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

The Minnesota DWI Case Of The Week is Nash v. Commissioner of Public Safety (Decided May 1, 2023, Minnesota Court of Appeals, Unpublished), which stands for the proposition that an officer cannot deviate from the exact wording  of the Minnesota DWI Search Warrant Advisory if the deviation is inaccurate or misleading.

In Nash, the Petitioner was stopped in Hennepin County by the Minnesota State Patrol.  The trooper noted Nash appeared lethargic, his skin was sweaty, he had a “thick tongue” when speaking, and his pupils did not react to light. The trooper believed that Nash was under the influence, but she was not sure whether the cause was alcohol or a different substance. The trooper  had Nash exit the vehicle and perform a horizontal-gaze- nystagmus (HGN) test, which is generally used to test for depressants. Nash also completed a one-leg balance test and a walk-and-tum test. The trooper thought that all three tests indicated that Nash was under the influence. Gerhard asked Nash if he was on any medications, and Nash replied that he was not. 

Nash provided a preliminary breath test, which produced a 0.000 result. Nash then completed a fourth test, which did not reveal any signs of impairment. The trooper nonetheless told Nash that she believed he was under the influence and placed him under arrest.

The trooper applied for and obtained a search warrant for a blood or urine test. Next, while seated in her squad car with Nash in the back seat, the trooper told Nash, “I applied for a search warrant for a blood draw, and refusal to take a test is a crime.” Gerhard showed Nash the warrant, but she did not “let him hold it and look through it.”

The blood test result revealed the presence of methadone and the Commissioner of Public Safety revoked the Petitioner's license.  

The Petitioner challenged the license revocation alleging the trooper did not read the search-warrant advisory required under Minn. Stat. § 171.177, subd. 1, (3). 

The District Court sustained the revocation but the Minnesota Court of Appeals reversed the lower court, stating:

"Minn. Stat. § 171.177 (2022) governs the revocation of driving privileges based on a search warrant for the collection of a blood or urine sample from a person suspected of driving while impaired. If such test results indicate “the presence of a controlled substance listed in Schedule I or II or its metabolite, other than marijuana or tetrahydrocannabinols, the commissioner shall revoke the person’s license or permit to drive.” Minn. Stat. § 171.177, subd. 5. If a person refuses to submit to a blood or urine test as requested by a peace officer pursuant to a search warrant, then a test must not be given. Id., subd. 13. However, it is a crime for a person to refuse to submit to a chemical test of the person’s blood or urine pursuant to a search warrant under section 171.177. Minn. Stat. § 169A.20, subd. 2(2) (2022)."

"Section 171.177, subdivision 1, requires that “[a]t the time a blood or urine test is directed pursuant to a search warrant... the person must be informed that refusal to submit to a blood or urine test is a crime.” Nash argues that he is entitled to rescission of his license revocation because the officer did not advise him that refusal to submit to a blood or urine test is a crime and instead merely advised him that she had applied for a search warrant for a blood draw and that refusal to take a test was a crime."

***

"This court has held that the advisory requirement in Minn. Stat. § 171.177, subd. 1, is unambiguous, has no exceptions, and requires an officer to inform an individual of the criminal consequences of test refusal. State v. Mike, 919 N.W.2d 103, 110 (Minn. App. 2018), rev. denied (Minn. Aug. 20, 2019). We therefore apply the statute’s plain meaning, with guidance from caselaw."

***

In Tyler v. Commissioner of Public Safety, 368 N.W.2d 275 (Minn. 1985), the Minnesota Supreme Court stated that “[compliance with the procedures of the implied consent law is a prerequisite to revocation pursuant to the implied consent law.” 368 N.W.2d at 280. The supreme court reasoned that “the legislature intended that a driver’s license be revoked pursuant to the implied consent law . . . only if the provisions of the law were complied with by the police.” Id. at 281 (emphasis added). Because the police did not provide a statutorily required implied-consent advisory, the test results in Tyler “could not properly serve as the basis for a revocation of [Tyler’s] license pursuant to the implied consent law.” Id.

***

"The Jensen court applied the supreme court’s reasoning from Tyler and concluded that the commissioner may not revoke a driver’s license based on blood-test results under section 171.177, subdivision 5, unless the officer directing the test gives the driver the advisory required under subdivision 1 of the statute. 932 N.W.2d at 847. This court held that, because the peace officer in Jensen never warned the driver that refusing to submit to a blood test is a crime, the commissioner could not revoke her license based on her test results. Id. at 848 (reversing and remanding for the district court to rescind the license revocation).

"Under Jensen, it is clear that a license revocation cannot be sustained based on the results of a chemical test if the driver was not provided an advisory regarding the criminal consequences of failing to submit to a test. Id. at 846 (stating it was undisputed that law enforcement did not advise Jensen that refusal to submit to a blood test is a crime). But, as the commissioner notes, Jensen does not address the issue presented here: whether an advisory that deviates from the language of Minn. Stat. § 171.177, subd. 1, is nonetheless adequate to sustain a revocation."

"The commissioner argues that “there is no specific form the advisory must take,” and that Nash “was accurately informed of the legal consequences of refusing to submit to the blood test that was requested.” The commissioner relies on McCormick v. Commissioner of Public Safety, in which this court announced the rule that whether an implied-consent advisory complies with statutory requirements “depends on whether the given advisory, considered in its context as a whole, is misleading or confusing.” 945 N.W.2d 55, 60 (Minn. App. 2020). The statute at issue in McCormick required that “[a]t the time a breath test is requested, the person must be informed . . . that refusal to submit to a breath test is a crime.” Minn. Stat. § 169A.51, subd. 2(2) (2018) (emphasis added). The officer in McCormick informed the driver that “refusal to take a test is a crime,” and not that “refusal to submit to a breath test is a crime.” 945 N. W.2d at 57 (emphasis added)."

