Monday, June 29, 2020

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The Minnesota DWI Case Of The Week is State v. Ekiyor (Decided June 29, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a Defendant has no right to present an involuntary intoxication defense when the Defendant voluntarily ingested the drugs in question.

In Ekiyor, the Defendant was arrested for Felony DWI and during the booking process, he submitted to a partial breath test indicating his alcohol concentration level was .20%.  The Defendant also stated he had taken zolpidem (Ambien) as prescribed the previous evening.  Ekiyor further stated that he had been involved in a similar incident two months earlier; he woke up in the hospital after taking zolpidem, blacking out, and driving a vehicle. Ekiyor stated that the previous incident resulted in reckless-driving charges.

Prior to trial, Ekiyor sought to raise the affirmative defense of involuntary intoxication or temporary insanity due to his ingestion of zolpidem and moved to admit expert testimony about the drug’s side effects. In support of his motion, Ekiyor submitted a report in which a forensic toxicologist opined that the ingestion of zolpidem can result in serious side effects—including sleep-driving—and that Ekiyor exhibited symptoms of intoxication due to zolpidem impairment. Ekiyor claimed that he could not present a complete defense if the jury was not provided with information about the side effects of zolpidem, which demonstrated that he lacked the general intent to drink and drive.

The district court denied Ekiyor’s motion to allow the forensic toxicologist to testify as an expert about the effects of zolpidem, concluding that the defenses of voluntary and involuntary intoxication were inapplicable to the case.

On Appeal, the Court of Appeals affirmed the District Court, stating:

"We determine that Ekiyor’s argument that the district court erred by denying the expert’s testimony about the effects of zolpidem is misplaced given that the defense that he sought to raise—intoxication due to the ingestion of zolpidem—was unavailable to him."

"Ekiyor was charged with DWI and driving while under the influence of a combination of alcohol and a controlled substance. These are general-intent offenses because “[a]n unlawful intention or state of mind is not an element of a D.W.I. charge.” State v. Duemke, 352 N.W.2d 427, 430 (Minn. App. 1984). And the defense of voluntary intoxication is not a defense to a general-intent offense. See City of Minneapolis v. Altimus, 238 N.W.2d 851, 854-55 (Minn. 1976) (noting that voluntary intoxication is a defense only if a specific intent or purpose is an element of the charged offense); see also State v. Martin, 591 N.W.2d 481, 486 (Minn. 1999) (noting that claim of temporary insanity caused by voluntary intoxication due to defendant’s use of alcohol or drugs not available as a defense). Further, the affirmative defense of involuntary intoxication was also unavailable to Ekiyor. See Minn. Stat. §§ 169A.46, subd. 2 (recognizing affirmative defense of involuntary intoxication available only to rebut a charge of driving while under the influence of a Schedule I or II controlled substance); 152.02, subd. 5(c)(52) (classifying zolpidem as a Schedule IV controlled substance) (2016)."

"Finally, even if the defense of involuntary intoxication had been available to Ekiyor, he would have been unable to make the required showing necessary to raise this defense. As outlined in Altimus, the defense of involuntary intoxication is available only when: (1) “the defendant must not know, or have reason to know, that the prescribed drug is likely to have an intoxicating effect”; (2) “the prescribed drug, and not some other intoxicant, is in fact the cause of defendant’s intoxication at the time of his alleged criminal conduct”; and (3) “the defendant, due to involuntary intoxication, is temporarily insane.” 238 N.W.2d at 857."

"Here, there was evidence that the label of Ekiyor’s zolpidem prescription warned about its intoxicating effects and to avoid driving after taking it. Ekiyor also testified about a prior incident when he drove after ingesting a combination of zolpidem and Vicodin. And, finally, it is unlikely that Ekiyor would have been able to prove that zolpidem was the sole cause of his impaired driving given that there was evidence of alcohol in his system.
Because we determine that the defense of zolpidem intoxication was unavailable to Ekiyor, he was not denied his right to present a complete defense. Therefore, the district court did not err by excluding the expert’s testimony on the basis that it would not be helpful to the jury."

Moral Of The Story: Don't sleep and drive!

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.






Monday, June 8, 2020

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. Ekelund (Decided June 8, 2020, Minnesota Court of Appeals, Unpublished), which stands for the proposition that if you give up trying to reach a lawyer, your right to counsel prior to testing will be deemed "vindicated".

