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The Minnesota DWI Case Of The Week is Wirkus v. Commissioner of Public Safety (Decided August 3, 2026, Unpublished, Minnesota Court of Appeals) which stands for the proposition that if you have been drinking and driving and make it safely home, KEEP YOUR DOOR SHUT!

In Wirkus, the Petitioner caused a disturbance at her former place of employment and then left the scene.  The former employer called the police complaining Ms. Wirkus was drunk and provided a description of her vehicle and license plate.

The police drove to the Petitioner's residence to investigate and to serve her with a "Trespass Notice" from the former employer. The police went to the front door of her home, which had a screen door attached that opened outwards from the home's solid front door.  

The officer rang the bell but no one answered.  The officer then opened the screen door and knocked on the solid door.  A man identified as Wirkus’s fiance opened the front door. At that moment, a dog slipped out of the house and into the yard. The fiance stepped out of the house and closed the front door and told the officers to “hang on” while he went into the yard to collect the dog. The officer remained at the front entrance, holding the screen door open with her body. After a short time, the officer again knocked on the front door and waited. Getting no response, she knocked again.

Ms. Wirkus opened the front door. She stepped one foot outside, reached out and grabbed the screen door with her left hand, and said, “I’m going to shut this door.” At the same time, Wirkus reached her right hand out and pushed against Olstad’s utility belt, which was equipped with a service weapon, a taser, ammunition, and a baton. The police immediately grabbed Wirkus’s right arm, pulled her fully outside, and tried to put her arms behind her back to place her in handcuffs. 

The police brought the Petitioner to the station where she agreed to submit to a Data Master breath test with a result of .14% BAC.

The Commissioner of Public Safety revoked the Petitioner's license and she filed a challenge to the revocation arguing (among other things) that the police unlawfully intruded on her residence without a warrant.

The District Court sustained the revocation and on appeal, the Minnesota Court of Appeals affirmed the revocation noting:

"Wirkus argues that the district court misapplied Hasse in concluding that Olstad did not intrude on her residence by preventing the front door from closing. In Hasse, we held that an officer committed a warrantless entry into a constitutionally protected area by “kicking his leg out to trip the auto-reverse sensor” of a garage-door opener to prevent a garage door from closing when Hasse was inside his garage and trying to close the door. 679 N.W.2d at 745. We reasoned that, while a garage can be entered by officers if left “impliedly open,” Hasse’s garage was not impliedly open because he was trying to close the door. Id. at 746-47. As a result, the officer had entered an area in which Hasse had a reasonable expectation of privacy. Id. at 747. The district court here distinguished Hasse, explaining the officers “did not prevent the closing of any door that was in the process of being closed” and, instead, were reacting for their own safety to Wirkus’s “aggressive conduct” of taking a step out of the door and pushing on Officer Olstad’s utility belt."

"Wirkus argues that the district court clearly erred by finding that Olstad did not prevent a door from being closed because Olstad admitted that she was blocking the screen door from being closed. At the hearing, Olstad agreed that she was “holding the screen door open with [her] body.” But the issue here, as in Hasse, is whether Olstad, by holding the screen door open, was intruding on a place in which Wirkus had a reasonable expectation of privacy. Id. at 746. There are two main differences between this case and Hasse that establish that Olstad was not intruding in a protected place."

"First, the screen door here opened outward such that Olstad did not have to enter the house to open it or hold it open. This situation is different from Hasse, in which the officer had to move his foot into the garage (a constitutionally protected space) to keep the door open. See id. at 745. The officers here only intruded on the area outside the front entrance, which is a constitutionally unprotected space. See Crea, 233 N.W.2d at 739; see also United States v. Santana, 427 U.S. 38, 40-42 (1976) (concluding that the appellant had no expectation of privacy when standing in her doorway). And, as the district court noted, Wirkus opened the front door—the officers neither opened it nor blocked any attempt to close it."

"Second, neither Wirkus’s nor her fiance’s conduct supported a reasonable expectation of privacy in the screen door area before the seizure. The fiance made no attempt to close it when he answered the door and stepped outside to chase the dog. And when Wirkus finally answered the door, the screen door had been open for over a minute. In these circumstances, Olstad had no reason to believe that the screen door area was not impliedly open. This differs from Hasse, in which the officer saw the garage door being closed and then intruded to keep it open. See Haase, 679 N.W.2d at 745. It is true that Wirkus likely established an expectation of privacy when she opened the front door, took a step outside, said that she was going to close the screen door, and tried to close it. But Wirkus simultaneously pushed Olstad’s utility belt, which triggered the officers’ seizure of Wirkus, and Olstad had no time to react to Wirkus’s newly expressed intent to close the screen door. Therefore, Olstad’s opening of the screen door and holding it open until the seizure did not intrude on an area with a reasonable expectation of privacy."

