Tuesday, October 15, 2013

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

The Minnesota DWI Case Of The Week is   State v. Addickes, (Minnesota Court of Appeals Unpublished Opinion issued October 15, 2013) which stands for the proposition that even though the DWI blood test sample was destroyed before it was inspected by the Defense, the BCA test result is still admissible unless the Defendant can prove the  blood sample contained exculpatory evidence and was destroyed "in bad faith".  Needless to say, the Defendant lost.

In Addickes, the Defendant was arrested on suspicion of DWI. While under arrest, he gave a blood sample that was tested by the Minnesota Bureau of Criminal Apprehension (BCA).  The test found his blood sample to have an alcohol concentration of .17. 

The Defendant's attorney served the prosecutor with a disclosure demand that included a request for all reports of “examinations, scientific tests, experiments or comparisons made in connection with the particular case.” The state responded on March 8, 2011, with a report on the BCA’s test of the blood sample. The report indicated that the sample would be destroyed on February 2, 2012, or 12 months after the test.  

On March 4, 2011, the Defendant's case was mistakenly dismissed. When the error was discovered on January 9, 2012, the district court ordered that the previous dismissal be vacated. Defendant's attorney called the BCA on March 22, 2012, to request access to the sample and was informed it had been destroyed on or about March 2, 2012.  Appellant then requested a contested omnibus hearing, claiming a due process violation as a result of the destruction of the blood sample and requesting suppression of the results of the blood test. After the hearing, the district court denied the Defendant's motion to suppress.  

On Appeal, the Court noted that in State v. Hawkinson, 829 N.W.2d. 367 (Minn. 2013), the Minnesota Supreme Court stated that in determining whether a blood test result should be suppressed, the courts are to look at two factors: 

(1)  Was the destroyed evidence exculpatory (i.e. favorable)  to the defense and;

(2)  Was the evidence destroyed in bad faith.

In the present case, the Addickes Court held that since the blood sample was not favorable evidence to the defense (as it contained an alcohol concentration level of .17) and the sample was destroyed after notice to the defense and pursuant to its regular practice, there was no due process violation and the test result was properly admitted at trial.

MORAL OF THE STORY: If you want to examine the state's evidence, you better do it in a timely fashion. So don't put off till tomorrow what you can do today!   

Monday, September 9, 2013

The Minnesota DWI Case Of The Week is   State v. Freeman, (Minnesota Court of Appeals, Unpublished, decided September 9, 2013), which stands for the proposition that the test will not be suppressed even though the police eavesdropped on the defendant's conversation with his attorney. 

In Freeman, the Defendant was arrested for DWI and was taken to the Cass County Jail for alcohol testing.  Prior to submitting to a breath test at the jail, the Defendant asked to consult with counsel.  Mr. Freeman contacted an attorney by telephone and the attorney advised the Defendant to submit to testing.  The attorney-client consultation occurred over a speaker phone and both sides of the consultation were recorded by the arresting officer.

The Defendant moved to suppress the breath test result arguing that his right to counsel had been violated by recording his conversation with his attorney.  The District Court granted the motion to suppress but on the State's appeal of the ruling, the Minnesota Court of Appeals reversed.

In its decision reversing the District Court, the Minnesota Court of Appeals noted, "An individual who is in law-enforcement custody generally has the right to 'a private interview' with an attorney or 'private telephone access' to an attorney.  But the Minnesota Supreme Court has rejected the argument that law enforcement must provide a driver exercising his limited right to pretest counsel with a private telephone or private room in which to call an attorney, reasoning that 'given the limited nature of the right to counsel in this context, police do not have to provide a DWI arrestee with a private telephone because the arrestee’s rights will be sufficiently protected by the subsequent exclusion of any overheard statements or any fruits of those statements.' Comm’r of Pub. Safety v. Campbell, 494 N.W.2d 268, 269-70 (Minn. 1992). The supreme court noted that 'proper testing procedures' generally require that the officer remain in the presence of an arrestee in order to impeach any later testimony by an arrestee who submits to testing that ingestion of something at the station might have affected the test results." 

"As to remedies, precedent establishes a distinction between cases in which the police refuse to allow an attorney-client consultation prior to testing and cases in which the police allow a consultation but do not honor the driver’s statutory right to a private consultation. When law enforcement refuses to allow a driver to contact an attorney and the driver subsequently submits to chemical testing without the benefit of legal advice, suppression of the test results is the appropriate remedy. See State, City of Belle Plaine v. Stradcutter, 568 N.W.2d 545, 548 (Minn. App. 1997).  But the remedy is narrower when the police allow a driver to telephone an attorney but do not provide the driver with privacy during the call. In such cases, the remedy is suppression of any overheard statements, as well as the fruits of those statements, and not suppression of the test results. See Campbell, supra."

