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DWI Case Of The Week is Helget v. Commissioner of Public Safety (Decided January 23, 2023, Minnesota Court of Appeals, Unpublished), which stands for the proposition that the Court of Appeals continues to erode the distinction between reasonable suspicion to detain and probable cause to arrest.

In Helget, a caller notified law enforcement that a white pickup truck was “all over the road” in New Ulm. The caller provided his name, the pickup’s license-plate number, and updates regarding the pickup’s location as he followed it. Officer Patrick Fay received word of the caller’s report from police dispatch and suspected that the pickup’s driver might be impaired.

Fay drove his marked squad car to the area described by the caller and saw a pickup matching the description of the suspect vehicle. While passing the pickup, Fay saw its driver and its license-plate number, which matched the plate number provided by the caller. As Fay passed the pickup, the caller in some way indicated to him that this pickup was the vehicle that the caller had observed “all over the road.”

Fay located the pickup parked on the apron to a garage behind 810 North Payne Street in New Ulm. He parked his squad car behind the pickup and turned on his white “takedown” lights, but not his emergency lights.  While doing so, he saw the driver of the pickup, later identified as appellant Jesse Lee Helget, get out of the pickup and walk to the comer of the garage. Fay got out of his marked squad car and yelled at Helget to stop. Helget, who was about 25 feet away, looked back over his shoulder in Fay’s direction, but he kept walking. Helget turned at the comer of the garage and walked toward the house located beyond the garage.

For a brief period, the garage blocked Fay’s view of Helget. After Fay walked past the garage, he saw Helget standing in the back yard of the residence at 806 North Payne Street, which was next door to the residence where Helget had parked. Fay observed that a three-foot-high chain-link fence ran between the two properties and surmised that Helget had climbed over the fence.

Upon seeing Helget, Fay again yelled at Helget to stop; this time, Helget complied. Fay, who was still on the 810 North Payne side of the fence, asked Helget to walk toward him so the two could talk. Helget did not comply. He remained standing on the far side of the adjoining lot.

The police eventually got close to Mr. Helget and one of the officers could smell alcohol on Helmet's breath.

One of the officer's then grabbed Helget’s left wrist, and told him to put his hands behind his back. Helget minimally resisted but was quickly subdued by the officers. The officers handcuffed Helget and escorted him to Fay’s squad car, where they asked him to take a seat in the back.

At the squad car, Helget repeatedly refused commands to sit in the squad car and stated, “I’m not being detained.” Helget did not comply until an officer threatened to tase him. He then refused to slide his feet into the squad car, despite repeated commands to do so.

Helget repeatedly asked why he was being detained, and Gramentz replied, “You’re under arrest for fleeing right now, so that’s what you’re under arrest for.” In response, Helget noted that he had not fled and that he had stopped. Later, again in response to Helget’s inquiries, Gramentz told Helget that he was being detained “for investigations.”

The State of Minnesota charged Helget with third-degree test refusal, fourth-degree DWI, obstruction of legal process or arrest, and public urination. Helget moved the district court to suppress the evidence against him and to dismiss the criminal charges, again asserting that his arrest was not supported by probable cause. 

The district court denied the motion to suppress  and on appeal, the Minnesota Court of Appeals upheld the district court, noting:

"Helget does not dispute that reasonable articulable suspicion justified a temporary warrantless seizure to investigate whether he had been driving while impaired. Instead, he asserts that the police converted his lawful seizure into an illegal arrest and argues that the circumstances did not satisfy the higher probable-cause standard necessary for a warrantless arrest.

"To determine whether there was probable cause to arrest Helget for DWI, we must first determine the point at which Helget was arrested. “The ultimate test to be used in determining whether a suspect was under arrest is whether a reasonable person would have concluded, under the circumstances, that he was under arrest and not free to go.” State v. Beckman, 354 N.W.2d 432, 436 (Minn. 1984). There is no bright-line test separating a legitimate investigative stop from an unlawful arrest. Instead, “common sense and ordinary human experience must govern over rigid criteria.” State v. Balenger, 667 N.W.2d 133, 139 (Minn. App. 2003), rev. denied (Minn. Oct. 21, 2003)."