"McCormick argued that the statute required officers to read its language verbatim and that the officer’s failure to state “breath” directly before “test” misstated the law. Id. at 58. This court rejected that argument, noting that the plain language of the statute did not require officers to “read” or “recite” the statute’s language verbatim. Id. at 59. This court also noted that it had upheld advisories that deviated from the language of the implied-consent statute “so long as the information the officer provide[d] [was] not misleading or confusing.” Id. This court reasoned that, because the officer informed McCormick that “this is the breath test advisory” and that “refusal to take a test is a crime,” without mentioning any other test and offering only a breath test, the context of the advisory adequately informed McCormick that refusal to take a breath test is a crime. Id. at 60 (emphasis added). The advisory was therefore sufficient to sustain the revocation of McCormick’s driving privileges. Id.

"The McCormick rule is consistent with an earlier decision of this court in which it said that “[u]niformity in giving the implied consent advisory is highly encouraged” and recommended “that police officers read the exact words of the statute in order to avoid any possibility of confusion or improper deviation from the statute.” Hallock v. Comm ’r of Pub. Safety, 372 N.W.2d 82, 83 (Minn. App. 1985). But this court also stated that if an officer deviates from the exact words of a statutory advisory, a revocation may nonetheless be based on that advisory so long as the advisory was not “an incorrect statement of the Minnesota law, or so confusing as to render the advisory illegal.” Id. (affirming district court’s order sustaining a driver’s license revocation)."

"We agree with the commissioner that the McCormick rule applies here. But for the reasons that follow, we disagree that the advisory in this case was adequate under that rule. See Jensen, 932 N.W.2d at 847 (applying to section 171.177 caselaw relied on to interpret the related implied-consent statutes). Minn. Stat. § 171.177, subd. 2, provides that:

'The peace officer who directs a test pursuant to a search warrant shall direct a blood or urine test as provided in the warrant. If the warrant authorizes either a blood or urine test, the officer may direct whether the test is of blood or urine. If the person to whom the test is directed objects to the test, the officer shall offer the person an alternative test of either blood or urine. Action may be taken against a person who refuses to take a blood test only if a urine test was offered and action may be taken against a person who refuses to take a urine test only if a blood test was offered.'"

"In this case, the trooper told Nash, “I applied for a search warrant for a blood draw, and refusal to take a test is a crime.” As the commissioner concedes, if Nash had refused the blood test, the circumstances would not have supported a test-refusal charge because the trooper did not offer him a urine test. See Minn. Stat. § 171.177, subd. 2 (“Action may be taken against a person who refuses to take a blood test only if a urine test was offered . . . Thus, the advisory was an inaccurate statement of Minnesota law and misleading. Nothing about the context of the trooper’s advisory changes our view. Although the search warrant authorized a blood or urine test, the trooper did not mention the urine test. And although the trooper “show[ed]” Nash the warrant, the commissioner does not claim, and the record does not suggest, that Nash had an opportunity to read the warrant before agreeing to submit to the test."

"In sum, the advisory informed Nash that he could be charged with a crime if he refused the blood test, even though the trooper had not offered Nash an alternative urine test. That was an inaccurate statement of law and misleading. The advisory therefore cannot serve as the basis for revocation of Nash’s driving privileges, and the revocation cannot be sustained. See Tyler, 368 N.W.2d at 280 (“Compliance with the procedures of the implied consent law is a prerequisite to revocation pursuant to the implied consent law.”); Jensen, 932 N.W.2d at 847 (applying to section 171.177 caselaw relied on to interpret the related implied-consent statutes)."

Moral Of The Story: You can't enforce the law if you do not  read the law.

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minnesota DWI Lawyer, 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. Jones (Decided May 2, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that one should not pull into the parking lot of a closed business late at night.

In Jones, the Defendant was arrested for DWI and challenged the validity of the initial stop of her vehicle. The arresting officer testified that around 11:00 p.m., he was following a car traveling northbound on Highway 25 when the car turned left into the parking lot of a closed business. At the next opportunity, the trooper made a U-tum and parked along the right shoulder of southbound Highway 25 to observe the car. The trooper saw the car park in the front section of the dimly lit lot, which abutted the highway. After approximately 30 seconds, he saw the car drive further into the lot and move to a darker area between two buildings where the trooper lost sight of the car. About 30 seconds later, the trooper observed the car travel back to the front section of the lot, come to a complete stop, exit the lot, and reenter Highway 25, continuing northbound. The trooper initiated a traffic stop and arrested the car’s sole occupant, later identified as Jones, after detecting signs of intoxication.

The trooper testified that he considered Jones’s driving conduct to be suspicious. The trooper testified that he became suspicious because he knew the business was closed, the lot was not well-lit, and there were other lots along the highway with much better lighting. The trooper also testified that although he considered the driver might be custodial staff or have pulled over to look at a map, he no longer thought that was the case when he observed the vehicle travel from the dimly lit front area of the lot to a darker area of the lot hidden from his view. The trooper testified that he became particularly suspicious when the vehicle moved to the dark area of the lot out of his view because the trooper knew that buses were parked in that area, and he thought it was possible that someone could be vandalizing the building, stealing tires, or engaged in drug use. 

