Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Robinson v. Commissioner of Public Safety (Decided June 18, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the current Court will affirm just about any vehicle stop.

In Robinson, Officer Donahue of the Edina Police Department was on routine patrol in the area of Edina High School and Valley View Middle School. At approximately 12:55 a.m., while conducting a directed patrol of the area, Officer Donahue pulled into the east entrance of the parking lot to the west of Valley View Middle School. As he entered the parking lot, Officer Donahue observed a dark passenger car drive by the western edge of the parking lot the officer had just entered, and drive out the west entrance. The vehicle's lights were on, and the road the vehicle was driving on encircles the schools and connects all of the school parking lots. Officer Donahue testified that "there was a large construction site near that part of the school where the vehicle came out.

At the time Officer Donahue saw the vehicle, there were no other cars in the area and the lights in the high school were off; the school appeared closed. Officer Donahue testified that he found the vehicle's presence suspicious because it was late, the high school was closed, and there was a construction site at the high school near where the vehicle was located. Officer Donahue has worked for the Edina Police Department for about two years and has been a licensed peace officer in Minnesota for about nine years, and in Officer Donahue's training and experience, "construction sites are often sought out by thieves for theft and damage-related crimes." The district court found Officer Donahue's testimony credible.

After observing the vehicle, Officer Donahue followed it. Officer Donahue saw the vehicle cross Valley View Road onto Chapel Lane, where he caught up to it and ran a license plate check, which showed that a lease company owned the vehicle and that the lessee lived on the 5500 block of Goya Lane. Goya Lane is approximately one mile north of Edina High School.

Officer Donahue continued following the vehicle and thought that the route taken by the vehicle was suspicious because it was not the most direct route from the school to the address on Goya Lane. Robinson crossed Valley View Road, drove along several residential streets to the south of Valley View Road, and then turned onto Valley View Road. Officer Donahue initiated a traffic stop on Valley View Road, the vehicle stopped almost immediately, and Officer Donahue identified Robinson as the driver. From when Officer Donahue first observed the vehicle, until he stopped it on Valley View Road, he did not observe any traffic or equipment violations, inappropriate, unusual, or unlawful driving, and found no outstanding warrants.

Mr. Robinson was subsequently arrested for DWI and tested at .10% BAC at the police station.  Mr Robinson filed a challenge to the license revocation alleging the officer did not have a sufficient basis for the stop.  The district court upheld the revocation and on appeal, the Minnesota Court of Appeals affirmed, stating:

"Officer Donahue had a particularized and objective basis to stop Robinson. Robinson was driving on school grounds around 1:00 a.m., near a construction site at the high school, when the school was closed. He was driving on a road that encircled both schools and does not provide access to anywhere other than the schools, their parking lots, and the construction site at the high school—the road is more akin to a driveway than to a public thru-street. And when Robinson drove out of the school area, he drove across a main road, through several residential roads, only to return to the main road—which he could have turned directly on to as he left the school area. Standing alone, each individual fact may not be sufficient to support reasonable suspicion of wrongdoing. But viewed together, and through the eyes of Officer Donahue's experience and training that construction sites are often targeted for theft and vandalism crimes, Officer Donahue had a particularized and objective basis for an investigatory stop."

Yikes!

Moral Of The Story:  If you have been drinking, do not go to school!

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

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Horn (Decided June 11, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police cannot ask for consent to search your vehicle if the search is unrelated to the traffic stop. 

In Horn, Minnesota State Patrol Sergeant Thostenson observed Mr. Horn driving an automobile and stopped him because he was not wearing a seatbelt. Sergeant Thostenson asked Horn for proof of insurance. Horn gave Sergeant Thostenson an expired insurance card and did not look for any other proof of insurance in his vehicle. Sergeant Thostenson thought this behavior was odd and testified that some people avoid opening areas where insurance cards are normally kept because they have contraband or weapons in those areas. Sergeant Thostenson observed that Horn avoided eye contact, appeared excessively nervous, talked very fast and was slow to respond to some questions. Sergeant Thostenson also smelled a faint odor of marijuana coming from Horn's vehicle.

