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DWI Case Of The Week is Martini v. Commissioner of Public Safety (Decided December 2, 2019 Minnesota Court of Appeals, Unpublished) which stands for the proposition that that not every misstatement by the police constitutes a due process violation.  

Mr. Martini was a resident of Oregon when he was stopped by a state trooper in Stearns County, Minnesota.  He was subsequently arrested for DWI and after testing over the legal limit, the trooper issued Mr. Martini a "Notice and Order of Revocation".  The Notice stated his privilege to drive in Minnesota would be revoked in seven days. The trooper, however, mistakenly informed the Defendant that the revocation was immediate.

Martini petitioned for judicial review, asking the district court to rescind the revocation. He argued that his due-process rights were violated because Trooper Carlson had incorrectly told him that his license revocation was effective immediately rather than after seven days and that he suffered prejudice because of the error. The district court sustained the revocation and on appeal, the Court of Appeals affirmed the lower court, stating:

"We emphasize that the practical effective date of the revocation of Martini’s driving privileges was not immediate but rather seven days after the trooper issued the written notice, as the written notice provided. The district court found that Martini’s practical revocation did not commence until that date. Martini does not contest the finding. And as his counsel implicitly acknowledged at oral argument, the Minnesota revocation also had no immediate effect in Oregon. See Or. Rev. Stat. § 809.400(2) (2017) (“The department may suspend or revoke the driving privileges of any resident of this state upon receiving notice from another state . . . that the person’s driving privileges in that jurisdiction have been suspended or revoked.”). The trooper’s incorrect oral statement about the revocation’s practical onset therefore had no effect on Martini’s actual driving privileges anywhere."

"Even if we were to recognize, as Martini urges, that prejudicial reliance on an officer’s misstatement could constitute a due-process violation outside the McDonnell setting, Martini has not established that his reliance was reasonable. Martini’s theory would require us to accept that an officer’s oral misstatement of the revocation’s practical onset constitutes a due-process violation even when the officer simultaneously provides the driver clear, accurate, written notice. Martini offers no caselaw or logical explanation supporting the theory, and we do not assume any exists. Aware of the irreconcilable inconsistency between the oral statement and the written statement about the revocation’s practical onset, Martini was on notice that one of the statements was certainly wrong. He could have resolved the discrepancy by referring to the relevant statutes and rule."

Moral Of The Story: Don't take legal advice from a cop.

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.

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 Willis v. Commissioner of Public Safety, (Decided November 19, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if the police read a misleading advisory to a person under arrest for DWI, the arrestee must testify he or she relied on the misleading advisory in order to establish a due process violation.

These cases keep coming up over and over in the Court of Appeals and the reason is this:  It used to be, under Olinger v. Commissioner of Public Safety, that all the defense had to show was that the advisory was misleading in order to establish a due process violation. It did not matter if the defendant testified or not. And it did not matter if the defendant submitted to testing or not. But all that has changed under the recent Minnesota Supreme Court cases of Morehouse and Johnson v. Commissioner of Public Safety.

In Morehouse and Johnson, the Supreme Court held that in order to establish a due process violation, the Defendant must establish three things:

(1) That the person whose license was revoked submitted to a breath, blood or urine test;
(2) The person prejudicially relied on the implied consent advisory in deciding to undergo testing; and 
(3) The implied consent advisory did not accurately inform the person of the legal consequences of refusing to submit to testing.

Since everyone was relying on Olinger, no attorney was having their Minnesota DWI client testify that they relied upon what they were told when the police read the Minnesota Implied Consent Advisory. And so now, all those Olinger-type cases are getting reversed by the Minnesota Court of Appeals. AARRGH!!

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

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

The Minnesota DWI Case Of The Week is Windsor v. Commissioner of Public Safety (Decided November 5, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that if the police read a misleading advisory to a person under arrest for DWI, the arrestee must testify he or she relied on the misleading advisory in order to establish a due process violation.

