Monday, November 29, 2010

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

The Minnesota DWI case of the week is the unpublished decision of  State v. Grinsteinner, (Minnesota Court of Appeals decided November 23, 2010) which stands for the proposition that it is possible to get probation for a felony DWI if you really, really work for it.

On October 21, 2009, Mr. Grinsteinner entered a straight plea to the district court on a felony DWI and he hit the jackpot!  

A "straight plea to the court" is done when the prosecutor wants more jail time than the client is willing to serve.  So rather than agree to the prosecutor's recommendation, a "straight plea to the court" is entered in the hope that the district court judge will be more merciful than the county attorney.  

In this case, Mr. Grinsteinner made a straight plea on his Third Felony DWI.  While it is unclear from the opinion, that fact that he pled to his 3rd felony indicates that Mr. Grinsteinner has at least six DWI's in his checkered career. The presumptive sentencing guideline called for Mr. Grinsteinner to served 66 months in prison.  The district court sentenced Mr. Grinsteinner to probation instead and the County Attorney appealed, arguing that the district court did not have a basis to depart from the 66-month guideline sentence.

Minnesota Court of Appeals affirmed the district court's probationary sentence and this case is significant as it demonstrates what a defendant can do to avoid a lengthy prison sentence in a felony DWI. The Minnesota Court of Appeals pointed out that Mr. Grinsteinner had: (First and foremost),undergone an extensive treatment program; submitted a letter from his sponsor at Alcoholics Anonymous detailing his attendance; submitted a letter from his employer as to his sobriety; submitted a letter from the Inmate worker crew supervisor at the Dakota County Jail; submitted letters from friends and family members detailing their support of the defendant's efforts to maintain sobriety.  Mr. Grinsteinner also expressed remorse for his latest offense and had been sober for three years prior to his arrest.

The Minnesota Appellate Court noted that, "The district court has broad discretion to depart from the presumptive sentence provided by the sentencing guidelines." The Appellate Court also stated, "The district court should consider a number of factors when determining whether a defendant is amenable to probation, including the individual's age, prior record, remorse, cooperation, attitude while in court, and the support of friends and family.  Here the record reflects that the respondent expressed remorse for his actions, that he had participated in and completed treatment programs while he was in jail for this offense, and that he has a strong support network of friends and family.  Furthermore, respondent was sober for three years before he committed this offense, and the record reflects that respondent has the motivation to remain active in recovery and abstain from alcohol use."

The Court of Appeals, therefore, held that the District Court did not abuse its discretion when it gave Mr. Grinsteinner a probationary sentence.

Moral of the Story:  It's Never Too Late To Turn Over A New Leaf!

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

Sunday, September 19, 2010

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

The Minnesota case of the week is the published decision of  State v. Mohomoud,  _N.W.2d _  (Minn. App. decided September 14, 2010) which serves as a cautionary tale that any individual arrested for a DWI should hire an attorney who knows what he is doing!!

In  Mohomoud, the Defendant was charged with felony DWI. His attorney stipulated to his prior DWI convictions to prevent the jury from learning of his prior offenses.  So far, so good, as the Minnesota Supreme Court in State v. Berkelman, 355 N.W.2d 394 (Minn. 1984) recognized that the introduction of prior offenses is prejudicial to a defendant and, therefore, held that a defendant has the right to  stipulate to the prior convictions to keep the jury from being influenced by the defendant's prior conduct.

At the trial, the prosecutor played a DVD recording made of the defendant's conversation with an attorney on the night of the defendant's arrest.  The recording contained references of Mohomoud's prior convictions.  Specifically, Mohomoud can be heard stating to the attorney, "I just got out of prison"; and "I was in prison for my fourth DWI".  Mohomoud then discussed the dates of his prior convictions, fines and his prison term.

Before offering the DVD in evidence, the prosecutor discussed its content with defense counsel and the court.  The court asked defense counsel for his position on the prosecutor's proposal and counsel stated that he agreed with it, stating:

"Yes, Your Honor, I have heard and he discussed this with me. The very first reference, as we agreed, we'd cue up past that first reference. Due to the nature of the software and its inability to edit it—although we'd prefer to have those removed, we also understand it's more work than it's worth and I understand that it's a minor reference. So although we'd prefer to have it out, we don't object to those other statements at this point."

