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

The Minnesota DWI Case Of The Week is State v. Berry, (decided January 26, 2015, Minnesota Court of Appeals, Unpublished) which stands for the proposition that when it comes to vehicle stops, the police may intrude upon your right to be left alone if they are half-assed certain that something is amiss. Argh!!!

In Berry, a White Bear Lake police officer heard loud noises and revving engines, coming from two motorcycles traveling northbound on White Bear Avenue. The officer confirmed that the violation came from these two motorcycles because there was no other traffic on the road. The officer then stopped the motorcycles in the parking lot of a nearby sports bar because the noise was in violation of a state statute and a city ordinance relating to muffler or motor vehicle noise.

The police officer approached the two motorcyclists and asked which one was making all the loud noise.  Mr. Berry admitted that the loud noise was coming from his "after-market" motorcycle.  The officer then noticed Mr. Berry appeared to be intoxicated and after running him through some field sobriety tests, arrested him for DWI.

The District Court in this case upheld the validity of the stop and on appeal, Mr. Berry argued that the stop of his motorcycle violated the Fourth Amendment because the officer lacked reasonable suspicion to conduct a stop when it was clear that he did not know if the loud exhaust was coming from appellant's motorcycle or from the other motorcycle. Appellant asserted that without an individualized suspicion of criminal activity on appellant's part, the officer had "nothing more than a gambler's hunch."

The Appellant relied upon Ascher v. Comm'r of Pub. Safety, a supreme court case declaring unconstitutional the use of temporary roadblocks to stop large numbers of drivers in the hope of discovering evidence of alcohol-impaired driving. 519 N.W.2d 183, 187 (Minn. 1994) (A case argued and won by yours truly). 

In Ascher, the supreme court held that such roadblocks violated the Minnesota Constitution because the state failed to articulate a persuasive reason for dispensing with the individualized suspicion requirement.

So one would think that based on Ascher, the Appellant in this case had a pretty good argument. Alas, the Minnesota Court of Appeals did not agree, stating:

"We conclude that the basis for the stop in this case may have been 'minimal,' but the officer did testify that he stopped the motorcycles after hearing a violation of the traffic laws and the district court credited the officer's testimony. The officer's belief that one of two motorcycles was violating the noise laws is reasonable and sufficient to make the suspicion 'individualized,' in that the officer was not conducting a roadblock or stopping a large number of vehicles to see if one was violating the law. Under these circumstances, the district court did not err in holding the stop was lawful and supported by a reasonable, articulable suspicion of criminal activity." 

Moral Of The Story: If you are going to drink and drive, keep quiet about it.

Posted by Minneapolis DWI Lawyer, F. T. Sessoms
www.sessoms.com
 

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

The Minnesota DWI Case Of The Week is State v. Menzie, (decided December 1, 2014, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a prosecutor can say just about anything at trial and get away with it!

In Menzie, the defendant testified in his own defense at his DWI trial.  He testified that he was not impaired at the time of his arrest as he had only consumed two drinks. He also admitted having a felony conviction within the past ten years and stated that all of his convictions were the result of "getting harassed by the police".

The prosecutor then asked the defendant if he recalled an encounter with the police on September 18, 2011 and whether he recalled "leaving after two days of a jury trial" in a criminal case resulting from that encounter. The defendant denied any recollection of these events.

During closing arguments, the prosecutor referenced Menzie's purported flight from previous court hearings three times, and claimed the defendant had a DWI refusal conviction from 2000, including an implication that the allegations could be proved by reference to information in official records.  Defense counsel did not object to any of these references.

On appeal, Menzie claimed that the prosecutor's repeated questioning and references during closing arguments to the allegation that Menzie had fled from a previous prosecution was plain error.  The Court of Appeals agreed (to a point) stating:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show that the person acted in conformity therewith on a particular occasion." State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006) (citing Minn. R. Evid. 404(b)). "Further, such evidence may not be introduced if its probative value is substantially outweighed by its tendency to unfairly prejudice the factfinder." Id. (citing Minn. R. Evid. 403). When the state seeks to introduce prior-bad-acts evidence, it must provide notice, "clearly indicate what the evidence will be offered to prove," show "clear and convincing evidence that the defendant participated in the prior act," demonstrate that the evidence is "relevant and material to the state's case," and the district court must determine that the probative value of the evidence is not "outweighed by its potential prejudice to the defendant." Id. at 686.

