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The Minnesota DWI Case Of The Week is State v. Chrismen (Decided November 4, 2024, Minnesota Court Of Appeals, Unpublished), which stands for the proposition that the Court of Appeals will rarely reverse the lower court if it refused to grant a downward departure from the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

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."

***

"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.

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 Wadekamper v. Commissioner of Public Safety which stands for the proposition that a DWI license revocation is never to old to effect your license.

In Wadekamper, the Petitioner was arrested for DWI on June 3, 2020. Mr. Wadekamper had five prior impaired-driving incidents from 1974, 1977, 1983, 1986, and 1994. Pursuant to statute, the Commissioner of Public Safety revoked the Petitioner's license for six years.

The Petitioner filed a challenge to the license revocation seeking a judicial review hearing.  The hearing was held, at which time the Petitioner conceded that there were no factual disputes but that he wanted to challenge the length of the six-year license revocation. Petitioner told the district court he only wanted to submit written briefs as testimony or oral argument was not required.

Petitioner submitted a written argument in the form of a letter to the district court, again challenging only the lawfulness of the six-year license-revocation period. He acknowledged that, under the license-revocation statute, the revocation period is not less than six years for a person with four or more prior impaired-driving offenses and conceded that he had more than four prior DWIs. Petitioner nevertheless argued that his prior DWIs should not be considered in determining the length of his license revocation because the prior impaired-driving incidents were “stale.” Petitioner also argued that the license-revocation statute requiring the district court to consider all prior DWIs, without requiring a prior enhancement warning, violated due process. Petitioner cited no legal authority in support of his due-process argument.

The district court rejected Petitioner's arguments and sustained the commissioner’s license revocation. The district court first determined that, because the length-of- revocation issue is outside of the exclusive list of issues that the district court is authorized to review at an implied-consent hearing under Minn. Stat. § 169A.53, subd. 3(b), appellant could not raise it. See Axelberg v. Comm ’r of Pub. Safety, 848 N.W.2d 206, 208-09 (Minn. 2014) (holding that issues a driver may raise at an implied-consent hearing are limited to those falling within topics listed in Minn. Stat. § 169A.53, subd. 3(b)). The district court then stated that the revocation period is mandated by the license-revocation statute and the commissioner had no discretion to ignore any qualifying prior impaired-driving offenses. The district court noted that Petitioner cited no legal authority for his claim that the lack of an enhancement-warning requirement in the license-revocation statute violated his due- process rights and declined to consider it. 

On appeal, the Minnesota Court of Appeals affirmed the district court noting:

"Appellant appears to argue that the district court denied him procedural due process by denying him a meaningful hearing. Whether the government violated a person’s procedural due-process rights is a question of law that we review de novo. Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012). The United States and Minnesota Constitutions prohibit the state from depriving any person of liberty or property without due process of law. U.S. Const, amend. XIV; Minn. Const, art. I, § 7. The suspension of a driver’s license implicates a property interest that triggers due-process protections. See Mackey v. Montrym, 443 U.S. 1, 12 (1979). Due process generally requires “adequate notice and a meaningful opportunity to be heard.” Staeheli v. City of St. Paul, 732 N. W.2d 298, 304 (Minn. App. 2007) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976))."

"Here, appellant received a meaningful opportunity to be heard. The district court granted his request for an implied-consent hearing after the commissioner revoked his license. Appellant had an opportunity to argue his case before the district court. At the hearing, appellant stated that “the only issue was the length of his license revocation” and told the district court that he just wanted to submit briefs. The district court allowed appellant to submit a written argument after the hearing, which he did in the form of a letter. Appellant therefore had every opportunity to argue his case before the district court in both oral and written form. He received a meaningful hearing and all the procedural due process to which he was entitled."

"To the extent that appellant’s argument on appeal could be construed as a challenge to the district court’s denial of his constitutional claim that the lack of an enhancement warning violated his due-process rights, appellant’s argument still fails. In his letter to the district court, appellant’s only explicit reference to his due-process claim is a single line stating that “The legislation . . . permitting the use of incidents over twenty years ago to be used, without an enhancement warning, as a lifelong stepping stone for six years of ignition interlock is a violation of due process.”  The district court declined to address appellant’s due-process challenge because he cited no legal authority in support of his position. Courts do not consider claims that are unsupported by argument or citation to legal authority. See Stephens v. Bd. of Regents, 614 N.W.2d 764, 769 (Minn. App. 2000), rev. denied (Minn. Sept. 26, 2000). We therefore discern no error in the district court’s rejection of appellant’s undeveloped constitutional challenge."