The district court denied the Defendant's motion to suppress and on appeal, the MInnesota Court of Appeals affirmed the lower court, stating:

"For a stop to be supported by reasonable suspicion, there must be “specific, articulable facts” showing that the officer “had a particularized and objective basis for suspecting the seized person of criminal activity.” Id. at 842-43 (quotations omitted). The standard for reasonable suspicion is “not high,” but it requires more than “an inchoate and unparticularized suspicion or hunch.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn.2008) (quotations omitted). This standard is satisfied when the officer “observes unusual conduct that leads the officer to reasonably conclude in light of his or her experience that criminal activity may be afoot.” Id. (quotation omitted). If a seizure is not supported by reasonable suspicion, however, all evidence obtained because of the seizure must be suppressed. Diede, 795 N.W.2d at 842."

***

"The facts here are like those in Thomeczek and Olmscheid. Around 11:00 p.m., the trooper saw Jones drive into the front section of the lot of a closed business and, 30 seconds later, drive out of sight between two buildings. According to the trooper, there was no apparent reason for someone to enter the parking lot at that time of night because the business was closed. The trooper also concluded from his observations that Jones was not an employee because instead of entering the business, she proceeded to drive into the dimly lit area between the two buildings. The trooper articulated that he suspected Jones of vandalism, tire theft, or taking drugs when she drove from the front parking lot to the darker area of the parking lot specifically based on his knowledge that tire thefts had occurred at “dealership lots here,” and in his experience, “people do[] drugs ... in some empty lots.” Like the behaviors of the drivers in Thomeczek and Olmscheid, Jones’s conduct caused the trooper to form a reasonable belief that she could be engaged in criminal activity."

Moral Of The Story: Don't stop at any business that is not open 24 hours!

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

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

The Minnesota DWI Case Of The Week is State v. Dodds (Decided January 18, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that you never want to give the police a second chance to make a first impression!

In Dodds, a Carver County Sheriff's Deputy noticed an occupied vehicle in the Domino's parking lot in Waconia.  The deputy approached the vehicle and spoke with the occupants. The deputy checked Dodds’s registration and discovered that his driving privileges had been revoked. But because Dodds was in a nonmoving vehicle in a private parking lot, the deputy believed that no law had been broken.

An hour later, the deputy observed the same car roll through a stop sign. The car also crossed the center line by roughly two feet. The deputy pulled the car over and noticed the occupants attempt to conceal something within the car. After he identified Dodds (who had been driving) and his passenger, the deputy noted a strong odor of alcohol. The passenger appeared to be “extremely intoxicated” and during the conversation produced two open containers of alcohol. The deputy asked Dodds and the passenger to exit the vehicle and conducted a search for additional contraband. Dodds warned the deputy that there were approximately three grams of marijuana inside the vehicle, which the deputy eventually located. The deputy issued Dodds a citation for possession of marijuana, failure to provide insurance, and driving after revocation. The deputy then told Dodds he was released from the traffic stop and warned him to keep his voice down because they were in a residential area in the middle of the night.

The deputy returned to his squad car to take pictures of the open containers found in Dodds’s vehicle when Dodds started to yell to the deputy. The deputy again cautioned Dodds about yelling in the neighborhood. But Dodds continued to yell. The deputy reapproached Dodds and this time noticed that Dodds’s speech was slurred, his eyes were watery and glassy, and his breath smelled of alcohol, which the deputy had not noticed in the previous encounters that night. The deputy then administered field sobriety testing and eventually arrested Dodds for suspicion of driving while intoxicated (DWI).

The state charged Dodds with felony test refusal and felony DWI.  Dodds filed a motion to suppress the evidence from the stop and to dismiss, in part, due to an impermissible expansion of the scope of the stop.

The District Court denied the motion to suppress and on appeal, the Court of Appeals affirmed, noting:

"Warrantless searches and seizures are generally unreasonable. State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992). But police may conduct “[a] limited investigative stop ... if there is a particularized and objective basis for suspecting the person stopped of criminal activity.” State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002). The reasonable-suspicion standard is met when a deputy observes conduct that leads the deputy to reasonably conclude that “criminal activity is afoot.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotation omitted). The standard is not high, but it requires more than an unparticularized hunch. Id. When determining whether a deputy reasonably suspected criminal activity, courts consider the totality of the circumstances. State v. Martinson, 581N.W.2d 846, 852 (Minn. 1998)."

"Here, while the deputy and Dodds had multiple contacts throughout the night, we narrowly focus on whether the deputy improperly seized Dodds when he re-approached him following the written citation. After Dodds got the deputy’s attention by yelling, the deputy re-approached and noticed that Dodds’s breath smelled of alcohol. The smell of alcohol is all that is required for reasonable suspicion to suspect that Dodds had been driving while intoxicated and to justify a seizure. See Hager v. Comm ’r of Pub. Safety, 382 N.W.2d 907, 911 (Minn. App. 1986) (stating that a driver’s odor of alcohol provided reasonable suspicion of driving while impaired and a legal basis for a preliminary breath test)."

"In sum, because the deputy had reasonable suspicion to seize Dodds after smelling alcohol on his breath, the district court did not err when denying Dodds’s motion to suppress."

Moral Of The Story: Next time, take the ticket and run (quietly)!

If you or a loved one have been charged with 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 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. Redday (Decided December 23, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if a prosecutor is not careful, he can turn a Felony DWI into a misdemeanor.

In Redday, the Defendant was arrested for felony DWI and was charged with four counts of DWI in the First Degree.  Ms. Redday had a South Dakota felony DWI conviction from 1997 and she also had prior dwi convictions from 2013, 2011, 2008 and 2008.

