Tuesday, July 28, 2009

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota Cases

This week we have two cases that merit some attention:

The first case is City of Crystal v. N.G.K.
It is a published decision of the Minnesota Court of Appeals (July 28, 2009 No. A08-1437) involving Mr. N.G.K. 's attempt to expunge his 1997 gross misdemeanor conviction for theft.

The District Court, after an evidentiary hearing, ordered: (1) that all records possessed by the judicial branch be sealed, and (2) ordered that with respect to the records possessed by the executive branch (i.e. the police department and BCA, etc.) the court ordered that those records be sealed "to the extent that no records are public regarding any pleas, findings, convictions, warrants issued by the Court, or any other data generated as a part of judicial proceedings".

The City of Crystal appealed alleging that the district court erred in ordering the expungement of the records possessed by the judicial branch and further erred by ordering the expungement of records possessed by the executive branch.

The Court of Appeals noted that a district court may exercise its inherent authority to expunge criminal records in two situations. First, a court may order expungement to prevent a serious infringement of a petitioner's constitutional rights. Second, a court may use its inherent authority if "expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing and monitoring an expungement order." Since N.G.K did not allege a constitutional violation, the Court of Appeals evaluated only the second rationale for expungement pursuant to a court's inherent authority.

The Court of Appeals noted, "When determining whether the benefit to a petitioner of expungement is commensurate with the disadvantages to the public, a district court should consider five factors:

(a) the extent that a petitioner has demonstrated difficulties in securing employment or housing as a result of the records sought to be expunged; (b) the seriousness and nature of the offense; (c) the potential risk that the petitioner poses and how this affects the public's right to access the records; (d) any additional offenses or rehabilitative efforts since the offense, and (e) other objective evidence of hardship under the circumstances."

The Court of Appeals held that the district court, after applying the above 5 factor balancing test, did not err in ordering the expungement of the records held by the judicial branch.

The records held by the executive branch are a different story, however. The Minnesota Court of Appeals held that the recent Minnesota Supreme Court case of
State v S.L.H., 755 N.W.2d 271 (Minn. 2008) controls to prohibit the expungement of records held by the executive branch.

Under the Minnesota Government Data Practices Act, data relating to a person's criminal conviction are classified as public for 15 years following the discharge of the sentence imposed for conviction. Minn. Stat. § 13.87, subd. 1(b) (Supp. 2007). The conviction of the petitioner in
S.L.H. was classified as public, which prompted the Supreme Court to say, "we fail to see how the legislature's policies could be accommodated if a court were to expunge records held outside the judicial branch that the legislature has classified as public." 755 N.W. 2d at 279. The Supreme Court then reasoned, "the expungement of ...criminal records held outside the judicial branch would effectively override the legislative determination that some of these records be open to the public."

The Minnesota Court of Appeals noted in the current case that while the Supreme Court has not issued a "bright line" rule concerning records held by the executive branch, "deference to a legislative determination that records of criminal convictions should be public, rather than expunged or sealed, is a recurring theme in several supreme court decisions". (citations omitted).

The Court of Appeals reversed the district court expungement order concerning the records possessed by the executive branch and it appears a safe bet that no expungement of executive branch records will ever be ordered pursuant to a Court's inherent authority until at least 15 years have passed from date of discharge from sentence. In other words, until the records are no longer classified as "public" no expungement of executive branch records will be allowed.

The second case is State v. Kessler, (Unpublished, 7/28/2009 Minn.App.) wherein Mr. Kessler appealed his conviction for Third Degree DWI. The aggravating factor elevating Mr. Kessler's charge from a 4th degree to a 3rd degree DWI was the presence of a child under the age of 16 in his vehicle at the time of the offense.

At trial, Mr. Kessler's attorney stipulated to the fact that the vehicle contained the defendant's "nearly 6 year old daughter". The stipulation was accepted by the trial court and the defendant was duly convicted of 3rd degree DWI.

On appeal, Mr. Kessler asserted that he did not personally waive his right to a jury trial on the underage-child aggravating factor and argued that he was therefore entitled to either a new trial or a reduction of his conviction from 3rd degree to 4th degree DWI.

