Monday, November 5, 2018

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 Windsor v. Commissioner of Public Safety (Decided November 5, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that if the police read a misleading advisory to a person under arrest for DWI, the arrestee must testify he or she relied on the misleading advisory in order to establish a due process violation.

In Windsor, the Petitioner was arrested for a DWI and was read a Minnesota Implied Consent advisory and was asked to submit to a blood test.  The advisory falsely advised the Petitioner that refusal to submit to a warrantless blood test was a crime.  The Petitioner submitted to a blood test and the test result indicated the presence of amphetamine.

The commissioner revoked Windsor’s license to drive based on the results of the blood test. Windsor petitioned the district court for rescission of the license revocation. The district court held an implied-consent hearing, at which the court received the following evidence: a peace-officer certificate, a copy of the implied-consent advisory that was read to Windsor, and a copy of Windsor’s test results. Windsor did not testify at the hearing.

The district court rejected Windsor’s Fourth Amendment argument, reasoning that Windsor “freely and voluntarily” consented to the blood test. However, the district court relied on McDonnell and found that the state violated Windsor’s right to due process because “[i]t was not a crime for [Windsor] to refuse a warrantless request for a blood test” and that Windsor was therefore “misled when he was told refusal was a crime.” The district court concluded, “Since the portion of the Implied Consent Advisory that informed [Windsor] that ‘test refusal is a crime’ was unconstitutional, his driver’s license revocation is rescinded.

The State appealed and the Minnesota Court of Appeals reversed the district court, noting:

"In its recent decision in Johnson, the supreme court stated that a due-process violation under McDonnell does not occur 'solely because a driver [has] been misled' by an implied-consent advisory. 911 N.W.2d at 508. Instead, the supreme court stated:
A license revocation violates due process when: (1) the person whose license was revoked submitted to a breath, blood, or urine test; (2) the person prejudicially relied on the implied consent advisory in deciding to undergo testing; and (3) the implied consent advisory did not accurately inform the person of the legal consequences of refusing to submit to the testing. Id. at 508-09 (citing McDonnell, 473 N.W.2d at 853-55)."
***
"The circumstances here are identical to those in Morehouse. Although Windsor submitted to a blood test, he did not establish that he prejudicially relied on the implied- consent advisory in deciding to submit to the test. He therefore is not entitled to due- process relief under McDonnell."

Moral Of The Story: Only the squeaky wheel gets the grease!



If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Thursday, November 1, 2018

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. Went (Decided October 29, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that stopping by the side of the road and then attempting to drive away does not justify a seizure by the police. Well duh, except the prosecutor did not know that.

In Wento, the Defendant was driving southbound on Highway 53 in Koochiching County, Minnesota.  A Minnesota State Trooper was traveling northbound along the same highway when he saw Wento’s car. He observed no traffic violations as he passed her, but waited until Wento’s car was out of sight before turning around to follow her. Down the highway, Wento had pulled off to the side of the road. As the trooper pulled up behind her car, he saw the passenger door open and someone crouched beside it. The unidentified person got back into the car and closed the door, and the car pulled away from the side of the road. The trooper activated his squad car lights and stopped Wento’s car.

The trooper walked up to Wento’s car to talk with her. He learned that Wento had pulled to the side of the road because her passenger had to vomit. The trooper could smell a moderate odor of alcohol and noticed that Wento slurred her words as she spoke. Wento admitted to having a couple beers earlier in the day, and the trooper ordered her out of the car to do field sobriety tests. After showing various indicators of being impaired and failing the preliminary breath test, Wento was arrested and later consented to a breath test. Her alcohol concentration was above the legal limit and she was charged with fourth-degree driving while impaired in violation of Minn. Stat. § 169A.27, subd. 1 (2016) and operating a motor vehicle with an alcohol concentration of .08 in violation of Minn. Stat. § 169A.20, subd. 1(5) (2016). Wento filed a motion to dismiss the charges for lack of probable cause and a motion to suppress all evidence seized.

At the motion hearing, the trooper testified that he stopped Wento’s vehicle to perform a welfare check. The district court found that instead he initiated a traffic stop when he activated his lights and had no reasonable articulable suspicion for such a seizure. Finding that all evidence seized was in violation of Wento’s constitutional rights because the trooper did not have reasonable suspicion to initiate a stop, the district court granted Wento’s motion to dismiss the case for lack of probable cause. 

