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The Minnesota DWI Case Of The Week is State v. Brehmer (Decided April 28, 2025, Minnesota Court of Appeals, Unpublished) which stands for the proposition that even if the defendant was arrested before the police had probable cause, the evidence obtained was still admissible under the "inevitable-discovery" rule.

In Brehmer, the police saw the Defendant was driving the wrong way down a one-way street.  Defendant then hit his brakes and drove backwards into a parking lot.  The police activated their emergency lights to perform a traffic stop.  As the officers approached the Defendant's vehicle, one of the officers shouted, "Watch out. Watch out."

The officers exited the squad car with their firearms drawn and yelled at Brehmer to put his hands up. Brehmer moved his hands up and down several times before raising both hands, with one hand outside of the car window. One officer observed that Brehmer made “a lot of furtive movements . . . with the hands kind of up, down, side to side,” and specifically noted that he “reach[ed] to the right side.” 

One of the officers opened the driver-side door and pulled Brehmer from the car. The officers both pushed Brehmer to the ground face down and cuffed his hands behind his back. While Brehmer was handcuffed on the ground, one of the officers patted Brehmer’s pockets and pulled up his shirt to reveal his waistband. The officer then stood Brehmer up while handcuffed and brought him over to the squad car. The officers pat-frisked Brehmer next to the squad car, reaching into his front pants pocket and removing his wallet. During the frisk, one of the officers felt an object near Brehmer’s “right buttock area in his underwear.” He asked Brehmer what the object was, and Brehmer replied that it was “just a pipe.” The other officer removed a glass pipe from Brehmer’s underwear and, after inspecting it, concluded that it was a drug pipe containing drug residue.

One of the officers then ran information from Brehmer’s driver’s license in the police database and, after Brehmer stated that he did not have a license, confirmed that Brehmer’s license was suspended. The officer stated that he wanted to do “one more frisk search” before putting Brehmer in the back of the squad car. The officer reached into Brehmer’s front and back pockets and pat-frisked Brehmer’s body. The officer then placed Brehmer, still handcuffed, in the back of the squad car. During this time, the other officer observed that Brehmer exhibited several indicia of drug use, including pinpoint pupils, bloodshot eyes, sweating, and fast head movements. Officers also searched Brehmer’s car and found whiskey plates for the car.

One of the officers applied for and received a search warrant for Brehmer’s blood or urine for chemical testing. Officers obtained a urine sample from Brehmer that tested positive for amphetamine and methamphetamine.

The State of Minnesota charged Brehmer with felony DWI pursuant to Minn. Stat. § 169A.20, subd. 1(7) (2020). Brehmer moved to suppress evidence including the search of his person and car, his statements to the officers on the scene, and the chemical test of his urine, arguing that the police violated his right to be free from an unlawful search and seizure under the United States and Minnesota Constitutions. 

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

"The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. And unless an exception applies, evidence obtained as a result of an unlawful search or seizure must be suppressed. State v. Bradley, 908 N.W.2d 366, 369 (Minn. App. 2018). One such exception is the inevitable-discovery doctrine, which permits a court to admit evidence obtained as a result of an unlawful search or seizure “[i]f the state can establish by a preponderance of the evidence that the fruits of a challenged search ultimately or inevitably would have been discovered by lawful means.” State v. Licari, 659 N.W.2d 243, 254 (Minn. 2003) (quotation omitted). To meet this burden, the state’s showing must “involve[] no speculative elements but focus[] on demonstrated historical facts capable of ready verification.” Nix v. Williams, 467 U.S. 431, 444 n.5 (1984)."

"It is uncontested that the officers had reasonable, articulable suspicion to stop Brehmer after observing his erratic driving and had reasonable concern for officer safety such that a Terry frisk was lawful. This frisk would have inevitably revealed the drug pipe with drug residue in Brehmer’s underwear. Indeed, the officer testified that he would have found the pipe “regardless” of any of Brehmer’s statements during the encounter."

