Tuesday, December 26, 2017

Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Brazil, (Decided December 26, 2017, Minnesota Court of Appeals, Published) which stands for the proposition that the "uncertainty of measurement" of the Data Master Breath testing machine is not a sufficient basis to reverse a criminal conviction for Third Degree DWI even where the reported test result is a .16.  This is a very bad case for the defense.

In Brazil, the Defendant consented to a breath test, and the DMT device measured and reported appellant's alcohol concentration as 0.16. The Defendant was charged with two counts of third-degree DWI with reference to the aggravating factor of an alcohol concentration of 0.16. The Defendant waived his right to a jury trial, and admitted under oath that he drank enough alcohol to affect his ability to safely drive a motor vehicle before he drove and crashed his car into a parked car. He also admitted that his alcohol concentration was 0.08 or more as measured within two hours of driving. The Defendant denied that his alcohol concentration was 0.16 or more, an element necessary to the gross-misdemeanor charges.

The state presented testimony from Karin Kierzek, a forensic scientist with the Minnesota Bureau of Criminal Apprehension (BCA). Kierzek testified that every DMT device in use in Minnesota comes to the BCA's lab annually for maintenance checks, calibration, and certification. All machines must provide results within the acceptable 0.003 or 3% margin of error in order to pass calibration. Kierzek also testified that DMT devices have a number of internal and external checks to ensure accuracy. These checks begin with having a trained operator administer the test. The operator observes the subject for at least 15 minutes to verify that the subject is not introducing mouth alcohol by burping, belching, or regurgitating. The DMT device tests itself by running a diagnostic test, which includes using air blanks to clear the sample chamber and ensure that there is no residual alcohol or measurable alcohol in the air surrounding the machine. The subject then provides two breath samples a minimum of three minutes apart to safeguard against measuring mouth alcohol, and a control sample runs between the two breath samples to determine if the instrument is working properly when it evaluates a known alcohol concentration. If the two breath samples from the subject are not comparable, the test results are deemed insufficiently reliable and retesting is suggested.

The DMT results showed that the DMT device used to test appellant's alcohol concentration went through the full sequence of checks and passed all of them. There is no indication of irregularity or malfunction. The air blanks produced readings of zero, meaning that the sample chamber was clear of alcohol. Appellant's first breath sample revealed an alcohol concentration of 0.164. The machine ran another air blank and a control sample with a target of 0.078, which produced a result of 0.077. Kierzek testified that the control sample reading was only 0.001 different than the known sample, which variance she testified was insignificant and meant that the machine was measuring alcohol accurately within tolerable limits. After the control-sample test, the machine ran another air blank, which again tested zero, and then appellant provided a second breath sample, which resulted in an alcohol concentration measurement of 0.175. One final air blank was run to clear the sample chamber and check the room air for any measurable alcohol. It also tested zero. Kierzek testified that appellant's final alcohol concentration was determined by taking the lower of the two reported sample results, 0.164, and dropping the third digit to reach a reported value of 0.16. This method of reporting "give[s] the most benefit to the subject," according to Kierzek's testimony. Based on her review, Kierzek opined that appellant's breath-test results were accurate.

Kierzek also testified that "[t]here is no perfect measurement" and no measurement can ever be absolutely accurate. She testified that there is an uncertainty-of-measurement range within which the tester could have confidence that a high percentage of results would fall. Factors that contribute to the uncertainty of measurement include the area in which the tests are performed, the instructions given by an operator, whether the subject is wearing cologne, and whether the subject has certain medical conditions. She testified that the uncertainty-of-measurement value "merely gives you a range of what you would expect to see given repeated samplings." For appellant's test in particular, Kierzek testified that, at the 99% confidence interval, the expected range of test results would be 0.1504 to 0.1886. The average from appellant's two breath-test results was 0.1695, and Kierzek testified that this is the "most likely result," and that repeated test results "would be symmetric around that point." She also agreed that, had appellant's breath been tested a third time, it could have fallen anywhere within the confidence interval that she identified, from 0.1504 to 0.1886, and agreed that a third test falling anywhere within that range is "a distinct possibility" that is not arbitrary or capricious. Appellant's counsel asked Kierzek whether she could "say that if [appellant's breath] was measured a third time . . . [the result] would be a .18 or if it would be a .15 ... [w]ithout speculating," to which Kierzek responded no.

