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The Minnesota DWI Case Of The Week is State v. Dean (Decided March 26, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that, once again, if the police observe ANY traffic violation, the courts are going to uphold the stop.

In Dean, a state trooper witnessed appellant James Byron Dean's car make a wide left turn and straddle a lane divider line for up to 80 feet. The trooper stopped the car and soon suspected Dean was under the influence of alcohol. The trooper requested Dean perform field sobriety tests and that he take a preliminary breath test. Dean agreed, but failed the field sobriety tests and the preliminary breath test showed Dean had an alcohol concentration of 0.15. The trooper arrested Dean and informed him that he must submit to a chemical test. Dean refused. Dean was ultimately charged with a DWI and refusal to submit to a chemical test.

Mr. Dean moved to suppress all of the evidence arguing that the initial stop of his motor vehicle was illegal.  The district court denied the motion and on appeal, the Minnesota Court of Appeals agreed with the district court, noting:

"Minnesota Statutes section 169.18, subdivision 7(a), discusses improperly crossing over traffic lanes. This statute provides:

When any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply:

(a) 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."

"In Kruse, this court concluded that lanes encompass the area between the markings delineating traffic, but not the markings themselves. Kruse v. Comm'r of Pub. Safety, 906 N.W.2d 554, 558 (Minn. App. 2018). As a result 'driving on the markings constitutes movement from a lane and a potential violation of the statute.' Id. This court concluded that driving on the far-right solid-white line for an unspecified amount of time, but not crossing over it, provided reasonable grounds to suspect a violation of Minnesota Statutes section 169.18, subdivision 7(a), because it meant the defendant 'moved from his lane of traffic.' Kruse, 906 N.W.2d at 560."

"Our recent decision in Kruse dictates the outcome of this case as well. Like Kruse, the record shows that Dean improperly moved out of his lane of traffic. Testimony showed that Dean made a left-hand turn onto Second Street, which is a four-lane road, two lanes going in each direction. When he turned into the left westbound lane, the right side of his vehicle drove over the lane divider by about six inches, for approximately 60 to 80 feet. With this evidence, the district court's finding that Dean straddled both westbound lanes is not clearly erroneous. And by going over the line dividing the two westbound lanes, Dean moved from his lane of traffic, in violation of Minnesota Statutes section 169.18, subdivision 7(a), and the trooper had an objectively reasonable basis to believe a traffic violation occurred. See Kruse, 906 N.W.2d at 558."

Moral Of The Story: It is always important to stay in bounds!

If you or a loved one are facing a Minnesota DWI, feel free to contact Minnesota DWI Attorney, 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. Rodriguez (Decided March 19, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you are convicted of a DWI, the appellate court will rarely, if ever, reverse on a claim that the evidence was insufficient to convict.

In Rodriguez, Deputy Robbins of the Steele County Sheriff's Department saw the Defendant driving a car in Owatonna.  Deputy Robbins ran Rodriguez's driver's license and saw that it had been cancelled. After Rodriguez pulled his car to the side of the road, Deputy Robbins placed him under arrest for driving after cancellation.  Robbins placed Rodriguez in the squad car and smelled the odor of alcohol on his breath. After a short time in the back of the squad car, Rodriguez began to antagonize the deputy.

Robbins placed Rodriguez in the squad car and smelled the odor of alcohol on his breath. After a short time in the back of the squad car, Rodriguez began to antagonize the deputy.

Once Deputy Robbins arrived at the detention center, he asked Rodriguez to perform field sobriety tests. Rodriguez refused. Deputy Robbins explained at trial that at that point Rodriguez was also under arrest for DWI. Deputy Robbins based that decision on the odor of alcohol on Rodriguez's breath, Rodriguez's belligerent attitude, and Rodriguez's refusal to perform field sobriety tests. Deputy Robbins read Rodriguez the implied-consent advisory, and Rodriguez asked repeatedly if he was being ordered to submit to a chemical test. Deputy Robbins explained that it was Rodriguez's decision whether or not to submit to the test. After Rodriguez continued to ask whether he was being ordered to submit, Deputy Robbins told Rodriguez that he was considering him to have refused the test. 

