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Week is Edwardo Rubio-Galarza v. Commissioner of Public Safety (Decided November 27, 2017, Minnesota Court of Appeals, Unpublished), which stands for the proposition that a person's conduct can constitute a "refusal to submit to testing".

In Rubio-Galazara, the Petitioner was arrested for a DWI on August 14, 2016 by the Prior Lake police.  His girlfriend was a passenger in the vehicle and she was cited for minor consumption.  The Petitioner became upset that his girlfriend had been issued a citation and repeatedly questioned the officer as to why she was being charged.  

At the police station, the Petitioner was read the Minnesota Implied Consent Advisory and Petitioner indicated he understood it.  The officer then repeatedly asked the Petitioner if he would submit to a breath test. The officer described Rubio-Galarza as "uncooperative" during this sequence of questioning because he would "try to talk over" the officer and did not provide a straight yes-or-no answer to the officer's repeated question of whether he would submit to a test. At one point, Rubio-Galarza said, "Yes," he would submit to a breath test, "if the officer explained why his girlfriend was being charged. In total, the officer asked Rubio-Galarza whether he would take a breath test approximately 11 times.

The officer explained that he deemed the Petitioner's behavior to be a refusal "because he would not give me a straight answer. I tried to offer him the breath test multiple times, asking him if he would take it, and he repeatedly delayed." The officer agreed that Rubio-Galarza never "specifically said no, I will not take it."   When the officer eventually asked Rubio-Galarza why he was "refusing," Rubio-Galarza answered, "I don't have a reason, I just want you to answer me a question. I just want to know why my girlfriend got a ticket."

The officer never initiated the process to start the breath-test machine, nor did he present Rubio-Galarza with the mouthpiece to blow into the machine. About 15 minutes into the exchange with Rubio-Galarza, the officer handed him a notice and order of license revocation. Upon receiving the order, Rubio-Galarza asserted that he had never refused to take the test.

The Petitioner challenged the license revocation arguing that since he never expressly refused to take the test and since the officer never gave him the opportunity to blow into the machine, he did not "refuse" to submit to testing.  The district court sustained the revocation and on appeal, the Minnesota Court of Appeals upheld the district court, noting that the courts should employ a "totality of the circumstances test" to determine if a refusal has occurred.

In its opinion, the Appellate Court noted: "Refusal to submit to chemical testing includes any indication of actual unwillingness to participate in the testing process, as determined from the driver's words and actions in light of the totality of the circumstances." State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010), review denied (Minn. Mar. 15, 2011). Thus, circumstantial evidence can establish unwillingness to take a test even without a direct statement of unwillingness. If a driver commits actions that frustrate the test, the driver is considered to have refused testing."

"Rubio-Galarza argues that he did not refuse, but rather at most withheld consent, and, he asserts, withholding consent is different from refusing under our decision in State v. Netland. We do not read Netland, which examined the constitutionality of Minnesota's criminal-refusal statute, as altering the standard for determining whether a driver refused to submit to testing. The appropriate inquiry remains whether, under the totality of the circumstances, a driver refused testing by words or actions."

"Rubio-Galarza further argues, though, that the totality of the circumstances does not demonstrate refusal because he did not say, "No," and he was not physically given the opportunity to blow into the machine. He contends that "the only way a law enforcement officer can know if a person is refusing when they have not specifically stated so is by starting the test sequence, presenting the mouth piece to the test subject and giving them the opportunity to provide an acceptable sample within the three-minute window permitted by the testing machine." We disagree. Refusal may be determined by words and actions before the machine is started. See, e.g., State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003) (upholding refusal when driver was uncooperative during the advisory reading)".

Moral Of The Story: It is easier to just say "no".

If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI 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 Torfin v. Commissioner of Public Safety (Decided November 20, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it does not take much for the police to turn a speeding ticket into a DWI Arrest. 

In Torfin, the Petitioner accelerated quickly from a stop sign and was subsequently stopped by a Victoria Minnesota Police officer after the officer clocked the Petitioner going 57 mph in a 45 miles per hour zone.  After stopping the vehicle, the officer approached the car and asked the Petitioner for his license and insurance.  The Petitioner was cooperative throughout the process. 