"The supreme court has held that “briefly handcuffing a suspect while the police sort out the scene of an investigation does not per se transform an investigatory detention into an arrest, nor does placing the suspect in the back of a squad car while the investigation proceeds.” State v. Munson, 594 N.W.2d 128, 137 (Minn. 1999). Here, the police handcuffed Helget, escorted him to a squad car, and threatened to tase him if he did not enter the back seat of the squad car. Those circumstances alone might lead a reasonable person to conclude that he was under arrest and not free to go. See State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993) (“[Defendant] was under arrest from the time he was ordered to the ground at gunpoint, handcuffed, and put in the squad car.”). But in this case there is one additional circumstance that makes that conclusion unavoidable. As the officers placed Helget in the squad car, Gramentz told him, “Tow ’re under arrest for fleeing right now, so that’s what you’re under arrest for.” (Emphasis added.) Although Gramentz subsequently told Helget that he was being detained “for investigations,” under the circumstances, Gramentz’s statement that Helget was “under arrest. . . right now” would lead a reasonable person to conclude that he was under arrest and not free to go. We therefore consider whether at that point, the objective facts were such that a person of ordinary care and prudence would have entertained an honest and strong suspicion that Helget had committed the crime of DWI."

"The relevant facts were as follows. A known citizen called the police around 1:00 a.m. to report that Helget’s pickup was “all over the road.” Time of day is a relevant consideration when assessing suspicion of DWI because DWI offenses are common in the early morning hours. See Otto v. Comm’r of Pub. Safety, 924 N.W.2d 658, 661 (Minn. App. 2019) (considering 1:20 a.m. on a Saturday morning to be a “time of day when drinking is often found to be involved”). Fay located the pickup and observed Helget driving it. Although Fay did not observe Helget commit any moving offenses, the citizen caller generally alleged that Helget’s truck was “all over the road.” That comment reasonably suggested that Helget’s pickup was being driven all over the road and likely in violation of traffic laws. See, e.g., Minn. Stat. § 169.18, subd. 7(a) (2018) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”)."

"After Helget parked and exited his pickup, he was evasive. As Helget walked away from his pickup, Fay yelled at Helget to “stop.” Helget looked back over his shoulder toward Fay and kept walking away from the officer. Fay pursued Helget and observed him in the adjacent yard. Fay also observed a three-foot-high fence that Helget had to cross to get there. Although Helget stopped in response to Fay’s second command to do so, he did not comply with Fay’s subsequent command to approach."

"When Gramentz arrived and got within two feet of Helget, he noticed that Helget emitted an odor of alcohol, a common indication of intoxication. See State v. Kiev, 678 N.W.2d 672, 678 (Minn. App. 2004) (“Common indicia of intoxication include an odor of alcohol, bloodshot and watery eyes, slurred speech, and an uncooperative attitude.”), rev. denied (Minn. June 15, 2004). Helget told Gramentz that he was in his own back yard, even though he was standing in another person’s yard and had to cross over a fence to get there. Helget’s statement reasonably suggested either further evasive behavior or confusion stemming from intoxication. Lastly, Helget displayed an uncooperative attitude, which is another recognized indication of intoxication. See id. His refusal to cooperate progressed from verbal to physical resistance as the police tried to secure him in the squad car while they pursued their lawful investigation."

"Admittedly, some might view the existence of probable cause to arrest Helget for DWI in this case as a close call. On one hand, the assertion of impaired driving conduct is limited to the citizen caller’s general allegation that Helget’s pickup was “all over the road.” And the record indicates that the police wanted to do more to confirm their suspicion of DWI. Indeed, the record supports a conclusion that the officers did not subjectively believe that there was sufficient probable cause for a DWI arrest. But our probable-cause determination is based on an objective standard; it is not limited to the beliefs or motives of the arresting officers. “[T]he issue is not whether the officers subjectively felt that they had probable cause but whether they had objective probable cause.” Costillo v. Comm ’r of Pub. Safety, 416 N.W.2d 730, 733 (Minn. 1987) (noting that it was “not clear from the record that the arresting officers subjectively believed that they had probable cause to believe Costillo was under the influence”). Moreover, the possibility of innocent explanations for Helget’s otherwise suspicious behavior does not preclude a finding of probable cause to arrest."