When the prosecutor offered the DVD as an exhibit, defense counsel then stated that he had "no objection" to the evidence.

On appeal, Mohomoud's appellate counsel argued that the admission of the recording of his conversations with his attorney was "plain error" because it violated longstanding caselaw requiring suppression of a DWI arrestee's conversations with an attorney pursuant to the implied consent advisory, citing State v. Clark, 375 N.W.2d 59 (Minn.App. 1985).

State v. Clark is a Court of Appeals case which follows State v. Berkelman in holding that the defendant has the right to stipulate to his prior offenses to prevent their consideration by the jury.

But Sadly Now, There Can Be But One Outcome:
In the present case however, the Court of Appeals held that, "The plain-error standard applies when a party failed to object to the allegedly erroneous admission of evidence. It does not apply when a party intentionally and expressly gives up a known right.  In the former instance, it is said that a forfeiture of the error has occurred; in the latter, the result is a waiver of error."

A forfeiture of the error is subject to due process review under the plain error standard. A waiver of the error is not.  Or, as stated by the Court of Appeals, "The logic of the distinction is compelling.  If a party knows of a right and intentionally relinquishes that right, it cannot be said that the trial court erred regarding the subject matter of that right or that there is any error to review on appeal.  Defense counsel here clearly waived Mohomoud's right to have the evidence of his conversation with a lawyer excluded by acknowledging that he heard the recording, discussed it with the prosecutor ...and when the prosecutor offered the recording, defense counsel said he had no objection.  Mohomoud's waiver extinguished any error that might have been predicated on the admission in evidence of the portions of the recording at issue."

Trial counsel's performance was deficient for a number of reasons:

First, he snatched defeat from the jaws of victory by obtaining the exclusion of the prior offenses but then agreed to their admission as contained in the DVD recording. What was he thinking?

Second, although it is not discussed in the present case, any conversation between a DWI suspect and an attorney is not admissible pursuant to Commissioner of Public Safety v. Campbell, 494 N.W.2d 268 (Minn.App. 1992).

In Campbell, the Minnesota Court of Appeals held that the police may be present during a DWI arrestees telephone conversation with an attorney as the police have a right to do an "observation period" of the suspect prior to the suspect's submission to alcohol testing.  But the court held in Campbell that the content of the conversation with the attorney is not admissible.

So why trial counsel for Mohomoud did not object to the entire DVD is beyond me and is completely inexcusable.

It has long been held that people may not be punished for exercising their statutory and constitutional rights.  For example, if a suspect invokes his right to remain silent or if he invokes his right to counsel, the exercise of those rights may not be presented to the jury.  (Why? Because it is prejudicial: If juries are allowed to consider the matter instead of reviewing the evidence, they may decide that if the suspect had nothing to hide, he would not refuse to speak to the police or seek the advice of counsel.) 

Moral of the Story: Don't let in the back door what you kept out of the front!

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

F. T. Sessoms, Minnesota DWI Lawyer

Saturday, August 7, 2010

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

The Minnesota DWI Case Of The Week is the unpublished case of  State v. McIlraith (Minn.App. August 3, 2010).  In McIlraith, the defendant was arrested for boating while intoxicated with an intoxilyzer test result of .13.  When the defendant was arrested, he consulted with an attorney who advised the defendant to obtain an independent test.  The defendant called his wife to collect a urine sample but the police would not allow his spouse to collect the sample.  The defendant then called an independent-testing agency and the agency was allowed to collect the urine sample. The independent test showed a urine test result of .12.

The defendant moved to suppress the state's intoxilyzer test result arguing that the police had violated the defendant's statutory right to have an independent test done "by a person of his own choosing" as required by Minn. Stat. § 169A.51, subd. 7(b).  The district court denied the defendant's Motion to Suppress but on appeal, the Minnesota Court of Appeals reversed the district court and ordered the intoxilyzer test suppressed. So far so good!

