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The Minnesota DWI Case Of The Week is State v. Beckman (decided April 27, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition (once again) that an inoperable vehicle does not preclude a guilty verdict for being in "physical control" while drunk.

In Beckman, the Defendant was charged with two counts of driving while impaired and two counts of carrying a pistol while under the influence of alcohol.  The case went to trial where Mr. Beckman represented himself.  

State Trooper Aaron Myren testified at trial that when he responded to a report of a stalled vehicle, he found a Ford Explorer with its only occupant, Beckman, slumped over in the driver’s seat. Trooper Myren knocked on the window. Beckman awoke, sat up, grasped the key in the ignition, turned the key to “initiate the power to the first stage of the ignition,” and slightly lowered his window.  The trooper “was overwhelmed with a very strong odor of an alcoholic beverage.” Beckman told the trooper that he had been traveling from North Dakota toward Fergus Falls but that he could not remember where he was. Trooper Myren administered field sobriety tests, during which Beckman stumbled and struggled to follow directions. The trooper told Beckman that he was under arrest, and Beckman disclosed that he had one firearm on his person and one inside the car. Trooper Myren seized a semiautomatic handgun from Beckman’s jacket and another from a vest in the Explorer’s second row of seats. Then he took Beckman to the jail, read him the implied-consent advisory, and at 9:35 a.m., administered a breath test that revealed Beckman’s alcohol concentration of 0.08.

Beckman told the jury that he was driving home to Fergus Falls and ran out of gas. Beckman claimed that after running out of gas, he took two small bottles of whiskey out of his guitar case and drank them to "stay warm" on the inside.  The jury did not buy his story and found him guilty of DWI and drunk possession of a firearm.

On appeal, Mr. Beckman claimed (among other things) that the evidence was insufficient to find him guilty of the DWI charge.  The Minnesota Court of Appeals disagreed, stating:

"Beckman’s physical-control argument is unavailing. “[A] person is in physical control of a vehicle if he has the means to initiate any movement of that vehicle, and he is in close proximity to the operating controls of the vehicle.” State v. Fleck, 111 N.W.2d 233, 236 (Minn. 2010). Prohibiting intoxicated persons from exercising “physical control” of a car curbs situations where an intoxicated person might take some action to render a parked car a dangerous instrument. State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992)."

"The jury heard evidence that Beckman was seated inside his car on the highway after having driven from Fargo to where he had stopped near Fergus Falls. It also heard evidence that he sought assistance after having run out of gas both by walking to get help and by trying to flag down a passing car. Even if the jury credited his claim that he consumed whiskey while walking after the car ran out of gas (suggesting that he became intoxicated only after he was no longer actually driving), the evidence established that he was intoxicated from the time he got back into the car through the time the trooper awakened him. Given the possibility that someone might stop and help him refuel the car, he fits that category of drivers targeted by the “physical control” prohibition."

Moral Of The Story:  Never, ever enter a motor vehicle while drunk UNLESS you are a passenger.

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI 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. Schwartz, (Decided April 13, 2020, Minnesota Court of Appeals, Published) which stands for the proposition that a criminal charge of operating a motor vehicle with “any amount of a controlled substance listed in Schedule I or II” in the operator’s body, does not require proof that the operator knew or had reason to know that the controlled substance was in his body. The Court is careful to point out, however, that the ruling does not cover a situation where the driver was the victim of a "spiked drink" or is making the claim the substance was involuntarily ingested.

In Schwartz, the Bloomington police responded to a call concerning an unresponsive male in a car.  The responding officers observed that the person, later identified as appellant, had difficulty balancing and standing. He smelled of alcohol. After failing a series of field sobriety tests, appellant admitted to having consumed alcohol. Officers arrested him. A search of appellant’s person incident to arrest revealed a glass pipe in appellant’s pocket. 

Mr. Schwartz submitted to a preliminary breath test, which showed a 0.04 alcohol concentration. Suspecting that appellant was under the influence of a substance other than alcohol, officers obtained a search warrant authorizing seizure of a sample of appellant’s blood. Testing of appellant’s blood later revealed the presence of 0.03 mg/L of amphetamine, a schedule II controlled substance.

