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

The Minnesota DWI Case If The Week is State v. Klatt (Decided September 8, 2025, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it doesn't take much to justify the expansion of a traffic stop.

In Klatt, the Defendant was stopped for driving a vehicle with an inoperable taillight.  The officer making the stop testified he had met Mr. Klatt on two previous occasions.  The officer testified that at their first meeting, Klatt’s “eyes were clear and his manners were calm, and [the deputy] did not observe any signs of impairment."

The officer testified that at their second meeting, he “observed a change in behavior from the first time that [he] saw [Klatt].” He testified that Klatt’s “eyes were bloodshot and watery” and that Klatt was “kind of in an excited state.” During the conversation, Klatt admitted that he uses alcohol and cannabis and “stated that he would not stop.”

The officer testified that during the taillight stop, he he did not immediately observe any alcohol containers or drug paraphernalia, did not detect the smell of alcohol or marijuana, and did not observe any visible smoke. But he testified that, upon speaking with Klatt, the deputy “immediately recognized that his eyes were bloodshot and watery and that his pupils were dilated.” The deputy explained that, in response to the light from his flashlight, Klatt’s pupils did not restrict and remained instead “more dilated than [he] would expect normally.” The deputy testified that he suspected Klatt was impaired based on his dilated pupils, his bloodshot and watery eyes, and his prior knowledge that Klatt used drugs and alcohol.

The deputy asked Klatt to step out of the vehicle and observed that Klatt’s “balance and coordination seemed fine.” Klatt submitted to field sobriety testing during which the deputy observed additional signs of impairment. The deputy placed Klatt under arrest and searched his vehicle. Inside Klatt’s vehicle, the deputy found several open alcohol containers.

Mr. Klatt was subsequently charged with underage drinking and driving and violating the open bottle law.  

The district court, however, suppressed all of the evidence, ruling that the officer unlawfully expanded the traffic stop into a driving while impaired (DWI) investigation because “the [deputy’s observation of [Klatt] with bloodshot and watery eyes, and dilated pupils, [was] insufficient to provide reasonable [articulable] suspicion of intoxication,” and that the deputy’s prior interactions with Klatt did not support such a suspicion.

The State appealed the District Court's ruling and the Minnesota Court of Appeals reversed the lower court, noting:

"“An officer seeking to expand the duration or scope of the traffic stop beyond its original justification may only do so if he or she had a particularized and objective basis for suspecting the seized person of criminal activity.” State v. Sargent, 968 N.W.2d 32, 38 (Minn. 2021) (quotation omitted). “[E]ach incremental intrusion . . . [must be] tied to and justified by one of the following: (l)the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonable suspicion as defined by Terry. State v. Askerooth, 681 N.W.2d 353, 365 (Minn 2004)."

*    *    *

"The state argues that the deputy justifiably expanded the traffic stop because Klatt’s dilated pupils and bloodshot and watery eyes constituted two indicia of impairment, and two indicia of impairment are sufficient to support a reasonable suspicion.  We agree."

"In Klamar, a trooper pulled behind a vehicle stopped on the shoulder of the freeway. Id. at 690. After asking the driver to step out of the vehicle, the trooper “noticed an odor of alcohol emanating from [the driver] and that [the driver]’s eyes were bloodshot and watery.” Id. The trooper expanded the scope of the stop and conducted a DWI investigation. Id. The investigation indicated that the driver was intoxicated, and she was charged with DWI. Id. The district court determined that the trooper did not have reasonable suspicion to expand the stop and dismissed the charge. Id. We reversed, concluding that “[t]he trooper’s observation of two indicia of intoxication specific to [the driver] reasonably justified further intrusions in the form of field sobriety and preliminary breath testing.” Id. at 696.

Here, as in Klamar, the deputy observed two indicia of impairment specific to Klatt: dilated pupils and bloodshot and watery eyes. But the district court noted that, although the deputy observed those two indicia, he observed “no others” and pointed out that the deputy did not observe Klatt slurring his speech or exhibiting an unsteady gait, and did not observe an odor of alcohol or marijuana. The district court concluded that, in the totality of the circumstances, the indicia that did indicate that Klatt was impaired were “rather weak” because “the majority of the circumstances . . . did not indicate [that Klatt] was impaired.” (Emphasis added.)"

"The district court’s analysis was incorrect. Reasonable suspicion does not require that an officer observe a driver exhibiting a majority of the known indicia of impairment. In this case, the deputy observed Klatt with dilated pupils and bloodshot and watery eyes. Consistent with our decision in Klamar, his observations provided an “independent basis” of suspicion that justified expansion of the traffic stop. Moreover, in the context of the more-demanding probable-cause standard, we have said that the absence of certain indicia does not invalidate or negate the existence of other indica. See, e.g.. State v. Prax, 686 N.W.2d 45, 49 (Minn. App. 2004) (concluding that driver “perform[ing] well” on field sobriety tests did not negate other indicia of impairment supporting probable cause), rev. denied (Minn. Dec. 14, 2004); State v. Grohoski, 390 N.W.2d 348, 351 (Minn. App. 1986) (concluding that district court “improperly focused on the absence of other indicia of intoxication” because a “DWI suspect need not exhibit every known sign of intoxication in order to support a determination of probable cause”), rev. denied (Minn. Aug. 27, 1986)."

"Because the deputy observed Klatt exhibiting two indicia of impairment, we conclude that the district court erred in determining that the deputy lacked reasonable suspicion justifying the expansion of the traffic stop."

Moral Of The Story:  Where is Visine when you need it?

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. Green (Decided June 9, 2025, Minnesota Court Of Appeals, Unpublished) which, once again, stands for the proposition that if the officer has probable cause to arrest for DWI, it constitutes a gross misdemeanor to refuse to submit to evidentiary testing.

In Green, a Hennepin County Sheriff's deputy stopped a black Cadillac for traveling 51 mph in a 25 mph zone.  The Cadillac driver told the officer she was trying to keep up with her sister, who was driving an Audi and who had also pulled over when the Cadillac was stopped.

The Deputy then spoke to the Defendant and he observed Ms. Green was speaking slowly, appeared lethargic and had slurred speech. He also noted the odor of alcohol.

The deputy had the Defendant get out of the vehicle and perform three field sobriety tests: the eye gaze nystagmus test; the walk and turn test and the one-leg stand test. Ms Green refused to submit to a preliminary breath test and was arrested for DWI.

The Defendant subsequently refused to submit to an evidentiary breath test at the police station and was charged with gross misdemeanor DWI refusal.  The case went to a jury trial and the Defendant was found guilty of DWI refusal.

On appeal, the Defendant claimed the evidence was insufficient to support her conviction but the Court of Appeals disagreed, noting:

"When a conviction is supported by direct evidence, “we limit our review to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” Horst, 880 N.W.2d at 40 (quotation omitted). We assume “that the fact-finder disbelieved any evidence that conflicted with the verdict.” Id."

***

"A person may be required to submit to a chemical test when the “officer has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle while impaired.” State v. Koppi, 798 N.W.2d 358, 362 (Minn. 2011) (quotation omitted)."

