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

The Minnesota DWI Case Of The Week is State v. Trahan (Decided October 13, 2015, Minnesota Court of Appeals, Published) which stands for the proposition that if the police fail to attempt to obtain a search warrant for a blood or urine DWI sample, then the Defendant cannot be charged with the crime of Refusal To Submit to Testing if he fails to provide  said sample.

In Trahan, the Defendant was stopped for erratic driving and things went down hill from there.  The officer noticed indicia of intoxication and Mr. Trahan was subsequently placed under arrest for DWI.

The Defendant was read the Minnesota Implied Consent Advisory at the Ramsey County Jail and was asked to provide a blood or urine sample.  Mr. Trahan agreed to provide a urine sample but the officer deemed the sample deficient so he requested the Defendant submit to a blood test.  Mr. Trahan refused to submit to the blood test and was subsequently charged with the crime of Refusal To Submit to Testing in the First Degree.

The Defendant challenged the constitutionally of the Test Refusal Statute and the Minnesota Court of Appeals agreed that as to blood or urine (but not breath) test requests, the statute is unconstitutional.

The Court of Appeals recognized that if the police do not need to seek a search warrant for the sample, then the state may criminalize the refusal to provide the sample.  But if there is not a recognized exception the warrant requirement, then the Defendant may not be charged with refusal under the Due Process Clause and the Fourth Amendment.

The Court of Appeals reasoned that in the Minnesota Supreme Court case of State v. Bernard, the Court had held that breath samples may be obtained without a warrant as a search of one's breath may be done as, "incidental to the arrest".  One exhales breath all the time and the police do not need to obtain a warrant to obtain a sample (Which is complete nonsense but that is what the Court ruled in Bernard).  But in Bernard, the Supreme Court also stated, "The differences between a blood test and a breath test are material, and not the least of those differences is the less-invasive nature of breath testing."

Trahan argued and the state did not dispute, that a warrantless blood test would not be justified under the search-incident-to-arrest exception to the warrant requirement. The Minnesota Court of Appeals agreed stating, "In Schmerber v. California, the United States Supreme Court explicitly recognized that the search-incident-to-arrest exception has 'little applicability with respect to searches involving intrusions beyond the body's surface.'...Unlike breath, blood does not naturally and regularly exit the body. And under Minnesota's DWI law, a blood draw can only be performed by a qualified medical professional.  Because a blood test here would have been highly intrusive, we conclude that a warrantless search of Trahan's blood would not have been constitutional under the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement."   

The Court then looked at the "exigent-circumstances exception" to the warrant requirement and found that in this case, the exception did not apply.  

In Trahan, the State argued "...the "exigency" was the expiration of the statutory time frame while Trahan was arrested, taken to the jail, read the implied-consent advisory, made phone calls, and produced a questionable urine sample. The state argued that under the particular facts of this case, exigent circumstances would have justified a warrantless blood test". 

But the Court of Appeals disagreed, stating: "The circumstances here are more akin to a routine impaired-driving arrest: the record indicates that Trahan was agitated and difficult. These circumstances fall within "those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn." McNeely, 133 S. Ct. at 1561. Because no exigency would have prevented police from seeking a warrant before conducting a blood test, we conclude that a warrantless blood test would not have been constitutional under the exigent-circumstances exception to the Fourth Amendment's warrant requirement.

Moral of the Story: If the police ask you to take a blood test, tell them to go get a warrant.

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 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.