"Similarly, the district court found that “a routine records check inevitably would have been performed” and would have revealed that Brehmer’s license was canceled as inimical to public safety and that the vehicle was subject to whiskey plates. Brehmer does not assert that this finding was clearly erroneous. One officer agreed during his testimony that it was “standard operating procedure to identify an individual” during a traffic stop, that the officer would have learned that Brehmer’s license was canceled, and that the officer would have discovered that the vehicle should have been displaying whiskey plates when stopped. See Diede, 795 N.W.2d at 846-47."

"Based on these inevitabilities, the officers would have had probable cause to arrest Brehmer for operating a vehicle while his license was canceled as inimical to public safety—a gross misdemeanor. Minn. Stat. §§ 171.04, subd. 1(10), .24, subd. 5(1) (2020). And given that probable cause to arrest, officers would have inevitably discovered the drug pipe with residue on Brehmer in a search incident to arrest. Brehmer’s erratic driving, drug pipe with residue, and his canceled license and vehicle-registration status, taken together, formed sufficient probable cause to support a warrant for chemical testing for DWI."

Moral Of The Story: If someone continues to drive and act the wrong way, they will inevitably get into trouble.

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. 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.

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 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 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."

***

"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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  

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

The Minnesota DWI Case Of The Week is Leu v. Commissioner of Public Safety (Decided March 25, 2024, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person does not lose their status as a "passenger" in a motor vehicle unless they take some action that makes the motor vehicle a source of danger to themselves or others.

Jennifer Leu was a passenger in a pickup truck driven by her husband. A police officer stopped the pickup and suspected Leu's husband was impaired. After conducting field sobriety tests on Leu’s husband, the officer arrested him and directed Leu to remain in the truck. The truck’s engine remained running. At some point, Leu got out of the passenger compartment of the truck and moved to the driver’s seat. However, she did not close the driver’s door. Instead, Leu sat sideways on the driver’s seat, with her feet hanging out of the truck. When the officer observed Leu in that position, she was on her cell phone and explained to the officer that she was requesting a ride home from the scene. Leu exited the truck. Then, she reached inside the truck, switched off the ignition, and put the keys in her pocket. As the officer placed Leu under arrest, a third party arrived to take possession of the truck.

Jennifer Leu's drivers license was revoked for being in physical control of a motor vehicle.  Ms. Leu filed a challenge to the revocation but the district court upheld the revocation. On appeal, the Minnesota Court of Appeals rightly reversed the district court, stating:

"The term “physical control” is more comprehensive than the terms “drive” and “operate.” State v. Harris, 202N.W.2d 878, 881 (Minn. 1972). The term “physical control” should be given “the broadest possible effect” to deter inebriated persons from getting into vehicles except as passengers. State, Dep’t of Pub. Safety v. Juncewski, 308N.W.2d 316, 319 (Minn. 1981) (quotation omitted). Generally, physical control is meant to cover situations in which “an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.” State v. Starfield, 481 N.W.2d 834, 837 (Minn 1992)."

"However, [i]t is, of course, no crime for an intoxicated person to be in a motor vehicle as a passenger. A passenger, by definition, is someone who is merely along for the ride. When, however, only one person is found in or about a stopped car, the question arises whether that person is a passenger or a person in physical control of the motor vehicle. Mere presence in or about the vehicle is not enough for physical control; it is the overall situation that is determinative."

"Thus, the supreme court has articulated a different physical-control standard for a “known passenger” in Shane. 587 N.W.2d at 639. Under that standard: [F]or a police officer to have probable cause to believe a known passenger is in physical control of a motor vehicle, the officer must have reason to believe that the passenger has or is about to take some action that makes the motor vehicle a source of danger to themselves, to others, or to property."

