The Minnesota DWI Case Of The Week is State v. Addickes, (Minnesota Court of Appeals Unpublished Opinion issued October 15, 2013) which stands for the proposition that even though the DWI blood test sample was destroyed before it was inspected by the Defense, the BCA test result is still admissible unless the Defendant can prove the blood sample contained exculpatory evidence and was destroyed "in bad faith". Needless to say, the Defendant lost.
In Addickes, the Defendant was arrested on suspicion of DWI. While under arrest, he gave a blood sample that was tested by the Minnesota Bureau of Criminal Apprehension (BCA). The test found his blood sample to have an alcohol concentration of .17.
The Defendant's attorney served the prosecutor with a disclosure demand that included a request for all reports of “examinations, scientific tests, experiments or comparisons made in connection with the particular case.” The state responded on March 8, 2011, with a report on the BCA’s test of the blood sample. The report indicated that the sample would be destroyed on February 2, 2012, or 12 months after the test.
On March 4, 2011, the Defendant's case was mistakenly dismissed. When the error was discovered on January 9, 2012, the district court ordered that the previous dismissal be vacated. Defendant's attorney called the BCA on March 22, 2012, to request access to the sample and was informed it had been destroyed on or about March 2, 2012. Appellant then requested a contested omnibus hearing, claiming a due process violation as a result of the destruction of the blood sample and requesting suppression of the results of the blood test. After the hearing, the district court denied the Defendant's motion to suppress.
On Appeal, the Court noted that in State v. Hawkinson, 829 N.W.2d. 367 (Minn. 2013), the Minnesota Supreme Court stated that in determining whether a blood test result should be suppressed, the courts are to look at two factors:
(1) Was the destroyed evidence exculpatory (i.e. favorable) to the defense and;
(2) Was the evidence destroyed in bad faith.
In the present case, the Addickes Court held that since the blood sample was not favorable evidence to the defense (as it contained an alcohol concentration level of .17) and the sample was destroyed after notice to the defense and pursuant to its regular practice, there was no due process violation and the test result was properly admitted at trial.
MORAL OF THE STORY: If you want to examine the state's evidence, you better do it in a timely fashion. So don't put off till tomorrow what you can do today!
The Minnesota DWI Case Of The Week is Murtha v. Commissioner of Public Safety, (Minnesota Court of Appeals, Unpublished, decided July 15, 2013), which stands for the proposition that if your DWI Attorney is going to present a medical defense, he should have at least a passing knowledge of the Minnesota Rules of Evidence.
In Murtha, the Petitioner claimed that his DWI breath test result was not accurate or reliable because he suffers from GERD (gastroesophageal reflux disease) and at the time he took the breath test, he was experiencing symptoms of his acid reflux disease.
The Petitioner then had a forensic toxicologist testify about the potential effect of mouth alcohol caused by GERD on breath test results. The expert testified that mouth alcohol consists of alcohol that is regurgitated into the mouth from one's stomach. And if mouth alcohol is present as a result of the GERD condition, the breath test results would show a higher alcohol concentration than would be present absent the mouth alcohol. (So far, so good).
The Petitioner's attorney then sought to introduce his client's medical records to show that his client suffers from GERD. The district court, however, excluded the diagnosis on the grounds that the doctor's diagnosis, contained in the medical records, was hearsay.
On appeal, the Minnesota Court of Appeals upheld the district court noting that Rule 803 (4) (The Medical Records Exception to the Hearsay Rule) only allows, "Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment".
In other words, statements the patient makes to the doctor are admissible under the rule because the theory is that someone seeking medical help will tell the truth to get accurate and helpful treatment for the medical condition. But the diagnosis of the doctor is not covered by the hearsay exception. The establish the diagnosis, you have to bring in the doctor!! Since the Petitioner in this case failed to have the doctor testify, the district court did not err in excluding the diagnosis contained in the medical records as hearsay.
Moral of the Story: You should always learn the rules before you try to play the game!!
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
The DWI Case Of The Week Is Missouri v. McNeely, 569 U.S. _ (Decided April 17, 2013) a United States Supreme Court case which stands for the proposition that the dissipation of alcohol in the body does not create a per se exception to the warrant requirement.
In McNeely, the Defendant was arrested for DWI and was taken to the hospital for blood testing. Upon arrival at the hospital, the officer asked Mr. McNeely if he would consent to a blood test. When Mr. McNeely refused to submit to testing, the officer directed a lab technician to take the blood sample. The officer did not attempt to first obtain a search warrant to authorize the bodily search.
The Missouri Supreme Court held that the failure to attempt to seek a warrant was fatal to the State's case stating that, "the courts must engage in a totality of the circumstances analysis when determining whether exigency permits a nonconsensual, warrantless blood draw".
The State of Missouri then appealed to the United States Supreme Court arguing that alcohol in the blood begins to dissipate as soon as its consumption is stopped and that any delay in obtaining a blood sample will sacrifice the accuracy of the test result. The State of Missouri wanted the U.S. Supreme Court to adopt a per se rule that the dissipation of alcohol creates an exigency that dispenses with the need to obtain a search warrant.