Thus the District erred when it suppressed the breath test results and its ruling is reversed.

MORAL OF THE STORY: Talk softly because you never know who may be listening!

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

Saturday, July 20, 2013

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

The Minnesota DWI Case Of The Week is   Murtha v. Commissioner of Public Safety, (Minnesota Court of Appeals, Unpublished, decided July 15, 2013), which stands for the proposition that if your DWI Attorney is going to present a medical defense, he should have at least a passing knowledge of the Minnesota Rules of Evidence.

In Murtha, the Petitioner claimed that his DWI breath test result was not accurate or reliable because he suffers from GERD (gastroesophageal reflux disease) and at the time he took the breath test, he was experiencing symptoms of his acid reflux disease.  

The Petitioner then had a forensic toxicologist testify about the potential effect of mouth alcohol caused by GERD on breath test results. The expert testified that mouth alcohol consists of alcohol that is regurgitated into the mouth from one's stomach. And if mouth alcohol is present as a result of the GERD condition, the breath test results would show a higher alcohol concentration than would be present absent the mouth alcohol.  (So far, so good).

The Petitioner's attorney then sought to introduce his client's medical records to show that his client suffers from GERD.  The district court, however, excluded the diagnosis on the grounds that the doctor's diagnosis, contained in the medical records, was hearsay.  

On appeal, the Minnesota Court of Appeals upheld the district court noting that Rule 803 (4) (The Medical Records Exception to the Hearsay Rule) only allows, "Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment".

In other words, statements the patient makes to the doctor are admissible under the rule because the theory is that someone seeking medical help will tell the truth to get accurate and helpful treatment for the medical condition.  But the diagnosis of the doctor is not covered by the hearsay exception.  The establish the diagnosis, you have to bring in the doctor!!  Since the Petitioner in this case failed to have the doctor testify, the district court did not err in excluding the diagnosis contained in the medical records as hearsay.

Moral of the Story: You should always learn the rules before you try to play the game!!

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

Wednesday, April 17, 2013

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

The DWI Case Of The Week Is   Missouri v. McNeely, 569 U.S. _ (Decided April 17, 2013) a United States Supreme Court case which stands for the proposition that the dissipation of alcohol in the body does not create a per se exception to the warrant requirement.

In McNeely, the Defendant was arrested for DWI and was taken to the hospital for blood testing.  Upon arrival at the hospital, the officer asked Mr. McNeely if he would consent to a blood test.  When Mr. McNeely refused to submit to testing, the officer directed a lab technician to take the blood sample.  The officer did not attempt to first obtain a search warrant to authorize the bodily search.

The Missouri Supreme Court held that the failure to attempt to seek a warrant was fatal to the State's case stating that, "the courts must engage in a totality of the circumstances analysis when determining whether exigency permits a nonconsensual, warrantless blood draw".

The State of Missouri then appealed to the United States Supreme Court arguing that  alcohol in the blood begins to dissipate as soon as its consumption is stopped and that any delay in obtaining a blood sample will sacrifice the accuracy of the test result.  The State of Missouri wanted the U.S. Supreme Court to adopt a per se rule that the dissipation of alcohol creates an exigency that dispenses with the need to obtain a search warrant.

The United States Supreme Court in McNeely, however, declined to adopt the per se rule requested by the State and held instead that the lower courts must utilize the "totality of the circumstances test" to determine if a warrant was properly not obtained.  The Supreme Court pointed out that in this day of telephonic warrants, the delay necessitated by contacting a magistrate to obtain said warrant is minimal and is not such a burdensome requirement that it may be dispensed with in all cases.

The Supreme Court's ruling in McNeely has huge implications for Minnesota.  In the State of Minnesota, when a person is arrested for DWI, his or her consent to submit to testing is coerced.  That is, when suspects are arrested for DWI, they are told that if they refuse to submit to testing, they will be charged with a crime.  One's consent to search is not "voluntary" if it is being obtained by threat of prosecution.  Since the consent to testing is not voluntary, the State must now show in each case that it could not obtain a search warrant before seeking to obtain the test!  How are the police going to be able to show they could not obtain a warrant when up until April 17, 2013 they were not even trying to get said warrant?

Conclusion: It's a whole new ball game in DWI defense!