After the case was remanded to the district court, the prosecution subpoenaed the test result obtained from the independent-testing agency and sought to introduce the .12 urine test to convict Mr. McIlraith.  The defense moved to suppress the urine test arguing: (1) it was testimony given by a defendant in support of a motion to suppress; (2) he did not intend to introduce the result of the second test at trial and was, therefore, non-discoverable, and (3) the purpose of the independent testing statute would be defeated if the prosecution was allowed to exploit the defense efforts to investigate the case.  The second motion to suppress was denied at the district court and on appeal, the Minnesota Court of Appeals rejected all of the arguments advanced by the defense.

The Minnesota Court of Appeals held:

(1)  "Although McIlraith testified during the first pretrial suppression hearing that he took the independent test and testified as to what he remembered was the result of the test, it was the actual result of the test, as subpoenaed by the state from Accurate Testing, and not McIlraith's testimony, that provided the basis for the reinstatement of the charge based on testing.  Because it was the test result itself rather than McIlraith's testimony that was at issue in the second Lothenbach trial, we reject his first argument."

(2)  "...under Minn.R.Crim P. 9.02, subd. 1(2), which states that, [t]he defendant must disclose and permit the prosecutor to inspect and reproduce any results or reports of ...scientific tests...made in connection with the particular case within the possession or control of the defendant that the defendant intends to introduce in evidence at the trial...
However, this rule does not apply to the result of the second test because the state was able to obtain the records from Accurate Testing independently, without the consent of McIlraith.  Thus the district court correctly concluded that this scientific test was not solely within the possession or control of McIlraith.  Therefore, whether McIlraith intended to introduce the result of the test into evidence at trial was irrelevant."

(3)  "Lastly, McIlraith argues that the purpose of Minn. Stat. § 169A.51, subd. 7(b), the independent testing provision, would be defeated if the result of an independent test could be used against the defendant without his consent.  McIlraith correctly indicates that the purpose of the provision is to ensure a criminal defendant's constitutional right to due process and confrontation by facilitating effective investigation and preparation...However, the asserted purpose of the statute does not prevent the state from obtaining accurate evidence of a defendant's alcohol concentration... The statute only precludes admission of the test administered by the police if an additional test was prevented or denied.  It does not prevent the admission of the result of an additional test."

I believe that the McIlraith  decision is wrong because:

(1)  The State only became aware of the independent test and its result through the testimony of the defendant at his original suppression hearing.  The test result obtained by the State is thus the fruit of the defendant's testimony which may not be exploited.

(2)   The defendant produced the urine sample and paid for the the test result.  The sample and result would not exist but for his physical and financial efforts to defend his case.  To claim that the result is not within his possession or control because it was subpoenaed by the prosecution seems to ignore the concept of "constructive possession".  If a person produces the sample, pays for its analysis, does not intend to introduce the results of the investigative analysis, how can the state, consistent with Rule 9.02 introduce the evidence produced by the defense?  After all, no scientific test result produced in a lab is ever in the exclusive "possession and control" of a defendant as the lab will always have a copy of its work!

(3)  The Court admits the purpose of the statute is ensure a defendant's constitutional right to due process and confrontation and then defeats the admitted purpose of the statute by claiming that state's conduct is not prohibited by the very statute whose purpose has now been defeated.

MORAL OF THE STORY: Be Careful What You Wish For!

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

F.T. Sessoms, Minnesota DWI Lawyer

Tuesday, June 15, 2010

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

The Minnesota Case of the Week is the published decision of Mycka v. One 2003 GMC Envoy Automobile (decided June 15, 2010).

Mr. Mycka was arrested for driving while impaired (DWI) and due to his previous driving record, the City of Fridley sought the forfeiture of his 2003 GMC Envoy.

The city seized the vehicle after Mycka was released from jail and after he had retrieved his vehicle from a private towing company.  Mr. Mycka then challenged in district court the city's seizure on the ground that, without process issued by a court, the city was not authorized to seize the vehicle from him.  The district court denied the claim, but on appeal, the Minnesota Court of Appeals reversed the district court and ordered the vehicle returned to Mr. Mycka.