The state charged appellant with operating a motor vehicle with any amount of a schedule I or II controlled substance in his body  in violation of Minn. Stat. § 169A.20, subd. 1(7). The state also charged appellant with two additional counts of driving while impaired, two counts of possessing drug paraphernalia, and one count of possessing an open bottle of beverage alcohol. As part of a plea agreement, appellant pleaded guilty to gross-misdemeanor operating a motor vehicle with any amount of a schedule I or II controlled substance in his body.

Mr. Schwartz subsequently appealed, challenging the validity of his guilty plea, alleging the plea was invalid because he did not admit in his plea testimony that he knew or had reason to know that his body contained a controlled substance listed in schedule I or II at the time he operated the motor vehicle.

The Minnesota Court of Appeals rejected the Appellant's claim, noting:  

"...if a guilty plea is not “accurate, voluntary, and intelligent,” it is invalid. Kaiser v. State, 641 N.W.2d 900, 903 (Minn. 2002). An invalid guilty plea may be withdrawn. State v. The is, 742 N.W.2d 643, 646 (Minn. 2007). A guilty plea is not accurate if the defendant does not admit to facts showing that his conduct meets all of the elements of the charge to which he is pleading guilty. State v. Iverson, 664 N.W.2d 346, 349-50 (Minn. 2005)."

"Under Minnesota law, it is a crime for a “person to drive, operate, or be in physical control of any motor vehicle . . . when ... the person’s body contains any amount” of a schedule I or II controlled substance or its metabolite. Minn. Stat. § 169A.20, subd. 1(7). The charge requires the state to prove beyond a reasonable doubt that (1) the person drove, operated or was in physical control of a motor vehicle; and (2) at the time the person drove, operated, or was in physical control of the motor vehicle, the person’s body contained any amount of a schedule I or II drug or its metabolite."

"At his plea hearing and in his plea petition, appellant admitted that he had been in control of a motor vehicle, that officers found a glass pipe in his pocket, and that appellant’s blood seized by police after his arrest tested positive for amphetamine....Nevertheless, appellant contends that his guilty plea in invalid because, he argues, we should interpret the statute to require proof that the operator knew or had reason to know that a prohibited substance was in his body. Appellant’s guilty plea included no acknowledgement that he knew or had reason to know that his body contained amphetamine."

"This court has held that impaired driving is a general-intent crime, the requisite mental state being “only a general intent to do the act.” State v. Anderson, 468 N.W.2d 345, 346 (Minn. App. 1991). Although section 169A.20, subdivision 1(7), is silent concerning any mens rea element, the legislature provided an affirmative defense to drivers such as appellant in specific cases:

'If proven by a preponderance of the evidence, it is an affirmative defense to a violation of section 169A.20 subdivision 1, clause (7) (presence of Schedule I or II controlled substance), that the defendant used the controlled substance according to the terms of a prescription issued for the defendant in accordance with sections 152.11 and 152.12. Minn. Stat. § 169A.46, subd. 2 (2016)'. An affirmative defense relieves the defendant of

criminal liability even though the elements of the crime are admitted or proved."

"The legislature having provided for an affirmative defense concerning schedule I or II controlled substances in limited circumstances demonstrates to our satisfaction that the absence of any specified mens rea element in section 169A.20, subdivision 1(7), concerning controlled substances was not an inadvertent omission."

***

"Section 169A.20, subdivision 1(7), is similar to the per se rule against driving with an alcohol concentration of 0.08 or more. Minn. Stat. § 169A.20, subd. 1(5) (2016). Appellant cites no authority for the notion that the 0.08-or-more prohibition requires the state to prove that the driver in such a case must have been subjectively aware of his own alcohol concentration in order to be guilty of the crime. That would be absurd."

"Because Minn. Stat. § 169A.20, subd. 1(7), provides for criminal liability without proof of knowledge or intent, because the statute is a public-welfare offense, and because the legislature specifically provided for a limited affirmative defense for drivers with schedule I or II controlled substances in the driver’s body, we decline to read into the statute an element not included by the legislature in the definition of the crime. The state is not required to prove that the motor-vehicle operator knew or had reason to know that a controlled substance was in his body to prove a charge under Minn. Stat. § 169A.20, subd. 1(7). Although appellant did not acknowledge in his plea testimony that he knew or had reason to know of the amphetamine in his body, that does not render his guilty plea invalid."

