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

The Minnesota DWI Case of the Week is  State v. Pexa  (Minnesota Court of Appeals, Unpublished, decided February 24, 2013) which stands for the proposition that in order to convict someone of having an alcohol concentration of .08 or more, the State must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!!

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

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 following chart summarizes the cases in which the vehicle is subject to forfeiture:

Chemical Test	Prior Record (Prior means a previous DUI or alcohol related license revocation)	Vehicle Forfeiture
.20 or more	With one prior within the past 10 years	Yes
Refusal	With one prior within the past 10 years	Yes
.08 with child endangerment	With one prior within the past 10 years	Yes
Refusal with child endangerment	Without any priors	Yes
.08	With two or more priors within the past 10 years	Yes
.08 or refusal	With a "B" card or driving drunk while license has been previously cancelled as "inimical to public safety".	Yes

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

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!


F.T. Sessoms, Minnesota DWI Attorney

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

The Minnesota DWI Case of the Week is: Horarik v. Commissioner of Public Safety, (Unpublished 8/18/2009 Minn. App.).

Mr. Horaik was arrested for a DWI and submitted to a urine test. The laboratory analysis of the urine sample showed an alcohol concentration level of .12.

At his license revocation hearing, Mr. Horaik challenged the constitutionality of Minn. Stat. § 634.15, subd. 1(a)(1), which allows into evidence the laboratory test result without any antecedent testimony from the chemist who performed the test. Mr Horaik argued, among other things, that the laboratory test evidence violated his right of confrontation guaranteed by the Sixth Amendment to the United States Constitution.

In Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364 (2004), the United States Supreme Court held that the Confrontation Clause encompasses witnesses' out-of-court statements when those statements are "testimonial" in nature. A laboratory test result offered in a criminal trial against a defendant meets the Crawford definition of a testimonial statement. See, Melendez-Diaz v. Massachusetts, 577 U.S. _, _, 129 S.Ct. 2527, 2532 (2009); State v. Caulfield, 722 N.W.2d 304, 310 (Minn. 2006).

The Court of Appeals, however, ruled against Mr. Horarik stating, " The significant distinction, however, is that implied-consent proceedings unlike the criminal proceedings governed by the Crawford rule, are civil in nature." And the "...due process rights associated with criminal trials do not apply. Horarik was not entitled to the protections of the Confrontation Clause in his implied-consent hearing, and his argument for relief on that basis fails."

F. T. Sessoms, Minnesota DWI Lawyer

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

This week's featured Minnesota DWI case is State v. Casey, _ N.W.2d _ (8/11/2009 Unpublished). It is an unpublished decision from the Minnesota Court of Appeals and is noteworthy only because it gives a fairly good recitation of what constitutes a "seizure" of the person for purposes of the Fourth Amendment.

In Casey, the defendant had left his vehicle and was walking when he encountered the police. The police began talking to the defendant and he admitted that he had consumed too much to drink. The police subsequently gave the defendant some field sobriety tests and placed him under arrest for DWI.

At trial, the defendant moved to dismiss the charges on the grounds that the evidence was obtained as the result of an illegal seizure of his person.

The Minnesota Court of Appeals affirmed the conviction noting:

"The United States and Minnesota Constitutions prohibit unreasonable search and seizure by the government. U.S. Const. Amend IV, Minn. Const. Art. 1 § 10. Not all contact between citizens and police officers constitutes a seizure. In re Welfare of E.D.J., 502 N.W.2D 779, 781 (MINN. 1993). A seizure occurs 'when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.' Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879 n.16 (1968). A 'person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' United States v. Mendenhall, 446 U.S. 544, 554; 100 S.Ct. 1870, 1877 (1980).

