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

The Minnesota DWI Case of the Week is State v. Cunningham (Decided July 28, 2014, Minnesota Court of Appeals, Unpublished), which stands for the proposition that you are not "seized" under the Fourth Amendment if the police are doing a "welfare check".  The case is absurd.

In Cunningham, the police came upon the Defendant's apparently unoccupied vehicle as it was parked with its engine running and lights on.  The vehicle was located in a private parking lot and the officers drove up behind Cunningham's vehicle without activating their lights or siren.  The officers approached the car from either side and shone their flashlights into it, but they could not see inside because of heavy tinting on the vehicle's windows.  The officers then shone their lights into the vehicle's windshield and saw Cunningham and his passenger who appeared to be passed out.  After awaking Cunningham, the officers determined he was under the influence and placed him under arrest for third-degree dwi.

On appeal, the Defendant argued he was "seized" when the officers drove up behind his vehicle.  Cunningham claimed that since the police did not have any suspicion of criminal activity at the time of this seizure, all of the evidence concerning his intoxication and arrest was illegally obtained and must be suppressed.

The Court of Appeals disagreed noting, "A seizure occurs if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions or free to terminate the encounter"...."Not all contacts between police and an individual constitute a seizure. A person sitting in a parked car is not seized when an officer merely walks up to the person and asks questions.  But when police partially block a vehicle with a squad car, activate emergency lights, pound on the vehicle's window, and open the driver's door, that conduct amounts to a seizure".

So one would think from the above language of the Court's opinion that Mr. Cunningham was going to win.  After all, the police stopped their vehicle behind his and flashed their lights throughout his car.  

But the Court of Appeals goes on to rule that, "When an officer activated a squad car's emergency lights and pulls up behind a vehicle that is parked on a highway shoulder, that officer would not have communicated to a reasonable person that the officer was attempting to seize the person.  A reasonable person would have assumed that the officer was not doing anything other than checking to see what was going on and to offer help if needed. (Citing State v. Hanson, Minn.Sup. Court 1993) The same sort of welfare check was initiated by the officers here when they parked behind the vehicle, approached to look inside and awakened the sleeping or unconscious occupants."

The Court of Appeals in this case fails to appreciate the difference between Mr. Cunningham and State v. Hanson.  In Hanson, the defendant was stuck by the side of a busy highway in a broken down car.  Here the Defendant was lawfully parked in a private parking lot.  People park in private spaces all the time and there is no need to check on their "welfare".  And even if the police were there to check on the welfare of an "apparently unoccupied vehicle", the police could have done so without first initiating a seizure.

Moral Of The Story: If You Are Going To Get Drunk, Sleep It Off Outside Your Car.

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 Kulla v. Commissioner of Public Safety (Decided June 23, 2014, Minnesota Court of Appeals, Unpublished), which stands for the proposition that if an officer does not observe any driving conduct, he better investigate all the facts and circumstances before arresting an individual for DWI.

In Kulla, the Hastings Minnesota Police were called to the Defendant's home in response to a report of domestic abuse.  The Defendant was located in one of the bedrooms of the residence and he told the police that he had driven home from a bar approximately one hour before they arrived at his home.  The police observed that the Defendant had slurred speech, bloodshot and watery eyes and the odor of alcohol coming from his breath (i.e. the holy trinity of cop observations).

Mr. Kulla told the police he had had "plenty to drink" and that he had consumed one to two drinks after arriving at his residence.  The officer did not inquire as to how many drinks the Defendant had consumed at the bar.  The officer did not observe any driving conduct nor did he conduct any field sobriety test at the scene.

The officer arrested Mr. Kulla for DWI based on his observations of the defendant's level of intoxication and based on the knowledge the Defendant had been home for only an hour and had consumed some amount of alcohol.  

The District Court ruled that the officer had probable cause to arrest Mr. Kulla for DWI. But on appeal, the Minnesota Court of Appeals reversed and rescinded the license revocation stating:

"Probable cause to arrest for DWI and to require a chemical test exists when there are facts and circumstances known to the officer which would warrant a 'prudent man' in believing that the individual was driving or was operation or was in physical control of a motor vehicle while impaired. The probable cause standard asks whether the totality of the facts and circumstances known would lead a reasonable officer to entertain an honest and strong suspicion that the suspect has committed a crime. This is an objective inquiry that is conditioned by the officer's own observations, information, and experience".  

"We recognize that, for a probable-cause determination under the implied-consent statute, an officer need not observe a defendant driving. And a driver's admission of alcohol consumption, when combined with other indicia of intoxication, may establish probable cause. But here, the connection between defendant's admission that he drove home from the bar and his appearance of intoxication an hour later is simply to attenuated to establish probable cause to arrest him for DWI...."