***

"And unlike in Hulne, Wirkus actually stepped out of her home before the seizure. 'A search occurs whenever governmental agents intrude upon an area where a person has a reasonable expectation of privacy.' In re Welfare ofB.R.K., 658 N.W.2d 565, 578 (Minn. 2003). The officers here did not enter Wirkus’s home and thus did not intrude upon a protected area."

Moral Of The Story: Curiosity can also catch a cat.

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 If The Week is State v. Klatt (Decided September 8, 2025, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it doesn't take much to justify the expansion of a traffic stop.

In Klatt, the Defendant was stopped for driving a vehicle with an inoperable taillight.  The officer making the stop testified he had met Mr. Klatt on two previous occasions.  The officer testified that at their first meeting, Klatt’s “eyes were clear and his manners were calm, and [the deputy] did not observe any signs of impairment."

The officer testified that at their second meeting, he “observed a change in behavior from the first time that [he] saw [Klatt].” He testified that Klatt’s “eyes were bloodshot and watery” and that Klatt was “kind of in an excited state.” During the conversation, Klatt admitted that he uses alcohol and cannabis and “stated that he would not stop.”

The officer testified that during the taillight stop, he he did not immediately observe any alcohol containers or drug paraphernalia, did not detect the smell of alcohol or marijuana, and did not observe any visible smoke. But he testified that, upon speaking with Klatt, the deputy “immediately recognized that his eyes were bloodshot and watery and that his pupils were dilated.” The deputy explained that, in response to the light from his flashlight, Klatt’s pupils did not restrict and remained instead “more dilated than [he] would expect normally.” The deputy testified that he suspected Klatt was impaired based on his dilated pupils, his bloodshot and watery eyes, and his prior knowledge that Klatt used drugs and alcohol.

The deputy asked Klatt to step out of the vehicle and observed that Klatt’s “balance and coordination seemed fine.” Klatt submitted to field sobriety testing during which the deputy observed additional signs of impairment. The deputy placed Klatt under arrest and searched his vehicle. Inside Klatt’s vehicle, the deputy found several open alcohol containers.

Mr. Klatt was subsequently charged with underage drinking and driving and violating the open bottle law.  

The district court, however, suppressed all of the evidence, ruling that the officer unlawfully expanded the traffic stop into a driving while impaired (DWI) investigation because “the [deputy’s observation of [Klatt] with bloodshot and watery eyes, and dilated pupils, [was] insufficient to provide reasonable [articulable] suspicion of intoxication,” and that the deputy’s prior interactions with Klatt did not support such a suspicion.

The State appealed the District Court's ruling and the Minnesota Court of Appeals reversed the lower court, noting:

"“An officer seeking to expand the duration or scope of the traffic stop beyond its original justification may only do so if he or she had a particularized and objective basis for suspecting the seized person of criminal activity.” State v. Sargent, 968 N.W.2d 32, 38 (Minn. 2021) (quotation omitted). “[E]ach incremental intrusion . . . [must be] tied to and justified by one of the following: (l)the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonable suspicion as defined by Terry. State v. Askerooth, 681 N.W.2d 353, 365 (Minn 2004)."

*    *    *

"The state argues that the deputy justifiably expanded the traffic stop because Klatt’s dilated pupils and bloodshot and watery eyes constituted two indicia of impairment, and two indicia of impairment are sufficient to support a reasonable suspicion.  We agree."

"In Klamar, a trooper pulled behind a vehicle stopped on the shoulder of the freeway. Id. at 690. After asking the driver to step out of the vehicle, the trooper “noticed an odor of alcohol emanating from [the driver] and that [the driver]’s eyes were bloodshot and watery.” Id. The trooper expanded the scope of the stop and conducted a DWI investigation. Id. The investigation indicated that the driver was intoxicated, and she was charged with DWI. Id. The district court determined that the trooper did not have reasonable suspicion to expand the stop and dismissed the charge. Id. We reversed, concluding that “[t]he trooper’s observation of two indicia of intoxication specific to [the driver] reasonably justified further intrusions in the form of field sobriety and preliminary breath testing.” Id. at 696.