***

"After the driver in Shane was removed from the vehicle, Shane asked the police officer if he could drive the vehicle home. Id. at 640. Later, Shane touched the vehicle’s gas pedal from his position in the passenger seat while the vehicle was running, causing the engine to “rev up” and the exhaust from the vehicle to increase. Id. at 642. Yet, the supreme court concluded that the officers “had no reason to believe that Shane had or was about to take some action that would make the [vehicle] a source of danger,” stating, “[t]he mere act of a known passenger leaning over and touching a vehicle’s gas pedal, without more, is not an action that makes the vehicle a source of danger.” Id. The Shane court said that the circumstances were inadequate to establish “physical control” because Shane did not put himself in a position to move the vehicle. Id. The supreme court noted that Shane did not cause the vehicle to move, did not move to the driver’s seat, did not touch the steering wheel, and did not put the vehicle into gear. Id. Nor was there any evidence that Shane attempted to do those things. Id. Thus, the officers did not have probable cause to believe that Shane was in physical control of the vehicle. Id."

"When compared to the circumstances in Shane, the circumstances here provide even less reason to believe that Leu had taken or was about to take some action to make the truck a danger to herself, others, or property. Like Shane, Leu did not put herself in a position to move the truck, and she did not cause the truck to move. Although Leu moved to the driver’s seat, she did not sit in a position conducive to driving. Instead, she sat facing out the driver’s door with her feet outside of the truck, where they were not in contact with the truck’s gas and brake pedals. Unlike Shane, Leu did not manipulate the gas pedal. Leu operated only the truck’s ignition switch, and she did so only to turn off the truck’s engine. Next, she removed the keys from the truck. Those acts are inconsistent with an attempt to move the truck. Finally, unlike Shane, Leu did not ask for permission to drive the truck. Instead, she attempted to make arrangements for a ride home, and a third party arrived and took custody of the truck before the police officer cleared the scene. When considered in their totality, these circumstances do not suggest that Leu had taken or was about to take some action to make the truck a danger to herself, others, or property."

***

"Because Leu was a known passenger and the totality of the circumstances do not indicate that she had taken or was about to take some action to make the truck a source of danger, there was no probable cause to believe that she was in physical control of the truck. We therefore reverse the commissioner’s revocation of Leu’s license to drive."

Moral Of The Story: Don't ride with a drunk driver.

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

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 Alleman v. Commissioner of Public Safety (Decided March 4, 2024, Minnesota Court of Appeals, Unpublished), which stands for the proposition that a partially covered license plate is a constitutionally sufficient reason for the police to stop a motor vehicle. 

In Alleman, a Crow Wing County police officer was following the Petitioner's motorcycle when the officer noticed Mr. Alleman's backpack was obstructing the rear license plate of the motorcycle.  The officer initiated a traffic stop and ultimately arrested Mr. Alleman for DWI and revoked his driver's license.

Mr. Alleman filed a challenge to the license revocation arguing the officer did not have a constitutionally sufficient basis to justify the initial stop.  The district court denied the challenge and upheld the license revocation.  The Minnesota Court of Appeals affirmed the lower court, noting:

"...an officer does not violate the prohibition if [the officer] stops a vehicle to conduct an investigation based on the officer’s reasonable suspicion that the driver is engaging in criminal activity.” Soucie v. Comm ’r of Pub. Safety, 957 N.W.2d 461, 463-64 (Minn. App. 2021), rev. denied (Minn. June 29, 2021). Reasonable suspicion must be based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968); see Magnuson v. Comm ’r of Pub. Safety, 703 N.W.2d 557, 559 (Minn. App. 2005). “Generally, if an officer observes a violation of a traffic law, no matter how insignificant the traffic law, that observation forms the requisite particularized and objective basis for conducting a traffic stop.” State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004)."

***

"Under Minnesota Statutes section 169.79, subdivision 7 (2022), “[t]he person driving the motor vehicle shall keep the [license] plate legible and unobstructed ... so that the lettering is plainly visible at all times.” See Minn. Stat. § 169.011, subd. 44 (2022) (defining “motorcycle” as a “motor vehicle”). Based on the squad-car video, the district court found that it was “very clear that the backpack obstruct[ed] at least three quarters of the license plate.” Alleman disputes the district court’s finding that his license plate was obstructed by the backpack."

