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

The Minnesota DWI Case of the Week is unpublished Minnesota Court of Appeals decision of  State v. Adams, (Decided March 8, 2011) which stands for the proposition that the Courts should rightfully reject the testimony of a state trooper when he, in effect, testifies, "Who are you going to believe, me or your lying eyes?"

Mr. Adams was arrested for a DWI and his attorney challenged the validity of the initial stop in the district court.  

The attorney had an uphill battle as it is well established that the police can make a limited investigatory traffic stop if the officer has a reasonable articulable suspicion that an occupant of the car is engaged in illegal activity.  The "reasonable suspicion" of criminal activity must be based on specific and articulable facts, not on an unarticulated hunch.  The standard is not high and is less than that required for a finding of "probable cause".

At the suppression hearing, the trooper in this case gave three reasons to support the stop:

(1) he believed the bumper on the respondent's car exceeded the legal height limit; (2) the registered owner of the car had a revoked license; and (3) he believed that respondent was watching television while driving the vehicle.

Any one of these observations could provide the reasonable suspicion needed to make the initial stop.  The problem for this particular state trooper, however, was that his squad video did not back up his claims and the district court called him on it!!  As noted by the Minnesota Court of Appeals:

"The district court enumerated its reasons for discounting the trooper's testimony: (1) although the trooper relied heavily at the omnibus hearing on his belief that respondent was watching television while driving, the district court noted that the flickering light described by the trooper was not apparent in the videotape and that the trooper did not mention this as a reason for the stop when he first spoke to the respondent; (2) the trooper stated that he was able to view the driver well enough while driving to determine that he matched the registered owner's description, but in fact the registered owner was six inches taller and 200 pounds heavier than respondent; the registered owner testified at the omnibus hearing and the district court was able to compare the physical appearance between the owner and respondent; (3) although the trooper measured the car's bumper height after stopping respondent and knew that it did not exceed the statutory maximum, he is recorded on the videotape telling respondent that the bumper was too high; (4) at the omnibus hearing, the trooper failed to make out his own words on the videotape when making the disputed statements, despite the fact that the district court could understand his speech.  All these facts led the district court to conclude that the trooper was not credible."

The Court of Appeals then held that the district court did not commit error when it suppressed all of the evidence noting, "The district court here made extensive credibility findings, essentially rejecting much of the trooper's testimony as inherently suspect.  We will reverse the district court's order suppressing evidence only when the state can clearly and unequivocally demonstrate that the district court's findings of fact are clearly erroneous and that the court 'clearly and unequivocally' erred in its legal conclusions. The state has not met this standard."

So in other words, when a trooper lies to a defendant and lies to the district court and the lies are captured on tape it is not error to conclude that the stop was bogus.

Moral of The Story:  It's Not Nice To Try To Fool Mother Nature Or The District Courts!

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 the unpublished decision of  State v. Dixon  (Minnesota Court of Appeals decided January 11, 2011) which stands for the proposition that urine test results are not subject to scientific challenge in a criminal case.  


In  Dixon, the defendant sought to introduce expert testimony challenging the reliability of urine testing to measure the level of alcohol concentration in a person suspected to driving under the influence.  The trial court, however, ruled that the defense could not offer expert or lay testimony on the reliability of urine testing because Minnesota has accepted the scientific basis of this testing method.

On Appeal, the Minnesota Court of Appeals affirmed, essentially saying they have approved the use of urine testing in the past and so they are going to uphold its use into the future.  Or as stated by the Court:


"Minnesota Courts have rejected challenges to the use of urine tests based on the 'urine-pooling theory', which suggests that a urine test is scientifically invalid if the suspect is not required to void his bladder once and wait 20 to 30 minutes before providing urine for testing, to assure the accuracy of the test. Hayes, 773 N.W.2d at 138-139; Genung v. Comm'r of Pub. Safety, 589 N.W.12d 311, 313.  In  Hayes,  this court ruled that the district court did not abuse its discretion by excluding expert testimony that would have attempted to challenge the validity of the urine testing based on this theory.  In  Genung,  this court stated that BCA urine-testing procedures 'have been found to ensure reliability' and 'do not require voiding once before producing the test sample.  In Hayes,  this court relied on Genung to conclude that, even if the proffered expert testimony on the urine-pooling theory were relevant, 'it is insufficient as a matter of law to prove that the testing method is not valid and reliable' under the implied statute.  Because current Minnesota law upholds the reliability of first-void urine test results, the district court did not abuse its discretion by refusing to allow appellant to introduce expert witness testimony on the reliability of the urine-pooling theory or by refusing to permit appellant to cross-examin the state's BCA expert witness on that theory."