But, as noted by Judge Ross in his dissenting opinion:

"If all it takes to be arrested for and charged with drunk driving is a caller asserting generally that a car was “all over the road” and an officer noticing that the driver smells like he consumed any amount of alcohol, then the Fourth Amendment doesn’t do much in Minnesota to prevent unreasonable seizures. I respectfully dissent".

***

"The majority does not address the district court’s primary conclusion that the officers had probable cause to arrest Helget for fleeing on foot. A person who is not in a vehicle commits the misdemeanor offense of fleeing if, “for the purpose of avoiding arrest, detention, or investigation” by “running, hiding, or by any other means” he “attempts to evade or elude a peace officer” who is discharging an official duty. Minn. Stat. § 609.487, subd. 6 (2018). Officer Fay’s uncontradicted testimony and the video footage reveal that, contrary to the district court’s findings, the officer never activated his emergency lights and Helget likely did not know a police officer had ordered him to stop. And the record likewise also uncontradictably establishes that Helget stopped immediately once Officer Fay identified himself. Helget could not have walked away and entered his neighbor’s yard “for the purpose of’ evading a police officer because, according to the officer who testified about it, Helget was unaware he was walking away from police. The circumstances did not establish probable cause to arrest Helget for fleeing.

I am convinced that the same is so regarding the district court’s alternative conclusion that the officers had probable cause to arrest Helget for drunk driving. In numerous cases, we have considered whether circumstances like those the officers faced here (an imprecise nighttime complaint about bad driving and the odor of an alcoholic beverage) support an officer’s reasonable suspicion to investigate the driver for drunk  driving. But we have never suggested what the majority holds today, which is that these circumstances justify leapfrogging reasonable suspicion and landing all the way at probable cause to arrest the driver for drunk driving with no further inquiry necessary—no need to closely observe the driver, no need to question the driver, no need to look for clear characteristics of impairment, and no need to administer field sobriety tests."

***

"Lacking more information, we simply cannot say that Helget’s driving even began to establish probable cause of alcohol-based impairment. When considering whether a caller’s report meets even the lower standard of reasonable suspicion, “If the police chose to stop on the basis of the tip alone, the anonymous caller must provide at least some specific and articulable facts to support the bare allegation of criminal activity.” Olson v. Comm ’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985). I believe that the imprecise report and odor of alcohol here support no more than reasonable suspicion to detain and investigate. The officers chose instead to arrest first and investigate later. In doing so, they did not honor the Fourth Amendment with proper, constitutional policing."

Moral Of The Story: If you have been drinking, try to say out to the neighbors yard.

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minnesota DWI Lawyer, 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. Baas (Decided December 12, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that an officer only needs a "reasonable" basis to believe someone is speeding in order to make a traffic stop. 

In Baas, the Defendant was observed accelerate rapidly from a stop sign by a Blue Earth County Sheriff's deputy.  The deputy was a block away when he made the observation.  

The deputy turned onto Front Street in Mankato in the direction that the Defendant was headed while the Defendant travelled parallel to him on Second Street. Based on the time in which it took for the Defendant to reach the intersections ahead of them, the deputy believed that the Defendant was traveling faster than normal traffic in this area and too fast for the road conditions. While catching up to the Defendant's vehicle, the deputy travelled at a speed up to 54 miles per hour in a 30 mph zone. 

The Deputy initiated a traffic stop and inevitably, placed the Defendant under arrest for DWI.  At a pretrial evidentiary hearing, the Defendant moved to dismiss the criminal complaint, arguing that reasonable, articulable suspicion did not support the traffic stop. The district court upheld the constitutionality of the traffic stop and denied the motion to dismiss the complaint.

On Appeal, the Minnesota Court of Appeals affirmed the district court noting:

"A police officer may conduct a “brief, investigatory stop of a motor vehicle when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” State v. Taylor, 965 N.W.2d 747, 752 (Minn. 2021) (quotation omitted). The reasonable-suspicion standard is “not high.” State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011). It “requires more than a mere hunch but is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” Taylor, 965 N.W.2d at 752."

***

“When an officer observes a violation of the traffic laws, there is reasonable suspicion to stop the vehicle.” See State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004)."

