Wednesday, May 25, 2016

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

The Minnesota DWI Case Of The Week is Walsh v. Commissioner of Public Safety (Decided May 23, 2016, Minnesota Court of Appeals, Unpublished) which stands, once again, for the proposition that the police do not need probable cause to conduct field sobriety tests and a PBT test. I disagree but I am not on the Court of Appeals.

In Walsh, on January 30, 2015, Deputy Ryan Googins heard over his police radio that someone had called in a driving complaint. The caller identified himself and reported that he had seen a female in a vehicle at a Kwik Trip consuming what looked like small, airline-sized bottles of alcohol. The caller stated that when he made eye contact with the driver, she became nervous and drove away. The caller noted the vehicle's license-plate number, provided it to the police, and stated that he last saw the vehicle traveling south on Highway 3 from the Kwik Trip.

Deputy Googins spotted the vehicle and saw it turn into the Dakota County Library parking lot and park in an available space. Deputy Googins pulled into the parking lot, activated his lights, and parked behind the vehicle. As Deputy Googins approached appellant Shannon Forstrom Walsh, she was eating crackers and exiting her vehicle. Deputy Googins noticed an overwhelming odor of alcohol coming from the vehicle. When Deputy Googins asked appellant about the odor, she replied that she had not been drinking and suggested that the smell was coming from the crackers. Deputy Googins also noticed that appellant's eyes were watery and bloodshot.

Deputy Googins asked appellant to step out of the vehicle and take a series of tests. Appellant performed the horizontal-gaze nystagmus, walk-and-turn, and one-leg-stand tests and exhibited indicia of intoxication on all three tests, though the indicia of intoxication were subtle on the one-leg-stand test. Deputy Googins administered a PBT and placed appellant under arrest for driving while impaired (DWI). Deputy Googins read appellant the implied-consent advisory. Appellant declined to consult with an attorney. Deputy Googins offered appellant a breath test, and appellant agreed to take it. The test indicated that appellant's alcohol concentration was 0.12.

The District Court upheld the revocation of the Appellant's driver's license and on appeal, she argued that the field sobriety tests and PBT are subject to the "probable cause" and warrant requirements of the Fourth Amendment.  The Minnesota Court of Appeals, however, rejected this argument stating:

"Appellant's position is inconsistent with the applicable caselaw. An officer needs only reasonable, articulable suspicion of criminal activity to administer field sobriety tests and a PBT. State, Dep 't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981); State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (holding that administration of field sobriety testing based on officer's observations of odor of alcohol and Klamar's bloodshot and watery eyes was reasonable); State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (stating that an officer may request a PBT on the basis of specific and articulable facts), review denied (Mi\m. May 16, 1986). Appellant's reliance on Colorado and Oregon law is thus unpersuasive because it is contrary to binding Minnesota precedent."

Far be it for the Court of Appeals to change its mind.  And while it can be argued that field sobriety tests merely require a person to demonstrate their physical characteristics, (such as their ability to balance) and no "search" is involved in such tests, the same cannot be said for a preliminary breath test.  A PBT requires a person to blow a specified volume of air into a machine and the air is then analyzed for alcohol.  The PBT test is a search just like the Data Master test performed at the police station.  And to claim that the PBT test does not require probable cause is just plain wrong.

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Monday, May 16, 2016

Minneapolis DWI Attorney Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Tomlinson v. Commissioner of Public Safety (Decided May 16, 2016, Minnesota Court of Appeals, Unpublished) which stands for the proposition that an informant's tip is sufficient to justify the stop of a vehicle even if the informant is an irate boyfriend!

In Tomlinson, the Petitioner's boyfriend, Jay Janzen, called the police in March 2015.  Mr Janzen told the police that Ms. Tomlinson was driving drunk from Vernon Center to their shared home east of Ormsby.  Janzen told the police that the Petitioner was driving from a snowmobile club meeting from which she regularly drives home drunk and that his text-message exchange with Tomlinson informed him that Tomlinson had become lost.

The police went looking for Ms. Tomlinson and soon found her driving on a gravel road.  They stopped the vehicle and subsequently determined that the Petitioner was intoxicated.