Moral Of The Story:  Don't plead guilty if you did not know.

If you or a loved one have been charged with 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 and DUI questions.

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

The Minnesota DWI DWI Case Of The Week is State v. Permann (Decided April 6, 2020, Minnesota Court of Appeals, Unpublished), which stands for the proposition that a prior conviction need only be established by competent and reliable evidence.  Permann also shows what can happen when a person can't keep their mouth shut.

In Permann, the Defendant was on probation and at a meeting with his probation officer, Mr. Permann mentioned he had used methamphetamine "two days prior".  Permann also told the agent that he had driven to her office. 

The agent told Mr. Permann that he would be taken into custody for violating his probation and Mr. Permann asked if he could make arrangements for his sport utility vehicle, parked outside.

At the jail, Mr. Permann was read his Miranda rights and the Defendant gave a recorded statement stating he drove his black Ford Bronco to the probation agent’s office for a scheduled meeting. When asked how many DWIs he had in the past ten years, the Defendant stated he had three prior  DWI offenses. 

The police obtained a search warrant and Permann gave a urine sample, which was sent to the Bureau of Criminal Apprehension (BCA) and tested positive for methamphetamine. The state subsequently charged Mr. Permann with Felony DWI alleging he had 3 priors within the past 10 years.  

At trial, in addition to the testimony, the state offered three exhibits to prove the existence of the prior DWI offenses:

Exhibit six was a certified “true and correct copy from the records of the Driver and Vehicle Services Division” of the Department of Public Safety (DPS) of a 2009 notice and order revoking Permann’s license for DWI (2009 notice and order of license revocation).

Exhibit seven was certified as “a true copy of the original record in [the] custody” of the Olmsted County Court Administrator of the September 28, 2012 court minutes showing Permann’s DWI conviction (2012 court minutes). Exhibit eight was a certified copy of a 2015 warrant of commitment from Dakota County showing Permann’s DWI conviction.

The Defendant was convicted of Felony DWI and on appeal he argued that the state failed to offer sufficient evidence establishing two of the three qualified prior impaired driving incidents committed within the ten years before his 2018 DWI. On appeal, Permann did not challenge the admissibility of exhibit eight, (the 2015 warrant of commitment for a DWI), but argued that exhibits six and seven were insufficient to sustain his first-degree DWI conviction.

The Court of Appeals rejected the Defendant's challenge, stating:

"First, Permann argues that exhibit six is insufficient to prove a qualified prior impaired driving incident because the 2009 notice and order of license revocation was appealable. Because the state failed to offer a “final notice of revocation,” Permann argues that the state failed to prove his license was revoked. The state responds that the prosecution can use “competent and reliable evidence” to prove a license revocation."

"Permann cites no legal authority to support his argument that the state had to prove that his 2009 license revocation was not overturned on appeal. And Permann does not even claim that he sought judicial review of his 2009 license revocation. A license revocation is effective when the commissioner of public safety, or a peace officer acting on the commissioner’s behalf, gives the notice and order of revocation to the driver. Minn. Stat. § 169A.52, subd. 6 (2016); see also State v. Goharbawang, 705 N.W.2d 198, 201 (Minn.App. 2005) (determining that license “revocation takes effect when the officer issues the notice and order of revocation”), review denied (Minn. Jan. 17, 2006). Even if we assume that Permann sought judicial review of his 2009 license revocation, a driver’s petition for judicial review “does not stay the revocation.” Minn. Stat. § 169A.53, subd. 2(c) (2016)."

"Because a notice and order of revocation is effective when the commissioner or peace officer “notifies the [driver] of the intention to revoke” his license, and a qualified prior impaired driving incident includes a “loss of license” by revocation, we conclude that exhibit six is sufficient evidence to establish that Permann had a qualified prior impaired driving incident in 2009. See Minn. Stat. § 169A.52, subd. 6; Minn. Stat. § 169A.03, subd. 21."

"Next, Permann argues that exhibit seven, 2012 court minutes of Permann’s DWI conviction, is not “an official record of a conviction” and thus is insufficient to prove a qualified prior impaired driving incident. The state argues that the 2012 court minutes are a certified court record and thus are “competent and reliable."