The officer could smell the odor of alcohol coming from inside the vehicle. The Petitioner "admitted to having a couple of beers." Petitioner  looked straight ahead and did not maintain eye contact with the officer as the two conversed. The officer moved closer to the car and "took a . . . deep breath from inside the vehicle and detected ... the odor of consumed alcohol." Petitioner again admitted to consuming alcohol before driving that night, and refused to take a preliminary breath test because he did not want to "find himself in trouble."

The officer had Petitioner step from the car to perform four field sobriety tests. Appellant's performance on the tests suggested impairment. The officer then arrested appellant for driving while impaired. A later breath test, not challenged on appeal, revealed excessive alcohol in appellant's system, and his driving privileges were revoked.

The Petitioner filed a challenge to the license revocation arguing that the officer did not have a sufficient basis to expand the stop from the speeding ticket to the performance of field sobriety tests.  The District disagreed and upheld the license revocation and on appeal, the Minnesota Court of Appeals agreed with the district court noting:

"A traffic stop initially supported by reasonable suspicion may be expanded, so long as the expansion is "strictly tied to and justified by the circumstances which rendered the initiation of the stop permissible." State v. Asherooth, 681 N.W.2d 353, 364 (Minn. 2004) (quotations omitted). Justification comes from "(1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry v. Ohio." State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012) (discussing the scope of a traffic stop under Minn. Const, art. I, § 10). Reasonable suspicion for the expanded stop must be based on "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion."

"Minnesota courts have articulated several bases on which an officer may permissibly expand the scope of a traffic stop to investigate a driver's possible intoxication. Some indicators of intoxication include the odor of alcohol, slurred speech, glassy eyes, and poor balance."

"We apply the rule of law identified in State v. Wiegand to the evidence here, that is:

"the reasonableness requirement of the Fourth Amendment and Article I, Section 10 of the Minnesota Constitution to limit the scope of a Terry investigation to that which occasioned the stop, . . . and to the investigation of only those additional offenses for which the officer develops a reasonable, articulable suspicion within the time necessary to resolve the originally-suspected offense."

"Here, the officer initially stopped appellant's car for speeding but, given the hour and the driver's aggressive acceleration, the officer suspected from the outset that this might be a drunk driver. Upon approaching the car, the officer could smell consumed alcohol, appellant admitted to drinking alcohol before driving, and appellant stared straight ahead while the two talked. The officer expanded the stop to determine whether the driver was impaired only after having developed a reasonable suspicion of impairment. The officer expanded the stop based on a number of factors including driving conduct, odor of alcohol, admitted consumption of alcohol, and appellant's somewhat unusual behavior in avoiding eye contact. Considering the totality of the circumstances, the evidence in the record supports the district court's determination that the officer had reasonable, articulable suspicion of impaired driving when he expanded the traffic stop to include field sobriety tests."

MORAL OF THE STORY: If you are going to drink and drive you should abide by the remaning traffic laws!

If you or a loved one have been arrested for 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 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. Johnson (decided November 13, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that while it is good to go to school, you may not want to park in its lot, late at night when you are drunk!

In Johnson, police officer Bahl testified that she started working as an officer for the Chaska Police Department on April 11, 2016, and was still in training on June 7. She testified that at approximately 11:52 p.m. on June 7, she was traveling southbound on Minnesota Highway 41 in a marked squad car with Officer Rob Moore who was training her. She noticed a vehicle parked on school property by the stop sign for the entrance to the Chaska Elementary School with its headlights extinguished. She testified that it was late at night, school was not in session, and the vehicle should not have been there.

Officer Bahl completed a U-turn to return northbound on Highway 41 to investigate the vehicle. When she approached the entrance to the elementary school, Officer Bahl observed "[t]hat the vehicle had turned and parked [facing westbound] with all the lights off kind of crooked between where you can either go to the elementary school or come back out towards westbound Highway 41." She did not see the vehicle move. She testified that the road the vehicle was parked on only allows access to the schools, so it is not a place that vehicles would usually park. Officer Bahl noted that there were not any parking spaces near the vehicle and that there were no cars in the school's parking lot. She also noted that there was no indication that there was an event happening at the school, and that there are no nearby residences or businesses that the vehicle could have been associated with.

Officer Bahl first approached the parked vehicle in her squad car without her emergency lights activated. The vehicle's headlights then came on, and it started moving westbound toward Highway 41. Officer Bahl then activated her emergency lights, and the vehicle pulled over at the stop sign before Highway 41. The Defendant was subsequently arrested for a DWI.