"To prove that the deputy here had probable cause to believe that Green was driving while impaired, the state presented evidence of the officer’s direct observations of Green’s erratic driving and behavior. He first observed Green and her sister speeding (going 51 miles per hour in a 25-mile-per-hour zone) and changing lanes at approximately 2:00 a.m., right after bar’s have typically closed in Minneapolis. Next, as the deputy spoke with Green he observed lethargy, slurred speech, and an odor of alcohol emanating from the vehicle. The state also introduced BWC footage supporting the deputy’s testimony about Green. And the deputy testified that, based on his training and experience, Green’s behavior was indicative of impairment. All of this evidence is direct evidence of the totality of the facts and circumstances known to the officers, and, if true, proves without inference that there was probable cause to believe Green was driving while impaired. See Olson, 887 N.W.2d at 700 (concluding that an officer’s direct observations of indicia of impairment and testimony based on those observations are direct evidence of impairment)."

"...we acknowledge that some of the deputy’s testimony about Green’s performance on the field sobriety tests is not corroborated by the BWC footage. For example, according to the deputy, Green performed poorly on the one-leg stand test by placing her foot down, swaying while balancing, and using her hands for balance. But the BWC footage does not show any of this. In fact, the BWC footage shows that Green maintained her balance for approximately 30 seconds before she began to sway. However, Green can be heard on the BWC footage slurring her words as she is counting, and the officer’s testimony regarding the walk-and-tum test is consistent with what is depicted in the BWC footage. Additionally, the deputy observed multiple indicia of impairment, and testified that, based on his training and experience, the erratic driving behavior exhibited by Green, coupled with the deputy’s observations of Green during the field sobriety tests, led the deputy to believe that she was impaired."

"Applying the direct-evidence standard and viewing the evidence in the light most favorable to the verdict, we conclude the evidence at trial was sufficient to prove beyond a reasonable doubt that law enforcement had probable cause to believe that Green was driving while impaired. The deputy observed erratic and high-speed driving, as well as physical indicia of impairment including observed lethargy, slurred speech, and an odor of alcohol emanating from the vehicle. The state introduced BWC footage that supports these observations. We have held that driving conduct and physical indicia similar to those exhibited by Green can support probable cause of intoxication. See Otto, 924 N.W.2d at 661 (holding that “[e]rratic driving and failing to observe traffic laws can be indicia of intoxication . . . and doing so at a time of day when drinking is often found to be involved” (1:20 a.m. on Saturday morning)); State v. Driscoll, 427 N.W.2d 263, 265 (Minn. App. 1988) (affirming probable cause where officer noted, among other things, odor of alcohol and failing to follow directions during field sobriety test)"

Moral Of The Story: A refusal to submit to testing is easier to prove than the validity of an evidentiary breath test. So don't refuse to submit to testing.

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 State v. Kost which stands for the proposition that a defendant's failure to provide adequate samples for a breath test does not automatically constitute a criminal refusal to submit to testing.

In Kost, the defendant was arrested for a DWI and was asked to submit to a Data Master Breath Test at the police station. Ms. Kost agreed to submit to the breath test but when the officer attempted to administer the test, the machine was unable to register an alcohol concentration level. The officer attempted to administer the test a second time, but Kost’s breath sample was again inadequate. He believed that Kost was purposefully providing inadequate breath samples. During the testing process, Kost requested multiple times that another officer be brought in to administer the test because a different officer had been able to successfully administer the PBT before she was arrested; the officer declined her requests. Kost also repeatedly stated that she was not refusing to take a test and offered to provide a blood sample; the officer declined to collect a blood sample.

Ms. Kost was charged with refusal to submit to testing and at trial, the Court gave the following jury instruction:

"A refusal to submit to chemical testing includes any indication of actual unwillingness to complete the testing process, as determined from the driver’s words and actions, in light of the totality of the circumstances. Refusal may be shown in a number of ways, including verbal refusal, nonverbal indication of unwillingness to comply, failure to make a decision, or actions that frustrate the testing process. When a test is administered using an infrared or other approved breath testing instrument, the failure of a person to provide two separate, adequate breath samples in the proper sequence constitutes a refusal." 

The defense challenged the instruction arguing that the last sentence only applies to license revocations and is not proper in the criminal case as it negates the willfulness requirement of refusal. 

The Minnesota Court of Appeals agreed with the defense and reversed the conviction stating:

"Kost acknowledges that the challenged portion of the instruction was taken directly from Minn. Stat. § 169A.51, subd. 5(c). But she argues that the language of that statute misstates the law for criminal test refusal because it applies only to license-revocation proceedings. The statute provides in relevant part: “For purposes of section 169A.52 (revocation of license for test failure or refusal), when a test is administered using an infrared or other approved breath-testing instrument, failure of a person to provide two separate, adequate breath samples in the proper sequence constitutes a refusal.” Minn. Stat. § 169A.51, subd. 5(c) (emphasis added). The same introductory phrase also appears in the first of the three subsequent provisions, which collectively address when a breath test (as opposed to a sample) is deficient and when a deficient test constitutes refusal. Id., subd. 5(d)-(f) (2022). Kost argues that this introductory phrase means that the failure to provide two separate, adequate breath samples constitutes refusal as a matter of law only in license-revocation cases."

***

"The statutory provision on its face includes the qualifying language that the failure to provide two separate, adequate breath samples constitutes a refusal “[f]or purposes of section 169A.52 (revocation of license for test failure or refusal).” Minn. Stat. § 169A.51, subd. 5(c). This case is not a license-revocation proceeding under Minn. Stat. § 169A.52 (2022); it is a criminal prosecution for test refusal under Minn. Stat. §§ 169A.20, subd. 2(1), .25, subd. 1(b) (2022). Accordingly, Minn. Stat. § 169A.51, subd. 5(c), does not apply."

***

"In Ferrier, we held that a conviction of test refusal “requires proof of a volitional act that indicates unwillingness to submit to a test,” and that such “actual unwillingness” may be determined from the driver’s words and actions in light of the totality of the circumstances. Ferrier, 792 N.W.2d at 99, 102. Kost argues that, while the district court accurately recited the actual-unwillingness standard to the jury, it then negated that standard by instructing the jury that failure to provide two separate, adequate breath samples constitutes test refusal as a matter of law. Again, we agree. The latter instruction effectively directs a guilty verdict if a driver fails to provide two breath samples that the testing machine registers as adequate, even if other circumstances indicate that the driver was not actually unwilling to submit to testing."

"In sum, because Minn. Stat. § 169A.51, subd. 5(c), does not apply in this criminal test-refusal case, and instructing the jury with that statute’s language negated the actual- unwillingness standard that does apply, we conclude that the challenged jury instruction materially misstated the law regarding criminal test refusal."

Moral Of The Story: Just because you are not a blowhard does not mean that you have refused testing.