Mr. Rodriguez was charged with DWI-test refusal and driving after cancellation and was subsequently convicted of both charges by a jury.  On appeal, Mr. Rodriguez argued that the evidence was insufficient to prove that deputy Robbins had probable cause to arrest him for driving under the influence, an element of the refusal crime.

The Minnesota Court of Appeals rejected the contention stating:

"When a defendant challenges the sufficiency of the evidence after conviction, this court reviews the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in the light most favorable to the conviction, were sufficient to allow the jury to reach its verdict. State v. Scanlon, 719 NW.2d 674, 687 (Minn. 2006). It is a crime for a person to refuse to submit to a chemical test when an officer has probable cause to believe that the person was driving, operating, or in physical control of a motor vehicle while impaired, and the person is arrested for DWI."

"When a defendant challenges the sufficiency of the evidence after conviction, this court reviews the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in the light most favorable to the conviction, were sufficient to allow the jury to reach its verdict. State v. Scanlon, 719 NW.2d 674, 687 (Minn. 2006). It is a crime for a person to refuse to submit to a chemical test when an officer has probable cause to believe that the person was driving, operating, or in physical control of a motor vehicle while impaired, and the person is arrested for DWI."

"Deputy Robbins testified that he believed Rodriguez was intoxicated because of the odor of alcohol on his breath, his belligerent attitude, and his refusal to perform field sobriety tests. We assume that the jury believed Deputy Robbins' testimony. See State v. Moore, 438 NW.2d 101, 108 (Minn. 1989). Deputy Robbins needed only one objective indication of intoxication to believe that Rodriguez was under the influence of alcohol, but he cited three, and no evidence contradicted his testimony.The evidence was sufficient for the jury to find that Deputy Robbins had probable cause to believe that Rodriguez had been operating a motor vehicle while impaired."

The problem I have with the court's language is that it is only true that the police need a single objective indication of intoxication to have probable cause "where there has been an accident".  If there has been an accident, then the accident itself furnishes a reason to believe the person may have been impaired.  In that situation, a single additional factor of intoxication is then all you need to have probable cause to arrest. 

In the present case, there wasn't any accident. So the Appellate Court's language that a single indication of intoxication is sufficient to find probable cause is just nonsense.

Moral Of The Story:  If you go to trial, don't lose!

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: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Dunn (Decided February 20, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you have been driving drunk and make it home, under no circumstances should you allow the police to enter your home without a warrant!

In Dunn, White Bear Lake police officer Isaac Tuma was dispatched in response to a 911 call regarding a possibly intoxicated driver. The caller, N.R., had followed the suspect, who was driving a black Mercedes, as she drove away from a dry-cleaning business. Officer Tuma testified that the dispatcher relayed to him N.R.'s information about the location of the black Mercedes as N.R. followed it until the Mercedes pulled into the driveway of a residence.

N.R. explained that he was at the dry cleaners when he saw a "red-haired elderly woman get out of the Mercedes and hold herself up on the car as she walked from the driver's door around the back of the car to the passenger door." He further stated that the woman leaned on her car and the building for support. She said "oh my leg's not working" as she wobbled through the door. N.R. told Officer Tuma that he waited for the woman to leave the dry cleaners so that he could follow her car. According to N.R., he followed the woman's car and noticed that she was having trouble staying in her own lane and made a "very wide turn." Officer Tuma testified that he believed the described driving behavior was consistent with the driver being under the influence of alcohol. N.R. confirmed to the officer that he continued following the woman's car until it pulled into a driveway. Near the end of the interview, Officer Tuma told N.R. that "we have your statement so no matter what we can test her."

Officer Tuma testified that, after hearing N.R.'s description of respondent's behavior, he was concerned that the driver may have been intoxicated or having some medical issues. Officer Tuma explained that he has responded to calls of suspected drunk drivers in the past that turned out to be medical emergencies, and mentioned one case in which he responded to an accident where it turned out that the driver was having a diabetic reaction. He testified that he went to respondent's house to conduct a welfare check. When Officer Tuma and a second officer arrived at respondent's house, her husband, G.C., answered the door. Officer Tuma, wearing his police uniform and arriving in a fully marked squad car, identified himself as a police officer.

Officer Tuma told G.C. that someone had called the police because they were worried about respondent's welfare after she was seen using her vehicle to hold herself up. G.C. said that respondent was probably holding herself up because of her back issues, but that she was in the bedroom and was doing fine. Officer Tuma testified that he wanted to personally see respondent to make sure that things were okay. G.C. invited the officer inside and said that he would go get respondent.