In Ekelund, the Defendant was arrested for a DWI in Hubbard County and was taken to the Beltrami County jail for breath testing.  The Defendant was read the Minnesota Implied Consent Advisory and he indicated he wished to consult with counsel prior to testing.

Mr. Ekelund was provided with a telephone and telephone directories at 2:24 a.m.  The Defendant looked through the directories for several minutes and placed three telephone calls, but was unable to contact an attorney. Mr. Ekelund then asked for his personal cell phone, explaining to the officer that he wanted to speak with a non-attorney friend who could put him in contact with an attorney. The officer declined to give appellant his personal cell phone at that time. Appellant returned to the directories and placed five more unanswered telephone calls.

At 2:33 a.m., the officer gave Mr. Ekelund his cell phone. The Defendant used it to send a text message to a friend in an attempt to facilitate contact with an attorney. When he did not receive an immediate response, Defendant stated that it “might take a second” because “it’s kind of late at night.” The Defendant made two more calls on his cell phone, both of which went unanswered.

Eventually, Mr. Ekelund was able to complete a cell-phone call with a friend who indicated that he could provide appellant with the telephone number of an attorney. The Defendant ended that call at 2:44 a.m. and made no further calls using either his cell phone or the telephone provided by police. At 2:50 a.m., the officer asked whether Defendant had received the attorney’s phone number, and the Defendant stated, “[y]ep, I’m getting the number,” but specified that he was waiting for his friend to call him back.

At 2:57 a.m., the officer informed Mr. Ekelund that his time to contact an attorney would end at 3:00 a.m. The Defendant continued to sit passively—despite the ready availability of two different phones—and made no additional calls and sent no additional text messages. The officer declared Defendant's attorney time at an end just after 3:00 a.m. and asked him if he would take a breath test. Ekelund agreed to take the test. The test revealed a 0.22 alcohol concentration.

The Defendant moved to suppress the result of the breath test, and the district court denied the motion. The district court concluded that Mr. Ekelund's “limited right to counsel was vindicated because he had ceased to make good faith efforts to contact an attorney at the time law enforcement requested that he submit to a chemical test.”

On appeal, the Minnesota Court of Appeals affirmed the lower court, noting:

“[T]he Minnesota Constitution gives a motorist a limited right to consult an attorney before deciding whether to submit to chemical testing for blood alcohol.” State v. McMurray, 860 N.W.2d 686, 692 (Minn. 2015). This limited right “cannot unreasonably delay the administration of the test.” Minn. Stat. § 169A.51, subd. 2(4) (2016). The state vindicates this right when it provides the driver with a telephone before testing and gives the driver a “reasonable time to contact and talk with counsel. If counsel cannot be contacted with a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.” Friedman v. Comm ’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (quotation omitted)."

“A reasonable time is not a fixed amount of time, and it cannot be based on elapsed minutes alone.” Mell, 757 N.W.2d at 713. Rather, courts consider the totality of the circumstances in determining whether the state provided a reasonable amount of time to consult an attorney. Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000). Factors considered by a reviewing court include: the efforts made by the driver balanced against the efforts made by the officer; the time of day; and the length of delay since the driver’s arrest. Mell, 757 N.W.2d at 713. Police officers are required to “assist in the vindication of the right to counsel.” Mulvaney v. Comm ’r of Pub. Safety, 509 N.W.2d 179, 181 (Minn. App. 1993). But an officer need not allow an arrestee “unfettered use of a telephone to call friends or relatives, unless the driver specifies that the reason for the calls is to contact an attorney.” McNaughton v. Comm ’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995)."

"A DWI arrestee must make a “good-faith and sincere effort” to contact an attorney with the time afforded him. Mell, 757 N.W.2d at 713. If the driver is not making a good- faith effort to contact an attorney, police need not afford additional time to contact an attorney. Id."
***
"The officer informed appellant that he had a right to contact an attorney and provided appellant with a telephone and telephone directories. Appellant looked through the directories and made several phone calls. When police provided appellant with his own personal cell phone, he made several additional calls and sent several text messages. Appellant was, for a time, making a good-faith effort to reach an attorney. However, the district court found as a fact that appellant later “ceased to make good faith efforts to contact an attorney.”  The record supports this finding. Specifically, the recording of the implied-consent process shows appellant standing around, drinking water, and waiting for his friend to return his call. When the officer notified appellant at 2:57 a.m. that his attorney time would end at 3:00 a.m., appellant continued to sit passively and made no additional attempts to contact an attorney or anyone else."