The Petitioner challenged the legality of the police stop but the district court denied her challenge.  On appeal, the Minnesota Court of Appeals affirmed the district court noting that: "A reasonable suspicion may arise from information supplied by an informant" and "the deputy was aware of the following details: Tomlinson was driving very late, after midnight.  Tomlinson reportedly customarily drives home drunk after she leaves her club meeting.  Tomlinson got lost despite her familiarity with the route; Tomlinson had still not found her way home in the 45 minutes between the time of the call and the time the deputy encountered her on the road; and Tomlinson's boyfriend who lives with Tomlinson believed her communication to him indicated she was drunk. This reasonable suspicion warrants the minimal intrusion of the brief traffic stop". 

"Janzen was not an anonymous informant who provided only a bare assertion of a possible drunk driver.  Nor was he a stranger-informant who failed to provide any basis for his conclusion. Jansen expressed that Tomlinson was intoxicated, and not just possibly intoxicated, and he was convinced of it based on his personal experience with Tomlinson's regularly driving home drunk after her snowmobile club meetings and on her getting lost after leaving the meeting late that night.  This case is sufficiently similar to those in which the informant confidently communicated drunk driving and in which the basis for the report was apparent.  The district court appropriately denied Tomlinson's motion to suppress the evidence that followed the traffic stop."

Moral Of The Story:  With boyfriend's like that, who needs enemies?

If you or a loved one has been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Monday, May 9, 2016

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

The Minnesota DWI Case Of The Week is Johnson v. Commissioner of Public Safety (Decided May 9, 2016, Published, Minnesota Court of Appeals) which stands for the proposition that even if you are certifiably insane, you still must file a challenge to the license revocation within 30 days of the revocation.

In Johnson, the Defendant was arrested for DWI in 2006 and for a second DWI offense in 2008.  He received a notice of license revocation in each case but he never filed a license revocation challenge to either offense.  

While these DWI charges were pending, the Defendant was found mentally incompetent to stand trial for either offense.  As a result, both of the charges were subsequently dismissed.

On December 12, 2012 the Defendant was arrested for felony DWI and the state used the license revocations from the 2006 and 2008 arrests to enhance the 2012 arrest to a felony.  In April 2015, the Defendant filed an Implied Consent Challenge to the two prior license revocations but the district court dismissed the challenges as untimely.

On appeal, the Defendant asserted that because he was found incompetent to face criminal charges stemming from his 2006 and 2008 DWI arrests, he was also mentally incompetent to request judicial review of the corresponding license-revocation proceedings.  He, therefore, claims that because the revocations are now being used to enhance the pending DWI prosecution, the revocations violate his due process rights and should be rescinded.

In rejecting the Defendant's challenge, the Minnesota Court of Appeals notes:

"Appellant appears to suggest that because of his mental incompetence at the times he received notice of the revocations, he was not given adequate notice to seek judicial review. Therefore, he argues, enforcing the 30-day jurisdictional bar would violate his due-process rights. Notice is adequate in an implied-consent proceeding where the state provides "[n]otice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." McShane, 311 N.W.2d at 482-83 (quotation omitted). "Actual receipt of the notice is not required to meet the due process requirement." State v. Green, 351 N.W.2d 42, 44 (Minn. App. 1984). Courts have found notice to be adequate even where the petitioner did not receive actual notice or claimed not to understand the notice. Id.; Johnson v. Comm 'r of Pub. Safety, 394 N.W.2d 867, 868-69 (Minn. App. 1986). So long as notice of the opportunity to seek judicial review of a revocation is "reasonably calculated" to reach the driver, it may satisfy due process even if it never, in fact, reaches that driver."

"Because the notice to appellant was sufficient to satisfy due process and appellant did not exercise his right to request judicial review within the 30-day period, the district court did not have jurisdiction to hear the petition. If the result now seems harsh, it is a criticism that may be levelled against many statutes of limitation. Furthermore, as a matter of public policy D.W.I, laws, including the implied consent statute, are liberally construed in the public's favor and are strictly applied."

Moral Of The Story:  You would have to be crazy not to  file a timely challenge your license revocation. Because even if you are, that is no excuse!

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.