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 WI Case Of The Week is Reihs v. Commissioner of Public Safety (Decided January 20, 2025, Minnesota Court of Appeals, Published) which stands for the proposition that an extension of a revocation or cancellation of a driver's license is not subject to judicial review. I always thought procedural due process required that any government action concerning the "property interest" of a driver's license is subject to judicial review, but live and learn, in this case, to one's detriment.

In Reihs, the Petitioner's license had been revoked due to a drunk driving arrest.  Reihs enrolled in the Minnesota's Ignition Interlock program which enabled him to regain driving privileges subject to the requirements laid out in the interlock-program guidelines. 

The interlock-program guidelines require participants to submit to two types of alcohol-detecting breath tests via a device installed in their vehicle: an initial test and rolling tests. The participant must pass the initial test to legally start their vehicle. The device then periodically requests rolling tests at intervals of five to 45 minutes while the vehicle is running. 

Reihs he failed to complete multiple rolling tests. Because of this, in July 2023, the commissioner sent him a warning letter stating that he had violated the interlock-program guidelines and that further violations would result in an extension of his program enrollment. In September, after Reihs again missed rolling tests, the commissioner informed him that his license-revocation period was extended for 180 days pursuant to Minn. Stat. § 171.306, subd. 5(a). And when Reihs thereafter continued to miss rolling tests, the commissioner advised him that his revocation period was extended for an additional year. Both extension notices included language informing Reihs that he had “the right to judicial review” as “outlined in Minnesota Statutes, section 171.19.”

Reihs filed a challenge in district court to the extension of the license revocation period but the lower court held that it lacked "subject matter" jurisdiction because extension of a revocation is not one of the five challenges enumerated in Minn. Stat. § 171.19. 

In a published decision, the Minnesota Court of Appeals upheld the lower court stating:

"Minn. Stat. § 171.19 provides, in pertinent part:

Any person whose driver’s license has been refused, revoked, suspended, canceled, or disqualified by the commissioner, except where the license is revoked or disqualified under section 169A. 52, 171.177, or 171.186, may file a petition for a hearing in the matter in the district court."

"First, Reihs asserts that extending a license-revocation period constitutes a 'revocation' under Minn. Stat. § 171.19 because there is “no material difference” between   a revocation and an extension of revocation. He suggests that an extension of a revocation period is, effectively, a 're-revocation.' We disagree."

The appellate court reviewed various definitions of revocation and found, "...'revocation' plainly means the initial act or instance of withdrawing a person’s driver’s license. Because an extension of a revocation period is not an initial instance of license withdrawal but a continuation of a withdrawal that has already occurred, it is a distinct and separate action from the revocation itself. Simply put, a revocation extension does not alter the license status of the revoked person. Accordingly, we conclude that the plain meaning of the term “revocation,” as used in Minn. Stat. § 171.19, does not include an extension of a driver’s license revocation issued pursuant to Minn. Stat. § 171.306, subd. 5(a)."

"Second, Reihs argues that, if an extension of revocation is not a “revocation” under Minn. Stat. § 171.19, it is a “de facto refusal to restore [his] license.” This argument is no more convincing."

"Like “revocation,” the term “refusal” is not statutorily defined. See Minn. Stat. § 171.01. Dictionaries define it as “[t]he act or an instance of refusing,” The American Heritage Dictionary of the English Language 1478, and “a denial or rejection of something demanded or offered,” 13 The Oxford English Dictionary 494. To “refuse” means to “indicate unwillingness to do, accept, give, or allow,” The American Heritage Dictionary of the English Language 1478, and to “decline to take or accept (something offered or presented); to reject [an] offer,” 13 The Oxford English Dictionary 495."

"The ordinary meaning of the term “refusal” clearly contemplates an action taken in response to a preceding request, application, or demand. Indeed, “indicating] unwillingness” and “declining] to accept” are both affirmative, responsive actions. Similarly, both definitional phrases imply discretion on the part of the refuser. It follows that an extension of revocation issued due to a violation of the interlock-program guidelines cannot be a “refusal.” This is so because an extension does not arise from any sort of request or application and it does not depend on the exercise of the commissioner’s discretion. Minn. Stat. § 171.306, subd. 5(a) (stating “[i]f a program participant. . . violates the program guidelines . . ., the commissioner shall extend the person’s revocation period” (emphasis added)). We conclude that the plain meaning of the term “refusal,” as used in Minn. Stat. § 171.19, does not encompass an extension of a driver’s license revocation issued under Minn. Stat. § 171.306, subd. 5(a). 

"A district court lacks subject-matter jurisdiction under Minn. Stat. § 171.19 to review the extension of a driver’s license-revocation period. Accordingly, the district court did not err by denying Reihs’s petition."

Moral Of The Story: Once you are in the program, the Courts are not going to help you get out of it.

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 Lorsung v. Commissioner of Public Safety (Decided December 30, 2024, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if an officer's suspicion of intoxication has been dispelled, he may not subsequently administer a preliminary breath test and the arrest of the petitioner is illegal.

In Lorsung, Officer Sonterre of the New Brighton police responded to a reported automobile collision in a bar parking lot. Officer Sonterre learned that Melissa Lorsung had been backing out of her parking spot when her car bumped an apparently intoxicated pedestrian. The officer also learned that Lorsung had been drinking inside the bar and had left the bar around closing time. Lorsung was smoking a cigarette when Officer Sonterre first approached her. He did not smell alcohol on her breath or observe any of the typical tell-tale signs of alcohol impairment, like bloodshot and watery eyes, unstable balance, or slurred speech.

Officer Sonterre directed Lorsung to perform the horizontal gaze nystagmus test. Officer Sonterre noticed no indication of impairment during the test.

Officer Paul Yang then spoke with Lorsung. Officer Yang, who waited with Lorsung and spent more time near her than Officer Sonterre, also did not observe bloodshot or watery eyes, slurred speech, or the odor of alcoholic beverages. Lorsung said, “[W]e’re free to leave, I guess.” He watched Lorsung move her car about three feet out of the way and into a parking spot, which he later said he would not have allowed had he believed she was impaired. Officer Yang told Lorsung that he didn’t want to keep her and asked if she had any questions before she left.

Officer Sonterre spoke with his supervising sergeant. Officer Sonterre told the sergeant that Lorsung was not drunk, and he agreed that it appeared that an impaired pedestrian had walked into the car of a sober driver. But the pedestrian and her family were still present, and Officer Sonterre said that he would administer another sobriety test before allowing Lorsung to leave, reasoning, “[S]o they can’t say I didn’t do my job.”

The preliminary breath test revealed an alcohol concentration level of .145 and Ms. Lorsung was placed under arrest.  A subsequent Data Master breath test revealed Ms. Lorsung was over the legal limit and her driver's license was subsequently revoked.

