Monday, January 14, 2019

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The Minnesota DWI Case Of The Week is State v. Green (Decided January 14, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you choose to represent yourself, you have a fool for a client.

In Green, the Defendant was found unconscious behind the wheel of a car with two open beer cans in the front-seat cup holders. He was drunk. Facing one count of first-degree driving while impaired and one count of first-degree driving while impaired—test refusal, Green moved to dismiss the charges for lack of probable cause. The district court denied the motion, and Green fired his public defender. Green moved the district court to order Anoka County to pay for services to assist with his self-representation, including an investigator, a paralegal, office supplies, and law-library fees. The district court denied the motion.  

On appeal, the Court affirmed the district court noting:

"The statute does not expressly authorize self-represented indigent defendants to apply for investigative services. It provides, “Counsel appointed by the court for an indigent defendant, or representing a[n indigent] defendant . . . may file an ex parte application requesting investigative, expert, or other services necessary to an adequate defense in the case.” Minn. Stat. § 611.21 (emphasis added). The section is one part of a broader statutory scheme that provides for a defendant’s right to a public defender. See Minn. Stat. §§ 611.14-.273 (2018). We previously observed that section “611.21 provides a ‘safety valve’ of court-ordered funding for [services other than counsel] when public defender budgets are depleted.” See In re Wilson, 509N.W.2d568, 571 (Minn. App. 1993). It is not apparent that the statute authorizes anyone other than appointed counsel to apply for services. Neither party addresses this general-application issue, however, and we can decide Green’s appeal on its specific necessary-to-an-adequate-defense grounds. Green contends that the district court should have found that the requested services were necessary for his defense. The contention fails."

"Green sought investigative services to learn more about the ignition-interlock system and police-officer training for an additional omnibus hearing and trial. The information is unnecessary for an omnibus hearing, because the district court already rejected Green’s argument that the temporary inoperability of his car due to the ignition- interlock device defeated the charge. See State v. Starfield, 481 N.W.2d 834, 838-39 (Minn. 1992) (concluding that whether temporary inoperability of a car precludes a defendant from being in “physical control” of a vehicle is a fact question for the jury). To the extent Green’s defense at trial might rely on the alleged inoperability of the car by virtue of the ignition-interlock device, Jeeninga’s testimony would satisfy the objective, and Green can secure his testimony by subpoena. Green failed to show how the requested investigative services are necessary for an adequate defense."

"Green also sought a paralegal to help him with legal research. But lawyers conduct legal research, and Green rejected the legal services of the public defender’s office.  By discharging the public defender, Green rejected taxpayer-funded legal assistance, which included the legal research his counsel would have provided and any related paralegal assistance."

Moral Of The Story:  Sometimes the best advice is free!

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


Monday, January 7, 2019

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. Fernandez, (Decided January 7, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it does not take much to allow the police to expand a traffic stop to investigate intoxication for a DWI arrest.

In Fernandez, Officer William Hullopeter stopped a vehicle when he discovered that the registered owner, a 48-year-old woman, had a cancelled driver’s license. As he exited his squad car and approached the vehicle, Officer Hullopeter observed that the driver, who was not a female, had bloodshot, watery eyes, and that his breath had a “strong minty odor” emanating from the gum he was chewing. Officer Hullopeter also observed “beer cans directly behind the driver’s seat,” and that the driver was wearing two paper wristbands that are the type commonly issued at events where alcohol is served. Officer Hullopeter identified the driver as appellant Christian Fernandez and asked him to perform several field sobriety tests, the results of which indicated impairment. The officer arrested Fernandez, transported him to the Blue Earth County Jail, and read him the Implied Consent Advisory. Fernandez agreed to provide a breath test, which revealed an alcohol concentration of 0.10.

Fernandez moved to suppress the evidence obtained as a result of the stop, arguing that the stop was unlawfully expanded because Officer Hullopeter should not have further approached the driver as soon as he shined his spotlight into the vehicle and determined that the driver was not a female and therefore was not the registered owner of the vehicle with the canceled driver’s license. 

The district court found that “the officer’s suspicions about the identity of the driver were not dispelled until he exited the squad vehicle and approached [Fernandez’s] vehicle.” The court also found that when Officer Hullopeter “approached the vehicle and spoke with [Fernandez], he immediately” observed signs that Fernandez had been drinking, and that “these new observations were made at the same time that Hullopeter determined that the driver was not the registered owner.” 