"Minn. Stat. § 609.041 (2016) provides:

In a criminal prosecution in which the degree of the crime or the penalty for the crime depends, in whole or in part, on proof of the existence of a prior conviction, if the defendant contests the existence of or factual basis for a prior conviction, proof of it is established by competent and reliable evidence, including a certified court record of the conviction."

"In State v. Eller, this court held that “section 609.041 does not mandate that only a certified record may be used to prove a prior conviction. Rather, it requires only that proof of the [prior] conviction is established by competent and reliable evidence.” 780 N.W.2d 375, 380 (Minn. App. 2010), review denied {Minn. June 15,2010). Eller also clarified that “[t]he statute does not limit such proof to a certified court record” and held that a sworn statement in the probable-cause section of a complaint was competent and reliable evidence to establish the appellant’s prior conviction at a stipulated-facts trial. Id. at 380-81. We conclude that the 2012 court minutes of Permann’s DWI conviction is competent and reliable evidence and exhibit seven is sufficient to establish Permann committed a qualified prior impaired driving incident in 2012.  Thus, we conclude that the evidence is sufficient to support Permann’s conviction for first-degree DWI."

Moral Of The Story:  Loose lips gets you shipped!

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 Minnesota DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI 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. Smith (Decided March 30, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the Defendant's misconduct can waive his right to a speedy trial.

In Smith, the Defendant was arrested for DWI in Dakota County and found on his person was a small baggie of methamphetamine.  The state subsequently charged Mr. Smith with fifth-degree possession of a controlled substance, two counts of first-degree impaired driving, driving after revocation, and violation of a restricted driver’s license.

Mr. Smith appeared for a hearing on August 30, 2018 and demanded a speedy trial. During the hearing, Defendant stated that he would not “admit to jurisdiction” of the court and indicated that he filed an “assumed name certificate” and “filed a brief on declaration of sovereignty and immunity nationality status.” The district court noted Defendant's demand for a speedy trial and set a trial date for October 22, 2018.

On the day of trial, Mr. Smith continued to argue that the district court did not have jurisdiction. The judge repeatedly attempted to confirm that he wanted to proceed as a self-represented litigant, but Defendant refused to answer any questions and asserted that he did not recognize the district court’s jurisdiction. The district court judge continued, “I don’t think you quite grasp the gravity of the situation that [is] going on here,” and found appellant in direct contempt of court for repeatedly interrupting the judge and disrupting the courtroom. The district court continued the case until the following day.

The following day, the court attempted to continue the trial and the Defendant accused the judge of treason, threats, duress, and coercion.

The district court ordered evaluations under rule 20.04 which includes a competency evaluation under rule 20.01,  and set a review hearing for one week out. Mr. Smith argued that the continuance violated his speedy-trial demand and accused the judge of assault, kidnapping, and “ransom.”

The district court held review hearings on October 30, November 2, and November 9, 2018. Mr. Smith refused to appear at the November 9 hearing. The district court noted during the November 9 hearing that it was aware of appellant’s speedy-trial demand and wanted that demand to be “accommodated and honored.” However, the district court noted that the county was having difficulty completing the competency-evaluation report because Defendant refused to meet with the county evaluator. The county filed the evaluation report with the district court on November 16, stating that appellant was competent to stand trial.

The district court held a review hearing on November 20, 2018. Defendant refused to appear at the hearing. The district court noted that Mr. Smith was competent to stand trial and scheduled a jury trial for January 7, 2019.

Mr. Smith appeared for trial on January 7 and he challenged the district court’s jurisdiction. Defendant also indicated that he did not wish to remain in the courtroom during the trial, and left the room. 

After Mr. Smith was convicted by a jury he appealed arguing his right to a speedy trial was violated.  The Minnesota Court of Appeals affirmed the conviction, however, noting:

"In Minnesota, “trial is to commence within 60 days from the date of the demand unless good cause is shown . . . why the defendant should not be brought to trial within that period.” State v. Hahn, 799 N.W.2d 25, 29-30 (Minn. App. 2011); see also Minn. R. Crim. P. 11.09(b) (requiring trial within 60 days of demand “unless the court finds good cause for a later trial date”)."