The prosecutor here met none of the requirements for introducing evidence that Menzie had fled from a prior prosecution. He provided no notice of an intention to introduce evidence of Menzie's purported flight, he did not explain the purpose of the evidence or show how such evidence would be relevant to the state's case, and he produced no evidence at all—let alone clear and convincing evidence—to counter Menzie's denials. In the absence of evidence, the prosecutor resorted to insinuations of evidence, implying that proof could be found in state databases by typing in Menzie's name."

But instead of reversing the conviction for misconduct, the Minnesota Court of Appeals goes on to hold, "We find it implausible that the prosecutor's errors affected the verdict...as the evidence against Menzie was overwhelming.  The trooper conducted a proper stop after observing Menzie weaving. The trooper obtained a consensual breath sample indicating that Menzie was under the influence of alcohol. And Menzie's driving record showed three prior alcohol-related license revocations. These facts alone support each of the elements of Menzie's conviction, and it is unlikely that the prosecutor's improper "digs" to Menzie's purported flight or his isolated reference to a 2000 test-refusal conviction had any effect on the jury's deliberations. We therefore conclude that the prosecutor's misconduct did not affect the verdict, and we decline to reverse Menzie's conviction."

Moral of the Story: It is a prosecutor's duty to do justice.  But if he doesn't, the court won't hold him accountable.

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

The Minnesota DWI Case Of The Week is State v. Rossiter (Decided November 3, 2014, Minnesota Court of Appeals, Unpublished), which stands for the proposition that it is not an abuse of discretion to amend the complaint to charge the proper DWI.

In Rossiter, a Hennepin County Deputy Sheriff was on patrol on Fish Lake in Maple Grove. He observed another boat pass his own at a high rate of speed. The boat caught his attention because a city ordinance does not permit a wake on Fish Lake after sunset, which had occurred about ten minutes earlier. Five minutes later, he again observed the boat travelling at a high rate of speed, which he believed was a violation of the no-wake-zone ordinance. The Deputy activated his lights and stopped the boat.

The  driver and sole occupant of the boat was the Defendant, Nicholas Rossiter.  The Defendant appeared to be under the influence and was subsequently asked to submit to a urine test which revealed an alcohol concentration level of .09.

At trial, the State moved amend the complaint to §169A.20 (1a)(5) from §169A.20(1)(5) as the original complaint did not charge the DWI under the motorboat section of the statute.

The Defendant objected saying the complaint was amended to add a different charge and that he was prejudiced by the amendment as he had already admitted an element of the new offense in the opening statement.

On appeal, the Minnesota Court of Appeals affirmed the conviction, stating:

"Minnesota Rule of Criminal Procedure 17.05 states that a court may allow a complaint to be amended at any time before a verdict "if no additional or different offense  is  charged and if the  defendant's  substantial rights  are not prejudiced."

"A 'different offense' is charged if an amendment affects an 'essential element' of the charged offense." Here, the elements do vary: subdivision 1 refers to operating motor vehicles except for motorboats, and subdivision la refers to operating motorboats. Minn. Stat. § 169A.20, subds. 1, la.

But this difference is immaterial. Under the "Driving While Impaired" statutes, a motorboat is considered a motor vehicle. Minn. Stat. § 169A.03, subd. 15 (2012). The language between the subdivisions and their applicable clauses varies only in that motorboats are specifically included in subdivision la rather than subdivision 1. Minn. Stat. § 169A.20, subds. 1, la. A minor variation in the language of subdivisions does not mean that a new or different offense has been charged."