Eventually, respondent, whom Officer Tuma recognized from her driver's license picture, entered the room. Officer Tuma noticed that respondent was having difficulty walking, which he testified that he thought might have been due to her back problem. However, Officer Tuma said that when respondent reached the couch, she tried using her hand for support as she sat down but missed the couch, which left her leaning in an awkward position such that Officer Tuma and G.C. moved to assist her. After assisting respondent, Officer Tuma began asking respondent questions about whether she had consumed any alcohol or medications. As respondent answered, Officer Tuma smelled alcohol on her breath. Officer Tuma testified that based on the smell of alcohol, respondent's lack of balance, and her slurred speech and red eyes, he believed that she was under the influence of alcohol. At that point-after smelling the alcohol-Officer Tuma testified that his purpose switched from conducting a welfare check to investigating a DWI. He later arrested respondent and obtained a breath sample that showed a 0.25 alcohol concentration. G.C, a retired physician and intellectual-property attorney, also testified at the omnibus hearing. He testified that Officer Tuma told him that his purpose was to conduct a welfare check on respondent based on a report that respondent was having difficulty walking. G.C. stated that he told Officer Tuma that respondent had a back condition, and that respondent came home and put laundry away, then went to bed and was fine apart from her back issues. According to G.C, Officer Tuma was "persistent in explaining that he really needed to satisfy himself that [respondent] was, in fact, fine." G.C. testified that he felt like he had no choice but to let Officer Tuma see respondent and that he did not think it mattered whether he said that respondent was fine or not. He felt "forced into acquiescing to [the officers'] demands that they physically see her." G.C. testified that if he had known that Officer Tuma was investigating a DWI, he would not have let the officers inside without a warrant. G.C. explained that, while he was an attorney, he did not know how welfare checks fit into Fourth-Amendment law. He practiced intellectual-property law and did not know whether he could insist on a warrant.

Respondent moved to suppress the evidence obtained after the officers entered her house, arguing that G.C.'s consent to the entry was not voluntary because Officer Tuma misrepresented the purpose for which he sought entry. The district court granted respondent's motion to suppress all of the evidence obtained by the officer following his entry into respondent's home.

On Appeal, the Minnesota Court of Appeals rightly affirmed the district court.  The police officer was a liar and it is good to see that the district court and court of appeals were not buying his "welfare check" testimony.  As explained by the Court of Appeals:

"The state argues that the district court erred in concluding that G.C.'s consent to Officer Tuma's entry was involuntary. "The question of whether consent is voluntary is a question of fact, and is based on all relevant circumstances." State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992) (citing Schneckloth v. Bustamonte, All U.S. 218, 227, 93 S. Ct. 2041, 2047-48 (1973)). We will not reverse a district court's finding concerning the voluntariness of consent unless it is clearly erroneous. State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992). Because the trial court is obviously in the better position to assess the credibility of the witnesses, the state on appeal must show clearly and unequivocally that the trial court erred in finding that consent was involuntary." 

"In order to be voluntary, consent must be given without coercion and must not be a mere submission to an assertion of authority. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). Voluntariness is determined by examining "the totality of the circumstances, including the nature of the encounter, the kind of person the defendant is, and what was said and how it was said." Id. "[I]f under all the circumstances it has appeared that the consent was not given voluntarily-that it was coerced by threats or force, or granted only in submission to a claim of lawful authority," then the consent is invalid."

"Misrepresentations about the nature of an investigation may be evidence of coercion." State v. Bunce, 669 N.W.2d 394, 399 (Minn. App. 2003) (quoting United States v. Turpin, 101 F.2d 332, 334 (8th Cir. 1983)), review denied (Minn. Dec. 16, 2003). If consent to search is given based on reliance upon a misrepresentation, the consent will be invalid."

"The district court found that Officer Tuma "gained entry to the home under false pretenses," and that telling G.C. that he was there for a welfare check was a "misrepresentation" that "rose to such a level of deception as to invalidate" G.C.'s consent. G.C. initially denied the officer entry. The district court found that it was only after the "misrepresentation" that G.C. allowed Officer Tuma to enter the home, and see and visit with respondent. The district court implicitly found that the officer did not actually have the purpose to do a welfare check and, instead, intentionally misidentified that as his purpose to obtain G.C.'s consent to enter the home and continue the DWI investigation."