Ms. Lorsung challenged the revocation in district court arguing the officer lacked a "reasonable suspicion" to administer the preliminary breath test. The District Court upheld the revocation but on appeal, the Minnesota Court of Appeals reversed the District Court stating:

"[B]efore an officer may ask a driver to submit to a PBT, he must have a reasonable suspicion to believe that the driver is impaired. Minn. Stat. § 169A.41, subd. 1 (Supp. 2023); see Sarberv. Comm ’r of Pub. Safety, 819N.W.2d465 (Minn. App. 2012) (reversing an implied-consent license revocation where the officer lacked reasonable suspicion for the investigation). Because the exclusionary rule requires the district court to suppress the results of a PBT administered without reasonable suspicion, see State v. Diede, 795 N. W.2d 836, 842 (Minn. 2011), we must consider whether the district court properly concluded that the officer had reasonable suspicion to ask Lorsung to perform the PBT."

"Our review leads us to disagree with the district court’s determination. We review “a district court’s determination of reasonable suspicion de novo” and “accept[] the district court’s factual findings unless they are clearly erroneous.” Kruse v. Comm ’r of Pub. Safety, 906 N.W.2d 554, 557 (Minn. App. 2018). Reasonable suspicion requires a particularized and objective basis to suspect a driver of criminal activity considering the totality of the circumstances. State v. Anderson, 683 N.W.2d 818, 822-23 (Minn. 2004); State v. Taylor, 965 N.W.2d 747, 752 (Minn. 2021). We understand that, after Officer Sonterre began his investigation, he had reason to suspect that Lorsung had been driving while impaired. He knew that she had been drinking and that she had backed into a pedestrian in the parking lot of a bar at closing time. Even with no other indicia of impairment, a reasonable officer would suspect—as the officer here initially suspected—that Lorsung was impaired. But Officer Sonterre did not ask Lorsung to perform a PBT when he first suspected her impairment. He used other means to test his suspicion. He looked for signs of impairment in her balance, in the condition of her eyes, and in her speech. He testified at the implied- consent hearing that none of his observations of those things supported the idea that she was impaired. He then directed Lorsung to perform the horizontal gaze nystagmus test. And his observation of her performance on that test combined with the accident investigation and his ongoing observations of Lorsung led him to believe, contrary to his initial suspicion, that he had apparently encountered a case of a drunk pedestrian walking into the car of a sober driver. Corroborating Officer Sonterre’s belief, Officer Yang, who observed Lorsung the longest, also thought that she was not impaired."

"The commissioner emphasizes the circumstances preceding the officer’s no longer reasonably suspecting Lorsung’s impairment. But the totality of circumstances includes an officer’s consideration of new information that tends to dispel previous reasonable suspicion. This is because police intrusions after their reasonable suspicion has been dispelled are unconstitutional. State v. Pleas, 329 N.W.2d 329, 332 (Minn. 1983); State v. Hickman, 491 N.W.2d 673, 675 (Minn. App. 1992), rev. denied (Minn. Dec. 15, 1992). The commissioner does not identify, and the district court did not find, any indicia of Lorsung’s intoxication that any officer observed between the time of the horizontal gaze nystagmus test and the time Officer Sonterre reapproached to ask her to perform the PBT. We have no difficulty concluding that a reasonable officer in Officer Sonterre’s shoes would have reasonably suspected, just as the officers here reasonably suspected, that Lorsung was not impaired when Officer Sonterre asked her to perform the PBT. Because the information available to the officers in the developing investigation would have dispelled (and did dispel) their objective reasonable suspicion that Lorsung was impaired, Officer Sonterre lacked reasonable suspicion to request the test."

"We are also unpersuaded by the commissioner’s argument that Officer Sonterre’s decision not to dismiss Lorsung shows that his reasonable suspicion had not been dispelled. The argument glosses over three important facts. The first is that Officer Sonterre is trained to notice signs of intoxication. The second is that he was satisfied that Lorsung was not impaired. And the third and most important is that the reason he did not dismiss Lorsung before he requested the PBT was not because he suspected that she was impaired but because he sought to confirm his contrary suspicion for the sake of demonstrating a thorough review for the struck pedestrian and her family."

***

"Officer Sonterre ended his impaired-driving investigation after Lorsung successfully completed the nystagmus test, and his reason for asking for the PBT was not based on his reasonable suspicion of her impairment but instead on his reasoned suspicion of her nonimpairment. The officer had no basis to request a subsequent chemical test. We reverse the commissioner’s decision to revoke Lorsung’s driving privileges."

MORAL OF THE STORY: You can't be tested if you are above suspicion.

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 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. Payton (Decided November 18, 2024, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police will be believed without definitive proof to the contrary.

In Payton, the Defendant was arrested and charged with Third Degree DWI - Refusal to submit to testing. Mr. Peyton challenged the legality of the initial stop but the district court ruled that the stop was valid. On appeal, Mr. Peyton alleged the district court "clearly erred" when it ruled his vehicle crossed a white-dashed centerline without signaling, thereby giving the police officer reasonable, articulable suspicion to stop his vehicle.   

The Minnesota Court of Appeals upheld the lower court's ruling stating:

"When reviewing a district court’s decision to deny a pre-trial suppression motion, we review the district court’s factual findings for clear error and legal determinations de novo. State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008). We 'will not conclude that a factfinder clearly erred unless, on the entire evidence, we are left with a definite and firm conviction that a mistake has been committed.' In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221 (Minn. 2021)."

***

"Here, the officer testified that he initiated a traffic stop because he observed Payton swerve 6-12 inches over the white-dashed centerline, without signaling, for 20-30 feet before recentering the vehicle in the appropriate lane. The officer indicated his belief that this conduct violated Minn. Stat. § 169.18, subd. 7(1), which states, “When any roadway has been divided into two [lanes] ... a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.” The officer testified that he “clear[ly]” observed the violation and indicated exactly when the violation occurred in the dash-camera video. The district court found the officer’s testimony credible, and we defer to the district court’s credibility determinations.  See State v. Smith, 448 N.W.2d 550, 555- 56 (Minn. App. 1989), rev. denied (Minn. Dec. 29, 1989). Based on this evidence, the district court found that Payton’s vehicle “swerve[d] and cross[ed] the dashed white line separating the two lanes without signaling.” We conclude that the evidence amply supports the district court’s finding that Payton crossed the white-dashed centerline without signaling."

"Payton disagrees, arguing the district court clearly erred when it found he crossed the white-dashed centerline. Payton relies on his assertion that the dash-camera video does not support the officer’s testimony. But contrary to Payton’s argument, though dark and poor quality, the dash-camera video does not contradict the officer’s testimony. While the white-dashed centerline does not appear in the dash-camera video, the dash-camera video plainly captures Payton’s vehicle veering slightly to the right at the time the officer testified that Payton crossed the white-dashed centerline. Although not dispositive, the dash-camera video bolsters the officer’s testimony that a traffic violation occurred."

"For these reasons, we conclude the district court did not clearly err when it found Payton crossed the white-dashed centerline without signaling and, thereby, violated Minn. Stat. § 169.18, subd. 7(1). As such, the district court correctly determined the officer had the requisite particularized and objective basis for conducting the traffic stop and, therefore, the investigatory stop was supported by reasonable, articulable suspicion."

Moral Of The Story: It's too bad that police cameras are far inferior to those used in viewing football. 