"We are also unpersuaded that the amendment had any effect on Rossiter's trial tactics. Rossiter was aware of the charges and was prepared to try a case of operating a motorboat with an alcohol concentration above 0.08. Although Rossiter conceded in his opening statement that he was driving a motor boat, the focus of the statement and his defense was on the validity of the testing procedures, not the type of motor vehicle he was driving when stopped. Rossiter could not explain how his opening statement would have changed had the crime been charged under the proper subdivision. Because he was the sole person in the boat when it was stopped, it is difficult to imagine a successful defense that contested his operation of a boat. As the district court told Rossiter when it allowed the amendment, this case was the exact case and the exact fact situation Rossiter was prepared to try. Therefore, Rossiter was not prejudiced by the amendment."

Moral of the Story: A minor variation does not prohibit the amendment of the complaint.

   

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

The Minnesota DWI Case Of The Week is State v. Roehler (Decided October 6, 2014, Minnesota Court of Appeals, Unpublished), which stands for the proposition that the police must attempt to obtain a search warrant before obtaining a non-consensual blood draw.

In Roehler, the Defendant was involved in a head-on car accident on Highway 34, approximately five miles east of Park Rapids, Minnesota. The Defendant's car crossed over the centerline of the highway and collided with a van traveling in the opposite direction. The driver of the van was killed instantly, and the van's other two passengers, the driver's daughter-in-law and grandchild, were injured. The Defendant was also seriously injured.

While in the ambulance, a state trooper noticed an odor of alcohol coming from the Defendant and requested that the nurse draw a sample of the Defendant's blood.  The trooper did not have a warrant authorizing the blood draw.  The blood was withdrawn at 6:31 p.m. through an intravenous line that was also being used to treat the Defendant with fluids, and as a result, the sample was diluted.

Another blood draw was taken at approximately 8:58 p.m. at the direction of the trooper shortly before the Defendant went into surgery.  The trooper did not obtain a warrant for this blood draw.

The Defendant was charged with eleven criminal counts, including three counts of criminal vehicular homicide, six counts of criminal vehicular operation, and two counts of DWI. 

At trial, Donna Zittel, a forensic toxicology specialist at the Bureau of Criminal Apprehension (BCA) crime lab, testified that both the 6:31 p.m. blood draw and the 8:58 p.m. blood draw showed a BAC of .05., but she also testified that because the 6:31 p.m. blood draw may have been diluted, the sample was not valid for use in reverse extrapolation to determine appellant's BAC at the time of the accident. Zittel's report based on the 8:58 p.m. blood draw was admitted into evidence and indicated that appellant likely had a BAC of between .08 and .14 at the time of the accident. Zittel also testified that the rate at which alcohol diminishes in the blood is not affected by drugs or trauma.

The Defendant was convicted on all eleven counts and on appeal, argued that the blood extrapolation evidence should have been suppressed as the police made no effort to obtain a search warrant for the blood samples.  The Minnesota Court of Appeals agreed ruling:

"The blood draw at 6:31 p.m. may have been taken under exigent circumstances: given the uncertainty and chaos at the accident scene and the necessity of transporting appellant to an out-of-state hospital, the totality of the circumstances supports a finding of exigency. The 8:58 p.m. blood draw does not present the same exigencies. This test was taken without a warrant nearly one-and-a-half hours after the trooper arrived at the Fargo, North Dakota, hospital and nearly three hours after the accident. While the warrant process may be more complicated when it involves interstate law enforcement, it is not impossible in view of modern technology.

In McNeely, the Supreme Court stated that the

proposed per se rule [that dissipation of alcohol creates an exigent circumstance] . . . fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple.

Applying these principles, although the 6:31 p.m. draw may support a finding of exigent circumstances, the 8:58 p.m. draw does not. The state offered no explanation why it could not obtain a warrant before conducting the later blood draw.

We therefore conclude that the district court erred by refusing to suppress the results of the 8:58 p.m. blood draw because the state failed to show under the totality of the circumstances that exigent circumstances prevented the police from obtaining a warrant. Further, the record reflects that the 6:31 p.m. blood draw was tainted and was used at trial only to confirm the results of the expert's extrapolation from the 8:58 p.m. draw results. Thus, the evidence at trial is insufficient to sustain appellant's convictions based on having a BAC of more than .08.