Moral Of The Story: A License Revocation Never Forgets!

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 Soucie v. Commissioner of Public Safety and State of Minnesota (Decided March 29, 2021, Minnesota Court of Appeals, Published), which stands for the proposition that "touching" a fog or lane line provides the police with a legitimate reason to stop a motor vehicle.

In August 2019, a Minnesota State Trooper stopped Mr. Soucie's vehicle and subsequently arrested him for DWI. Mr. Soucie filed a challenge to the legality of the stop.  

At the combined Omnibus and Implied Consent hearing the trooper testified that she saw "the right. . . side of Soucie’s vehicle move completely over the fog line” and “occasionally touch the fog line." The video recording depicted Soucie’s passenger-side tires cross the fog line entirely at the end of the entrance ramp as the car merged onto the highway, corroborating the trooper’s testimony. But the transcript of the hearing and the order that followed demonstrated that the district court did not discuss that movement across the fog line. The district court instead focused on the moment the car’s tires later merely touched the fog line.

The District Court denied the Defendant's motion to suppress and sustained the license revocation. The issue on appeal was whether "touching" a highway line provides a sufficient justification to authorize a stop of a motor vehicle. 

The Minnesota Court of Appeals upheld the lower court noting:

The trooper "...stopped Soucie’s car because she believed he had violated a statute requiring drivers to operate only within their own lane. That statute mandates that '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.' Minn. Stat. § 169.18, subd. (1). We clarify that we are not deciding this appeal based on the trooper’s observation of Soucie’s passenger-side tires passing entirely over and beyond the fog line. Although the video recording corroborates the trooper’s testimony (as acknowledged by both attorneys during oral argument on appeal), the district court apparently did not notice this on its viewing. The state raised no related appeal challenging the district court’s factual omission as clear error, and neither party has briefed the question of whether an appellate court may hold a stop constitutional based on a violation that is unquestionably visible on a recording but that was apparently inadvertently missed by the district court. We therefore decide this appeal based on the factual findings of the district court, including specifically the finding that Soucie’s car (meaning his tires) touched the fog line. By 'touched,' it is clear from the district court’s description and our view of the recording that, only the outside edge of Soucie’s tires momentarily contacted the inside edge of the fog line."

"Soucie argues in essence that this touching is too insignificant to meet the statutory prohibition. We need only look to how we have construed the clear prohibition of section 169.18, subdivision 7(1), to reject this argument. In Kruse v. Commissioner of Public Safety, we held that driving with one’s outside tire completely on top of the fog line violates the statute. 906N.W.2d 554, 556 (Minn. App. 2018). The officer there had seen Kruse’s tire “move right and onto . . . but not over the fog line,” and we determined that this conduct violated the statute, justifying the traffic stop. Id. at 556, 560. The Kruse decision inspires inferences that we apply here."

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"First, we infer that, under the statute, a lane is comprised of the area between the painted lines that demark it and does not include the lines themselves. To borrow from sports, a lane is like the area of play in basketball (where a player stepping on the boundary line is out of bounds) and unlike the area of play in tennis (where a ball landing on the boundary line is in bounds). Second, the statutory violation of moving a vehicle from the lane occurs when even a fraction of the vehicle extends outside its lane. The idea that one violates the statute by unsafely moving even part of one’s car from the lane arises not only from our holding in Kruse but also from a common-sense understanding of the danger the statute intends to avoid. It is self-evident that the statute aims to curb collisions with persons, obstacles, or vehicles outside of one’s lane, and dangerous collisions can occur when even a small portion of a car extends out of bounds. See Kruse, 906 N.W.2d at 559 (“Moreover, driving on the fog line could compromise the safety of any stopped motorist, pedestrian, or cyclist on the right side of the fog line.”); State v. Al-Naseer, 734N.W.2d 679, 681 (Minn. 2007) (“[A] car driven by Al-Naseer struck and killed a person who was changing a tire along the side of Highway 10.”). We can readily apply these premises to the facts here."

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"Because operating a car with its tires touching the edge of the fog line constitutes moving a vehicle from the lane under Minnesota Statutes section 169.18, subdivision 7(1), the district court correctly concluded that [the] Trooper had reasonable suspicion to stop Soucie’s car for a traffic violation.