Circumstances that might indicate a seizure occurred include: (1) the threatening presence of several officers; (2) an officer's display of a weapon; (3) the officer physically touching the citizen; or (4) the officer's use of language or tone of voice indicating that compliance might be compelled. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

It is not usually a seizure for an officer to walk up to a person or an already stopped vehicle in a public place. Cobb v. Comm'r of Pub. Safety, 410 N.W.2d 902, 903 (Minn.App. 1987); See also, State v. Colosimo, 669 N.W.2d 1, 4 (Minn. 2003) (holding that initial interaction where officer was merely conversing with appellant did not amount to a stop or seizure); Norman v. Comm'r of Pub. Safety, 409 N.W.2d 544, 545 (Minn.App. 1987) (holding that officer did not seize appellant by walking up to him while he was standing outside his vehicle). So long as a reasonable person would feel free to terminate the encounter and law enforcement does not induce cooperation by coercive means, a seizure does does not occur when an officer asks for identification or poses questions of a person in public. United States v. Drayton, 536 U.S. 194, 201; 122 S.Ct. 2105, 2110 (2002). In contrast, "it is likely to be a seizure if a person is ordered out of a vehicle, or the police engage in some other action or show of authority which one would not expect between two private citizens." State v. Day, 461 N.W.2d 404, 407 (Minn.App. 1990)." Casey, at p.4-5 (slip opinion).


F.T. Sessoms, Minnesota DWI Attorney

Minnesota DWI Lawyer Blogs on Minnesota DWI: Urine Tests are Unreliable-The Pooling Effect.

A number of police departments in Minnesota have stopped using the Intoxilyzer 5000 EN as the primary testing method for people arrested for DWI. The police have stopped using the Intoxilyzer machine because the software used to run the machine must be disclosed to the defense and the State has had problems complying with the request.

The two alternative authorized methods for testing individuals arrested for DWI are blood or urine. This blog article discusses the inherent unreliability of the Minnesota Urine Testing Procedure.

THE MINNESOTA URINE TESTING PROCEDURE IS INHERENTLY UNRELIABLE:

In State v. Kolander, 236 Minn. 209, 221-22, 52 N.W.2d 458, 465 (1952), the Minnesota Supreme Court adopted the standard for the admissibility of evidence obtained from new scientific techniques as set forth in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), which requires “general acceptance in the particular field in which [the scientific principle or discovery] belongs.” Frye, 293 F. at 1014. In State v. Mack, 292 N.W.2d 764, 768 (Minn.1980), the Minnesota Supreme Court subsequently held that “the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.” The Court stated that the particular evidence must have a foundation that is scientifically reliable.

As a result of Frye and Mack, a two-pronged standard has emerged in Minnesota that must be satisfied before scientific evidence may be admitted:

First, a novel scientific technique that produces evidence to be admitted at trial must be shown to be generally accepted within the relevant scientific community;

Second, the particular evidence derived from the technique and used in an individual case must have a foundation that is scientifically reliable. Mack at 819; Goeb v. Tharaldson, 615 N.W.2d 800, 810 (Minn.2000) (reaffirming adherence to Frye-Mack standard after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Put another way, the Frye-Mack standard asks first whether experts in the field widely share the view that the results of scientific testing are scientifically reliable, and second whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls. State v. Jobe, 486 N.W.2d 407, 419 (Minn.1992).

In Minnesota, the urine test result is not reliable as the police do not obtain a proper sample for analysis. The police have received no instruction in the proper procedure for obtaining urine samples. By not requiring a first void, the officer will obtain a “pooled void” urine sample which is not scientifically valid for testing.

There is no scientific literature that in any way supports an un-void or "pooled-void" urine sample as a proper sample for alcohol testing.

There are two points of view in the scientific literature and in the scientific community regarding urine testing for alcohol:

1. The majority view is that urine is improper at all as a sample because it is too hard to preserve. It is not a good sample period.

2. The minority view is that it is okay to use a urine sample if one voids the bladder first and then collect a “midstream” void. Both views agree that you can’t use a pooled sample.