"...these circumstances necessitated further investigation, such as asking the defendant how many drinks he had before driving home, or questioning the victim, with whom the defendant had been drinking at the bar.  Because no such investigation occurred, and because the record lacks additional evidence about appellant's alcohol consumption or level of intoxication while driving, the district court erred by concluding that probable cause existed to arrest him for DWI".

MORAL OF THE STORY: If the police work is sloppy, the client should go free!!

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

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

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

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

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

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

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

The Minnesota DWI Case Of The Week is State v. St. John (A Published Decision, Minnesota Court of Appeals, issued May 19, 2014) which stands for the proposition that Third Degree DWI is not a lesser included offense of Second Degree Refusal and, for sentencing and conviction purposes, the Third Degree DWI offense is more serious than the Second Degree DWI Refusal.

In St. John, the Defendant had one prior DWI within the past ten years when she was arrested for the current DWI offense.  The Defendant refused to submit to testing at the police station and was subsequently charged with Third Degree DWI (i.e. DWI with one prior offense) and Second Degree DWI Refusal (i.e. Refusal with one prior DWI).

The Defendant entered a plea of guilty to both the Second Degree DWI Refusal and the Third Degree DWI.  At sentencing, the Defendant's attorney argued that the Defendant could be convicted of only one offense but not both.  The District Court agreed and held that Third Degree DWI is a lesser included offense of Second Degree DWI and sentenced the Defendant for the Second Degree offense.

On Appeal, the Minnesota Court of Appeals reversed the District Court in part, finding that the District Court erred when it held that Third Degree DWI was a lesser included offense of Second Degree Refusal.  The Court of Appeals noted at in order for an offense to be a "lesser included" one, all of the elements of the "lesser" offense MUST BE contained in the elements of the "greater" offense.

The Court of Appeals pointed out that in order to be convicted of Third Degree DWI, the State must prove beyond a reasonable doubt that the Defendant was under the influence at the time of driving.  But Second Degree Refusal only requires that the officer have "probable cause" to believe the Defendant was under the influence at the time of the refusal.  Because an officer could have probable cause to believe that a driver was under the influence of alcohol even though the driver was not, in fact, under the influence of alcohol, a driver could commit the second-degree test-refusal offense without committing the third-degree driving-under-the-influence offense.  Thus the District Court erred when it held that the Third Degree DWI was a lesser included offense of Second Degree Refusal.

The Minnesota Court of Appeals further held that it was error to sentence the Defendant on the Second Degree DWI count instead of the Third Degree DWI offense.  

The Court of Appeals noted that in State v. Simon, the Minnesota Supreme Court held that the offenses of driving under the influence and test refusal, "arose from a single behavioral incident and therefore, under Minnesota Statute § 609.035 the driver may only be sentenced for one offense".  But which one?

Minnesota Statute § 609.035 contemplates that the defendant will be sentenced for the "most serious" of the offenses arising out of the single behavioral incident because imposing up to the maximum punishment for the most serious offense will include punishment for all offenses.  In determining which offense is the most serious, the court should first look to the maximum sentence for each offense.  Where, as here, the maximum penalties are the same, the court must then look to the nature of the offenses to determine which is the most serious.

In this case, the Court of Appeals found that the Third Degree DWI was more serious than the Second Degree Refusal offense and held that the Defendant should have been sentenced to Third Degree DWI.  The Court reasoned that, "A person driving while under the influence of alcohol directly threatens public safety, but a driver in police custody who refuses to submit to a chemical test is not a threat to public safety".  The driving under the influence offense was the "essence" of her criminal conduct as the driver could not have committed the test refusal offense if the officer did not first believe that the Defendant was driving under the influence.  Therefore, the district court should have imposed a sentence for the driving under the influence offense rather than the second degree refusal offense.

THIS CASE IS HUGE because under Patino v. One 2007 Chevrolet, the Minnesota Supreme Court held that a person must be convicted of a Second Degree DWI offense before forfeiture of a motor vehicle may occur.  A conviction does not occur until the Defendant is sentenced.  So if a prosecutor charges a Defendant with Second Degree Refusal and Third Degree DWI, the defendant is better off pleading to both counts as the conviction will only be for the Third Degree DWI and any forfeiture of the motor vehicle must be dismissed!

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

The Minnesota DWI Case Of The Week is State v. Williams (Unpublished, Minnesota Court of Appeals, issued April 14, 2014) which stands for the proposition that if you are going to drive drunk or without a license, it is best to be operating a vehicle in perfect condition.

In Williams, the Defendant was stopped by the police because the center brake light on the Defendant's vehicle was illuminated at only one-third of its capacity.  The Defendant successfully challenged the stop and got his case dismissed in the district court on the grounds that the officer did not have a constitutionally sufficient basis to make the initial stop of his vehicle.  

Alas, on appeal the Minnesota Court of Appeals reversed the district court noting that Minnesota Statute 169.57, subd. 1 requires that all brake lights on a motor vehicle be "maintained in good working condition".  Mr. Williams argued that he had not violated the statute because while his center brake light was only partially illuminated, it was in "good working condition" because the arresting officer could observe that it lit up when the brakes were applied.