"Failure to drive with due care and driving above posted speed limits are both violations of traffic laws. Minn. Stat. § 169.14 subds. 1, 2 (2018). Subdivision 1 of the statute provides that “[n]o person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions.” Minn. Stat. § 169.14 subd.l. In other words, an individual may violate subdivision 1 without exceeding any posted or statutory speed limit. See id. Recently, we interpreted section 169.14 in a nonprecedential opinion in State v. Konjaric, No. A18-0724 2019, WL 1320600, at *2 (Minn. App. Mar. 25, 2019), and concluded that the standard for subdivision 1 is that of a reasonable and prudent person, “given the driving conditions and hazards.” Although Konjari is not precedential, we find its reasoning persuasive and adopt it here. Whereas subdivision 1 focuses on the reasonableness of the speed, subdivision 2 makes driving above speed limits prima facie evidence that the speed is unreasonable."

"Appellant claims it was impossible for the deputy to estimate accurately the speed at which appellant was driving, because the streets were dark, there were houses obstructing the view, and the deputy initially only observed appellant’s vehicle from a block away. Appellant further notes that the deputy did not use markers, radar, or the pacing method to estimate appellant’s speed. Lastly, appellant questions the reliability of the speed estimation because the deputy testified that he believed it should take about a minute to drive the one-half mile to where he stopped appellant, yet his squad video showed that it took him about one minute and twenty seconds."

"Appellant conflates the burden of proof required for a traffic stop with the burden required for a speeding conviction. The reasonable-suspicion standard required for a traffic stop is “not high” and “less demanding than probable cause or a preponderance of evidence.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotations omitted). A traffic stop meets the standard when an “officer observes unusual conduct that leads the officer to reasonably conclude in light of his or her experience that criminal activity may be afoot.” Id. (quotation omitted). In contrast, to sustain a conviction for speeding, the evidence must be proved beyond a reasonable doubt. State v. Ali, 679 N.W.2d 359, 364 (Minn. App. 2004)."

***

"Based on the road conditions, the time of day, and the deputy’s first-hand observations, we conclude that the deputy had reasonable, articulable suspicion that appellant violated Minnesota Statute § 169.14, subdivision 1, for failing to drive with due care, and subdivision 2 for driving above the posted speed limit."

Moral Of The Story: Don't drink and drive fast.

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. Higgins (decided October 24, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if a windshield crack is big enough, it will be presumed to interfere with the driver's vision.

In Higgins, the Defendant was stopped on Highway 169 after leaving Hibbing, MN. Mr. Higgins was subsequently charged with DWI and he challenged the validity of the initial stop.

The arresting officer testified he stopped Higgins because he observed (1) a crack in Higgins’s front windshield that “went three quarters of the way through the windshield,” and (2) a suspended object “swinging on the mirror.” The officer could not recall the exact item he saw “swinging” on the rearview mirror or the location of the crack on the windshield. But the officer recalled that the reflection of the sun on the windshield made the crack “very easy to see.”

The District Court denied the Defendant's motion to suppress and on appeal, the Minnesota Court of Appeals upheld the lower court, stating:

"Regarding the scope of the windshield crack, the trooper testified that the crack he observed “went three quarters of the way through the windshield.” He described it as “very easy to see” from the sunshine’s reflection on the windshield at the time of the stop. Based upon this testimony, the district court found that the crack extended across three-quarters of the vehicle’s windshield. Because a crack of this size could lead a reasonable officer to suspect that the driver’s vision was limited, this undisputed factual finding on the size and extent of the crack provides a sufficient basis for the conclusion that the trooper had a reasonable, articulable suspicion that Higgins drove in violation of the obstructed-vision statute. Diede, 795 N.W.2d at 842-43."

"To persuade us otherwise, Higgins references State v. Poehler, where we held that not every windshield crack justifies a traffic stop under the obstructed-vision statute. 921 N.W.2d 577, 580 (Minn. App. 2018), affd on other grounds, 935 N.W.2d 729 (Minn. 2019). Rather, there must be evidence to support a finding that a reasonable officer might suspect that the windshield was cracked to an extent that it limited the driver’s vision. Id. at 580-81. But unlike Poehler—where there was no factual finding about the crack’s size or location—evidence of the windshield crack size exists here."

***

"In sum, we conclude that the trooper had a reasonable, articulable suspicion of criminal activity when he observed the windshield crack on Higgins’s vehicle because the crack spanned “three quarters of the way through the windshield.” Under these circumstances, a reasonable officer could conclude that the crack obstructed the driver’s view in violation of the traffic law."