Ms. Redday was charged in Counts I and II of the current complaint with a felony for being arrested for DWI with three priors within the past ten years.  She was also charged with felony DWI in Counts II and IV of the complaint because of her prior felony South Dakota DWI. (In Minnesota, once you have a felony DWI any further DWI will also be a felony, no matter how old the prior offense).

The Defendant stipulated to her prior offenses to keep them from the jury.  The prosecutor then decided to dismiss Counts I & III and proceeded to trial only on Counts II & IV.

The Defendant was convicted and prior to sentencing, the state notified the district court and Redday that the presentence investigator had questioned whether “Redday’s prior South Dakota felony conviction qualifies as a prior felony conviction.”

The Defendant was sentenced for Felony DWI and on appeal, the Court of Appeals reversed, noting:

"The complaint in this case alleged that counts one and three were felonies because Redday “committed the violation within ten years of the first of three or more qualified prior impaired driving incidents.” The complaint alleged that counts two and four were felonies because Redday “was previously convicted of felony-level Driving While Under the Influence on or about October 29, 1997 in Roberts County, South Dakota.” However, the state points out that all four counts of the complaint reference Minn. Stat. § 169A.24, subd. 1(1), as the charging statute, which provides for felony enhancement based on the existence of three or more qualified prior impaired driving incidents. The state asserts that those references determine the offenses of conviction. Specifically, the state argues that “nowhere in the charging instrument was [Redday] charged with a violation of [Minn. Stat. § 169A.24, subd. 1(2)].” For the reasons that follow, we disagree."

"The purpose of a complaint is to “apprise the defendant of the charge for which [she] is being held and tried.” State v. Clark, 134 N.W.2d 857, 866-67 (Minn. 1965). “For each count, the indictment or complaint must cite the statute, rule, regulation, or other provision of law the defendant allegedly violated.” Minn. R. Crim. P. 17.02, subd. 3. Thus, in determining what charges the state has brought against a defendant, courts should rely upon the language of a complaint rather than the actual statutory citations contained in it. See State v. DeVerney, 592 N.W.2d 837, 847 (Minn. 1999) (discussing indictment)."

"The description of the offenses charged in counts one and three of the complaint indicate that those charges were based on Redday’ s 2008,2011, and 2013 out-of-state DWI convictions. Counts one and three therefore set forth charges under Minn. Stat. § 169A.24, subd. 1(1), the felony-enhancement provision based on three or more qualified prior impaired driving incidents within ten years. But the district court granted the state’s motion to dismiss counts one and three before trial, leaving counts two and four of the complaint for trial. The description of the offenses charged in counts two and four of the complaint indicate that those charges were based on Redday’s 1997 felony-level South Dakota DWI conviction. Counts two and four therefore set forth charges under Minn. Stat. § 169A.24, subd. 1(2), the felony-enhancement provision based on a prior felony DWI conviction. Indeed, the state admits that “[a]s demonstrated by the charging language under Counts II and IV, [it] had intended to cite to [Minn. Stat. § 169A.24, subd. 1(2)].” Consistent with that admission, the district court stated that the two counts remaining for trial were “felony counts because of a prior felony conviction.”

***

"Redday does not argue that the evidence was insufficient to prove the elements of Minn. Stat. § 169A.20, the underlying DWI statute. Instead, Redday argues that the evidence was insufficient to prove that she had previously been convicted of a felony DWI, as required under Minn. Stat. § 169A.24, subd. 1(2). Redday stipulated that she had a “conviction on October 29, 1997 for felony DWI” and to the district court’s receipt of a certified copy of her 1997 South Dakota conviction. But Redday asserts that her 1997 South Dakota conviction does not satisfy the requirement of Minn. Stat. § 169A.24, subd. 1(2), because she “was convicted of [a] felony driving under the influence offense under a South Dakota statute, and not under section 169A.24.” See Minn. Stat. § 169A.24, subd. 1(2) (referring to a previous felony conviction “under this section” (emphasis added)). Redday also asserts that the conduct underlying her 1997 South Dakota DWI conviction would not constitute a felony DWI under Minn. Stat. § 169A.24, subd. 1(2). The state does not challenge either of Redday’s assertions. Based on our review of the relevant statutes, we agree that Redday’s 1997 South Dakota conviction is not a felony DWI “under [Minn. Stat. § 169A.24].” See id."

Moral Of The Story: To use a prior felony to enhance a DWI, the felony must be a prior MINNESOTA felony as set forth in Minnesota Statute §169A.24.

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

The Minnesota DWI Case Of The Week is State v. McEachem (Decided November 12, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you have eight prior DWI's, you are not likely to catch a break from the courts.

In McEachem, the Defendant was arrested for First Degree (felony) DWI while still on probation for a previous felony DWI.  McEachem subsequently pled guilty to the First Degree charge and moved the district court for a downward dispositional sentencing departure claiming he was amenable to probation.

At the sentencing hearing, McEachem argued that, since his arrest nearly two years earlier, he had successfully completed treatment, maintained sobriety, obtained employment, and secured his own housing. The Defendant expressed remorse for his crime and reminded the court that he cooperated with the court throughout the case.  The district court declined to depart from the sentencing guidelines. It imposed a guidelines sentence of 62 months in prison.

On appeal, McEachem argued the district court abused its discretion by denying his motion for a downward dispositional departure.  But the Minnesota Court of Appeals disagreed, noting:

"Appellate courts “afford the [district] court great discretion in the imposition of sentences and reverse sentencing decisions only for an abuse of that discretion.” State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). A district court may depart from the Minnesota Sentencing Guidelines only in the presence of substantial and compelling circumstances. Id. at 308. To maintain proportionality and uniformity in sentencing, departing from the sentencing guidelines is discouraged. State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017)."

