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

The Minnesota DWI Case Of The Week is Pence v. Commissioner of Public Safety (Decided August 17, 2015, Minnesota Court of Appeals, Unpublished), which stands, once again, for the proposition that if you want to talk to a lawyer prior to testing, you have to actively attempt to reach one.

In Pence, the Defendant was arrested for DWI and was subsequently informed, at the police station, of his right to consult with counsel prior to alcohol testing.  When Mr. Pence told the police that he DID wish to speak with a lawyer, he was provided with a phone and telephone books. 

Mr. Pence did not open the telephone books or pick up the telephone. The police informed him, several times, that he had only a limited amount of time to reach an attorney.  Mr. Pence eventually asked the police for assistance in contacting an attorney he described as "Mr. Sheridan".  

The police told Mr. Pence they would not assist him in finding a particular attorney's telephone number and that Pence needed to use the phone books himself to find the attorney's number.  Mr. Pence did not use either the telephone books or the telephone and after 21 minutes his right to contact counsel was terminated.

Mr. Pence subsequently refused to submit to testing and was charged with gross-misdemeanor test refusal.

On appeal, Mr. Pence argued that the police have a duty to assist in the vindication of the right to counsel and when they refused to attempt to help locate the number of a particular attorney, his pre-testing right to counsel was violated and the subsequent test refusal charge must be dismissed.

The Minnesota Court of Appeals disagreed with Mr. Pence noting:

“In deciding whether a driver's limited right to counsel was vindicated, a court should consider the totality of the circumstances surrounding the implied-consent advisory and the driver's opportunity to consult with an attorney. The caselaw has recognized a few factors that generally are relevant to the question whether a driver was given a reasonable opportunity to consult with counsel: whether the driver made a good-faith and sincere effort to reach an attorney, the time of day when the driver attempted to contact an attorney, and the length of time the driver had been under arrest when his consultation time was ended.” (citations omitted)

“In this case, the totality of the circumstances supports the district court's conclusion that Pence's limited right to counsel was vindicated. The most significant factor is whether Pence was making a good-faith and sincere effort to contact an attorney. He plainly was not making such an effort. He made no use whatsoever of the telephone books and the telephone that were provided to him. Pence emphasizes the fact that he was allowed only 21 minutes before his attorney consultation time was terminated. But in light of the absence of any effort on his part to contact an attorney, no apparent purpose would have been served by giving him more time.

"Pence also contends that his limited right to counsel was not vindicated because the police did not assist him in contacting "Mr. Sheridan." He relies on Friedman in arguing that "police officers must assist in the vindication of the right to counsel." The Friedman opinion imposes some obligations on a law-enforcement officer to assist a driver who wishes to consult with an attorney but not to the extent that Pence urges. The supreme court stated, "The right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.  Friedman, 473 N.W.2d at 835 (quotation omitted).” Nothing in the caselaw since Friedman would require an officer to do more than provide a telephone and telephone books."

Moral of the story:  If you want to talk to an attorney prior to testing, don't just sit there like a bump on a log!

If you or a loved one has been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

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

The Minnesota DWI Case Of The Week is  Krech v. Commissioner of Public Safety, (decided April 20, 2015, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you want to call a lawyer prior to testing, you better call more than one!

In Krech, the Defendant was arrested for DWI and was read the Minnesota Implied Consent Advisory, which tells the person under arrest that they have the right to consult with an attorney prior to testing. Mr. Krech stated that he wanted to call an attorney so the police gave him access to a telephone and multiple phone books starting at 2:37 a.m.

At 2:44 a.m., Mr. Krech made a single phone call to an attorney and left a voice-mail message.  At 2:48 a.m. the police suggested that Mr. Krech might want to use the phone books to try and contact another attorney but Mr. Krech declined to do so.

At 2:55 a.m., Mr. Krech was told he had a "couple more minutes" to reach an attorney and at 3:02 a.m., Mr. Krech was told his time was up.  Mr. Krech subsequently submitted to a breath test and the result revealed an alcohol concentration level of .12.

Mr. Krech subsequently challenged the revocation of his driver's license and argued that his right to counsel prior to testing had been violated.  The District Court upheld the license revocation and on appeal, the Minnesota Court of Appeals affirmed the District Court, stating:

"A driver who is suspected of driving while impaired has a limited right to consult with an attorney before deciding whether to submit to chemical testing. (citation omitted) The driver's limited right to consult with an attorney prior to testing is vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel. (quotation omitted). If the driver is unable to contact an attorney within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel."