When a person stops drinking, the ethanol is continuously being removed from the individual's blood by their metabolism. The ethanol ends up in a person’s urine, which is a waste product excreted by the kidneys. The urine, containing the ethanol, accumulates in the bladder until the person voids. Little or no oxidation of the ethanol occurs in the bladder and can result in abnormally high urine alcohol concentrations being obtained from the first void. Or to quote from A.W. Jones:

“The length of time that urine is stored in the bladder before voiding is also an important consideration because ethanol is continuously being removed from the blood by metabolism, but no oxidation of ethanol occurs in the bladder. This situation results in abnormally high UAC to BAC ratios being obtained for the first void.” Reference Limits for Urine/Blood Ratios of Ethanol in Two Successive Voids from Drinking Drivers. Journal of Analytical Toxicology, Vol. 26, p. 333 (September 2002).

If a person has not done a first void, there is no relationship or correlation between the amount of alcohol in a person’s urine and the amount actually in their blood. It is not at all uncommon for persons to have high levels of alcohol in their urine and very low or no levels of alcohol in their blood. Minnesota is the only place that does not have any promulgated rules for administering or collecting a urine test. Other states, that don’t prohibit urine testing for alcohol concentration by statute or rule, have all promulgated some rules at least for the proper administration of the test!

Minnesota Statute § 169A.03, subdivision 2, defines alcohol concentration for purposes of the DWI Statute in 3 ways:

1. the number of grams of alcohol per 100 milliliters of blood;

2. the number of grams of alcohol per 210 liters of breath;

3. the number of grams of alcohol per 67 milliliters of urine.

The number of grams of alcohol per 210 liters of breath is generally accepted as being the equivalent of the alcohol concentration in a person’s blood. The number of grams of alcohol per 67 milliliters of urine is also generally accepted as being the equivalent of the alcohol concentration in a person’s blood. It, therefore, appears that the Minnesota Legislature intended that the alcohol concentration levels for breath and urine be the rough equivalent to that contained in a person’s blood.

This legislative intent is defeated when a pooled urine sample is used for testing.

If the Defendant has not urinated prior to giving the urine sample to the police, the pooling effect of alcohol in the bladder will cause the test result to be an inaccurate and unreliable measure of the Petitioner’s actual concentration level.

“The proponent of a chemical test must establish that the test is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability.” Schultz v. Commissioner of Public Safety, 393 N.W.2d 373 at 375 (Minn.App. 1986); citing State v. Dille, 258 N.W.2d 565, 567 (Minn.1977). “After a prima facie showing of trustworthy administration, it is incumbent on the petitioner in an implied consent proceeding to suggest reasons why the test was untrustworthy.” Schultz, supra; citing Tate v. Commissioner of Public Safety, 356 N.W.2d 766, 768 (Minn.Ct.App. 1984). The burden of persuasion regarding the accuracy of the test result remains with the proponent of the evidence. Dille, supra; at 567.

In cases involving urine test results, the scientific literature demonstrates that the “pooling effect” upon the urine sample renders the test result an unreliable measure of an individual’s alcohol concentration level. To use this unreliable test result to sustain the revocation of an individual’s license, or obtain a criminal conviction, would subvert the Legislature’s intent that the three testing methods yield the same result!!


F.T. Sessoms, Minnesota DWI Lawyer

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

This week we have two cases that merit some attention:

The first case is City of Crystal v. N.G.K.
It is a published decision of the Minnesota Court of Appeals (July 28, 2009 No. A08-1437) involving Mr. N.G.K. 's attempt to expunge his 1997 gross misdemeanor conviction for theft.

The District Court, after an evidentiary hearing, ordered: (1) that all records possessed by the judicial branch be sealed, and (2) ordered that with respect to the records possessed by the executive branch (i.e. the police department and BCA, etc.) the court ordered that those records be sealed "to the extent that no records are public regarding any pleas, findings, convictions, warrants issued by the Court, or any other data generated as a part of judicial proceedings".