The State appealed the District Court's ruling, but the Minnesota Court of Appeals affirmed the District Court noting:

"A seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn 1993) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S. Ct. 1868, 1879 n. 16 (1968)). To determine if a seizure has taken place, this court looks to “whether a police officer’s actions would lead a reasonable person under the same circumstances to believe that she was not free to leave.” State v. Lopez, 698 N.W.2d 18, 21 (Minn. App. 2005). This analysis depends on the totality of the circumstances. Id.; see also E.D.J., 502 N.W.2d at 783."

"In this case, the trooper testified at the motion hearing that he did not activate his emergency lights when he pulled up behind Wento’s car, but instead waited until she “started driving away.” It is generally established that a seizure occurs when a police officer stops a vehicle. See State v. Bergerson, 659 N.W.2d 791, 795 (Minn. App. 2003) (holding that a “driver confronted with a trailing squad car with flashing red lights inevitably feels duty bound to submit to this show of authority by pulling over”); see also Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396 (1979). The state relies on State v. Hanson, which holds that activating squad lights alone does not constitute a seizure on an already stopped vehicle and can instead be construed by a reasonable person as a welfare check. 504 N.W.2d 219, 220 (Minn. 1993). In this case, though, Wento was not parked on the side of the road and was instead driving away from the trooper when he activated his emergency lights. Unlike a welfare check, the use of emergency lights signaled to Wento “that the officer [was] attempting to seize [her] for investigative purposes.” Id. The state provides no argument to counter the trooper’s testimony at the hearing: that he activated his lights after Wento pulled away from the side of the road. Therefore, because a reasonable person would feel restrained in this situation, the district court did not err in finding the seizure took place when the trooper activated his lights."

"Here, the trooper pulled up behind Wento’s car and noticed the passenger’s door was open with someone crouched outside. The passenger returned to the car and closed the door, and the car pulled away. Only after initiating the stop did the trooper learn that the passenger had been throwing up. The trooper testified at the hearing that he did not “know what [was] happening in that vehicle,” indicating that he was not motivated by the need to render aid. Additionally, he was not called to this scene to check on anyone’s wellbeing. See Lopez, 698 N.W.2d at 23 (noting that “an officer responding to a call to investigate someone unconscious or sleeping in a vehicle is justified in investigating the welfare of that individual”). Further, a reasonable person under these circumstances would not believe an emergency existed when a vehicle briefly pulled off to the side of the road, then eventually drove away with no traffic violations. Because the trooper was not reasonably motivated by the need to render assistance and no reasonable person would believe an emergency existed, the emergency-aid exception does not apply and the stop was constitutionally unreasonable."

Moral Of The Story: If you have to stop by the side of the road, make it short!



If you or a loved one have been arrested for a Minnesota DWI or are facing the DWI forfeiture of your motor vehicle, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and forfeiture questions.

Monday, October 22, 2018

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. Whitaker, (Decided October 22, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that hearsay must be reliable in order to be admissible.

In Whitaker, 911 dispatch received two phones calls at approximately 11:30 p.m. regarding a single-car accident. The first caller reported seeing a "smoking" car that had hit a tree with someone still inside the vehicle. The second caller said that he saw a car hit a tree, and had tried to speak with the driver, who was still in the car and "freakin' out." He also stated that the driver did not respond to him.

Officers found the car crashed into a tree, as reported. They also found one individual—later identified as appellant Deddrick Terrell Whitaker—seatbelted in the driver's seat. According to officers, Whitaker acted erratically—he rocked back and forth, yelled gibberish, flailed his arms, and did not respond to officers. The officers noted that the car was still running and in drive. Eventually, the fire department removed Whitaker from the car, and he was transported to the hospital. Officers meanwhile searched the car and found two bags containing suspected controlled substances.

Officers obtained a search warrant, and Whitaker's blood was drawn and tested; his blood test revealed the presence of phencyclidine, a controlled substance more commonly known as PCP. Whitaker was charged with driving while impaired (DWI)—presence of a controlled substance—under Minn. Stat. § 169A.20, subd. 1(7) (2016).

