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DWI Case Of The Week is Olson v. Commissioner of Public Safety (Decided October 21, 2019, Minnesota Court of Appeals, Unpublished) which, once again, stands for the proposition that if the Data Master Breath Testing machine prints a breath test result at or above the legal limit, the uncertainty of measurement inherent in said machine is not "relevant".

In Olson, the Petitioner was arrested for a Minnesota DWI and he tested at .16% BAC on the Data Master Breath testing machine.  Mr. Olson filed a challenge to the revocation of his license and notified the Commissioner of Public Safety that he intended to offer the testimony of a “breath testing expert” from the Bureau of Criminal Apprehension, who would “testify regarding the foundational reliability of the breath test result” and “the uncertainty of measurement values that apply to these breath test results.” The next day, the commissioner filed a motion in limine to exclude Olson’s evidence concerning uncertainty of measurement on the ground that the evidence is irrelevant.

The district court subsequently filed an order in which it granted the commissioner’s motion in limine and sustained the revocation of Olson’s driver’s license. The district court focused on the admissibility of Olson’s evidence concerning uncertainty of measurement. The district court stated that the terms “margin of error” and “uncertainty of measurement” describe the same concept and noted, “While a petitioner may challenge the actual administration of a breath test, a petitioner may not challenge the general reliability of the breath test, whether via margin of error, uncertainty of measurement, or another similar statistical method.”

On appeal, the Court of Appeals affirmed the district court noting:

"Evidence consisting of “the results of a breath test” is, as a matter of law, “admissible in evidence without antecedent expert testimony that an infrared or other approved breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath,” so long as the breath test was “performed by a person who has been fully trained in the use of an infrared or other approved breath-testing instrument . . . pursuant to training given or approved by the commissioner of public safety or the commissioner’s acting agent.” Minn. Stat. § 634.16 (2018); see also In re Source Code, 816 N.W.2d at 528 n.3; State v. Norgaard, 899 N.W.2d 205, 207-08 (Minn App. 2017); State v. Ards, 816 N.W.2d 679, 685 (Minn. App. 2012). “But section 634.16’s presumption of reliability may be challenged in a proceeding under section 169A.53, subdivision 3(b)(10), which specifically permits a driver to challenge the reliability and accuracy of his or her test results.” In re Commissioner of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007); see also State v. Underdahl, 767 N.W.2d 677, 685 n.4 (Minn. 2009)."

***

Olson "sought to prove that the breath-test results were not accurately evaluated on the ground that the DataMaster instrument’s measurements of the alcohol content of his breath samples was subject to a degree of uncertainty. Olson contends that his proffered evidence was relevant because it would have shed light on the 'actual true range' of the alcohol concentration of his breath samples."

The Court of Appeals rejected the proffered evidence as not "relevant" as there are a long line of cases which state that  “Minn. Stat. § 169.123 (1982), does not require the Commissioner of Public Safety to prove an alcohol concentration of. 10 within an alleged margin for potential error.” Grund, 359 N.W.2d at 653. A later opinion explained the rationale for that statement:

Under Minn. Stat. § 169.123, subd. 4 (1982), the Commissioner must revoke a person’s license when “the test results indicate an alcohol concentration of. 10 or more.” The statute clearly requires a concentration of. 10—not. 10 plus or minus an error factor. And, Minn. Stat. § 169.123, subd. 6(3) (1982), expressly limits the issue to be raised at a hearing to whether “the test results indicate an alcohol concentration of .10 or more at the time of testing,” not whether or not the reading was . 10, coupled with some margin of error."

***

"In light of the above-described caselaw, as well as the fact that both of the Datamaster’s two measurements exceed the legal threshold, the district court did not abuse its discretion by reasoning that Olson’s proffered evidence was not relevant to the issue to be decided at the implied-consent hearing."

Moral Of The Story:  When it comes to breath testing, close enough is good enough.