If a law enforcement agency does not obtain process issued by a court, the agency may, in the alternative, seize a motor vehicle subject to forfeiture pursuant to any of the following three exceptions:

(1)   the seizure is incident to a lawful arrest or a lawful search;

(2)  the vehicle subject to seizure has been the subject of a prior judgment in favor to the state in a criminal injunction or forfeiture proceeding under this section; or

(3)  the appropriate agency has probable cause to believe that the delay occasioned by the necessity to obtain process would result in the removal or destruction of the vehicle.

In the present case, the City of Fridley sought to justify the forfeiture seizure without court process by claiming that the vehicle was seized, "incident to a lawful arrest".

The Minnesota Court of Appeals rejected the City's position, stating:

"Ultimately, this case can be resolved on the simple ground that the seizure occurred so late in time.  The city did not initiate the administrative seizure of Mycka's vehicle while Mycka still was under arrest.  Mycka was released from detention, and he retrieved his vehicle from Shorty's Towing.  Not until the following day--approximately 36 hours after his arrest and approximately 24 hours after his release from the county jail--did the city's police officers seize Mycka's vehicle from his residence.  There was a clear break in time between the arrest and the seizure.  These facts compel the conclusion that the city did not seize Mycka's vehicle 'incident to' his arrest, as required by section 1679A.63, subdivision 2(b)(1).

Moral of the Story:  He Who Hesitates Is Lost!!

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

F.T. Sessoms, Minnesota DWI Lawyer

Tuesday, April 20, 2010

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

The Minnesota DWI case of the week is the published decision of Pallas v. Commissioner of Public Safety. (decided 4/20/2010).

Mr. Pallas obtained multiple Minnesota DWI convictions and had previously taken his act on the road as he had also obtained four Illinois DWI convictions.  The State of Illinois had issued a lifetime ban prohibiting him from ever receiving an Illinois license.

Mr. Pallas eventually applied for a Minnesota driver's license but the Minnesota Commissioner of Public Safety denied the application for a Minnesota license on the basis that he had not obtained a "clearance letter" from the State of Illinois indicating he was cleared to drive in Illinois, a practical impossibility.

Mr. Pallas petitioned the district court but the court upheld the Commissioner's decision to deny Mr. Pallas a Minnesota driver's license.  On appeal, the Minnesota Court of Appeals reversed the district court, noting that Mr. Pallas had completed the rehabilitation requirements to obtain a Minnesota license and to refuse to issue a Minnesota license based upon the failure to provide a clearance letter from the State of Illinois violated Article V of the Interstate Driver License Compact (codified in Minnesota in § 171.50).

Minnesota Statute § 171.50 states in pertinent part, "...after the expiration of one year from the date the license was revoked, such person may make application for a new license if permitted by law.  The licensing authority may refuse to issue a license to any such applicant if, after investigation, the licensing authority determines that it will not be safe to grant to such person the privilege of driving a motor vehicle on the public highways." (emphasis added).

The Court of Appeals noted that:

"The statute does not expressly allow the commissioner to replace the investigative process with a clearance-letter requirement, or even to impose a clearance-letter requirement.  We cannot construe the statute as allowing the commissioner to condition issuing a Minnesota license on the applicant's ability to secure a clearance letter."
*   *   *
"Not only was the clearance-letter condition contrary to law, but in this case the unauthorized condition was also a mirage.  The commissioner through legal counsel acknowledged in 2002 that 'it will be impossible for Pallas to get a clearance letter from Illinois because he is under a lifetime  revocation based upon having four DWI's on his record', and the district court acknowledged the same.  It might be that 'after investigation' the commissioner would find that it will be unsafe to license Pallas in Minnesota.  But neither an investigation nor factfinding occurred here.  Instead, Pallas was denied a license based on his failure to meet a condition that was legally implausible and practically 'nigh impossible."
*   *   *
"In sum. the compact plainly provides that an applicant can be issued a license in Minnesota notwithstanding a lengthy revocation in another state and that before refusing to issue the license the commissioner must determine that issuing it would be unsafe.  By requiring a clearance letter, the commissioner rendered Article V meaningless and divested himself of the discretion conferred under the compact. This cannot be the result that the legislature intended.  We reverse and remand for the commissioner to decide the question of Pallas's reinstatement on the basis authorized by statute."