The District Court found the Defendant guilty of Third Degree DWI i.e. having an alcohol concentration level of .16 or more and on appeal, the Appellant argued that the evidence was not sufficient, because the uncertainty-of-measurement range includes values below 0.16, meaning that some tests of appellant's breath—if enough were done—would be expected to fall below 0.16.

The problem with the Appellant's argument is that once a person has been convicted, the Appellate Court will invoke the rules designed to affirm the factual findings of the District Court. Or, as stated by the Minnesota Court of Appeals in this case:

"In considering the sufficiency of the evidence supporting a conviction, we thoroughly analyze the record "to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the [factfinder] to reach the verdict which [it] did."

"We must assume that the factfinder 'believed the state's witnesses and disbelieved any evidence to the contrary.' State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). 'We will not disturb the verdict if the [factfinder], acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that" the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). We have referred to this as the "traditional standard of review.'

"The record contains no measurement of appellant's alcohol concentration lower than 0.16. While appellant argues that the state is required to prove his alcohol concentration within the uncertainty-of-measurement range, our case law has consistently rejected this argument when framed in terms of margin of error." ***

"While these earlier decisions were made in the context of implied-consent cases, they hold that the proponent of a breath test need not prove the measurement to have been absolutely and precisely correct. The proponent must show that 'the necessary steps have been taken to ensure reliability," and after that 'it is incumbent on the driver to suggest a reason why the [breath] test was untrustworthy'".

"The district court accepted the test result as adequate proof of appellant's alcohol concentration. It did so despite testimony that it is possible that a third test of appellant's breath might have revealed a reported result under 0.16. The record supports the district court's factual finding concerning appellant's alcohol concentration. The evidence is sufficient to support appellant's conviction of third-degree DWI."

The Court's opinion in this case is troublesome as it transfers the rejection of the "margin of error" argument in civil cases and applies it to a criminal case.  In a civil case, the burden of proof is just the "preponderance of the evidence" or "more likely than not" standard.  So the fact that a machine has a "margin of error" is not very important where you are just trying to decide if it is more likely than not that the subject was over the legal limit.

But in a criminal case, where the burden of proof is "beyond a reasonable doubt" then the uncertainty of measurement should apply to prohibit a conviction where it is known that the machine, testing the same sample repeatedly, is likely to give a result under the legal limit.

Moral Of The Story: Never waive your right to a jury trial!

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

Tuesday, December 19, 2017

Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Rice (Decided December 18, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if the district court makes a factual finding of "good faith", the Court of Appeals will not overturn the lower court's ruling.

In Rice, the Defendant was stopped for speeding in Olmsted County and was subsequently arrested for DWI.  After reading the Minnesota Implied Consent Advisory, the Defendant told the trooper that he wanted to call an attorney prior to testing. The trooper provided the Defendant with a telephone and directories.

The Defendant told the trooper he would not be able to read the directories without glasses. The trooper made two efforts to find reading glasses or a magnifying glass for respondent, but his efforts were unsuccessful. The trooper also suggested that respondent telephone a friend or family member to assist him in contacting an attorney, but respondent declined to do this and said the trooper or another officer should get the glasses that respondent had in his car and bring them to the detention center.   The trooper replied that neither he nor another officer could leave the detention center to go to respondent's car for his glasses.

The Defendant had difficulty recalling the name of the attorney he wanted to call and whose number he wanted. He specifically asked the trooper, "Would you look the number up for me?" The trooper answered, "No sir, I'm not gonna look up a number for you." The Defendant did not take a breath test.