Moral Of The Story: If you are going to drive, stay in bounds.

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

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

The Minnesota DWI Case Of The Week is Jante v. Commissioner of Public Safety (Decided November 16, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that you will lose if your attorney does not raise the correct issue.

In Jante, a Douglas County Sheriff's deputy was on routine patrol when he saw a pickup truck stopped in a turn lane with its emergency lights on. The deputy stopped and approached the vehicle on the passenger side. Petitioner was standing outside of the vehicle next to the front passenger door. The door was open. At the Petitioner's feet were empty beer bottles and the truck’s ignition keys.

Seated in the backseat of the vehicle was a passenger.  Both the Petitioner and the backseat passenger claimed the other person was driving.  The Petitioner was arrested for DWI and his license was revoked.

The Petitioner filed a challenge to the license revocation challenging, "whether there was probable cause that the Petitioner was in physical control of the vehicle".   The Petitioner testified he was not the driver. The passenger also testified that she had lied to the police (because she was already on probation) and was in-fact the driver of the vehicle.

In addition, other witnesses testified on Petitioner's behalf that they saw the Petitioner leave in his truck with the alleged passenger driving his vehicle.  

The district court sustained the revocation finding that the police had probable cause to believe the Petitioner was driving or in physical control of the motor vehicle.  On appeal, the Court of Appeals affirmed the district court, confining its analysis to whether there was "probable cause" to believe the Petitioner drove or was in physical control of the motor vehicle.

There are a number of cases [Eg. Liona v. Commissioner of Public Safety, 389 N.W.2d 210 (MN.App. 1986); Winder v. Commissioner of Public Safety, 392 N.W.2d 21 (MN.App. 1986); Rademacher v. Commissioner of Public Safety, _ N.W.2d _ (MN App. 2007, Unpublished)] which hold that when the Petitioner alleges (in his revocation petition )that he or she was not, in fact, the driver or operator or in physical control of the motor vehicle, the Commissioner then has the burden of proving, by a preponderance of the  evidence, that Petitioner was, in fact, the driver.

In the present case, it appears the Petitioner only alleged the police did not have "probable cause" to believe he was in physical control, which is a much easier standard for the Commissioner to meet.

Moral Of The Story: If you have been arrested for a Minnesota DWI, hire an experienced lawyer who will not snatch defeat from the jaws of victory.

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 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. Ekelund (Decided June 8, 2020, Minnesota Court of Appeals, Unpublished), which stands for the proposition that if you give up trying to reach a lawyer, your right to counsel prior to testing will be deemed "vindicated".

In Ekelund, the Defendant was arrested for a DWI in Hubbard County and was taken to the Beltrami County jail for breath testing.  The Defendant was read the Minnesota Implied Consent Advisory and he indicated he wished to consult with counsel prior to testing.

Mr. Ekelund was provided with a telephone and telephone directories at 2:24 a.m.  The Defendant looked through the directories for several minutes and placed three telephone calls, but was unable to contact an attorney. Mr. Ekelund then asked for his personal cell phone, explaining to the officer that he wanted to speak with a non-attorney friend who could put him in contact with an attorney. The officer declined to give appellant his personal cell phone at that time. Appellant returned to the directories and placed five more unanswered telephone calls.

At 2:33 a.m., the officer gave Mr. Ekelund his cell phone. The Defendant used it to send a text message to a friend in an attempt to facilitate contact with an attorney. When he did not receive an immediate response, Defendant stated that it “might take a second” because “it’s kind of late at night.” The Defendant made two more calls on his cell phone, both of which went unanswered.

Eventually, Mr. Ekelund was able to complete a cell-phone call with a friend who indicated that he could provide appellant with the telephone number of an attorney. The Defendant ended that call at 2:44 a.m. and made no further calls using either his cell phone or the telephone provided by police. At 2:50 a.m., the officer asked whether Defendant had received the attorney’s phone number, and the Defendant stated, “[y]ep, I’m getting the number,” but specified that he was waiting for his friend to call him back.

At 2:57 a.m., the officer informed Mr. Ekelund that his time to contact an attorney would end at 3:00 a.m. The Defendant continued to sit passively—despite the ready availability of two different phones—and made no additional calls and sent no additional text messages. The officer declared Defendant's attorney time at an end just after 3:00 a.m. and asked him if he would take a breath test. Ekelund agreed to take the test. The test revealed a 0.22 alcohol concentration.