The City of Crystal appealed alleging that the district court erred in ordering the expungement of the records possessed by the judicial branch and further erred by ordering the expungement of records possessed by the executive branch.

The Court of Appeals noted that a district court may exercise its inherent authority to expunge criminal records in two situations. First, a court may order expungement to prevent a serious infringement of a petitioner's constitutional rights. Second, a court may use its inherent authority if "expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing and monitoring an expungement order." Since N.G.K did not allege a constitutional violation, the Court of Appeals evaluated only the second rationale for expungement pursuant to a court's inherent authority.

The Court of Appeals noted, "When determining whether the benefit to a petitioner of expungement is commensurate with the disadvantages to the public, a district court should consider five factors:

(a) the extent that a petitioner has demonstrated difficulties in securing employment or housing as a result of the records sought to be expunged; (b) the seriousness and nature of the offense; (c) the potential risk that the petitioner poses and how this affects the public's right to access the records; (d) any additional offenses or rehabilitative efforts since the offense, and (e) other objective evidence of hardship under the circumstances."

The Court of Appeals held that the district court, after applying the above 5 factor balancing test, did not err in ordering the expungement of the records held by the judicial branch.

The records held by the executive branch are a different story, however. The Minnesota Court of Appeals held that the recent Minnesota Supreme Court case of State v S.L.H., 755 N.W.2d 271 (Minn. 2008) controls to prohibit the expungement of records held by the executive branch.

Under the Minnesota Government Data Practices Act, data relating to a person's criminal conviction are classified as public for 15 years following the discharge of the sentence imposed for conviction. Minn. Stat. § 13.87, subd. 1(b) (Supp. 2007). The conviction of the petitioner in S.L.H. was classified as public, which prompted the Supreme Court to say, "we fail to see how the legislature's policies could be accommodated if a court were to expunge records held outside the judicial branch that the legislature has classified as public." 755 N.W. 2d at 279. The Supreme Court then reasoned, "the expungement of ...criminal records held outside the judicial branch would effectively override the legislative determination that some of these records be open to the public."

The Minnesota Court of Appeals noted in the current case that while the Supreme Court has not issued a "bright line" rule concerning records held by the executive branch, "deference to a legislative determination that records of criminal convictions should be public, rather than expunged or sealed, is a recurring theme in several supreme court decisions". (citations omitted).

The Court of Appeals reversed the district court expungement order concerning the records possessed by the executive branch and it appears a safe bet that no expungement of executive branch records will ever be ordered pursuant to a Court's inherent authority until at least 15 years have passed from date of discharge from sentence. In other words, until the records are no longer classified as "public" no expungement of executive branch records will be allowed.

The second case is State v. Kessler, (Unpublished, 7/28/2009 Minn.App.) wherein Mr. Kessler appealed his conviction for Third Degree DWI. The aggravating factor elevating Mr. Kessler's charge from a 4th degree to a 3rd degree DWI was the presence of a child under the age of 16 in his vehicle at the time of the offense.

At trial, Mr. Kessler's attorney stipulated to the fact that the vehicle contained the defendant's "nearly 6 year old daughter". The stipulation was accepted by the trial court and the defendant was duly convicted of 3rd degree DWI.

On appeal, Mr. Kessler asserted that he did not personally waive his right to a jury trial on the underage-child aggravating factor and argued that he was therefore entitled to either a new trial or a reduction of his conviction from 3rd degree to 4th degree DWI.

The Court of Appeals agreed that in order for a stipulation to be valid, the defendant must personally waive his right to a jury trial on the aggravating factor and, instead of ordering a new trial, directed that the defendant be sentenced to 4TH DEGREE DWI.

THE MORAL: If you mess up the stip, you must acquit!!!

Fabulous!!