Here, as in Klamar, the deputy observed two indicia of impairment specific to Klatt: dilated pupils and bloodshot and watery eyes. But the district court noted that, although the deputy observed those two indicia, he observed “no others” and pointed out that the deputy did not observe Klatt slurring his speech or exhibiting an unsteady gait, and did not observe an odor of alcohol or marijuana. The district court concluded that, in the totality of the circumstances, the indicia that did indicate that Klatt was impaired were “rather weak” because “the majority of the circumstances . . . did not indicate [that Klatt] was impaired.” (Emphasis added.)"

"The district court’s analysis was incorrect. Reasonable suspicion does not require that an officer observe a driver exhibiting a majority of the known indicia of impairment. In this case, the deputy observed Klatt with dilated pupils and bloodshot and watery eyes. Consistent with our decision in Klamar, his observations provided an “independent basis” of suspicion that justified expansion of the traffic stop. Moreover, in the context of the more-demanding probable-cause standard, we have said that the absence of certain indicia does not invalidate or negate the existence of other indica. See, e.g.. State v. Prax, 686 N.W.2d 45, 49 (Minn. App. 2004) (concluding that driver “perform[ing] well” on field sobriety tests did not negate other indicia of impairment supporting probable cause), rev. denied (Minn. Dec. 14, 2004); State v. Grohoski, 390 N.W.2d 348, 351 (Minn. App. 1986) (concluding that district court “improperly focused on the absence of other indicia of intoxication” because a “DWI suspect need not exhibit every known sign of intoxication in order to support a determination of probable cause”), rev. denied (Minn. Aug. 27, 1986)."

"Because the deputy observed Klatt exhibiting two indicia of impairment, we conclude that the district court erred in determining that the deputy lacked reasonable suspicion justifying the expansion of the traffic stop."

Moral Of The Story:  Where is Visine when you need it?

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 Case Of The Week is State v. Green (Decided June 9, 2025, Minnesota Court Of Appeals, Unpublished) which, once again, stands for the proposition that if the officer has probable cause to arrest for DWI, it constitutes a gross misdemeanor to refuse to submit to evidentiary testing.

In Green, a Hennepin County Sheriff's deputy stopped a black Cadillac for traveling 51 mph in a 25 mph zone.  The Cadillac driver told the officer she was trying to keep up with her sister, who was driving an Audi and who had also pulled over when the Cadillac was stopped.

The Deputy then spoke to the Defendant and he observed Ms. Green was speaking slowly, appeared lethargic and had slurred speech. He also noted the odor of alcohol.

The deputy had the Defendant get out of the vehicle and perform three field sobriety tests: the eye gaze nystagmus test; the walk and turn test and the one-leg stand test. Ms Green refused to submit to a preliminary breath test and was arrested for DWI.

The Defendant subsequently refused to submit to an evidentiary breath test at the police station and was charged with gross misdemeanor DWI refusal.  The case went to a jury trial and the Defendant was found guilty of DWI refusal.

On appeal, the Defendant claimed the evidence was insufficient to support her conviction but the Court of Appeals disagreed, noting:

"When a conviction is supported by direct evidence, “we limit our review to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” Horst, 880 N.W.2d at 40 (quotation omitted). We assume “that the fact-finder disbelieved any evidence that conflicted with the verdict.” Id."

***

"A person may be required to submit to a chemical test when the “officer has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle while impaired.” State v. Koppi, 798 N.W.2d 358, 362 (Minn. 2011) (quotation omitted)."

"To prove that the deputy here had probable cause to believe that Green was driving while impaired, the state presented evidence of the officer’s direct observations of Green’s erratic driving and behavior. He first observed Green and her sister speeding (going 51 miles per hour in a 25-mile-per-hour zone) and changing lanes at approximately 2:00 a.m., right after bar’s have typically closed in Minneapolis. Next, as the deputy spoke with Green he observed lethargy, slurred speech, and an odor of alcohol emanating from the vehicle. The state also introduced BWC footage supporting the deputy’s testimony about Green. And the deputy testified that, based on his training and experience, Green’s behavior was indicative of impairment. All of this evidence is direct evidence of the totality of the facts and circumstances known to the officers, and, if true, proves without inference that there was probable cause to believe Green was driving while impaired. See Olson, 887 N.W.2d at 700 (concluding that an officer’s direct observations of indicia of impairment and testimony based on those observations are direct evidence of impairment)."

