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

The Minnesota DWI Case of the week is the Minnesota Court of Appeals decision of State v. Hammann, (Unpublished, decided August 1, 2012) which stands for the proposition that it's not a refusal to submit to alcohol testing if you don't ask the right question.

In  Hammann, the Defendant was arrested for DWI and was taken to the Minnetonka Police Department.  He was read the Minnesota Implied Consent Advisory and was asked to submit to a urine test.  The Defendant asked the officers what types of tests the department offered, and an officer responded, "We're gonna offer you urine or blood...If you won't do urine we're gonna ask you for blood and that's it."  Mr. Hammann then repeatedly asked the officers about various aspects of the implied-consent process and unsuccessfully tried multiple time to call his brother and his attorney.

Approximately 48 minutes after the process began, an officer asked Mr. Hammann multiple times within the course of one minute whether he would take a urine test, and Hammann never directly responded. The officer then stated, "Jerald I will consider you to have refused the test at this point".  The Defendant immediately responded, "I am totally willing to take whatever test is appropriate. " But the officer deemed the Defendant to have refused the test.

The Defendant was convicted of 3rd Degree Refusal to Submit to Testing but on appeal, the Minnesota Court of Appeals reversed the conviction noting:

“Any person who drives . . . a motor vehicle within this state . . . consents . . . to a chemical test of that person’s blood, breath, or urine for the purpose of determining the presence of alcohol,” and “[i]t is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine.” Minn. Stat. §§ 169A.20, subd. 2, 169A.51, subd. 1(a) (2010)." 

"The peace officer who requires a test pursuant to this section may direct whether the test is of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered. 

Minn. Stat. § 169A.51, subd. 3 (2010) (emphasis added)." 

***

The plain language of the statute only allows action to be taken against a person if that person refuses to take a blood or urine test and an “alternative test was offered.” Minn. Stat. § 169A.51, subd. 3. Here, an officer at the beginning of the implied-consent process told appellant: “If you won’t do urine we’re gonna ask you blood and that’s it.” But that statement is not an offer for alternative testing. In the cases where this court has considered a person to have refused chemical testing, the facts suggest that an officer gave the person the option of choosing a blood or urine test. See State v. Ferrier, 792 N.W.2d 98, 100 (Minn. App. 2010) (“[Officer] then asked appellant if she would take a blood or urine test, and appellant chose to take a urine test.”), review denied (Mar. 15, 2011); Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 257 (Minn. App. 2000) (“[Officer] then asked Busch if he would take a blood, urine, or breath test, but Busch refused to reply.”).

The Minnesota Court of Appeals in Hammann then held that because the Defendant was not offered an alternative test as required by statute, his test refusal conviction must be reversed.

Moral of the Story:  If they don't ask, it's not a crime to not tell.

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

The Minnesota DWI Case of the week is the Minnesota Court of Appeals decision of State v. Bosaaen, (Unpublished, decided May 21, 2012) which stands for the proposition that you should not go poaching if you are already pickled!

In Bosaaen,  the defendant complained that the district court was wrong when it failed to rule that the initial stop of his vehicle was illegal.  The case is interesting as it discusses the proper standard for vehicle stops based upon an informant's tip.

In the present case,  a Mr. "L.K." was driving on a country road in Dakota County when he encountered the defendant in a red Ford F-150 stopped by the side of the road along with two other vehicles.  Thinking that the parties were having vehicle trouble, "L.K." stopped and offered his assistance.  One of the individuals at the scene asked "L.K." if he was, "headed to go hunting".  "L.K." responded that he was not, "because there was no season open right now".  The other man then stated that they were after big venison and that "they had just seen some."

"L.K." called 911 and reported his belief that the men were hunting out-of-season.  "L.K." remained in the area and when the vehicles, including the defendant's, left the area, "L.K."reported their movements to the police.  The police were able to locate the defendant's Ford F-150 and made a vehicle stop to investigate the possible poaching complaint.  Unfortunately for Mr. Bosaaen, he was drunk when he was stopped by the police and was then arrested for DWI.

On appeal, Mr. Bosaaen claimed that the informant's information was insufficient to justify the stop of his vehicle and since the police did not independently observe any driving misconduct, the stop was illegal and all the evidence of intoxication must, therefore, be suppressed.

The Minnesota Court of Appeals disagreed with the defendant holding:

A police officer is permitted to make a limited investigative stop if the officer has “a reasonable, articulable suspicion that the suspect might be engaged in criminal activity". The reasonable suspicion standard can be met based on information provided by a reliable informant. But information given by an informant must bear indicia of reliability that make the alleged criminal conduct sufficiently likely to justify an investigatory stop by police.  Citizen informants are presumed to be reliable. 