Moral Of The Story: The bigger the crack, the better the stop.

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. Walter (Decided October 10, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that one can only be convicted of one DWI offense arising out of a single behavioral incident.  This case is nothing new as the Minnesota Supreme Court and Court of Appeals have repeatedly affirmed this principle.  But the case illustrates that some district courts are still not paying attention. 

In Walter, The Defendant was found sleeping in the front driver's seat of a car parked along side Interstate 94 near Moorhead Minnesota. The Defendant was drunk and subsequently refused to submit to testing at the police station.

Mr. Walter was charged with Felony DWI and with Felony DWI Refusal to Submit to testing. The Defendant was found guilty by a jury of both charges and warrant of commitment showed convictions on both counts.  

On Appeal, the Minnesota Court of Appeals vacated the Felony Refusal conviction noting:

"Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2020). The supreme court has held that “section 609.04 bars multiple convictions under different sections of a criminal statute for acts committed during a single behavioral incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985)."

"...this court applies a two-part test to determine whether any of the multiple convictions should be vacated. State v. Bonkowske, 957N.W.2d 437, 443-44 (Minn. App. 2021). First, the convictions at issue must be for offenses that arise under different sections of the same criminal statute. Jackson, 363 N.W.2d at 760. Second, the offenses must have been for acts committed during a single behavioral incident. Id".

"Walter’s convictions for count 1 and count 2 were for offenses arising under different sections of the same criminal statute—Minn. Stat. § 169A.20. Also, this court has held that DWI and test refusal “committed as part of a continuous course of conduct, as occurred here, arise out of a single behavioral incident.” Bonkowske, 957 N.W.2d at 444. Thus, we conclude that the district court erred by entering convictions on counts 1 and 2 on the warrant of commitment."

As explained by State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984):

"[W]hen the defendant is convicted on more than one charge for the same act [the district court is] to adjudicate formally and impose sentence on one count only. The remaining conviction(s) should not be formally adjudicated at this time.

If the adjudicated conviction is later vacated for a reason not relevant to the remaining unadjudicated conviction(s), one of the remaining unadjudicated convictions can then be formally adjudicated and sentence imposed, with credit, of course, given for time already served on the vacated sentence."

Moral Of The Story: One conviction is one too many but legally speaking, one is plenty!

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI 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. Hower (Decided September 26, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that refusal to submit to testing can be by words or conduct.

In Hower, the Defendant was convicted of felony DWI by a jury. The facts showed that in November 2020, a law-enforcement officer responded to a call that a pickup truck had crashed in a ditch and arrived to find Hower asleep in the driver’s seat. The officer questioned Hower about what happened, and Hower—who is unable to speak—reacted by motioning to his leg, which the officer interpreted to mean that Hower’s leg was in pain. The responding officer testified at trial that he believed Hower was intoxicated based on the smell of alcoholic beverages, Hower’s inability to stand or walk, his bloodshot, watery eyes, and empty beer cans along with an opened, partially empty bottle of liquor on the floor of the truck’s passenger seat. An ambulance transported Hower to the hospital.

The police obtained a search warrant for the Defendant's blood or urine and told Hower repeatedly that he could nod or shake his head in response to the question of how he preferred to provide a sample for testing. 

At first, Hower did not respond to the officer’s questions. The officer asked Hower several more times if he would provide a blood or urine sample and continued to repeat that it was a crime to refuse. After the officer repeated his questions and tried to get Hower’s attention, Hower gestured to the officer, who gave Hower a pen and paper. Hower then wrote a few words, such as, “for watt,” which the officer interpreted to mean Hower was asking why the officer needed a blood or urine sample; “Scott driving, not me,” which the officer interpreted to mean Hower was saying someone named Scott was driving the truck when it crashed; and “hospital,” to which the officer responded by telling Hower that he was in the hospital to get his leg examined. The officer then asked again how Hower would like to complete the chemical test, and Hower wrote, “P,” which the officer took to mean Hower would provide a urine sample.