***

"When determining whether to grant a downward dispositional departure and place a defendant on probation, a district court’s primary focus should be on “the defendant as an individual and on whether the presumptive sentence would be best for him and for society.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). There are a number of relevant factors for courts to consider in determining whether a defendant is particularly amenable to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Such factors include “the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.” 

"Appellant argues that he is amenable to probation and that the Trog factors weigh substantially in his favor. Appellant cites his successful completion of treatment, his acceptance of responsibility, remorse, cooperation, positive attitude in court, and support of his friends and family as reasons the court should depart from the guidelines and place him on probation and not in prison."

***

"While it need not have provided any further explanation for imposing a guidelines sentence, the district court noted appellant’s history of “using, relapsing and then driving.” The district court’s thoughtful and deliberate consideration of appellant’s departure request is reflected on the record. The district court accepted appellant’s arguments as having some merit, but also recognized that this was appellant’s “fourth felony DWI,” his eighth DWI in total, and that appellant’s “risk to public safety in [the] matter is just too significant for the court to grant [appellant’s] request for a downward dispositional departure."

"We see no error in the district court’s conclusion that substantial and compelling reasons to depart do not exist, and that public safety would best be served by a guidelines sentence. The district court acted within its sentencing discretion."

Moral Of The Story:  Fool me once...

If you or a loved one have been charged with 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 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. Howell (Decided August 26, 2019, Minnesota Court of Appeals, Unpublished), which stands for the proposition that there is no right to counsel, even for a DWI refusal, when the test is requested pursuant to a search warrant.  I can't blame the Court of Appeals for this decision as they are just following the recent Minnesota Supreme Court decision of State v. Rosenbush.  The problem is Rosenbush ( a 4 to 3 decision) makes no sense.

In Howell, the Defendant was arrested for DWI and while at the jail, the officer obtained a search warrant for Howell’s blood. The officer advised Howell that refusal to submit to blood-alcohol testing is a crime and asked Howell if he would submit to a blood or urine test. See Minn. Stat. § 171.177, subd. 1 (Supp. 2017) (“At the time a blood or urine test is directed pursuant to a search warrant under sections 626.04 to 626.18, the person must be informed that refusal to submit to a blood or urine test is a crime.”). Howell asked for a lawyer, but was not allowed to contact one. Howell refused to provide a sample for testing.

Howell contended that the police violated his limited right to counsel under the Minnesota Constitution because he requested counsel before the police asked him to submit to chemical testing and the police did not accommodate that request.  

The Minnesota Court of Appeals rejected Howell's argument stating:

"After oral argument in this case, the supreme court decided State v. Rosenbush, which squarely addresses the issue presented in this case: whether a driver arrested on suspicion of DWI and presented with a search warrant authorizing a search of his blood has a limited right to counsel under article I, section 6 of the Minnesota Constitution, as recognized in Friedman, before deciding whether to submit to chemical testing."

***

"The supreme court agreed with the state and held that the limited right to counsel established in Friedman does not apply when an individual is asked to submit to a blood test pursuant to a warrant. Id. at * 1, *5-6. The supreme court reasoned that “the existence of a search warrant eliminates many of the concerns that led [it] to expand the right to counsel in Friedman,” explaining that when a suspected impaired driver is presented with a search warrant for a blood or urine test, “the driver is not meeting his adversary in the same manner as the driver in Friedman because a neutral judicial officer has determined that the police may lawfully obtain a sample of the driver’s blood."

What the Supreme Court in Rosenbush totally fails to address is the rationale for Friedman, to wit:  When a person has been placed under arrest for DWI and been asked to submit to testing, the arrestee is facing IMMEDIATE CONSEQUENCES for their testing decision.  If they refuse, they immediately lose their license for one year and are facing prosecution for the gross misdemeanor crime of refusal.  It was these "immediate consequences" of the testing decision that led the Supreme Court in Friedman to hold that a person has the right to consult with counsel prior to testing.  The fact that a "neutral and detached" magistrate has reviewed the warrant application has nothing to do with the testing dilemma facing the person under arrest for DWI.  

Rosenbush is a stupid decision. Period.

Moral Of The Story: You can be the supreme court and still not get it right.

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

The Minnesota DWI Case Of The Week is State v. Cunningham (Decided July 1, 2019, Minnesota Court of Appeals, Unpublished) which stands, once again, for the well established rule that if a police officer observes a traffic violation, the officer has a sufficient basis to make the stop of the vehicle. Yawn.

In Cunningham, Minneapolis Police Officer Andrew Braun and his partner were on patrol driving eastbound on Plymouth Avenue North. The officers had a green light as they approached the intersection of Plymouth and Washington Avenue North. When the officers were approximately 75 to 100 yards away from the intersection, they saw five or six vehicles speed through the intersection travelling southbound on Washington. Because the light was green for traffic going east on Plymouth, Officer Braun knew that traffic going north and south on Washington had a red light.

The officers conducted a traffic stop on a white truck, driven by appellant, which was a part of the convoy of vehicles that had gone through the red light on Washington.  Based upon events after the stop of Cunningham’s truck, Mr. Cunningham was charged with one count of operating a motor vehicle while under the influence of alcohol in violation of Minn. Stat. § 169A.20, subd. 1(1) (2016).

The Defendant was convicted after a trial on stipulated facts and on appeal,Cunningham argues that there was no reasonable, articulable suspicion to support Officer Braun’s stop of his truck, and that the district court erred by denying his motion to suppress the evidence obtained from the stop.