If you or a loved one have been charged with 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 and DUI 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. Larson (Decided September 23, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a bicycle becomes a motor vehicle subject to the Minnesota DWI laws if it has a motor on it.

In Larson, the appellant argued that the state failed to prove beyond a reasonable doubt that he operated a motor vehicle when riding his three-wheeled, motorized bicycle. The Court of Appeals rejected his contention noting that "Minn. Stat. § 169A.20, subd. 1 (2016). Section 169A.03, subd. 15 defines “motor vehicle” as “every vehicle that is self-propelled .... The term includes motorboats in operation and off-road recreational vehicles, but does not include a vehicle moved solely by human power.” The DWI definitions point to chapter 169 for the definition of a “vehicle”: “every device in, upon, or by which any person or property is or may be transported . . . upon a highway.” Minn. Stat. § 169.011, sub. 92 (2016)."

"The relevant statutes are unambiguous and they are only subject to one reasonable interpretation. We therefore construe the words of the statutes according to their plain and ordinary meaning. Accordingly, chapters 169A and 169 provide that when a person under the influence of alcohol operates a device that can transport a person or property upon a highway and is self-propelled, that person commits a crime. But operation of a device that is moved solely by human power while under the influence does not result in a crime under the DWI statutes."

"The motor-vehicle definition provides two requirements for a motor vehicle: (1) self-propelling and (2) not moved solely by human power. Here, the bicycle’s motor, which allows the bicycle to travel up to 40 miles-per-hour, makes the bicycle self-propelling. The motor and gas tank are affixed to the bicycle, and a chain connects the motor to the rear wheel to propel it. Although the record does not support this, Larson argues that his motorized bicycle can also operate solely by being pedaled, without the motor running. Even taking this as true, Larson’s motorized bicycle meets the definition of “motor vehicle” because the motor makes it a self-propelling vehicle, and the bicycle is not solely moved by human power because it has a self-propelling motor."

***

"Accordingly, we affirm the district court’s ruling that Larson’s motorized bicycle falls under the “motor vehicle” definition, and therefore sufficient evidence supports his conviction."

Moral of the Story: It doesn't matter if you have your motor running.

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI 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 Jensen v. Commissioner of Public Safety (Decided September 3, 2019, Minnesota Court of Appeals, Published) which stands for the proposition that the advisory must be read before the Commissioner can conduct a pre-hearing license revocation pursuant to Minnesota Statute §171.177.

In Jensen, the arresting police officer obtained a search warrant to draw and test Pauline Jensen’s blood after she drove into and injured a child with her car and failed field sobriety tests. The blood test showed that Jensen’s alcohol concentration exceeded the statutory limit, and the commissioner of public safety revoked her license under Minnesota Statutes, section 171.177, subdivision 5.

Jensen petitioned for judicial review, arguing that her driver’s license should be reinstated because the sergeant had not warned her that test refusal is a crime, as required by Minnesota Statutes, section 171.177, subdivision 1 (2018).  The District Court sustained the license revocation but on Appeals, the Minnesota Court of Appeals reversed the lower court stating:

"The statute requires that, “[a]t the time a blood or urine test is directed pursuant to a search warrant. . . , the person must be informed that refusal to submit to a blood or urine test is a crime.” Minn. Stat. § 171.177, subd. 1. We recently concluded that the warning requirement is unambiguous, has no exceptions, and requires an officer to inform an individual of the criminal consequences of test refusal even when a warrant authorizes the blood draw. State v. Mike, 919 N.W.2d 103, 110 (Minn. App. 2018), review granted (Minn. Nov. 13, 2018)."

***

"The procedures in section 171.177 largely mirror those stated in the implied-consent statutes, requiring a warning of criminal consequences at the time a test is directed or requested. Compare Minn. Stat. § 171.177, subd. 1, with Minn. Stat. § 169A.51, subd. 2 (2018). The statutes also detail the same procedure for review of a revocation. Compare Minn. Stat. § 171.177, subds. 10-12 (2012), with Minn. Stat. § 169A.53 (2018). The history of section 171.177 and its obvious relationship to the implied-consent statutes leads us to apply to section 171.177 the caselaw relied on to interpret the related implied-consent statutes."