The officer left to retrieve a urine-testing kit. When the officer returned with the kit, he tried to get Hower’s attention by repeatedly saying his name. Hower did not respond and appeared to be asleep. The officer reminded Hower that if he did not respond, it would be a refusal. Hower then appeared to wake up. The officer asked Hower if he would “pee in a cup” and told Hower that if he kept “messing around,” the officer would consider it to be a test refusal. The officer again repeated Hower’s name, asked several more times if Hower was going to take the test, asked Hower to open his eyes, and told Hower to nod his head yes or no. Hower motioned to his leg. The officer told Hower that on initial review, the medical staff had not identified anything wrong with Hower’s leg. The officer yet again asked Hower whether he was going to take the test, and Hower did not respond; the officer said, “See, you stop answering me when I ask those questions.” Moments later, medical staff wheeled Hower into an exam room. The officer testified at trial that he considered Hower to have refused to test once the medical-staff member came to get him; therefore, the officer did not make any additional attempts to secure a sample after that time.

Defendant argues that the evidence supporting his conviction for test refusal was insufficient, and both parties agree that the evidence of the refusal was primarily circumstantial. Appellate courts apply greater scrutiny when assessing the sufficiency of circumstantial evidence. 

The Court of Appeals affirmed the conviction, noting:

"To sustain a conviction based on circumstantial evidence, the reasonable inferences that can be drawn from the circumstances proved as a whole must be consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.” Id. at 598 (quotation omitted). This court first identifies the circumstances proved, with the assumption that the jury rejected evidence in the record that is inconsistent with its verdict. Hanson, 800 N.W.2d at 622. Second, we examine the reasonableness of all inferences that might be drawn from the circumstances proved, including inferences consistent with a hypothesis other than guilt. Id. If there are no reasonable, rational inferences that are inconsistent with guilt, this court should affirm the conviction. Id."

"Based on the evidence here, the state proved the following circumstances: (1) Hower initially did not respond to the officer’s request for a chemical test; (2) Hower then appeared to agree to submit to a urine test; (3) when the officer returned with a kit to begin the process of administering the urine test, Hower appeared to be asleep; (4) after the officer reminded Hower that if he did not respond, it would be a test refusal, Hower appeared to wake up; (5) Hower then refused to communicate nonverbally as he had communicated with the officer before; and (6) Hower once again did not respond to the officer’s request to complete a urine test. These circumstances are consistent with Hower indicating an actual unwillingness to submit to the test. See Ferrier, 792 N.W.2d at 102 (deeming that failure to produce urine for testing after verbally agreeing to test was sufficient circumstantial evidence of actual unwillingness to submit to testing)."

"Hower, however, argues that there are other reasonable inferences based on these circumstances, including that he was not unwilling to test but simply unable to communicate because after he wrote, “P,” the pen and paper were taken away, and alternatively, that he was willing to do a urine test but did not want to do so in the public waiting area. Hower also argues that there was no requirement to consent to the test a second time after he had written, “P.” Ultimately, he argues, it is a reasonable inference that it was the officer’s failure to administer the test, not Hower’s failure to comply with the test, that frustrated the testing process."

"Hower’s proffered inferences are unreasonable based on the circumstances proved. The testimony and body-camera footage presented at trial support the inference that Hower demonstrated a clear disinterest in participating in the urine test. Hower’s argument that the removal of his pen and paper meant that he could no longer participate in testing is contradicted by the officer’s body-camera footage showing that Hower motioned with his head and his hands in response to other questions the officer asked. A driver’s refusal to submit to testing includes indicating, through words or actions, an “actual unwillingness to participate in the testing process,” even after initially consenting to a test."

***

"The record here includes evidence showing that after appearing to agree to a chemical test, Hower ignored the officer once he returned with the test kit and did not respond to questions about taking the test even as he responded nonverbally to other questions the officer asked. These circumstances support a reasonable, rational inference that Hower was indicating an actual unwillingness to participate in the testing process. We conclude that, when viewed in the light most favorable to the verdict, sufficient evidence exists in the record to support Hower’s conviction for refusal to submit to chemical testing."

Moral Of The Story:  You can still refuse even if you cannot speak.

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minnesota DWI Lawyer, 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. Roth (Decided August 15, 2022, Minnesota Court of Appeals, Unpublished), which stands for the proposition that you can challenge a prior revocation if you can prove you were crazy during the entire 60-day challenge window.