The Minnesota Court of Appeals affirmed the district court, noting:

"...a police officer may initiate a limited, investigative stop without a warrant if the officer has reasonable, articulable suspicion of criminal activity. State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). The reasonable-suspicion standard is not a high one, State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011), but the investigatory stop may not be the result of “mere whim, caprice or idle curiosity,” State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996). If an officer observes a violation of a traffic law, even one that is insignificant, there is an objective basis for an investigatory stop. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

Cunningham also argued that the officer's testimony should not have been believed by the district court after Cunningham testified that he did not run a red light.  

The appellate court, however, rejected his argument, pointing out:

"This court gives deference to the fact-finder—especially where resolution of the case depends on conflicting testimony—because weighing the credibility of witnesses is its exclusive function.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980)."

Moral Of The Story: Some appeals are just stupid. 

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 Lawyer, 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 Case Of The Week is State v. Handeland (Decided June 24, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that ANY time spent in a Minnesota jail or for a mental evaluation must be credited when imposing jail time for an unrelated offense.

In 2012, the Defendant was convicted of First Degree DWI in Mille Lacs County and was given a sentence of 42 months stayed, with the Defendant to serve to 180 days jail, 60 of which were done in the jail facility with the remainder on electronic home monitoring. 

Mr. Handeland was arrested in April 2016 in Benton County for Felony DWI.  The District Court in Benton County found the Defendant incompetent to stand trial and he was ordered into the state's competency restoration program at the  Anoka County Treatment Center. Mr. Handeland was found competent in November 2016 and his Benton County case resumed, resulting in a guilty plea in April 2018.

In between the Defendant's return to competency and his April 2018 plea, he managed to get arrested on two separate fifth-degree controlled-substance offenses and spent additional days in local jails related to those offenses.

At the Defendant's 2018 sentencing in Benton County, the district court sentenced Handeland to 60 months in prison, stayed execution of the sentence and placed him on probation for seven years. The court awarded the Defendant 194 days of jail credit.

Mille Lacs County then brought the Defendant back to face a probation revocation hearing. The district revoked Handeland's probation and sentenced him to 42 months in prison and only awarded the Defendant eight days of custody credit.  How stupid!

On appeal, the Minnesota Court of Appeals reversed the lack of custody credit and does a nice job explaining when a Defendant is entitled to credit for jail time and treatment. As stated by the Court:

"Between his 2012 Mille Lacs County arrest for DWI and the 2018 execution of his 42-month sentence for that DWI, Handeland spent approximately 389 days in custody. Those days largely fall into three buckets: the days spent in the Mille Lacs County jail related to the 2012 DWI; the days spent in local jails related to other convictions (primarily an additional DWI arrest and conviction in Benton County) and days spent in examination and treatment as part of his competency restoration. To properly calculate Handeland’s custody credit, we first address the Mille Lacs County jail time, clearly related to the underlying DWI conviction. Next, because both the second and third buckets of days involve unconnected cases, we then turn to the issue of how to evaluate credit for intrajurisdictional custody. Finally, we address the custody-credit standards for secure treatment for competency-restoration purposes."

60 Days In Mille Lacs County Jail:

"The Minnesota Rules of Criminal Procedure clearly state that a criminal defendant is entitled to jail credit for time spent in custody “in connection with the offense or behavioral incident being sentenced.” Minn. R. Crim. P. 27.03, subd. 4(B) (emphasis added). As the state concedes on appeal, although these days were not discussed at Handeland’s probation-violation hearing, they clearly were time spent in custody in connection with the original sentence and should count as custody credit."

Credit for Custody in Unconnected Cases:

In State v. Brown, the Minnesota Supreme Court held that jail time spent out-of-state will not be credited unless it is connected to the offense for which the Defendant is being sentenced.  But this does not apply to in-state, but unrelated cases.  The reason is, "In evaluating credit for intrajurisdictional custody, we seek to avoid four potential concerns: “de facto conversion of a concurrent sentence into a consecutive sentence; indigent persons serving effectively longer sentences as a result of their inability to post bail; irrelevant factors . . . affecting the length of incarceration; and manipulation of charging dates by the prosecutor so as to increase the length of incarceration"(citations omitted).

"Having reviewed the governing approach to intrajurisdictional credit, we turn to the time Handeland spent in other local jails. This constitutes 194 days—primarily related to the Benton County DWI—between his original Mille Lacs County sentencing and his probation revocation five years later....To deny credit without evaluating these days in light of the intrajurisdictional approach described above was error."

Mental Health Treatment Credit:

The Court of Appeals notes that Rule 20.01, subd. 11, states: "If the defendant is convicted, any time spent confined to a hospital or other facility for a mental examination under this rule must be credited as time served."

"As the state suggests, the rule only dictates jail credit for the examination period. Minn. R. Crim. P. 20.01, subd. 11. But our inquiry does not end with this rule. As this court explained in Bonafide, the language of the rule may simply not address—rather than affirmatively exclude—credit for competency-restoration treatment during a commitment."

"And to examine this issue of credit for treatment, the Bonafide court first looked at the supreme court’s expansion of custodial credit, in light of “the philosophy behind the rule.” Id. at 214. This court also, citing other state court decisions, explained that “the degree of deprivation of liberty in a mental commitment facility is equivalent to a jail or prison facility.” Id. And this court took note of the ABA Criminal Justice Mental Health Standard, which provides that a defendant detained for examination of competence “or treatment... to effect competence to stand trial should receive credit against any sentence ultimately imposed for the time of such pretrial confinement.” Id. at 215. As a result, the Bonafide court interpreted rules 20.01 and 27.03, subd. 4, as requiring credit against sentence for custodial time spent in a secure hospital under a rule 20 presentence commitment procedure.  We see no reason to retreat from Bonafide, to the more restrictive reading of rule 20 the state suggests."