The Defendant moved to suppress all of the evidence arguing the officer did not have a sufficient constitutional basis to make the initial stop of his vehicle.  The District Court denied the motion to suppress and on appeal, the Minnesota Court of Appeals agreed.

The Court of Appeals noted in its opinion:

"The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. However, a law enforcement officer may temporarily detain a person that he or she suspects has engaged in criminal activity if "the stop was justified at its inception by reasonable articulable suspicion, and ... the actions of the police during the stop were reasonably related to and justified by the circumstances that gave rise to the stop in the first place."

***

"Here, under the totality of the circumstances, there is evidence in the record that appellant was sitting in a parked vehicle with the headlights extinguished in a high-crime area, then turned on the headlights and started to leave the area after seeing a squad car. It was not error for the district court to conclude that appellant's conduct was evasive or that it contributed to the officers' reasonable articulable suspicion to support the traffic stop."

"Furthermore, in addition to finding that appellant's behavior was evasive, the district court relied on the location of appellant's vehicle, the time of night, and Officer Moore's knowledge of criminal activity in the area. The court found that the officers testified credibly that because of the vehicle's unusual location, its extinguished headlights, the lack of light inside the vehicle, its movement from one side of the frontage road to the other, and its presence in an area that was considered to be high-crime on a summer night, they became suspicious of the vehicle. Under the totality of these circumstances, the officers had reasonable articulable suspicion to stop the vehicle even without a finding that it engaged in evasive conduct."

Moral Of The Story:  A stopped vehicle is easy pickings for the police!

If you or a loved one are facing a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms 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. Xiong (Decided October 30, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you do not challenge in the district court a police officer's qualifications to make a DWI arrest, the issue is waived for appeal.

In Xiong, Minnesota State trooper Krause was driving west on Highway 94 near Snelling Avenue in St. Paul. Trooper Krause noticed a vehicle in the right adjacent lane, about 40 feet away. Trooper Krause observed the vehicle swerve into its right adjacent lane, and both of its driver's side tires crossed over the dotted lane line. Trooper Krause slowed her squad car to continue to monitor the vehicle's operation and manually turned on her in-car camera.

Trooper Krause activated her emergency lights and initiated a traffic stop. After the vehicle pulled over, Trooper Krause exited her squad car, and approached the vehicle.  Trooper Krause asked Xiong how many drinks she had consumed. Xiong "stuttered a little" and, after additional questioning, indicated that she had had two drinks. Trooper Krause asked Xiong to get out of the vehicle so Trooper Krause could determine whether it was safe for Xiong to drive. Trooper Krause administered field sobriety tests, and Xiong performed poorly on the tests. Xiong submitted to a preliminary breath test, which registered a 0.134 alcohol concentration.  Ms. Xiong was placed under arrest and was subsequently charged with a Third Degree DWI.

Xiong moved to suppress the evidence supporting the charge, arguing that she was "unlawfully seized without reasonable, articulable suspicion of criminal activity, and her seizure was expanded without lawful justification." The district court held a hearing on Xiong's suppression motion and allowed defense counsel to submit a written memorandum.

Xiong's attorney submitted a memorandum arguing, in part, that the state did not present evidence that Trooper Krause was a licensed peace officer and therefore did not establish that she was authorized to conduct the traffic stop and DWI investigation in this case. 

The district court refused to consider this issue, concluding that it was waived because it was "not clearly presented or litigated at the motion hearing." The district court noted that at the beginning of the hearing, Xiong identified the issues to be addressed as "the basis for the stop, the expansion of the stop into a DWI investigation, the necessity of a warrant for alcohol concentration testing, and the violation of [her] due process rights." The district court further noted that Xiong did not argue that Trooper Krause was not a licensed peace officer until after the motion hearing, when Xiong submitted her supporting memorandum.

On appeal, Xiong argued that the state presented no evidence that Trooper Krause was a licensed peace officer and so she had no power to conduct a traffic stop or a DWI investigation. The Minnesota Court of Appeals, however, held that the issue has been waived, stating:

"This court generally does not decide issues that were not determined in the district court, State v. Smith, 876 N.W.2d 310, 335 (Minn. 2016), and we will not do so here. Moreover, issues that are not briefed on appeal are waived. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). Because Xiong does not argue that the district court erroneously concluded that the licensing issue was waived, we do not consider reversing and remanding for the district court to decide this issue."