In January 2017, Whitaker notified the state by motion that he intended to "rely on the affirmative defense of 'someone else was the driver of the motor vehicle.'" The day before trial was scheduled to begin, the district court conducted a pretrial hearing. Whitaker stated that the "true driver" of the vehicle was in the courtroom. The district court inquired further, the witness stated his name—K.A.—and left the courtroom at the district court's direction because he was a potential witness. Later, K.A. gave statements to investigators for the state and the defense.

During the three-day jury trial, the state offered testimony from the responding officers, a hospital employee, investigators, BCA employees, and an individual who testified that he sold the car involved in the accident to Whitaker, who was not the registered owner. After the state rested, and outside the jury's presence, the defense said it intended to call K.A. to establish that he, not Whitaker, drove the car. The district court appointed counsel to advise K.A. before he testified. After a recess, and outside the jury's presence, K.A. took the witness stand, and, under questioning from his counsel, invoked his Fifth Amendment right against self-incrimination. The district court released K.A. from the defense subpoena.

Whitaker asked to introduce K.A.'s out-of-court statements through either the defense or the state's investigators under an exception to the hearsay rule. The state objected and argued the out-of-court statements were not reliable. After determining that K.A. was unavailable, as required by the applicable rule of evidence, the district court considered several factors and excluded the evidence as inadmissible hearsay.

Whitaker then testified, stating that he had been sleeping in the car for a few days before the accident, he did not own the car, and K.A. drove the car the day of the accident. He also testified that he remembered the car hitting a tree and he was then knocked unconscious.  The jury found Whitaker guilty and on appeal, he contends the district court erred when it excluded the out of court statement of K.A.

The Minnesota Court of Appeals affirmed the conviction noting:

"Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Minn. R. Evid. 801(c). Generally, hearsay is not admissible unless an exception applies. Minn. R. Evid. 802. One exception allows the admission of hearsay by an unavailable declarant when the statement is against the declarant's interest. See Minn. R. Evid. 804(b)(3). Under this exception, a hearsay statement that is against the declarant's penal interest may be admissible to exculpate the defendant only if: (1) the declarant is unavailable to testify; (2) the statement tended to "subject the declarant to civil or criminal liability" at the time the statement was made, so that a reasonable person would not have made the statement unless they believed it to be true; and (3) "corroborating circumstances clearly indicate the trustworthiness of the statement." Ferguson v. State, 826 N.W.2d 808, 813 (Minn. 2013)."

"Here, the parties dispute only the third requirement: whether corroborating circumstances clearly indicate the trustworthiness of K.A.'s statements to investigators.2 In Ferguson v. State, the Minnesota Supreme Court directed district courts to examine six factors to determine the trustworthiness of a hearsay statement against interest: "(1) whether other evidence corroborates the facts in the hearsay statement; (2) the extent to which the hearsay statement is consistent with the declarant's prior testimony and other statements; (3) the relationship between the declarant and other witnesses and parties, including the defendant; (4) whether the declarant has reason to fabricate the statement; (5) the overall credibility and character of the declarant; and (6) the timing of the statement." 826 N.W.2d at 813. It is not necessary to address all six factors in every case; the trustworthiness of the hearsay statement under rule 804(b)(3) "depends on the totality of the circumstances, and the relevance of each of the six factors will vary depending on the facts of each case." 

"Based on two factors—the lack of corroborating evidence and the timing of the statements—the district court decided to exclude K.A.'s statements. The district court considered other admitted evidence, specifically, the 911 call "that only identified one occupant in the vehicle," the responding officers' statements that they "did not see any other individuals," and that Whitaker "was buckled into the driver's seat" and "[t]he car was still in drive." The district court concluded that no "other information" corroborated K.A.'s statement. We agree with the district court.

Moral Of The Story:  Alibi Witness delayed is alibi witness denied.


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.

Monday, October 8, 2018

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 Susa v. Commissioner of Public Safety (Decided October 8, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that you must show you relied on the inaccurate Implied Consent advisory before you can challenge the test result.  

In Susa, the Petitioner was arrested for a DWI in Pine County.  After the deputy read the Minnesota Implied Consent Advisory, Petitioner provided a urine sample. Analysis of the sample indicated an alcohol concentration of 0.14. The Commissioner Of Public Safety revoked Petitioner's driver's license.