F.T. Sessoms, Minnesota DWI Attorney

Minnesota DWI Lawyer Blogs on Minnesota Plate Impoundment Law

The police will remove and destroy the license plates of any vehicle involved in a Minnesota DWI if the driver has one or more of the following "aggravating factors":

1. Has a prior DWI conviction or implied consent license revocation within 10 years of the current offense, or;

2. Has an alcohol concentration level of .20 or more, or;

3. Has a "B" card which prohibits the driver from consuming any alcohol at any time, or;

4. Has a child under the age of 16 in the vehicle at the time of the violation or;

5. Is driving the vehicle after the violator's license has been canceled as "inimical to public safety".

The plate impoundment applies not only to the vehicle involved in the current offense but to all vehicles owned, leased, or registered to the violator. If the vehicle is jointly registered to the violator and another person, the plate impoundment order applies to require that the plates of the jointly held vehicle be surrendered or destroyed.

The plate impoundment order will be issued by the police on the night of the violator's arrest even if the police do not have a test result indicating the violator was over the legal limit. For example, if the violator submits to a blood or urine test, the police will not receive the results of said test for several weeks or months. Under the Minnesota Plate Impoundment Law, (Minn.Stat. §169A.60), however, the police are only required to have "probable case "to believe that a violation of the dwi law has occurred and the violator has one of the aggravating factors listed above.

Since no license revocation will occur (for non "B" card violators) until the test results are known, this can lead to the absurd situation where the violator is perfectly legal to drive but has lost all the plates on his vehicles simply because he was arrested for a DWI with an aggravating factor.

The minimum plate impoundment term is for a period of one year. This can lead to additional absurd results as the license revocation period for a 2nd offense DWI or a first time over .20 or a first time DWI with underage child (factors 1, 2,and 4 above) in the vehicle is only 6 months!! A violator can be perfectly valid to drive after six months but still be subject to the vagaries of the plate impoundment law.

Specially coded license plates (i.e. "Whiskey Plates") may be obtained for the vehicle during the plate impoundment period if:

1. A member of the violator's household has a valid driver's license, or;

2. The violator has a valid license or has been relicensed or;

3. The owner of the vehicle is not the violator and has a valid license. or;

4. The violator is the owner but has a substitute driver with a valid license to operate the vehicle.

In State v. Henning, 666 N.W.2d 379 (Minn. 2003) the Minnesota Supreme Court held that the Minnesota statute which authorized stops of motorists based solely on the presence of these specially coded plates was unconstitutional. The Court held that the statute illegally eliminated the constitutional safeguard requiring police officers to have a reasonable articulable suspicion of criminal activity before stopping a motorist.

So if the police under Henning are no longer allowed to make a stop of a vehicle simply because it is wearing "Whiskey Plates", then what purpose does the plate impoundment law serve other than to brand the occupants of the vehicle with the scarlet letters of DWI?


F.T. Sessoms, Minnesota DWI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: Why I Did Not Receive a Ticket for the Underlying Offense Leading to My DWI Arrest

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I am often asked by clients arrested for DWI, "Well if the police stopped me for speeding (or running a stop sign, failure to yield,etc.), why didn't he give me a ticket for speeding (etc.)"

The short answer is the officer can't because the client could then pay the speeding ticket and the DWI would have to be dismissed.

This recently happened in one of my cases where the client was stopped for "failure to signal a turn" and was subsequently arrested for DWI. The client received a separate ticket for the failure to signal his turn. The client promptly paid the ticket and I then moved to dismiss his DWI case pursuant to Minnesota Statute Section 609.035.

Minnesota Statute Section 609.035, subdivision 1, states:

“Conduct; multiple crimes; chargeable for one offense. Except as provided in subdivisions 2, 3, 4, and 5, and in sections 609.251, 609.585, 609.21, subdivisions 3 and 4, 609.2691, 609.486, 609.494, and 609.856, if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.”

In State v. Johnson, 141 N.W.2d 517 (Minn. 1966), the Defendant was stopped for crossing the centerline and was subsequently arrested for driving while intoxicated. The Defendant was allowed to plead guilty to crossing the centerline.