Finally, we conclude that the erroneous admission of the 8:58 p.m. blood draw results was not harmless. "When an error implicates a constitutional right, we will award a new trial unless the error is harmless beyond a reasonable doubt. An error is harmless beyond a reasonable doubt if the jury's verdict was surely unattributable to the error." State v. Davis, 820 NW.2d 525, 533 (Minn. 2012) (citation and quotations omitted). The state's case rested heavily on the expert's extrapolation from the 8:58 p.m. blood draw and admission of that evidence was highly prejudicial to the Defendant. Further, the BAC evidence may have contributed to the jury's verdict on the charges based on gross negligence rather than on BAC; a jury could find that test results reflecting intoxication are persuasive evidence of gross negligence. Because of this, we cannot conclude that introduction of the BAC evidence was harmless beyond a reasonable doubt, and we must reverse and remand for a new trial."

Moral Of The Story: If the police want to draw your blood, tell them to get a warrant.

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. Stavish, (Issued September 2, 2014, Minnesota Court of Appeals, Published) which stands for the proposition that when a police officer is responsible for procuring a blood sample from an individual who has stated that he was the driver of a vehicle involved in a probable criminal vehicular homicide and who has already been transported to a hospital, exigent circumstances exist that justify the police officer's procuring the blood sample without a search warrant.  

This case is nonsense as under the facts of this case, the court will always find exigency.

On 18 June 2012, law-enforcement agencies and an ambulance were summoned to the site of a one-vehicle rollover crash in Nicollet County. When they arrived, they saw a truck with numerous beer cans in and around it; a dead body later identified as that of B.L.; and respondent Derek Stavish, who needed medical attention. Respondent said that he had been driving.

A state patrol sergeant arrived after the ambulance left. He was instructed to obtain a blood sample from respondent and told that respondent was on his way to the New Ulm hospital in Brown County and might be airlifted to a more distant trauma center. The sergeant drove to the hospital, where he found respondent conscious and receiving care. At 11:18 p.m., the sergeant asked hospital staff to take a blood sample from respondent

The test of the sample showed respondent's blood-alcohol count (BAC) to be .20. Respondent was charged with three counts of criminal vehicular operation resulting in death, two counts of fourth-degree driving while impaired, one count of reckless driving, and one count of careless driving.

About 10 months later, in April 2013, the Supreme Court released Missouri v. McNeely, 133 S. Ct. 1552 (2013) (holding that metabolization of alcohol in the bloodstream is not per se an exigent circumstance that justifies the warrantless taking of blood samples and that exigency must be determined based on the totality of the circumstances). Respondent then moved to suppress the evidence of his BAC, alleging that the blood sample had been taken without a warrant in violation of McNeely.

The district court suppressed the test result on the ground that the exigent-circumstances exception to the warrant requirement did not apply.

On Appeal, the Minnesota Court of Appeals reversed, stating:

"In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant." McNeely, 133 S. Ct. at 1568. The district court relied on this language and determined that "the [s]tate [had] not carried its burden of proving the existence of exigent circumstances that justified [the sergeant's] ordering the blood draw [from respondent] without a warrant." But McNeely does not hold that "the natural dissipation of alcohol in the bloodstream" is never an exigent circumstance; it rather holds "that exigency in [the drunk-driving] context must be determined case by case based on the totality of the circumstances".

"Here, the sergeant was faced with a probable criminal vehicular homicide in one county, a probable perpetrator in need of medical treatment who had been transported to a hospital in another county, and the possibility that the perpetrator would be airlifted to a trauma center in a third county. Because BAC must be measured within two hours of the time of driving, see Minn. Stat. § 169A.20, subd. 1(5) (2012), and because the medical treatment respondent would receive at the hospital could affect or invalidate his BAC, the sergeant was under time pressure to obtain respondent's blood sample. He was finally able to do so at 11:18 p.m., 50 minutes after law enforcement was first notified of the accident, and thus more than 50 minutes after the time respondent was driving."

