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

The Minnesota DWI Case Of The Week is State v. St. John (A Published Decision, Minnesota Court of Appeals, issued May 19, 2014) which stands for the proposition that Third Degree DWI is not a lesser included offense of Second Degree Refusal and, for sentencing and conviction purposes, the Third Degree DWI offense is more serious than the Second Degree DWI Refusal.

In St. John, the Defendant had one prior DWI within the past ten years when she was arrested for the current DWI offense.  The Defendant refused to submit to testing at the police station and was subsequently charged with Third Degree DWI (i.e. DWI with one prior offense) and Second Degree DWI Refusal (i.e. Refusal with one prior DWI).

The Defendant entered a plea of guilty to both the Second Degree DWI Refusal and the Third Degree DWI.  At sentencing, the Defendant's attorney argued that the Defendant could be convicted of only one offense but not both.  The District Court agreed and held that Third Degree DWI is a lesser included offense of Second Degree DWI and sentenced the Defendant for the Second Degree offense.

On Appeal, the Minnesota Court of Appeals reversed the District Court in part, finding that the District Court erred when it held that Third Degree DWI was a lesser included offense of Second Degree Refusal.  The Court of Appeals noted at in order for an offense to be a "lesser included" one, all of the elements of the "lesser" offense MUST BE contained in the elements of the "greater" offense.

The Court of Appeals pointed out that in order to be convicted of Third Degree DWI, the State must prove beyond a reasonable doubt that the Defendant was under the influence at the time of driving.  But Second Degree Refusal only requires that the officer have "probable cause" to believe the Defendant was under the influence at the time of the refusal.  Because an officer could have probable cause to believe that a driver was under the influence of alcohol even though the driver was not, in fact, under the influence of alcohol, a driver could commit the second-degree test-refusal offense without committing the third-degree driving-under-the-influence offense.  Thus the District Court erred when it held that the Third Degree DWI was a lesser included offense of Second Degree Refusal.

The Minnesota Court of Appeals further held that it was error to sentence the Defendant on the Second Degree DWI count instead of the Third Degree DWI offense.  

The Court of Appeals noted that in State v. Simon, the Minnesota Supreme Court held that the offenses of driving under the influence and test refusal, "arose from a single behavioral incident and therefore, under Minnesota Statute § 609.035 the driver may only be sentenced for one offense".  But which one?

Minnesota Statute § 609.035 contemplates that the defendant will be sentenced for the "most serious" of the offenses arising out of the single behavioral incident because imposing up to the maximum punishment for the most serious offense will include punishment for all offenses.  In determining which offense is the most serious, the court should first look to the maximum sentence for each offense.  Where, as here, the maximum penalties are the same, the court must then look to the nature of the offenses to determine which is the most serious.

In this case, the Court of Appeals found that the Third Degree DWI was more serious than the Second Degree Refusal offense and held that the Defendant should have been sentenced to Third Degree DWI.  The Court reasoned that, "A person driving while under the influence of alcohol directly threatens public safety, but a driver in police custody who refuses to submit to a chemical test is not a threat to public safety".  The driving under the influence offense was the "essence" of her criminal conduct as the driver could not have committed the test refusal offense if the officer did not first believe that the Defendant was driving under the influence.  Therefore, the district court should have imposed a sentence for the driving under the influence offense rather than the second degree refusal offense.

THIS CASE IS HUGE because under Patino v. One 2007 Chevrolet, the Minnesota Supreme Court held that a person must be convicted of a Second Degree DWI offense before forfeiture of a motor vehicle may occur.  A conviction does not occur until the Defendant is sentenced.  So if a prosecutor charges a Defendant with Second Degree Refusal and Third Degree DWI, the defendant is better off pleading to both counts as the conviction will only be for the Third Degree DWI and any forfeiture of the motor vehicle must be dismissed!

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

The Minnesota DWI Case Of The Week is State v. Williams (Unpublished, Minnesota Court of Appeals, issued April 14, 2014) which stands for the proposition that if you are going to drive drunk or without a license, it is best to be operating a vehicle in perfect condition.