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

Minneapolis DWI 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. Chrismen (Decided November 4, 2024, Minnesota Court Of Appeals, Unpublished), which stands for the proposition that the Court of Appeals will rarely reverse the lower court if it refused to grant a downward departure from the Minnesota Sentencing Guidelines.

In Chrismen, the Defendant plea guilty to a felony DWI and was facing a 42-month presumptive prison sentence. The Defendant moved for a downward dispositional departure arguing he was particularly amenable to probation given his remorse and the positive steps he had taken since the offense occurred. Chrismen emphasized that the pre-sentence investigation report noted he “would be a good candidate for sobriety in the community” and that he had only two speeding tickets and no criminal offenses in over 20 years.

The state opposed Chrismen’s motion (of course), arguing that this was not Chrismen’s first felony DWI offense, Chrismen’s claimed participation in treatment was unverified, and there was no support for Chrismen’s assertion that he is amenable to probation.

The District Court, at sentencing, noted it had reviewed all the materials and acknowledged the struggles Chrismen has overcome, but noted concerns about the violent act towards the deputy and the possibility that similar violence could occur if Chrismen was intoxicated. The district court found that Chrismen was not particularly amenable to probation and sentenced him to serve the presumptive term of 42 months in prison with five years of conditional release.

The Minnesota Court of Appeals affirmed the lower court noting:

"A mitigating factor that may provide a substantial and compelling reason for departure is a defendant’s particular amenability to probation. Minn. Sent’g Guidelines 2.D.3.a(7) (2022); State v. Bertsch, 707 N.W.2d 660, 668 (Minn 2006). Whether a defendant is particularly amenable to probation depends on various factors, including the defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of family and friends. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). But even if some of these factors exist, a district court need not grant a downward dispositional departure. State v. Olson, 765 N.W.2d 662, 663 (Minn. App. 2009). "

***

"We will only reverse a district court’s refusal to depart from the presumptive sentence in the 'rare' case. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)."

***

"The record demonstrates that the district court carefully considered the arguments both for and against a downward dispositional departure, as well as other information in the record like the presentence investigation report and materials that addressed Chrismen’s record on probation, motivation to change, and remorse. And while we recognize the positive steps Chrismen has taken since his DWI conviction, this is not the 'rare' case that requires us to reverse the district court’s decision to impose a presumptive sentence. Kindem, 313 N.W.2d at 7. The abuse-of-discretion standard gives the district court broad discretion in its sentencing decisions and we will 'not interfere with the sentencing court’s exercise of discretion, as long as the record shows the sentencing court carefully evaluated all the testimony and information presented before making a determination.' State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted)."

Moral Of The Story: If you don't win at the district court, the Court of Appeals is not going to help you.

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. Lang (Decided October 21, 2025, Minnesota Court Of Appeals, Unpublished) which stands for the proposition that the police may expand a traffic stop to investigate a possible DWI if the police action is reasonably related to the circumstances arising from the stop. 

In Lang, the Defendant was stopped by the police for failing to signal a lane change. The officer who stopped the Defendant recognized her and knew that Ms. Lang had a history of drug-related criminal activity. The officer directed Lang out of her vehicle and then questioned her about where she was traveling and her plans for the day. While speaking with Lang, the officer observed her to have “excited” behavior, facial twitching, dilated pupils, and dry lips. Based on his training and experience, the officer recognized these as indicia of recent methamphetamine use. The officer questioned Lang about her drug use. Lang responded that she had not used methamphetamine since March 2022. She agreed to perform field sobriety tests, after which the officer informed Lang that he believed that she had used methamphetamine more recently. After she admitted to smoking methamphetamine four days earlier, the officer arrested Lang.

The State of Minnesota charged Lang with one count of fourth-degree DWI (body contains any amount of schedule I/II drugs) and one count of fourth-degree DWI (under the influence of a controlled substance), in violation of Minn. Stat. § 169A.20, subd. 1(2), (7). Lang moved to suppress all the evidence obtained from the traffic stop arguing (among other things) the expansion of the stop was unlawful because the officer had no reasonable suspicion that Lang was driving while under the influence of a controlled substance. The District Court denied the defense motion to suppress and on appeal, the Minnesota Court of Appeals upheld the lower court stating:

"First, Lang argues that the officer expanded the scope of the stop by ordering her out of her vehicle without articulating safety concerns. We are not persuaded. An “officer may order a driver out of a lawfully stopped vehicle without an articulated reason.” Askerooth, 681 N.W.2d at 367 (citing Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977)). This is so because such an additional intrusion is de minimis. Mimms, 434 U.S. at 111. Accordingly, the officer did not expand the traffic stop by asking Lang to step out of her vehicle."

"Second, Lang contends that the officer expanded the scope of the stop by asking her and her passenger “general investigative” questions and extended the duration of the stop by questioning her passenger. An officer expands the scope of a stop if they engage in investigative questioning unrelated to the purpose of the stop and without reasonable, articulable suspicion of other criminal activity. See State v. Fort, 660 N.W.2d 415, 418-19 (Minn. 2003) (concluding no reasonable suspicion to expand a traffic stop for speeding and a cracked windshield to include questions about drugs and weapons); Sargent, 968 N. W.2d at 40-42 (holding that questions about pretrial release conditions were questions about noncriminal activity unrelated to a traffic stop). But an officer may “ask the driver about [their] destination and the reason for the trip” during a routine traffic stop. State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003). That is the situation here. Once the officer had ordered Lang out of the car, he proceeded to ask her questions about how she knew her passenger and where they were heading for the day. The officer then asked the passenger the same questions. We conclude that the officer’s initial questioning of Lang and her passenger falls within the scope of the “reason for the trip,” and did not expand the scope of the stop. Id."

"To the extent that Lang argues that the officer’s questioning of her passenger extended the duration of the stop, as we discuss below, the record demonstrates that the officer had reasonable suspicion that Lang was under the influence of methamphetamine before speaking to the passenger. In other words, the officer had a valid basis to continue to detain Lang during the passenger’s brief questioning. State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002) (“Law enforcement may continue the detention as long as the reasonable suspicion for the detention remains provided they act diligently and reasonably.” (quotation omitted))."

"Third, Lang argues that the officer impermissibly expanded the scope of the stop by continuing to question her about drug use after returning her license and registration and by administering field sobriety tests. This argument is unavailing. The officer testified that he observed “possible signs of impairment” early on, while speaking with Lang about what she was doing for the day. He described Lang as exhibiting “excited” behavior, very dry lips, dilated pupils, and facial tremors. Based on his experience and training, the officer recognized these as signs of possible drug use. The district court expressly found this testimony reliable. One “objective indicator of intoxication” can constitute reasonable suspicion that a person is under the influence. Otto v. Comm ’r of Pub. Safety, 924 N.W.2d 658, 661 (Minn. App. 2019) (quotation omitted). This record persuades us that the officer had reasonable, articulable suspicion to expand the traffic stop by asking Lang about drug use and requesting field sobriety testing."