"Alleman contends that two screenshots from the squad-car video show that his license plate was not covered by the backpack before Officer Lindman stopped his motorcycle. But a review of the squad-car video plainly shows that the license plate was partially obstructed by the backpack before Officer Lindman stopped Alleman’s motorcycle. Because the record supports the district court’s finding that Alleman’s license plate was obstructed by the backpack, the district court did not err by concluding that Officer Lindman had reasonable suspicion to stop Alleman’s motorcycle."

Moral Of The Story: Be careful of what you are packing.

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 Ness v. Commissioner of Public Safety (Decided December 11, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the failure to read verbatim the Minnesota DWI Search Warrant Advisory is not fatal as long as the advisory given is not inaccurate, misleading or confusing.

In Ness, the Petitioner was arrested for driving while impaired and was taken to jail.  The arresting officer asked the Petitioner if he preferred to take a blood or a urine test. The Petitioner responded that the officer was not going to obtain either test from him.

The officer obtained a search warrant authorizing him to procure either a blood or urine sample from appellant. After obtaining the warrant, the officer approached Petitioner's holding cell, stated Petitioner's name, and asked Petitioner to come talk to him. Petitioner was lying down on the cell bed, was wrapped in a blanket with his eyes closed, and did not get up or respond to the officer. The officer informed Petitioner, “as I told you before, I was drafting a search warrant for your blood or urine because of the DWI, and I have a signed search warrant in my hand, and refusing to submit to that search warrant is a crime.” The officer asked Petitioner if he understood. The officer testified that appellant did not respond and was ignoring him, but that at one point Petitioner opened his eyes and looked at him while adjusting his blanket before continuing to ignore him.  The officer asked Petitioner if he was refusing to give the officer a test, to which Petitioner did not reply.

The officer then told Petitioner that he was taking his silence as a refusal, and asked if Petitioner understood. Petitioner again did not reply. The officer informed Petitioner that he was leaving Petitioner a copy of the search warrant but Petitioner's noncompliance with the warrant would be considered a refusal and he would be charged with an additional crime. The officer then issued a Notice and Order Of Revocation of the Petitioner's driver's license.

The Petitioner challenged the revocation of his license asserting that his refusal to submit to testing was not properly obtained.  Petitioner claimed that since the officer failed to read the search warrant advisory statutory language verbatim, and failed to offer both a blood or urine test, the revocation of his license must be rescinded.

The district court sustained the revocation and on appeal, the Minnesota Court of Appeals upheld the lower court, stating:

"Minn. Stat. § 171.177, subd. 4. “At the time a blood or urine test is directed pursuant to a search warrant . . . the person must be informed that refusal to submit to a blood or urine test is a crime.” Id., subd. 1. 

"Minnesota Statutes section 171.177, subdivision 2, provides, in part, that:

The peace officer who directs a test pursuant to a search warrant shall direct a blood or urine test as provided in the warrant. If the warrant authorizes either a blood or urine test,     the officer may direct whether the test is of blood or urine. If the person to whom the test is directed objects to the test, the officer shall offer the person an alternative test of either blood or urine.

Action may only be taken against a person who is offered and refuses both a urine test and a blood test. Id., subd. 2."

"This court has determined that the warning requirement under Minn. Stat. § 171.177, subd. 1, is unambiguous and law enforcement is required to inform a defendant that refusal to submit to a warranted blood or urine test is a crime. State v. Mike, 919 N.W.2d 103,110 (Minn. App. 2018), rev. denied (Minn. Aug. 20,2019)."

***

"In Nash, this court considered whether law enforcement provided the search-warrant advisory required under Minn. Stat. § 171.177, subd. 1, when a state trooper told Nash, “I applied for a search warrant for a blood draw, and refusal to take a test is a crime.” 989 N.W.2d at 706. Even though the warrant also permitted a urine test, the trooper did not mention the possibility of a urine test, and Nash did not have an opportunity to read the warrant before agreeing to the blood test. Id. at 710. We concluded that “the advisory informed Nash that he could be charged with a crime if he refused the blood test, even though the trooper had not offered Nash an alternative urine test. That was an inaccurate statement of law and misleading,” and could not be a basis for Nash’s license revocation. Id. at 710-11. We held that if a search-warrant advisory deviates from the exact wording of Minn. Stat. § 171.177, subd. 1, it “is insufficient to sustain the revocation of a person’s driving privileges if it is an inaccurate statement of law, misleading, or confusing when considered in its context as a whole.” 