The district court's findings of fact meant that the Defendant had no hope for winning on appeal. Or, as noted by the Appellate Court:

"Fernandez acknowledges that under Pike, the initial stop of the vehicle was valid because the vehicle was registered to an owner with an expired driver’s license. But Fernandez argues that because “Officer Hullopeter’s reasonable suspicion of criminal activity was based entirely upon his assumption that the registered owner... was the person driving the vehicle,” the reasonable suspicion justifying the stop was dispelled as soon as the officer “shined his squad spotlight on the car” and recognized that Fernandez was not a middle-aged woman. Fernandez argues that because Officer Hullopeter observed that the driver of the vehicle was not a middle-aged woman, his detention of Fernandez for the purpose of asking to see his driver’s license was unconstitutional."
***
"Officer Hullopeter’s suspicions that criminal activity was afoot were not dispelled until he “was in close proximity to the vehicle,” close enough to observe that the registered owner of the vehicle was not the driver, but also close enough to “immediately” observe that the driver had “bloodshot, watery eyes,” and “‘minty’ breath.” (Emphasis added.). Officer Hullopeter also observed “alcoholic beverage containers in plain view in the vehicle,” and that Fernandez was wearing wristbands of the type worn by “younger people at events or locations where alcohol is served.” These new observations occurred prior to Officer Hullopeter asking for Fernandez’s driver’s license and provided him with reasonable suspicion that Fernandez was driving under the influence of alcohok See State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (concluding that an officer’s observation of the odor of alcohol and bloodshot and watery eyes justified the expansion of a traffic stop to investigate a suspicion of impaired driving)."

Moral Of The Story:  If you have been drinking do not drive someone else's car as they may not be as responsible as you.



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, December 17, 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 Sawyer v. Commissioner of Public Safety (Decided December 17, 2018, Minnesota Court of Appeals, Unpublished), which stands for the proposition that "speeding" is sufficient violation of the traffic laws to justify a stop by the police.  Well, duh.  Sometimes, I wonder why people even bother to appeal such stupid questions.  Oh well...

In Sawyer, a state trooper arrested appellant Kurt William Sawyer for driving while impaired. Appellant later failed a breath test for alcohol, and his driver’s license was revoked. He challenged the license revocation, asserting that there was no basis for “the initial stop or intrusion,” and therefore he was impermissibly seized.  

The trooper testified that she was stopped at the intersection of two highways, 87 and 371, and noticed a pickup leave an establishment that sells alcohol. The pickup turned west on 87. The trooper made a U-turn and followed the pickup. The speed limit on that road goes from 40 to 30 miles per hour heading into the City of Backus. The trooper testified that the pickup was initially driving within the speed limit, but it did not slow down when it hit the 30 mile-per-hour zone; rather, according to the trooper’s radar the pickup increased its speed to 43 miles per hour. The trooper pursued the pickup. The pickup quickly turned south onto a side street, and the trooper followed. The trooper believed that the pickup was speeding up and attempting to evade. When the trooper hit gravel on the side street, she activated her lights. She followed the vehicle up a driveway and saw it pull into a garage. Appellant got out of the pickup, the trooper and appellant made eye contact, and the garage door closed. The trooper opened a service door to the garage, flipped a light switch, and yelled for appellant to come out. She then walked away from the garage and called for backup. Appellant walked out of the garage and ignored the trooper as if she was not there. The trooper ordered appellant to come to the squad car, and appellant then complied.

The district court filed an order sustaining the revocation of appellant’s driving privileges. The court concluded that there was a valid basis for the stop because the trooper observed appellant going 43 in a 30 mile-per-hour zone and seized appellant for that reason.  

On appeal, the Minnesota Court of Appeals affirmed the District Court, noting:

"Here, the district court found that the trooper observed appellant speeding and temporarily seized appellant for that reason. The record supports these findings. The trooper had a reasonable, articulable basis to temporarily seize appellant. “Generally, if an officer observes a violation of a traffic law, no matter how insignificant the traffic law, that observation forms the requisite particularized and objective basis for conducting a traffic stop.” Wilkes v. Comm’r of Pub. Safety, 111 N.W.2d 239, 243 (Minn. App. 2010) (quotation omitted)."

Moral Of The Story:  Slow down and smell the roses!

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.

Friday, December 14, 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 State v. Poehler (Decided December 10, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that a mere crack in a windshield is not sufficient to justify a stop of a motor vehicle.

In Pohler, a Cambridge police officer saw a car being driven with a cracked windshield.  The officer stopped the car and spoke with the driver, James Poehler.  Mr. Pohler was slurring his words and a preliminary breath test indicated a breath alcohol level of .174%.  Mr. Pohler was charged with a DWI.