The Minnesota Court of Appeals disagreed with Mr. Williams stating, "We do not agree that the statute merely commands that brake lights be perceptible.  The plain meaning of "good working condition" does not mean a brake light functioning at one-third of its capacity.  Nor does "good" working condition mean "adequate" or "sufficient" working condition." Because the Defendant's brake light was not in good working condition, the District Court erred in suppressing the evidence.

MORAL OF THE STORY: You must be dim bulb to drive a car that is not in good working condition!

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

The Minnesota Case of the Week is State v. Anderson, (Unpublished, Minnesota Court of Appeals, issued March 3, 2014) which stands for the proposition that if you are going to drive drunk, it is best not to assault the officers seeking to place you under arrest!

In Anderson, the Defendant was stopped by the State Patrol for speeding.  When the trooper approached the driver's-side window, he smelled the odor of alcohol, observed the Defendant's speech was slurred and that Defendant's eyes were bloodshot and watery (i.e the holy trinity of state trooper dwi symptoms).  The trooper asked Mr. Anderson to get out of his vehicle to perform some field sobriety tests.  In response, Mr. Anderson stated, "F*ck you" and drove off at a high speed.

The state trooper gave chase and eventually Mr. Anderson lost control of his vehicle and crashed his car into a center median.  The Defendant then got out of his car and charged the state trooper.  Mr. Anderson punched the state trooper on the side of the head before being taken to the ground and placed under arrest.

The Defendant was charged, convicted and sentenced to 60 months in prison for Felony DWI, Fleeing a Police Officer and Fourth Degree Assault.  On appeal, the Defendant argued that the trial court erred by imposing sentences on all three offenses because the charges all arose from the "same behavioral incident".

The Minnesota Court of Appeals rejected the Defendant's challenge and affirmed the District Court noting that: "As a general rule, if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses. Minn. Stat. § 609.035, subd. 1 (2010). Accordingly, if a person is charged with multiple offenses, a district court must determine whether the offenses resulted from a single behavioral incident, in which event multiple punishments are prohibited".  

The purpose of the statute is to "protect a defendant convicted of multiple offenses against unfair exaggeration of the criminality of his conduct".  And in determining whether multiple offenses arose from a single behavioral incident, the Court utilizes a two-part test:

(1)  Did the offenses occur at substantially the same time and place, and;

(2)  Did they all arise from a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.

In this case, the Court of Appeals held that the Defendant was correct that the three offenses, "occurred at substantially the same time and place".  But the Court of Appeals then found the Defendant had failed to meet the second part of the test (i.e. the offenses did not arise from "a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment").

The Appellate Court found that there were distinct interruptions that broke the continuity of the Defendant's conduct.  Anderson was engaging in the first offense, DWI when he was stopped by the state trooper.  The Defendant had pulled over the to side of the road and was initially cooperative with the trooper, thereby interrupting his criminal activity.  But after speaking to the trooper for several minutes, Anderson decided to flee, thereby committing the second offense.  After crashing his car and ending the chase (i.e. the second offense), the Defendant chose to then commit the third offense, assaulting a peace officer.  Because Anderson's course of conduct was interrupted twice, the Court of Appeals held that the offenses did not arise from "continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment".  Therefore, the offenses did not arise from a single behavioral incident and multiple sentences were properly imposed by the District Court.

Moral Of The Story:  Drinking can make you mean.

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

The Minnesota DWI Case Of The Week is State v. Drum, (Minnesota Court of Appeals Unpublished Opinion issued January 27, 2014) which stands for the proposition that simply reading the Minnesota Implied Consent Advisory to a person under arrest does not render "involuntary" his or her consent to the warrantless search of the breath, blood or urine.

In Drum, the Defendant was arrested for DWI and was read the Minnesota Advisory, which states in pertinent part, "Minnesota law requires you to submit to testing" and, "Refusal to submit to testing is a crime."  The Defendant subsequently submitted to testing and his breath test result was a .14

The Defendant filed a motion to suppress the test result arguing that his consent to testing was not voluntary as the Minnesota Advisory coerced him into taking the test.  The District Court agreed with the Defendant and threw out the test result but on appeal, the Minnesota Court of Appeals reversed, stating:

"In Brooks, 838 N.W.2d at 570-72, the Minnesota Supreme Court held as a matter of law that the criminal test-refusal penalty in the implied-consent law is not coercive. Although we look to the totality of the circumstances to determine consent, Dezso, 512 N.W.2d at 880, nothing in this record reveals further circumstances that would lead us to conclude that Drum’s consent was coerced. We therefore hold that Drum voluntarily consented to the breathalyzer test at issue in this case, and reverse and remand for proceedings consistent with this opinion and Minnesota law."