"We conclude that the record adequately supports the district court’s finding that the officer vindicated appellant’s right to counsel by providing appellant with a telephone, appellant’s own personal cell phone, telephone directories, and a reasonable amount of time to make contact with an attorney. The record also amply supports the district court’s finding that appellant ended his good-faith effort to contact an attorney by the time the officer required appellant to decide whether to take the breath test. We therefore affirm the district court’s determination that appellant’s limited right to counsel was vindicated.

Moral Of The Story:  Use it or lose 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.




Tuesday, May 26, 2020

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. Moore (Decided May 26, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a prior license revocation notation on a driving record is not sufficient proof of a prior offense for enhancement purposes.

In Moore, the Defendant was arrested and charged with a Felony DWI because at the time of the current offense, she had two prior DWI convictions from 2011 and, according to a certified copy of the Defendant's driving record, a loss of license in 2009 for impaired driving.  The Defendant waived a jury trial and argued that her driving record was insufficient to establish a prior impaired driving incident. The District Court found Ms. Moore guilty of felony DWI but on appeal, the Minnesota Court of Appeals reversed the district court explaining:

"A person is guilty of first-degree DWI if they commit that violation within ten years of the first of three or more qualified prior impaired-driving incidents. Minn. Stat. § 169A.24, subd. 1(1). A “[qualified prior impaired driving incident includes prior impaired driving convictions and prior impaired driving-related losses of license.” Minn. Stat. § 169A.03, subd. 22 (2016). A “[p]rior impaired driving-related loss of license includes a driver’s license suspension, revocation, cancellation, denial, or disqualification.” Id., subd. 21(a) (2016). An implied-consent license revocation “becomes effective” when an officer notifies the person of the revocation and advises the person of the right to administrative or judicial review.  Minn. Stat. § 169A.52, subd. 6."

"Because a revocation does not “become effective” without notice, in order to prove a defendant guilty beyond a reasonable doubt of an offense that requires a prior license revocation, the state has the burden of proving that appellant received notice of that revocation. See State v. Burg, 648 N.W.2d 673, 677-78 (Minn. 2002) (“The Due Process Clause of the Fourteenth Amendment to the United States Constitution ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged.’”) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)) (alteration in original). Moreover, we note that, in previous license-revocation cases disputing notice, the state has provided either testimony regarding notice or evidence that it provided notice to the defendant. See, e.g.. Gray v. Comm’r of Pub. Safety, 918 N.W.2d 220, 225 (Minn. App. 2018) (identifying officer testimony that he personally provided notice); Johnson v. Comm’r of Pub. Safety, 889 N.W.2d 36, 37, 40 (Minn. App. 2016) (identifying officer testimony that he thought he placed notice in appellant’s property); Johnson v. Comm ’r of Pub. Safety, 394 N.W.2d 867, 868 (Minn. App. 1986) (identifying officer testimony that he placed order of revocation in front of appellant)."
***
"Here, the district court concluded that “the [s]tate has prove[d] beyond a reasonable doubt all of the elements of this offense” and that the certified copy of the driving-record history established a qualified prior impaired-driving incident. The district court relied on Omwega to reject appellant’s argument that the state had to prove notice. State v. Omwega, 769 N.W.2d 291, 296 (Minn. App. 2009) (noting officer properly placed notice in appellant’s bag with his other property when released from custody), review denied (Minn. Sept. 29,2009). First, as discussed above, the state has the burden of proving notice. Burg, 648 N.W.2d at 677-78. Second, Omwega is distinguishable because there, the state presented evidence that the police provided the appellant with notice. Omwega, 769 N.W.2d at 296. There is no such evidence here, and without it, we cannot make the reasonable inference that she received this notice. See Chambers, 589 N.W.2d at 477. Nor does appellant’s certified driving-record history allow for a reasonable inference that she received notice. The only inference the statute allows is that, if the police mailed the notice, appellant received it three days later. See Minn. Stat. § 169A.52, subd. 6."

As stated by the court, "...appellant’s certified driving record may prove the occurrence of a license revocation, but it does not prove that she received notice of that revocation. The state contends that the driving-record notation of “notice re requirements sent” constituted proof that the state provided appellant notice of the license revocation. But the state offers no testimony that the notation referred to the revocation, and the district court made no finding on it. Nor does the certified driving record contain any explanation of its headings, terminology, or abbreviations."

Moral Of The Story:  A prior isn't a prior without proof of notice.

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.