The United States Supreme Court in McNeely, however, declined to adopt the per se rule requested by the State and held instead that the lower courts must utilize the "totality of the circumstances test" to determine if a warrant was properly not obtained. The Supreme Court pointed out that in this day of telephonic warrants, the delay necessitated by contacting a magistrate to obtain said warrant is minimal and is not such a burdensome requirement that it may be dispensed with in all cases.
The Supreme Court's ruling in McNeely has huge implications for Minnesota. In the State of Minnesota, when a person is arrested for DWI, his or her consent to submit to testing is coerced. That is, when suspects are arrested for DWI, they are told that if they refuse to submit to testing, they will be charged with a crime. One's consent to search is not "voluntary" if it is being obtained by threat of prosecution. Since the consent to testing is not voluntary, the State must now show in each case that it could not obtain a search warrant before seeking to obtain the test! How are the police going to be able to show they could not obtain a warrant when up until April 17, 2013 they were not even trying to get said warrant?
Conclusion: It's a whole new ball game in DWI defense!
The Minnesota DWI Case of the Week is State v. Pexa(Minnesota Court of Appeals, Unpublished, decided February 24, 2013) which stands for the proposition that in order to convict someone of having an alcohol concentration of .08 or more, the State must prove either that: the test sample was obtained within 2 hours of driving or have expert testimony concerning retrograde extrapolation of a person's blood-alcohol concentration. Since the State in Pexa failed to do either one of the above, the Court of Appeals reversed the conviction.
In Pexa, the Defendant was driving his car when he hit an ATV and severely injured the ATV driver. The accident occurred shortly before 10 p.m. When the police arrived at the scene, the officer noticed the Defendant exhibited indicia of alcohol consumption. The officer gave the Defendant field sobriety tests and placed him under arrest for DWI. The Defendant was subsequently taken to a hospital where he submitted to a blood test. The blood sample was not collected until 12:05 a.m. and revealed an alcohol concentration level of 0.09.
The Defendant was charged, with two counts of Criminal Vehicular Operation (i.e. Causing injury while operating a vehicle with an alcohol concentration of 0.08 or more, and; Causing injury while operating a vehicle with an alcohol concentration of 0.08 or more within two hours of driving).
On the first day of trial, the District Court found that the State violated the rules of discovery by failing to disclose that its expert would be testifying about retrograde extrapolation of a person's blood-alcohol concentration. The court concluded that because of the discovery violation, the state's expert could not testify on that topic.
The Defendant was subsequently convicted of the criminal vehicular operation statute that required the State to prove he caused "injury to another as a result of operating a motor vehicle while having an alcohol concentration of 0.08 or more".
On appeal, the Defendant argued that because his alcohol concentration was shown to be 0.09 more than two hours after he struck the victim and because the state did not introduce any retrograde-extrapolation evidence, the jury could not infer that appellant's alcohol concentration was at least 0.08 at the time of the accident. The Minnesota Court of Appeals agreed with the Defendant and reversed the conviction.
The Court of Appeals explained:
"The state argues that the evidence was sufficient to sustain his conviction because a jury could reasonably infer from the evidence presented that appellant had an alcohol concentration of at least 0.08 at or within two hours of driving. But disputes about alcohol consumption are different from alcohol concentration. Assuming sufficient foundation, a lay witness could testify that a person seems 'drunk' based on any commonly observed indicia of drinking. Thus, factual disputes about alcohol consumption could be resolved by a jury hearing such a lay witness. But specific numerical alcohol concentration is a scientific matter. In order to determine alcohol concentration, specific levels of alcohol concentration are introduced through experts who have specific knowledge of anatomy, chemistry, physiology, and timing. For example, what may not be commonly known is that an individuals's alcohol concentration may actually rise for a short time after the individual has stopped drinking. See, State v. Favre ('Because it takes time for alcohol to reach the blood stream, blood alcohol concentration typically peaks some time after drinking.'). And there are countless variables and scenarios apart from the amount of alcohol consumed that affect a person's alcohol concentration at any given time. Therefore, it would be impossible for a lay jury to infer a precise level of alcohol concentration at a specific point in time-here the exact time of the accident-without the aid of qualified expert testimony."
Since the State's expert was precluded from testifying because the State failed to abide by the Minnesota Rules of Criminal Procedure and because the blood sample was not obtained within two hours of the accident, the Minnesota Court of Appeals correctly reversed the conviction.
Moral of the Story: When The State Does Not Play By The Rules, It Deserves To Lose!!
The Minnesota DWI Case of the Week is the Minnesota Supreme Court Case of Patino v. One 2007 Chevrolet, (decided October 2, 2012) which stands for the proposition that in order to forfeit a vehicle pursuant to the Minnesota DWI forfeiture statute, the owner of the vehicle must first be convicted of the designated DWI criminal offense.
In Patino, the Defendant was charged with Second Degree DWI which gave rise to the forfeiture of his vehicle. The Defendant was charged with Second Degree DWI because he had one prior DWI within ten years of the current offense and he also had a child in the vehicle at the time of the current offense. The Defendant was allowed to plead guilty to Third Degree DWI (child endangerment) and then he sought the judicial return of his vehicle.
It was the Defendant's position that since he had not been convicted of a designated forfeiture offense (i.e. Second Degree DWI) he was entitled to the vehicle's return. The State, however, argued that although a conviction of a designated offense creates a presumption of judicial forfeiture, such a conviction is not required under the statute. Instead, the State claimed that section 169A.63, subdivision 9(f), prohibits forfeiture only if the driver is not convicted of any charge.