Sergeant Thostenson returned to his squad car, printed a ticket for the seatbelt violation, returned to Horn's car, and asked Horn to step out of his vehicle. Sergeant Thostenson noticed that Horn's front teeth were discolored and decaying. He testified that such conditions indicated drug use. Sergeant Thostenson explained the seatbelt citation to Horn, handed Horn the ticket, and asked Horn if he had any questions before the sergeant let him go. Horn responded, "No." Sergeant Thostenson then asked Horn if he could take a quick look in Horn's vehicle. Horn agreed to the ensuing vehicle search.

During the search of Horn's vehicle, Sergeant Thostenson found a zippered container, which he recognized as the type of container commonly used for drugs and paraphernalia. He opened the container and found a pipe and methamphetamine inside. Horn admitted that he had used methamphetamine earlier that morning. Horn agreed to perform field sobriety tests and performed poorly on the tests. Sergeant Thostenson arrested Horn, obtained a search warrant to test his blood, and the blood sample was positive for methamphetamine.

Mr. Horn was charged with DWI and possession of a controlled substance.  The defense moved to suppress all of the evidence arguing that Sergeant Thostenson's incremental intrusion of asking to search Horn's vehicle was unrelated to the purpose of the stop for failure to wear a seatbelt and that the circumstances did not otherwise justify the request to search the vehicle. Horn therefore argued that the evidence obtained as a result of the search should be suppressed.

At the suppression hearing, Sergeant Thostenson admitted that after he handed Horn the seatbelt-violation ticket, Horn was free to go, but that he nonetheless asked to search Horn's car after he gave Horn the ticket.  

The district court denied Horn's motion to suppress, concluding that "the odor of marijuana along with the other factors was sufficient to justify" the trooper's request to search the vehicle.  On appeal, however, the Minnesota Court of Appeals reversed the district court  noting:

"When a search is conducted pursuant to consent . . . , neither probable cause nor a warrant is required." State v. Pilot, 595 N.W.2d 511, 519 (Minn. 1999). However, a "suspect's consent, taken alone, is insufficient to permit expansion of a routine traffic stop; the police officer must have a reasonable, articulable suspicion of further criminal activity in order to request to expand the stop.   State v. Volkman, 675 N.W.2d 337, 341 (Minn. App. 2004)."

"Horn contends that any suspicions that might have justified the request to search his vehicle were dispelled prior to the request. He notes that Sergeant Thostenson "had completed the initial stop and immediately before asking to search the car, he had admittedly concluded that Horn was 'free to go.' Horn therefore argues that 'regardless of anything [Sergeant Thostenson] may have observed prior to handing [him] the ticket, when he asked to search the car, no reasonable suspicion remained.' Horn concludes that "because the search of [his] car was invalid, the fruits of the search and all related evidence must be suppressed."

The Minnesota Court of Appeals justifiably ruled in favor of the Defendant, stating:

"We would have a difficult time concluding that Sergeant Thostenson articulated constitutionally adequate support for his request to search Horn's vehicle given his testimony that Horn was free to go before the request. Sergeant Thostenson's agreement that Horn was no longer seized when he asked to search Horn's vehicle significantly undercuts the state's argument that the trooper articulated reasonable suspicion of criminal activity that justified the request to search. In our view, this record does not support a conclusion that Sergeant Thostenson articulated reasonable suspicion justifying his request to search Horn's vehicle. We therefore hold that the search was unconstitutional and reverse the district court's order denying Horn's motion to suppress."

Moral Of The Story:  Never, ever, ever consent to a search! Ever!!

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

Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Holt (Decided June 4, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it doesn't take much for the police to demand a preliminary breath test.

In Holt, the Defendant was stopped for failure to signal a turn.  Mr. Holt provided the police officer with proof of insurance but not a driver's license.  Mr. Holt identified himself and provided a date of birth, but when the officer entered that information into his system, it brought up a photo that did not match the driver. The officer continued to attempt to identify the driver, but the driver could not confirm his address or when he last had his license renewed. The officer placed the driver under arrest for giving a false name.

While walking the driver to his squad car, the officer noticed he smelled of alcohol and asked how much alcohol he had to drink that night. Mr. Holt was non-responsive.

After transporting him to a police station, the officer was able to identify the driver as appellant Sedrick Lamar Holt. Once identified, the officer discovered Holt's driving privileges were cancelled, and he had an active felony warrant. The officer also noticed Holt's eyes were red and watery. The officer asked Holt to complete field sobriety tests or a preliminary breath test, but Holt refused.

Holt agreed to a breath test. He was instructed on how to provide an accurate sample, but after nine tries Holt was unable to provide that sample. The officer deemed Holt's failure to provide an adequate sample a refusal.