Monday, May 4, 2020

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 McCormick v. Commissioner of Public Safety, (Decided May 4, 2020, Minnesota Court of Appeals, Published) which stands for the proposition that when it comes to reading the Minnesota Implied Consent Advisory, close is good enough.

In McCormick, the Petitioner was arrested for a DWI and was taken to the police station to be tested on the Data Master (breath testing) machine.  Prior to taking the test, Mr. McCormick was told, "This is the breath test advisory" and that "Minnesota Law requires you to take a test to determine if you are under the influence of alcohol.  Refusal to take a test is a crime...Do you understand what I've just explained?" Mr. McCormick indicated he understood and would submit to a breath test.  The test result revealed a test reading in excess of the legal limit.

The Petitioner's license was revoked and the Petitioner's attorney filed a challenge to the revocation arguing that it should be rescinded because the officer did not read the statutory language of the advisory.  The statutory language of Minnesota Statute § 169A.51, sub 2. states, "refusal to submit to a breath test is a crime".  Since  the officer did not include the word "breath" when he read the advisory, the issue was whether the failure constituted sufficient grounds to rescind.  

The Minnesota Court of Appeals affirmed the revocation of the driver's license, noting:

"Appellant does not argue that section 169A.51, subdivision 2, is ambiguous. Rather, he essentially argues that the statute requires officers to read its language verbatim. He asserts that the officer’s failure to state “breath” directly before “test” misstated the law both because it is not a crime to refuse a warrantless blood or urine test  and because it makes the word “breath” in section 169A.51, subdivision 2, meaningless, contrary to the legislature’s intent."

"The plain language of section 169A.51, subdivision 2, unambiguously requires officers to “inform” a person “that refusal to submit to a breath test is a crime.” The statute does not define the word “inform.” However, we may consider dictionary definitions when determining the plain meaning of a word. See In re Restorff, 932 N. W.2d 12, 19-21 (Minn. 2019). To “inform” means to “impart information to; make aware of something.” The American Heritage Dictionary 899 (4th ed. 2000). To inform a person that refusal to submit to a breath test is a crime therefore requires that officers make the person aware that refusal to submit to a breath test is a crime."

"Here, the district court found that the officer stated that “[t]his is the breath test advisory of [appellant],” stated that refusal to submit to “a test” is a crime, and asked appellant only if he wanted to take a breath test, without mentioning any other test. (Emphasis added.) Appellant does not dispute these findings, and the record supports them. Based on the context of the advisory that the officer gave to appellant, the officer informed appellant by making him aware that refusing to take the breath test, as the only test offered, would be a crime. The officer did not mention or request a blood or urine test and therefore did not improperly inform appellant that refusal to submit to one of those tests is a crime."
***
"We presume that the legislature understood the effect of using “inform” and of not using language requiring a verbatim recitation of the statute. See Dayton Hudson Corp. v. Johnson, 528 N.W.2d 260, 262 (Minn. App. 1995) (stating that we “presume that the legislature understood the effect of its words”); cf, e.g., Minn. Stat. § 270C.4451, subds. 3, 4 (2018) (requiring “the following verbatim statements,” followed by quoted language); Minn. Stat. § 332B.11, subd. 2 (2018) (requiring “the following verbatim disclosure,” followed by quoted language); Minn. Stat. § 144.6521 (2018) (providing written disclosure “must read as follows,” followed by quoted language).  It is not the role of this court to read additional language into statutes. See State v. Noggle, 881 N.W.2d 545, 550 (Minn. 2016)."
***
"We “highly encourage[]” uniformity in breath-test advisories and “recommend that police officers read the exact words of the statute in order to avoid any possibility of confusion or improper deviation.” See Hallock, 372 N.W.2d at 83. Although no previous published opinion has addressed the adequacy of a breath-test advisory stating that failure to take “a test” is a crime, we have concluded in three unpublished opinions that this language is not a misstatement of law or misleading when the officer offers the person only a breath test.  We find these opinions persuasive."

"We therefore hold that whether an officer gave a breath-test advisory that informed a person that refusal to submit to a breath test is a crime depends on whether the given advisory, considered in its context as a whole, is misleading or confusing. Because we conclude that the officer complied with the implied-consent statute by informing appellant that refusing to take the breath test would be a crime, we do not reach the state’s argument that any misstatement of law in the advisory would be only a technical statutory violation not requiring reversal of government action."

Moral Of The Story: Close enough for government work.



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.

Monday, April 27, 2020

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.

Monday, April 13, 2020

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.


Tuesday, April 7, 2020

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.