"The supreme court’s decision in Tyler v. Commissioner of Public Safety is most instructive. 368 N.W.2d 275, 280-81 (Minn. 1985). Tyler compels us to hold that the deputy’s failure to provide the statutorily required warning precluded the district court from upholding Jensen’s revocation. Id. The Tyler court held that complying with the warning requirement was necessary before revoking a license under the implied-consent law: “[W]e believe that the legislature intended that a driver’s license be revoked pursuant to the implied consent law . . . only if the provisions of the law were complied with.” Id. at281 (emphasis added). And a license revocation cannot be sustained if the refusal-is-a-crime warning was not given. Id. Following this reasoning, we hold that a license can be revoked under section 171.177 only if the officer followed the warning requirement."

***

"It is true that, if Jensen had refused to submit to the test, the sergeant could have drawn and tested her blood anyway. But an officer’s authority to obtain a test despite the driver’s refusal does not eliminate his duty to give the warning “at the time a blood or urine test is directed.” Minn. Stat. § 171.177, subd. 1. Nor does the authority render the warning irrelevant. As we have explained, the purpose of the warning is “to inform a driver of the serious consequences of refusal in an effort to compel the driver to take the test,” not to inform the driver that she has the option to refuse. Mike, 919 N.W.2d at 113. And a driver can commit the crime of test refusal even if she is ultimately forced to submit to a test. See Minn. Stat. §§ 169A.20, subd. 2(2), 171.177, subd. 13(a)-(b) (2018). Because refusing a test carries the same criminal consequences whether or not the state can force a test, and because the purpose of the warning is to inform drivers of the criminal consequences of refusal, the warning serves its purpose and is not irrelevant in these circumstances. The refusal-is-a-crime warning is required before the commissioner may secure a pre-hearing license revocation."

Moral Of The Story:  Police must warn you before your license can be revoked!

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 Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI 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 State v. Howell (Decided August 26, 2019, Minnesota Court of Appeals, Unpublished), which stands for the proposition that there is no right to counsel, even for a DWI refusal, when the test is requested pursuant to a search warrant.  I can't blame the Court of Appeals for this decision as they are just following the recent Minnesota Supreme Court decision of State v. Rosenbush.  The problem is Rosenbush ( a 4 to 3 decision) makes no sense.

In Howell, the Defendant was arrested for DWI and while at the jail, the officer obtained a search warrant for Howell’s blood. The officer advised Howell that refusal to submit to blood-alcohol testing is a crime and asked Howell if he would submit to a blood or urine test. See Minn. Stat. § 171.177, subd. 1 (Supp. 2017) (“At the time a blood or urine test is directed pursuant to a search warrant under sections 626.04 to 626.18, the person must be informed that refusal to submit to a blood or urine test is a crime.”). Howell asked for a lawyer, but was not allowed to contact one. Howell refused to provide a sample for testing.

Howell contended that the police violated his limited right to counsel under the Minnesota Constitution because he requested counsel before the police asked him to submit to chemical testing and the police did not accommodate that request.  

The Minnesota Court of Appeals rejected Howell's argument stating:

"After oral argument in this case, the supreme court decided State v. Rosenbush, which squarely addresses the issue presented in this case: whether a driver arrested on suspicion of DWI and presented with a search warrant authorizing a search of his blood has a limited right to counsel under article I, section 6 of the Minnesota Constitution, as recognized in Friedman, before deciding whether to submit to chemical testing."