Gee, I wonder what the Commissioner is going to decide?  But since Mr. Pallas is otherwise eligible to obtain a limited Minnesota license, the Commissioner will be hard pressed to legitimately deny the issuance of a license.

Moral of the Story: Give me your tired, your poor, your huddled masses yearning to obtain a license and I will show you how!

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

F. T. Sessoms, Minnesota DWI Lawyer

Tuesday, March 9, 2010

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

The Minnesota DWI Case of the week is   State v. Cypher   which stands for the proposition that it is not nice to try to fool the District Court or the Minnesota Court of Appeals.

Mr. Cypher was charged with Felony DWI and his attorney requested a pretrial hearing to contest the validity of the initial stop of vehicle. But then Mr. Cypher's attorney decided to get creative.  Or, as stated by the Minnesota Court of Appeals in its decision:

"We note that when appellant requested a contested omnibus hearing he asserted that the 'sole issue' was the stop, and at the hearing, appellant's attorney reiterated that the 'one issue' was the stop.  But following the arresting officer's testimony, appellant's attorney declared: 'The vehicle was never identified and appellant was never identified, the State can't uphold the stop'.  Appellant challenged the officer's identification of appellant as the driver of the vehicle.  The district court gave the parties an opportunity to respond to appellant's identification challenge before concluding that the officer identified appellant and that appellant was the only occupant of the vehicle."

"Appellant similarly raises this issue on appeal with misplaced confidence, deeming it a sure-fire triumph.  But appellant's attorney's tactic to attempt to hoodwink the prosecutor and the district court by raising this issue in the manner in which he did, although clever from his perspective, was imprudent.  We note that after appellant's attorney remarked in district court that the officer failed to identify appellant and, as a result, the state could not uphold the stop, the district court had the discretion to reopen the record and allow additional testimony from the officer, which it did not."

"Additionally, the district court could have precluded appellant from challenging identification because when appellant raised the 'sole issue' of the stop, he no longer had standing to challenge whether he was the driver.  Appellant essentially conceded that he was the driver when he challenged the legality of the stop and he was the vehicle's sole occupant; he had no standing to challenge the stop if he was not the driver."


"Standing" is a basic concept in the law and it means that unless you have been personally aggrieved by a police search or seizure you may not bring a challenge to the police action.  For example, if the police break into my neighbor's house, I have no "standing" to challenge the search even if it was illegal as I have no interest in the area searched.

Or, as in the present case, you can't challenge the legality of the initial stop where you are claiming that you were not the driver. If you were not the driver, then you do not have any interest (i.e. standing) in the legality of the police conduct. Duh!

Had the defendant's attorney been serious about challenging the identity the driver, he should have brought a Motion to Dismiss for lack of probable cause.  Instead, he decided to get cute and got spanked by the Appellate Court for forgetting about a fundamental concept in the law of search and seizure.

Moral of the Story:  It's Not Nice to Fool Mother Nature or The Minnesota Court of Appeals!

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

F. T. Sessoms, Minnesota DWI Lawyer

Thursday, February 18, 2010

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

The Minnesota DWI case of the week is the Minnesota Court of Appeals decision set forth in Melde v. State of Minnesota.

Mr. Melde was charged with two counts of Felony DWI and one count of Driving After Cancellation.  He agreed to plead guilty to one count of Felony DWI and to Driving After Cancellation when the prosecutor agreed to recommend that the execution of the sentence be  "stayed" (i.e. the prosecutor agreed that Mr. Melde would not be required to go to prison).  

The district court judge accepted the guilty plea and adjudicated Mr. Melde guilty. The parties and the district court agreed that there would be a pre-sentence investigation and that the court would sentence Mr. Melde after reviewing the pre-sentence report.

After the pre-sentence report was prepared and reviewed by the district court, the judge decided not to accept the plea agreement.  The district court offered Mr. Melde the opportunity to withdraw his guilty plea but told the defendant that it would sentence him to 46 months (i.e. at the bottom of the sentencing guidelines) if he affirmed his guilty plea.