The defense moved to suppress all of the evidence contending that the officer stopped him without reasonable suspicion.  The district court denied the motion and on appeal, the Minnesota Court of Appeals reversed the district court, stating:

"Poehler’s argument requires us to answer whether an officer’s seeing any windshield crack—regardless of its extent—constitutes a reasonable basis for the officer to suspect that the driver is violating the obstructed-vision statute, Minnesota Statutes, section 169.71, subdivision 1(a)(1) (2018). That statute prohibits a person from driving a “motor vehicle with ... a windshield cracked or discolored to an extent to limit or obstruct proper vision.” The question of whether a stop can rest on the appearance of a crack alone, regardless of the extent of the crack, is one of first impression. Other cases have involved stops resting on an extensively cracked windshield or on cracks of undescribed extent where the validity of the stop was not challenged or decided on appeal. For example, in State v. Varnado, the supreme court considered the appeal of a defendant whom officers stopped after they “observed a car with a shattered windshield,” 582 N.W.2d 886, 888 (Minn. 1998), but “that stop [was] not being contested.” Id. at 893 (Gilbert, J., dissenting). This court later considered a stop involving a police officer who had “pulled the pickup over, believing that he saw a windshield severely cracked and, thus, obstructing the driver’s view,” and there we held that “the stop itself was proper.” State v. Miller, 659 N. W.2d 275, 277-78 (Minn. App. 2003); see also State v. Tomaino, 627 N.W.2d 338, 340 (Minn. App. 2001) (“The parties agree that the cracked windshield provided a legal basis for the investigatory stop.”). This is the first case where we are asked whether every windshield crack of any extent justifies a police stop under the obstracted-vision statute. Our answer is no."

"The statute’s qualifier, “to an extent to,” informs us that not every cracked windshield constitutes a violation. A person violates the statute only by driving with a windshield crack that, because of its characteristics, such as its location and its size, severity, or shape, limits or obstructs the driver’s vision."

***
"The district court justified the stop on an unsupported ground"

Moral Of The Story:  Sometimes a stop is not all it is cracked up to be!



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.

Monday, December 3, 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. Shepard (Decided December 3, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that turning on the emergency lights of a squad car does not automatically constitute a seizure.  I don't think this is a very well-reasoned case.  

In Shepard, Deputy McKane received a report that a vehicle had crashed into the ditch of U.S. Highway 69 in a rural part of Freeborn County approximately two miles south of Albert Lea. In addition, Deputy McKane learned from the dispatcher that a man wearing a plaid shirt and khaki pants was walking along the highway near the crashed vehicle.

Deputy McKane first inspected the vehicle in the ditch, which was unoccupied. Deputy McKane believed that the vehicle had been traveling in the southbound lane before it veered across the northbound lane and entered the ditch on the east side of the highway. Deputy McKane saw damage to the front of the vehicle and a “spider-webbed crack” in the vehicle’s windshield.

Deputy McKane then drove south and, after approximately two miles, saw a man wearing a plaid shirt and khaki pants walking on the shoulder of the highway in a southerly direction. Deputy McKane turned on his squad car’s overhead emergency lights, pulled up behind the man, stopped his squad car on the shoulder, and exited the squad car. Deputy McKane approached the man, later identified as Shepherd, and had a brief conversation with him. Deputy McKane first asked Shepherd whether he had crashed the vehicle that was in the ditch; Shepherd responded that he had. Deputy McKane then asked Shepherd why he had crashed. Shepherd said that he had consumed “a couple drinks” a few hours earlier. Deputy McKane could smell alcohol on Shepherd’s breath and saw that he had bloodshot and watery eyes. Deputy McKane also observed that Shepherd was confused about where he was going because he pointed south when saying that he was walking to Albert Lea when, in fact, he should have pointed north. Deputy McKane administered field sobriety tests, which Shepherd failed, and administered a preliminary breath test, which indicated that Shepherd was intoxicated.

The Defendant was subsequently charged with DWI and he moved to suppress all of the evidence on the basis that the officer did not have a sufficient reason to justify his seizure by the side of the road.  The Defendant argued that the when the officer activated his squad emergency lights, he was seized by the police without sufficient cause.

The Minnesota Court of Appeals however ruled that no seizure occurred which, frankly, does not make much sense.  The Court of Appeals correctly noted that:

"Although a law-enforcement officer may seize a person based on a reasonable suspicion of criminal activity, “[n]ot all encounters between the police and citizens constitute seizures.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). An officer does not conduct a seizure merely because the officer approaches a person in a public place and asks the person a few questions. In re Welfare ofE.D.J., 502 N.W.2d 779, 781-82 (Minn. 1993); State v. Houston, 654 N.W.2d 727, 731-32 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003). Rather, under Minnesota law, a person is seized only if, given the totality of the circumstances, a reasonable person in that situation would not feel free to terminate the encounter."