The Minnesota Supreme Court (fortunately) rejected the State's position and affirmed the Minnesota Court of Appeals ruling which had ordered the return of the vehicle. The Minnesota Supreme Court in its ruling noted:
"It is undisputed that respondent made a timely demand for a judicial determination under subdivision 8(f). Thus, the administrative proceeding under subdivision 8 was converted into a judicial proceeding under subdivision 9, and subdivision 9 governs the judicial forfeiture proceeding.
Subdivision 9(f) provides that when forfeiture is based on the commission of a designated offense and the person charged with the designated offense appears in court as required and is not convicted of the offense, the court shall order the property returned to the person legally entitled to it upon that person’s compliance with the redemption requirements of section 169A.42. Minn. Stat. § 169A.63, subd. 9(f). Under subdivision 9(f), when a person charged with a designated offense appears in court and is not convicted of the designated offense, “the court shall order the property returned to the person legally entitled to it” provided that the redemption requirements of section 169A.42 are satisfied. The word “shall” has been interpreted as mandatory."
* * *
"It is certainly true that the burden of proof imposed upon the State for vehicle forfeiture is higher for a judicial forfeiture than for an administrative forfeiture. But it is within the province of the Legislature to provide for different standards for vehicle forfeiture in administrative and judicial proceedings. An administrative forfeiture under subdivision 8 requires only a showing that the vehicle was “used to commit a designated offense or used in conduct resulting in a designated license revocation . . . .” In contrast, judicial forfeiture under subdivision 9(f) provides that when the person charged with the designated offense “appears in court as required and is not convicted of the offense, the court shall order the property returned”.
The Minnesota Supreme Court in Patino therefore held that since the defendant had not been convicted of the designated forfeiture offense, he was entitled to the return of the vehicle.
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
The Minnesota DWI Case of the week is the Minnesota Court of Appeals decision of State v. Hammann, (Unpublished, decided August 1, 2012) which stands for the proposition that it's not a refusal to submit to alcohol testing if you don't ask the right question.
In Hammann, the Defendant was arrested for DWI and was taken to the Minnetonka Police Department. He was read the Minnesota Implied Consent Advisory and was asked to submit to a urine test. The Defendant asked the officers what types of tests the department offered, and an officer responded, "We're gonna offer you urine or blood...If you won't do urine we're gonna ask you for blood and that's it." Mr. Hammann then repeatedly asked the officers about various aspects of the implied-consent process and unsuccessfully tried multiple time to call his brother and his attorney.
Approximately 48 minutes after the process began, an officer asked Mr. Hammann multiple times within the course of one minute whether he would take a urine test, and Hammann never directly responded. The officer then stated, "Jerald I will consider you to have refused the test at this point". The Defendant immediately responded, "I am totally willing to take whatever test is appropriate. " But the officer deemed the Defendant to have refused the test.
The Defendant was convicted of 3rd Degree Refusal to Submit to Testing but on appeal, the Minnesota Court of Appeals reversed the conviction noting:
“Any person who drives . . . a motor vehicle within this state . . . consents . . . to a chemical test of that person’s blood, breath, or urine for the purpose of determining the presence of alcohol,” and “[i]t is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine.” Minn. Stat. §§ 169A.20, subd. 2, 169A.51, subd. 1(a) (2010)."
"The peace officer who requires a test pursuant to this section may direct whether the test is of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.
The plain language of the statute only allows action to be taken against a person if that person refuses to take a blood or urine test and an “alternative test was offered.” Minn. Stat. § 169A.51, subd. 3. Here, an officer at the beginning of the implied-consent process told appellant: “If you won’t do urine we’re gonna ask you blood and that’s it.” But that statement is not an offer for alternative testing. In the cases where this court has considered a person to have refused chemical testing, the facts suggest that an officer gave the person the option of choosing a blood or urine test. See State v. Ferrier, 792 N.W.2d 98, 100 (Minn. App. 2010) (“[Officer] then asked appellant if she would take a blood or urine test, and appellant chose to take a urine test.”), review denied (Mar. 15, 2011); Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 257 (Minn. App. 2000) (“[Officer] then asked Busch if he would take a blood, urine, or breath test, but Busch refused to reply.”).
The Minnesota Court of Appeals in Hammann then held that because the Defendant was not offered an alternative test as required by statute, his test refusal conviction must be reversed. Moral of the Story: If they don't ask, it's not a crime to not tell.
The Minnesota DWI Case of The Week is Patino v. One 2007 Chevrolet, (decided October 31, 2011) a published decision of the Minnesota Court of Appeals which stands for the proposition that in order for a DWI vehicle forfeiture to be valid, the Defendant must be convicted of the underlying offense which gave rise to the forfeiture in the first place. This case is significant as it finally overrules Mastakoski v. 2003 Dodge Durango, 738 N.W.2d 411 (Minn. App. 2007).
In Patino, the Defendant was charged with Second Degree DWI which gave rise to the forfeiture of his vehicle. The Defendant was charged with Second Degree DWI because he had one prior DWI within ten years of the current offense and he also had a child in the vehicle at the time of the current offense. The Defendant was allowed to plead guilty to Third Degree DWI (child endangerment) and then he sought the judicial return of his vehicle.
