Minnesota DWI Lawyer Blogs on Minnesota Supreme Court's Denial of Further Review of the Source Code Issue!

The State petitioned the Minnesota Supreme Court to reconsider its ruling in State v. Underdahl which ordered the State to produce the intoxilyzer source code used to convict people of exceeding the legal limit of .08.

On July 22, 2009, the Minnesota Supreme Court denied the State's motion for reconsideration. Yipee!!

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

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

This week's featured Minnesota DWI/DUI case is (drum roll please):

State v. Omwega!!!
(Decided July 21, 2009)

There is good news and bad news in this case:

The Bad News:

The Minnesota Court of Appeals ruled, in this published decision, that the Sixth Amendment Confrontation Clause does not require the State to prove all of the underlying facts of an implied-consent license revocation beyond the existence of the revocation itself in order to use the revocation to enhance a charge of driving while impaired.

The Good News:

Citing State v. Mellett, 642 N.W.2d 779, 789 (Minn.App. 2002) , the Court in Omwega reaffirmed that the defense may collaterally attack the use of a prior revocation if the prior revocation was unconstitutionally obtained. As stated by the Court:

"To properly raise the constitutionality of a prior license revocation and shift the burden of proof to the state, an appellant must (1) promptly notify the state that [his] constitutional rights were violated during a prior license revocation; and (2) produce evidence in support of that contention with respect to each challenged [revocation]."

When the State seeks to use a prior conviction to enhance the current charge, it is well established that the prior conviction can be collaterally attacked. See, State v. Nordstrom, 331 N.W.2d 901 at 904 (Minn. 1983)(a prior conviction cannot be used to enhance where the prior conviction was the product of an uncounseled guilty plea and there was no showing of a waiver of the right to counsel); State v. Stuart, 360 N.W.2d 463 (Minn.App. 1985)(a prior conviction cannot be used to enhance where there is no factual basis on the record to support the prior plea); State v. Brown, 346 N.W.2d 187 (Minn.App. 1984)(A prior conviction cannot be used to enhance where the defendant was not informed of the penalty for the prior offense).

It would make no sense whatsoever to hold that a prior conviction, where a Defendant has appeared in Court and answered the charge, is subject to collateral attack but a license revocation, which automatically occurs upon a test failure or test refusal, is immune from collateral challenge. In State v. Mellet, 642 N.W.2d 779 (Minn.App. 2002), the Court recognized that an implied consent license revocation is subject to collateral attack and it is good to see the Court of Appeals reaffirm the Mellet holding in THIS WEEK'S FEATURED MINNESOTA DWI CASE!!

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

F.T. Sessoms, Minnesota DWI Attorney

Minnesota DWI Lawyer Blogs on the Minnesota Source Code Letter

Since it will cost thousands of dollars and approximately 6 months to properly evaluate the software used to convict people using the Intoxilyzer 5000 EN, we have sent all of the Chief Judges of the Districts of Minnesota the attached letter asking that all criminal and civil cases be delayed pending the evaluation of the code.

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

Source Code Letter

Minnesota DWI Lawyer Blogs on Minnesota Intoxilyzer Source Code Settlement in United States District Court

On July 16th the Federal District Court in Minnesota approved a settlement allowing individuals charged with DWI's in the state access to the source code, or software, used to run the intoxilzyer 5000 EN machine.

The problem with the settlement is that it requires that the source code be examined at the CMI plant (the manufacturer) in Kentucky. Since the costs of such an analysis will run into the thousands of dollars, this settlement is beyond the reach of most individuals charged with DWI.

I am proud to belong to the Minnesota Society for Criminal Justice (MSCJ). We are coordinating the efforts of the defense bar to retain experts to travel to Kentucky to review the source code as allowed under the terms of the settlement agreement. STAY TUNED!

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

State v CMI Order 7 16 09 Approving Settlement