Petitioner challenged the license revocation in district court arguing his due-process rights were violated because the implied-consent advisory was misleading in that it advised him that it was a crime to refuse to submit to a warrantless blood or urine test, which simply was not true. 

In a memorandum in support of his motion, Petitioner argued that the warrantless urine test was unconstitutional because there were no valid exceptions to the warrant requirement and respondent had a right to refuse a warrantless blood or urine test under State v. Trahan, 870 N.W.2d 396 (Minn. App. 2015), aff'd, 886 N.W.2d 216 (Minn. 2016) (concluding test-refusal statute, which criminalized driver's refusal to take a warrantless blood test, was unconstitutional as applied to Trahan where there were no exigent circumstances justifying a warrantless search of his blood). Petitioner also relied on McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848 (Minn. 1991), to support his argument that the implied-consent advisory was misleading and violated his due-process rights. 

In an unpublished opinion, this court affirmed the district court's rescission order on McDonnell due-process grounds. Susa v. Comm 'r of Pub. Safety, No. A16-0569, 2016 WL 7188703, at *2 (Minn. App. Dec. 12, 2016). We concluded that respondent's due-process rights were violated by the misleading implied-consent advisory that threatened to criminally punish respondent for refusing to submit to a warrantless blood or urine test. Id. at *4. We reasoned that "[r]ecent holdings of the Minnesota Supreme Court and the United States Supreme Court make clear that the state cannot criminally punish respondent for his refusal to submit to either the blood or urine tests offered by the deputy.

The supreme court granted the commissioner's petition for review and stayed the proceedings pending final disposition in Morehouse v. Comm'r of Pub. Safety.  In Morehouse, the Petitioner not even claim, much less establish, that he prejudicially relied on the implied-consent advisory, The Morehouse Court ruled Petitioner was not entitled to rescission of his license revocation under McDonnell.

Morehouse overruled Olinger v. Commissioner of Public Safety in which the Minnesota Supreme Court had previously ruled a party DID NOT have to show prejudicial reliance upon the advisory.  Thus the Court of Appeals, in this case, uses Morehouse to reverse the district court, noting:

"At the time respondent petitioned for judicial review of his license revocation, this court had not required a showing of prejudicial reliance on a misleading implied-consent advisory. See Olinger v. Comm 'r of Pub. Safety, 478 N.W.2d 806, 808 (Minn. App. 1991) (concluding McDonnell due-process violation occurs when police threaten criminal charges the state is not authorized to impose, without any showing of prejudicial reliance). Respondent contends that Johnson and Morehouse "fundamentally changed the rule of law with respect to the prejudicial effect of a misleading Implied Consent Advisory." But the supreme court in Morehouse and Johnson has now clarified that a McDonnell due-process violation has three elements, one of which requires proof of prejudicial reliance. The supreme court did not remand to the district court to give Morehouse an opportunity to develop a factual record on prejudicial reliance. 911 N.W.2d at 505."

"Applying Morehouse, as we are required to do by the supreme court's remand instructions, we are persuaded that respondent did not allege or establish the second element of a McDonnell due-process violation. Respondent did not testify at the evidentiary hearing, and he did not claim prejudicial reliance in his written submissions to the district court. Because the record does not establish that respondent prejudicially relied on the misleading implied-consent advisory in making the decision to submit to testing, respondent has not established a McDonnell due-process violation, and he is not entitled to rescission of his driver's license revocation on due-process grounds"

OUCH!

Moral Of The Story:  If you have been misled, speak up!!


If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Monday, September 24, 2018

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 Mortenson v. Commissioner of Public Safety (Decided September 24, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that if you refuse to submit to testing, you cannot claim you were misled by an inaccurate Implied Consent Advisory.

In Mortenson, the Petitioner was arrested for a DWI and was read a Minnesota Implied Consent Advisory.  Mr. Mortenson refused to submit to a blood or urine test and the commissioner revoked his license.  

The Petitioner challenged the license revocation arguing his license revocation should be rescinded because the state cannot constitutionally charge him with a crime for refusing warrantless blood and urine tests. The district court agreed and rescinded the revocation of Mortenson's license to drive.  The Court of Appeals agreed initially with the district court, issuing an order opinion affirming the district court's rescission based on a different theory, reasoning that the implied-consent advisory misled Mortenson by inaccurately informing him that refusal to take a blood or urine test is a crime and that the advisory therefore violated Mortenson's right to due process under McDonnell v. Comm 'r of Pub. Safety, 473 N.W.2d 848, 853-55 (Minn. 1991), and Johnson v. Comm'r of Pub. Safety, 887 N.W.2d 281, 292, 294-95 (Minn. App. 2016), rev 'd, 911 N.W.2d 506 (Minn. 2018).