***

"Minnesota courts use a four-factor balancing test to determine whether a delay in a case violates the speedy-trial right. State v. Windish, 590 N.W.2d 311,315 (Minn. 1999). “The test provides that a court must consider: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his or her right to a speedy trial; and (4) whether the delay prejudiced the defendant.” Id. (citing Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972))."

Length of Delay:

"State v. Johnson, 811 N.W.2d 136, 144 (Minn. App. 2012) (“Under Minnesota law, a delay of more than 60 days from the date of the speedy-trial demand is presumptively prejudicial, triggering review of the remaining three factors.”)".

Reason for Delay:

"Under the second factor, “the key question is whether the government or the criminal defendant is more to blame for th[e] delay.” Taylor, 869 N.W.2d at 19 (quotation omitted). Generally, the burden of protecting speedy-trial rights rests on the court system and the prosecutors. Windish, 590 N.W.2d at 317. But “[w]hen the overall delay in bringing a case to trial is the result of the defendant’s actions, there is no speedy trial violation.” Taylor, 869 N.W.2d at 20."

"Here, the delays are largely attributable to appellant. On the scheduled trial date in October 2018, appellant interrupted the district court judge with such frequency that the district court was unable to conduct business. Appellant repeatedly refused to provide his name and challenged the jurisdiction of the district court. On the following day, the district court judge expressed concern over appellant’s “obstreperous and illogical behavior” and questioned “whether or not we need to conduct some sort of examination to determine [appellant’s] competence to proceed in connection with this matter.”

"Based on these concerns, the district court ordered a competency evaluation. Rule 20.01 directs a district court to suspend the proceedings and order an examination of a defendant’s mental condition if the district court has reason to doubt the defendant’s competency. Minn. R. Crim. P. 20.01, subd. 3. A delay caused by competency proceedings is normally justified as necessary to protect the defendant’s right to a fair trial. State v. Bauer, 299 N.W.2d 493, 498 (Minn. 1980). Here, the district court’s decision to order a competency evaluation was based on concerns that appellant’s cognitive abilities prevented him from participating in his trial. And if the court finds reason to doubt the defendant’s competence, it “must suspend the criminal proceedings.” Minn. R. Crim. P. 20.01, subd. 3 (emphasis added); see also Minn. Stat. § 645.44, subd. 15a (2018) (providing that the word “must” is mandatory). The district court acted properly by delaying the trial to ensure that appellant was competent to proceed to trial."

***

"Appellant’s refusal to appear for scheduled hearings and cooperate with the county evaluator further contributed to the delay. Consequently, we conclude that this factor weighs against appellant’s speedy-trial-violation claim."

Assertion of Right:

"Because it is uncontested that appellant asserted his right to a speedy trial, this factor weighs in his favor."

Prejudice Caused by Delay:

"Prejudice . . . should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect,” namely “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. at 532, 92 S. Ct. at 2193. “Of these forms of prejudice, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Doggett v. United States, 505 U.S. 647, 654, 112 S. Ct. 2686, 2692 (1992) (quotation omitted). Prejudice is “obvious” if a witness dies or disappears during the delay, or if defense witnesses “are unable to recall accurately events of the distant past.” Barker, 407 U.S. at 532, 92 S. Ct. at2193. Prejudice is not present here. Appellant did not call any witnesses at trial, and he does not contend that anyone lost their memories, became unavailable, or forgot important events. The delay did not prejudice appellant’s case. Accordingly, we conclude that this factor does not weigh in appellant’s favor."

Balancing the Factors:

"On balance, we determine that good cause supported delaying the trial. Appellant asserted his right to a speedy trial, which began over 60 days from the date of his demand. However, the record reflects that the delay was largely attributable to appellant, and the delay did not impair appellant’s ability to present a defense. Therefore, based upon our complete review of all the Barker factors, we determine that the record does not establish a violation of appellant’s constitutional right to a speedy trial."

Moral Of The Story:  Justice delayed does not necessarily mean justice denied.

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI 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. Kapus (Decided March 23, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the "totality of the circumstances" govern whether testing with a preliminary breath test is warranted.