"The district court found that Officer Tuma told G.C. only that he wanted to conduct a welfare check and made no mention of any belief that respondent may have been driving while impaired. The district court implicitly rejected the contention that Officer Tuma was conducting a welfare check. During his discussion with N.R., Officer Tuma expressed no concern about respondent's health. N.R. expressed no belief or concern that respondent was ill or injured; he thought she was drunk. At the conclusion of the interview, Officer Tuma told N.R. that "no matter what we can test her." In concluding that "Officer Tuma was investigating a DWI," the district court implicitly made a credibility determination rejecting Officer Tuma's multiple-purpose claim concerning his request to enter respondent's home. "Because the trial court is obviously in the better position to assess the credibility of the witnesses, the state on appeal must show clearly and unequivocally that the trial court erred in finding that consent was involuntary." Schweich, 414 N.W.2d at 230. We apply this standard of review, and view the record evidence as a whole. The district court did not clearly and unequivocally err in finding that Officer Tuma misrepresented the purpose for which he sought entry."

Moral of the Story: You do not have to open the door of your home unless the police have a search warrant!

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. Littlewind (Decided February 12, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if there is a clear violation by the police of an arrestee's pre-test right to counsel, a defense attorney is incompetent if he fails to file a motion to suppress.  I wholeheartedly agree!!

In Littlewind, the Defendant was arrested for drunk driving and the police read him the implied-consent advisory, but they refused to allow him to speak with an attorney after he repeatedly asked for one. Littlewind refused to submit to a chemical test. 

Representing Littlewind in his trial for both driving while impaired and chemical-test refusal, Littlewind's attorney never moved the district court to suppress the evidence of his refusal. After the jury convicted Littlewind, he petitioned unsuccessfully for postconviction relief, arguing that he received ineffective assistance of trial counsel. 

The Minnesota Court of Appeals reversed the District Court, ruling that, "Failing to move to suppress evidence related to Littlewind's test refusal fell below an objective standard of reasonableness, so we reverse, invalidating his conviction for test refusal."

The Court of Appeals explained it ruling as follows:

"Because the failure to litigate a suppression motion is Littlewind's principal allegation of ineffectiveness, he must prove that his suppression claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence. Kimmelman v. Morrison, All U.S. 365, 375, 106 S. Ct. 2574, 2583 (1986)."

"We begin with the merit of the hypothetical suppression motion. Applying the state constitution, "an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing." Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). It is not enough that police officers inform the person of this right, "the police officers must assist in its vindication." Id. (quotation omitted). The officers meet this duty by providing a telephone and allowing a reasonable period for the person to reach and speak with an attorney. Id. The district court must suppress evidence obtained in violation of the right to counsel in the implied-consent context. See State v. Slette, 585 N.W.2d 407, 410 (Minn. App. 1998)."

"The officers here undisputedly did not provide Littlewind a telephone or give him time to contact an attorney, but the state maintains that in this case providing a telephone was unnecessary. This is because the right to consult with counsel before submitting to chemical testing is not absolute. The implied-consent law requires a driver not to frustrate the implied-consent process. State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003). The postconviction court agreed with this position, concluding that "[t]he facts of the instant case undoubtedly indicate that Petitioner forfeited his limited right to an attorney through his unreasonable and uncooperative behavior." Our caselaw does not support the conclusion."

"The defendants in Collins and Busch, unlike Littlewind, prevented the implied-consent process from being completed. That process includes an officer's reading of the complete advisory accompanied by the officer's request for a chemical test, the defendant's opportunity to contact an attorney before deciding whether to submit to a chemical test, and the defendant's response to the officer's request for a chemical test. Here, police were able to present the implied-consent advisory completely and Littlewind plainly and repeatedly requested to speak with an attorney. As the district court put it, Littlewind "unequivocally requested an attorney after the implied consent advisory was read." That police read the complete implied-consent advisory and Littlewind then requested an attorney undermines the notion that Littlewind frustrated the implied-consent process."