***

"The supreme court agreed with the state and held that the limited right to counsel established in Friedman does not apply when an individual is asked to submit to a blood test pursuant to a warrant. Id. at * 1, *5-6. The supreme court reasoned that “the existence of a search warrant eliminates many of the concerns that led [it] to expand the right to counsel in Friedman,” explaining that when a suspected impaired driver is presented with a search warrant for a blood or urine test, “the driver is not meeting his adversary in the same manner as the driver in Friedman because a neutral judicial officer has determined that the police may lawfully obtain a sample of the driver’s blood."

What the Supreme Court in Rosenbush totally fails to address is the rationale for Friedman, to wit:  When a person has been placed under arrest for DWI and been asked to submit to testing, the arrestee is facing IMMEDIATE CONSEQUENCES for their testing decision.  If they refuse, they immediately lose their license for one year and are facing prosecution for the gross misdemeanor crime of refusal.  It was these "immediate consequences" of the testing decision that led the Supreme Court in Friedman to hold that a person has the right to consult with counsel prior to testing.  The fact that a "neutral and detached" magistrate has reviewed the warrant application has nothing to do with the testing dilemma facing the person under arrest for DWI.  

Rosenbush is a stupid decision. Period.

Moral Of The Story: You can be the supreme court and still not get it right.

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 Minnesota DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI 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. Kalkbrenner (Decided August 12, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police can make stuff up to justify an automobile stop and as long as the court calls their claim a "reasonable mistake of fact" the stop will be upheld.

In Kalkbrenner, a police officer observed that the taillights on appellant’s vehicle were not illuminated and initiated a traffic stop. While speaking with appellant, the officer noticed multiple indicia of intoxication and placed appellant under arrest. Appellant was charged with third-degree impaired driving and a taillight infraction. Appellant moved to suppress the evidence obtained as a result of the stop, arguing that the officer mistakenly thought the vehicle’s taillights were not illuminated and his mistake was objectively unreasonable. The parties stipulated to the underlying facts of the case and submitted the police reports and a statement from an automotive expert, which stated it is impossible to turn on the headlights without also turning on the taillights and that an examination of the vehicle four days after the stop indicated that all the lights were in working order. The district court did not hear any testimony and decided the matter based on the stipulated facts and briefing by the parties. The court assumed that the officer’s “observation of the taillights on [appellant]’s vehicle [w]as a mistake of fact,” and denied the motion to suppress on the ground that the officer’s mistake was reasonable.

On appeal the Minnesota Court of Appeals upheld the district court, stating:

"Given the unrebutted expert testimony and the report from the body shop, the district court found that the officer “may have made a mistake of fact” regarding the taillights. However, the court concluded that “[b]ased upon the stipulated record before the Court, assuming [the officer]’s observation of the taillights on [the] vehicle as a mistake of fact, the Officer’s mistake was reasonable.”2 Minnesota law recognizes that an officer’s “honest, reasonable mistakes of fact are unobjectionable under the Fourth Amendment.” State v. Licari, 659 N.W.2d 243, 254 (Minn. 2003). Further, a good-faith and reasonable mistake of fact will not invalidate an otherwise valid stop. See State v. Sanders, 339 N.W.2d 557, 560 (Minn. 1983) (holding that stop based on a reasonable mistake of identify was lawful). Even if the officer made a mistake of fact as to the taillights, there is no evidence in this record that his mistake was the product of “mere whim, caprice, or idle curiosity” or unreasonable. State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996). As such, the officer’s traffic stop was not “unobjectionable under the Fourth Amendment.” Licari, 659 N.W.2d at 254."

I can't object to the appellate court's analysis as they were stuck with the district court's finding that the mistake was "reasonable". But the district court's ruling that the mistake was "reasonable" is absurd.  Either the tail lights were on or they were off.  Their condition is not something that is "reasonably mistaken". I know that when I drive down the highway, I often cannot tell if the car in front of me has working tail lights at night.  I mean, give me a break.

Moral Of The Story:  Get the squad video for every DWI case.