"...we acknowledge that some of the deputy’s testimony about Green’s performance on the field sobriety tests is not corroborated by the BWC footage. For example, according to the deputy, Green performed poorly on the one-leg stand test by placing her foot down, swaying while balancing, and using her hands for balance. But the BWC footage does not show any of this. In fact, the BWC footage shows that Green maintained her balance for approximately 30 seconds before she began to sway. However, Green can be heard on the BWC footage slurring her words as she is counting, and the officer’s testimony regarding the walk-and-tum test is consistent with what is depicted in the BWC footage. Additionally, the deputy observed multiple indicia of impairment, and testified that, based on his training and experience, the erratic driving behavior exhibited by Green, coupled with the deputy’s observations of Green during the field sobriety tests, led the deputy to believe that she was impaired."

"Applying the direct-evidence standard and viewing the evidence in the light most favorable to the verdict, we conclude the evidence at trial was sufficient to prove beyond a reasonable doubt that law enforcement had probable cause to believe that Green was driving while impaired. The deputy observed erratic and high-speed driving, as well as physical indicia of impairment including observed lethargy, slurred speech, and an odor of alcohol emanating from the vehicle. The state introduced BWC footage that supports these observations. We have held that driving conduct and physical indicia similar to those exhibited by Green can support probable cause of intoxication. See Otto, 924 N.W.2d at 661 (holding that “[e]rratic driving and failing to observe traffic laws can be indicia of intoxication . . . and doing so at a time of day when drinking is often found to be involved” (1:20 a.m. on Saturday morning)); State v. Driscoll, 427 N.W.2d 263, 265 (Minn. App. 1988) (affirming probable cause where officer noted, among other things, odor of alcohol and failing to follow directions during field sobriety test)"

Moral Of The Story: A refusal to submit to testing is easier to prove than the validity of an evidentiary breath test. So don't refuse to submit to testing.

If you or a loved one have been charged with 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. Brehmer (Decided April 28, 2025, Minnesota Court of Appeals, Unpublished) which stands for the proposition that even if the defendant was arrested before the police had probable cause, the evidence obtained was still admissible under the "inevitable-discovery" rule.

In Brehmer, the police saw the Defendant was driving the wrong way down a one-way street.  Defendant then hit his brakes and drove backwards into a parking lot.  The police activated their emergency lights to perform a traffic stop.  As the officers approached the Defendant's vehicle, one of the officers shouted, "Watch out. Watch out."

The officers exited the squad car with their firearms drawn and yelled at Brehmer to put his hands up. Brehmer moved his hands up and down several times before raising both hands, with one hand outside of the car window. One officer observed that Brehmer made “a lot of furtive movements . . . with the hands kind of up, down, side to side,” and specifically noted that he “reach[ed] to the right side.” 

One of the officers opened the driver-side door and pulled Brehmer from the car. The officers both pushed Brehmer to the ground face down and cuffed his hands behind his back. While Brehmer was handcuffed on the ground, one of the officers patted Brehmer’s pockets and pulled up his shirt to reveal his waistband. The officer then stood Brehmer up while handcuffed and brought him over to the squad car. The officers pat-frisked Brehmer next to the squad car, reaching into his front pants pocket and removing his wallet. During the frisk, one of the officers felt an object near Brehmer’s “right buttock area in his underwear.” He asked Brehmer what the object was, and Brehmer replied that it was “just a pipe.” The other officer removed a glass pipe from Brehmer’s underwear and, after inspecting it, concluded that it was a drug pipe containing drug residue.

One of the officers then ran information from Brehmer’s driver’s license in the police database and, after Brehmer stated that he did not have a license, confirmed that Brehmer’s license was suspended. The officer stated that he wanted to do “one more frisk search” before putting Brehmer in the back of the squad car. The officer reached into Brehmer’s front and back pockets and pat-frisked Brehmer’s body. The officer then placed Brehmer, still handcuffed, in the back of the squad car. During this time, the other officer observed that Brehmer exhibited several indicia of drug use, including pinpoint pupils, bloodshot eyes, sweating, and fast head movements. Officers also searched Brehmer’s car and found whiskey plates for the car.

One of the officers applied for and received a search warrant for Brehmer’s blood or urine for chemical testing. Officers obtained a urine sample from Brehmer that tested positive for amphetamine and methamphetamine.

The State of Minnesota charged Brehmer with felony DWI pursuant to Minn. Stat. § 169A.20, subd. 1(7) (2020). Brehmer moved to suppress evidence including the search of his person and car, his statements to the officers on the scene, and the chemical test of his urine, arguing that the police violated his right to be free from an unlawful search and seizure under the United States and Minnesota Constitutions. 