In Williams, the Defendant was stopped by the police because the center brake light on the Defendant's vehicle was illuminated at only one-third of its capacity.  The Defendant successfully challenged the stop and got his case dismissed in the district court on the grounds that the officer did not have a constitutionally sufficient basis to make the initial stop of his vehicle.  

Alas, on appeal the Minnesota Court of Appeals reversed the district court noting that Minnesota Statute 169.57, subd. 1 requires that all brake lights on a motor vehicle be "maintained in good working condition".  Mr. Williams argued that he had not violated the statute because while his center brake light was only partially illuminated, it was in "good working condition" because the arresting officer could observe that it lit up when the brakes were applied.

The Minnesota Court of Appeals disagreed with Mr. Williams stating, "We do not agree that the statute merely commands that brake lights be perceptible.  The plain meaning of "good working condition" does not mean a brake light functioning at one-third of its capacity.  Nor does "good" working condition mean "adequate" or "sufficient" working condition." Because the Defendant's brake light was not in good working condition, the District Court erred in suppressing the evidence.

MORAL OF THE STORY: You must be dim bulb to drive a car that is not in good working condition!

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

The Minnesota Case of the Week is State v. Anderson, (Unpublished, Minnesota Court of Appeals, issued March 3, 2014) which stands for the proposition that if you are going to drive drunk, it is best not to assault the officers seeking to place you under arrest!

In Anderson, the Defendant was stopped by the State Patrol for speeding.  When the trooper approached the driver's-side window, he smelled the odor of alcohol, observed the Defendant's speech was slurred and that Defendant's eyes were bloodshot and watery (i.e the holy trinity of state trooper dwi symptoms).  The trooper asked Mr. Anderson to get out of his vehicle to perform some field sobriety tests.  In response, Mr. Anderson stated, "F*ck you" and drove off at a high speed.

The state trooper gave chase and eventually Mr. Anderson lost control of his vehicle and crashed his car into a center median.  The Defendant then got out of his car and charged the state trooper.  Mr. Anderson punched the state trooper on the side of the head before being taken to the ground and placed under arrest.

The Defendant was charged, convicted and sentenced to 60 months in prison for Felony DWI, Fleeing a Police Officer and Fourth Degree Assault.  On appeal, the Defendant argued that the trial court erred by imposing sentences on all three offenses because the charges all arose from the "same behavioral incident".

The Minnesota Court of Appeals rejected the Defendant's challenge and affirmed the District Court noting that: "As a general rule, if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses. Minn. Stat. § 609.035, subd. 1 (2010). Accordingly, if a person is charged with multiple offenses, a district court must determine whether the offenses resulted from a single behavioral incident, in which event multiple punishments are prohibited".  

The purpose of the statute is to "protect a defendant convicted of multiple offenses against unfair exaggeration of the criminality of his conduct".  And in determining whether multiple offenses arose from a single behavioral incident, the Court utilizes a two-part test:

(1)  Did the offenses occur at substantially the same time and place, and;

(2)  Did they all arise from a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.

In this case, the Court of Appeals held that the Defendant was correct that the three offenses, "occurred at substantially the same time and place".  But the Court of Appeals then found the Defendant had failed to meet the second part of the test (i.e. the offenses did not arise from "a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment").

The Appellate Court found that there were distinct interruptions that broke the continuity of the Defendant's conduct.  Anderson was engaging in the first offense, DWI when he was stopped by the state trooper.  The Defendant had pulled over the to side of the road and was initially cooperative with the trooper, thereby interrupting his criminal activity.  But after speaking to the trooper for several minutes, Anderson decided to flee, thereby committing the second offense.  After crashing his car and ending the chase (i.e. the second offense), the Defendant chose to then commit the third offense, assaulting a peace officer.  Because Anderson's course of conduct was interrupted twice, the Court of Appeals held that the offenses did not arise from "continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment".  Therefore, the offenses did not arise from a single behavioral incident and multiple sentences were properly imposed by the District Court.