In Windsor, the Petitioner was arrested for a DWI and was read a Minnesota Implied Consent advisory and was asked to submit to a blood test.  The advisory falsely advised the Petitioner that refusal to submit to a warrantless blood test was a crime.  The Petitioner submitted to a blood test and the test result indicated the presence of amphetamine.

The commissioner revoked Windsor’s license to drive based on the results of the blood test. Windsor petitioned the district court for rescission of the license revocation. The district court held an implied-consent hearing, at which the court received the following evidence: a peace-officer certificate, a copy of the implied-consent advisory that was read to Windsor, and a copy of Windsor’s test results. Windsor did not testify at the hearing.

The district court rejected Windsor’s Fourth Amendment argument, reasoning that Windsor “freely and voluntarily” consented to the blood test. However, the district court relied on McDonnell and found that the state violated Windsor’s right to due process because “[i]t was not a crime for [Windsor] to refuse a warrantless request for a blood test” and that Windsor was therefore “misled when he was told refusal was a crime.” The district court concluded, “Since the portion of the Implied Consent Advisory that informed [Windsor] that ‘test refusal is a crime’ was unconstitutional, his driver’s license revocation is rescinded.

The State appealed and the Minnesota Court of Appeals reversed the district court, noting:

"In its recent decision in Johnson, the supreme court stated that a due-process violation under McDonnell does not occur 'solely because a driver [has] been misled' by an implied-consent advisory. 911 N.W.2d at 508. Instead, the supreme court stated:

A license revocation violates due process when: (1) the person whose license was revoked submitted to a breath, blood, or urine test; (2) the person prejudicially relied on the implied consent advisory in deciding to undergo testing; and (3) the implied consent advisory did not accurately inform the person of the legal consequences of refusing to submit to the testing. Id. at 508-09 (citing McDonnell, 473 N.W.2d at 853-55)."

***

"The circumstances here are identical to those in Morehouse. Although Windsor submitted to a blood test, he did not establish that he prejudicially relied on the implied- consent advisory in deciding to submit to the test. He therefore is not entitled to due- process relief under McDonnell."

Moral Of The Story: Only the squeaky wheel gets the grease!

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

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

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

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

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

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

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

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

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

OUCH!

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

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

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. Hyrdahl (Decided September 4, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if the Implied Consent Advisory is technically correct as read to the Defendant, then the advisory does not violate due process.

In Hyrdahl, the Defendant was arrested for DWI and at the jail, the arresting the officer read the breath-test advisory to Mr. Hyrdahl. The Defendant contacted an attorney and, after speaking to his attorney, agreed to take the offered breath test. Defendant's alcohol concentration was 0.14.

The Defendant filed a motion to suppress the evidence resulting from his agreement to take the breath test, alleging that the breath-test advisory violated his due-process rights. Defendant agreed that while it is against the law to refuse to consent to a breath test, the advisory seemed to suggest that it was against the law to refuse to consent to any test, a misstatement of the law. The district court agreed and suppressed evidence resulting from his agreement to take the breath test, finding that the advisory, as read by the officer, was misleading and violated defendant's due-process rights. 

The State appealed the District Court and the Minnesota Court of Appeals reversed the lower court, stating:

"Minnesota law requires law enforcement to provide an advisory prior to administering a breath test to a driver. Minn. Stat. § 169A.51, subd. 2 (2016). The advisory must inform drivers that "Minnesota law requires [them] to take a test," "that refusal to submit to a breath test is a crime," and that they may consult with an attorney. Id. Failing or refusing such a test can result in license revocation. Minn. Stat. § 169A.52, subds. 3, 4 (2016)."

"In the criminal context, like this case, due process requires that criminal defendants be treated with fundamental fairness. Id. A due-process violation in a criminal prosecution for driving while impaired occurs when a breath test is obtained through coercion. Id. An implied-consent advisory is coercive if it is misleading. State v. Stumpf, 481 N.W.2d 887, 889-90 (Minn. App. 1992)."