The Defendant moved to suppress the result of the breath test, and the district court denied the motion. The district court concluded that Mr. Ekelund's “limited right to counsel was vindicated because he had ceased to make good faith efforts to contact an attorney at the time law enforcement requested that he submit to a chemical test.”

On appeal, the Minnesota Court of Appeals affirmed the lower court, noting:

“[T]he Minnesota Constitution gives a motorist a limited right to consult an attorney before deciding whether to submit to chemical testing for blood alcohol.” State v. McMurray, 860 N.W.2d 686, 692 (Minn. 2015). This limited right “cannot unreasonably delay the administration of the test.” Minn. Stat. § 169A.51, subd. 2(4) (2016). The state vindicates this right when it provides the driver with a telephone before testing and gives the driver a “reasonable time to contact and talk with counsel. If counsel cannot be contacted with a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.” Friedman v. Comm ’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (quotation omitted)."

“A reasonable time is not a fixed amount of time, and it cannot be based on elapsed minutes alone.” Mell, 757 N.W.2d at 713. Rather, courts consider the totality of the circumstances in determining whether the state provided a reasonable amount of time to consult an attorney. Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000). Factors considered by a reviewing court include: the efforts made by the driver balanced against the efforts made by the officer; the time of day; and the length of delay since the driver’s arrest. Mell, 757 N.W.2d at 713. Police officers are required to “assist in the vindication of the right to counsel.” Mulvaney v. Comm ’r of Pub. Safety, 509 N.W.2d 179, 181 (Minn. App. 1993). But an officer need not allow an arrestee “unfettered use of a telephone to call friends or relatives, unless the driver specifies that the reason for the calls is to contact an attorney.” McNaughton v. Comm ’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995)."

"A DWI arrestee must make a “good-faith and sincere effort” to contact an attorney with the time afforded him. Mell, 757 N.W.2d at 713. If the driver is not making a good- faith effort to contact an attorney, police need not afford additional time to contact an attorney. Id."

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"The officer informed appellant that he had a right to contact an attorney and provided appellant with a telephone and telephone directories. Appellant looked through the directories and made several phone calls. When police provided appellant with his own personal cell phone, he made several additional calls and sent several text messages. Appellant was, for a time, making a good-faith effort to reach an attorney. However, the district court found as a fact that appellant later “ceased to make good faith efforts to contact an attorney.”  The record supports this finding. Specifically, the recording of the implied-consent process shows appellant standing around, drinking water, and waiting for his friend to return his call. When the officer notified appellant at 2:57 a.m. that his attorney time would end at 3:00 a.m., appellant continued to sit passively and made no additional attempts to contact an attorney or anyone else."

"We conclude that the record adequately supports the district court’s finding that the officer vindicated appellant’s right to counsel by providing appellant with a telephone, appellant’s own personal cell phone, telephone directories, and a reasonable amount of time to make contact with an attorney. The record also amply supports the district court’s finding that appellant ended his good-faith effort to contact an attorney by the time the officer required appellant to decide whether to take the breath test. We therefore affirm the district court’s determination that appellant’s limited right to counsel was vindicated.

Moral Of The Story:  Use it or lose 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.

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

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

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

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

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

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

***

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

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

***

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

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

Moral Of The Story:  Fool me once...

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

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. Anderson (Decided June 17, 2019, Minnesota Court of Appeals, Published) which stands for the proposition that the use of a prior implied consent license revocation to enhance the severity of the current DWI charge does not violate due process provided the prior implied consent license revocation is "final" prior to the conviction for the current offense.  This case just basically follows State v. Wiltgen, 737 N.W.2d 561 (Minn. 2007).

In Anderson, the defendant was arrested for DWI on October 2, 2016 and on December 18, 2016.  Anderson filed a challenge to the October DWI license revocation but in April 2017, Anderson waived his right to further judicial review of the October license revocation.

On August 7, 2017. the state charged Anderson with 2nd Degree DWI Refusal using the October license revocation to enhance the charges stemming from his December 2016 arrest.