The Court of Appeals agreed that in order for a stipulation to be valid, the defendant must personally waive his right to a jury trial on the aggravating factor and, instead of ordering a new trial, directed that the defendant be sentenced to 4TH DEGREE DWI.

THE MORAL: If you mess up the stip, you must acquit!!!

Monday, July 27, 2009

Minnesota DWI Lawyer Blogs on Minnesota Plate Impoundment Law

The police will remove and destroy the license plates of any vehicle involved in a Minnesota DWI if the driver has one or more of the following "aggravating factors":

1. Has a prior DWI conviction or implied consent license revocation within 10 years of the current offense, or;

2. Has an alcohol concentration level of .20 or more, or;

3. Has a "B" card which prohibits the driver from consuming any alcohol at any time, or;

4. Has a child under the age of 16 in the vehicle at the time of the violation or;

5. Is driving the vehicle after the violator's license has been canceled as "inimical to public safety".

The plate impoundment applies not only to the vehicle involved in the current offense but to all vehicles owned, leased, or registered to the violator. If the vehicle is jointly registered to the violator and another person, the plate impoundment order applies to require that the plates of the jointly held vehicle be surrendered or destroyed.

The plate impoundment order will be issued by the police on the night of the violator's arrest even if the police do not have a test result indicating the violator was over the legal limit. For example, if the violator submits to a blood or urine test, the police will not receive the results of said test for several weeks or months. Under the Minnesota Plate Impoundment Law, (Minn.Stat. §169A.60), however, the police are only required to have "probable case "to believe that a violation of the dwi law has occurred and the violator has one of the aggravating factors listed above.

Since no license revocation will occur (for non "B" card violators) until the test results are known, this can lead to the absurd situation where the violator is perfectly legal to drive but has lost all the plates on his vehicles simply because he was arrested for a DWI with an aggravating factor.

The minimum plate impoundment term is for a period of one year. This can lead to additional absurd results as the license revocation period for a 2nd offense DWI or a first time over .20 or a first time DWI with underage child (factors 1, 2,and 4 above) in the vehicle is only 6 months!! A violator can be perfectly valid to drive after six months but still be subject to the vagaries of the plate impoundment law.

Specially coded license plates (i.e. "Whiskey Plates") may be obtained for the vehicle during the plate impoundment period if:

1. A member of the violator's household has a valid driver's license, or;

2. The violator has a valid license or has been relicensed or;

3. The owner of the vehicle is not the violator and has a valid license. or;

4. The violator is the owner but has a substitute driver with a valid license to operate the vehicle.

State v. Henning, 666 N.W.2d 379 (Minn. 2003) the Minnesota Supreme Court held that the Minnesota statute which authorized stops of motorists based solely on the presence of these specially coded plates was unconstitutional. The Court held that the statute illegally eliminated the constitutional safeguard requiring police officers to have a reasonable articulable suspicion of criminal activity before stopping a motorist.

So if the police under
Henning are no longer allowed to make a stop of a vehicle simply because it is wearing "Whiskey Plates", then what purpose does the plate impoundment law serve other than to brand the occupants of the vehicle with the scarlet letters of DWI?

F.T. Sessoms, Minnesota DWI Lawyer

Thursday, July 23, 2009

Minnesota DWI Lawyer Blogs on Minnesota DWI: Why I Did Not Receive a Ticket for the Underlying Offense Leading to My DWI Arrest


I am often asked by clients arrested for DWI, "Well if the police stopped me for speeding (or running a stop sign, failure to yield,etc.), why didn't he give me a ticket for speeding (etc.)"

The short answer is the officer can't because the client could then pay the speeding ticket and the DWI would have to be dismissed.

This recently happened in one of my cases where the client was stopped for "failure to signal a turn" and was subsequently arrested for DWI. The client received a separate ticket for the failure to signal his turn. The client promptly paid the ticket and I then moved to dismiss his DWI case pursuant to Minnesota Statute Section 609.035.