"In sum, the record supports the district court’s findings that Lang (1) violated a traffic statute by failing to signal when changing lanes, and (2) exhibited multiple indicia of controlled-substance use. Because the traffic stop was valid and the officer permissibly expanded it based on reasonable suspicion that Lang was impaired, we conclude that the district court did not err by denying Lang’s suppression motion."

Moral Of The Story: Loose lips sink ships.

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. Sanchez (Decided October 14, 2024 Minnesota Court of Appeals, Unpublished) which stands for the proposition that amenability to treatment is also a basis for the District to depart downward from the Minnesota Sentencing Guidelines.

In Sanchez, the Defendant was found guilty by a jury of Felony DWI.The Defendant moved for a downward dispositional departure, arguing that she was particularly amenable to probation if she received chemical-dependency treatment.

A pre-sentence investigation report (PSI) noted that Sanchez has a lengthy criminal history, including four previous felony DWI convictions. Sanchez was also on probation when she committed the current offense. The PSI did not support a probationary sentence based on Sanchez’s continued use of drugs and alcohol and public-safety concerns. The probation agent recommended the presumptive 75-month prison sentence.

The district court granted Sanchez’s motion, finding that with Sanchez’s participation in DWI court comes a “high degree of monitoring” and “a higher probability” that Sanchez will successfully abstain from drugs and alcohol. Instead, the district court stayed the execution of the sentence for five years.

On appeal, the State argued the district court abused its discretion when it granted the dispositional departure. But the Minnesota Court of Appeals affirmed the lower court stating:

"A district court may depart from the presumptive sentence only when “there exist identifiable, substantial, and compelling circumstances to support a departure.” Minn. Sent’g Guidelines 2.D. 1 (2022). This court reviews a district court’s decision to grant a motion for a dispositional departure for an abuse of discretion. See State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). This court will rarely reverse the district court’s decision because of the district court’s considerable discretion in sentencing. Id. at 305, 307-08. We will affirm a district court’s decision “as long as the record shows the [district] court carefully evaluated all the testimony and information presented before making a [sentencing] determination.” State v. Van Ruler, 378 N.W.2d 77, 81 (Minn. App. 1985)."

"I am going to grant the motion, because in this situation ... I don’t know about particular amenability. ... I don’t know that she’s going to be successful at treatment and stop, but I think there are substantial and compelling reasons and that one of those is she’s going to be monitored very, very, very, very, very closely from DWI Court and any kind of slip¬up, she’s probably going to be back in front of me for a probation violation."

"[T]hings will really be scrutinized if you come back with a probation violation, because you belong in prison, according to the guidelines. And you, just by yourself, are not a person that there should be a departure."

"But you with DWI Court provides a situation where you’ll have exceptional monitoring, potentially monitoring for a longer period than you would if you were in prison, because the probationary period will be for a full five years. And so there’s a much higher probability that you are going to be successful with probation, with the longer supervision and the accountability."

***

"The state argues that the district court should not have granted the departure because it did not find Sanchez particularly amenable to probation. But the district court noted that Sanchez would be very closely monitored and monitored longer than if she went to prison. See State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994) (stating that district court did not abuse its discretion by weighing impact of shorter prison sentence with no guarantee of treatment against treatment program and longer, highly structured probation), rev. denied (Minn Apr. 21, 1994). The district court is afforded great discretion, and it carefully considered the sentence."

Moral Of The Story: If a person does not stop driving drunk, they will end up dead or in prison.

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 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. Smith (Decided September 30, 2024, Minnesota Court of Appeals, Published) which stands for the proposition that in a DWI test-refusal case, the State does not have to prove that the officer requesting the breath test is properly certified to operate the testing equipment (i.e. the Data Master breath testing machine).

In Smith, the State of Minnesota charged appellant Ava Thadette Smith with one count of refusal to submit to a breath test, in violation of Minnesota Statutes section 169A.20, subdivision 2(1) (2020), for refusing to submit to an evidentiary breath test after Smith was lawfully arrested based on suspicion of driving while impaired (DWI). The matter proceeded to a jury trial.

The deputy testified at trial that after placing Ms. Smith under arrest for DWI and bringing here to the Chisago County Jail, she informed Ms. Smith that refusal to submit to a breath test is a crime by reading her the statutorily required breath-test advisory.  After providing Smith an opportunity to contact an attorney, the deputy asked her if she would take a breath test. Smith refused, stating that she did not believe the breath-test machine would be accurate.

The deputy testified about her training in DWI enforcement, including field sobriety testing and roadside DWI investigation. The deputy stated that she received “all the standard training for DWI.” But the deputy did not specifically testify that she was trained to administer breath tests, nor did the deputy say that she was trained to operate the breath¬testing machine.

The Defendant was convicted by the jury of DWI Test Refusal and on appeal, she argued that the evidence was insufficient because the state did not prove that the deputy who requested that she submit to a breath test was fully trained to administer the test per Minnesota Statutes section 169A.51 (2020) (the implied-consent statute).

The Minnesota Court of Appeals affirmed the conviction, stating:

"On appeal, Smith relies on subdivision 7(c) of the implied-consent statute, which provides that “[t]he person administering a breath test must be fully trained in the administration of breath tests pursuant to training given by the commissioner of public safety.” Minn. Stat. § 169A.51, subd. 7(c). We are not persuaded that the state must prove a would-be test administrator’s training as an element of refusal to submit to a breath test."

"By its plain language, the training requirement in subdivision 7(c) governs a person who is “administering a breath test”—not a person requesting a breath test. That language makes clear that a breath-test administrator’s training comes into play only if a breath test is administered. Moreover, the rest of subdivision 7(c)—which limits liability for persons “drawing blood” at the direction of an officer—likewise applies only if a blood test occurs. Id. (providing that certain “qualified person[s] drawing blood at the request of a peace officer for the purpose of determining the concentration of alcohol, a controlled substance or its metabolite, or an intoxicating substance [are] in no manner liable in any civil or criminal action except for negligence in drawing the blood”). And when subdivision 7 is read as a whole, the other subparts govern circumstances in which a test takes place, not scenarios in which a test is requested and refused. See id., subd. 7(a) (defining who may draw blood), (b) (providing that “[t]he person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any tests administered”). Thus, whether read in isolation or in the context of the statute as a whole, the plain language of the breath-test training requirement set forth in subdivision 7(c) controls how a test must be performed—and therefore applies only if a test is, in fact, administered. See Lampkin, 994 N.W.2d at 287; Robinson, 921 N.W.2d at 758. We are therefore unconvinced that this requirement is relevant if a breath test is refused."

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"In sum, we hold that the requirement set forth in Minnesota Statutes section 169A.51, subdivision 7(c), that “[t]he person administering a breath test must be fully trained in the administration of breath tests pursuant to training given by the commissioner of public safety[,]” is not an element of the crime of refusal to submit to a breath test under Minnesota Statutes section 169A.20, subdivision 2(1). As a result, the state was not required to prove that the deputy who would have administered Smith’s test, if Smith had not refused that test, was properly trained in the administration of breath tests. Smith’s sufficiency-of-the-evidence claim therefore fails."