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

"The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. And unless an exception applies, evidence obtained as a result of an unlawful search or seizure must be suppressed. State v. Bradley, 908 N.W.2d 366, 369 (Minn. App. 2018). One such exception is the inevitable-discovery doctrine, which permits a court to admit evidence obtained as a result of an unlawful search or seizure “[i]f the state can establish by a preponderance of the evidence that the fruits of a challenged search ultimately or inevitably would have been discovered by lawful means.” State v. Licari, 659 N.W.2d 243, 254 (Minn. 2003) (quotation omitted). To meet this burden, the state’s showing must “involve[] no speculative elements but focus[] on demonstrated historical facts capable of ready verification.” Nix v. Williams, 467 U.S. 431, 444 n.5 (1984)."

"It is uncontested that the officers had reasonable, articulable suspicion to stop Brehmer after observing his erratic driving and had reasonable concern for officer safety such that a Terry frisk was lawful. This frisk would have inevitably revealed the drug pipe with drug residue in Brehmer’s underwear. Indeed, the officer testified that he would have found the pipe “regardless” of any of Brehmer’s statements during the encounter."

"Similarly, the district court found that “a routine records check inevitably would have been performed” and would have revealed that Brehmer’s license was canceled as inimical to public safety and that the vehicle was subject to whiskey plates. Brehmer does not assert that this finding was clearly erroneous. One officer agreed during his testimony that it was “standard operating procedure to identify an individual” during a traffic stop, that the officer would have learned that Brehmer’s license was canceled, and that the officer would have discovered that the vehicle should have been displaying whiskey plates when stopped. See Diede, 795 N.W.2d at 846-47."

"Based on these inevitabilities, the officers would have had probable cause to arrest Brehmer for operating a vehicle while his license was canceled as inimical to public safety—a gross misdemeanor. Minn. Stat. §§ 171.04, subd. 1(10), .24, subd. 5(1) (2020). And given that probable cause to arrest, officers would have inevitably discovered the drug pipe with residue on Brehmer in a search incident to arrest. Brehmer’s erratic driving, drug pipe with residue, and his canceled license and vehicle-registration status, taken together, formed sufficient probable cause to support a warrant for chemical testing for DWI."

Moral Of The Story: If someone continues to drive and act the wrong way, they will inevitably get into trouble.

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. Kost which stands for the proposition that a defendant's failure to provide adequate samples for a breath test does not automatically constitute a criminal refusal to submit to testing.

In Kost, the defendant was arrested for a DWI and was asked to submit to a Data Master Breath Test at the police station. Ms. Kost agreed to submit to the breath test but when the officer attempted to administer the test, the machine was unable to register an alcohol concentration level. The officer attempted to administer the test a second time, but Kost’s breath sample was again inadequate. He believed that Kost was purposefully providing inadequate breath samples. During the testing process, Kost requested multiple times that another officer be brought in to administer the test because a different officer had been able to successfully administer the PBT before she was arrested; the officer declined her requests. Kost also repeatedly stated that she was not refusing to take a test and offered to provide a blood sample; the officer declined to collect a blood sample.

Ms. Kost was charged with refusal to submit to testing and at trial, the Court gave the following jury instruction:

"A refusal to submit to chemical testing includes any indication of actual unwillingness to complete the testing process, as determined from the driver’s words and actions, in light of the totality of the circumstances. Refusal may be shown in a number of ways, including verbal refusal, nonverbal indication of unwillingness to comply, failure to make a decision, or actions that frustrate the testing process. When a test is administered using an infrared or other approved breath testing instrument, the failure of a person to provide two separate, adequate breath samples in the proper sequence constitutes a refusal." 

The defense challenged the instruction arguing that the last sentence only applies to license revocations and is not proper in the criminal case as it negates the willfulness requirement of refusal. 

The Minnesota Court of Appeals agreed with the defense and reversed the conviction stating:

"Kost acknowledges that the challenged portion of the instruction was taken directly from Minn. Stat. § 169A.51, subd. 5(c). But she argues that the language of that statute misstates the law for criminal test refusal because it applies only to license-revocation proceedings. The statute provides in relevant part: “For purposes of section 169A.52 (revocation of license for test failure or refusal), when a test is administered using an infrared or other approved breath-testing instrument, failure of a person to provide two separate, adequate breath samples in the proper sequence constitutes a refusal.” Minn. Stat. § 169A.51, subd. 5(c) (emphasis added). The same introductory phrase also appears in the first of the three subsequent provisions, which collectively address when a breath test (as opposed to a sample) is deficient and when a deficient test constitutes refusal. Id., subd. 5(d)-(f) (2022). Kost argues that this introductory phrase means that the failure to provide two separate, adequate breath samples constitutes refusal as a matter of law only in license-revocation cases."