Moral Of The Story:  Drinking can make you mean.

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

The Minnesota DWI Case Of The Week is State v. Drum, (Minnesota Court of Appeals Unpublished Opinion issued January 27, 2014) which stands for the proposition that simply reading the Minnesota Implied Consent Advisory to a person under arrest does not render "involuntary" his or her consent to the warrantless search of the breath, blood or urine.

In Drum, the Defendant was arrested for DWI and was read the Minnesota Advisory, which states in pertinent part, "Minnesota law requires you to submit to testing" and, "Refusal to submit to testing is a crime."  The Defendant subsequently submitted to testing and his breath test result was a .14

The Defendant filed a motion to suppress the test result arguing that his consent to testing was not voluntary as the Minnesota Advisory coerced him into taking the test.  The District Court agreed with the Defendant and threw out the test result but on appeal, the Minnesota Court of Appeals reversed, stating:

"In Brooks, 838 N.W.2d at 570-72, the Minnesota Supreme Court held as a matter of law that the criminal test-refusal penalty in the implied-consent law is not coercive. Although we look to the totality of the circumstances to determine consent, Dezso, 512 N.W.2d at 880, nothing in this record reveals further circumstances that would lead us to conclude that Drum’s consent was coerced. We therefore hold that Drum voluntarily consented to the breathalyzer test at issue in this case, and reverse and remand for proceedings consistent with this opinion and Minnesota law." 

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

The Minnesota DWI Case Of The Week is   State v. Addickes, (Minnesota Court of Appeals Unpublished Opinion issued October 15, 2013) which stands for the proposition that even though the DWI blood test sample was destroyed before it was inspected by the Defense, the BCA test result is still admissible unless the Defendant can prove the  blood sample contained exculpatory evidence and was destroyed "in bad faith".  Needless to say, the Defendant lost.

In Addickes, the Defendant was arrested on suspicion of DWI. While under arrest, he gave a blood sample that was tested by the Minnesota Bureau of Criminal Apprehension (BCA).  The test found his blood sample to have an alcohol concentration of .17. 

The Defendant's attorney served the prosecutor with a disclosure demand that included a request for all reports of “examinations, scientific tests, experiments or comparisons made in connection with the particular case.” The state responded on March 8, 2011, with a report on the BCA’s test of the blood sample. The report indicated that the sample would be destroyed on February 2, 2012, or 12 months after the test.  

On March 4, 2011, the Defendant's case was mistakenly dismissed. When the error was discovered on January 9, 2012, the district court ordered that the previous dismissal be vacated. Defendant's attorney called the BCA on March 22, 2012, to request access to the sample and was informed it had been destroyed on or about March 2, 2012.  Appellant then requested a contested omnibus hearing, claiming a due process violation as a result of the destruction of the blood sample and requesting suppression of the results of the blood test. After the hearing, the district court denied the Defendant's motion to suppress.  

On Appeal, the Court noted that in State v. Hawkinson, 829 N.W.2d. 367 (Minn. 2013), the Minnesota Supreme Court stated that in determining whether a blood test result should be suppressed, the courts are to look at two factors: 

(1)  Was the destroyed evidence exculpatory (i.e. favorable)  to the defense and;

(2)  Was the evidence destroyed in bad faith.

In the present case, the Addickes Court held that since the blood sample was not favorable evidence to the defense (as it contained an alcohol concentration level of .17) and the sample was destroyed after notice to the defense and pursuant to its regular practice, there was no due process violation and the test result was properly admitted at trial.

MORAL OF THE STORY: If you want to examine the state's evidence, you better do it in a timely fashion. So don't put off till tomorrow what you can do today!   

The Minnesota DWI Case Of The Week is   State v. Freeman, (Minnesota Court of Appeals, Unpublished, decided September 9, 2013), which stands for the proposition that the test will not be suppressed even though the police eavesdropped on the defendant's conversation with his attorney. 