In Roth, the Defendant was charged with Second Degree DWI as he had two prior offenses within the past ten years.  One of the prior offenses used to make the current offense a 2nd degree was a 2018 implied consent license revocation. The Defendant had been found not guilty of the related 2018 DWI charge because at the time of the DWI offense, Ruth’s mental illness had made him unable to understand the nature or wrongfulness of his behavior.

Ruth filed a motion to dismiss for lack of probable cause, arguing that the state’s use of the 2018 license revocation to enhance the severity of the charges violated his constitutional rights. Ruth contended that the district court’s ruling in the corresponding 2018 criminal case that he was not guilty by reason of mental illness created an inference that he was also incompetent during the 60-day judicial-review period for the revocation of his driver’s license. He further argued that, because he was unable to challenge the 2018 revocation due to his incompetence, the state’s use of the revocation to enhance the 2020 DWI charges violated his right to due process. 

The District Court denied the motion to dismiss and on appeal the Minnesota Court of Appeals agreed with the lower court noting:

"Under Minnesota law, the revocation of an individual’s driver’s license following an impaired-driving arrest may be used to enhance the severity of subsequent DWI charges. State v. Wiltgen, 737 N.W.2d 561, 569 (Minn. 2007)

***

"Designed to protect public safety, DWI-related driver’s-license revocations are civil proceedings in which the 60-day period for requesting judicial review is strictly construed, even when a delay in pursuing judicial review is not the driver’s fault. McShane v. Comm ’r of Pub. Safety, 377 N.W.2d 479, 481-82 (Minn. App. 1985)."

***

"Ruth acknowledges that he did not timely seek judicial review of his 2018 driver’s- license revocation. But, relying on the district court’s 2018 determination that he was not guilty of the corresponding criminal DWI charges by virtue of his mental illness, he contends that he was also mentally incompetent during the 60-day window for requesting judicial review and therefore could not timely initiate that process. In further support of his assertion that he was not competent to timely seek judicial review, he asks us to take judicial notice of the evaluator’s competency report in the 2018 criminal case, which concluded that he could not appreciate the wrongfulness of driving while impaired at the time of the offense. According to Ruth, because there was no judicial review of the 2018 revocation, and because he was incapable of requesting judicial review, the revocation could not be used."

"Ruth contends that his case is unique, making his collateral attack on the validity of the 2018 revocation proper, because his incompetence precluded him from utilizing the available judicial review. In support of this argument, he cites to Anderson, where a driver attempted to challenge prior revocations by initiating an untimely civil implied-consent hearing—the judicial-review hearing afforded under the statutory scheme. 878 N.W.2d at 928. Like Ruth, the driver in Anderson argued that he had been incapable of timely requesting judicial review because, due to his mental incompetence, he had not understood the notice he received. Id. at 929. We rejected the driver’s use of an implied-consent hearing as a vehicle for challenging the revocations because the district court lost jurisdiction over such a proceeding when the driver failed to timely request review.  Id. at 930. But we stated that the driver could potentially challenge the revocations in a criminal proceeding if the state sought to use the revocations to enhance criminal charges. Id."

"Ruth points out that we essentially addressed his circumstances in Anderson, when we stated, “The circumstances in this case may well constitute one of the ‘unique’ cases in which a criminal defendant may collaterally attack a revocation to prevent it from serving as an enhancement.” Id. He observes that he, like the driver in Anderson, was unable to timely seek judicial review due to mental incompetence. But Ruth notes that, unlike the driver in Anderson, he used the proper vehicle for challenging his revocations—a collateral attack in the context of his criminal case."

"Ruth’s attempt to collaterally challenge the 2018 revocation is flawed, however. We reject his collateral attack on the revocation for two reasons."

"First, in Anderson, we “expressed] no opinion as to the outcome of [the] analysis.” Id. at 930. Thus, Anderson does not hold that a driver’s incompetence during the judicial- review period precludes the use of the revocation to enhance a subsequent offense."

"Second, and even more importantly, the record does not support Ruth’s claim that he was not competent to seek judicial review of the 2018 revocation. His claim relies entirely on the district court’s judicial notice of an order in his 2018 criminal case finding him not guilty of DWI by reason of mental illness. The record contains no evidence of Ruth’s competence to participate in judicial proceedings during the 60-day window for seeking judicial review. And the record does not even include the evaluation that the district court relied on in 2018 to find Ruth not guilty by reason of mental illness.  Based on the record here, we cannot infer—as Ruth asks us to do—that he was not competent to seek judicial review in 2018. Yet, this factual assertion provides the entire foundation of Ruth’s legal argument. Because the record does not support Ruth’s claim that he was not competent to seek judicial review, his legal argument fails."