"Unlike the situation in McNeely, several significant factors together with the inherent evanescence of BAC evidence indicate that exigent circumstances existed to procure a sample of respondent's blood without a warrant."

The problem with the Court of Appeals Ruling is it fails to identify any medical procedure that would effect the BAC and  the passage 50 minutes does not "an exigency make".  The officer had plenty of time to obtain a telephone search warrant under the 2 hour rule and the Appellate Court's failure to uphold the district court bodes ill for the Fourth Amendment search warrant requirement. 

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. Rice, (Issued August 11, 2014, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you are drunk and make it home, do not answer the door!   

In Rice, Sergeant Daniel Wilson of the Maple Grove Police Department received a dispatch informing him that three callers reported that a white Chevy SUV was driving erratically and ran over a road sign, and that the driver threw a champagne bottle out the window.  One caller reported seeing the vehicle pull into a garage, and all three callers identified the license-plate number.  

Sergeant Wilson ran the reported plate and arrived at the registered address, which matched the location where the caller saw the vehicle enter a garage. 

Respondent Becky Ann Rice's husband answered the door, and Sergeant Wilson asked if anyone at the house owned a white Chevy SUV. Husband said yes, and stated that Rice had probably been driving it.

Sergeant Wilson asked if Rice was home; the parties dispute how husband responded.

Then, the following exchange ensued:

SERGEANT WILSON: Ok, I'll be honest with you. I'm following up on a traffic complaint. Ok? I have reason to believe that the vehicle's here. OK? Somebody who just called watched the vehicle arrive home. So, is that correct or is that not correct? If you're lying to me.

HUSBAND: I, I have no knowledge ....

SERGEANT WILSON: Hear me out, if you're lying to me, OK, I will charge you criminally with lying to me. Ok, cause this is a criminal investigation right now.

The Husband led Sergeant Wilson through the house and into the attached garage, where they found the SUV and Rice slumped over in the driver's seat.   Sergeant Wilson arrested Rice for driving while under the influence of alcohol.

Rice moved to suppress the evidence obtained from the garage on the grounds that husband's consent to the search was not voluntary. The district court granted Rice's motion, finding that Sergeant Wilson's threat to charge husband with a crime was coercive and that Sergeant Wilson obtained husband's consent only in response to the threat of potential arrest. The state appealed the District Court but the Minnesota Court of Appeals ruled in favor of Ms. Rice stating:

“The United States and Minnesota Constitutions prohibit unreasonable searches and seizures and, with few exceptions, warrantless searches are unreasonable. But a warrant is not necessary if a person voluntarily consents to a requested search. The state bears the burden of demonstrating consent was voluntarily given. Whether consent is voluntary under the totality of the circumstances is a question of fact, which we review for clear error.”

"The totality of the circumstances includes "the nature of the encounter, the kind of person the [consenter] is, and what was said and how it was said." Consent is voluntary if "a reasonable person would have felt free to decline the officer['s] requests or otherwise terminate the encounter."  But "[m]ere acquiescence on a claim of police authority or submission in the face of a show of force" is not voluntary consent. (citations omitted)”

“…The record supports the district court's finding that husband consented to the search only in response to the threat of potential arrest. The recording reveals that the request to search came within 15 seconds of Sergeant Wilson's two references to husband's possible lying and threat to criminally charge husband if he was doing so. Husband was not told that he could withhold consent and stated that he let Sergeant Wilson in the garage because he felt that he would otherwise be arrested."

"Second, while Sergeant Wilson did not brandish his weapon during the brief discussion, the record shows that he did assert his authority. Sergeant Wilson was in uniform and carried a gun. And the officer's language, although respectful, was persistent and authoritative during the encounter.” 

“Ultimately, the district court carefully reviewed the evidence, expressly evaluated the testimony of the witnesses, and found that "the totality of the circumstances make clear that Mr. Rice's acquiescence to the search was obtained only in response to the threat of potential arrest." We defer to a district court's credibility determinations.”

“Accordingly, the district court did not err by suppressing the evidence.”

Moral of the Story: When The Police Throw Their Weight Around, Sometimes The Case Gets Thrown Out Of Court!

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