Minnesota cases dealing with investigatory stops based on informant tips have focused on two factors when evaluating the reliability of the tip: (1) identifying information given by the informant, and (2) objective facts supporting the informant’s assertion that the suspect is engaging in criminal activity. Neither of these factors is dispositive, and ultimately the basis for an investigatory stop must be analyzed in light of the totality of the circumstances.

Here, L.K. adequately identified himself, and the Court, therefore, presumes the reliability of L.K.’s tip.   L.K. provided specific facts about his conversation with the occupants and  under the totality of the circumstances, these statements provided a reasonable basis for the police to suspect that the men were hunting deer out of season. The district court did not err in concluding that when appellant was stopped, the police had a reasonable articulable suspicion that appellant might be engaged in criminal activity 

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

The Minnesota DWI Case Of The Week is   State v. Tanksley,  (Decided February 8, 2012) a Minnesota Supreme Court Case which stands for the proposition that, if you have been arrested for a DWI, you should   always,   always   choose a blood test instead of a urine test.


When a person stops drinking, the ethanol is continuously being removed from the individual's blood by their metabolism. The ethanol ends up in a person’s urine, which is a waste product excreted by the kidneys. The urine, containing the ethanol, accumulates in the bladder until the person voids.Little or no oxidation of the ethanol occurs in the bladder and can result in abnormally high urine alcohol concentrations being obtained from the first void. Or to quote from A.W. Jones:

“The length of time that urine is stored in the bladder before voiding is also an important consideration because ethanol is continuously being removed from the blood by metabolism, but no oxidation of ethanol occurs in the bladder. This situation results in abnormally high UAC to BAC ratios being obtained for the first void.” Reference Limits for Urine/Blood Ratios of Ethanol in Two Successive Voids from Drinking Drivers. Journal of Analytical Toxicology, Vol. 26, p. 333 (September 2002).

If a person has not done a first void, there is no relationship or correlation between the amount of alcohol in a person’s urine and the amount actually in their blood. It is not at all uncommon for persons to have high levels of alcohol in their urine and very low or no levels of alcohol in their blood. Minnesota is the only place that does not have any promulgated rules for administering or collecting a urine test. Other states, that don’t prohibit urine testing for alcohol concentration by statute or rule, have all promulgated some rules at least for the proper administration of the test!

So even though a first-void urine test result has no support whatsoever in the scientific community, the BCA has approved of its use and in Tanksley the Minnesota Supreme Court approved of the practice.

The District Court in Tanksley, held that the State does not have to prove that the defendant's urine alcohol level accurately reflected his blood alcohol level and therefore the "pooling effect" of a first-void sample is irrelevant.  The Minnesota Supreme Court agreed with the District Court stating:

"The alcohol-concentration offense requires the State to prove two elements.  First, the State must establish that the defendant drove, operated, or physically controlled a motor vehicle within the State of Minnesota.  Second, the State must prove that the defendant's alcohol concentration was .08 or more at the time, or within 2 hours of the time, the defendant drove, operated, or physically controlled the motor vehicle. Minn. Stat. § 169A.20, subd.1(5).  Minnesota Statutes § 169A.03, subd. 2 (2010), in turn, defines 'alcohol concentration' as: '(1) the number of grams of alcohol per 100 milliliters of blood; (2) the number of grams of alcohol per 210 liters of breath; or (3) the number of grams of alcohol per 67 milliliters of urine.'"

"Whether first-void urine results correlate with blood alcohol concentration is not relelvant to whether the State has proven the two elements of the alcohol-concentration offense.  Section 169A.20, subdivision 1(5), requires proof of 'alcohol concentration,' but under the statute, 'alcohol concentration' can be proven by the number of grams of alcohol in 100 milliliters of blood, in 210 liters of breath, or  in 67 milliliters of urine.  Minn. Stat. § 169A.03, subd. 2.  The statute thus provided three methods for proving the requisite alcohol concentration, and does not express a preference for one method over another. *   *   *"

"Put another way, even if we were to assume that the correlation between first-void urine test results and blood alcohol concentration is weak, as Tanksley argues, evidence of that fact would have not effect on the determination of whether the State proved beyond a reasonable doubt that Tanksley's  urine  alcohol concentration was at or above .08 grams per 67 milliliters of urine within 2 hours of driving, operating, or physically controlling a motor vehicle.  Therefore, the district court was not required to hold a [hearing] to decide the merit of Tanksley's criticism because a lack of correlation to blood alcohol concentration was not relevant to the alcohol-concentration offense."