"Here, the advisory given by law enforcement did not violate respondent's due-process rights because it was not misleading. The officer informed respondent that Minnesota law required him to take "a test" to determine the presence of alcohol. The officer then informed respondent that refusal to take "a test" is a crime. The officer informed respondent that he had a right to consult with an attorney, and respondent then spoke with an attorney. Lastly, the officer offered respondent a "breath test," and respondent consented to take the breath test. The officer accurately informed respondent that his failure to take the breath test could result in criminal penalties. Therefore the advisory did not misstate the law."

"The district court determined that the instruction was misleading because the officer informed respondent that refusal to take a "chemical test" is a crime. The court determined this was a misstatement of the law because a driver may refuse certain chemical tests like those for blood or urine and such a refusal is not a crime. See State v. Thompson, 886 N.W.2d 224, 234 (Minn. 2016); State v. Trahan, 886 N.W.2d 216, 224 (Minn. 2016). But based on the record, the officer did not instruct respondent that refusal to take a chemical test is a crime and instead explained that refusal to take a test is a crime. And, the only test offered to respondent was a breath test; the instruction accurately described that refusal to take the offered breath test would be a crime. The officer never asked respondent to take a blood or urine test. Given the circumstances, the breath-test advisory was not misleading."

Moral Of The Story: Close enough for government work!
If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.

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 Grey v. Commissioner of Public Safety (Decided August 6, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that a constitutional challenge to the application of the Minnesota Implied Consent Statute can be raised even though the statute limits the types of challenges that can be raised in the revocation hearing.  

In Grey, the Appellant was an out-of-towner from Iowa, who received a notice and order of revocation following a failed breath test at the sheriffs office. But in the midst of being transported to detox, the notice was left behind. A few days later, the notice and order of revocation was mailed to him. Gray requested an implied-consent hearing at which he contended that his license revocation should be rescinded because his due-process right was violated in light of not receiving the revocation notice and because of an ambiguity in the notice stemming from his driver's license being issued by Iowa, not Minnesota. The district court disagreed, determining that Gray properly received the notice, and due to his own conduct, left the document behind.  The district court also found that the Appellant could not raise a procedural due process challenge as it is not a challenge listed as permissible for hearing in a license revocation case.

On appeal, the Minnesota Court of Appeals affirmed the district court on other grounds but it significantly found that:

"Individuals are entitled to seek administrative or judicial review after receiving a notice and order of revocation. Minn. Stat. § 169A.53, subds. 1-2 (2016). For a judicial-review hearing, also known as an implied-consent hearing, the statute explicitly limits the issues that can be addressed. Minn. Stat. § 169A.53, subd. 3 (2016) (stating that the "scope of the hearing is limited to the issues" listed). Arguments concerning procedural due process are not among the listed issues."

"Whether an argument not listed in Minnesota Statutes section 169A.53, subdivision 3(b), can be raised at an implied-consent hearing was addressed in Axelberg, where the Minnesota Supreme Court was faced with a petitioner who attempted to raise a necessity defense at an implied-consent hearing. 848 N.W.2d at 207-08. Through a statutory-interpretation analysis, the supreme court determined that because the necessity defense was not one of the delineated issues in the statute, the individual could not raise the defense.6 Id. at 208, 212. It reasoned that the language in the statute, "[t]he scope of the hearing is limited to the issues" listed, meant exactly that—the legislature limited the issues that can be raised. Id. at 208-09."

"Before us is a similar situation as that faced by the Axelberg court, but with a distinct difference. Here, as in Axelberg, Gray attempted to raise an issue outside the scope of Minnesota Statutes section 169A.53, subdivision 3(b), at the implied-consent hearing. But Gray's argument concerned his constitutional right to procedural due process, unlike the issue from Axelberg, which considered the common-law defense of necessity. 848 N.W.2d at 206 (noting that the defense of necessity is a common-law defense). We discern that this distinction—between a common-law affirmative defense and the constitutional right to due process—is significant, and conclude that Gray can raise a due-process argument at his implied-consent hearing."

