Monday, November 23, 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The Minnesota DWI Case Of The Week is State v. French (Decided November 23, 2020, Minnesota Court of Appeals, Unpublished), which stands for the proposition that the Confrontation Clause does not prohibit the use of machine or computer generated data.

In French, the Defendant was arrested for DWI in Becker County, Minnesota and the police obtained a search warrant for his blood.  The results of the blood test revealed the presence of amphetamine and methamphetamine. 

Mr. French was subsequently charged with felony DWI.  The defense subsequently learned that, "D.Z.", the scientist who analyzed French's blood, had retired and was not available to testify at trial.  The defense then moved to exclude the results of D.Z.'s lab report as D.Z. was unavailable to testify.

The district court concluded that “the BCA lab report prepared by [D.Z.] is inadmissible unless [D.Z.] herself testifies at trial.” But the court “reserved ruling as to whether another BCA scientist may testify as an expert witness at trial".

Over French’s objection, the district court allowed BCA scientist J.S. testify that French’s blood had been tested for the presence of controlled substances, but that she was not the analyst who conducted the testing. Although D.Z.’s report was not admitted into evidence, J.S. testified that she independently reviewed the raw data in the file associated with French’s case and concluded that French’s blood sample showed the presence of amphetamine and methamphetamine.

The Defendant was convicted of Felony DWI and on appeal, he argued the admission of J.S.’s opinion testimony, that French’s blood tested positive for a controlled substance, violated his Confrontation-Clause rights because, “the BCA scientist who actually performed the test did not testify".

The Minnesota Court of Appeals affirmed the Defendant's conviction noting:

"As the state points out, French does not address this court’s decision in State v. Ziegler, 855 N.W.2d 551 (Minn. App. 2014). In that case, the defendant was charged with criminal vehicular operation (CVO) and reckless driving. Ziegler, 855 N.W.2d at 552. In preparing for trial, a state trooper used computer software to extract data from the defendant’s vehicle, such as the vehicle’s speed and brake activation prior to the accident at issue. Id. The software generated a report containing the data from the defendant’s vehicle. Id. At trial, however, the prosecution called a different state trooper who provided accident-reconstruction testimony based on his review of the machine¬generated report. Id. at 552-53. The testifying trooper admitted that he was not present when the software extracted the data from the defendant’s vehicle, or when the report was generated. Id. at 553. He also admitted that he did not know whether the software was working properly when the vehicle data was extracted, or whether all proper procedures were followed. Id."

"A jury found the defendant guilty of the charged offenses. Id. On appeal, the defendant argued that the district court violated her Sixth Amendment right to confrontation by admitting the data collected from her vehicle through the testimony of a trooper who was not present when the data was collected. Id. at 554. This court disagreed, concluding that “machine-generated data that do not contain the statements of human witnesses are not testimonial statements within the meaning of the Confrontation Clause.” Id. at 558. In reaching its decision, the court recognized that “Melendez-Diaz, Bullcoming, Caulfield, and Weaver do not determine the issue presented in this case because in those cases, the objectionable evidence was not limited to machine generated data; it included out-of-court statements made by people regarding the data.” Id. at 555. But the court stated that “several federal circuit courts have addressed the issue and concluded that such data are not testimonial statements within the meaning of the Confrontation Clause.” Id. The court then referred to a Seventh Circuit Court case, which “noted that a chemist’s report admitted into evidence had ‘two kinds of information: the readings taken from the instruments, and the chemist’s conclusion that these readings mean that the tested substance was cocaine’ and that only ‘the latter is testimonial as the Supreme Court used that word in Crawford.’” Id. at 556 (quoting United States v. Moon, 512 F.3d 359, 361-62 (7th Cir. 2008)). The court also referenced a Fourth Circuit Court case, which concluded that “‘printed data’ generated from chromatograph machines operated by lab technicians were not ‘statements of the lab technicians who operated the machines’ and thus ‘not out- of-court statements made by declarants that are subject to the Confrontation Clause.’” Id. (emphasis omitted) (quoting United States v. Washington, 498 F.3d 225, 229-30 (4th Cir. 2007))."