"We cannot conclude that Ruth’s mental condition prevented him from requesting judicial review of his 2018 driver’s-license revocation. Because Ruth waived judicial review by failing to timely request it, the use of the revocation to enhance his current DWI offense did not violate his constitutional right to procedural due process."

Moral Of The Story: That's one crazy driver!

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. Johnson (Decided June 27, 2022, Minnesota Court of Appeals, Nonprecedential) which stands for the proposition that jury instructions are to be read and interpreted in their entirety. 

In Johnson, the Defendant was arrested for DWI and was read the Minnesota breath test advisory at a police station in St. Louis County. Defendant was asked to provide a sample of his breath and Johnson declined.  The officer, without first obtaining a search warrant, then asked the Defendant to submit to a urine test.  Johnson again declined to submit to testing. Mr. Johnson was subsequently charged and convicted of felony refusal to submit to a breath test.

On appeal, Johnson argued that his conviction for test refusal must be reversed because the district court's instruction did not specify which chemical test the state had to prove Johnson refused when he refused both the breath test and a urine test. 

The Court of Appeals affirmed the conviction noting that since the Defendant did not object to the instructions in the district court, the appellate court would use the "plain error" standard of review: 

"When reviewing jury instructions for plain error, appellate courts review them in their entirety to determine whether the instructions fairly and adequately explain the law of the case...Appellate courts will not reverse a district court’s decision on jury instructions absent an abuse of discretion. Id. District courts abuse their discretion if the instructions “confuse, mislead, or materially misstate the law,” State v. Taylor, 869 N. W.2d 1, 14-15 (Minn. 2015) (quotation omitted), or if the instructions omit an element of the charged offense, State v. Stay, 935 N.W.2d 428, 430 (Minn. 2019)."

"Once an officer has (1) probable cause to believe that the person was driving while impaired, (2) placed the person under lawful arrest for DWI, (3) requested that the person take a breath test, and (4) read the person the breath-test advisory, Minn. Stat. § 169A.51, subds. 1(b)(1), 2 (2018), “[i]t is a crime for any person to refuse to submit to a chemical test. . . of the person’s breath.” Minn. Stat. § 169A.20, subd. 2(1)."

"However, a person cannot be prosecuted for refusing to submit to an unconstitutional warrantless blood or urine test. State v. Thompson, 886 N.W.2d 224, 234 (Minn 2016)."

"Here, the district court instructed:

First, a peace officer had probable cause to believe that the defendant drove, operated, or was in physical control of a motor vehicle while under the influence of alcohol. . . .

Second, the peace officer placed the defendant under lawful arrest for driving while impaired. . . .

Third, the defendant was given the breath-test advisory by the peace officer.

Fourth, the defendant was requested by the peace officer to submit to a chemical test of the defendant’s breath.

Fifth, the defendant refused to submit to the test."

Johnson claimed that because the fifth element of the jury instructions failed to specify which test the state had to prove Johnson refused and instead merely said “the test,” the jury was not properly instructed that Johnson could only be convicted if he refused the breath test, not the urine test.

The Court of Appeals rejected Johnson's claim, holding:

"The jury instructions given by the district court included all elements of the offense and fairly explained the law. Milton, 821 N.W.2d at 805. When read “in their entirety,” it is clear that the fifth element was referring to a breath test. Id. The contested sentence— “Fifth, the defendant refused to submit to the test”—immediately followed two sentences that listed the “[tjhird” and “[fjourth” elements of the offense and included “breath test” and “test of the defendant’s breath.” The first sentence of the instructions also stated that “whoever refuses to submit to a chemical test of the person’s breath ... is guilty of a crime.” There was no reference to a urine test in the jury instructions. Thus, when the fifth element is read in context, the jury instructions did not “confuse, mislead, or materially misstate the law.” Taylor, 869 N.W.2d at 14-15 (quotation omitted). Consequently, under the plain-error analysis, the district court did not err in its jury instructions."

Moral Of The Story: If you refuse to submit, they will convict.

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.