***

"The statutory provision on its face includes the qualifying language that the failure to provide two separate, adequate breath samples constitutes a refusal “[f]or purposes of section 169A.52 (revocation of license for test failure or refusal).” Minn. Stat. § 169A.51, subd. 5(c). This case is not a license-revocation proceeding under Minn. Stat. § 169A.52 (2022); it is a criminal prosecution for test refusal under Minn. Stat. §§ 169A.20, subd. 2(1), .25, subd. 1(b) (2022). Accordingly, Minn. Stat. § 169A.51, subd. 5(c), does not apply."

***

"In Ferrier, we held that a conviction of test refusal “requires proof of a volitional act that indicates unwillingness to submit to a test,” and that such “actual unwillingness” may be determined from the driver’s words and actions in light of the totality of the circumstances. Ferrier, 792 N.W.2d at 99, 102. Kost argues that, while the district court accurately recited the actual-unwillingness standard to the jury, it then negated that standard by instructing the jury that failure to provide two separate, adequate breath samples constitutes test refusal as a matter of law. Again, we agree. The latter instruction effectively directs a guilty verdict if a driver fails to provide two breath samples that the testing machine registers as adequate, even if other circumstances indicate that the driver was not actually unwilling to submit to testing."

"In sum, because Minn. Stat. § 169A.51, subd. 5(c), does not apply in this criminal test-refusal case, and instructing the jury with that statute’s language negated the actual- unwillingness standard that does apply, we conclude that the challenged jury instruction materially misstated the law regarding criminal test refusal."

Moral Of The Story: Just because you are not a blowhard does not mean that you have refused testing.

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 WI Case Of The Week is Reihs v. Commissioner of Public Safety (Decided January 20, 2025, Minnesota Court of Appeals, Published) which stands for the proposition that an extension of a revocation or cancellation of a driver's license is not subject to judicial review. I always thought procedural due process required that any government action concerning the "property interest" of a driver's license is subject to judicial review, but live and learn, in this case, to one's detriment.

In Reihs, the Petitioner's license had been revoked due to a drunk driving arrest.  Reihs enrolled in the Minnesota's Ignition Interlock program which enabled him to regain driving privileges subject to the requirements laid out in the interlock-program guidelines. 

The interlock-program guidelines require participants to submit to two types of alcohol-detecting breath tests via a device installed in their vehicle: an initial test and rolling tests. The participant must pass the initial test to legally start their vehicle. The device then periodically requests rolling tests at intervals of five to 45 minutes while the vehicle is running. 

Reihs he failed to complete multiple rolling tests. Because of this, in July 2023, the commissioner sent him a warning letter stating that he had violated the interlock-program guidelines and that further violations would result in an extension of his program enrollment. In September, after Reihs again missed rolling tests, the commissioner informed him that his license-revocation period was extended for 180 days pursuant to Minn. Stat. § 171.306, subd. 5(a). And when Reihs thereafter continued to miss rolling tests, the commissioner advised him that his revocation period was extended for an additional year. Both extension notices included language informing Reihs that he had “the right to judicial review” as “outlined in Minnesota Statutes, section 171.19.”

Reihs filed a challenge in district court to the extension of the license revocation period but the lower court held that it lacked "subject matter" jurisdiction because extension of a revocation is not one of the five challenges enumerated in Minn. Stat. § 171.19. 

In a published decision, the Minnesota Court of Appeals upheld the lower court stating:

"Minn. Stat. § 171.19 provides, in pertinent part:

Any person whose driver’s license has been refused, revoked, suspended, canceled, or disqualified by the commissioner, except where the license is revoked or disqualified under section 169A. 52, 171.177, or 171.186, may file a petition for a hearing in the matter in the district court."

"First, Reihs asserts that extending a license-revocation period constitutes a 'revocation' under Minn. Stat. § 171.19 because there is “no material difference” between   a revocation and an extension of revocation. He suggests that an extension of a revocation period is, effectively, a 're-revocation.' We disagree."