"Trooper Krause testified that she is a "sworn officer" with the Minnesota State Patrol and has made over 150 DWI arrests. In fact, Xiong does not claim that Trooper Krause was unlicensed; Xiong merely complains that the state failed to present evidence regarding the trooper's licensing status. There is little reason to believe that the state would not have been able to prove that Trooper Krause was a licensed peace officer had the issue been raised at the motion hearing."

Moral Of The Story: If you do not raise it, you lose it!

If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: Should I submit to chemical testing if this is my first DWI?

I answer telephone calls 24 hours a day for people who have been placed under arrest for DWI.  And I am often asked by the person under arrest if they should submit to testing.  Most people have never been arrested before and they do not know if they should take a chemical test (breath, blood or urine) at the police station.  

The answer is: it depends!

Most people will test between .08% and .16% alcohol concentration level.  For those people, taking the test is the correct choice as they would then be charged with a misdemeanor offense with a maximum punishment of 90 days in jail and a $1,000.00 fine.  Their license revocation period would be for 90 days with a limited license after 15 days.  

If, on the other hand, the person refuses to submit to testing, the penalty is a gross-misdemeanor with a maximum punishment of one year in jail and a $3,000.00 fine. The license revocation period is for one year with a limited license after 15 days.

If, however, the person under arrest knows that their preliminary breath test (PBT) was over .16%, then taking the test may not be in their best interest.

If a person tests a 16% or more alcohol concentration level at the police station, then the penalty is a gross misdemeanor (the same as a refusal) but the license revocation is for one year and the person is not eligible for a limited license.  In addition, the plates on any vehicle registered to the offender must be impounded and the only way a person can thereafter legally drive is with an interlock device installed on their vehicle and all of their vehicles must have "whiskey plates".

Plate impoundment does not occur on a first time refusal.

In addition, if a person enters a guilty plea to the refusal charge, the license revocation period is cut to 90 days and if the case is reduced to a misdemeanor DWI, the license revocation is further reduced to 30 days. This benefit is not available to a first time 16% (or more) offender.

In other words, say the offender tests at .16% at the police station and the case is reduced by the prosecutor to a misdemeanor DWI: The offender still has to do the one year license revocation and the plate impoundment, with whiskey plates, would also still be in effect for one year even though the criminal charges were reduced.

I will never tell a potential client to refuse to submit to testing. but I will advise the client of the consequences of their decision to allow them to make an informed choice on testing.

This is why it is very important for an individual arrested for a DWI to exercise their right to counsel prior to testing so that they are aware of all of the consequences of their decision to submit to testing.

If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI 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. Carson (Decided October 11, 2017, Minnesota Supreme Court) which stands for the proposition that if a dangerous substance is not listed as a "hazardous substance" in the DWI statute, a person under the influence of the substance may not be convicted of a DWI.

In Carson, the Defendant was arrested three times for DWI.  Each time she was arrested, her blood or urine was found to contain the chemical 1,1-difluoroethane (DFE).  It appears that the Defendant would purchase cans of compressed air which contain DFE as a propellant and she would get high by inhaling, or "huffing" the chemical.

In three separate cases, respondent State of Minnesota charged Carson with two counts of third-degree DWI, Minn. Stat. §§ 169A.20, subd. l(2)-(3), 169A.26 (2016)—one for operating a motor vehicle while under the influence of a hazardous substance and one for operating a motor vehicle while under the influence of a controlled substance. Carson filed a motion to dismiss the hazardous-substance DWI charges because she claimed, in part, that there was insufficient evidence that she was under the influence of a "hazardous substance" as defined in Minn. Stat. § 169A.03, subd. 9.

During a contested omnibus hearing, a forensic scientist testified that DFE is "a propellant commonly seen in cans . . . usually found in products used to clean keyboards on computers." The scientist explained:

[DFE] is commonly seen in a product called Dust-Off It is commonly abused as an inhalant simply because it is easy to obtain and you don't need to be a particular age to acquire it or purchase it, and it will produce a pretty rapid high, as well.

The abuse comes from inhaling, whether it be through a small tube . . . or . . . a bag that is held over the nose and mouth of the person ....