The Defendant was subsequently convicted of Felony DWI and on appeal argued that the evidence should have been suppressed by the district court as the police officer did not hav a reasonable, articulable suspicion to request that Holt submit to a preliminary breath test.

The Minnesota Court of Appeals ruled against the Defendant stating:

"Whether an officer has a reasonable, articulable suspicion is determined by the totality of the circumstances. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998). Articulable suspicion can arise when there is evidence of sufficient indicia of intoxication. State v. Driscoll, All N.W.2d 263, 265-66 (Minn. App. 1988). Both an odor of alcohol and bloodshot and watery eyes are indicia of intoxication. State v. Klamar, 823 N. W.2d 687, 696 (Minn. App. 2012). And a traffic violation coupled with indicia of intoxication can provide reasonable, articulable suspicion.  The district court determined the totality of the circumstances provided the officer with reasonable, articulable suspicion. We agree."

"Here, the officer stopped Holt after observing him commit a traffic violation—he failed to signal a turn. The officer approached the vehicle, and Holt only rolled down his window two to three inches to talk to the officer. After talking to the officer and failing to confirm necessary information to prove his identity, Holt was removed from the car and placed under arrest for providing a false name to police. It was when Holt was removed from his car and placed into a squad car that the officer first noticed Holt smelled of alcohol and asked how much alcohol Holt had to drink that evening. And once the officer brought Holt to the police station, he noticed Holt had red and watery eyes. The officer than asked Holt to complete field sobriety tests or a preliminary breath test. Because the officer witnessed a traffic violation and noticed multiple signs of intoxication prior to requesting the preliminary test, he had reasonable, articulable suspicion that Holt was driving while impaired by alcohol consumption."

Moral Of The Story:  A traffic violation plus one or more indicia of alcohol consumption will always furnish a sufficient basis for the police to request a preliminary breath test (PBT).

If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Neiland v. Commissioner of Public Safety (Decided May 29, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person's right to contact counsel of their own choosing prior to testing is not violated when the police dial the telephone.

In Neiland, the Petitioner was arrested for a DWI and was read the Minnesota Implied Consent Advisory.  The Petitioner was told he could contact an attorney or decide on his own whether to take the breath test.  Petitioner picked up a phone book and began paging through it, but stated, "I don't know who I could call." The deputy told appellant that the phone books listed attorneys with 24-hour availability. Petitioner referenced being inexperienced and asked for the deputy's recommendation. The deputy explained that he did not recommend attorneys, but that Petitioner could choose to call any attorney and could later switch attorneys.

The Petitioner then pointed to an attorney's phone number in one of the phone books. The deputy dialed the number and handed the phone to the Petitioner.  

The deputy left the holding room, and observed Petitioner through an open doorway while appellant spoke to a person on the phone. The deputy reentered the room and used a computer, but did not speak to Petitioner during the phone call. After approximately 13 to 14 minutes, appellant concluded the phone call by hanging up the receiver. The deputy asked Petitioner  "Alright, you had a chance to speak with an attorney. Will you take a breath test?" Petitioner responded, "Yes." Petitioner then submitted to a breath test, which registered an alcohol concentration of 0.11, in excess of the legal limit.

Mr. Neiland petitioned the district court for rescission of the revocation, arguing, in part, that his right to counsel was not vindicated, which the district court denied following a contested implied-consent hearing.  On appeal, the Minnesota Court of Appeals affirmed the district court, noting:

"Under the right-to-counsel clause in article I, section 6 of the Minnesota Constitution, an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing." Friedman v. Comm 'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). Police officers must assist in the vindication of this right. Id."

"The right to counsel is considered vindicated when the driver is provided with a telephone prior to testing and given a reasonable amount of time to contact and consult with an attorney." Mell v. Comm'r of Pub. Safety, 757 N.W.2d 702, 712 (Minn. App. 2008). "If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel." Friedman, A13 N.W.2d at 835 (quotation omitted). "The right to counsel is limited in DWI cases to ensure that consultation does not unreasonably delay the administration of the test." 

"A driver has "the right to consult with a lawyer of his own choosing" before deciding whether he will submit to a chemical test. Friedman, 473 N.W.2d at 835 (quotation omitted). This right may be vindicated even if law enforcement does not allow the driver to personally dial a telephone number. Linde, 586 N.W.2d at 809-10."

