The Minnesota Case of the Week is the published decision of Mycka v. One 2003 GMC Envoy Automobile (decided June 15, 2010).
Mr. Mycka was arrested for driving while impaired (DWI) and due to his previous driving record, the City of Fridley sought the forfeiture of his 2003 GMC Envoy.
The city seized the vehicle after Mycka was released from jail and after he had retrieved his vehicle from a private towing company. Mr. Mycka then challenged in district court the city's seizure on the ground that, without process issued by a court, the city was not authorized to seize the vehicle from him. The district court denied the claim, but on appeal, the Minnesota Court of Appeals reversed the district court and ordered the vehicle returned to Mr. Mycka.
If a law enforcement agency does not obtain process issued by a court, the agency may, in the alternative, seize a motor vehicle subject to forfeiture pursuant to any of the following three exceptions:
(1) the seizure is incident to a lawful arrest or a lawful search;
(2) the vehicle subject to seizure has been the subject of a prior judgment in favor to the state in a criminal injunction or forfeiture proceeding under this section; or
(3) the appropriate agency has probable cause to believe that the delay occasioned by the necessity to obtain process would result in the removal or destruction of the vehicle.
In the present case, the City of Fridley sought to justify the forfeiture seizure without court process by claiming that the vehicle was seized, "incident to a lawful arrest".
The Minnesota Court of Appeals rejected the City's position, stating:
"Ultimately, this case can be resolved on the simple ground that the seizure occurred so late in time. The city did not initiate the administrative seizure of Mycka's vehicle while Mycka still was under arrest. Mycka was released from detention, and he retrieved his vehicle from Shorty's Towing. Not until the following day--approximately 36 hours after his arrest and approximately 24 hours after his release from the county jail--did the city's police officers seize Mycka's vehicle from his residence. There was a clear break in time between the arrest and the seizure. These facts compel the conclusion that the city did not seize Mycka's vehicle 'incident to' his arrest, as required by section 1679A.63, subdivision 2(b)(1).
Moral of the Story: He Who Hesitates Is Lost!!
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
The Minnesota DWI case of the week is the published decision of Pallas v. Commissioner of Public Safety. (decided 4/20/2010).
Mr. Pallas obtained multiple Minnesota DWI convictions and had previously taken his act on the road as he had also obtained four Illinois DWI convictions. The State of Illinois had issued a lifetime ban prohibiting him from ever receiving an Illinois license.
Mr. Pallas eventually applied for a Minnesota driver's license but the Minnesota Commissioner of Public Safety denied the application for a Minnesota license on the basis that he had not obtained a "clearance letter" from the State of Illinois indicating he was cleared to drive in Illinois, a practical impossibility.
Mr. Pallas petitioned the district court but the court upheld the Commissioner's decision to deny Mr. Pallas a Minnesota driver's license. On appeal, the Minnesota Court of Appeals reversed the district court, noting that Mr. Pallas had completed the rehabilitation requirements to obtain a Minnesota license and to refuse to issue a Minnesota license based upon the failure to provide a clearance letter from the State of Illinois violated Article V of the Interstate Driver License Compact (codified in Minnesota in § 171.50).
Minnesota Statute § 171.50 states in pertinent part, "...after the expiration of one year from the date the license was revoked, such person may make application for a new license if permitted by law. The licensing authority may refuse to issue a license to any such applicant if, after investigation, the licensing authority determines that it will not be safe to grant to such person the privilege of driving a motor vehicle on the public highways." (emphasis added).
The Court of Appeals noted that:
"The statute does not expressly allow the commissioner to replace the investigative process with a clearance-letter requirement, or even to impose a clearance-letter requirement. We cannot construe the statute as allowing the commissioner to condition issuing a Minnesota license on the applicant's ability to secure a clearance letter."
* * *
"Not only was the clearance-letter condition contrary to law, but in this case the unauthorized condition was also a mirage. The commissioner through legal counsel acknowledged in 2002 that 'it will be impossible for Pallas to get a clearance letter from Illinois because he is under a lifetime revocation based upon having four DWI's on his record', and the district court acknowledged the same. It might be that 'after investigation' the commissioner would find that it will be unsafe to license Pallas in Minnesota. But neither an investigation nor factfinding occurred here. Instead, Pallas was denied a license based on his failure to meet a condition that was legally implausible and practically 'nigh impossible."
* * *
"In sum. the compact plainly provides that an applicant can be issued a license in Minnesota notwithstanding a lengthy revocation in another state and that before refusing to issue the license the commissioner must determine that issuing it would be unsafe. By requiring a clearance letter, the commissioner rendered Article V meaningless and divested himself of the discretion conferred under the compact. This cannot be the result that the legislature intended. We reverse and remand for the commissioner to decide the question of Pallas's reinstatement on the basis authorized by statute."
Gee, I wonder what the Commissioner is going to decide? But since Mr. Pallas is otherwise eligible to obtain a limited Minnesota license, the Commissioner will be hard pressed to legitimately deny the issuance of a license.
Moral of the Story: Give me your tired, your poor, your huddled masses yearning to obtain a license and I will show you how!
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. Cypher which stands for the proposition that it is not nice to try to fool the District Court or the Minnesota Court of Appeals.
Mr. Cypher was charged with Felony DWI and his attorney requested a pretrial hearing to contest the validity of the initial stop of vehicle. But then Mr. Cypher's attorney decided to get creative. Or, as stated by the Minnesota Court of Appeals in its decision:
"We note that when appellant requested a contested omnibus hearing he asserted that the 'sole issue' was the stop, and at the hearing, appellant's attorney reiterated that the 'one issue' was the stop. But following the arresting officer's testimony, appellant's attorney declared: 'The vehicle was never identified and appellant was never identified, the State can't uphold the stop'. Appellant challenged the officer's identification of appellant as the driver of the vehicle. The district court gave the parties an opportunity to respond to appellant's identification challenge before concluding that the officer identified appellant and that appellant was the only occupant of the vehicle."
"Appellant similarly raises this issue on appeal with misplaced confidence, deeming it a sure-fire triumph. But appellant's attorney's tactic to attempt to hoodwink the prosecutor and the district court by raising this issue in the manner in which he did, although clever from his perspective, was imprudent. We note that after appellant's attorney remarked in district court that the officer failed to identify appellant and, as a result, the state could not uphold the stop, the district court had the discretion to reopen the record and allow additional testimony from the officer, which it did not."
"Additionally, the district court could have precluded appellant from challenging identification because when appellant raised the 'sole issue' of the stop, he no longer had standing to challenge whether he was the driver. Appellant essentially conceded that he was the driver when he challenged the legality of the stop and he was the vehicle's sole occupant; he had no standing to challenge the stop if he was not the driver."
Ouch!!
"Standing" is a basic concept in the law and it means that unless you have been personally aggrieved by a police search or seizure you may not bring a challenge to the police action. For example, if the police break into my neighbor's house, I have no "standing" to challenge the search even if it was illegal as I have no interest in the area searched.
Or, as in the present case, you can't challenge the legality of the initial stop where you are claiming that you were not the driver. If you were not the driver, then you do not have any interest (i.e. standing) in the legality of the police conduct. Duh!
Had the defendant's attorney been serious about challenging the identity the driver, he should have brought a Motion to Dismiss for lack of probable cause. Instead, he decided to get cute and got spanked by the Appellate Court for forgetting about a fundamental concept in the law of search and seizure.
Moral of the Story: It's Not Nice to Fool Mother Nature or The Minnesota Court of Appeals!
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 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.
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.
