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The Minnesota DWI Case Of The Week is State v. Holt (Decided June 4, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it doesn't take much for the police to demand a preliminary breath test.

In Holt, the Defendant was stopped for failure to signal a turn.  Mr. Holt provided the police officer with proof of insurance but not a driver's license.  Mr. Holt identified himself and provided a date of birth, but when the officer entered that information into his system, it brought up a photo that did not match the driver. The officer continued to attempt to identify the driver, but the driver could not confirm his address or when he last had his license renewed. The officer placed the driver under arrest for giving a false name.

While walking the driver to his squad car, the officer noticed he smelled of alcohol and asked how much alcohol he had to drink that night. Mr. Holt was non-responsive.

After transporting him to a police station, the officer was able to identify the driver as appellant Sedrick Lamar Holt. Once identified, the officer discovered Holt's driving privileges were cancelled, and he had an active felony warrant. The officer also noticed Holt's eyes were red and watery. The officer asked Holt to complete field sobriety tests or a preliminary breath test, but Holt refused.

Holt agreed to a breath test. He was instructed on how to provide an accurate sample, but after nine tries Holt was unable to provide that sample. The officer deemed Holt's failure to provide an adequate sample a refusal.

The Defendant was subsequently convicted of Felony DWI and on appeal argued that the evidence should have been suppressed by the district court as the police officer did not hav a reasonable, articulable suspicion to request that Holt submit to a preliminary breath test.

The Minnesota Court of Appeals ruled against the Defendant stating:

"Whether an officer has a reasonable, articulable suspicion is determined by the totality of the circumstances. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998). Articulable suspicion can arise when there is evidence of sufficient indicia of intoxication. State v. Driscoll, All N.W.2d 263, 265-66 (Minn. App. 1988). Both an odor of alcohol and bloodshot and watery eyes are indicia of intoxication. State v. Klamar, 823 N. W.2d 687, 696 (Minn. App. 2012). And a traffic violation coupled with indicia of intoxication can provide reasonable, articulable suspicion.  The district court determined the totality of the circumstances provided the officer with reasonable, articulable suspicion. We agree."

"Here, the officer stopped Holt after observing him commit a traffic violation—he failed to signal a turn. The officer approached the vehicle, and Holt only rolled down his window two to three inches to talk to the officer. After talking to the officer and failing to confirm necessary information to prove his identity, Holt was removed from the car and placed under arrest for providing a false name to police. It was when Holt was removed from his car and placed into a squad car that the officer first noticed Holt smelled of alcohol and asked how much alcohol Holt had to drink that evening. And once the officer brought Holt to the police station, he noticed Holt had red and watery eyes. The officer than asked Holt to complete field sobriety tests or a preliminary breath test. Because the officer witnessed a traffic violation and noticed multiple signs of intoxication prior to requesting the preliminary test, he had reasonable, articulable suspicion that Holt was driving while impaired by alcohol consumption."

Moral Of The Story:  A traffic violation plus one or more indicia of alcohol consumption will always furnish a sufficient basis for the police to request a preliminary breath test (PBT).

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

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

The Minnesota DWI Case Of The Week is Walsh v. Commissioner of Public Safety (Decided May 23, 2016, Minnesota Court of Appeals, Unpublished) which stands, once again, for the proposition that the police do not need probable cause to conduct field sobriety tests and a PBT test. I disagree but I am not on the Court of Appeals.

In Walsh, on January 30, 2015, Deputy Ryan Googins heard over his police radio that someone had called in a driving complaint. The caller identified himself and reported that he had seen a female in a vehicle at a Kwik Trip consuming what looked like small, airline-sized bottles of alcohol. The caller stated that when he made eye contact with the driver, she became nervous and drove away. The caller noted the vehicle's license-plate number, provided it to the police, and stated that he last saw the vehicle traveling south on Highway 3 from the Kwik Trip.

Deputy Googins spotted the vehicle and saw it turn into the Dakota County Library parking lot and park in an available space. Deputy Googins pulled into the parking lot, activated his lights, and parked behind the vehicle. As Deputy Googins approached appellant Shannon Forstrom Walsh, she was eating crackers and exiting her vehicle. Deputy Googins noticed an overwhelming odor of alcohol coming from the vehicle. When Deputy Googins asked appellant about the odor, she replied that she had not been drinking and suggested that the smell was coming from the crackers. Deputy Googins also noticed that appellant's eyes were watery and bloodshot.

Deputy Googins asked appellant to step out of the vehicle and take a series of tests. Appellant performed the horizontal-gaze nystagmus, walk-and-turn, and one-leg-stand tests and exhibited indicia of intoxication on all three tests, though the indicia of intoxication were subtle on the one-leg-stand test. Deputy Googins administered a PBT and placed appellant under arrest for driving while impaired (DWI). Deputy Googins read appellant the implied-consent advisory. Appellant declined to consult with an attorney. Deputy Googins offered appellant a breath test, and appellant agreed to take it. The test indicated that appellant's alcohol concentration was 0.12.