The Defendant filed a Motion To Dismiss the 2nd degree charge arguing that at the time the December offense was committed, the challenge to the October license revocation was not "final" and the revocation could not be used to enhance the present charge.  The Court of Appeals rejected the argument stating"

"The United States and Minnesota Constitutions guarantee due process of law for criminal defendants. U.S. Const, amend. XIV, § 1; Minn. Const, art. I, § 7. Due process requires an “opportunity to be heard at a meaningful time and in a meaningful manner.” State v. Krause, 817 N.W.2d 136, 145 (Minn. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976)) (other quotation omitted). The United States Supreme Court has held that when an administrative proceeding, such as a license revocation, plays a “critical role” in imposing a subsequent criminal sanction, “there must be some meaningful review of the administrative proceeding.” United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S. Ct. 2148, 2155 (1987). Accordingly, some “means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense."

***

"In Wiltgen, the supreme court applied the three-part test established in Mathews v. Eldridge. Id. at 568-70 (citing Mathews, 424 U.S. at 335, 96 S. Ct. at 903). After weighing the Mathews factors, the supreme court determined that the combined private interest and risk of an erroneous deprivation outweighed the government interest. Id. The supreme court held that the potential prejudice to the defendant “from the use of an unreviewed administrative revocation to enhance a subsequent DWI rises to the level of a violation of [the defendant’s] right to procedural due process.” Id. at 570."

"In footnote seven of Wiltgen, the supreme court considered whether the state was prejudiced by its ruling and determined that it was not. Id. at 572 n.7. The supreme court reasoned that, in future cases, the state “can delay the issuance of a second-degree DWI complaint until after the implied consent hearing has been conducted and the revocation has been sustained, or can charge third-degree DWI before the implied consent hearing and amend the complaint to add a second-degree DWI charge after the hearing."

***

"Like the defendant in Heino, Anderson filed, then waived review of, his petition for judicial review of his 2016 license revocation before the state served a complaint that asserted an aggravating factor for his 2016 DWI. Although Heino involved a defendant’s property interest, and Anderson’s due-process claim involves his liberty interest, the risk of an erroneous deprivation is slight for Anderson. See Heino, 762 N.W.2d at 264 (concluding that “the risk of erroneous deprivation in this case was minimal”). If Anderson had proceeded with judicial review of the 2016 license revocation and successfully obtained a rescission, then the state could not have used his revocation as an aggravating factor for his 2016 DWI."

Moral Of The Story:  If you can delay and delay and delay justice, you may be able to deny it!

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

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

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

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

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

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

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

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

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

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

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

The Minnesota DWI Case Of The Week is State v. Kelly (Decided April 1, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a driver, in making a turn, does not have to turn into the lane closest to the centerline.

In Kelly, an Eden Prairie police officer observed the Defendant's truck stopped at a red light at the intersection of Singletree Lane and Prairie Center Drive.  Singletree Lane runs from east to west and has two eastbound lanes and two westbound lanes, divided by a grass median. Similarly, Prairie Center Drive runs from north to south and has two northbound lanes and two southbound lanes, also divided by a grass median.  Kelley’s truck was stopped in the left-most lane of the westbound portion of Singletree Lane. That lane is the only lane from which a left-hand turn onto Prairie Center Drive can be legally made, and there are no markers extending the lanes through the intersection onto Prairie Center Drive.

Kelley’s turn signal was activated, indicating his intent to make a left-hand turn onto southbound Prairie Center Drive. Officer Streiff testified that when the light turned green, he watched Kelley’s truck make “a wide turn and actually turn into the far right lane, not the near lane when making the left hand turn.” Upon exiting the intersection, Kelley completed his turn.  Officer Streiff testified that he believed the wide left turn was a traffic violation, so he initiated a traffic stop.  

Mr. Kelly was drunk and was subsequently arrested for 2nd Degree DWI.  He moved to suppress the evidence and dismiss the charges arguing arguing that the officer did not have a reasonable, articulable basis for the stop because his left turn was legal. 

The District Court denied the Defendant's Motion but on appeal, the Court of Appeals reversed, stating:

"Kelley does not dispute that he did not turn into the inner portion of the lane when completing the left turn. Instead, he argues that the district court and the officer erred in relying on Minn. Stat. § 169.19, subd. 1(b) to conclude that he violated a traffic law. He asserts that the district court and the officer misinterpreted the statute because “Minnesota law does not dictate which lane of the roadway being entered that a left turn must be completed in."

***

"The relevant portion of the left-turn statute provides that the driver of a vehicle intending to turn at an intersection shall do so as follows:

(b) Approach for a left turn on other than one-way roadways shall be made in that portion of the right half of the roadway nearest the centerline thereof, and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the centerline of the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection. Minn. Stat. § 169.19, subd. 1(b).