Minnesota Statute Section 609.035, subdivision 1, states:

“Conduct; multiple crimes; chargeable for one offense. Except as provided in subdivisions 2, 3, 4, and 5, and in sections 609.251, 609.585, 609.21, subdivisions 3 and 4, 609.2691, 609.486, 609.494, and 609.856, if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.”

In State v. Johnson, 141 N.W.2d 517 (Minn. 1966), the Defendant was stopped for crossing the centerline and was subsequently arrested for driving while intoxicated. The Defendant was allowed to plead guilty to crossing the centerline.

The Defendant in Johnson then moved to dismiss the DWI charge upon the ground that following his conviction for driving over the centerline, any further prosecution for conduct constituting more than one offense was barred by Minn.Stat. § 609.035. The Supreme Court agreed in Johnson that the crossing the centerline and the DWI arose from the same behavioral incident for purposes of Minn.Stat. § 609.035 stating:

“Although the statute is commonly referred to as one prohibiting double punishment, a reading of it compels a recognition that it contains two prohibitions, one against double punishment and the other against serialized prosecutions for separate offenses similar to that afforded by our constitutional provision prohibiting placing an accused twice in jeopardy for the same offense. Conceivably, double punishment can arise where a person is convicted of two or more offenses following either one prosecution where the charges are stated as separate counts or two or more prosecutions where the charges are brought separately. The double-jeopardy prohibition can become applicable when a second prosecution is attempted following a conviction or acquittal upon a previous charge. In either case, the application of the prohibitions turns on the same determination-whether the ‘person's conduct constitutes more than one offense.’ Stated another way, a defendant can neither be punished nor prosecuted more than once where his ‘conduct constitutes more than one offense”.

In State v. Corning, 184 N.W.2d 603 (Minn. 1971), the defendant stopped at the scene of an accident but left without informing the other motorist of his name, address or vehicle registration number. The defendant was subsequently stopped by the police and charged with DWI.

In Corning, the Minnesota Supreme Court held that his acquittal of the separate charge of failure to leave his name, address and vehicle information at the scene of the accident barred his subsequent prosecution for driving under the influence under the statute prohibiting serialized prosecutions, Minn. Stat. § 609.035. See also, State v. Gibson, 478 N.W.2d 496 (Minn. 1991-Criminal vehicular operation and felony failure to notify police of personal injury accident arose from the same behavioral incident, thereby precluding imposition of separate sentences); State v. Krech, 252 N.W.2d 269 (Minn. 1977-Felony charges of Aggravated Assault must be dismissed where defendant plead guilty to petty misdemeanor traffic offenses arising out of the same behavioral incident); State v. Holcomb, _ N.W.2d _ (Unpublished Minn.App. 2004-“Because the DWI and Failure to Yield offenses arose from the same behavioral incident, subsequent prosecution on the DWI offense after appellant was convicted of failing to yield was barred by Minn. Stat. § 609.035)(A copy of the opinion is attached). As noted by the Court in Holcomb:

“An individual's conduct may constitute one offense when the “offenses occur at substantially the same time and place, arise from a continuous and uninterrupted course of conduct, and manifest an indivisible state of mind or coincident errors of judgment.” State v. Finn, 295 Minn. 520, 521, 203 N.W.2d 114, 115 (1972); see also State v. Johnson, 273 Minn. 394, 397-98, 141 N.W.2d 517, 520-21 (1966). In general, cases involving DWI and another driving or traffic offense have been held to constitute a single course of conduct. See, e.g., State v. Corning, 289 Minn. 382, 386, 184 N.W.2d 603, 606 (1971) (DWI and leaving scene of accident); State v. Gladden, 274 Minn. 533, 534, 144 N.W.2d 779, 780 (1966) (DWI and careless driving); Johnson, 273 Minn. at 397, 141 N.W.2d at 520 (DWI and driving over centerline). Cases holding that offenses were separate behavioral incidents generally include at least one licensing or regulatory offense. See, e.g., State v. Reiland, 274 Minn. 121, 124, 142 N.W.2d 635, 638 (1966) (driving after license revocation and criminal negligence); State v. Reimer, 625 N.W.2d 175, 177-78 (Minn.App.2001) (discussing cases).”