It is flammable .... [T]he can is under pressure so there is a hazard. . . .

If it is inhaled ... it can [cause injury].

The district court found that the characteristics of DFE made it a hazardous substance under the DWI statutes and denied Carson's motion to dismiss.  The Minnesota Court of Appeals affirmed the district court but the Minnesota Supreme Court reversed, noting:

"In Minnesota, it is a crime to drive, operate, or be in physical control of a motor vehicle while "the person is knowingly under the influence of a hazardous substance that affects the nervous system, brain, or muscles of the person so as to substantially impair the person's ability to drive or operate the motor vehicle." Minn. Stat. § 169A.20, subd. 1(3) (emphasis added). Hazardous substance, in turn, is defined as "any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health)." Minn. Stat. § 169A.03, subd. 9 (emphasis added)."

"Chapter 5206 contains a specific rule on hazardous substances, which includes a "[l]ist of hazardous substances" in alphabetical order."

***

"Carson contends that Minn. R. 5206.0400, subp. 5, is the only list of hazardous substances in the applicable rules, and that this list does not include DFE. The State argues that Minn. R. 5206.0400 acknowledges that the list of hazardous substances in subpart 5 of the rule is "illustrative" and "does not include all hazardous substances." As a result, the State contends that Minn. R. 5206.0100, subp. 7(B), contains "a list of characteristics which, if possessed, would make a chemical or substance or a mixture ... a hazardous substance." According to the State, DFE meets the definition of a hazardous substance under Minn. Stat. § 169A.03, subd. 9, because it "possesses a number of characteristics listed under Minn. R. 5206.0100, subp. 7(B)."

In rejecting the State's position, the Minnesota Supreme Court correctly held:

"If the Legislature had wanted to criminalize the operation of a motor vehicle while knowingly under the influence of any substance that meets the definition of a hazardous substance for purposes of the occupational safety and health rules, it knew how to do so and could have done so explicitly by using a phrase like "has the meaning given." The statutory language plainly demonstrates that the types of hazardous substances that can give rise to a driving-while-impaired conviction are limited to those substances specifically listed in Minn. R. 5206.0400, subp. 5."

"We acknowledge that based on our holding today, a driver dangerously intoxicated by DFE is not criminally liable under the plain language of the current DWI statutes. The dissent argues that the Legislature could not have intended this outcome. In other words, the dissent concludes that the Legislature could not have intended to criminalize the operation of a motor vehicle while the driver is knowingly under the influence of only those chemical compounds that are explicitly listed as hazardous substances under the occupational health and safety rules. But "[fjhis public policy concern should be directed to the Legislature because we must read this state's laws as they are, not as some argue they should be."

Moral Of The Story: Everyone Is Entitled To Know Beforehand If Their Conduct Is Illegal.

If you or a loved one have been arrested for 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 questions.

Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota Star Tribune reports today that the woman accused of hitting and killing a Wayzata police officer with her car had cocaine in her system at the time of the accident. Beth Freeman is charged with two counts of criminal vehicular homicide as the result of the September accident which killed Wayzata P0lice Officer William Mathews.

Minnesota DWI Attorney F. T. Sessoms notes the fact that Ms. Freeman had cocaine in her blood makes the State's case substantially easier to prove.  In order to obtain a criminal vehicular homicide conviction, the State must ordinarily prove that the defendant committed "gross negligence".  "Gross negligence" is defined in Minnesota law as the "complete absence of care or acting with a wanton disregard for the lives or safety of others."  Thus for example, an accident caused by the failure to yield to another vehicle or by speeding would not constitute "gross negligence" as mere negligent conduct isn't sufficient to charge the crime of criminal vehicular homicide.

Minnesota Statute § 609.21 also provides, however, that a person is guilty of criminal vehicular homicide if the person causes the death of another person as a result of operating a motor vehicle "in a negligent manner while an amount of a controlled substance listed in schedule I or II, other than marijuana or tetrahydrocannabinol, is present in the person's body.

So Ms. Freeman better hope that the search warrant used to obtain her  blood or urine was deficient as otherwise, the State's case just got a lot easier to prove.

If you or a loved one has been charged with Criminal Vehicular Homicide or Criminal Vehicular Operation, or if you are facing a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms for answers to all of your legal questions.