Mr. Melde decided not to withdraw his guilty plea and was sentenced, as promised, to 46 months in prison.  Mr. Melde subsequently brought a Petition for Post-Conviction Relief asserting that the district court impermissibly injected itself into the plea negotiations by promising a particular sentence.

The Minnesota Court of Appeals agreed with Mr. Melde and reversed his conviction. The Court of Appeals noted that, "The district court has a role to play in plea negotiations, but it may not usurp the responsibility of counsel or become excessively involved in plea negotiations. It is improper for a district court to offer the defendant an anticipated sentencing result that is not a part of an existing agreement between the defendant and the prosecutor."

"The district court's proper role is one of discreet inquiry into the propriety of the settlement submitted for judicial acceptance, both to make certain that an innocent person has not been induced to plead guilty to a crime and to protect society from a defendant being permitted to bargain for an excessively lenient sentence.  If the district court finds the terms of the a plea agreement to be unacceptable, it must simply reject the agreement."

When a district court rejects a plea agreement, the defendant is automatically entitled to withdraw his plea if one has been entered.  Here the district court properly informed Mr. Melde of his right to withdraw his guilty plea.  However, the court also told Mr. Melde that it would impose a 46-month sentence if he affirmed his guilty plea.  "By promising a particular sentence that was not part of an agreement between the prosecutor and the defendant, the district court improperly injected itself into plea negotiations.  Therefore Melde's guilty plea was per se invalid."

My only criticism of the result is that sometimes an active role by the court facilitates a proper resolution of the case.  There are times when one encounters an over-zealous prosecutor who demands a sentence far in excess of anything warranted by the offense.  If the court takes an active role and indicates it is not going to go along with the prosecutor's demands, the court's involvement can go a long way in avoiding an unnecessary trial.

F.T. Sessoms, Minnesota DWI Lawyer

Wednesday, January 27, 2010

F.T. Sessoms Gets Police "Policy" Declared Unconstitutional! Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota Case of the week is the Minnesota Court of Appeals decision of State v. Wicklund (Opinion Issued January 26, 2010).  I was the attorney for the Defendant in this case and the decision stands for the proposition that the police "policy" of collecting a blood or urine sample from a driver, whenever an accident involving serious injury or death occurs, violates the Fourth Amendment to the United States Constitution.

Brent Wicklund caused a fatal multi-vehicle accident after the brakes on his box truck failed and he attempted to stop by driving into a raised concrete median that separated the opposing lanes of a multi-lane highway.  Mr. Wicklund's truck did not stop; it jumped the median, entered oncoming traffic, and struck and fatally injured a motorcyclist.

The police arrived and based upon the nature of the accident and nothing more, compelled Mr. Wicklund to provide a urine sample for drug testing.   The police did not observe Mr. Wicklund exhibit any indication of drug or alcohol consumption.  But it was the policy of the Plymouth Police Department to test a driver whenever there is the possibility of criminal vehicular homicide.

The urine test result revealed the presence of amphetamine and methamphetamine and as a result, Mr. Wicklund was charged with Criminal Vehicular Homicide.

I moved, in the district court, to suppress the results of the urine test arguing that the police lacked probable cause to obtain a urine sample from Mr. Wicklund.  The district court held that the results were admissible because the police had probable cause to believe that the crime of criminal vehicular operation had occurred and that obtaining a blood or urine sample would aid in the prosecution of the crime.

I subsequently appealed the district court's decision and Minnesota Court of Appeals agreed with my contention that there was nothing specific to Mr. Wicklund that would justify a search of his bodily fluids.

In its opinion, the Court of Appeals noted, "The State can justify the warrantless testing of a driver's body fluids if the officer who took the sample had probable cause to believe both (1) that the driver committed the crime of criminal vehicular operation and (2) that the administration of the test would aid in the prosecution of that crime. State v. Lee, 585 N.W.2d 378, 381 (Minn. 1998) citing State v. Speak, 339 N.W.2d 741, 745 (Minn. 1983).  We interpret the second prong narrowly and hold that the state's showing is insufficient."