What is interesting about this case is that the Minnesota Court of Appeals uses CIVIL CASES to reach a result in a CRIMINAL CASE.  Hayes  and  Genung  were both civil cases where the burden of proof is much lower.


In a criminal case, a defendant should always have the right to challenge the accuracy and reliability of a scientific test because the stakes are so much higher than they are in a civil action.  Because a criminal defendant faces the potential loss of his or her liberty then due process, or fundamental fairness, demands that a jury have all the evidence they need to access the reliability of a chemical test. 


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!


So even though a first-void urine test result has no support whatsoever in the scientific community, as long as the Minnesota BCA is willing to use it, the Minnesota Court of Appeals is going to back them up.


MORAL OF THE STORY:  Never submit to a urine test.  Always exercise your right to have a blood test done instead.  At least it will be accurate and not overstate your alcohol concentration level.

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 the unpublished decision of  State v. Grinsteinner, (Minnesota Court of Appeals decided November 23, 2010) which stands for the proposition that it is possible to get probation for a felony DWI if you really, really work for it.

On October 21, 2009, Mr. Grinsteinner entered a straight plea to the district court on a felony DWI and he hit the jackpot!  

A "straight plea to the court" is done when the prosecutor wants more jail time than the client is willing to serve.  So rather than agree to the prosecutor's recommendation, a "straight plea to the court" is entered in the hope that the district court judge will be more merciful than the county attorney.  

In this case, Mr. Grinsteinner made a straight plea on his Third Felony DWI.  While it is unclear from the opinion, that fact that he pled to his 3rd felony indicates that Mr. Grinsteinner has at least six DWI's in his checkered career. The presumptive sentencing guideline called for Mr. Grinsteinner to served 66 months in prison.  The district court sentenced Mr. Grinsteinner to probation instead and the County Attorney appealed, arguing that the district court did not have a basis to depart from the 66-month guideline sentence.

Minnesota Court of Appeals affirmed the district court's probationary sentence and this case is significant as it demonstrates what a defendant can do to avoid a lengthy prison sentence in a felony DWI. The Minnesota Court of Appeals pointed out that Mr. Grinsteinner had: (First and foremost),undergone an extensive treatment program; submitted a letter from his sponsor at Alcoholics Anonymous detailing his attendance; submitted a letter from his employer as to his sobriety; submitted a letter from the Inmate worker crew supervisor at the Dakota County Jail; submitted letters from friends and family members detailing their support of the defendant's efforts to maintain sobriety.  Mr. Grinsteinner also expressed remorse for his latest offense and had been sober for three years prior to his arrest.

The Minnesota Appellate Court noted that, "The district court has broad discretion to depart from the presumptive sentence provided by the sentencing guidelines." The Appellate Court also stated, "The district court should consider a number of factors when determining whether a defendant is amenable to probation, including the individual's age, prior record, remorse, cooperation, attitude while in court, and the support of friends and family.  Here the record reflects that the respondent expressed remorse for his actions, that he had participated in and completed treatment programs while he was in jail for this offense, and that he has a strong support network of friends and family.  Furthermore, respondent was sober for three years before he committed this offense, and the record reflects that respondent has the motivation to remain active in recovery and abstain from alcohol use."

The Court of Appeals, therefore, held that the District Court did not abuse its discretion when it gave Mr. Grinsteinner a probationary sentence.

Moral of the Story:  It's Never Too Late To Turn Over A New Leaf!

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 case of the week is the published decision of  State v. Mohomoud,  _N.W.2d _  (Minn. App. decided September 14, 2010) which serves as a cautionary tale that any individual arrested for a DWI should hire an attorney who knows what he is doing!!

In  Mohomoud, the Defendant was charged with felony DWI. His attorney stipulated to his prior DWI convictions to prevent the jury from learning of his prior offenses.  So far, so good, as the Minnesota Supreme Court in State v. Berkelman, 355 N.W.2d 394 (Minn. 1984) recognized that the introduction of prior offenses is prejudicial to a defendant and, therefore, held that a defendant has the right to  stipulate to the prior convictions to keep the jury from being influenced by the defendant's prior conduct.

At the trial, the prosecutor played a DVD recording made of the defendant's conversation with an attorney on the night of the defendant's arrest.  The recording contained references of Mohomoud's prior convictions.  Specifically, Mohomoud can be heard stating to the attorney, "I just got out of prison"; and "I was in prison for my fourth DWI".  Mohomoud then discussed the dates of his prior convictions, fines and his prison term.

Before offering the DVD in evidence, the prosecutor discussed its content with defense counsel and the court.  The court asked defense counsel for his position on the prosecutor's proposal and counsel stated that he agreed with it, stating:

"Yes, Your Honor, I have heard and he discussed this with me. The very first reference, as we agreed, we'd cue up past that first reference. Due to the nature of the software and its inability to edit it—although we'd prefer to have those removed, we also understand it's more work than it's worth and I understand that it's a minor reference. So although we'd prefer to have it out, we don't object to those other statements at this point."

When the prosecutor offered the DVD as an exhibit, defense counsel then stated that he had "no objection" to the evidence.

On appeal, Mohomoud's appellate counsel argued that the admission of the recording of his conversations with his attorney was "plain error" because it violated longstanding caselaw requiring suppression of a DWI arrestee's conversations with an attorney pursuant to the implied consent advisory, citing State v. Clark, 375 N.W.2d 59 (Minn.App. 1985).

State v. Clark is a Court of Appeals case which follows State v. Berkelman in holding that the defendant has the right to stipulate to his prior offenses to prevent their consideration by the jury.

But Sadly Now, There Can Be But One Outcome:

In the present case however, the Court of Appeals held that, "The plain-error standard applies when a party failed to object to the allegedly erroneous admission of evidence. It does not apply when a party intentionally and expressly gives up a known right.  In the former instance, it is said that a forfeiture of the error has occurred; in the latter, the result is a waiver of error."

A forfeiture of the error is subject to due process review under the plain error standard. A waiver of the error is not.  Or, as stated by the Court of Appeals, "The logic of the distinction is compelling.  If a party knows of a right and intentionally relinquishes that right, it cannot be said that the trial court erred regarding the subject matter of that right or that there is any error to review on appeal.  Defense counsel here clearly waived Mohomoud's right to have the evidence of his conversation with a lawyer excluded by acknowledging that he heard the recording, discussed it with the prosecutor ...and when the prosecutor offered the recording, defense counsel said he had no objection.  Mohomoud's waiver extinguished any error that might have been predicated on the admission in evidence of the portions of the recording at issue."

Trial counsel's performance was deficient for a number of reasons:

First, he snatched defeat from the jaws of victory by obtaining the exclusion of the prior offenses but then agreed to their admission as contained in the DVD recording. What was he thinking?

Second, although it is not discussed in the present case, any conversation between a DWI suspect and an attorney is not admissible pursuant to Commissioner of Public Safety v. Campbell, 494 N.W.2d 268 (Minn.App. 1992).

In Campbell, the Minnesota Court of Appeals held that the police may be present during a DWI arrestees telephone conversation with an attorney as the police have a right to do an "observation period" of the suspect prior to the suspect's submission to alcohol testing.  But the court held in Campbell that the content of the conversation with the attorney is not admissible.

So why trial counsel for Mohomoud did not object to the entire DVD is beyond me and is completely inexcusable.

It has long been held that people may not be punished for exercising their statutory and constitutional rights.  For example, if a suspect invokes his right to remain silent or if he invokes his right to counsel, the exercise of those rights may not be presented to the jury.  (Why? Because it is prejudicial: If juries are allowed to consider the matter instead of reviewing the evidence, they may decide that if the suspect had nothing to hide, he would not refuse to speak to the police or seek the advice of counsel.) 

Moral of the Story: Don't let in the back door what you kept out of the front!