The appellate court reviewed various definitions of revocation and found, "...'revocation' plainly means the initial act or instance of withdrawing a person’s driver’s license. Because an extension of a revocation period is not an initial instance of license withdrawal but a continuation of a withdrawal that has already occurred, it is a distinct and separate action from the revocation itself. Simply put, a revocation extension does not alter the license status of the revoked person. Accordingly, we conclude that the plain meaning of the term “revocation,” as used in Minn. Stat. § 171.19, does not include an extension of a driver’s license revocation issued pursuant to Minn. Stat. § 171.306, subd. 5(a)."

"Second, Reihs argues that, if an extension of revocation is not a “revocation” under Minn. Stat. § 171.19, it is a “de facto refusal to restore [his] license.” This argument is no more convincing."

"Like “revocation,” the term “refusal” is not statutorily defined. See Minn. Stat. § 171.01. Dictionaries define it as “[t]he act or an instance of refusing,” The American Heritage Dictionary of the English Language 1478, and “a denial or rejection of something demanded or offered,” 13 The Oxford English Dictionary 494. To “refuse” means to “indicate unwillingness to do, accept, give, or allow,” The American Heritage Dictionary of the English Language 1478, and to “decline to take or accept (something offered or presented); to reject [an] offer,” 13 The Oxford English Dictionary 495."

"The ordinary meaning of the term “refusal” clearly contemplates an action taken in response to a preceding request, application, or demand. Indeed, “indicating] unwillingness” and “declining] to accept” are both affirmative, responsive actions. Similarly, both definitional phrases imply discretion on the part of the refuser. It follows that an extension of revocation issued due to a violation of the interlock-program guidelines cannot be a “refusal.” This is so because an extension does not arise from any sort of request or application and it does not depend on the exercise of the commissioner’s discretion. Minn. Stat. § 171.306, subd. 5(a) (stating “[i]f a program participant. . . violates the program guidelines . . ., the commissioner shall extend the person’s revocation period” (emphasis added)). We conclude that the plain meaning of the term “refusal,” as used in Minn. Stat. § 171.19, does not encompass an extension of a driver’s license revocation issued under Minn. Stat. § 171.306, subd. 5(a). 

"A district court lacks subject-matter jurisdiction under Minn. Stat. § 171.19 to review the extension of a driver’s license-revocation period. Accordingly, the district court did not err by denying Reihs’s petition."

Moral Of The Story: Once you are in the program, the Courts are not going to help you get out of it.

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 Lorsung v. Commissioner of Public Safety (Decided December 30, 2024, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if an officer's suspicion of intoxication has been dispelled, he may not subsequently administer a preliminary breath test and the arrest of the petitioner is illegal.

In Lorsung, Officer Sonterre of the New Brighton police responded to a reported automobile collision in a bar parking lot. Officer Sonterre learned that Melissa Lorsung had been backing out of her parking spot when her car bumped an apparently intoxicated pedestrian. The officer also learned that Lorsung had been drinking inside the bar and had left the bar around closing time. Lorsung was smoking a cigarette when Officer Sonterre first approached her. He did not smell alcohol on her breath or observe any of the typical tell-tale signs of alcohol impairment, like bloodshot and watery eyes, unstable balance, or slurred speech.

Officer Sonterre directed Lorsung to perform the horizontal gaze nystagmus test. Officer Sonterre noticed no indication of impairment during the test.

Officer Paul Yang then spoke with Lorsung. Officer Yang, who waited with Lorsung and spent more time near her than Officer Sonterre, also did not observe bloodshot or watery eyes, slurred speech, or the odor of alcoholic beverages. Lorsung said, “[W]e’re free to leave, I guess.” He watched Lorsung move her car about three feet out of the way and into a parking spot, which he later said he would not have allowed had he believed she was impaired. Officer Yang told Lorsung that he didn’t want to keep her and asked if she had any questions before she left.

Officer Sonterre spoke with his supervising sergeant. Officer Sonterre told the sergeant that Lorsung was not drunk, and he agreed that it appeared that an impaired pedestrian had walked into the car of a sober driver. But the pedestrian and her family were still present, and Officer Sonterre said that he would administer another sobriety test before allowing Lorsung to leave, reasoning, “[S]o they can’t say I didn’t do my job.”

The preliminary breath test revealed an alcohol concentration level of .145 and Ms. Lorsung was placed under arrest.  A subsequent Data Master breath test revealed Ms. Lorsung was over the legal limit and her driver's license was subsequently revoked.