"To demonstrate that he received ineffective assistance of counsel, Littlewind must also show that his attorney performed below an objective standard of reasonableness. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). To do so, he must overcome the strong presumption that his attorney's action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104. S. Ct. at 2065. We see no strategic benefit to foregoing a meritorious motion to suppress the most critical evidence in a test-refusal trial, and the state does not offer any benefit. Because his trial counsel's performance fell below an objective standard of reasonableness, Littlewind was denied his Sixth Amendment right to the effective assistance of counsel. We therefore reverse his test-refusal conviction."

Moral Of The Story: If you have been arrested for a Minnesota DWI or DUI, you should hire an attorney who knows what they are doing!

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. Kube (Decided February 5, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person does not have to expressly refuse to submit to testing in order to commit the crime of refusal if the person's conduct indicates they are unwilling to continue with the testing procedure.

In Kube, the Defendant was arrested in Carver County for DWI and was read the Minnesota Implied Consent Advisory after being taken to the county jail.  Ms. Kube was emotional and distraught throughout the advisory process.

The arresting officer provided Ms. Kube with telephone books to call an attorney, and she insisted that, because she has Asperger's syndrome, which is an autism spectrum disorder, she needed an attorney who represents disabled people. Kube eventually contacted an attorney's answering service. When she hung up, she remarked that her cell phone "only works half of the time," so the officer advised her to call back and leave the jail telephone number. Kube became "emotionally overwrought." 

The arresting officer advised her that failing to make a decision would be considered a test refusal. Instead of calling the answering service again, Kube threatened to kill herself, demanded to be taken to the hospital, and asked if she could go to the psych ward. Dascher terminated the implied-consent advisory, and Kube was charged with test refusal.

Ms. Kube waived her right to a jury trial and was found guilty  by the district court of the crime of refusal to submit to chemical testing.  On appeal she argued (among other things) that she did not refuse to submit to testing because the officer never asked her to take the breath test.

The Minnesota Court of Appeals affirmed her conviction noting:

"Under Minn. Stat. § 169A.20, subd. 2 (2014), it is a crime for any person who drives a motor vehicle in Minnesota to refuse to submit to chemical testing. When a person does not make an explicit verbal refusal to submit to chemical testing, the state must rely on circumstantial evidence to establish the person's intent. See State v. Ferrier, 792 N.W.2d 98, 101-02 (Minn. App. 2010) (recognizing the legitimacy of circumstantial evidence to establish intent in a test-refusal case), review denied (Minn. Mar. 15, 2011). "[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." Id. at 102."

The Minnesota Court of Appeals then held:

"The inference that Dascher ended the advisory process before Kube demonstrated her actual unwillingness to submit to testing is also unreasonable. Dascher advised Kube that she could discuss her disabilities with an attorney and that she could use the jail telephone number to receive a return call, but, rather than making another call to reach an attorney, Kube asked to be taken to a psych ward. That conduct indicated an actual unwillingness to participate in the testing process, and Dascher ended the advisory process only after he observed the conduct." Conviction affirmed!

Moral Of The Story: There is more than one way to say "no".

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 Wenzel v. Commissioner of Public Safety (Decided January 22, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police cannot terminate an individual's pre-test right to counsel without obtaining an unambiguous waiver of that right.

In Wenzel, the Petitioner was arrested for a DWI and, when asked if he wished to speak to an attorney, the Petitioner said yes.  Wenzel then made two calls, leaving a message during one and speaking with his wife during the second. After speaking with his wife, Wenzel did not make or request to make any additional calls. Six minutes later, at 1:54 a.m., the arresting officer asked Wenzel if he would consent to a breath test, and Wenzel refused.

The Petitioner's license was subsequently revoked for refusal to submit to testing and Mr. Wenzel filed a challenge to the revocation in district court, arguing that his right to counsel had been violated.  The District Court sustained the revocation but on appeal, the Minnesota Court of Appeals reversed the District Court noting:

"Under the right-to-counsel clause in article I, section 6 of the Minnesota Constitution, an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing." Friedman v. Comm 'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). The right to counsel is considered vindicated if a person is given a reasonable time to contact and talk with counsel. Id. at 835. "If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel." Id. (quotation omitted). "The right to counsel is limited in DWI cases to ensure that consultation does not unreasonably delay the administration of the test.
***
"In this case, the district court found that Wenzel "declined to attempt to contact another [attorney]" and "had no intention of contacting any other attorney." But these findings of fact lack evidentiary support, and we therefore are left with a firm and definite conviction that the findings are clearly erroneous. Officer Walters testified that he could not recall if Wenzel "made any statements that stated I'm done talking with an attorney." And Wenzel did not testify at the implied-consent hearing. The record reflects that, before asking Wenzel if he would submit to a breath test, Officer Walters did not ask Wenzel if he was done trying to contact an attorney, and Wenzel made no affirmative action, such as a nod or statement, to indicate he was done trying to contact an attorney. And the record contains no evidence that, during the six minutes of attorney-consultation time, Wenzel employed delaying tactics or had decided to stop trying to contact an attorney."
***
"Based on the facts in this case, we conclude that the state did not vindicate Wenzel's limited right to consult with an attorney. We therefore reverse the district court's order sustaining the revocation of Wenzel's driving privileges."

Moral Of The Story: If you have been arrested for a DWI, always, always, always exercise your pre-test right to counsel.  It may turn out to be the best phone call you ever made!

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: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Kruse v. Commissioner of Public Safety (Decided January 8, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that merely touching a fog line with your vehicle constitutes a traffic violation and justifies a traffic stop by the police.

In Kruse, Renville County Sheriff's Deputy Lucas Jacques was approximately three car lengths behind the Appellant's vehicle when he observed it move right and onto the fog line, but not over the fog line. Officer Jacques initiated a traffic stop and identified Kruse as the driver of the vehicle. Kruse performed poorly on field sobriety tests, and Officer Jacques arrested him for DWI.

The district court denied Kruse's motion to suppress and sustained the revocation of his license to drive.  On appeal the issue was does driving a vehicle on a marking that delineates a lane for traffic constitute movement from the lane within the meaning of Minn. Stat. § 169.18, subd. 7(a)?

Minn. Stat. § 169.18, subd. 7(a) states: "When any roadway has been divided into two or more clearly makes lane for traffic (a) 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."

Kruse's argument presumes that driving on the fog line is not movement from a lane because a marking that delineates a lane for traffic is part of the lane. The Minnesota Court of Appeals, however, disagreed stating:

"To determine whether driving on a fog line is movement from a lane and, therefore, a potential violation of Minn. Stat. § 169.18, subd. 7(a), we must define the term "lane" within the meaning of the statute. Neither Minn. Stat. § 169.18, subd. 7(a), nor the definitional section of chapter 169 defines the term. See Minn. Stat. § 169.011 (2016). Because the term is not technical, we look to dictionary definitions to determine its plain meaning. See Larson, 855 N.W.2d at 301; cf. Minn. Stat. § 645.08 (2016) (stating that in construing statutes, "technical words and phrases and such others as have acquired a special meaning, or are defined in this chapter, are construed according to such special meaning or their definition")."

"The American Heritage College Dictionary defines "lane" as "[a] narrow way or passage between walls, hedges, or fences" and as "[a] strip delineated on a street or highway for a single line of vehicles." The American Heritage College Dictionary 779 (4th ed. 2007). The same dictionary defines "delineate" as "[t]o draw or trace the outline of; sketch out," and it defines "between" as "[i]n or through the position or interval separating." Id. at 136, 375. Combined, these definitions indicate that the markings referred to in Minn. Stat. § 169.18, subd. 7(a), delineate lanes for traffic and that the areas between the markings, but not the markings themselves, constitute the lanes."

***

"Under Kruse's implicit reading of Minn. Stat. § 169.18, subd. 7(a), if two vehicles are driven onto a marking that delineates abutting lanes of traffic, neither driver has moved from his lane and there is no potential violation of Minn. Stat. § 169.18, subd. 7(a), even though simultaneously driving on the same marking significantly increases the risk of a motor-vehicle collision. That scenario is inconsistent with the legislative mandate that a vehicle shall not be moved from a lane "until the driver has first ascertained that such movement can be made with safety.'' Minn. Stat. § 169.18, subd. 7(a) (emphasis added). In sum, a conclusion that the markings that delineate lanes for traffic are not part of the lanes within the meaning of Minn. Stat. § 169.18, subd. 7(a), is consistent with the statute's plainly stated legislative intent: safety."

Moral Of The Story: Always paint and drive between the lines!

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.