"It is the critical nature of the constitutional right to due process, and its guarantee of fundamental fairness, that drives our determination. The importance of due process in judicial proceedings cannot be overstated, as it "is the primary and indispensable foundation of individual freedom." Application ofGault, 387 U.S. 1, 20, 87 S. Ct. 1428, 1439-40 (1967) (describing due process as "the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise"). The hallmark of the procedural protections afforded by the due process clause is "fundamental fairness." Ford v. Wainwright, All U.S. 399, 424, 106 S. Ct. 2595, 2609 (1986). And while difficult to define exactly what procedural due process requires, courts have explained that it is this "fundamental fairness" that must be ascertained for a given situation. Lassiter v. Dep 't ofSoc. Servs., 452 U.S. 18, 24-25, 101 S. Ct. 2153, 2158 (1981). And proper notice is engrained in the concept of due process. Lambert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 243 (1957). Simply put, as Justice Marshall explained, "it is procedural due process that is our fundamental guarantee of fairness, our protection against arbitrary, capricious, and unreasonable government action." Bd. of Regents v. Roth, 408 U.S. 564, 589, 92 S. Ct. 2701, 2715 (1972) (Marshall, J., dissenting). Because of the importance of due process, it would be improper to determine that an individual cannot raise procedural due-process concerns at an implied-consent hearing."

"Furthermore, while the Minnesota Legislature may limit what arguments can be raised at an implied-consent hearing, it cannot legislate away constitutional rights."

Moral Of The Story:  The constitution trumps legislation every time!

If you or a loved one have been arrested for a Minnesota DWI or are facing the 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 and forfeiture 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. Hammers (Decided September 18, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the Minnesota Implied Consent Advisory does not have to inform an individual under arrest for DWI that the police need a warrant to obtain a blood sample.

In Hammers (unfortunate name), the Defendant was stopped for driving over the fog and center lines.  The deputy noticed that Hammers' eyes were watery and bloodshot and after the Defendant failed field-sobriety tests, Mr. Hammers was arrested and taken to the Carver County jail.

Mr. Hammers was read the Minnesota Implied Consent Advisory, which informed him that Minnesota law required him to take an alcohol concentration test, that refusal to test was a crime, and that he had the right to consult with an attorney before deciding whether to submit to the test. Hammers stated that he understood the advisory and he declined to speak to an attorney. He took a breath test, which revealed an alcohol concentration of 0.29.

Hammers filed a motion to dismiss the DWI charges arguing that the Minnesota Implied Consent Advisory was misleading and, therefore, violated his right to due process.  The District Court denied the motion and on appeal, the Minnesota Court of Appeals affirmed, noting that: "An implied consent advisory that contains no misleading assurances would not violate federal due process"..."Hammers maintains unconvincingly that the implied-consent advisory must also inform drivers that Minnesota law allows officers to seek a search warrant to obtain a chemical test. He cites Birchfield v. North Dakota for the notion that the advisory defined by statute is inadequate because it lacks a warrant advisement. See U.S. , 136 S. Ct. 2160 (2016). The Birchfield Court held that a breath test is a permissible search incident to a person's drunk-driving arrest and that the state may therefore criminally prosecute the person for refusing a warrantless breath test. 136 S. Ct. at 2186. We read nothing in Birchfield to require the state's implied-consent advisory to contain a warrant advisement for breath tests."
***
"Because neither the statute nor any caselaw requires a warrant advisement, the advisory was not misleading and did not violate Hammers's due process rights. The district court did not err by denying Hammers's motion to dismiss."

What is interesting about this case is that the Court also states in its opinion that, "Current Minnesota law would not have permitted police to obtain a warrant to test Hammers if he refused testing after he received the implied-consent advisory. See Minn. Stat. § 169A.52, subd. 1 (2016) ("If a person refuses to permit a test, then a test must not be given."); see also State v. Scott, 473 N.W.2d 375, 377 (Minn. App. 1991) (explaining that police may not compel driver to submit to test after driver refuses test)."