If you or a loved one have been charged with 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 and DUI 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. Preston (Decided August 5, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police may conduct a traffic stop if they observe a partially obscured license plate.

In Preston, Beltrami County Sheriff's Deputy Bender was monitoring traffic when the Defendant drove past.  The Deputy was unable to read Defendant's license plate number as it was obstructed by a dangling light.

Deputy Bender initiated a traffic stop. He then approached the car and recognized the Defendant. Deputy Bender knew Defendant's driver’s license was cancelled. Preston was arrested and Deputy Bender searched the vehicle and found numerous smoking devices, marijuana, and an open container of alcoholic iced tea. Appellant admitted to smoking methamphetamine six hours earlier. A search warrant was obtained and executed, and appellant’s blood tested positive for methamphetamine.

Defendant was charged with driving after cancellation, DWI and 5th Degree possession. Mr. Preston filed a motion to suppress arguing the initial stop of his vehicle was not valid. 

The District Court denied the motion to suppress and on appeal, the Minnesota Court of Appeals affirmed, stating:

"Minnesota law prohibits obstructing the view of a license plate. “The person driving the motor vehicle shall keep the plate legible and unobstructed ... so that the lettering is plainly visible at all times.” Minn. Stat. § 169.79, subd. 7 (2016). In finding that appellant violated this traffic law, the district court relied on a photograph of the license plate and testimony from Deputy Bender. The photograph, taken at the time of the traffic stop, shows a light dangling over the last three letters of the license plate. One letter is obstructed and another letter is partially obstructed. Further, Deputy Bender testified that the light made the license plate “difficult to see.” Because the record supports the district court’s factual finding that the license plate was obstructed and this provided Deputy Bender with a reasonable, articulable suspicion to stop appellant’s vehicle, we affirm."

Moral Of The Story: He should have joined the "clean plate" club!

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI 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 State v. Cunningham (Decided July 1, 2019, Minnesota Court of Appeals, Unpublished) which stands, once again, for the well established rule that if a police officer observes a traffic violation, the officer has a sufficient basis to make the stop of the vehicle. Yawn.

In Cunningham, Minneapolis Police Officer Andrew Braun and his partner were on patrol driving eastbound on Plymouth Avenue North. The officers had a green light as they approached the intersection of Plymouth and Washington Avenue North. When the officers were approximately 75 to 100 yards away from the intersection, they saw five or six vehicles speed through the intersection travelling southbound on Washington. Because the light was green for traffic going east on Plymouth, Officer Braun knew that traffic going north and south on Washington had a red light.

The officers conducted a traffic stop on a white truck, driven by appellant, which was a part of the convoy of vehicles that had gone through the red light on Washington.  Based upon events after the stop of Cunningham’s truck, Mr. Cunningham was charged with one count of operating a motor vehicle while under the influence of alcohol in violation of Minn. Stat. § 169A.20, subd. 1(1) (2016).

The Defendant was convicted after a trial on stipulated facts and on appeal,Cunningham argues that there was no reasonable, articulable suspicion to support Officer Braun’s stop of his truck, and that the district court erred by denying his motion to suppress the evidence obtained from the stop.

The Minnesota Court of Appeals affirmed the district court, noting:

"...a police officer may initiate a limited, investigative stop without a warrant if the officer has reasonable, articulable suspicion of criminal activity. State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). The reasonable-suspicion standard is not a high one, State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011), but the investigatory stop may not be the result of “mere whim, caprice or idle curiosity,” State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996). If an officer observes a violation of a traffic law, even one that is insignificant, there is an objective basis for an investigatory stop. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

Cunningham also argued that the officer's testimony should not have been believed by the district court after Cunningham testified that he did not run a red light.  

The appellate court, however, rejected his argument, pointing out:

"This court gives deference to the fact-finder—especially where resolution of the case depends on conflicting testimony—because weighing the credibility of witnesses is its exclusive function.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980)."

Moral Of The Story: Some appeals are just stupid. 

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 Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.