"This case is akin to Ziegler. As in Ziegler, a machine generated the raw data related to French’s blood sample. Under Ziegler, the raw data is not testimonial. See id. at 558. Although the conclusions in D.Z.’s report are testimonial, the report was not admitted into evidence. Instead, J.S. testified regarding her independent review of the machine¬generated data. As in Ziegler, the admission of machine-generated data through J.S.’s testimony did not trigger French’s right of confrontation under the Sixth Amendment. See id. And as the court noted in Ziegler, any question regarding the foundation for J.S.’s opinion is not relevant to French’s Confrontation-Clause argument. See id. at 558 (stating that the defendant’s “concerns regarding the reliability of the data and the data-retrieval process are not resolved under the Confrontation Clause”). Accordingly, J.S.’s testimony about the presence of controlled substances in French’s blood did not violate French’s right to confrontation."

Moral Of The Story: Machine's don't lie. Only people do.

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, November 16, 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 Jante v. Commissioner of Public Safety (Decided November 16, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that you will lose if your attorney does not raise the correct issue.

In Jante, a Douglas County Sheriff's deputy was on routine patrol when he saw a pickup truck stopped in a turn lane with its emergency lights on. The deputy stopped and approached the vehicle on the passenger side. Petitioner was standing outside of the vehicle next to the front passenger door. The door was open. At the Petitioner's feet were empty beer bottles and the truck’s ignition keys.

Seated in the backseat of the vehicle was a passenger.  Both the Petitioner and the backseat passenger claimed the other person was driving.  The Petitioner was arrested for DWI and his license was revoked.

The Petitioner filed a challenge to the license revocation challenging, "whether there was probable cause that the Petitioner was in physical control of the vehicle".   The Petitioner testified he was not the driver. The passenger also testified that she had lied to the police (because she was already on probation) and was in-fact the driver of the vehicle.

In addition, other witnesses testified on Petitioner's behalf that they saw the Petitioner leave in his truck with the alleged passenger driving his vehicle.  

The district court sustained the revocation finding that the police had probable cause to believe the Petitioner was driving or in physical control of the motor vehicle.  On appeal, the Court of Appeals affirmed the district court, confining its analysis to whether there was "probable cause" to believe the Petitioner drove or was in physical control of the motor vehicle.

There are a number of cases [Eg. Liona v. Commissioner of Public Safety, 389 N.W.2d 210 (MN.App. 1986); Winder v. Commissioner of Public Safety, 392 N.W.2d 21 (MN.App. 1986); Rademacher v. Commissioner of Public Safety, _ N.W.2d _ (MN App. 2007, Unpublished)] which hold that when the Petitioner alleges (in his revocation petition )that he or she was not, in fact, the driver or operator or in physical control of the motor vehicle, the Commissioner then has the burden of proving, by a preponderance of the  evidence, that Petitioner was, in fact, the driver.

In the present case, it appears the Petitioner only alleged the police did not have "probable cause" to believe he was in physical control, which is a much easier standard for the Commissioner to meet.

Moral Of The Story: If you have been arrested for a Minnesota DWI, hire an experienced lawyer who will not snatch defeat from the jaws of victory.

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, October 27, 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 LaClair v. Commissioner of Public Safety (Decided October 27, 2020, Minnesota Court of Appeals, Unpublished), which stands for the proposition that the police cannot enter the curtilage of a home in the early morning hours based upon a whim or idle curiosity.

In LaClair, a Lino Lakes police officer noticed a car, with its lights on, sitting in the driveway of a residence.  When the officer drove by the residence an hour later, the vehicle lights were still illuminated.  

The officer got out of his squad and walked up the driveway to the vehicle.  The officer walked up to the passenger side of the vehicle and noticed Mr. LaClair passed out in the driver's seat.

The officer walked over the the driver's side and opened the door without knocking.  Mr. LaClair woke up and admitted to drinking and driving.  LaClair was subsequently placed under arrest and his license was revoked.  

Mr. LaClair challenged the license revocation but the district court upheld the loss of his license.  On appeal, however, the Minnesota Court of Appeals reversed the district court noting:

"Police must have a warrant to enter a constitutionally protected area, subject to limited exceptions. U.S. Const, amend. IV; Minn. Const, art. I, § 10; Haase v. Comm’r of Pub. Safety, 679 N.W.2d 743, 746 (Minn. App. 2004). “If police enter a constitutionally protected area without a warrant, that entry is presumed to be unreasonable, and evidence obtained as a result must be suppressed” if no exception applies. Haase, 679 N.W.2d at 747."