It was the Defendant's position that since he had not been convicted of a designated forfeiture offense (i.e. Second Degree DWI) he was entitled to the vehicle's return. The State on the other hand relied on Mastakoski v. 2003 Dodge Durango, which had held that the driver need not be convicted of a designated forfeiture offense as long as the driving conduct constituted the commission of a designated offense.
In rejecting the state's position and overruling Mastakoski, the Patino court held, "Forfeiture is a civil in rem cause of action; because it is punitive in nature, the reviewing court strictly construes the language of a forfeiture statute and resolves any doubts in favor of the party challenging the forfeiture...."
In Mastakoski the Court "...did not address the language of Minn. Stat. § 169A.63, subd. 9(f), which unequivocally states that if 'the forfeiture is based on the commission of a designated offense and the person charged with the designated offense appears in court as required and is not convicted of the offense, the court shall order the property returned to the person legally entitled to it."
The court in Patino therefore held that since the defendant had not been convicted of the designated forfeiture offense, he was entitled to the return of the vehicle.
Moral of the Story: Give Them Long Enough And They Will Get It Right!
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
The Minnesota DWI Case of the Week is the unpublished Court of Appeals decision of State v. Butcher, (decided August 17, 2011) which stands for the proposition that if you have eleven prior DWI convictions it might be a good idea to never come near the wheel of an automobile!
In Butcher, a Park Rapids police officer was on routine patrol shortly before midnight when he noticed a vehicle parked in a commercial area with its lights on. As he approached the vehicle, the officer noticed Mr. Butcher get into the driver's seat of the car. The officer saw the vehicle's lights turn off but was unable to recall whether the vehicle's engine was running. The officer observed the keys in the ignition and that there was a female passenger in the front seat.
Mr. Butcher was drunk and was subsequently convicted of Felony DWI and was sentenced to prison for 79 months. On appeal, Butcher argued that he could not be convicted of DWI because the state did not introduce sufficient evidence to establish that he drove, operated or was in physical control of a motor vehicle under Minn. Stat. § 169A.20, subd. 1 (1), (5). Butcher claimed on appeal that the circumstantial evidence equally supported the conclusion that the female passenger had been driving the vehicle before it came to a stop along the road where the officer noticed it.
The Minnesota Court of Appeals had little problem dismissing Butcher's claim noting, "In this case the undisputed direct evidence shows that Butcher was in physical control of the vehicle as he sat behind the wheel of the vehicle with the key in the ignition, and this evidence is sufficient to sustain his DWI convictions. See, State v. Fleck, 777 N.W.2d 233, 235 (Minn. 2010) (holding that evidence of a person sleeping behind the wheel of his vehicle with the keys in the center console of the vehicle demonstrates physical control of the vehicle sufficient to sustain a conviction of DWI).
"The term 'physical control' in Minnesota's DWI laws is meant to cover situations when an intoxicated person 'is found in a parked vehicle under circumstances where the vehicle, 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). Plainly, Butcher's position behind the wheel of the vehicle along with the fact that the key was in the ignition satisfied the definition of physical control. There is no merit to Butcher's argument that the evidence was insufficient to prove that he was in physical control of a motor vehicle for purposes of Minn. Stat. § 169A.20, subd. 1 (1), (5).
Moral Of The Story: Never ever get in a vehicle while drunk unless you are a passenger.
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
The Minnesota DWI case of the week is the unpublished decision of State v. Grinsteinner, (Minnesota Court of Appeals decided November 23, 2010) which stands for the proposition that it is possible to get probation for a felony DWI if you really, really work for it.
On October 21, 2009, Mr. Grinsteinner entered a straight plea to the district court on a felony DWI and he hit the jackpot!
A "straight plea to the court" is done when the prosecutor wants more jail time than the client is willing to serve. So rather than agree to the prosecutor's recommendation, a "straight plea to the court" is entered in the hope that the district court judge will be more merciful than the county attorney.
In this case, Mr. Grinsteinner made a straight plea on his Third Felony DWI. While it is unclear from the opinion, that fact that he pled to his 3rd felony indicates that Mr. Grinsteinner has at least six DWI's in his checkered career. The presumptive sentencing guideline called for Mr. Grinsteinner to served 66 months in prison. The district court sentenced Mr. Grinsteinner to probation instead and the County Attorney appealed, arguing that the district court did not have a basis to depart from the 66-month guideline sentence.
Minnesota Court of Appeals affirmed the district court's probationary sentence and this case is significant as it demonstrates what a defendant can do to avoid a lengthy prison sentence in a felony DWI. The Minnesota Court of Appeals pointed out that Mr. Grinsteinner had: (First and foremost),undergone an extensive treatment program; submitted a letter from his sponsor at Alcoholics Anonymous detailing his attendance; submitted a letter from his employer as to his sobriety; submitted a letter from the Inmate worker crew supervisor at the Dakota County Jail; submitted letters from friends and family members detailing their support of the defendant's efforts to maintain sobriety. Mr. Grinsteinner also expressed remorse for his latest offense and had been sober for three years prior to his arrest.