The Court went on the explain that, "Looking only to this language apart from the restraint of other search-and-seizure caselaw, police might mistakenly conclude that they may test any driver involved in a bodily-injury traffic accident, because one might reason that in every case testing would be 'relevant' and 'aid in the prosecution' by either ruling out guilt or ruling in guilt.  Because we do not interpret the Speak-Lee standard as overturning or eroding the traditional probable-cause standard for police searches, however, we must also apply the traditional standard here."

"Probable cause to search exists when, given the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.  * * * The facts and circumstances known to the police to justify a warrantless extraction of body fluids, therefore, must support a reasonable belief that testing will disclose some amount of alcohol or drugs in the defendant's body.  That amount need not be a level of intoxication, but the circumstances must be sufficient to indicate the likelihood of a positive test result."

In the present case, "Officer Anderson was aware of no circumstances indicating even non-intoxicating levels of chemical consumption.  He noticed no alcoholic odor or signs of physical impairment, and he was aware of no facts suggesting that Wicklund had recent access to drugs or alcohol.  The preliminary breath test indicated no alcohol use.  This does not end the inquiry, because in Speak and Lee the supreme court declined to hold that police must observe customary physical indicia of intoxication before testing a driver's body fluids.  They indicate that evidence of extreme misjudgment alone might provide the probable-cause basis for testing a driver for drug or alcohol use."

"All Officer Anderson knew when he required Wicklund to provide a urine sample was that Wicklund had been having trouble with his brakes, which ultimately failed, leading Wicklund to make a split-second decision either to ram the vehicle stopped ahead in his lane or to attempt to slow his truck and avoid a collision by some other means.  Wicklund decided to try to slow the truck using friction against the median.  Although in hindsight we clearly see that this decision was flawed because it averted one crash only to cause another, it is not the kind of extremely irrational choice that demonstrates that alcohol or a controlled substance affected Wicklund's judgment or driving ability.  Had Wicklund failed to recognize the stopped car, or to apply his brakes, or to take evasive action to avoid a collision with the car in front of him, he might have demonstrated the kind of inattentiveness or gross misjudgment that supports involuntary testing without the observable indicia of intoxication.  At worst, his late response to traffic conditions created a dilemma leading to his deadly split-second decision." * * *

"Although the state learned in retrospect that Wicklund in fact had consumed a controlled substance, we must consider only the circumstances know to Officer Anderson.  On those circumstances, the district court was bound to exclude Wicklund's urine test results because the test was unconstitutional.  The district court erred by denying Wicklund's motion to suppress the test results."

The Court of Appeals then reversed the conviction as all the relevant evidence has now been excluded.

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

Attached is the Media's Reaction to the Decision:

Thursday, January 21, 2010

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

The Minnesota Case of the week is the Minnesota Supreme Court case of State v. Fleck, _N.W.2d _ (Minn. 1/21/2010).

Mr. Fleck is an alcoholic who managed to rack up 4 DWI's within 10 years making him eligible for felony prosecution.  What is interesting about his current case is that while he  made no attempt to stop drinking, he still managed to get convicted even though there wasn't any proof that he was ever driving or operating the motor vehicle.  You would think that a man with his experience with the legal system would know about the "physical control"  portion of the DWI statute, but perhaps he is just a slow learner.

The facts, as noted by the Court, are: "At 11:30 p.m. on June 11, 2007, police officers responded to a call from a concerned citizen who saw a man unconscious in her apartment complex parking lot in the driver's seat of a vehicle with its door open.  The officers found Fleck asleep behind the wheel of his vehicle, which was legally parked in an assigned space at the apartment building where he lived.  After being awakened by the officers, Fleck admitted to drinking 10 to 12 beers, but denied that he had been driving the vehicle.  When asked why he was in the vehicle, Fleck initially told the officers that he had come to retrieve an item from the vehicle but later told the officers that he had come outside to sit in the vehicle.  The officers concluded that Fleck had not recently driven the vehicle because the vehicle was 'cold to the touch', the lights were not on, and it did not appear that the vehicle had been running.  However...the officers did observe a set of ignition keys in the vehicle console between the driver and passenger seats.  The officers also concluded that Fleck was intoxicated based on observing Fleck's bloodshot and watery eyes, slurred speech, poor balance, disheveled look, and the smell of alcohol emanating from him.  Subsequent testing showed that Fleck had a blood alcohol concentration of .18" (Opinion p.1-2).