So this case is interesting because some counties (Isanti, Carver, come to mind) are reading the advisory and if the defendant refuses, executing a search warrant to get the blood.  This practice is now clearly illegal.

Moral Of The Story:  You should exercise your right to counsel prior to testing as it may save you from a DWI!!

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

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

The Minnesota DWI Case Of The Week is Johnson V. Commissioner of Public Safety (Decided November 7, 2016, Minnesota Court Of Appeals, Published) which stands for the proposition that the Minnesota Implied Consent Advisory violates due process when it threatens a criminal refusal charge that the state is not authorized to impose.

In Johnson, the Petitioner was involved in a single-vehicle collision.  When the police arrived, the officer noticed a large unmarked bottle in Petitioner's vehicle which appeared to contain a number of pills.  The Petitioner appeared to be under the influence of something but the officer did not suspect that alcohol was involved.

The Petitioner was placed under arrest for driving while impaired and the officer read Johnson an implied-consent advisory, informing him that Minnesota law required him to take a test to determine if he was under the influence of alcohol or a hazardous or controlled substance and that he had the right to speak with an attorney before deciding whether to take a test. The officer also informed Johnson that refusal to take a urine test is a crime.  The officer did not request a breath test because he did not suspect that Johnson was under the influence of alcohol. Johnson refused to submit to testing.

Appellant Commissioner of Public Safety revoked Johnson's license to drive based on his refusal to submit to a chemical test. Johnson petitioned the district court for rescission of the license revocation. Johnson claimed that his right to due process was violated because the officer did not properly inform him of the consequences of test refusal. The district court rescinded the revocation of Johnson's license to drive, relying on McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991). The district court reasoned that the implied-consent advisory violated Johnson's right to due process by inaccurately informing him that refusal to take a urine test is a crime when Johnson "could not have been criminally charged for refusing an unconstitutional search." 

On appeal by the state, the Minnesota Court of Appeals upheld the District Court, noting:

"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). 
However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873 (Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). 
The district court relied on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom. "
***
"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test
13
refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873
(Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). The district court relied
on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom."
***
"Thompson holds that Minnesota's criminal test-refusal statute is unconstitutional as applied to an individual who refuses to take an unconstitutional urine test. The circumstances of this case fall squarely within Thompson's holding, and the refusal statute is therefore unconstitutional as applied to Johnson. Because a criminal test-refusal charge would be unconstitutional, the implied-consent advisory inaccurately informed Johnson that refusal to take a urine test is a crime. When the state provided that inaccurate advisory, it misinformed Johnson regarding the penalties he would face if he refused to submit to testing, in violation of his right to due process, as established in McDonnell."

Moral of the Story: Don't Make A Threat If You Can't Enforce it.

If you or a loved one have been arrested for 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 questions.

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

The Minnesota DWI Case Of The Week is Johnson V. commissioner of Public Safety (Decided November 7, 2016, Minnesota Court Of Appeals, Published) which stands for the proposition that the Minnesota Implied Consent Advisory violates due process when it threatens a criminal refusal charge that the state is not authorized to impose.

In Johnson, the Petitioner was involved in a single-vehicle collision.  When the police arrived, the officer noticed a large unmarked bottle in Petitioner's vehicle which appeared to contain a number of pills.  The Petitioner appeared to be under the influence of something but the officer did not suspect that alcohol was involved.

The Petitioner was placed under arrest for driving while impaired and the officer read Johnson an implied-consent advisory, informing him that Minnesota law required him to take a test to determine if he was under the influence of alcohol or a hazardous or controlled substance and that he had the right to speak with an attorney before deciding whether to take a test. The officer also informed Johnson that refusal to take a urine test is a crime.  The officer did not request a breath test because he did not suspect that Johnson was under the influence of alcohol. Johnson refused to submit to testing.