"Although here the officer’s search-warrant advisory did not comply with the exact wording of Minn. Stat. § 171.177, subd. 1, Nash supports that a deviation is only problematic if it is an inaccurate statement of law, misleading, or confusing in its context. 989 N.W.2d at 711. Here, the officer’s advisory was legally accurate and properly advised appellant of the consequences of his refusal. The officer testified that at the jail and prior to applying for a search warrant, he asked appellant whether he preferred a blood or urine test, to which appellant responded that he would provide neither. After applying for and receiving a search warrant, the officer told appellant that he had obtained a signed search warrant for appellant’s blood or urine, and that refusing to submit to the search warrant was a crime."

"The plain language of subdivision 2 does not require law enforcement to separately direct the tests. A peace officer who directs a test “shall direct a blood or urine test as provided in the warrant,” and if the warrant authorizes both, the peace officer “may direct whether the test is ofblood or urine.” Minn. Stat. § 171.177, subd. 2 (emphasis added). If a person objects to one test, the peace officer shall offer the other test. Id. The statute does not prohibit a peace officer from simultaneously offering a urine or a blood test. “Action may be taken against a person who refuses to take a blood test only if a urine test was offered and action may be taken against a person who refuses to take a urine test only if a blood test was offered.” Id. Here, the officer testified to offering both types of tests to appellant before the officer obtained a search warrant. After obtaining the warrant, the officer again indicated to appellant that both tests were authorized by the search warrant before informing appellant that refusal to comply with the search warrant was a crime. The officer therefore complied with the requirements of Minn. Stat. § 171.177, subd. 2."

Moral Of The Story: Close enough for government work. 

If you or a loved one have been charged with a Minnesota DWI, feel free to contact 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. Graham (Decided November 27, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the unintentional destruction of the squad video does not violate Due Process.

Mr. Graham was charged with second-degree DWI and he challenged the stop and arrest.  The arresting officer testified that he observed Mr. Graham drive his vehicle over the fog line and make a "sloppy right turn, and cross into oncoming traffic before correcting into the proper lane. The arresting officer testified that his squad car’s video system automatically activates when an officer turns on the vehicle’s emergency lights, and the captured footage will often include a few minutes of video prior to the activation of the lights. He further testified he believed Graham’s driving conduct was automatically recorded by the squad camera.

Defense counsel was then given leave by the Court to obtain a copy of the squad video. The state later informed the district court that the squad video did not exist and requested that the record be closed.  Graham moved the district court to dismiss the charges, arguing that the loss or destruction of the squad video constituted a due-process violation. The district court held a second omnibus hearing and received testimony from the arresting officer and his chief of police.

The police chief testified testified that he oversees the sergeants assigned to managing, transferring, and storing videos; that he searched for and could not locate the video recording of Graham’s traffic stop; and that all recordings labeled as medical calls were “deleted for 2019 to free up some space on our server.” He testified that “it’s to the point where test recordings, traffic warnings and medicals take up a lot of space on our internal storage, and it’s my belief that after a year or two if there haven’t been any complaints” then “we just delete them,” and that “[t]he only person in our department that has the password to remove the files [is] myself.” He testified, “I might have deleted it if it was labeled as a test recording, as a medical or as a traffic warning.”

The district court denied Graham’s motion to dismiss, reasoning that there was “an equal likelihood the squad video could have inculpated [Graham] as it could have exculpated him.” The district court determined that the squad video was not destroyed in bad faith, that the exculpatory value of the evidence was not apparent "at the time of destruction".

On appeal, the Minnesota Court of Appeals upheld the district court stating:

"In Brady v. Maryland, the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). Thus, “[u]nder Brady, the suppression by the [s]tate, whether intentional or not, of material evidence favorable to the defendant violates the constitutional guarantee of due process.” Walen v. State, 111 N.W.2d 213, 216 (Minn. 2010)."