"The first sentence of subdivision 1(b) provides guidance as to how one should approach the intersection to make a left turn and requires that approach for a left turn, on other than one-way roadways, be made in the portion of the roadway nearest the centerline. Id. Here, there is no dispute that Kelley complied with this requirement."

***

"The plain language of the statute required Kelley, after entering the intersection, to leave the intersection to the right of the centerline of Prairie Center Drive. The statute does not require that a left turn be completed in the inner-most, closest, or nearest lane “to the right of the centerline of the roadway being entered.” Minn. Stat. § 169.19, subd. 1(b). Both of the southbound lanes on Prairie Center Drive are to the right of the centerline, and Kelley’s turn into the outer lane, which was on the right side of the median, complied with this portion of the statute."

"The state argues that the second sentence of the subdivision required Kelley to turn into the inner-most lane of the roadway being entered because there was nothing obstructing Kelley’s ability to complete the turn in the inner-most lane. The state relies on the language in the second sentence of subdivision 1(b), which provides that “[w]henever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.” Minn. Stat. § 169.19, subd. 1(b)."

"Given these plain-language meanings and the statutory definition of intersection, the “whenever practicable” provision in the statute only refers to a driver’s conduct when going through the intersection, not when completing the turn. Consequently, Kelley was not required to turn into the inner-most lane because it was “practicable” for him to do so. Because the statute does not require which lane of the roadway being entered a left turn must be completed in, the district court erred by concluding that Kelley was required to turn into the inner-most lane of Prairie Center Drive."

Moral Of The Story:  People may often make a wrong turn in life but the lane chosen does not really matter.

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

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

The Minnesota DWI Case Of The Week is State v. Stark (Decided March 18, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that an officer's observations of DWI impairment are direct and not circumstantial evidence.  

In Stark, a police officer was following a vehicle when he observed it rapidly accelerate and pass another vehicle without signaling. The officer estimated that the vehicle was traveling between 75 and 80 miles per hour on a gravel road.   The officer gave chase and observed numerous traffic violations during his pursuit, including failure to signal turns and a lane change, failure to stop at stop signs, and speeding. The officer turned on his emergency lights in order to initiate a traffic stop. The driver of the vehicle did not stop, but instead continued to speed, drive erratically, and take turns at dangerous speeds. The officer testified that he felt that, based on his observations of the vehicle and the manner in which the driver would approach intersections and turns, the driver’s depth perception was off.

After an eight-mile chase, the vehicle stopped at an intersection. The officer announced to the driver that he was under arrest and ordered him to put his hands out of the window. The driver put his hands out of the window, with his middle fingers extended, and repeatedly swore at the officer, stating that he would not listen. This behavior continued for around eight minutes before a police dog was brought to the driver’s side of the vehicle, and, although the driver refused to open his door, eventually several officers were able to remove the driver and place him under arrest for fleeing a police officer. The driver was then identified by his ID as appellant. Despite being handcuffed, Defendant remained defiant to commands. At this time, the officer suspected Defendant was impaired due to the officer’s observation of his erratic driving.

At the jail, the officer spoke to Defendant and observed that his eyes were bloodshot and watery and that his pupils were dilated. Based on the officer’s drug-recognition-expert training, he knew these to be indications of impairment either by alcohol or controlled substances. Based on the officer’s training, the next step in his investigation of possible impairment was to subject appellant to standardized field sobriety assessments. When the officer attempted to conduct the first test, which involved shining a light in appellant’s eyes and having him follow movement, Defendant informed the officer that he would not comply with any testing. The officer read Defendant the implied-consent advisory and requested a breath test. Defendant refused. The officer asked again if Defendant would submit to a breath test, but he again refused.

Defendant was charged with first-degree DWI—test refusal, three counts of DWI— impaired driving, fleeing a police officer in a motor vehicle, and driving after cancellation.  The District Court dismissed the three DWI counts but not the fleeing or test refusal count.  The Defendant was convicted after a jury trial and argued on appeal that the evidence was insufficient as to the test refusal charge.

The Defendant urged the Court of Appeals to find the state’s evidence of probable cause of impairment, which consisted of squad and booking-room video evidence and testimony from the arresting officer regarding his direct observations, was circumstantial.  Defendant, therefore, argued the appellate court should apply the two-step analysis for evaluating the sufficiency of circumstantial evidence.