The Court of Appeals then states, "At oral argument, Shepherd emphasized Deputy McKane’s use of his squad car’s overhead emergency lights. That fact does not make the encounter a seizure."  

Nonsense.  When the police turn on their emergency lights or "take-down" lights the purpose is to make the person stop and interact with the officers.  No reasonable person would feel that they are "free to terminate the encounter" and the Court's ruling to the contrary is just lame.

Moral of the Story:  When the lights come on, ask the officer if you are free to leave.  

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.

Monday, November 26, 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 Mauch v. One 2015 Chevrolet Silverado (Decided November 26, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the current statutory "innocent owner defense" is not retroactive.

In Mauch, David Mauch was arrested for DWI in November 2015 while driving a 2015 Chevrolet Silverado.  The title to the vehicle was jointly held by David Mauch and his spouse, Helen.  The police seized the vehicle for forfeiture.  

In December 2015, the Mauches filed a timely demand for judicial determination of forfeiture of motor vehicle. The district court held a bench trial to determine the legality of the forfeiture in February 2017. In April 2017, before the district court had made a decision, the Minnesota Legislature amended the vehicle forfeiture statute to expand the innocent-owner defense in Minnesota forfeiture cases. The 2017 language provides that “[a] motor vehicle is not subject to forfeiture under this section if any of its owners who petition the court can demonstrate by clear and convincing evidence” that they are innocent owners. Minn. Stat. § 169A.63, subd. 7(d) (Supp. 2017) (emphasis added). Prior to amendment, the statute provided a narrower innocent-owner defense (i.e. if one of the joint-title holders was the drunk driver then the innocent owner defense was not available to the other title holder).

The more expansive innocent owner defense became law after the offense in this case but before the case was final in the district court.  The district court held that the vehicle should be forfeited to the state and on appeal, the issue was whether the 2017 statute is retroactive.

The Minnesota Court of Appeals held that the more expansive innocent owner defense is not retroactive stating:

"David’s DWI occurred in November 2015. At that time, the innocent-owner defense was not available to a joint owner of a vehicle who was unaware of the other owner’s unlawful use of the vehicle. See Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 439 (Minn. 2009). In other words, the innocent-owner defense was not available in DWI forfeiture matters unless all owners of the vehicle were “innocent.” Id. But the vehicle forfeiture statute was amended in April 2017 to permit a joint owner to keep a forfeited vehicle if they could demonstrate by clear and convincing evidence that they individually were an innocent owner. See 2017 Minn. Laws eh. 12, § 1, at 37-38. The statutory amendment contained no effective date, so the effective date defaulted to August 1, 2017. See Minn. Stat. § 645.02 (2016) (mandating an effective date of August 1 unless a different date is specified). Therefore, the only question remaining is whether the legislature clearly and manifestly intended the statutory amendment to apply retroactively. Minn. Stat. § 645.21."

"We see no clear and manifest intent on the part of the legislature that the amendment apply retroactively. There is no language in the amendment to suggest any such intent. See 2017 Minn. Laws Ch. 12, § 1, at 37-38. We therefore conclude that Helen was not entitled to claim the innocent-owner defense under the statute in effect at the time of David’s DWI."

Moral of the Story:  While you may be found "not guilty", you can't be innocent after you did it.

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, November 19, 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 Willis v. Commissioner of Public Safety, (Decided November 19, 2018, Minnesota Court of Appeals, Unpublished) 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.

These cases keep coming up over and over in the Court of Appeals and the reason is this:  It used to be, under Olinger v. Commissioner of Public Safety, that all the defense had to show was that the advisory was misleading in order to establish a due process violation. It did not matter if the defendant testified or not. And it did not matter if the defendant submitted to testing or not. But all that has changed under the recent Minnesota Supreme Court cases of Morehouse and Johnson v. Commissioner of Public Safety.

In Morehouse and Johnson, the Supreme Court held that in order to establish a due process violation, the Defendant must establish three things:

(1) That 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 testing.

Since everyone was relying on Olinger, no attorney was having their Minnesota DWI client testify that they relied upon what they were told when the police read the Minnesota Implied Consent Advisory. And so now, all those Olinger-type cases are getting reversed by the Minnesota Court of Appeals. AARRGH!!

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.