In Freeman, the Defendant was arrested for DWI and was taken to the Cass County Jail for alcohol testing.  Prior to submitting to a breath test at the jail, the Defendant asked to consult with counsel.  Mr. Freeman contacted an attorney by telephone and the attorney advised the Defendant to submit to testing.  The attorney-client consultation occurred over a speaker phone and both sides of the consultation were recorded by the arresting officer.

The Defendant moved to suppress the breath test result arguing that his right to counsel had been violated by recording his conversation with his attorney.  The District Court granted the motion to suppress but on the State's appeal of the ruling, the Minnesota Court of Appeals reversed.

In its decision reversing the District Court, the Minnesota Court of Appeals noted, "An individual who is in law-enforcement custody generally has the right to 'a private interview' with an attorney or 'private telephone access' to an attorney.  But the Minnesota Supreme Court has rejected the argument that law enforcement must provide a driver exercising his limited right to pretest counsel with a private telephone or private room in which to call an attorney, reasoning that 'given the limited nature of the right to counsel in this context, police do not have to provide a DWI arrestee with a private telephone because the arrestee’s rights will be sufficiently protected by the subsequent exclusion of any overheard statements or any fruits of those statements.' Comm’r of Pub. Safety v. Campbell, 494 N.W.2d 268, 269-70 (Minn. 1992). The supreme court noted that 'proper testing procedures' generally require that the officer remain in the presence of an arrestee in order to impeach any later testimony by an arrestee who submits to testing that ingestion of something at the station might have affected the test results." 

"As to remedies, precedent establishes a distinction between cases in which the police refuse to allow an attorney-client consultation prior to testing and cases in which the police allow a consultation but do not honor the driver’s statutory right to a private consultation. When law enforcement refuses to allow a driver to contact an attorney and the driver subsequently submits to chemical testing without the benefit of legal advice, suppression of the test results is the appropriate remedy. See State, City of Belle Plaine v. Stradcutter, 568 N.W.2d 545, 548 (Minn. App. 1997).  But the remedy is narrower when the police allow a driver to telephone an attorney but do not provide the driver with privacy during the call. In such cases, the remedy is suppression of any overheard statements, as well as the fruits of those statements, and not suppression of the test results. See Campbell, supra."

Thus the District erred when it suppressed the breath test results and its ruling is reversed.

MORAL OF THE STORY: Talk softly because you never know who may be listening!

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   Murtha v. Commissioner of Public Safety, (Minnesota Court of Appeals, Unpublished, decided July 15, 2013), which stands for the proposition that if your DWI Attorney is going to present a medical defense, he should have at least a passing knowledge of the Minnesota Rules of Evidence.

In Murtha, the Petitioner claimed that his DWI breath test result was not accurate or reliable because he suffers from GERD (gastroesophageal reflux disease) and at the time he took the breath test, he was experiencing symptoms of his acid reflux disease.  

The Petitioner then had a forensic toxicologist testify about the potential effect of mouth alcohol caused by GERD on breath test results. The expert testified that mouth alcohol consists of alcohol that is regurgitated into the mouth from one's stomach. And if mouth alcohol is present as a result of the GERD condition, the breath test results would show a higher alcohol concentration than would be present absent the mouth alcohol.  (So far, so good).

The Petitioner's attorney then sought to introduce his client's medical records to show that his client suffers from GERD.  The district court, however, excluded the diagnosis on the grounds that the doctor's diagnosis, contained in the medical records, was hearsay.  

On appeal, the Minnesota Court of Appeals upheld the district court noting that Rule 803 (4) (The Medical Records Exception to the Hearsay Rule) only allows, "Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment".

In other words, statements the patient makes to the doctor are admissible under the rule because the theory is that someone seeking medical help will tell the truth to get accurate and helpful treatment for the medical condition.  But the diagnosis of the doctor is not covered by the hearsay exception.  The establish the diagnosis, you have to bring in the doctor!!  Since the Petitioner in this case failed to have the doctor testify, the district court did not err in excluding the diagnosis contained in the medical records as hearsay.

Moral of the Story: You should always learn the rules before you try to play the game!!

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