The Minnesota Appellate Court noted that, "The district court has broad discretion to depart from the presumptive sentence provided by the sentencing guidelines." The Appellate Court also stated, "The district court should consider a number of factors when determining whether a defendant is amenable to probation, including the individual's age, prior record, remorse, cooperation, attitude while in court, and the support of friends and family. Here the record reflects that the respondent expressed remorse for his actions, that he had participated in and completed treatment programs while he was in jail for this offense, and that he has a strong support network of friends and family. Furthermore, respondent was sober for three years before he committed this offense, and the record reflects that respondent has the motivation to remain active in recovery and abstain from alcohol use."
The Court of Appeals, therefore, held that the District Court did not abuse its discretion when it gave Mr. Grinsteinner a probationary sentence.
Moral of the Story: It's Never Too Late To Turn Over A New Leaf!
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
The Minnesota Case of the week is the Minnesota Court of Appeals decision of State v. Wicklund (Opinion Issued January 26, 2010). I was the attorney for the Defendant in this case and the decision stands for the proposition that the police "policy" of collecting a blood or urine sample from a driver, whenever an accident involving serious injury or death occurs, violates the Fourth Amendment to the United States Constitution.
Brent Wicklund caused a fatal multi-vehicle accident after the brakes on his box truck failed and he attempted to stop by driving into a raised concrete median that separated the opposing lanes of a multi-lane highway. Mr. Wicklund's truck did not stop; it jumped the median, entered oncoming traffic, and struck and fatally injured a motorcyclist.
The police arrived and based upon the nature of the accident and nothing more, compelled Mr. Wicklund to provide a urine sample for drug testing. The police did not observe Mr. Wicklund exhibit any indication of drug or alcohol consumption. But it was the policy of the Plymouth Police Department to test a driver whenever there is the possibility of criminal vehicular homicide.
The urine test result revealed the presence of amphetamine and methamphetamine and as a result, Mr. Wicklund was charged with Criminal Vehicular Homicide.
I moved, in the district court, to suppress the results of the urine test arguing that the police lacked probable cause to obtain a urine sample from Mr. Wicklund. The district court held that the results were admissible because the police had probable cause to believe that the crime of criminal vehicular operation had occurred and that obtaining a blood or urine sample would aid in the prosecution of the crime.
I subsequently appealed the district court's decision and Minnesota Court of Appeals agreed with my contention that there was nothing specific to Mr. Wicklund that would justify a search of his bodily fluids.
In its opinion, the Court of Appeals noted, "The State can justify the warrantless testing of a driver's body fluids if the officer who took the sample had probable cause to believe both (1) that the driver committed the crime of criminal vehicular operation and (2) that the administration of the test would aid in the prosecution of that crime. State v. Lee, 585 N.W.2d 378, 381 (Minn. 1998) citing State v. Speak, 339 N.W.2d 741, 745 (Minn. 1983). We interpret the second prong narrowly and hold that the state's showing is insufficient."
The Court went on the explain that, "Looking only to this language apart from the restraint of other search-and-seizure caselaw, police might mistakenly conclude that they may test any driver involved in a bodily-injury traffic accident, because one might reason that in every case testing would be 'relevant' and 'aid in the prosecution' by either ruling out guilt or ruling in guilt. Because we do not interpret the Speak-Lee standard as overturning or eroding the traditional probable-cause standard for police searches, however, we must also apply the traditional standard here."
"Probable cause to search exists when, given the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. * * * The facts and circumstances known to the police to justify a warrantless extraction of body fluids, therefore, must support a reasonable belief that testing will disclose some amount of alcohol or drugs in the defendant's body. That amount need not be a level of intoxication, but the circumstances must be sufficient to indicate the likelihood of a positive test result."
In the present case, "Officer Anderson was aware of no circumstances indicating even non-intoxicating levels of chemical consumption. He noticed no alcoholic odor or signs of physical impairment, and he was aware of no facts suggesting that Wicklund had recent access to drugs or alcohol. The preliminary breath test indicated no alcohol use. This does not end the inquiry, because in Speak and Lee the supreme court declined to hold that police must observe customary physical indicia of intoxication before testing a driver's body fluids. They indicate that evidence of extreme misjudgment alone might provide the probable-cause basis for testing a driver for drug or alcohol use."
"All Officer Anderson knew when he required Wicklund to provide a urine sample was that Wicklund had been having trouble with his brakes, which ultimately failed, leading Wicklund to make a split-second decision either to ram the vehicle stopped ahead in his lane or to attempt to slow his truck and avoid a collision by some other means. Wicklund decided to try to slow the truck using friction against the median. Although in hindsight we clearly see that this decision was flawed because it averted one crash only to cause another, it is not the kind of extremely irrational choice that demonstrates that alcohol or a controlled substance affected Wicklund's judgment or driving ability. Had Wicklund failed to recognize the stopped car, or to apply his brakes, or to take evasive action to avoid a collision with the car in front of him, he might have demonstrated the kind of inattentiveness or gross misjudgment that supports involuntary testing without the observable indicia of intoxication. At worst, his late response to traffic conditions created a dilemma leading to his deadly split-second decision." * * *
"Although the state learned in retrospect that Wicklund in fact had consumed a controlled substance, we must consider only the circumstances know to Officer Anderson. On those circumstances, the district court was bound to exclude Wicklund's urine test results because the test was unconstitutional. The district court erred by denying Wicklund's motion to suppress the test results."
The Court of Appeals then reversed the conviction as all the relevant evidence has now been excluded.