Moral Of The Story: Just say 'yes" to the test!

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

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

The Minnesota DWI Case Of The Week is Peach v. Commissioner of Public Safety (Decided September 23, 2024, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you are not valid to obtain a driver's license in the State where the DWI was committed, you are not valid to obtain a driver's license in Minnesota.

Mr. Peach had three prior DWI's from Minnesota when he committed a fourth DWI in Wisconsin in 2021.  The Wisconsin conviction resulted in a "lifetime revocation" of his Wisconsin privilege to drive a motor vehicle.

In 2023, Mr. Peach applied for a Minnesota driver's license and sought to enroll in the Interlock program which would allow him to have an interlock-limited license. The application was denied because his driving privilege was still revoked in Wisconsin.

Mr. Peach filed a challenge in district court to the denial of his Minnesota license request but the district court sustained the application denial.  On appeal, the Court of Appeals affirmed the district court noting:

"Because appellant had three prior DWI offenses, under Wisconsin law he received a “lifetime” revocation of his driving privileges, and because appellant’s driving privileges have been revoked in Wisconsin, he may not apply for a driver’s license in Minnesota. See Minn. R. 7410.5500, subp 2 (“If an applicant’s driving privileges are withdrawn in any other state and the applicant applies for a driver’s license in Minnesota, then the applicant’s driving privileges must be reinstated in all other states before the applicant is eligible for driving privileges in Minnesota . . . .”)."

"Appellant argues that this is an “absurd” result because, if he had committed his fourth offense in Minnesota instead of in Wisconsin, he could enroll in IID. That may be true; persons who are convicted of a fourth Minnesota DWI offense are not necessarily convicted of violating Minn Stat. § 171.17, subd. 1(a)(9), and, if the statute they did violate is among those specified in Minn. Stat. § 171.306, subd. 4(c), (d) (listing those eligible for the IID program), they are eligible to enroll."

"But it is also true that courts may presume the legislature does not intend an absurd result. Minn. Stat. § 645.17(1) (2022). The legislature’s determination that persons with outstanding license revocations in other states should not be allowed to obtain a Minnesota license through the IID program is not absurd. “[C]onvictions of another state should generally be recognized in the forum state . . . [unless] strong public policy interests of the forum state provide sufficient reason to override the general rule of recognition.” State v. Schmidt, 712 N.W.2d 530, 537, 539 (Minn. 2006)".

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"It is equally true that this court “cannot supply that which the legislature purposely omits or inadvertently overlooks.” Martinco v. Hastings, 122 N.W.2d 631, 638 (Minn. 1963). Thus, whether appellant would be entitled to enroll in IID if his fourth offense had been committed in Minnesota is irrelevant; his offense was committed in Wisconsin, is not included in Minn. Stat. § 171.306, subd. 4(c), (d), and this court cannot sua sponte include it."

Moral Of The Story:  If you are going to drink, stay home.

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. Marshall (decided September 9, 2024, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a search warrant is still valid if probable cause for its issuance still exists after the illegally obtained allegations in the warrant have been excluded.

In Marshall, the Defendant was stopped by the police and as the officer approached the driver's side window, the officer smelled the odor of burnt marijuana. Another officer arrived at the scene to assist.  

Marshall exited the SUV at the first officer’s request. As the first officer spoke with Marshall outside the SUV, he smelled the odor of marijuana coming from Marshall’s person. The first officer asked whether there was marijuana in the car, and Marshall said “no.” The first officer then asked, “When was the last time it was in there?” and Marshall responded, “It was not. . . never in there . . . like four hours ago we all was just chilling.” The first officer inferred that “chilling” “implied that [Marshall] was using marijuana hours earlier.” The first officer observed that Marshall’s pupils were “constricted,” which made him “concerned about impairment” by a drug other than marijuana.

The first officer seated Marshall in the squad car and searched Marshall’s SUV. In the “main area” of the SUV “where [Marshall] was sitting,” the first officer “observed there was some marijuana debris” and “a cup” with “a cough syrup or medicine odor, along with pop inside of it.” The first officer also found a backpack with “an empty prescription bottle” that “appeared to be a cough syrup.” The other officer found another prescription bottle in the backseat. The first officer returned to the squad car and conducted a horizontal gaze nystagmus (HGN) test, noting how Marshall’s pupils “reactfed] to light.”  The first officer saw the “presence of nystagmus, which led [him] to believe there might be . . . [a] narcotic involved.”

The first officer brought Marshall to the police station, read Marshall his Miranda rights, and asked if he would agree to “a full drug recognition evaluation” (DRE). Marshall agreed. Based on the DRE, the first officer suspected that Marshall was impaired by a stimulant, a narcotic analgesic, and cannabis. 

The first officer applied for a warrant to obtain a blood or urine sample from Marshall. The district court issued the warrant, and, after chemical testing, Marshall’s blood-test results showed the presence of oxycodone, oxymorphone, and cannabis.

The state charged Marshall with fourth-degree DWI under Minn. Stat. § 169A.20, subd. 1(7) (2020), for operating a vehicle under the influence of a controlled substance.  Marshall moved to suppress “all evidence specified in the notice by the prosecuting attorney” and to dismiss the case, arguing that there was “no reasonable suspicion for the expansion of the stop” and “no probable cause for the search of [Marshall] and/or [his] vehicle.”

The District Court granted the Defendant's motion to suppress concluding that “constricted pupils and the smell of marijuana on the person” did not “create a fair probability that contraband or evidence of a crime will be found in the car.” The district court also rejected the state’s arguments that Marshall consented to the search of his backpack, reasoning that Marshall asked only “if the officer could retrieve his stuff from the car.”  The district court therefore concluded that the items found in the search of the SUV should be suppressed and excluded from the warrant affidavit.

The district court did not consider the result of the HGN test in the back of the squad car but concluded that the DRE was “fruit of the poisonous tree” because it “would never have happened but for the smell of the cups, the cough syrup, [and] the eye check.” The district court determined that the search-warrant affidavit should have excluded any reference to the “marijuana debris and two Styrofoam cups with what appeared to be pop and a medicine like odor coming from it,” the “empty bottles of a prescription liquid medication,” and the DRE. The district court ruled that the “warrant as rewritten is inadequate and would not be signed by a reasonable magistrate reviewing just the evidence that is admissible”; therefore, the district court suppressed Marshall’s blood-test results and dismissed the case.

The State appealed the district court ruling and the Minnesota Court of Appeals reversed the lower court stating:

"In its ruling suppressing the blood-test evidence, the district court concluded that law enforcement did not have probable cause to search Marshall’s SUV based only on the smell of burnt marijuana and the first officer’s observation of Marshall’s constricted pupils. It consequently also concluded that the evidence obtained from that search—marijuana debris, the medicine-like odor emanating from the foam cups, and the empty prescription bottles for liquid medication—were not properly included in the warrant application because they were obtained unlawfully."

"...we conclude that the warrant application includes other facts that did not derive from the challenged search of Marshall’s SUV and which are independently sufficient to establish probable cause for the search warrant."