Appellant Commissioner of Public Safety revoked Johnson's license to drive based on his refusal to submit to a chemical test. Johnson petitioned the district court for rescission of the license revocation. Johnson claimed that his right to due process was violated because the officer did not properly inform him of the consequences of test refusal. The district court rescinded the revocation of Johnson's license to drive, relying on McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991). The district court reasoned that the implied-consent advisory violated Johnson's right to due process by inaccurately informing him that refusal to take a urine test is a crime when Johnson "could not have been criminally charged for refusing an unconstitutional search." 

On appeal by the state, the Minnesota Court of Appeals upheld the District Court, noting:

"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). 
However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873 (Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). 
The district court relied on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom. "
***
"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test
13
refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873
(Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). The district court relied
on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom."
***
"Thompson holds that Minnesota's criminal test-refusal statute is unconstitutional as applied to an individual who refuses to take an unconstitutional urine test. The circumstances of this case fall squarely within Thompson's holding, and the refusal statute is therefore unconstitutional as applied to Johnson. Because a criminal test-refusal charge would be unconstitutional, the implied-consent advisory inaccurately informed Johnson that refusal to take a urine test is a crime. When the state provided that inaccurate advisory, it misinformed Johnson regarding the penalties he would face if he refused to submit to testing, in violation of his right to due process, as established in McDonnell."

Moral of the Story: Don't Make A Threat If You Can't Enforce it.

If you or a loved one have been arrested for 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 questions.

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

The Minnesota DWI Case Of The Week is Johnson V. commissioner of Public Safety (Decided November 7, 2016, Minnesota Court Of Appeals, Published) which stands for the proposition that the Minnesota Implied Consent Advisory violates due process when it threatens a criminal refusal charge that the state is not authorized to impose.

In Johnson, the Petitioner was involved in a single-vehicle collision.  When the police arrived, the officer noticed a large unmarked bottle in Petitioner's vehicle which appeared to contain a number of pills.  The Petitioner appeared to be under the influence of something but the officer did not suspect that alcohol was involved.

The Petitioner was placed under arrest for driving while impaired and the officer read Johnson an implied-consent advisory, informing him that Minnesota law required him to take a test to determine if he was under the influence of alcohol or a hazardous or controlled substance and that he had the right to speak with an attorney before deciding whether to take a test. The officer also informed Johnson that refusal to take a urine test is a crime.  The officer did not request a breath test because he did not suspect that Johnson was under the influence of alcohol. Johnson refused to submit to testing.

Appellant Commissioner of Public Safety revoked Johnson's license to drive based on his refusal to submit to a chemical test. Johnson petitioned the district court for rescission of the license revocation. Johnson claimed that his right to due process was violated because the officer did not properly inform him of the consequences of test refusal. The district court rescinded the revocation of Johnson's license to drive, relying on McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991). The district court reasoned that the implied-consent advisory violated Johnson's right to due process by inaccurately informing him that refusal to take a urine test is a crime when Johnson "could not have been criminally charged for refusing an unconstitutional search." 

On appeal by the state, the Minnesota Court of Appeals upheld the District Court, noting:

"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). 
However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873 (Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). 
The district court relied on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom. "
***
"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test
13
refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873
(Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). The district court relied
on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom."
***
"Thompson holds that Minnesota's criminal test-refusal statute is unconstitutional as applied to an individual who refuses to take an unconstitutional urine test. The circumstances of this case fall squarely within Thompson's holding, and the refusal statute is therefore unconstitutional as applied to Johnson. Because a criminal test-refusal charge would be unconstitutional, the implied-consent advisory inaccurately informed Johnson that refusal to take a urine test is a crime. When the state provided that inaccurate advisory, it misinformed Johnson regarding the penalties he would face if he refused to submit to testing, in violation of his right to due process, as established in McDonnell."

Moral of the Story: Don't Make A Threat If You Can't Enforce it.

If you or a loved one have been arrested for 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 questions.