting judicial review of his 2018 driver’s-license revocation. Because Ruth waived judicial review by failing to timely request it, the use of the revocation to enhance his current DWI offense did not violate his constitutional right to procedural due process."

Moral Of The Story: That's one crazy driver!

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.

Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Moore (Decided May 26, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a prior license revocation notation on a driving record is not sufficient proof of a prior offense for enhancement purposes.

In Moore, the Defendant was arrested and charged with a Felony DWI because at the time of the current offense, she had two prior DWI convictions from 2011 and, according to a certified copy of the Defendant's driving record, a loss of license in 2009 for impaired driving.  The Defendant waived a jury trial and argued that her driving record was insufficient to establish a prior impaired driving incident. The District Court found Ms. Moore guilty of felony DWI but on appeal, the Minnesota Court of Appeals reversed the district court explaining:

"A person is guilty of first-degree DWI if they commit that violation within ten years of the first of three or more qualified prior impaired-driving incidents. Minn. Stat. § 169A.24, subd. 1(1). A “[qualified prior impaired driving incident includes prior impaired driving convictions and prior impaired driving-related losses of license.” Minn. Stat. § 169A.03, subd. 22 (2016). A “[p]rior impaired driving-related loss of license includes a driver’s license suspension, revocation, cancellation, denial, or disqualification.” Id., subd. 21(a) (2016). An implied-consent license revocation “becomes effective” when an officer notifies the person of the revocation and advises the person of the right to administrative or judicial review.  Minn. Stat. § 169A.52, subd. 6."

"Because a revocation does not “become effective” without notice, in order to prove a defendant guilty beyond a reasonable doubt of an offense that requires a prior license revocation, the state has the burden of proving that appellant received notice of that revocation. See State v. Burg, 648 N.W.2d 673, 677-78 (Minn. 2002) (“The Due Process Clause of the Fourteenth Amendment to the United States Constitution ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged.’”) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)) (alteration in original). Moreover, we note that, in previous license-revocation cases disputing notice, the state has provided either testimony regarding notice or evidence that it provided notice to the defendant. See, e.g.. Gray v. Comm’r of Pub. Safety, 918 N.W.2d 220, 225 (Minn. App. 2018) (identifying officer testimony that he personally provided notice); Johnson v. Comm’r of Pub. Safety, 889 N.W.2d 36, 37, 40 (Minn. App. 2016) (identifying officer testimony that he thought he placed notice in appellant’s property); Johnson v. Comm ’r of Pub. Safety, 394 N.W.2d 867, 868 (Minn. App. 1986) (identifying officer testimony that he placed order of revocation in front of appellant)."

***

"Here, the district court concluded that “the [s]tate has prove[d] beyond a reasonable doubt all of the elements of this offense” and that the certified copy of the driving-record history established a qualified prior impaired-driving incident. The district court relied on Omwega to reject appellant’s argument that the state had to prove notice. State v. Omwega, 769 N.W.2d 291, 296 (Minn. App. 2009) (noting officer properly placed notice in appellant’s bag with his other property when released from custody), review denied (Minn. Sept. 29,2009). First, as discussed above, the state has the burden of proving notice. Burg, 648 N.W.2d at 677-78. Second, Omwega is distinguishable because there, the state presented evidence that the police provided the appellant with notice. Omwega, 769 N.W.2d at 296. There is no such evidence here, and without it, we cannot make the reasonable inference that she received this notice. See Chambers, 589 N.W.2d at 477. Nor does appellant’s certified driving-record history allow for a reasonable inference that she received notice. The only inference the statute allows is that, if the police mailed the notice, appellant received it three days later. See Minn. Stat. § 169A.52, subd. 6."

As stated by the court, "...appellant’s certified driving record may prove the occurrence of a license revocation, but it does not prove that she received notice of that revocation. The state contends that the driving-record notation of “notice re requirements sent” constituted proof that the state provided appellant notice of the license revocation. But the state offers no testimony that the notation referred to the revocation, and the district court made no finding on it. Nor does the certified driving record contain any explanation of its headings, terminology, or abbreviations."

Moral Of The Story:  A prior isn't a prior without proof of notice.

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

Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI DWI Case Of The Week is State v. Permann (Decided April 6, 2020, Minnesota Court of Appeals, Unpublished), which stands for the proposition that a prior conviction need only be established by competent and reliable evidence.  Permann also shows what can happen when a person can't keep their mouth shut.