Following a contested omnibus hearing, the district court concluded that the Defendant had not been allowed to vindicate his right to counsel prior to taking a breath test and granted his motions to suppress the evidence of his exchange with the trooper during the implied-consent advisory and to dismiss the test-refusal charge.

The State appealed the district court's ruling but the Minnesota Court of Appeals agreed with the district court, stating:

"An individual who invokes his right to counsel before taking a breath test "must make a good faith and sincere effort to reach an attorney." Kuhn v. Comm 'r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). Whether a good faith and sincere effort was made is a factual determination that this court reviews for clear error."

"The district court determined that respondent 'made a good faith effort to contact an attorney' because he repeatedly asked for reading glasses or a magnifying glass so he could read the directories. We agree with the district court that the trooper had no obligation to retrieve respondent's reading glasses from his car or to send another officer to do so, and we note that detention centers have no obligation to provide reading glasses in order to satisfy a driver's right to contact an attorney."

"The district court went on to conclude that the trooper 'could have easily assisted [respondent] in vindicating his right to counsel by looking in the phone book and providing [respondent] with the phone number of the attorney [respondent] requested.' Because respondent did not identify the attorney whose phone number he wanted, the trooper should have asked him for the attorney's name. Had the trooper done so, respondent would have either identified an attorney, whose number the state trooper could have looked up, or have been unable to identify an attorney, and, in that case, the state trooper would have had neither the ability nor the obligation to look up a number. While an officer has no obligation to read a driver all or any part of the list of attorneys provided in a directory, there is an obligation under to assist a driver who is unable to read the directory by asking if there is a specific attorney whom the driver wants to call and, if possible, providing the number of that attorney."

Moral Of The Story:  If you have been arrested for a DWI, always ask to speak to an attorney prior to testing!

If you or a loved one are facing a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms for answers to all of your Minnesota DWI and DUI questions.

Monday, December 11, 2017

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Dettmann, which stands for the proposition that the police cannot do an inventory search of a motor vehicle where their primary motivation for the search is the investigation of a crime.

In Dettmann, state trooper Brett Westbrook was patrolling in Pine City, Minnesota and observed a gray vehicle make a quick lane change and move into a parking space in front of the old courthouse. Westbrook ran the vehicle's Wisconsin license plate and learned that the plate was for a Chevy Lumina with suspended registration. However, the gray vehicle Westbrook observed was a Pontiac Bonneville, not a Lumina, prompting Westbrook to pull off the road and wait for the vehicle to drive by him again. A few minutes later, the vehicle drove by and Westbrook followed it. While following the vehicle, Westbrook observed it straddle two lanes of traffic before making a left hand turn. Westbrook activated his lights and siren, and the vehicle drove into a bank parking lot and parked diagonally in the back lot where vehicles are rarely parked.

Westbrook approached the vehicle, and the driver identified himself as appellant Anthony A. Dettmann. Because the license plate on the vehicle was registered to a different vehicle, Westbrook performed a registration check on both the vehicle identification number and the license plate. The vehicle was most recently registered in Minnesota in 2013, to someone other than Dettmann, and there was no stolen vehicle report. Dettmann told Westbrook that he was having trouble transferring the title to the vehicle, and that he had exchanged the license plates from his old vehicle to this vehicle so that he could drive it on the highways. In Wisconsin, as Westbrook later testified, license plates do not follow a vehicle, they follow the owner of the vehicle.

When Westbrook asked for proof of insurance, Dettmann responded that he was unable to provide proof of insurance. Also, when asked for proof of purchase of the vehicle, Dettmann responded that he did not have any paperwork or documentation with him or in the vehicle.   Westbrook was prepared to issue Dettmann citations for driving without a valid driver's license and illegal use of license plates, but had decided not to arrest Dettmann.