In Kapus, Minnesota State Trooper Samuel Catlin found Jeffrey Lee Kapus sitting in his car in the ditch on the wrong side of a county road in Morrison County. It was -15 degrees Fahrenheit and windy that night, but the road was “clear,” “dry,” and “not difficult to travel.” Catlin noticed that Kapus’s speech was slurred, his left eye was watery,  and he began “swaying” on his feet in a “circular motion” as soon as he stepped out of his car. Catlin also noticed that Kapus had several unusual responses to his situation: he was very “laid back” about his car being in the ditch, which in Catlin’s experience is contrary to the typical driver responses of being either “upset” or “apologetic,” and he gave a slow and seemingly untruthful answer to Catlin’s question about where he was coming from that night—answering that he had gone to purchase gasoline for his car. From these circumstances, Catlin formed the belief that Kapus had been driving while under the influence of alcohol.

Because of the extreme weather, Catlin did not ask Kapus to perform any field sobriety tests, but he did ask Kapus to take a preliminary breath test (PBT), making the request less than a minute after he first approached Kapus.  Kapus agreed to testing and blew a .194 on the PBT.

Kapus was subsequently charged with 3rd Degree DWI and he moved to suppress all of the evidence arguing that there was insufficient evidence to justify the request for the preliminary breath test that formed the basis for the arrest. 

The District Court denied the motion to suppress and on appeal, the Court of Appeals affirmed the lower court, stating:

"...a law enforcement officer may seize a stopped driver and “request a PBT if the officer possesses ‘specific and articulable facts’ that form a basis to believe that a person has been driving a motor vehicle while impaired.” Vondrachek v. Comm ’r of Pub. Safety, 906 N.W.2d 262, 268 (Minn. App. 2017) (quoting Dep’t. of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981)), review denied (Minn. Feb. 28, 2018)."

"“Reasonable suspicion must be based on specific, articulable facts that allow the officer to be able to articulate . . . that he or she had a particularized and objective basis for suspecting the seized person of criminal activity.” State v. Morse, 878 N.W.2d 499, 502 (Minn. 2016) (alteration in original) (quotation omitted). The reasonable-suspicion standard is not high, and law enforcement officers may draw inferences that are based on the totality of circumstances, including those “that might well elude an untrained person."

"Kapus argues that Trooper Catlin did not observe any odor of alcohol on him before asking him to take a PBT and that other circumstances were insufficient to suggest that he had been drinking and driving. We disagree. Caselaw mandates that we consider the totality of all circumstances suggestive of Kapus’s alcohol consumption. See, e.g., Costillo v. Comm’r of Pub. Safety, 416 N.W.2d 730, 733 (Minn. 1987)"

"Here, the particular circumstances supporting Catlin’s suspicion that Kapus was driving under the influence of alcohol include that he was involved in a one-car accident where he crossed over an oncoming traffic lane to drive into the ditch on the opposite side of the road when the roadway was clear and dry; he swayed in a circular pattern that was unrelated to the wind when he left his vehicle; his speech was slurred and his eye was watery; and he behaved abnormally when talking about the accident and gave a pretextual reason for driving late at night when the weather was very cold. In addition, Catlin noted that there were several bars in the immediate vicinity."

"These circumstances were sufficiently suspicious to provide Catlin proper grounds for asking Kapus to perform a PBT. While Kapus suggests that Catlin should have asked him to complete field sobriety tests before asking him to take a PBT, the extreme weather was not conducive to doing so, and Kapus, on his own initiative, demonstrated some of the physical conduct that could have been established through field sobriety testing. Because Trooper Catlin reasonably suspected Kapus of criminal activity, he could ask Kapus to take a PBT. See Vondrachek, 906 N.W.2d at 268. We conclude that the district court did not err in declining to suppress the evidence recovered by Catlin."

Moral Of The Story: It's the vibe of the thing that counts.

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI 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. Yemane (Decided March 16, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a change in the law does not allow for a collateral attack upon a prior DWI conviction.

In Yemane, the Defendant was charged with a First Degree (felony) DWI because he managed to rack up 4 DWIs within a 10 year period. His attorney sought to challenge the use of his 2013 conviction to enhance the current offense to a felony arguing, the "2013 offense may not be used to enhance his present offense because, in March 2013, he was advised that refusal to submit to a blood test was a crime before submitting to the blood test on which his guilty plea was based and it was later determined that such refusals could not be prosecuted criminally without a warrant. See Birchfield v. North Dakota, 136 S. Ct. 2160, 2184 (2016); State v. Trahan, 886 N.W.2d 216, 219 (Minn. 2016)."