In Permann, the Defendant was on probation and at a meeting with his probation officer, Mr. Permann mentioned he had used methamphetamine "two days prior".  Permann also told the agent that he had driven to her office. 

The agent told Mr. Permann that he would be taken into custody for violating his probation and Mr. Permann asked if he could make arrangements for his sport utility vehicle, parked outside.

At the jail, Mr. Permann was read his Miranda rights and the Defendant gave a recorded statement stating he drove his black Ford Bronco to the probation agent’s office for a scheduled meeting. When asked how many DWIs he had in the past ten years, the Defendant stated he had three prior  DWI offenses. 

The police obtained a search warrant and Permann gave a urine sample, which was sent to the Bureau of Criminal Apprehension (BCA) and tested positive for methamphetamine. The state subsequently charged Mr. Permann with Felony DWI alleging he had 3 priors within the past 10 years.  

At trial, in addition to the testimony, the state offered three exhibits to prove the existence of the prior DWI offenses:

Exhibit six was a certified “true and correct copy from the records of the Driver and Vehicle Services Division” of the Department of Public Safety (DPS) of a 2009 notice and order revoking Permann’s license for DWI (2009 notice and order of license revocation).

Exhibit seven was certified as “a true copy of the original record in [the] custody” of the Olmsted County Court Administrator of the September 28, 2012 court minutes showing Permann’s DWI conviction (2012 court minutes). Exhibit eight was a certified copy of a 2015 warrant of commitment from Dakota County showing Permann’s DWI conviction.

The Defendant was convicted of Felony DWI and on appeal he argued that the state failed to offer sufficient evidence establishing two of the three qualified prior impaired driving incidents committed within the ten years before his 2018 DWI. On appeal, Permann did not challenge the admissibility of exhibit eight, (the 2015 warrant of commitment for a DWI), but argued that exhibits six and seven were insufficient to sustain his first-degree DWI conviction.

The Court of Appeals rejected the Defendant's challenge, stating:

"First, Permann argues that exhibit six is insufficient to prove a qualified prior impaired driving incident because the 2009 notice and order of license revocation was appealable. Because the state failed to offer a “final notice of revocation,” Permann argues that the state failed to prove his license was revoked. The state responds that the prosecution can use “competent and reliable evidence” to prove a license revocation."

"Permann cites no legal authority to support his argument that the state had to prove that his 2009 license revocation was not overturned on appeal. And Permann does not even claim that he sought judicial review of his 2009 license revocation. A license revocation is effective when the commissioner of public safety, or a peace officer acting on the commissioner’s behalf, gives the notice and order of revocation to the driver. Minn. Stat. § 169A.52, subd. 6 (2016); see also State v. Goharbawang, 705 N.W.2d 198, 201 (Minn.App. 2005) (determining that license “revocation takes effect when the officer issues the notice and order of revocation”), review denied (Minn. Jan. 17, 2006). Even if we assume that Permann sought judicial review of his 2009 license revocation, a driver’s petition for judicial review “does not stay the revocation.” Minn. Stat. § 169A.53, subd. 2(c) (2016)."

"Because a notice and order of revocation is effective when the commissioner or peace officer “notifies the [driver] of the intention to revoke” his license, and a qualified prior impaired driving incident includes a “loss of license” by revocation, we conclude that exhibit six is sufficient evidence to establish that Permann had a qualified prior impaired driving incident in 2009. See Minn. Stat. § 169A.52, subd. 6; Minn. Stat. § 169A.03, subd. 21."

"Next, Permann argues that exhibit seven, 2012 court minutes of Permann’s DWI conviction, is not “an official record of a conviction” and thus is insufficient to prove a qualified prior impaired driving incident. The state argues that the 2012 court minutes are a certified court record and thus are “competent and reliable."

"Minn. Stat. § 609.041 (2016) provides:

In a criminal prosecution in which the degree of the crime or the penalty for the crime depends, in whole or in part, on proof of the existence of a prior conviction, if the defendant contests the existence of or factual basis for a prior conviction, proof of it is established by competent and reliable evidence, including a certified court record of the conviction."