The supreme court granted the commissioner of public safety's petition for review and stayed further proceedings pending final disposition in Morehouse v. Comm 'r of Pub. Safety, 911 N.W.2d 503 (Minn. 2018), and Johnson. After the supreme court issued its opinions in Morehouse and Johnson, the supreme court vacated the Court of Appeals'  decision, and remanded the matter back to the Court of Appeals for reconsideration in light of Johnson.

On remand, the Court of Appeals reversed itself, stating:

"The supreme court reversed this court's decision in Johnson and clarified that a due-process violation under McDonnell does not occur "solely because a driver [has] been misled." 911 N.W.2d at 508. Instead, the supreme court held that a due-process violation occurs only if "three key elements" are met:
(1) the person whose license was revoked submitted to a breath, blood, or urine test; (2) the person prejudicially relied on the implied consent advisory in deciding to undergo testing; and (3) the implied consent advisory did not accurately inform the person of the legal consequences of refusing to submit to the testing. Id. at 508-09 (citing McDonnell, 473 N.W.2d at 853-55)."

"The supreme court determined that Johnson could not satisfy the first two elements because he refused to submit to blood and urine tests, reasoning that "there [was] no concern . . . that [he] was prejudiced by relying on misleading statements by the officer about the consequences of refusing a test because [he] did not submit to testing." Johnson, 911 N.W.2d at 509. Because Johnson could not establish the first two elements of his McDonnell due-process claim, there was no due-process violation, and "Johnson [was] not entitled to a rescission of his license revocation." Id."

"Johnson clarified that due-process relief under McDonnell is only available to drivers who submit to testing, Johnson effectively overruled Steinolfson."

Moral Of The Story: You can't claim you were misled if you refused to follow in the first place.



If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Tuesday, September 18, 2018

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. Nelson (decided September 17, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person arrested for a DWI does not have the right to have an attorney present to witness the testing procedure.

In Nelson, the Defendant was arrested for a DWI and was read the Minnesota Implied Consent Advisory informing him of his right to consult with counsel prior to testing.  Mr. Nelson told the arresting officer that he wished to speak to his own attorney and was given access to a telephone. Mr. Nelson was able to contact his attorney and after speaking to the lawyer, Mr. Nelson hung up the telephone.  The officer then asked Mr. Nelson if he wanted to call another attorney, to which Mr. Nelson replied that he did.  

The officer provided appellant with several phonebooks, but appellant made no attempt to contact an attorney. The officer advised him a few more times to contact an attorney, but appellant did not do so. The officer ended appellant's phone time at about 4:45 a.m. and asked him if he would take the breath test. According to the officer, appellant stated that he "would not without his attorney present." The officer told appellant that he had to make the decision on his own, but appellant reiterated his prior response. The officer told appellant that he would consider appellant's response as refusing the test and wrote, "[h]e wants his attorney, even though he already spoke to his attorney" on the implied-consent advisory form as the reason for refusal.

The State of Minnesota charged appellant with one count of refusing to submit to chemical testing under Minn. Stat. § 169A.20, subd. 2 (2016), along with several other counts. After the trial, the jury found appellant guilty of refusing to submit to chemical testing, but acquitted him of the other charges.  

On appeal the Appellant argued that the evidence was insufficient to support the jury's guilty verdict because he was exercising his right to have a reasonable opportunity to obtain legal advice rather than refusing the test, and therefore did not demonstrate an "actual unwillingness" to submit to a chemical test.  The Court of Appeals was not persuaded, noting:

""[Refusal to submit to chemical testing includes any indication of actual unwillingness to participate in the testing process, as determined from the driver's words and actions in light of the totality of the circumstances." State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010) (emphasis added), review denied (Mi\m. Mar. 15, 2011). Whether a driver refused to submit to chemical testing is a question of fact, which we review under the clearly erroneous standard. Lynch v. Comm 'r of Pub. Safety, 498 NW.2d 37, 38-39 (Minn. App. 1993)."

