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

The Minnesota DWI case of the week is the Minnesota Court of Appeals decision set forth in Melde v. State of Minnesota.

Mr. Melde was charged with two counts of Felony DWI and one count of Driving After Cancellation.  He agreed to plead guilty to one count of Felony DWI and to Driving After Cancellation when the prosecutor agreed to recommend that the execution of the sentence be  "stayed" (i.e. the prosecutor agreed that Mr. Melde would not be required to go to prison).  

The district court judge accepted the guilty plea and adjudicated Mr. Melde guilty. The parties and the district court agreed that there would be a pre-sentence investigation and that the court would sentence Mr. Melde after reviewing the pre-sentence report.

After the pre-sentence report was prepared and reviewed by the district court, the judge decided not to accept the plea agreement.  The district court offered Mr. Melde the opportunity to withdraw his guilty plea but told the defendant that it would sentence him to 46 months (i.e. at the bottom of the sentencing guidelines) if he affirmed his guilty plea.

Mr. Melde decided not to withdraw his guilty plea and was sentenced, as promised, to 46 months in prison.  Mr. Melde subsequently brought a Petition for Post-Conviction Relief asserting that the district court impermissibly injected itself into the plea negotiations by promising a particular sentence.

The Minnesota Court of Appeals agreed with Mr. Melde and reversed his conviction. The Court of Appeals noted that, "The district court has a role to play in plea negotiations, but it may not usurp the responsibility of counsel or become excessively involved in plea negotiations. It is improper for a district court to offer the defendant an anticipated sentencing result that is not a part of an existing agreement between the defendant and the prosecutor."

"The district court's proper role is one of discreet inquiry into the propriety of the settlement submitted for judicial acceptance, both to make certain that an innocent person has not been induced to plead guilty to a crime and to protect society from a defendant being permitted to bargain for an excessively lenient sentence.  If the district court finds the terms of the a plea agreement to be unacceptable, it must simply reject the agreement."

When a district court rejects a plea agreement, the defendant is automatically entitled to withdraw his plea if one has been entered.  Here the district court properly informed Mr. Melde of his right to withdraw his guilty plea.  However, the court also told Mr. Melde that it would impose a 46-month sentence if he affirmed his guilty plea.  "By promising a particular sentence that was not part of an agreement between the prosecutor and the defendant, the district court improperly injected itself into plea negotiations.  Therefore Melde's guilty plea was per se invalid."

My only criticism of the result is that sometimes an active role by the court facilitates a proper resolution of the case.  There are times when one encounters an over-zealous prosecutor who demands a sentence far in excess of anything warranted by the offense.  If the court takes an active role and indicates it is not going to go along with the prosecutor's demands, the court's involvement can go a long way in avoiding an unnecessary trial.

F.T. Sessoms, Minnesota DWI Lawyer

F.T. Sessoms Gets Police "Policy" Declared Unconstitutional! Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

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

Attached is the Media's Reaction to the Decision:

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

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

F.T. Sessoms, Minnesota DWI Attorney

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

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.

F.T. Sessoms, Minnesota DWI Lawyer

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

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 owner defense 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 owner construed 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!!


F.T. Sessoms, Minnesota DWI Attorney

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: Minnesota's Ignition Interlock Program

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)
Installation fee: $35.00 -$100.00 Monthly maintenance fee: $60.00 - $125.00 Lockout fee: $35.00 - 50.00 Removal fee: $25.00 - 50.00 Switch Vehicle Fee – $55.00

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.

Program Elgibility Table

Any eligible individual wishing to participate in the

Minnesota Ignition Interlock Program must sign the

attached agreement:

Ignition Interlock Participation Agreement