"In State v. Eller, this court held that “section 609.041 does not mandate that only a certified record may be used to prove a prior conviction. Rather, it requires only that proof of the [prior] conviction is established by competent and reliable evidence.” 780 N.W.2d 375, 380 (Minn. App. 2010), review denied {Minn. June 15,2010). Eller also clarified that “[t]he statute does not limit such proof to a certified court record” and held that a sworn statement in the probable-cause section of a complaint was competent and reliable evidence to establish the appellant’s prior conviction at a stipulated-facts trial. Id. at 380-81. We conclude that the 2012 court minutes of Permann’s DWI conviction is competent and reliable evidence and exhibit seven is sufficient to establish Permann committed a qualified prior impaired driving incident in 2012.  Thus, we conclude that the evidence is sufficient to support Permann’s conviction for first-degree DWI."

Moral Of The Story:  Loose lips gets you shipped!

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

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Nordstrom (Decided April 16, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that virtually all out-of-state convictions for DWI can be used to "enhance" the current Minnesota DWI charge.

In Nordstrom, the Defendant was facing a Minnesota Felony DWI because at the time of his Minnesota DWI arrest, he had three prior DWIs within the past ten years.  One of the prior convictions was from Wisconsin and the Defendant argued the prior Wisconsin conviction could not be used to enhance the current offense because the Wisconsin conviction was based on evidence obtained from a warrantless blood draw in violation of his constitutional rights.

The Minnesota Court of Appeals rejected the Defendant's claim stating:

"A criminal defendant may collaterally attack a prior conviction to prevent it from serving as an enhancement, but "only in unique cases." State v. Schmidt, 712 N.W.2d 530, 538 n.4 (Minn. 2006). The district court determined that this was not a unique case, and we agree. Appellant entered a plea of "no contest" in Wisconsin to violating a state statute that provides: "[n]o person may drive or operate a motor vehicle while: (a) Under the influence of an intoxicant ... to a degree which renders him or her incapable of safely driving. ..." Wis. Stat. § 346.63, subd. 1(a). Wisconsin has a separate statutory provision prohibiting a person from driving while that person's alcohol concentration is above a prohibited alcohol concentration. See Wis. Stat. § 346.63, subd. 1(b) (2016) ("No person may drive or operate a motor vehicle while . . . [that] person has a prohibited alcohol concentration."). Accordingly, appellant's Wisconsin conviction did not require the state to prove that appellant had a prohibited alcohol concentration."

"Appellant argues that the results of his blood test were known at the time of his plea and were relevant to his conviction. Schmidt is again instructive. The Schmidt court considered evidence of a prior conviction, reasoning that "[w]hile [the uncounseled decision to submit to chemical testing] would preclude certain prosecutions, for example driving with an alcohol concentration of 0.08 or more, prosecution could still proceed for the general offense of driving while under the influence, based on other evidence of impairment." 712 N.W.2d at 539 (citations omitted). This case presents a similar factual scenario. Even if the results of the blood test should have been suppressed in Wisconsin, other evidence of impairment sustained the conviction."

"We conclude that appellant's conviction in Wisconsin is not subject to collateral attack. The district court properly ruled that appellant's Wisconsin conviction was a "qualified prior impaired driving incident" that could be used to enhance the impaired-driving offense in Minnesota."

It appears from the Court's reasoning that if the Defendant had pled guilty to a .08% DWI charge, the result on appeal may have been different.  Wait and see!

Moral Of The Story:  Out-Of-State priors still count!

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

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

The Minnesota DWI Case Of The Week is State v. Kjono, (Decided January 3, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that in a DWI case, a prosecutor can commit blatant misconduct but still get away with it.

In Kjono, the defendant drove away from the Z103 Bar & Grill in Fergus Falls in a manner that left police suspecting that he was intoxicated. He took them on a high-speed chase that ended when he crashed into a ditch. Kjono fled through brush and across a frozen lake, where he happened upon an empty rural house. He found the door unlocked and went inside. Then he made his way into the home's attached garage and saw a Chevy Impala. The keys were in the ignition, and Kjono took the car.

Kjono drove back to Fergus Falls and parked on a street. He walked to a gas station and hitched a ride back to the bar. Eventually, from a hotel connected to the bar, he called his parents and told them his car had been stolen. But Kjono's parents had already been contacted by the police. They urged him to stay put until police arrived. He did. He cleaned up in a hotel restroom, and Officer Brooks Johnson found him at about 3:00 a.m.

Officer Johnson administered field sobriety tests, all of which corroborated his suspicion that Kjono was intoxicated. Kjono agreed to a breath test. Four hours had passed since the chase began. The breath test indicated that Kjono's alcohol content was 0.10.