"Minnesota law provides that it is unlawful for 'any person to drive, operate or be in physical control of a motor vehicle' while under the influence of alcohol or with an alcohol concentration of .08 or more. Minn. Stat. § 169A.20, subd. 1(1), (5).  The term 'physical control' is more comprehensive than either the term to 'drive' or to 'operate'."

In Fleck,  the Court noted that, "physical control is meant to cover situations when an intoxicated person, is found in a parked vehicle under circumstances in which the vehicle, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.  State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992). Thus a person is in physical control of a vehicle if he has the means to initiate any movement of that vehicle, and he is in close proximity to the operating controls of the vehicle. Id."

The Fleck opinion goes on to state, "the purposes underlying the offense of being in physical control of a motor vehicle while under the influence is to deter intoxicated persons from getting into vehicles except as passengers and to act as a preventive measure to 'enable the drunken driver to be apprehended before he strikes' (citation omitted). The offense, however, is not intended to cover situations in which an intoxicated person is a passenger, having relinquished control of the vehicle to a designated driver." (emphasis added).

The Court notes that "mere presence in or about the vehicle is insufficient to show physical control; it is the overall situation that is determinative." The factors to be considered in determining whether a person is in physical control of a motor vehicle include: "the person's location in proximity to the vehicle; the location of the keys; whether the person was a passenger in the vehicle (which from the court's language above would give you a free pass), who owned the vehicle and the vehicle's operability." (Opinion p.5)

The Fleck Court then states that the "intent to operate" is not an element of the physical control DWI statute. (Opinion p.6) This statement appears to be inconsistent with the court's exemption of passengers from prosecution.  A passenger is ensconced in the vehicle and is presumably in close proximity to the controls, the keys etc.  But since a passenger, by definition, has no intent to drive the vehicle, they are exempt from prosecution even though "intent to drive or operate" is not an element of physical control.

I do not disagree that passengers should be exempt from prosecution.  After all, drunks have to get home somehow.  And if you have the foresight to take a cab or obtain a designated driver then you should not be subject to prosecution, if say, your driver stops at the local Quik Trip and leaves you in the front seat of the vehicle with the motor running while he peruses the late night delicacies available at all 24 hour markets! Why? Because you as a passenger had absolutely no intent to drive or operate the motor vehicle.

So if the "lack of intent" serves to protect the passenger, why isn't that defense available to those whose status within the vehicle is less clear.  Say perhaps Mr. Fleck, who only went to the vehicle to retrieve an item or to simply enjoy the pleasure of the vehicle's rich corinthian leather.  If the jury does not buy the defendant's story; that's fine. But the intent of the party should be a factor in the Supreme Court's analysis of the totality of the  circumstances creating "physical control".

MORAL OF THE STORY: If you are drunk, never get in a motor vehicle unless you are a passenger with proof of a designated driver.

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

F.T. Sessoms, Minnesota DWI Attorney

Tuesday, January 19, 2010

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

The Minnesota Case of the week is State v. Bacigalupo, an unpublished decision from the Minnesota Court of Appeals (issued January 19, 2010). In Bacigalupo, the Minnesota Court of Appeals held that an individual may be convicted and sentenced for both a Felony DWI and the offense of Driving After Cancellation.

Minnesota Statute § 609.035 provides that an individual can be convicted of only one offense arising out of the same transaction or occurrence.  So for example, if you are stopped for speeding, running a stop sign or some other traffic offense and are subsequently arrested for DWI as the result of the traffic stop, you can only be convicted of one offense arising out of your driving conduct.

There is, however, an exception for a "license status" offense.  So if your license is suspended, revoked or cancelled, at the time you commit the DWI, you can be convicted and sentenced for both the DWI and the "license status" crime.  The theory is the license status crime is an ongoing offense and is not dependent upon, or otherwise related to, the decision to commit a DWI.

F.T. Sessoms, Minnesota DWI Lawyer