Because it was almost 4:30 p.m. and the bank was about to close, Dettmann asked Westbrook if he could go into the bank and cash a check, and Westbrook agreed. While Dettmann was in the bank, Westbrook decided to tow the vehicle because ownership of the vehicle had not been established. Westbrook did not discuss his intention to tow or search the vehicle with Dettmann. After calling for the tow, Westbrook began an inventory search of the vehicle to document items of value. On the front passenger seat, Westbrook discovered a small pouch containing a white crystalline material that later tested positive for 0.063 grams of methamphetamine. He also found a glass pipe in the center console. Westbrook drove his squad car to the bank entrance, and placed Dettmann under arrest when he exited the bank.

Dettmann filed a motion to suppress the drugs, which was denied by the district court.  On appeal, the Minnesota Court of Appeals reversed the district court, noting:

"Inventory searches and "inventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger,' and 'are considered reasonable because of their administrative and caretaking functions.'(citation omitted).  The traditional requirements of a warrant and probable cause are not implicated when police undertake administrative and caretaking functions precisely because such functions are unrelated to criminal investigations."

"However, because an inventory search only occurs after police have taken custody of a piece of property, an inventory search is only reasonable if taking custody of the property was reasonable."

"Two requirements must be met for an impoundment to comply with the Fourth Amendment. First, an impoundment is reasonable only if the state has an interest in impoundment that outweighs the individual's Fourth Amendment right to be free of unreasonable searches and seizures." (citation omitted). The state's interest in impounding an individual's vehicle can outweigh an individual's right when 'public safety is put at risk by leaving the vehicle in place,' or when impoundment is necessary to protect the property from 'unauthorized interference' and protect police from claims related to leaving the property unattended, such as theft."

"The state concedes that the trooper did not have probable cause to believe that Dettmann's vehicle was stolen and that the "vehicle was not impeding traffic or threatening public safety." The state also makes no assertion that, prior to the seizure of Dettmann's vehicle, Dettmann was incapacitated or under arrest. Instead, the state argues that the impoundment of Dettmann's vehicle was proper based on police caretaking authority to protect the owner's property. "This authority arises 'when it becomes essential for [the police] to take custody of and responsibility for a vehicle due to the incapacity or absence of the owner, driver, or any responsible passenger.' Rohde, 852 N.W.2d at 265."

The Minnesota Court of Appeals then correctly held:

"The district court erred because the driver and owner of the vehicle was present and had capacity to take responsibility for the vehicle. When a driver is arrested, police often will need to do something with the vehicle so it is not left unattended for an indeterminate amount of time. Id. at 266. But 'cases in which the driver of a vehicle is arrested are fundamentally different from cases in which the driver remains free.' Id. (emphasis added). When the driver is free, the driver remains responsible for the vehicle, and police have 'no interest in protecting the property from theft or other claims arising from police control of the vehicle.'"

" [T]he the state argues that it could not release the vehicle to Dettmann because he could not prove that he owned the vehicle, and therefore Westbrook was taking responsibility for the vehicle to prevent theft. But, the question is not whether the state can release the vehicle to Dettmann, but whether it had authority to seize it from him in the first place. Because Dettmann claimed he owned the vehicle, the only way the state could believe ownership of the vehicle was in question was by determining that Dettmann's possession of the vehicle was a crime, which places the seizure outside of a community caretaking function and into the realm of criminal investigation—requiring probable cause."

"The state cannot impound and conduct an inventory search of a vehicle where the state's only motive is criminal investigation, and here the state's only motive was investigating whether Dettmann's possession of this vehicle was a crime...The State concedes there was not probable cause to impound the vehicle and on this basis, the impoundment violated the Fourth Amendment."

Moral Of The Story:  If you are not arrested they cannot search your car. 

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

Monday, November 27, 2017

Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Edwardo Rubio-Galarza v. Commissioner of Public Safety (Decided November 27, 2017, Minnesota Court of Appeals, Unpublished), which stands for the proposition that a person's conduct can constitute a "refusal to submit to testing".