"Appellant told the officer that "he would not [take the test] without his attorney present." Appellant's statement is direct evidence indicating his refusal to take the test and is sufficient evidence supporting the jury's guilty verdict."

"Appellant argues that his statement is insufficient to support the jury's guilty verdict because his statement indicated that he was exercising his right to have a reasonable opportunity to obtain legal advice, which includes having an attorney present during the test. Appellant's argument is unavailing. A driver has a state constitutional right, "upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing." Friedman v. Comm 'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). However, such right is "limited" in DWI cases, and may be vindicated when a police officer provides the driver with "a telephone and a reasonable amount of time to contact and speak with an attorney." Gergen v. Comm 'r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). In Sturgeon v. Comm V. of Pub. Safety, we held that this right does not include having counsel "present during the test itself, even though counsel was already present at the station before the test was administered and no delay would result," as long as the driver is allowed to use a phone and have a private conversation with his attorney."

Moral Of The Story: While absence may make the heart grow fonder, it does not justify a refusal to submit to DWI testing.



If you or a loved one have been arrested for a Minnesota DWI or are facing the DWI forfeiture of your motor vehicle, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and forfeiture questions.



Wednesday, September 5, 2018

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. Hyrdahl (Decided September 4, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if the Implied Consent Advisory is technically correct as read to the Defendant, then the advisory does not violate due process.

In Hyrdahl, the Defendant was arrested for DWI and at the jail, the arresting the officer read the breath-test advisory to Mr. Hyrdahl. The Defendant contacted an attorney and, after speaking to his attorney, agreed to take the offered breath test. Defendant's alcohol concentration was 0.14.

The Defendant filed a motion to suppress the evidence resulting from his agreement to take the breath test, alleging that the breath-test advisory violated his due-process rights. Defendant agreed that while it is against the law to refuse to consent to a breath test, the advisory seemed to suggest that it was against the law to refuse to consent to any test, a misstatement of the law. The district court agreed and suppressed evidence resulting from his agreement to take the breath test, finding that the advisory, as read by the officer, was misleading and violated defendant's due-process rights. 

The State appealed the District Court and the Minnesota Court of Appeals reversed the lower court, stating:

"Minnesota law requires law enforcement to provide an advisory prior to administering a breath test to a driver. Minn. Stat. § 169A.51, subd. 2 (2016). The advisory must inform drivers that "Minnesota law requires [them] to take a test," "that refusal to submit to a breath test is a crime," and that they may consult with an attorney. Id. Failing or refusing such a test can result in license revocation. Minn. Stat. § 169A.52, subds. 3, 4 (2016)."

"In the criminal context, like this case, due process requires that criminal defendants be treated with fundamental fairness. Id. A due-process violation in a criminal prosecution for driving while impaired occurs when a breath test is obtained through coercion. Id. An implied-consent advisory is coercive if it is misleading. State v. Stumpf, 481 N.W.2d 887, 889-90 (Minn. App. 1992)."

"Here, the advisory given by law enforcement did not violate respondent's due-process rights because it was not misleading. The officer informed respondent that Minnesota law required him to take "a test" to determine the presence of alcohol. The officer then informed respondent that refusal to take "a test" is a crime. The officer informed respondent that he had a right to consult with an attorney, and respondent then spoke with an attorney. Lastly, the officer offered respondent a "breath test," and respondent consented to take the breath test. The officer accurately informed respondent that his failure to take the breath test could result in criminal penalties. Therefore the advisory did not misstate the law."

"The district court determined that the instruction was misleading because the officer informed respondent that refusal to take a "chemical test" is a crime. The court determined this was a misstatement of the law because a driver may refuse certain chemical tests like those for blood or urine and such a refusal is not a crime. See State v. Thompson, 886 N.W.2d 224, 234 (Minn. 2016); State v. Trahan, 886 N.W.2d 216, 224 (Minn. 2016). But based on the record, the officer did not instruct respondent that refusal to take a chemical test is a crime and instead explained that refusal to take a test is a crime. And, the only test offered to respondent was a breath test; the instruction accurately described that refusal to take the offered breath test would be a crime. The officer never asked respondent to take a blood or urine test. Given the circumstances, the breath-test advisory was not misleading."

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