The Defendant in Johnson then moved to dismiss the DWI charge upon the ground that following his conviction for driving over the centerline, any further prosecution for conduct constituting more than one offense was barred by Minn.Stat. § 609.035. The Supreme Court agreed in Johnson that the crossing the centerline and the DWI arose from the same behavioral incident for purposes of Minn.Stat. § 609.035 stating:

“Although the statute is commonly referred to as one prohibiting double punishment, a reading of it compels a recognition that it contains two prohibitions, one against double punishment and the other against serialized prosecutions for separate offenses similar to that afforded by our constitutional provision prohibiting placing an accused twice in jeopardy for the same offense. Conceivably, double punishment can arise where a person is convicted of two or more offenses following either one prosecution where the charges are stated as separate counts or two or more prosecutions where the charges are brought separately. The double-jeopardy prohibition can become applicable when a second prosecution is attempted following a conviction or acquittal upon a previous charge. In either case, the application of the prohibitions turns on the same determination-whether the ‘person's conduct constitutes more than one offense.’ Stated another way, a defendant can neither be punished nor prosecuted more than once where his ‘conduct constitutes more than one offense”.

In State v. Corning, 184 N.W.2d 603 (Minn. 1971), the defendant stopped at the scene of an accident but left without informing the other motorist of his name, address or vehicle registration number. The defendant was subsequently stopped by the police and charged with DWI.

In Corning, the Minnesota Supreme Court held that his acquittal of the separate charge of failure to leave his name, address and vehicle information at the scene of the accident barred his subsequent prosecution for driving under the influence under the statute prohibiting serialized prosecutions, Minn. Stat. § 609.035. See also, State v. Gibson, 478 N.W.2d 496 (Minn. 1991-Criminal vehicular operation and felony failure to notify police of personal injury accident arose from the same behavioral incident, thereby precluding imposition of separate sentences); State v. Krech, 252 N.W.2d 269 (Minn. 1977-Felony charges of Aggravated Assault must be dismissed where defendant plead guilty to petty misdemeanor traffic offenses arising out of the same behavioral incident); State v. Holcomb, _ N.W.2d _ (Unpublished Minn.App. 2004-“Because the DWI and Failure to Yield offenses arose from the same behavioral incident, subsequent prosecution on the DWI offense after appellant was convicted of failing to yield was barred by Minn. Stat. § 609.035)(A copy of the opinion is attached). As noted by the Court in Holcomb:

“An individual's conduct may constitute one offense when the “offenses occur at substantially the same time and place, arise from a continuous and uninterrupted course of conduct, and manifest an indivisible state of mind or coincident errors of judgment.” State v. Finn, 295 Minn. 520, 521, 203 N.W.2d 114, 115 (1972); see also State v. Johnson, 273 Minn. 394, 397-98, 141 N.W.2d 517, 520-21 (1966). In general, cases involving DWI and another driving or traffic offense have been held to constitute a single course of conduct. See, e.g., State v. Corning, 289 Minn. 382, 386, 184 N.W.2d 603, 606 (1971) (DWI and leaving scene of accident); State v. Gladden, 274 Minn. 533, 534, 144 N.W.2d 779, 780 (1966) (DWI and careless driving); Johnson, 273 Minn. at 397, 141 N.W.2d at 520 (DWI and driving over centerline). Cases holding that offenses were separate behavioral incidents generally include at least one licensing or regulatory offense. See, e.g., State v. Reiland, 274 Minn. 121, 124, 142 N.W.2d 635, 638 (1966) (driving after license revocation and criminal negligence); State v. Reimer, 625 N.W.2d 175, 177-78 (Minn.App.2001) (discussing cases).”

In the present case the failure to signal the turn offense and the DWI were a part of the same behavioral incident. See, Johnson, supra. The DWI charges had to be dismissed as further prosecution was barred by Minn. Stat. § 609.035.

The Judge agreed and the case was dismissed!

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer