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

The Minnesota DWI Case Of The Week is   State v. Addickes, (Minnesota Court of Appeals Unpublished Opinion issued October 15, 2013) which stands for the proposition that even though the DWI blood test sample was destroyed before it was inspected by the Defense, the BCA test result is still admissible unless the Defendant can prove the  blood sample contained exculpatory evidence and was destroyed "in bad faith".  Needless to say, the Defendant lost.

In Addickes, the Defendant was arrested on suspicion of DWI. While under arrest, he gave a blood sample that was tested by the Minnesota Bureau of Criminal Apprehension (BCA).  The test found his blood sample to have an alcohol concentration of .17. 

The Defendant's attorney served the prosecutor with a disclosure demand that included a request for all reports of “examinations, scientific tests, experiments or comparisons made in connection with the particular case.” The state responded on March 8, 2011, with a report on the BCA’s test of the blood sample. The report indicated that the sample would be destroyed on February 2, 2012, or 12 months after the test.  

On March 4, 2011, the Defendant's case was mistakenly dismissed. When the error was discovered on January 9, 2012, the district court ordered that the previous dismissal be vacated. Defendant's attorney called the BCA on March 22, 2012, to request access to the sample and was informed it had been destroyed on or about March 2, 2012.  Appellant then requested a contested omnibus hearing, claiming a due process violation as a result of the destruction of the blood sample and requesting suppression of the results of the blood test. After the hearing, the district court denied the Defendant's motion to suppress.  

On Appeal, the Court noted that in State v. Hawkinson, 829 N.W.2d. 367 (Minn. 2013), the Minnesota Supreme Court stated that in determining whether a blood test result should be suppressed, the courts are to look at two factors: 

(1)  Was the destroyed evidence exculpatory (i.e. favorable)  to the defense and;

(2)  Was the evidence destroyed in bad faith.

In the present case, the Addickes Court held that since the blood sample was not favorable evidence to the defense (as it contained an alcohol concentration level of .17) and the sample was destroyed after notice to the defense and pursuant to its regular practice, there was no due process violation and the test result was properly admitted at trial.

MORAL OF THE STORY: If you want to examine the state's evidence, you better do it in a timely fashion. So don't put off till tomorrow what you can do today!   

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

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

The DWI Case Of The Week Is   Missouri v. McNeely, 569 U.S. _ (Decided April 17, 2013) a United States Supreme Court case which stands for the proposition that the dissipation of alcohol in the body does not create a per se exception to the warrant requirement.

In McNeely, the Defendant was arrested for DWI and was taken to the hospital for blood testing.  Upon arrival at the hospital, the officer asked Mr. McNeely if he would consent to a blood test.  When Mr. McNeely refused to submit to testing, the officer directed a lab technician to take the blood sample.  The officer did not attempt to first obtain a search warrant to authorize the bodily search.

The Missouri Supreme Court held that the failure to attempt to seek a warrant was fatal to the State's case stating that, "the courts must engage in a totality of the circumstances analysis when determining whether exigency permits a nonconsensual, warrantless blood draw".

The State of Missouri then appealed to the United States Supreme Court arguing that  alcohol in the blood begins to dissipate as soon as its consumption is stopped and that any delay in obtaining a blood sample will sacrifice the accuracy of the test result.  The State of Missouri wanted the U.S. Supreme Court to adopt a per se rule that the dissipation of alcohol creates an exigency that dispenses with the need to obtain a search warrant.

The United States Supreme Court in McNeely, however, declined to adopt the per se rule requested by the State and held instead that the lower courts must utilize the "totality of the circumstances test" to determine if a warrant was properly not obtained.  The Supreme Court pointed out that in this day of telephonic warrants, the delay necessitated by contacting a magistrate to obtain said warrant is minimal and is not such a burdensome requirement that it may be dispensed with in all cases.

The Supreme Court's ruling in McNeely has huge implications for Minnesota.  In the State of Minnesota, when a person is arrested for DWI, his or her consent to submit to testing is coerced.  That is, when suspects are arrested for DWI, they are told that if they refuse to submit to testing, they will be charged with a crime.  One's consent to search is not "voluntary" if it is being obtained by threat of prosecution.  Since the consent to testing is not voluntary, the State must now show in each case that it could not obtain a search warrant before seeking to obtain the test!  How are the police going to be able to show they could not obtain a warrant when up until April 17, 2013 they were not even trying to get said warrant?

Conclusion: It's a whole new ball game in DWI defense!

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

The Minnesota DWI Case of the Week is  State v. Pexa  (Minnesota Court of Appeals, Unpublished, decided February 24, 2013) which stands for the proposition that in order to convict someone of having an alcohol concentration of .08 or more, the State must prove either that: the test sample was obtained within 2 hours of driving or have expert testimony concerning retrograde extrapolation of a person's blood-alcohol concentration.  Since the State in Pexa  failed to do either one of the above, the Court of Appeals reversed the conviction.

In Pexa, the Defendant was driving his car when he hit an ATV and severely injured the ATV driver.  The accident occurred shortly before 10 p.m.  When the police arrived at the scene, the officer noticed the Defendant exhibited indicia of alcohol consumption. The officer gave the Defendant field sobriety tests and placed him under arrest for DWI. The Defendant was subsequently taken to a hospital where he submitted to a blood test.  The blood sample was not collected until 12:05 a.m. and revealed an alcohol concentration level of 0.09.

The Defendant was charged, with two counts of Criminal Vehicular Operation  (i.e. Causing injury while operating a vehicle with an alcohol concentration of 0.08 or more, and; Causing injury while operating a vehicle with an alcohol concentration of 0.08 or more within two hours of driving).

On the first day of trial, the District Court found that the State violated the rules of discovery by failing to disclose that its expert would be testifying about retrograde extrapolation of a person's blood-alcohol concentration.  The court concluded that because of the discovery violation, the state's expert could not testify on that topic.

The Defendant was subsequently convicted of the criminal vehicular operation statute that required the State to prove he caused "injury to another as a result of operating a motor vehicle while having an alcohol concentration of 0.08 or more".

On appeal, the Defendant argued that because his alcohol concentration was shown to be 0.09 more than two hours after he struck the victim and because the state did not introduce any retrograde-extrapolation evidence, the jury could not infer that appellant's alcohol concentration was at least 0.08 at the time of the accident.  The Minnesota Court of Appeals agreed with the Defendant and reversed the conviction.

The Court of Appeals explained: 

"The state argues that the evidence was sufficient to sustain his conviction because a jury could reasonably infer from the evidence presented that appellant had an alcohol concentration of at least 0.08 at or within two hours of driving.  But disputes about alcohol consumption are different from alcohol concentration.  Assuming sufficient foundation, a lay witness could testify that a person seems 'drunk' based on any commonly observed indicia of drinking.  Thus, factual disputes about alcohol consumption could be resolved by a jury hearing such a lay witness.  But specific numerical alcohol concentration is a scientific matter.  In order to determine alcohol concentration, specific levels of alcohol concentration are introduced through experts who have specific knowledge of anatomy, chemistry, physiology, and timing.  For example, what may not be commonly known is that an individuals's alcohol concentration may actually rise for a short time after the individual has stopped drinking. See, State v. Favre ('Because it takes time for alcohol to reach the blood stream, blood alcohol concentration typically peaks some time after drinking.').  And there are countless variables and scenarios apart from the amount of alcohol consumed that affect a person's alcohol concentration at any given time.  Therefore, it would be impossible for a lay jury to infer a precise level of alcohol concentration at a specific point in time-here the exact time of the accident-without the aid of qualified expert testimony."

Since the State's expert was precluded from testifying because the State failed to abide by the Minnesota Rules of Criminal Procedure and because the blood sample was not obtained within two hours of the accident, the Minnesota Court of Appeals correctly reversed the conviction.

Moral of the Story: When The State Does Not Play By The Rules, It Deserves To Lose!!

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

The Minnesota DWI Case of the Week is the Minnesota Supreme Court Case of  Patino v. One 2007 Chevrolet, (decided October 2, 2012) which stands for the proposition that in order to forfeit a vehicle pursuant to the Minnesota DWI forfeiture statute, the owner of the vehicle must first be convicted of the designated DWI criminal offense.

In Patino, the Defendant was charged with Second Degree DWI which gave rise to the forfeiture of his vehicle.  The Defendant was charged with Second Degree DWI because he had one prior DWI within ten years of the current offense and he also had a child in the vehicle at the time of the current offense.  The Defendant was allowed to plead guilty to Third Degree DWI (child endangerment) and then he sought the judicial return of his vehicle.

It was the Defendant's position that since he had not been convicted of a designated forfeiture offense (i.e. Second Degree DWI) he was entitled to the vehicle's return. The State, however, argued that although a conviction of a designated offense creates a presumption of judicial forfeiture, such a conviction is not required under the statute. Instead, the State claimed that section 169A.63, subdivision 9(f), prohibits forfeiture only if the driver is not convicted of any charge. 

The Minnesota Supreme Court (fortunately) rejected the State's position and affirmed the Minnesota Court of Appeals ruling which had ordered the return of the vehicle.  The Minnesota Supreme Court in its ruling noted:

"It is undisputed that respondent made a timely demand for a judicial determination under subdivision 8(f). Thus, the administrative proceeding under subdivision 8 was converted into a judicial proceeding under subdivision 9, and subdivision 9 governs the judicial forfeiture proceeding. 

Subdivision 9(f) provides that when forfeiture is based on the commission of a designated offense and the person charged with the designated offense appears in court as required and is not convicted of the offense, the court shall order the property returned to the person legally entitled to it upon that person’s compliance with the redemption requirements of section 169A.42. Minn. Stat. § 169A.63, subd. 9(f). Under subdivision 9(f), when a person charged with a designated offense appears in court and is not convicted of the designated offense, “the court shall order the property returned to the person legally entitled to it” provided that the redemption requirements of section 169A.42 are satisfied. The word “shall” has been interpreted as mandatory."

*     *     *

"It is certainly true that the burden of proof imposed upon the State for vehicle forfeiture is higher for a judicial forfeiture than for an administrative forfeiture. But it is within the province of the Legislature to provide for different standards for vehicle forfeiture in administrative and judicial proceedings. An administrative forfeiture under subdivision 8 requires only a showing that the vehicle was “used to commit a designated offense or used in conduct resulting in a designated license revocation . . . .” In contrast, judicial forfeiture under subdivision 9(f) provides that when the person charged with the designated offense “appears in court as required and is not convicted of the offense, the court shall order the property returned”.

The Minnesota Supreme Court in Patino therefore held that since the defendant had not been convicted of the designated forfeiture offense, he was entitled to the return of the vehicle.

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 Minnesota Court of Appeals decision of State v. Hammann, (Unpublished, decided August 1, 2012) which stands for the proposition that it's not a refusal to submit to alcohol testing if you don't ask the right question.

In  Hammann, the Defendant was arrested for DWI and was taken to the Minnetonka Police Department.  He was read the Minnesota Implied Consent Advisory and was asked to submit to a urine test.  The Defendant asked the officers what types of tests the department offered, and an officer responded, "We're gonna offer you urine or blood...If you won't do urine we're gonna ask you for blood and that's it."  Mr. Hammann then repeatedly asked the officers about various aspects of the implied-consent process and unsuccessfully tried multiple time to call his brother and his attorney.

Approximately 48 minutes after the process began, an officer asked Mr. Hammann multiple times within the course of one minute whether he would take a urine test, and Hammann never directly responded. The officer then stated, "Jerald I will consider you to have refused the test at this point".  The Defendant immediately responded, "I am totally willing to take whatever test is appropriate. " But the officer deemed the Defendant to have refused the test.

The Defendant was convicted of 3rd Degree Refusal to Submit to Testing but on appeal, the Minnesota Court of Appeals reversed the conviction noting:

“Any person who drives . . . a motor vehicle within this state . . . consents . . . to a chemical test of that person’s blood, breath, or urine for the purpose of determining the presence of alcohol,” and “[i]t is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine.” Minn. Stat. §§ 169A.20, subd. 2, 169A.51, subd. 1(a) (2010)." 

"The peace officer who requires a test pursuant to this section may direct whether the test is of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered. 

Minn. Stat. § 169A.51, subd. 3 (2010) (emphasis added)." 

***

The plain language of the statute only allows action to be taken against a person if that person refuses to take a blood or urine test and an “alternative test was offered.” Minn. Stat. § 169A.51, subd. 3. Here, an officer at the beginning of the implied-consent process told appellant: “If you won’t do urine we’re gonna ask you blood and that’s it.” But that statement is not an offer for alternative testing. In the cases where this court has considered a person to have refused chemical testing, the facts suggest that an officer gave the person the option of choosing a blood or urine test. See State v. Ferrier, 792 N.W.2d 98, 100 (Minn. App. 2010) (“[Officer] then asked appellant if she would take a blood or urine test, and appellant chose to take a urine test.”), review denied (Mar. 15, 2011); Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 257 (Minn. App. 2000) (“[Officer] then asked Busch if he would take a blood, urine, or breath test, but Busch refused to reply.”).

The Minnesota Court of Appeals in Hammann then held that because the Defendant was not offered an alternative test as required by statute, his test refusal conviction must be reversed.

Moral of the Story:  If they don't ask, it's not a crime to not tell.