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
The Minnesota Case of the week is the Minnesota Supreme Court case of State v. Fleck, _N.W.2d _ (Minn. 1/21/2010).
Mr. Fleck is an alcoholic who managed to rack up 4 DWI's within 10 years making him eligible for felony prosecution. What is interesting about his current case is that while he made no attempt to stop drinking, he still managed to get convicted even though there wasn't any proof that he was ever driving or operating the motor vehicle. You would think that a man with his experience with the legal system would know about the "physical control" portion of the DWI statute, but perhaps he is just a slow learner.
The facts, as noted by the Court, are: "At 11:30 p.m. on June 11, 2007, police officers responded to a call from a concerned citizen who saw a man unconscious in her apartment complex parking lot in the driver's seat of a vehicle with its door open. The officers found Fleck asleep behind the wheel of his vehicle, which was legally parked in an assigned space at the apartment building where he lived. After being awakened by the officers, Fleck admitted to drinking 10 to 12 beers, but denied that he had been driving the vehicle. When asked why he was in the vehicle, Fleck initially told the officers that he had come to retrieve an item from the vehicle but later told the officers that he had come outside to sit in the vehicle. The officers concluded that Fleck had not recently driven the vehicle because the vehicle was 'cold to the touch', the lights were not on, and it did not appear that the vehicle had been running. However...the officers did observe a set of ignition keys in the vehicle console between the driver and passenger seats. The officers also concluded that Fleck was intoxicated based on observing Fleck's bloodshot and watery eyes, slurred speech, poor balance, disheveled look, and the smell of alcohol emanating from him. Subsequent testing showed that Fleck had a blood alcohol concentration of .18" (Opinion p.1-2).
"Minnesota law provides that it is unlawful for 'any person to drive, operate or be in physical control of a motor vehicle' while under the influence of alcohol or with an alcohol concentration of .08 or more. Minn. Stat.§ 169A.20, subd. 1(1), (5). The term 'physical control' is more comprehensive than either the term to 'drive' or to 'operate'."
In Fleck, the Court noted that, "physical control is meant to cover situations when an intoxicated person, is found in a parked vehicle under circumstances in which the vehicle, 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). Thus a person is in physical control of a vehicle if he has the means to initiate any movement of that vehicle, and he is in close proximity to the operating controls of the vehicle. Id."
The Fleck opinion goes on to state, "the purposes underlying the offense of being in physical control of a motor vehicle while under the influence is to deter intoxicated persons from getting into vehicles except as passengers and to act as a preventive measure to 'enable the drunken driver to be apprehended before he strikes' (citation omitted). The offense, however, is not intended to cover situations in which an intoxicated person is a passenger, having relinquished control of the vehicle to a designated driver." (emphasis added).
The Court notes that "mere presence in or about the vehicle is insufficient to show physical control; it is the overall situation that is determinative." The factors to be considered in determining whether a person is in physical control of a motor vehicle include: "the person's location in proximity to the vehicle; the location of the keys; whether the person was a passenger in the vehicle (which from the court's language above would give you a free pass), who owned the vehicle and the vehicle's operability." (Opinion p.5)
The Fleck Court then states that the "intent to operate" is not an element of the physical control DWI statute. (Opinion p.6) This statement appears to be inconsistent with the court's exemption of passengers from prosecution. A passenger is ensconced in the vehicle and is presumably in close proximity to the controls, the keys etc. But since a passenger, by definition, has no intent to drive the vehicle, they are exempt from prosecution even though "intent to drive or operate" is not an element of physical control.
I do not disagree that passengers should be exempt from prosecution. After all, drunks have to get home somehow. And if you have the foresight to take a cab or obtain a designated driver then you should not be subject to prosecution, if say, your driver stops at the local Quik Trip and leaves you in the front seat of the vehicle with the motor running while he peruses the late night delicacies available at all 24 hour markets! Why? Because you as a passenger had absolutely no intent to drive or operate the motor vehicle.
So if the "lack of intent" serves to protect the passenger, why isn't that defense available to those whose status within the vehicle is less clear. Say perhaps Mr. Fleck, who only went to the vehicle to retrieve an item or to simply enjoy the pleasure of the vehicle's rich corinthian leather. If the jury does not buy the defendant's story; that's fine. But the intent of the party should be a factor in the Supreme Court's analysis of the totality of the circumstances creating "physical control".
MORAL OF THE STORY: If you are drunk, never get in a motor vehicle unless you are a passenger with proof of a designated driver.
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
The Minnesota Case of the week is State v. Bacigalupo, an unpublished decision from the Minnesota Court of Appeals (issued January 19, 2010). In Bacigalupo, the Minnesota Court of Appeals held that an individual may be convicted and sentenced for both a Felony DWI and the offense of Driving After Cancellation.
Minnesota Statute § 609.035 provides that an individual can be convicted of only one offense arising out of the same transaction or occurrence. So for example, if you are stopped for speeding, running a stop sign or some other traffic offense and are subsequently arrested for DWI as the result of the traffic stop, you can only be convicted of one offense arising out of your driving conduct.
There is, however, an exception for a "license status" offense. So if your license is suspended, revoked or cancelled, at the time you commit the DWI, you can be convicted and sentenced for both the DWI and the "license status" crime. The theory is the license status crime is an ongoing offense and is not dependent upon, or otherwise related to, the decision to commit a DWI.
