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

The Minnesota DWI Case Of The Week is Zabinski v. Commissioner of Public Safety (Decided June 2, 2014, Minnesota Court of Appeals, Unpublished), which stands for the proposition that an anonymous tip is not sufficient to stop a motor vehicle if the police officer does not observe any driving misconduct.

In Zabinski, an unidentified individual called the police from the area of "Ray's Auto Body Shop" to report a tractor-trailer pulling round hay bales traveling north in the southbound lane of Highway 169.  A police officer headed to the area and observed the Defendant's tractor-trailer with round hay bales traveling south in the south-bound lane of Highway 169.  

The Defendant was pulled over by the officer and, after completing some field sobriety tests, was arrested for DWI.  The District Court upheld the validity of the stop but on appeal, the ruling was reversed.  

The Minnesota Court of Appeals noted that, "An informant is considered anonymous unless he or she provides 'sufficient identifying information'.  And in the present case, the record does not establish the caller was an employee or customer of Ray's Auto Body or if the caller was just near the area at the time of the call".  The caller did not give a name, phone number, or any identifying information.  Thus the police did not have any way to locate the caller to hold him accountable if he was knowingly providing false information.

The Court of Appeals then held: "Although an officer does not have to personally observe illegal driving, an informant must be sufficiently reliable to justify an investigatory stop on the basis of a tip alone.  Here, there is no way to determine the reliability of the caller because he or she did not provide any identifying information.  Not only is there insufficient indication of the tipster's reliability, there is also objective evident of the tipster's unreliability because the vehicle was not observed in the wrong lane."  Therefore, the stop was thrown out and all of the evidence was ordered suppressed!

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The Minnesota DWI Case Of The Week is   State v. Freeman, (Minnesota Court of Appeals, Unpublished, decided September 9, 2013), which stands for the proposition that the test will not be suppressed even though the police eavesdropped on the defendant's conversation with his attorney. 

In Freeman, the Defendant was arrested for DWI and was taken to the Cass County Jail for alcohol testing.  Prior to submitting to a breath test at the jail, the Defendant asked to consult with counsel.  Mr. Freeman contacted an attorney by telephone and the attorney advised the Defendant to submit to testing.  The attorney-client consultation occurred over a speaker phone and both sides of the consultation were recorded by the arresting officer.

The Defendant moved to suppress the breath test result arguing that his right to counsel had been violated by recording his conversation with his attorney.  The District Court granted the motion to suppress but on the State's appeal of the ruling, the Minnesota Court of Appeals reversed.

In its decision reversing the District Court, the Minnesota Court of Appeals noted, "An individual who is in law-enforcement custody generally has the right to 'a private interview' with an attorney or 'private telephone access' to an attorney.  But the Minnesota Supreme Court has rejected the argument that law enforcement must provide a driver exercising his limited right to pretest counsel with a private telephone or private room in which to call an attorney, reasoning that 'given the limited nature of the right to counsel in this context, police do not have to provide a DWI arrestee with a private telephone because the arrestee’s rights will be sufficiently protected by the subsequent exclusion of any overheard statements or any fruits of those statements.' Comm’r of Pub. Safety v. Campbell, 494 N.W.2d 268, 269-70 (Minn. 1992). The supreme court noted that 'proper testing procedures' generally require that the officer remain in the presence of an arrestee in order to impeach any later testimony by an arrestee who submits to testing that ingestion of something at the station might have affected the test results." 

"As to remedies, precedent establishes a distinction between cases in which the police refuse to allow an attorney-client consultation prior to testing and cases in which the police allow a consultation but do not honor the driver’s statutory right to a private consultation. When law enforcement refuses to allow a driver to contact an attorney and the driver subsequently submits to chemical testing without the benefit of legal advice, suppression of the test results is the appropriate remedy. See State, City of Belle Plaine v. Stradcutter, 568 N.W.2d 545, 548 (Minn. App. 1997).  But the remedy is narrower when the police allow a driver to telephone an attorney but do not provide the driver with privacy during the call. In such cases, the remedy is suppression of any overheard statements, as well as the fruits of those statements, and not suppression of the test results. See Campbell, supra."

Thus the District erred when it suppressed the breath test results and its ruling is reversed.

MORAL OF THE STORY: Talk softly because you never know who may be listening!

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

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

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