"The three elements of a Brady violation are: “(1) the evidence must be favorable to the defendant because it would have been either exculpatory or impeaching; (2) the evidence must have been suppressed by the prosecution, intentionally or otherwise; and (3) the evidence must be material—in other words, the absence of the evidence must have caused prejudice to the defendant.” Id. If evidence that is only potentially useful to a defendant is destroyed, then the defendant must show bad faith on the part of the state to establish a due-process violation. Arizona v. Youngblood, 488 U.S. 51,58 (1988)."

*    *    *

"The district court reasoned that the video was not material because there was an equal likelihood that the video was inculpatory, and not exculpatory...The district court’s reasoning is sound, and we agree that the video was not “material.” There must be something beyond mere “hope” that the destroyed evidence could be exculpatory before it will be protected as the type of “material exculpatory evidence addressed in Brady”.

"Because the video was not material and was only “potentially useful,” Graham must show bad faith on the part of the state to succeed on his due-process claim. The United States Supreme Court and the Minnesota Supreme Court have identified two indices of bad faith: (1) the state’s purposeful destruction of evidence favorable to a defendant so as to conceal it; and (2) the state’s failure to follow standard procedures when destroying evidence. Hawkinson, 829 N.W.2d at 373."

"The record does not support a conclusion that the state purposely destroyed the video.  The district court expressly found that “while the video may have been destroyed due to mistake or gross negligence, the [c]ourt does not find the video was intentionally destroyed.” And the circumstances do not suggest that the state was attempting to conceal the video. In fact, but for Officer Etshokin’s testimony at the initial omnibus hearing, which revealed the existence of the video, Graham would not have known about the video. Nor does the record support a conclusion that the state failed to follow standard procedures when it destroyed the video."

"In sum, because the video was not “material” and the record does not show that the video was destroyed in bad faith, the district court did not err by denying Graham’s motion to dismiss for a due-process violation."

Moral Of The Story: Counsel should have immediately obtained the squad video as reference thereto is always contained in the police reports.

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. Wilson (Decided August 7, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it is virtually impossible to collaterally attack a prior license revocation being used to enhance the severity of the current charge.

In Wilson, the Defendant was charged with Third Degree DWI (i.e. two DWI's within 10 years).  The charge was enhanced to a third-degree offense because Wilson’s driver’s license had been revoked two months earlier based on a November 24, 2019 DWI-related traffic stop. Wilson did not seek judicial review of the prior revocation within the statutory 60-day period. After the judicial review period to contest the driver’s-license revocation had ended, Wilson successfully moved to suppress the evidence of impairment in the prior related criminal DWI proceeding.

In the present case, Wilson moved to exclude evidence of the license revocation from being used to enhance the DWI charge. She argued that the state could not use the revocation as an aggravating factor because the evidence of impairment had been suppressed in the criminal case related to the November 24 stop. The district court denied Wilson’s motion and, in a stipulated-facts trial, found Wilson guilty of third-degree DWI.

On appeal, the Minnesota Court of Appeals upheld the lower court stating:

"Use of an unreviewed license revocation as an aggravating DWI factor does not violate a defendant’s due-process rights. State v. Coleman, 661 N.W.2d 296, 301 (Minn. App. 2003), rev. denied (Minn. Aug. 5, 2003). A challenge to the validity of the underlying revocation used as an aggravating factor is a collateral challenge to the revocation. Anderson v. Comm ’r of Pub. Safety, 878 N.W.2d 926, 930 (Minn. App. 2016). A collateral challenge attacks the final outcome of another proceeding which is being used as an element of a charged offense. Davis v. Comm ’r of Pub. Safety, 509 N.W.2d 380, 391-92 (Minn. App. 1993), aff’d, 517 N.W.2d 901 (Minn. 1994). Because collateral challenges weaken the finality of judgments, they are allowed only in “unique cases.” State v. Warren, 419 N.W.2d 795, 798 (Minn. 1988); Anderson, 878 N.W.2d at 930 (citing this aspect of Warren in the implied-consent context)."