"In Minnesota, even if the application for a search warrant includes information that the issuing magistrate should not have considered, the warrant nonetheless may be supported by probable cause based on facts that were obtained independently of the tainted information."

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"Similarly, and as alleged here, if a warrant application includes information that was impermissibly obtained in violation of a defendant’s Fourth Amendment rights, exclusion of the evidence obtained through the search warrant is not required if the application also contains lawfully acquired evidence that is independently sufficient to support issuance of the warrant. State v. Hodges, 287N.W.2d 413, 415-16 (Minn. 1979). Thus, if we redact from the blood-sample search-warrant application all information obtained from the search of Marshall’s SUV, and if the facts that remain nevertheless establish probable cause, then we may conclude that the warrant was valid regardless of any taint on the redacted information."

"We conclude, however, that the district court erred by excluding the DRE results when evaluating probable cause for the warrant because the DRE was permissibly included in the warrant application based on the independent-source doctrine. The “independent source doctrine . . . will countenance introduction of otherwise illegally-seized evidence if the police could have retrieved it on the basis of information obtained independent of their illegal activity.” State v. Diede, 795 N.W.2d 836, 849 (Minn. 2011) (quotation omitted)."

"Marshall’s constricted pupils, the odor of burnt marijuana on Marshall’s person and from the SUV, and Marshall’s statement about “chilling” from which the officer inferred recent marijuana use—all of which the first officer observed before the SUV search—more than adequately supported the officer’s initial suspicion that Marshall was impaired and more than adequately supported the officer’s request that Marshall participate in the DRE following his arrest on the outstanding warrant. The record thus establishes that law enforcement could have—and very likely would have—sought to determine whether Marshall had been driving while impaired by requesting a DRE, regardless of whether his SUV had been searched. Accordingly, it was error for the district court to reject the DRE results in its evaluation of probable cause for the search warrant."

"Having determined that the DRE was, at a minimum, validly supported by the first officer’s observations of Marshall’s constricted pupils, the odor of marijuana on his person and from the SUV, and Marshall’s recent use of marijuana, we finally consider whether the facts in the warrant application—minus the information derived from the SUV search— are sufficient to establish probable cause for blood-sample search warrant.

“Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Onyelobi, 932 N.W.2d at 281 (quotation omitted). Considering the validly obtained information in the search-warrant affidavit, we are satisfied that they establish a fair probability that a sample of Marshall’s blood would disclose evidence of a crime. We therefore conclude that the search warrant was supported by probable cause irrespective of whether the application properly included information obtained from the SUV search. We therefore reverse the district court’s decision to suppress the blood-test results."

Moral Of The Story: Do not submit to a DRE.

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 Jensen v. Commissioner of Public Safety, (Decided July 22, 2024, Minnesota Court Of Appeals, Unpublished) which stands for the proposition that 2 hours after arrest is the outer limit for the pre-test right to counsel in a DWI case.

In Jensen, the Defendant was stopped at 10:50 p.m. and was subsequently arrested for a DWI. At approximately 12:15 a.m., the deputy read the Defendant the implied-consent advisory and informed him of his right to contact an attorney. Mr. Jensen elected to contact an attorney. The deputy gave the Defendant a telephone and two different attorney-telephone books, and helped Defendant make several calls. The Defendant also watched the deputy use a county computer to search for attorneys based on his precise requests.

After approximately 34 minutes of phone time, around the time when the two-hour alcohol-testing period would expire, the deputy told appellant that his time to contact an attorney was almost over. At approximately 12:50 a.m., the deputy helped appellant make another phone call before ending phone time. Appellant failed to contact an attorney and refused to take the chemical-breath test. Consequently, appellant’s license was revoked.

The license revocation was sustained by the district court and on appeal the Defendant argued his pre-test right to counsel was not vindicated.  The Minnesota Court of Appeals disagree with the Defendant and upheld the license revocation stating:

"Appellant argues that he was not given (1) enough time to contact and receive a return call from counsel at 12:33 a.m., (2) personal internet access, (3) a cellphone, and (4) adequate assistance by law enforcement. To support his argument, appellant first seeks to distinguish this case from two cases that affirmed the determination that the drivers’ right to counsel was vindicated when the drivers received even less phone time than he did. See Parsons v. Comm ’r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992); Umphlett v. Comm ’r of Pub. Safety, 533 N.W.2d 636, 639 (Minn. App. 1995), rev. denied (Minn. Aug. 30, 1995). We are not persuaded, as both cases undermine, rather than support, appellant’s argument."

"Appellant was given a telephone, two different attorney-telephone books, and 34 minutes to contact an attorney. The deputy used a computer to search for specific attorneys at appellant’s request, and appellant knew his time was limited. Finally, the deputy waited until the two-hour-testing limit was about to expire before ending phone time after giving appellant several warnings. Although here, phone time began at approximately 12:30 a.m., the Parsons court determined that 40 minutes was reasonable at 1:33 a.m. when the driver was (1) provided a telephone and directories, (2) allowed to call anyone she wanted, (3) able to speak with a non-lawyer friend, and (4) aware that her phone time was limited. See Parsons, 488 N.W.2d at 501-02. The facts here are not fundamentally different from those in Parsons, despite appellant’s inability to contact anyone. And appellant points to no binding authority that requires officers to wait until a driver contacts an attorney before ending phone time."

"Second, appellant implies that the facts here are unlike those in Umphlett, in which this court determined that the driver’s right to counsel was vindicated when he was given a telephone and a phone book, understood his time was limited, and chose to make only two phone calls at 9:00 p.m. See Umphlett, 533 N.W.2d at 639. He argues that, unlike Umphlett, he never chose to stop calling attorneys and that his efforts were frustrated by the deputy’s undue concern for obtaining a chemical-breath test. We are not persuaded. The deputy was allowed to balance the need for an accurate sample with the time he had given appellant to contact an attorney, and determine that, because the two-hour testing window was about to expire, he had provided appellant with reasonable time and resources. See Minn. Stat. § 169A.51, subd. 2(3) (2022) (stating that driver’s right to consult counsel “is limited to the extent that it cannot unreasonably delay administration of the test”); see also Kuhn, 488 N.W.2d at 842 (recognizing that time under arrest bears on probative value of test)."

"Appellant also argues that, because the deputy did not read the implied-consent advisory until an hour and twenty-seven minutes after stopping him, he should have been afforded extra time to contact an attorney. We disagree. We have previously stated that there is no “absolute timeline during which the implied-consent statute may be invoked” because doing so would be “impractical.” State v. Padilla, No. A07-689, 2008 WL 1868064, at *2-3 (Minn. App. Apr. 29, 2008) (quotations omitted), rev. denied (Minn. June 18, 2008); see Minn. R. Civ. App. P. 136.01, subd. 1(c) (stating that nonprecedential authority may be cited for its persuasive value)."

"Under the totality of the circumstances, the district court did not err in determining that the deputy vindicated appellant’s limited right to counsel."

Moral Of The Story: Time is not on your side.

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.