The state charged Kjono with seven counts: second-degree burglary of a dwelling; theft of a motor vehicle; fleeing a peace officer in a motor vehicle; second-degree impaired driving (under the influence of alcohol); second-degree impaired driving (0.08 within two hours); driving in violation of a restricted driver's license; and fleeing a police officer by means other than a motor vehicle.

Kjono discharged his appointed attorney and proceeded to trial representing himself. He stipulated to having two prior drunk-driving convictions. The district court explained to him that, by so stipulating, the state would not be allowed to discuss the prior convictions at trial.

But at trial, the prosecutor had the following exchange with Officer Johnson:

Q: Officer Johnson, did you at some point run a driving record of the defendant? A: Yes, I did.

Q: What ~ what [did] you learn when you [ran] the defendant's driving record?

A: That he had previous DWI convictions and that he also had a no use of alcohol or drugs restriction on his driver's license.

After the officer's testimony concluded, the court called the

parties to the bench to discuss the inappropriate prior-drunk-driving testimony. With the parties' consent, the court gave the jury the following instruction:

"Folks, you did hear some testimony regarding ... the defendant's driving record. You should disregard this testimony and rely solely upon the information about the defendant's driving records which I will give you at the conclusion of the trial."

In State v. Berkleman, the Minnesota Supreme Court said that when a person is on trial for a DWI and they have a prior DWI offense that is being used to enhance the current charge to a gross misdemeanor or felony, then the person charged ALWAYS has the right to stipulate to the prior offense to remove it from the jury's consideration.  The Supreme Court came up with this procedure because it recognized that a jury might impermissibly use its knowledge of the prior DWI in deciding whether the defendant had driven under the influence in the current offense.

So if a defendant agrees to the existence of a prior offense, the prior is no longer an element which the jury needs to decide and its admission can only be prejudicial to the  jury's consideration of the current offense.

Alas, in this case, the pro-se defendant did not object to the admission of the prior and Minnesota Court of Appeals held that the admission was harmless error.  Or as stated by the Court:

"Kjono claims that the state committed prosecutorial misconduct by failing to prepare Officer Johnson as a witness, resulting in the officer's testifying about Kjono's prior drunk driving convictions. Kjono did not object at the time of the officer's testimony, and we review claims of unobjected-to prosecutorial misconduct under a modified plain-error test. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Kjono can prevail on appeal only if he shows that the prosecutor committed error and that the error was plain. See id. If he succeeds, the burden shifts to the state to demonstrate that the misconduct did not affect Kjono's substantial rights. See id. If the state fails to carry this burden, we still will reverse only if a new trial is necessary to ensure the fairness, integrity, and public reputation of judicial proceedings. See id."

"We can assume, without deciding, that the state committed plain error here. The state easily carries its burden to show that there is no reasonable likelihood that the misconduct had any significant effect on the verdict. See Ramey, 721 N.W.2d at 302. First, the officer's reference to the prior convictions was isolated and brief. Second, the district court conferred with the parties and, with their consent, gave the jury a cautionary instruction to disregard the officer's testimony about Kjono's driving record and instead to rely on the driving record provided during the final instructions. We presume that jurors follow the district court's instructions. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998)."

"And third, the evidence of Kjono's guilt for driving while impaired was overwhelming. Kjono's only defense to that charge was that he did not "feel" drunk enough to register a 0.10 breath test after his arrest. We do not suppose that a jury will be heavily persuaded to reject a scientific test of a person's intoxication level after hearing from the accused drunk driver that he did not "feel" as intoxicated as the test indicated he was. And Kjono admitted to almost everything else: drinking at home, drinking at the bar, leading police on a high-speed chase, crashing his car, fleeing police on foot, stumbling while he fled, entering someone else's home, taking a car from a garage, and driving back to town and returning to the bar. Jurors also heard from Officer Johnson about Kjono's red, bloodshot eyes, his failed sobriety tests, and Kjono's alcoholic odor. And they learned that the metabolic rate of alcohol in the human body would suggest that Kjono's alcohol level was more likely closer to 0.16 during the chase and 0.13 during his drive back to town. Kjono's only witness, his father, gave conflicting testimony about how Kjono sounded on the phone, saying both, "He sure sounds sober," and, "By his voice he's been drinking too much."

"We have no doubt that the overwhelming evidence that Kjono drove drunk the night of his arrest, not the brief testimony that Kjono drove drunk previously, convinced the jury to find Kjono guilty of driving while impaired."

Moral Of The Story: If you choose to represent yourself, you have a fool for a client!

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