"Wilson argues that hers is a unique case because she was indigent and unable to afford counsel to help her seek review of the driver’s-license revocation. Wilson additionally argues that, had she been able to afford counsel and sought judicial review of the driver’s-license revocation, her license revocation would have been rescinded because evidence of intoxication in the related criminal proceeding was suppressed. We are not persuaded that Wilson presents a unique case."

"First, parties in civil implied-consent proceedings do not have the right to court-appointed counsel. Thole, 831 N.W.2d at 22. Thus, Wilson’s indigency and lack of counsel do not present a unique case."

"Second... Because the proceedings for license revocation and DWI are separate such that issues decided in one proceeding are not precluded from being relitigated in the other, suppression of the evidence and dismissal of the DWI charges related to the November 24 stop do not indicate that revocation of Wilson’s license would have been rescinded, had she challenged it."

"Additionally, Wilson mistakenly relies on Anderson as support for her claim. There, we concluded that the district court did not have jurisdiction to hear an untimely petition for judicial review of a license revocation and the petitioner’s due-process rights were not violated because he had adequate notice of the revocation despite alleged mental incompetence. Anderson, 878 N.W.2d at 927-28. In dicta, we also noted that arguments about the use of prior revocation as an enhancement “should be raised at the time a person is charged with a crime,” not in an implied-consent proceeding. Id. at 930 (quotation omitted). Like in Anderson, Wilson did not timely challenge her license revocation, and, as discussed, allowing a collateral challenge is not warranted in her case."

Makes you wonder what would constitute a "unique" case.

Moral Of The Story:  Lack of haste makes waste. 

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

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

The Minnesota DWI Case Of The Week is State v. Taybom (Decided April 10, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the officer's failure to record in his report all of the reasons for the vehicle stop is irrelevant.   

On November 21, 2019 a police officer stopped the Defendant while she was driving her vehicle on Seventh Street in St. Paul, MN. Ms. Taybom was ultimately charged with gross-misdemeanor second-degree DWI for refusing to submit to a breath test in violation of Minn. Stat. § 169A.20, subd. 2(1) (2018), and gross-misdemeanor third-degree DWI for operating a motor vehicle under the influence of alcohol in violation of Minn. Stat. § 169A.20, subd. 1 (2018). 

At a contested omnibus hearing, Taybom moved to suppress all evidence related to the traffic stop. She argued that the officer lacked reasonable, articulable suspicion to support the stop based on any traffic infraction and specifically contended that the reason provided in the officer’s police report—passing another vehicle on the right—was not unlawful. The state opposed the motion, arguing that the officer had reasonable, articulable suspicion justifying the stop based on three separate traffic violations observed by the officer: failing to yield to oncoming traffic, crossing the centerline, and passing another vehicle on the right in an unsafe manner.

At the hearing, the officer testified that he observed the following driving conduct by Taybom prior to the stop. First, Taybom’s car failed to yield to his car at a stop sign, “causing [him] to have to hit [his] brakes to stop from hitting [Taybom’s] vehicle.” Second, he saw the wheels of Taybom’s car touch the centerline of the road as he followed the car westbound on 7th Street. Third, as he continued to follow Taybom’s car, he observed her car slow down as it approached another vehicle. That vehicle was stopped at a red light. When the light turned green, Taybom’s car veered onto the right shoulder (which was also a bus stop) and “quickly accelerated” to pass the other vehicle while driving through the intersection. After observing Taybom’s car pass the other vehicle, the officer initiated the traffic stop. During his testimony, the officer acknowledged that his police report indicated only that he stopped Taybom for passing on the right and that it “failed to document” the other two alleged violations—failing to yield and crossing the centerline. But the officer testified that he “did see those other violations.”

Following the hearing, the district court issued a written order denying Tayborn’s motion to suppress. The district court determined that the officer had reasonable, articulable suspicion to conduct the traffic stop based on at least two traffic violations: Tayborn’s failure to yield to oncoming traffic and the wheels of Taybom’s vehicle touching the road’s centerline. As a result, the district court concluded that it did not need to consider whether the third potential traffic violation argued by the state— passing a vehicle on the right through an intersection—also justified the stop. But the district court noted in the fact section that the officer conducted the traffic stop “based upon [Taybom] failing to properly yield to [the officer’s] car, crossing the centerline[,] and passing the stopped car on the right through the intersection.”