"These protections extend to the “curtilage,” or the area adjacent to a home. Florida v. Jardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 1414 (2013). The path to the front door, however, invites visitors to approach and knock, and an officer may use this implied license just as any other citizen. Id. at 7, 133 S. Ct. at 1415. The relevant question is whether an officer’s behavior falls within the scope of the implied license that extends to any member of the public. See id. (“Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.”). The scope of an implied license is limited in time and purpose as determined by social norms. See State v. Chute, 908 N.W.2d 578, 586-88 (Minn. 2018) (concluding that officer violated social norms by taking a circuitous route and by lingering too long). 

***

"A late-night approach does not fall within the purview of an implied license absent an emergency or some evidence that the homeowner accepts visitors during those hours. United States v. Lundin, 817 F.3d 1151, 1159-60 (9th Cir. 2016); People v. Frederick, 895 N.W.2d 541, 546-47 (Mich. 2017) (discussing Jardines, 569 U.S. at 8, 133 S. Ct. at 1415); see also United States v. Quintero, 648 F.3d 660, 667 (8th Cir. 2011) (concluding that the time of day is a relevant circumstance when analyzing whether a consent to search is voluntary)."

"The record shows, and the commissioner concedes, that there was no sign of emergency when Officer Cree entered LaClair’s driveway or approached the residence. LaClair was not visible in his vehicle. Officer Cree did not testify that anyone else was present. He did not observe any indication of imminent danger to anyone. There is no evidence that the lights in the home were illuminated or of any other sign that the occupants of the home would welcome visitors during sleeping hours. And the circumstances observed by Officer Cree before his entry onto the property did not give rise to any reasonable suspicion of criminal activity. Instead, Officer Cree testified that he entered the property only to alert the homeowner of the potential for a dead car battery, which the commissioner concedes is a non-emergency. These are not the circumstances where an ordinary citizen would approach a home in the middle of the night. Accordingly, Officer Cree entered a constitutionally protected area without a warrant or an implied license, and evidence obtained thereafter must be suppressed."

Moral Of The Story:  Don't entice the police with shiny objects.

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, August 31, 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 Jensen v. 1985 Ferrari (Decided August 31, 2020, Minnesota Court of Appeals, Published) which stands for the proposition that the DWI offender must equip the vehicle subject to forfeiture with an interlock device in order to avoid forfeiture of said vehicle.

In Jensen, the state charged the Defendant with four criminal offenses: third-degree driving while impaired (DWI), second-degree DWI, driving after consuming alcohol with a restricted license, and careless driving. Jensen pleaded guilty to third-degree DWI (a gross misdemeanor), and the remaining counts were dismissed. The court sentenced Jensen to about a year in jail stayed for two years, with supervised probation, 60 days of electronic home monitoring, a $900 fine, and various other conditions.

When he was arrested, police impounded Jensen’s Ferrari and provided him a notice of seizure and intent to forfeit the car. Jensen challenged the forfeiture, and the district court held a bench trial.

Jensen testified that he had previously participated in the ignition-interlock program beginning in 2012. At the time of this DWI, however, he had completed the program and no longer had interlock devices on his vehicles. But two months after the DWI from which this case stems, Jensen was arrested for another impaired driving offense in a rental car. After that incident, in October 2018, Jensen again enrolled in the ignition-interlock program with one of his other vehicles, his Range Rover. Jensen provided no evidence that he installed or attempted to install interlock devices on his other two vehicles, including the Ferrari.

The district court ordered the Ferrari forfeited to the Minnesota State Patrol. It concluded that Jensen had committed an offense in the Ferrari, which subjected the car to forfeiture (a “designated offense”), and that Jensen did not qualify for the statutory stay for participants in the ignition-interlock program.