The Minnesota DWI Case of the Week is: Laase v. One 2007 Chevrolet Tahoe. In Laase, the Minnesota Supreme Court upended existing case law and held that the "innocent owner defense" of the DWI vehicle forfeiture statute does not apply in the case of a jointly held vehicle where one of the joint owners is also the defendant offender causing the forfeiture of the vehicle.
David and Jean Laase were a fine married couple who belonged to their local country club. David, after playing golf, headed home leaving his wife behind at the club with one of their jointly owned vehicles. Jean Laase remained at the club to play in a golf league event.
Mr. Laase did not observe his wife consume any alcohol and had no knowledge of her activities after he left the club. At approximately 1:00 a.m., David Laase received a call from his wife stating that she had been arrested for a DWI. The current offense and the driving record of Jean Laase qualified the jointly held vehicle for forfeiture under the Minnesota DWI forfeiture statute.
David Laase challenged the County's seizure of the vehicle by making a Demand for Judicial Determination pursuant to Minn.Stat. § 169A.63. After a hearing, the District Court decided that the vehicle was not subject to forfeiture because Mr. Laase had demonstrated that he was an "innocent owner" under Minn.Stat. § 169A. 63, subd. 7(d).
The County appealed the decision but the Court of Appeals affirmed the District Court. So far, so good for Mr. Laase!!
The County then Petitioned for Further Review to the Minnesota Supreme Court and alas, in a decision dated 12/17/09, the Minnesota Supreme Court reversed.
In its opinion, the Minnesota Supreme Court noted:
"The question presented in this case is whether the innocent ownerdefense provided for in Minnesota‘s vehicle forfeiture statute, Minn. Stat. § 169A.63, subd. 7(d), applies to prevent forfeiture of the Laases‘ vehicle. Under this defense:
A motor vehicle is not subject to forfeiture under this section if its owner can demonstrate by clear and convincing evidence that the owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the owner took reasonable steps to prevent the use of the vehicle by the offender.Minn. Stat. § 169A.63, subd. 7(d).
Each party argues that the plain language of subdivision 7(d) supports its position. The County argues that the innocent owner defense does not apply because both owners were not innocent. Mr. Laase argues that, because he is an owner and innocent, the defense is available."
The Minnesota Supreme Court went on to note:
"The parties appear to agree that the innocent owner defense in the vehicle forfeiture statute, Minn. Stat. § 169A.63, subd. 7(d), is unambiguous. The parties disagree, however, over whether all owners of the vehicle must be innocent in order for the defense to apply. The statute is written in the singular, providing that the defense is available if the vehicle‘s owner demonstrates innocence. But the County contends that we should rely on the canon in which the legislature has stated that the singular includes the plural. Minn. Stat. § 645.08(2) (2008). With ownerconstrued as ‘owners” in subdivision 7(d), the County argues it is clear that the defense does not apply to this case because both “owners” were not innocent."
In a 4 to 3 decision, the Minnesota Supreme Court bought the county's argument and held that "owner" means "owners" and since both "owners" are not "innocent" the innocent-owner defense does not apply to a jointly held vehicle where one of the owners is the defendant/offender.
Great. So in other words, a perfectly innocent individual must now suffer an economic loss; the innocent must lose their equity in the property if they hold it jointly with someone who happens to commit a crime. I respectfully submit that the Supreme Court's decision is just not fair.
I always thought that the sins of the father shall not be visited upon the son. But I guess that does not apply to a husband and wife.
Moral of the Story: Don't drink and drive or own property with anyone who does!!
Minnesota has an Ignition Interlock Program for people who have received a DWI offense. The ignition interlock is a device that is installed in a vehicle and is designed to measure an individual's alcohol concentration level. If the individual has been drinking, the device will not allow the vehicle to start. Individuals with multiple DWI offenses should join the interlock program as it allows most offenders (i.e. up to 6 prior offenses) to get at least a work permit within only 30 days of the offense!
The costs of the program are estimated by the Department of Public Safety to be as follows:
Estimated costs of getting your license reinstated (required whether or not you participate in the Ignition Interlock Program)
Driver’s license reinstatement fee: $680.00 Driver’s license exam fee: $24 – Cost may depend on type of license Special registration plates: $ 50.00 (Not always required)
Estimated costs of participating in the II Program (varies by vendor)
Below is the eligibility table, published by the Minnesota Office of Traffic Safety, for individuals with multiple DWI offenses on their record. As you can see, most people will qualify for a driver's license as long as they are willing to abide by the terms and conditions of the interlock program.
The Minnesota Supreme Court said today that if the water in your bong tests positive for a controlled substance, you can be prosecuted for possession of said bong juice. Since the bong water weighed 37.17 grams, the Defendant's conviction for First Degree Possession was affirmed. Yikes! I guess that will teach the Defendant to do the dishes!!!
The Minnesota DWI Case of the Week is: State v. James Peters, (Unpublished Minn.App. 9/1/2009). The case is interesting because it stands for the proposition that if you are going to get arrested for DWI you may as well lie to the cops because you can't get in any more trouble!