The District Court upheld the revocation of the Appellant's driver's license and on appeal, she argued that the field sobriety tests and PBT are subject to the "probable cause" and warrant requirements of the Fourth Amendment.  The Minnesota Court of Appeals, however, rejected this argument stating:

"Appellant's position is inconsistent with the applicable caselaw. An officer needs only reasonable, articulable suspicion of criminal activity to administer field sobriety tests and a PBT. State, Dep 't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981); State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (holding that administration of field sobriety testing based on officer's observations of odor of alcohol and Klamar's bloodshot and watery eyes was reasonable); State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (stating that an officer may request a PBT on the basis of specific and articulable facts), review denied (Mi\m. May 16, 1986). Appellant's reliance on Colorado and Oregon law is thus unpersuasive because it is contrary to binding Minnesota precedent."

Far be it for the Court of Appeals to change its mind.  And while it can be argued that field sobriety tests merely require a person to demonstrate their physical characteristics, (such as their ability to balance) and no "search" is involved in such tests, the same cannot be said for a preliminary breath test.  A PBT requires a person to blow a specified volume of air into a machine and the air is then analyzed for alcohol.  The PBT test is a search just like the Data Master test performed at the police station.  And to claim that the PBT test does not require probable cause is just plain wrong.

If you or a loved one have been arrested for 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 questions.

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

The Minnesota DWI Case Of The Week is Orsten v. Commissioner of Public Safety (Decided November 9, 2015, Minnesota Court of Appeals, Unpublished), which stands for the proposition that a police officer does not need "probable cause" to request a preliminary breath test at the scene of a traffic stop.  The officer only needs a "reasonable articulable suspicion" of criminal activity to invoke the test.

In Orsten, the petitioner was arrested for DWI in Kandiyohi County, Minnesota  and he filed a challenge to his license revocation arguing that his arrest was illegal as the police officer did not have probable cause to administer a preliminary breath test (PBT) after Orsten successfully completed one of three standard field sobriety tests.

In a ruling issued today, the Minnesota Court of Appeals rejected Orson's claim, stating:

"Preliminarily, we note that the district court analyzed Orsten's argument as a challenge to the officer's reasonable, articulable suspicion that Orsten was impaired before requiring him to submit to a PBT. In his brief on appeal, however, Orsten argues that probable cause is necessary before a driver may be required to submit to a PBT. Orsten is mistaken. An officer may require a driver to submit to a PBT when the officer "has reason to believe" the driver is impaired. See Minn. Stat. § 169A.41, subd. 1 (2014); see also State, Dep't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981) (stating standard for administering PBT is articulable suspicion)."

"Orsten argues that his stop for speeding, instead of for erratic driving, does not support the officer's suspicion of impairment. Orsten's argument fails because the officer may make the impairment determination "from the manner in which a person is driving ... or acting upon departure from a motor vehicle." Minn. Stat. § 169A.41, subd. 1 (emphasis added). Because the statute permits the officer to require a driver to submit to a PBT based on the driver's actions after the driver has exited the vehicle, the lack of any indication of impaired driving prior to the stop is irrelevant."

In this case, "The officer approached the vehicle and noticed that Orsten, the driver and sole occupant, had "bloodshot, watery eyes that were red around the irises," and he "detected an odor of an alcoholic beverage coming from inside" the vehicle and on Orsten's person after he exited the vehicle to perform field sobriety tests. See State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (stating that two indicia of intoxication—the odor of alcohol emanating from the driver and the driver's bloodshot and watery eyes—reasonably justified intrusions in the form of field sobriety testing and a PBT); Eager v. Comm'r of Pub. Safety, 382 N.W.2d 907, 911 (Minn. App. 1986) (stating that a driver's bloodshot and watery eyes and an odor of alcohol provided reasonable suspicion of DWI and a legal basis for a PBT). Orsten admitted to drinking two beers that night. "An admission of drinking, coupled with other indicators of intoxication, is sufficient for probable cause to arrest." State v. Laducer, 676 N.W.2d 693, 698 (Minn. App. 2004). Finally, Orsten failed the horizontal-gaze-nystagmus test and the walk-and-turn test. After Orsten failed these two field-sobriety tests, the officer requested that Orsten provide a sample of breath for the PBT, which he also failed. The totality of the circumstances supports the conclusion that the officer formed a reasonable, articulable suspicion that Orsten was driving while impaired, which justified the officer's request that Orsten provide a sample of breath for the PBT.

Finally, Orsten argued that the officer did not have grounds to invoke the PBT because he passed the one-legged-stand test and the officer did not observe other indicia of impairment, such as slurred speed or fumbling attempts to locate his driver's license.  But the Court of Appeals rejected this final contention noting, "There is no requirement that a driver demonstrate every possible indicia of impairment before being required to submit to a PBT."

Moral Of The Story:  It does not take much to invoke the Preliminary Breath Test. So if you or a loved one has been arrested for 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 questions.