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