"The evidence supports the district court's findings that appellant indicated his selection of an attorney and the deputy acted to assist appellant to contact rather than to select an attorney."

"Despite appellant's apparent indecisiveness over whether to contact an attorney, the evidence shows that the deputy reasonably interpreted appellant's actions as selecting an attorney and seeking the deputy's assistance to place a phone call. Had appellant wished to select a different attorney, or select no attorney at all, he had ample opportunities to tell the deputy of that decision, but he did not do so.   On this record, we conclude that the deputy vindicated appellant's right to counsel to the extent that appellant was allowed to consult with an attorney of his own choosing."

Moral Of The Story:  Exercise your right to counsel and demand to be allowed to dial the telephone!

If you or a loved one have been arrested for a Minnesota DWI or are facing the DWI forfeiture of your motor vehicle, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and forfeiture questions.

Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is McGuire v. Commissioner of Public Safety (Decided May 21, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police can stop a vehicle if said vehicle appears to violate the law even if the police are mistaken as to the violation. Yikes!

In McGuire, Rochester Police Officer Craig Sammon saw a truck rapidly accelerate in an area with heavy foot traffic.  Sammon got into his patrol car and followed the truck, and he saw that the truck did not have a rear license plate or a temporary registration permit. Sammon believed that vehicles driven in Minnesota had to have either a rear license plate or a temporary permit displayed in the rear window,1 and he decided to stop the truck. Sammon eventually cited the driver, appellant Cole Gilbert McGuire, for fourth-degree driving while impaired, and McGuire's driver's license was revoked.

McGuire challenged the revocation of his driver's license, arguing that there was no lawful basis for the stop. McGuire testified that he was a Missouri resident who was living in Rochester for a short period of time for a temporary job. He was driving "a full-size Mega Cab Truck 4 x 4" that was rated to pull an 18,000 pound trailer, and, under Missouri law, he was required to have only a front license plate as Minnesota recognizes that if a vehicle is legal in its home state, it may be legally driven in Minnesota even if it is not in conformity with the Minnesota licensing provisions (i.e. every vehicle must have a front and rear license plate).

The district court upheld the license revocation and on Appeal, the Minnesota Court of Appeals affirmed the lower court, noting:

"A vehicle properly registered or licensed in Missouri will be treated as properly licensed in Minnesota even if the Missouri licensing requirements are different from Minnesota licensing requirements, and, for a properly licensed Missouri vehicle, the requirement to have only a front license plate is an exception from the Minnesota requirement that there be a plate displayed on the front and the rear of the vehicle."

"McGuire argues that, because his vehicle was properly licensed under Missouri law, he was driving a vehicle with a legal license-plate configuration under Minnesota law when he was stopped, and Sammon's mistaken interpretation of Minnesota's license-plate law does not support a particularized and objective basis for suspecting criminal activity, which is required for a valid stop. The supreme court has held that an officer's mistaken belief as to the law cannot provide an objective basis for an investigatory stop. George, 557 N.W.2d at 578-79. In George, an officer stopped a motorcyclist because he believed that the motorcycle had an unlawful headlight configuration, but the officer was mistaken as to the law, and the headlight configuration was lawful. Id. The supreme court concluded that there was no legal basis for the stop because the officer did not have an objective legal basis for suspecting that George was driving his motorcycle in violation of the law. Id. at 579."

"Similarly, in Anderson, an officer believed that a statute required a driver to move far enough away from a stopped emergency vehicle so that there was an entire free "buffer" lane between the driver's car and the emergency vehicle. 683 N.W.2d at 821. Based on this interpretation of the statute, the officer stopped a car that had not moved far enough to the left and eventually arrested the driver for an impaired-driving offense. Id. The supreme court concluded that the officer had incorrectly interpreted the statute and held "that an officer's mistaken interpretation of a statute may not form the particularized and objective basis for suspecting criminal activity necessary to justify a traffic stop." Id. at 823-24."

SO FAR, SO GOOD!

But the Minnesota Court of Appeals goes on to hold:

"There is a significant difference between the circumstances in George and Anderson and the circumstances in this case. In both George and Anderson, the circumstances that the officers observed could not constitute a statutory violation, and, in both cases, the officer stopped the driver because the officer misunderstood the statute and incorrectly believed that he had observed a violation. Unlike George and Anderson, the circumstances that Sammon observed could be a violation of the general statute that requires both a front and a rear license plate, and, because Sammon was following McGuire's vehicle, he had no reason to know that McGuire's vehicle had a front license plate, as required in Missouri."