Moral Of The Story:  In Minnesota, we give credit where credit is due!

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

The Minnesota DWI Case Of The Week is State v. Donner (Decided June 10, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a defendant need only make a prima facie showing to be entitled to a jury instruction.

Mr. Donner was arrested for a DWI on August 7, 2016 after driving home from a nightclub.  He testified at trial that someone slipped him a drug and that he was entitled to an involuntary intoxication jury instruction.

Mr. Donner testified he ordered a club soda at a night club while his friend went to the dance floor.  Mr. Donner had been in a car accident roughly a week before the arrest, and so, following his doctor’s recommendation, he did not have any alcoholic beverages to drink that night. He was also carrying about $300 in cash because he had been paid the same day.

Defendant testified that after his friend went to dance, he was approached at the bar by a woman he did not know. He purchased a drink for this woman. After chatting with this woman, appellant left his club soda at the bar while he went to the bathroom, and then came back and continued his conversation with the same woman at the bar for approximately 20 or 30 more minutes.

Mr. Donner then ended this conversation and joined his friend on the dance floor. After a short time, he “started to feel funny,” so he went back to the bar to buy a bottle of water. At this point, Donner noticed that most of the $300 in cash he had been carrying was gone. After looking and asking around for his missing money, the Defendant got upset and decided to leave the club.

R.A., a security guard at the parking lot Donner parked at, testified that appellant walked to the garage around 2:00 a.m. on August 7, 2016. Defendant appeared drunk, and R.A. told him to take a nap before driving. A.S., a second security guard at the parking garage, testified that he saw Defendant get into his car, sit without driving for four or five minutes, start driving, and almost immediately hit a parked car. R.A. then called 911 to summon the police.

Officer Ross Blair was one of the officers who responded to the call. When Officer Blair arrived, Defendant was asleep in his car and had to be woken up. Officer Blair testified that appellant showed signs of intoxication and failed multiple field sobriety tests, but did not smell like alcohol. Defendant also took a preliminary breath test for the presence of alcohol which did not detect any alcohol in appellant’s system. Police arrested Defendant based on his failed sobriety tests and took him to get tested for the presence of other chemicals in his system.

Police obtained a warrant for Defendant's blood, had a sample taken at a nearby hospital, and sent it to the Bureau of Criminal Apprehension to be tested for the presence of intoxicants. The test revealed that Defendant had a significant amount of alprazolam, more commonly known as Xanax, in his system. The therapeutic range for alprazolam is between .02 and .06 milligrams per liter, while the testing revealed appellant had a concentration of .074 milligrams per liter in his bloodstream. Appellant was eventually charged with second-degree driving while impaired in violation of Minn. Stat. § 169A.20, subd. 1(2) (2016), and careless driving in violation of Minn. Stat. § 169.13, subd. 2 (2016).

At trial, Defendant did not contest the fact that he drove while impaired, but testified that he did not knowingly consume any intoxicating substances the evening of his arrest. At the close of evidence, the district court considered whether to instruct the jury on the affirmative defense of involuntary intoxication. Though the district court noted that it was a “close call,” it elected not to include this instruction, concluding that Defendant had failed to establish a prima facie case.

On appeal, the Minnesota Court of Appeals justifiably reversed the district court.  It appears that the district court did not know the meaning of prima facie. Or, as stated by the Court of Appeals:

"It is beyond dispute that a party is entitled to an instruction on his theory of the case if there is evidence to support it.” State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977). If an instruction is “warranted by the facts and relevant law” it must be given. State v. McCuiston, 514 N.W.2d 802, 804 (Minn. App. 1994), review denied (Minn. June 15, 1994); see also State v. Moser, 884 N.W.2d 890, 905 (Minn. App. 2016) (noting that once a defendant meets “a burden of production by making a prima facie showing that the defense applies,” the district court must give a jury instruction on an affirmative defense)."

"A prima facie showing is that which is “based on what seems to be true on first examination, even though it may later be proved to be untrue.” Black’s Law Dictionary 1382 (10th ed. 2014) (defining “prima facie”). “[T]he defendant’s burden of making a prima facie showing that would entitle him to a jury instruction and the defendant’s burden of proving to the trier of fact by a preponderance of the evidence each element of the defense proffered are two separate inquiries.” State v. Voorhees, 596 N.W.2d 241, 250 n.2 (Minn. 1999)."

***

"We conclude that, when viewing the evidence in the light most favorable to appellant, appellant did establish a prima facie case for the affirmative defense of involuntary intoxication. Therefore, the district court abused its discretion when it declined to instruct the jury on involuntary intoxication."

Moral Of The Story:  While appearances may be deceiving, they are enough to get you a jury instruction.

If you or a loved one have been charged with 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 and DUI questions.

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

The Minnesota DWI Case Of The Week is State v. Haugen (Decided May 28, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that your pre-test right to counsel is not violated if you make no attempt to contact an attorney.

In Haugen, the Defendant was arrested by the state patrol in Beltrami County for DWI and was taken to the jail where he was read the Minnesota Implied Consent Advisory, informing Mr. Haugen of his right to counsel prior to testing.  Mr. Haugen asked to speak with an attorney, and the trooper provided a telephone and phonebooks. Haugen used neither, but refused to submit to testing until he spoke with his attorney. The trooper deemed appellant’s conduct a test refusal.