On appeal, the Minnesota Court of Appeals affirmed the district court noting that in 2019, "the Minnesota legislature enacted an exception to the DWI-forfeiture process to promote participation in the state’s ignition-interlock program. Minn. Stat. § 169A.63, subd. 13; see generally Minn. Stat. § 171.306 (describing the ignition- interlock-device program). Under this exception, if the driver becomes a program participant before the driver’s vehicle is ordered forfeited, forfeiture is stayed and the vehicle is returned pending the driver’s successful completion of the program. Minn. Stat. § 169A.63, subd. 13(a). But to become a program participant in the ignition-interlock program, a device—which measures the driver’s breath for the presence of alcohol-must be installed in every vehicle the person intends to drive. Minn. Stat. § 171.306, subd. 3(d). And, for the duration of the program, the participant must abide by several program requirements, as outlined in statute, or the vehicle may be taken again by law enforcement. See Minn. Stat. §§ 169A.63, subd. 13(b), (c), (f), 171.306, subds. 3, 5.".

The issue was whether or not Jensen's participation in the ignition interlock program insulated him from forfeiture of his Ferrari.  The Court of Appeals held it did not, stating:

"We begin with the plain language of the statute. It states:

'If the driver who committed a designated offense or whose conduct resulted in a designated license revocation becomes a program participant in the ignition interlock program under section 171.306 at any time before the motor vehicle is forfeited, the forfeiture proceeding is stayed and the vehicle must be returned.'

"The record establishes that, after a subsequent DWI, Jensen began participation in the ignition-interlock program with one of his other vehicles—a Range Rover—from October 2018 through the time of trial.Consequently, the key question is whether the statute requires Jensen to be participating in the program with the to-be-forfeited car, as opposed to any car."

"This statutory section does not define the key phrase—“the vehicle.”  Consequently, to determine its plain meaning, we read the entire forfeiture section and construe it as a whole, interpreting each word in the context of the whole statute to give effect to all of its parts. See In re Civil Commitment of Breault, 942 N.W.2d 368, 375-76 (Minn. App. 2020)."

"Under Minnesota Statutes section 169A.63, subdivision 6(a), “[a] motor vehicle is subject to forfeiture” when it is used to commit a designated offense or when its use results in a designated license revocation. (Emphasis added.) Subdivision 13(b) describes the consequences if an interlock-program participant fails to abide by the program rules. In that instance, “the vehicle whose forfeiture was stayed. . . may be seized and the forfeiture action may proceed.” Minn. Stat. § 169A.63, subd. 13(b) (emphasis added). And the subsequent provisions of subdivision 13—all enacted at the same time—repeatedly refer to the vehicle being forfeited as “the vehicle.” See id., subd. 13(g)-(i)."

"We acknowledge that when reading this section—which pertains to driving while impaired—an earlier provision defines “vehicle” more generally, as any device that transports people or property on a highway. See Minn. Stat. §§ 169.011, subd. 92, 169A.03, subd. 25 (2018). But in the provision at issue here, the statute refers to “the vehicle.” Minn. Stat. § 169A.63, subd. 13(a). The rules of common usage and grammar tell us that “the” denotes “a definite article that refers to a particular noun.” Patino, 821N.W.2d at 816. Accordingly, “the vehicle” means a particular vehicle, not any vehicle. Applying this reasoning to the statute as a whole, we conclude that the plain meaning of Minnesota Statutes section 169A.63, subdivision 13, generally requires the driver to be participating in the program with “the vehicle” that is to be forfeited, not just any vehicle.

***"Having established that the Act requires a driver to be enrolled in the ignition-interlock program with the to-be-forfeited vehicle, we turn to the facts involving Jensen’s Ferrari. The record contains no evidence that Jensen attempted to install an ignition-interlock device on his Ferrari.  Nor does the record establish that Jensen did not intend to drive the Ferrari. And as we discussed earlier, ignition-interlock participants must install “an ignition interlock device on every motor vehicle that the participant operates or intends to operate.” Minn. Stat. § 171.306, subd. 3(d) (emphasis added)."

"In sum, a driver participating in the ignition-interlock program must be enrolled in the program with the vehicle that is the subject of the forfeiture proceedings in order to stay forfeiture of that vehicle under Minnesota Statutes section 169A.63, subdivision 13. Jensen did not meet this requirement. As a result, the district court did not err by concluding that the forfeiture of Jensen’s Ferrari did not qualify for the statutory stay of the forfeiture proceeding."

Moral Of The Story:  Being penny wise but pound foolish can cost you a Ferrari!

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, 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)."
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"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.