"Several factors are relevant to the question whether a driver was given a reasonable opportunity to consult with counsel. These factors include whether the driver made a good-faith and sincere effort to reach an attorney, Palme v Commissioner of Pub. Safety, 541 N.W.2d 340, 345 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996), the time of day when the driver attempted to contact an attorney, Kuhn, 488 N.W.2d at 842, and the length of time the driver has been under arrest. Id. In this case, these factors lead to the conclusion that Krech had a reasonable opportunity to consult with counsel.

First, as the district court noted, Krech declined to call other attorneys after leaving a voice-mail message for one attorney. This court has differentiated between "refusing to contact more than one attorney" and making a "good-faith and sincere effort" to call multiple attorneys. Id. at 841; see also Linde v. Commissioner of Pub. Safety, 586 N.W.2d 807, 810 (Minn. App. 1998) (concluding that driver's limited right to counsel was vindicated in part because he refused to contact more than one attorney), review denied (Minn. Feb. 18, 1999). Krech's insistence on contacting only one attorney demonstrates a lack of a good-faith and sincere effort to reach an attorney.

Second, we acknowledge that "[a] driver should be given more time in the early morning hours when contacting an attorney may be more difficult." Kuhn, 488 N.W.2d at 842.  But this factor is less relevant if a driver leaves a message for only one attorney because attorneys are unlikely to receive and return telephone calls in the early morning hours. See Palme, 541 N.W.2d at 345 ("A driver cannot be permitted to wait indefinitely for a call that may never come.").

Third, Krech was given a reasonable amount of time in which to contact an attorney. This court has held that it was reasonable for an officer to terminate a driver's attorney time after 29 minutes because the driver actually reached one attorney, was told that another attorney would call him back, and did not attempt to contact other attorneys. Id. Similarly, in this case, Krech was given 25 minutes to reach an attorney and declined to call other attorneys even though he had no particular reason to believe that the first attorney would return his message at 3:00 a.m. Krech contends that his preferred attorney would have heard a busy signal if Krech had used the telephone to call other attorneys. But the district court found that the record is unclear as to whether Krech included a call-back number in his voicemail message, and Krech has not shown that the district court clearly erred in that finding. In any event, Krech was aware that he had a limited time in which to reach an attorney and chose to wait for one attorney to return his message rather than to increase his chances of obtaining legal advice by calling multiple attorneys.

Based on the undisputed facts, we conclude that Krech was given a reasonable opportunity to consult with an attorney. Thus, the district court did not err by concluding that Krech's limited right to counsel was vindicated."

Moral of the Story: You have a limited right to talk to a lawyer prior to testing - But not necessarily the one you want the most.

If you or a loved one has been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

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

The Minnesota DWI Case Of The Week is State v. Scheffler, (decided March 30, 2015, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police can destroy evidence of the crime and there is not much a defendant can do about it.

In Scheffler, the Defendant was arrested for a 4th Degree DWI and he submitted to a urine test which revealed an alcohol concentration level of .18. Mr. Scheffler wanted to have the urine sample independently tested but by the time he made the request, the sample had been destroyed.

The Defendant moved to dismiss the DWI arguing that his due-process rights were violated by the destruction of the sample.  The District Court denied the motion and the Minnesota Court of Appeals upheld the district court noting:

"In determining whether the destruction of evidence constitutes a due-process violation, we first decide if the destroyed evidence had 'apparent and material exculpatory value. Evidence is not exculpatory if 'no more can be said than that the evidence could have been subjected to tests, the results of which might have exonerated the defendant.' (citation omitted). If destroyed evidence does not have apparent and material exculpatory value, then it must also be shown that the state did not act in bad faith when destroying the evidence.  Bad faith requires (1) an intentional act and (2) indicia that the state destroyed the evidence to avoid discovery of evidence beneficial to the defendant. Failure to follow standard procedures indicates bad faith. 

Scheffler's urine sample was tested and found to be inculpatory. The sample had no apparent exculpatory value. Scheffler was provided a copy of the report which stated explicitly that the "evidence will be destroyed by the laboratory twelve months following the date of this report." The sample was then destroyed according to the lab's standard procedures. Nothing in the record suggests that the sample was destroyed in bad faith."

So unless a defendant can show that an otherwise inculpatory sample was destroyed in bad faith (i.e. perhaps AFTER a request for testing was made), he has no remedy to challenge the test result.

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.