In Rubio-Galazara, the Petitioner was arrested for a DWI on August 14, 2016 by the Prior Lake police.  His girlfriend was a passenger in the vehicle and she was cited for minor consumption.  The Petitioner became upset that his girlfriend had been issued a citation and repeatedly questioned the officer as to why she was being charged.  

At the police station, the Petitioner was read the Minnesota Implied Consent Advisory and Petitioner indicated he understood it.  The officer then repeatedly asked the Petitioner if he would submit to a breath test. The officer described Rubio-Galarza as "uncooperative" during this sequence of questioning because he would "try to talk over" the officer and did not provide a straight yes-or-no answer to the officer's repeated question of whether he would submit to a test. At one point, Rubio-Galarza said, "Yes," he would submit to a breath test, "if the officer explained why his girlfriend was being charged. In total, the officer asked Rubio-Galarza whether he would take a breath test approximately 11 times.

The officer explained that he deemed the Petitioner's behavior to be a refusal "because he would not give me a straight answer. I tried to offer him the breath test multiple times, asking him if he would take it, and he repeatedly delayed." The officer agreed that Rubio-Galarza never "specifically said no, I will not take it."   When the officer eventually asked Rubio-Galarza why he was "refusing," Rubio-Galarza answered, "I don't have a reason, I just want you to answer me a question. I just want to know why my girlfriend got a ticket."

The officer never initiated the process to start the breath-test machine, nor did he present Rubio-Galarza with the mouthpiece to blow into the machine. About 15 minutes into the exchange with Rubio-Galarza, the officer handed him a notice and order of license revocation. Upon receiving the order, Rubio-Galarza asserted that he had never refused to take the test.

The Petitioner challenged the license revocation arguing that since he never expressly refused to take the test and since the officer never gave him the opportunity to blow into the machine, he did not "refuse" to submit to testing.  The district court sustained the revocation and on appeal, the Minnesota Court of Appeals upheld the district court, noting that the courts should employ a "totality of the circumstances test" to determine if a refusal has occurred.

In its opinion, the Appellate Court noted: "Refusal to submit to chemical testing includes any indication of actual unwillingness to participate in the testing process, as determined from the driver's words and actions in light of the totality of the circumstances." State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010), review denied (Minn. Mar. 15, 2011). Thus, circumstantial evidence can establish unwillingness to take a test even without a direct statement of unwillingness. If a driver commits actions that frustrate the test, the driver is considered to have refused testing."

"Rubio-Galarza argues that he did not refuse, but rather at most withheld consent, and, he asserts, withholding consent is different from refusing under our decision in State v. Netland. We do not read Netland, which examined the constitutionality of Minnesota's criminal-refusal statute, as altering the standard for determining whether a driver refused to submit to testing. The appropriate inquiry remains whether, under the totality of the circumstances, a driver refused testing by words or actions."

"Rubio-Galarza further argues, though, that the totality of the circumstances does not demonstrate refusal because he did not say, "No," and he was not physically given the opportunity to blow into the machine. He contends that "the only way a law enforcement officer can know if a person is refusing when they have not specifically stated so is by starting the test sequence, presenting the mouth piece to the test subject and giving them the opportunity to provide an acceptable sample within the three-minute window permitted by the testing machine." We disagree. Refusal may be determined by words and actions before the machine is started. See, e.g., State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003) (upholding refusal when driver was uncooperative during the advisory reading)".

Moral Of The Story: It is easier to just say "no".

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

Monday, November 20, 2017

Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Torfin v. Commissioner of Public Safety (Decided November 20, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it does not take much for the police to turn a speeding ticket into a DWI Arrest. 

In Torfin, the Petitioner accelerated quickly from a stop sign and was subsequently stopped by a Victoria Minnesota Police officer after the officer clocked the Petitioner going 57 mph in a 45 miles per hour zone.  After stopping the vehicle, the officer approached the car and asked the Petitioner for his license and insurance.  The Petitioner was cooperative throughout the process. 