In other words, even if the vehicle is legal, if the vehicle could be in violation of a Minnesota licensing statute, the officer may legally stop said vehicle.  AAArgh!

Even if the stop is justified, how is the officer entitled to talk to the driver of the vehicle without walking to the front of the vehicle to determine its home state?

Moral Of The Story:  If you are going to drink and drive, make sure your vehicle is "street legal" in every state!

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

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Taylor (Decided May 14, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police can rely entirely upon statements of a 3rd person to justify a Minnesota DWI vehicle stop.

In Taylor, a Wayzata police officer was on patrol in the City of Wayzata when he overheard a radio transmission from the Orono Police Department regarding a domestic disturbance in the City of Mound. The transmission indicated that the Orono Police Department received information from dispatch that a male individual "had shown up at a female's residence" and that a "verbal altercation" ensued. The female reported that she "believed the male was intoxicated" because he made "unusual" comments about wanting to kill Donald Trump. The female identified the male as appellant Brian Taylor, and stated that he left her residence in a red Jeep and would be "traveling on Highway 12."

The officer positioned his squad car along Highway 12, and a "couple of minutes" later, observed a red Jeep drive past his location. Officer Sharratt followed the Jeep and checked its license plate. The license check revealed that Taylor was the registered owner. The officer initiated a traffic stop because he believed that Taylor was involved in the reported domestic disturbance and may have been intoxicated.

Defendant Taylor was subsequently arrested for a DWI and he filed a motion to suppress arguing the initial stop was unconstitutional.  The motion to suppress was denied and on appeal, the Minnesota Court of Appeals affirmed the district court noting:

"Taylor argues that the stop of his vehicle was unconstitutional because it was "based on a hunch developed after overhearing radio traffic of another department, and not based on any observations of the officer or facts known to him that would create a reasonable articulable suspicion that [Taylor] was involved in criminal activity." But the factual basis needed to maintain a routine traffic stop need not arise from an officer's personal observations; it may also be supplied by information acquired from another person, including an informant. Marben v. State, Dep 't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). An officer properly stops a motor vehicle in reliance on a telephone tip when the caller identifies herself and states that a driver of a vehicle has just been nearby and appears to be intoxicated. See, e.g., City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890-91 (Minn. 1988) (stating that stop was proper when based on identified gas-station attendant's tip regarding intoxicated driver); Magnuson v. Comm 'r of Pub. Safety, 703 N.W.2d 557, 560-61 (Minn. App. 2005) (stating that sufficient reasonable suspicion supported stop based on personal observations of an identified citizen that driver was drunk)."

Moral Of The Story:  Never get in an argument with a woman when you are drunk.

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

Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Waldron (Decided May 7, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that you cannot be convicted of a DWI if you are charged under the wrong statute.  Well duh! Too bad the Defendant had to go all the way to the Court of Appeals to establish that. But then again, nothing surprises me about the decisions of some district courts.

In Waldron, the Defendant was convicted of two counts of DWI, in violation of Minnesota Statute 169A.20, subds. 1(1),  & 1(5).  At trial it was undisputed that the Defendant was driving an all terrain vehicle (ATV). 

The Defendant moved to vacate the conviction arguing the evidence was insufficient to convict him under the charged statutes as the particular statute specifically exempts ATV's. The statute states: "It is a crime for any person to drive, operate, or be in physical control of any motor vehicle, as defined in section 169A.03, subdivision 15, except for motorboats in operation and off-road recreational vehicles," while intoxicated. Minn. Stat. § 169A.20, subd. 1.

The prosecutor should have charged Mr. Waldron pursuant to Minnesota Statute Section 169A.20 subd. 1(b) which independently makes it "a crime for any person to operate or be in physical control of a[n] . . . [ATV] as defined in section 84.92, subdivision 8," while intoxicated. But since the case was not brought under the proper statute, the Minnesota Court of Appeals correctly ruled: "Because operating an ATV while intoxicated cannot form the basis for a conviction under section 169A.20, subdivisions 1(1) or 1(5), we conclude that there was insufficient evidence to conclude that Waldron violated those statutes."

Moral Of The Story: Details Matter!

If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.