In Peters, the Defendant was stopped for erratic driving and when the officer approached Defendant's vehicle, Mr. Peters told the deputy, "Don't worry about this, the Department of Justice will be here shortly and this will all be taken care of." [so whenever ever you get pulled over, be sure to contact the Attorney General for the United States, Eric Holder!!!]
The deputy asked for identification and the Defendant replied that he didn't have any but he orally identified himself as "Daniel John Peters, born May 19, 1979" . (i.e. his brother). After failing field sobriety tests, the Defendant was placed under arrest for DWI. A subsequent search of his vehicle revealed the presence of the Defendant's Wisconsin license establishing his true identity as "James Christian Peters."
The Defendant had one outstanding warrant at the time of his arrest.
The Defendant was subsequently convicted of DWI and providing False Information to a Police Officer. On appeal, the Minnesota Court of Appeals threw out the False Information conviction, reasoning:
"Minnesota law 'allows multiple convictions for different incidents (counts) arising out of a single behavioral incident, but prohibits multiple sentences for conduct that is part of a single behavioral incident.' (citations omitted). When a single behavioral incident results in the violation of multiple criminal statutes, the offender may be punished only for the most severe offense. (citations omitted). This rule avoids exaggerating the criminality of the defendant's conduct and makes both punishment and prosecution commensurate with culpability."
"The determination of whether multiple offense are part of a single behavioral act ... involves an examination of all the facts and circumstances. (citation omitted). In making this determination, a court 'must consider whether the offense (1) arose from a continuous and uninterrupted course of conduct, (2) occurred at substantially the same time and place, and (3) manifested an indivisible state of mind, or were motivated by a single criminal objective'." (citation omitted).
The defendant argues that he gave the false information to law enforcement to avoid apprehension for DWI and that the state has not met its burden to prove otherwise. The State argues that the defendant gave false information not to avoid apprehension for DWI, but to avoid being arrested on an outstanding warrant.
The Court of Appeals noted that while there is "ample and contradictory case law addressing the problem of ascertaining a defendant's motivation," the Minnesota Supreme Court case of State v. Gibson, 478 N.W.2d 496, (Minn. 1991) appears to settle the issue.
In Gibson, the defendant was convicted of criminal vehicular operation resulting in injury and leaving the scene of an accident. The Supreme Court vacated the lesser of the two sentences, concluding that the defendant, "committed the felonious act of leaving the scene of an accident in part to avoid being apprehended for any crime committed in connection with the accident". Id at 497.
The Court of Appeals in Peters then held that while, "this is a close case" ... "we conclude that [defendant's] offenses constituted a single behavioral incident". Defendant's "provision of a false name and date of birth to avoid being arrested for DWI may have been misguided and futile, but the state has not met its burden to show that his desire did not serve, in part, as motivation for" defendant.
The Court of Appeals, therefore, vacated the conviction for False Information to a Police Officer.
Moral of the Story: IF YOU ARE IN FOR A PENNY, YOU MAY AS WELLBE IN FOR A POUND!
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
The Minnesota DWI Case of the Week is State v. Beall, _ N.W.2d. _ (Minn.App. 8/23/09). Beall is a pretrial appeal by the State where it challenged the District Court's ruling that the stop of the defendant's vehicle for an inoperable center brake light did not constitute a reasonable articulable suspicion of a violation of the law.
The defendant argued at the suppression hearing that the stop of his vehicle was not valid because his vehicle was equipped with two working stop lights as required by Minn. Stat. § 169.57, subd. 1(a)(2006). The District Court agreed with the defendant concluding that, "because Beall's vehicle had two working brake lights as required by Minn. Stat. § 169.57, subd. 1 (a), the inoperable third brake light did not give [the officer] a reasonable articulable basis to stop the vehicle". Id. at _.
On Appeal the Appellate Court observed, "Generally, if an officer observes a violation of a traffic law, no matter insignificant the traffic law, that observation forms the requisite particularized and objective basis for conducting a traffic stop". Id. The Court of Appeals then noted, "While we agree with the district court that such a vehicle would not be operated in violation of Minn. Stat. § 169.57, subd. 1(a), the district court failed to consider that Minn. Stat. § 169.57, subd. 3(a) requires that '[w]hen a vehicle is equipped with stop lamps or signal lamps, such lamps shall at all times be maintained in good working condition. Minn. Stat. § 169.47, subd. 1 (2006), provides, in relevant part, that '[i]t is unlawful ... for any person to ... fail to perform any act required under this chapter.' A vehicle with an inoperable center brake light is operated unlawfully in violation of Minn. Stat. § 169.57, subd. 3(a). Observation of such a violation gives rise to objective, reasonable, articulable suspicion justify a traffic stop. " Id. (Emphasis the court's).
The Minnesota Court of Appeals rejected, "...as without merit Beall's assertion that 'such lamps' as used in section 169.57, subd. 3(a), refers only to two statutorily required lamps: the provision unambiguously applies to all lamps with which a vehicle is equipped. And, the provision in Minn. Stat. § 169.57, subd. 4, prohibiting certain alterations and installations to federally required center brake lights, 'if the alteration or installation alters or obscures any portion of the lamp or affects the intensity of light emitted,' demonstrates that the legislature is aware of the importance of operable, unaltered center brake lights." The Court of Appeals then held that the district court erred by holding that the stop was not justified.
Moral of the Story: When it comes to brake lights, if you got them, you better flaunt them!