The Defendant filed a motion to suppress alleging his right to counsel had been violated.  The District Court denied the motion concluding that appellant failed to make a good-faith effort to contact an attorney. The court found that, after appellant was offered a telephone and phonebooks, he did not use them, but rather “argued that he would not be able to reach an attorney due to the hour.” And when the trooper pointed out that appellant could at least try, appellant argued that he needed a Minneapolis phonebook. The trooper indicated that appellant could use the phonebooks in the room, and appellant became upset because he did not have access to his cellphone, which purportedly contained his attorney’s contact information.

On appeal, Mr. Haugen asserted that the trooper’s act of supplying “two local Beltrami Phonebooks” was insufficient, and the trooper was obligated to conduct an Internet search to find the contact information for his Minneapolis-based attorney.  The Court of Appeals rejected the claim stating:

"Appellant cites no caselaw to support his assertion that the trooper was obligated to provide additional phonebooks or conduct an Internet search. The limited right to counsel before deciding whether to submit to chemical testing “is vindicated when the driver is provided with a telephone and given reasonable time to contact and talk with an attorney.” Duff v. Comm ’r of Pub. Safety, 560 N.W.2d 735, 737 (Minn. App. 1997). The trooper was only required to allow and facilitate appellant’s right to counsel, he was not required to ensure that appellant “received the best or even proper counsel.” Butler v. Comm ’r of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984). The trooper provided appellant with a telephone and phonebooks, and appellant failed to make a good-faith effort to contact an attorney. Appellant’s right to counsel was vindicated."

The result may very well have been different had the Defendant supplied the officer with the name of the Minneapolis attorney he was seeking to reach as previous case law states the police must allow an individual to call long distance to reach a specified Minneapolis attorney. 

Moral Of The Story:  If you want to get something done, do it yourself!

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 Lawyer, 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 Case Of The Week is State v. Peterson (Decided May 6, 2019, Minnesota Court of Appeals, Unpublished) which, once again, stands for the proposition that if you have been drinking and driving and make it home do not open your door!

In Peterson, Minnesota State Trooper Jon Wenzel followed the Defendant to his home after observing an equipment violation and some speeding.  

Peterson parked his truck in his home driveway, immediately exited, and walked quickly toward his front door. Wenzel pulled into the driveway and parked. Wenzel saw Peterson look directly at him and keep walking. Wenzel stepped out of his car, identified himself as a state trooper, and loudly told Peterson to stop because “I need to talk to you.” Wenzel testified that Peterson’s wife, M.P., also saw him as Peterson climbed the steps to his porch. The couple went inside and locked the door.

Wenzel had not activated his emergency lights, in part because he intended to “advise [Peterson] of the equipment violation.” Based on Peterson’s behavior in the driveway, Wenzel testified that he believed that “there might be something other than speeding] or an equipment violation that would cause [Peterson] to try to evade” police.

Wenzel opened the storm door, knocked on the front door, “announced himself,” and said he needed to speak to Peterson.  Peterson's wife eventually answered the door and said that she would see if her husband would come to the door.

Wenzel saw Peterson open a beer can as he walked toward and opened the front door. While they stood in the doorway, Wenzel observed that Peterson had an “unsteady gait,” “sort of swayfed],” had “very slurred” speech, and his eyes were bloodshot and watery. Wenzel testified he smelled an “overwhelming odor of alcohol” coming from Peterson.

Wenzel asked Peterson to come outside and speak with him, and told Peterson that he would be arrested for obstruction of legal process if he did not cooperate. Peterson refused and Wenzel grabbed Peterson’s arm. Peterson resisted and began backing away from the doorway and toward the living room. Wenzel testified that his foot may have been on the threshold as he grabbed Peterson. Peterson, with M.P. ’s assistance, forcefully pulled away from Wenzel, who called for an on-scene deputy to back him up. Together, Wenzel and the other deputy moved Peterson outside the home

After doing some field tests and obtaining a .198 reading on a preliminary breath test, Mr. Peterson was arrested for DWI.  The Defendant was taken to the police station where he subsequently refused to submit to testing.  

Mr. Peterson was charged with felony DWI and he challenged the validity of his arrest asserting the trooper was not in "hot pursuit"when Peterson entered his home.  The State in its response claimed that the trooper was in hot pursuit but on appeal, the Court of Appeals declined to address the issue finding instead that the arrest lawfully began in the doorway of the Peterson home.

The Court of Appeals began its analysis by noting that "Absent exigent circumstances, police officers may not enter an individual’s home to make a warrantless arrest. Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 1382 (1980). The doorway of one’s home, however, has been held to be a public place for the purposes of the Fourth Amendment."..."Once a police officer has begun to arrest a person in a public place, that person may not retreat into their home to thwart an arrest."
***
"Wenzel had probable cause to arrest Peterson for DWI. As Peterson stood in his doorway, Wenzel observed multiple indicia of intoxication within a very short time after Peterson stopped driving. When these observations are considered together with Peterson’s evasive behavior and his refusal to cooperate with Wenzel, we conclude that Wenzel had probable cause to arrest Peterson for DWI."
***
"Because the record supports the district court’s factual findings that Wenzel began to arrest Peterson while he was in the doorway of Peterson’s home, we conclude that these findings are not clearly erroneous. Because Wenzel began to arrest Peterson in the doorway, Peterson could no longer flee back into his house to thwart the arrest."

Moral Of The Story:  A man's home is his castle so don't open the door for the police!

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.