On appeal, Taybom argued that the district court erred by denying her motion to suppress because the record does not show that the officer had reasonable, articulable suspicion to conduct a traffic stop based on his observation of any traffic violation. Specifically, Taybom challenged the district court’s factual finding that the officer stopped Taybom’s car based on three separate traffic violations: failing to yield, crossing the centerline, and passing another car on the right in an intersection. Taybom argued that this factual finding is clearly erroneous because the officer’s police report identified only one reason for the stop—passing another car on the right. Taybom further claimed that the district court’s reliance on the officer’s testimony regarding the two other traffic violations was clearly erroneous because the officer did not testify that he was subjectively aware of these violations prior to the stop. Taybom also challenged the district court’s implicit determination that the officer testified credibly regarding his observation of Taybom’s driving conduct. Taybom therefore urged the appellate court to conclude that the district court erred by denying Taybom’s motion to suppress based on its determination that the officer had reasonable, articulable suspicion to stop Taybom for failing to yield and for veering onto the centerline of the road.

The Court of Appeals affirmed the lower court stating:

"The record supports the district court’s determination that the officer had reasonable, articulable suspicion to justify the traffic stop. First, video from the officer’s dashboard camera supports the district court’s findings that Taybom failed to yield to the officer, that the left-side tires of her car touched the road’s centerline, and that she passed another vehicle on the right at an intersection. In other words, the district court’s findings are supported by the evidence in the record. See Ezeka, 946 N.W.2d at 403. Second, the officer testified at the motion hearing that he “did see” all three potential violations. The district court implicitly credited that testimony, and we defer to the district court’s credibility determination. See Wilkes v. Comm ’r of Pub. Safety, 111 N.W.2d 239, 246 (Minn. App. 2010) (“[Credibility determinations are the province of the district court.”). Third, both of the noted actions relied on by the district court were traffic infractions. See Minn. Stat. §§ 169.20, subd. 3, .18, subds. 4(4), 7(1) (2018); Anderson, 683 N.W.2d at 823 (stating that an officer’s observation of any traffic violation can form the basis for a traffic stop). We therefore conclude that the record shows an objective basis for the stop."

"We are not persuaded otherwise by Taybom’s emphasis on the officer’s failure to document two of the potential traffic violations in his police report. “An officer’s failure to articulate observed violations of law as a basis for stopping a defendant is irrelevant under an objective standard.” State v. Beall, 111 N.W.2d 41, 45 (Minn. App. 2009); see also Taylor, 965 N.W.2d at 755 n.5 (explaining that “the existence of reasonable, articulable suspicion is an ‘objective test’ and is not based on the subjective beliefs of the officer”). In Beall, a police officer initiated a traffic stop on the basis that the vehicle had a “brake light out.” 771 N.W.2d at 42. The officer also observed littering from the vehicle but did not record littering as a reason for the stop. Id. The driver argued that there was no basis for the stop because his vehicle, which had three brake lights, was still equipped with two working lights and littering was not the reason for the stop. Id. The district court agreed and suppressed the evidence from the stop. Id. This court reversed, explaining that the reasonable-suspicion standard is objective and concluding that both the inoperable brake light and the littering justified the traffic stop because both were unlawful. Id. at 44-45. With respect to the littering in particular, we emphasized that the officer observed the littering prior to the traffic stop. Id. at 45. “Therefore, even if [the officer’s] subjective basis for the stop was the nonfunctioning center brake light, the stop was also [objectively] justified based on [the officer’s] observation of littering.” Id. Applying that reasoning here, we conclude that the stop of Taybom was objectively justified based on the officer’s stated observation of two traffic violations—failure to yield and veering onto the centerline—even though the officer failed to document those violations in the police report."

Moral Of The Story: Writing things down is vastly overrated.

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.