Ms. Lorsung challenged the revocation in district court arguing the officer lacked a "reasonable suspicion" to administer the preliminary breath test. The District Court upheld the revocation but on appeal, the Minnesota Court of Appeals reversed the District Court stating:

"[B]efore an officer may ask a driver to submit to a PBT, he must have a reasonable suspicion to believe that the driver is impaired. Minn. Stat. § 169A.41, subd. 1 (Supp. 2023); see Sarberv. Comm ’r of Pub. Safety, 819N.W.2d465 (Minn. App. 2012) (reversing an implied-consent license revocation where the officer lacked reasonable suspicion for the investigation). Because the exclusionary rule requires the district court to suppress the results of a PBT administered without reasonable suspicion, see State v. Diede, 795 N. W.2d 836, 842 (Minn. 2011), we must consider whether the district court properly concluded that the officer had reasonable suspicion to ask Lorsung to perform the PBT."

"Our review leads us to disagree with the district court’s determination. We review “a district court’s determination of reasonable suspicion de novo” and “accept[] the district court’s factual findings unless they are clearly erroneous.” Kruse v. Comm ’r of Pub. Safety, 906 N.W.2d 554, 557 (Minn. App. 2018). Reasonable suspicion requires a particularized and objective basis to suspect a driver of criminal activity considering the totality of the circumstances. State v. Anderson, 683 N.W.2d 818, 822-23 (Minn. 2004); State v. Taylor, 965 N.W.2d 747, 752 (Minn. 2021). We understand that, after Officer Sonterre began his investigation, he had reason to suspect that Lorsung had been driving while impaired. He knew that she had been drinking and that she had backed into a pedestrian in the parking lot of a bar at closing time. Even with no other indicia of impairment, a reasonable officer would suspect—as the officer here initially suspected—that Lorsung was impaired. But Officer Sonterre did not ask Lorsung to perform a PBT when he first suspected her impairment. He used other means to test his suspicion. He looked for signs of impairment in her balance, in the condition of her eyes, and in her speech. He testified at the implied- consent hearing that none of his observations of those things supported the idea that she was impaired. He then directed Lorsung to perform the horizontal gaze nystagmus test. And his observation of her performance on that test combined with the accident investigation and his ongoing observations of Lorsung led him to believe, contrary to his initial suspicion, that he had apparently encountered a case of a drunk pedestrian walking into the car of a sober driver. Corroborating Officer Sonterre’s belief, Officer Yang, who observed Lorsung the longest, also thought that she was not impaired."

"The commissioner emphasizes the circumstances preceding the officer’s no longer reasonably suspecting Lorsung’s impairment. But the totality of circumstances includes an officer’s consideration of new information that tends to dispel previous reasonable suspicion. This is because police intrusions after their reasonable suspicion has been dispelled are unconstitutional. State v. Pleas, 329 N.W.2d 329, 332 (Minn. 1983); State v. Hickman, 491 N.W.2d 673, 675 (Minn. App. 1992), rev. denied (Minn. Dec. 15, 1992). The commissioner does not identify, and the district court did not find, any indicia of Lorsung’s intoxication that any officer observed between the time of the horizontal gaze nystagmus test and the time Officer Sonterre reapproached to ask her to perform the PBT. We have no difficulty concluding that a reasonable officer in Officer Sonterre’s shoes would have reasonably suspected, just as the officers here reasonably suspected, that Lorsung was not impaired when Officer Sonterre asked her to perform the PBT. Because the information available to the officers in the developing investigation would have dispelled (and did dispel) their objective reasonable suspicion that Lorsung was impaired, Officer Sonterre lacked reasonable suspicion to request the test."

"We are also unpersuaded by the commissioner’s argument that Officer Sonterre’s decision not to dismiss Lorsung shows that his reasonable suspicion had not been dispelled. The argument glosses over three important facts. The first is that Officer Sonterre is trained to notice signs of intoxication. The second is that he was satisfied that Lorsung was not impaired. And the third and most important is that the reason he did not dismiss Lorsung before he requested the PBT was not because he suspected that she was impaired but because he sought to confirm his contrary suspicion for the sake of demonstrating a thorough review for the struck pedestrian and her family."

***

"Officer Sonterre ended his impaired-driving investigation after Lorsung successfully completed the nystagmus test, and his reason for asking for the PBT was not based on his reasonable suspicion of her impairment but instead on his reasoned suspicion of her nonimpairment. The officer had no basis to request a subsequent chemical test. We reverse the commissioner’s decision to revoke Lorsung’s driving privileges."

MORAL OF THE STORY: You can't be tested if you are above suspicion.

If you or a loved one have been charged with 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.