The problem with the Supreme Court's opinion is that it ignores what the Minnesota DWI Statutes are designed to punish, namely drunk drivers.  The urine and breath alcohol ratios contained in the statute are designed to match the blood alcohol ratio of grams of alcohol per milliliters of blood.  A person with a pooled urine alcohol level of .12 could easily be as sober as a person with a blood alcohol level of .04.  But the urine-alcohol defendant is punished while the blood-alcohol defendant would go free.

MORAL OF THE STORY:  Never submit to a urine test.  Always exercise your right to have a blood test done instead.  At least the blood test will be accurate and not overstate your alcohol concentration level.

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

The Minnesota DWI Case of The Week is   Patino v. One 2007 Chevrolet, (decided October 31, 2011) a published decision of the Minnesota Court of Appeals which stands for the proposition that in order for a DWI vehicle forfeiture to be valid, the Defendant must be convicted of the underlying offense which gave rise to the forfeiture in the first place.  This case is significant as it finally overrules Mastakoski v. 2003 Dodge Durango,  738 N.W.2d 411 (Minn. App. 2007).

In Patino, the Defendant was charged with Second Degree DWI which gave rise to the forfeiture of his vehicle.  The Defendant was charged with Second Degree DWI because he had one prior DWI within ten years of the current offense and he also had a child in the vehicle at the time of the current offense.  The Defendant was allowed to plead guilty to Third Degree DWI (child endangerment) and then he sought the judicial return of his vehicle.

It was the Defendant's position that since he had not been convicted of a designated forfeiture offense (i.e. Second Degree DWI) he was entitled to the vehicle's return.  The State on the other hand relied on Mastakoski v. 2003 Dodge Durango, which had held that the driver need not be convicted of a designated forfeiture offense as long as the driving conduct constituted the commission of a designated offense.

In rejecting the state's position and overruling Mastakoski, the Patino court held, "Forfeiture is a civil in rem cause of action; because it is punitive in nature, the reviewing court strictly construes the language of a forfeiture statute and resolves any doubts in favor of the party challenging the forfeiture...." 

In Mastakoski the Court "...did not address the language of Minn. Stat. § 169A.63, subd. 9(f), which unequivocally states that if 'the forfeiture is based on the commission of a designated offense and the person charged with the designated offense appears in court as required and is not convicted of the offense, the court shall order the property returned to the person legally entitled to it."

The court in Patino therefore held that since the defendant had not been convicted of the designated forfeiture offense, he was entitled to the return of the vehicle.

Moral of the Story:  Give Them Long Enough And They Will Get It Right!

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

The Minnesota DWI Case of the Week is unpublished Minnesota Court of Appeals decision of  State v. Darling,  (decided September 19, 2011), which asks the question, "When is a seizure not a seizure?" Answer: When the Court of Appeals says it is not.

On June 8, 2010, Mr. Darling, after a night of heavy drinking, decided to park his car in front of a locked gate at the entrance to a compost site in Moorhead, Minnesota.  A police officer observed the parked vehicle at 12:15 a.m. and thought this was suspicious because the compost site had been closed for hours and the officer knew that there had been criminal activity at the compost site the previous summer.  The officer parked his marked squad car behind Mr. Darling's vehicle, partially blocking it and shined his spotlight on the vehicle.  Then officer then walked up to vehicle where he found Mr. Darling sleeping.  Things went downhill from there and Mr. Darling was ultimately arrested for drunk driving.

On appeal, Mr. Darling contended the officer's action in partially blocking his vehicle and shining the spotlight on him constituted a "seizure" and that said seizure was illegal as at the time it occurred, the officer did not have a reasonable suspicion of criminal activity.  In deciding the issue, the Court of Appeals correctly noted, "Ordinarily, the mere act of a police officer approaching a person sitting in a parked car and asking questions is not a seizure.  (citations omitted) But such an encounter may become a seizure if there is a demonstration of authority that exceeds the behavior to be expected by a private citizen, such as blocking in a person's vehicle, activating emergency lights, or sounding the horn. State v. Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988)".  So far, so good for Mr. Darling.  But then the Court of Appeals ruled that no seizure occurred since the car was only "partially blocked" and the officer did not use his horn or his emergency lights but only used his spotlight!!