In the present case the failure to signal the turn offense and the DWI were a part of the same behavioral incident. See, Johnson, supra. The DWI charges had to be dismissed as further prosecution was barred by Minn. Stat. § 609.035.

The Judge agreed and the case was dismissed!

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota Supreme Court's Denial of Further Review of the Source Code Issue!

The State petitioned the Minnesota Supreme Court to reconsider its ruling in State v. Underdahl which ordered the State to produce the intoxilyzer source code used to convict people of exceeding the legal limit of .08.

On July 22, 2009, the Minnesota Supreme Court denied the State's motion for reconsideration. Yipee!!

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

This week's featured Minnesota DWI/DUI case is (drum roll please):

State v. Omwega!!!
(Decided July 21, 2009)

There is good news and bad news in this case:

The Bad News:

The Minnesota Court of Appeals ruled, in this published decision, that the Sixth Amendment Confrontation Clause does not require the State to prove all of the underlying facts of an implied-consent license revocation beyond the existence of the revocation itself in order to use the revocation to enhance a charge of driving while impaired.

The Good News:

Citing State v. Mellett, 642 N.W.2d 779, 789 (Minn.App. 2002) , the Court in Omwega reaffirmed that the defense may collaterally attack the use of a prior revocation if the prior revocation was unconstitutionally obtained. As stated by the Court:

"To properly raise the constitutionality of a prior license revocation and shift the burden of proof to the state, an appellant must (1) promptly notify the state that [his] constitutional rights were violated during a prior license revocation; and (2) produce evidence in support of that contention with respect to each challenged [revocation]."

When the State seeks to use a prior conviction to enhance the current charge, it is well established that the prior conviction can be collaterally attacked. See, State v. Nordstrom, 331 N.W.2d 901 at 904 (Minn. 1983)(a prior conviction cannot be used to enhance where the prior conviction was the product of an uncounseled guilty plea and there was no showing of a waiver of the right to counsel); State v. Stuart, 360 N.W.2d 463 (Minn.App. 1985)(a prior conviction cannot be used to enhance where there is no factual basis on the record to support the prior plea); State v. Brown, 346 N.W.2d 187 (Minn.App. 1984)(A prior conviction cannot be used to enhance where the defendant was not informed of the penalty for the prior offense).

It would make no sense whatsoever to hold that a prior conviction, where a Defendant has appeared in Court and answered the charge, is subject to collateral attack but a license revocation, which automatically occurs upon a test failure or test refusal, is immune from collateral challenge. In State v. Mellet, 642 N.W.2d 779 (Minn.App. 2002), the Court recognized that an implied consent license revocation is subject to collateral attack and it is good to see the Court of Appeals reaffirm the Mellet holding in THIS WEEK'S FEATURED MINNESOTA DWI CASE!!

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

F.T. Sessoms, Minnesota DWI Attorney

Wednesday, July 22, 2009

Minnesota DWI Lawyer Blogs on the Minnesota Source Code Letter

Since it will cost thousands of dollars and approximately 6 months to properly evaluate the software used to convict people using the Intoxilyzer 5000 EN, we have sent all of the Chief Judges of the Districts of Minnesota the attached letter asking that all criminal and civil cases be delayed pending the evaluation of the code.

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

Source Code Letter

Minnesota DWI Lawyer Blogs on Minnesota Intoxilyzer Source Code Settlement in United States District Court

On July 16th the Federal District Court in Minnesota approved a settlement allowing individuals charged with DWI's in the state access to the source code, or software, used to run the intoxilzyer 5000 EN machine.

The problem with the settlement is that it requires that the source code be examined at the CMI plant (the manufacturer) in Kentucky. Since the costs of such an analysis will run into the thousands of dollars, this settlement is beyond the reach of most individuals charged with DWI.

I am proud to belong to the Minnesota Society for Criminal Justice (MSCJ). We are coordinating the efforts of the defense bar to retain experts to travel to Kentucky to review the source code as allowed under the terms of the settlement agreement. STAY TUNED!

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

State v CMI Order 7 16 09 Approving Settlement