The district court overruled the challenge and on appeal, the Minnesota Court of Appeals affirmed the lower court, noting:

"...even though advising a defendant that refusing a warrantless blood test is a crime now precludes prosecution for driving with a particular alcohol concentration, “prosecution [may] still proceed for the general offense of driving while under the influence, based on other evidence of impairment.” State v. Schmidt, 712 N.W.2d 530, 539 (Minn. 2006). We agree with the district court’s conclusion that here, “there was ample other evidence to sustain a prosecution and conviction for driving while impaired under a different subdivision of Minn. Stat. § 169A.20, even if the district court had suppressed the unconstitutional blood draw."

"Because collateral attacks of criminal convictions undermine the finality of judgments, they are allowed only in “unique cases.” State v. Warren, 419 N.W.2d 795, 798 (Minn. 1988), quoted in Schmidt, 712 N.W.2d at 538 n.4. A change in the law following a conviction is not a unique case. There is no basis to reverse the district court’s denial of appellant’s motion to exclude the March 2013 conviction."

Moral Of The Story: Be careful that your past does not come back to haunt you.

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 Jensen v. Commissioner of Public Safety (Decided March 6, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police can just make stuff up on the witness stand and if the district court buys it, the case will be affirmed.

In Jensen, a Pine County sheriff’s deputy was patrolling the area near Airport Road and Highway 61. The deputy was behind a vehicle driven by Sheila Laurel Jensen. As the deputy followed behind her, Jensen activated her left turn signal and slowed down as if to turn left onto Henriette Road but missed the turn and continued driving on Highway 61 for a short distance. Jensen then pulled off onto the right shoulder, crossed two lanes of traffic and made a U-tum. The deputy, who had maintained a distance of approximately three car lengths, testified he had to “tap [his] brakes and slow down to prevent a risk of getting into an accident” when Jensen made the U-tum. The deputy initiated a traffic stop, later identifying an “illegal U-tum” as the reason for the stop.  During the stop, the deputy noticed indicia of intoxication. Jensen took a breath test which revealed an alcohol concentration above 0.08. 

Ms. Jensen filed a challenge to the revocation of her license arguing the stop was illegal.  The deputy was the only witness at the license revocation hearing. Jensen argued that the deputy’s testimony about having to tap his brakes and slow his speed to avoid a collision must not be credited because, among other arguments, the deputy’s police report did not include this information. While the report, itself, was not admitted into evidence, the following portion of the report was read into the record by the deputy on cross-examination as follows: “[The vehicle] turned on its left blinker to turn onto Henriette Road. The vehicle missed the turn, and then pulled over to the right shoulder and made a U-tum in front of me. I pulled the vehicle over after it got onto Henriette Road.” The district court found the deputy’s testimony credible and sustained Jensen’s license revocation.

On appeal, Ms. Jensen argued that the district court committed clear error when it credited the officer’s testimony regarding the illegal nature of the U-tum that instigated the traffic stop. Jensen argues that the deputy’s testimony is not credible because his police report does not contain “one objective fact that supports” the assertion that she made an illegal U-tum. 

The Court of Appeals, however, notes: "The deputy’s testimony, however, was not in any way inconsistent with his report. There is also no requirement that, in order to justify a stop, police reports must contain the level of detail being sought by Jensen." (That's why I always lock in the officer on cross and make them explain they are trained to put everything that is "important" into their report. Then if the now "important" testimony is not in the report, it looks like they are making stuff up.)

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"The deputy... testified that he needed to slow down in order to avoid a possible collision with Jensen’s vehicle while Jensen made the U-tum, and the district court found the deputy’s testimony to be credible. Jensen’s arguments to the contrary were raised and lost at the district court level. She has failed to show clear error on this appeal."

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"Because credibility determinations are the province of the district court and there is sufficient evidence to support the court’s conclusions, the district court did not err in finding the deputy’s testimony credible and sustaining the revocation of Jensen’s driver’s license."

Moral Of The Story:  If there is a cop on your tail, do not turn around.

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 Minnesota DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.