The Court of Appeals rejected the Defendant's argument noting that:
 "...State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010) (“[W]hen reviewing the sufficiency of circumstantial evidence, our first task is to identify the circumstances proved. . . . Our second step is to examine independently the reasonableness of all inferences that might be drawn from the circumstances proved; this includes inferences consistent with a hypothesis other than guilt.” 

"Circumstantial evidence is “evidence from which the factfinder can infer whether the facts in dispute existed or did not exist.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). Direct evidence is “evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.” Id. (quotation omitted). Circumstantial evidence always requires an inferential step that is not required with direct evidence. Id."

"Probable cause of appellant’s impairment was proved with direct, and not circumstantial, evidence. The officer’s direct observations of appellant were sufficient to support probable cause of impairment by alcohol, drugs, or both."

Moral Of The Story: You can run but you cannot hide!

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

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

The Minnesota DWI Case Of The Week is State v. Fernandez, (Decided January 7, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it does not take much to allow the police to expand a traffic stop to investigate intoxication for a DWI arrest.

In Fernandez, Officer William Hullopeter stopped a vehicle when he discovered that the registered owner, a 48-year-old woman, had a cancelled driver’s license. As he exited his squad car and approached the vehicle, Officer Hullopeter observed that the driver, who was not a female, had bloodshot, watery eyes, and that his breath had a “strong minty odor” emanating from the gum he was chewing. Officer Hullopeter also observed “beer cans directly behind the driver’s seat,” and that the driver was wearing two paper wristbands that are the type commonly issued at events where alcohol is served. Officer Hullopeter identified the driver as appellant Christian Fernandez and asked him to perform several field sobriety tests, the results of which indicated impairment. The officer arrested Fernandez, transported him to the Blue Earth County Jail, and read him the Implied Consent Advisory. Fernandez agreed to provide a breath test, which revealed an alcohol concentration of 0.10.

Fernandez moved to suppress the evidence obtained as a result of the stop, arguing that the stop was unlawfully expanded because Officer Hullopeter should not have further approached the driver as soon as he shined his spotlight into the vehicle and determined that the driver was not a female and therefore was not the registered owner of the vehicle with the canceled driver’s license. 

The district court found that “the officer’s suspicions about the identity of the driver were not dispelled until he exited the squad vehicle and approached [Fernandez’s] vehicle.” The court also found that when Officer Hullopeter “approached the vehicle and spoke with [Fernandez], he immediately” observed signs that Fernandez had been drinking, and that “these new observations were made at the same time that Hullopeter determined that the driver was not the registered owner.” 

The district court's findings of fact meant that the Defendant had no hope for winning on appeal. Or, as noted by the Appellate Court:

"Fernandez acknowledges that under Pike, the initial stop of the vehicle was valid because the vehicle was registered to an owner with an expired driver’s license. But Fernandez argues that because “Officer Hullopeter’s reasonable suspicion of criminal activity was based entirely upon his assumption that the registered owner... was the person driving the vehicle,” the reasonable suspicion justifying the stop was dispelled as soon as the officer “shined his squad spotlight on the car” and recognized that Fernandez was not a middle-aged woman. Fernandez argues that because Officer Hullopeter observed that the driver of the vehicle was not a middle-aged woman, his detention of Fernandez for the purpose of asking to see his driver’s license was unconstitutional."

***

"Officer Hullopeter’s suspicions that criminal activity was afoot were not dispelled until he “was in close proximity to the vehicle,” close enough to observe that the registered owner of the vehicle was not the driver, but also close enough to “immediately” observe that the driver had “bloodshot, watery eyes,” and “‘minty’ breath.” (Emphasis added.). Officer Hullopeter also observed “alcoholic beverage containers in plain view in the vehicle,” and that Fernandez was wearing wristbands of the type worn by “younger people at events or locations where alcohol is served.” These new observations occurred prior to Officer Hullopeter asking for Fernandez’s driver’s license and provided him with reasonable suspicion that Fernandez was driving under the influence of alcohok See State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (concluding that an officer’s observation of the odor of alcohol and bloodshot and watery eyes justified the expansion of a traffic stop to investigate a suspicion of impaired driving)."

Moral Of The Story:  If you have been drinking do not drive someone else's car as they may not be as responsible as you.

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.