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

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 the unpublished case of  State v. McIlraith (Minn.App. August 3, 2010).  In McIlraith, the defendant was arrested for boating while intoxicated with an intoxilyzer test result of .13.  When the defendant was arrested, he consulted with an attorney who advised the defendant to obtain an independent test.  The defendant called his wife to collect a urine sample but the police would not allow his spouse to collect the sample.  The defendant then called an independent-testing agency and the agency was allowed to collect the urine sample. The independent test showed a urine test result of .12.

The defendant moved to suppress the state's intoxilyzer test result arguing that the police had violated the defendant's statutory right to have an independent test done "by a person of his own choosing" as required by Minn. Stat. § 169A.51, subd. 7(b).  The district court denied the defendant's Motion to Suppress but on appeal, the Minnesota Court of Appeals reversed the district court and ordered the intoxilyzer test suppressed. So far so good!

After the case was remanded to the district court, the prosecution subpoenaed the test result obtained from the independent-testing agency and sought to introduce the .12 urine test to convict Mr. McIlraith.  The defense moved to suppress the urine test arguing: (1) it was testimony given by a defendant in support of a motion to suppress; (2) he did not intend to introduce the result of the second test at trial and was, therefore, non-discoverable, and (3) the purpose of the independent testing statute would be defeated if the prosecution was allowed to exploit the defense efforts to investigate the case.  The second motion to suppress was denied at the district court and on appeal, the Minnesota Court of Appeals rejected all of the arguments advanced by the defense.

The Minnesota Court of Appeals held:

(1)  "Although McIlraith testified during the first pretrial suppression hearing that he took the independent test and testified as to what he remembered was the result of the test, it was the actual result of the test, as subpoenaed by the state from Accurate Testing, and not McIlraith's testimony, that provided the basis for the reinstatement of the charge based on testing.  Because it was the test result itself rather than McIlraith's testimony that was at issue in the second Lothenbach trial, we reject his first argument."

(2)  "...under Minn.R.Crim P. 9.02, subd. 1(2), which states that, [t]he defendant must disclose and permit the prosecutor to inspect and reproduce any results or reports of ...scientific tests...made in connection with the particular case within the possession or control of the defendant that the defendant intends to introduce in evidence at the trial...

However, this rule does not apply to the result of the second test because the state was able to obtain the records from Accurate Testing independently, without the consent of McIlraith.  Thus the district court correctly concluded that this scientific test was not solely within the possession or control of McIlraith.  Therefore, whether McIlraith intended to introduce the result of the test into evidence at trial was irrelevant."

(3)  "Lastly, McIlraith argues that the purpose of Minn. Stat. § 169A.51, subd. 7(b), the independent testing provision, would be defeated if the result of an independent test could be used against the defendant without his consent.  McIlraith correctly indicates that the purpose of the provision is to ensure a criminal defendant's constitutional right to due process and confrontation by facilitating effective investigation and preparation...However, the asserted purpose of the statute does not prevent the state from obtaining accurate evidence of a defendant's alcohol concentration... The statute only precludes admission of the test administered by the police if an additional test was prevented or denied.  It does not prevent the admission of the result of an additional test."

I believe that the McIlraith  decision is wrong because:

(1)  The State only became aware of the independent test and its result through the testimony of the defendant at his original suppression hearing.  The test result obtained by the State is thus the fruit of the defendant's testimony which may not be exploited.

(2)   The defendant produced the urine sample and paid for the the test result.  The sample and result would not exist but for his physical and financial efforts to defend his case.  To claim that the result is not within his possession or control because it was subpoenaed by the prosecution seems to ignore the concept of "constructive possession".  If a person produces the sample, pays for its analysis, does not intend to introduce the results of the investigative analysis, how can the state, consistent with Rule 9.02 introduce the evidence produced by the defense?  After all, no scientific test result produced in a lab is ever in the exclusive "possession and control" of a defendant as the lab will always have a copy of its work!

(3)  The Court admits the purpose of the statute is ensure a defendant's constitutional right to due process and confrontation and then defeats the admitted purpose of the statute by claiming that state's conduct is not prohibited by the very statute whose purpose has now been defeated.

MORAL OF THE STORY: Be Careful What You Wish For!

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

F.T. Sessoms, Minnesota DWI Lawyer

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

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

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 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

F. T. Sessoms, Minnesota DWI Lawyer