I respectfully submit that the Court's position is incorrect.  Since when is it customary for a private citizen to partially block another private citizen's vehicle and then shine a spotlight on said vehicle?  The standard for whether a seizure has occurred is whether a "reasonable person" would believe that he or she has been seized.  And if a police officer pulls up in a marked squad car and partially blocks a person's vehicle and then shines a spotlight on the occupant, I respectfully submit that a reasonable person would conclude that a "seizure" has occurred.

The Court of Appeals reached the correct result as the police officer had a sufficient legal basis to make the initial seizure.  But to rule, as the Court of Appeals did, that no "seizure" occurred is just plain wrong.

MORAL OF THE STORY: If you are going to go green and compost, do it when you are sober!

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

The Minnesota DWI Case of the Week is the unpublished Court of Appeals decision of  State v. Butcher, (decided August 17, 2011) which stands for the proposition that if you have eleven prior DWI convictions it might be a good idea to never come near the wheel of an automobile!

 In  Butcher, a Park Rapids police officer was on routine patrol shortly before midnight when he noticed a vehicle parked in a commercial area with its lights on.  As he approached the vehicle, the officer noticed Mr. Butcher get into the driver's seat of the car.  The officer saw the vehicle's lights turn off but was unable to recall whether the vehicle's engine was running.  The officer observed the keys in the ignition and that there was a female passenger in the front seat.

Mr. Butcher was drunk and was subsequently convicted of Felony DWI and was sentenced to prison for 79 months.  On appeal, Butcher argued that he could not be convicted of DWI because the state did not introduce sufficient evidence to establish that he drove, operated or was in physical control of a motor vehicle under Minn. Stat. § 169A.20, subd. 1 (1), (5).  Butcher claimed on appeal that the circumstantial evidence equally supported the conclusion that the female passenger had been driving the vehicle before it came to a stop along the road where the officer noticed it.

The Minnesota Court of Appeals had little problem dismissing Butcher's claim noting, "In this case the undisputed direct evidence shows that Butcher was in physical control of the vehicle as he sat behind the wheel of the vehicle with the key in the ignition, and this evidence is sufficient to sustain his DWI convictions. See, State v. Fleck, 777 N.W.2d 233, 235 (Minn. 2010) (holding that evidence of a person sleeping behind the wheel of his vehicle with the keys in the center console of the vehicle demonstrates physical control of the vehicle sufficient to sustain a conviction of DWI).

"The term 'physical control' in Minnesota's DWI laws is meant to cover situations when an intoxicated person 'is found in a parked vehicle under circumstances where the vehicle, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property'. State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992).  Plainly, Butcher's position behind the wheel of the vehicle along with the fact that the key was in the ignition satisfied the definition of physical control.  There is no merit to Butcher's argument that the evidence was insufficient to prove that he was in physical control of a motor vehicle for purposes of Minn. Stat. § 169A.20, subd. 1 (1), (5).

Moral Of The Story:  Never ever get in a vehicle while drunk unless you are a passenger.

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

The Minnesota DWI Case of the Week is the published Minnesota Court of Appeals decision of State v. Brown (decided June 13, 2011), which stands for the proposition that a motorized wheelchair or handicap scooter does not constitute a "motor vehicle" for purposes of the DWI law.

For some reason, Mr. Brown decided it would be a good idea to get drunk and drive his battery-operated three-wheel Legend Pride Mobility Scooter on the sidewalks of the City of Grand Rapids.  Mr. Brown drove his scooter to a car dealership and the dealer called the police as he was obviously drunk.  Mr. Brown was subsequently charged with a DWI and the issue in the case was whether his mobility scooter constituted a "motor vehicle".

The Minnesota DWI Statute defines a "motor vehicle", in relevant part, as "every vehicle which is self-propelled", excluding "an electronic personal assistive mobility device".  A "driver" is defined as "every person who drives or is in actual physical control of a vehicle". A "vehicle" is defined as "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway".

A separate Minnesota Statute, however, defines a "pedestrian" as "any person afoot or in a wheelchair". And a "wheelchair" is defined as including "any manual or motorized wheelchair, scooter, tricycle, or similar device used by a disabled person as a substitute for walking".

After reviewing all of the statutory definitions, the Minnesota Court of Appeals correctly held that, "It is plain that for purposes of the traffic regulations, Brown's scooter is a wheelchair and is not a motor vehicle and Brown, who uses the scooter as a substitute for walking, is, while operating his scooter, a pedestrian....We conclude that Brown's operation of his scooter as a substitute for walking does not make him the driver of a motor vehicle within the meaning of (the DWI statute) and does not subject him to criminal charges for operating the scooter while impaired."

Moral Of The Story:  If you are going to get drunk, walk or take a wheelchair.

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