The officer could smell the odor of alcohol coming from inside the vehicle. The Petitioner "admitted to having a couple of beers." Petitioner  looked straight ahead and did not maintain eye contact with the officer as the two conversed. The officer moved closer to the car and "took a . . . deep breath from inside the vehicle and detected ... the odor of consumed alcohol." Petitioner again admitted to consuming alcohol before driving that night, and refused to take a preliminary breath test because he did not want to "find himself in trouble."

The officer had Petitioner step from the car to perform four field sobriety tests. Appellant's performance on the tests suggested impairment. The officer then arrested appellant for driving while impaired. A later breath test, not challenged on appeal, revealed excessive alcohol in appellant's system, and his driving privileges were revoked.

The Petitioner filed a challenge to the license revocation arguing that the officer did not have a sufficient basis to expand the stop from the speeding ticket to the performance of field sobriety tests.  The District disagreed and upheld the license revocation and on appeal, the Minnesota Court of Appeals agreed with the district court noting:

"A traffic stop initially supported by reasonable suspicion may be expanded, so long as the expansion is "strictly tied to and justified by the circumstances which rendered the initiation of the stop permissible." State v. Asherooth, 681 N.W.2d 353, 364 (Minn. 2004) (quotations omitted). Justification comes from "(1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry v. Ohio." State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012) (discussing the scope of a traffic stop under Minn. Const, art. I, § 10). Reasonable suspicion for the expanded stop must be based on "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion."

"Minnesota courts have articulated several bases on which an officer may permissibly expand the scope of a traffic stop to investigate a driver's possible intoxication. Some indicators of intoxication include the odor of alcohol, slurred speech, glassy eyes, and poor balance."

"We apply the rule of law identified in State v. Wiegand to the evidence here, that is:
"the reasonableness requirement of the Fourth Amendment and Article I, Section 10 of the Minnesota Constitution to limit the scope of a Terry investigation to that which occasioned the stop, . . . and to the investigation of only those additional offenses for which the officer develops a reasonable, articulable suspicion within the time necessary to resolve the originally-suspected offense."

"Here, the officer initially stopped appellant's car for speeding but, given the hour and the driver's aggressive acceleration, the officer suspected from the outset that this might be a drunk driver. Upon approaching the car, the officer could smell consumed alcohol, appellant admitted to drinking alcohol before driving, and appellant stared straight ahead while the two talked. The officer expanded the stop to determine whether the driver was impaired only after having developed a reasonable suspicion of impairment. The officer expanded the stop based on a number of factors including driving conduct, odor of alcohol, admitted consumption of alcohol, and appellant's somewhat unusual behavior in avoiding eye contact. Considering the totality of the circumstances, the evidence in the record supports the district court's determination that the officer had reasonable, articulable suspicion of impaired driving when he expanded the traffic stop to include field sobriety tests."

MORAL OF THE STORY: If you are going to drink and drive you should abide by the remaning traffic laws!

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

Monday, November 13, 2017

Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Johnson (decided November 13, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that while it is good to go to school, you may not want to park in its lot, late at night when you are drunk!

In Johnson, police officer Bahl testified that she started working as an officer for the Chaska Police Department on April 11, 2016, and was still in training on June 7. She testified that at approximately 11:52 p.m. on June 7, she was traveling southbound on Minnesota Highway 41 in a marked squad car with Officer Rob Moore who was training her. She noticed a vehicle parked on school property by the stop sign for the entrance to the Chaska Elementary School with its headlights extinguished. She testified that it was late at night, school was not in session, and the vehicle should not have been there.

Officer Bahl completed a U-turn to return northbound on Highway 41 to investigate the vehicle. When she approached the entrance to the elementary school, Officer Bahl observed "[t]hat the vehicle had turned and parked [facing westbound] with all the lights off kind of crooked between where you can either go to the elementary school or come back out towards westbound Highway 41." She did not see the vehicle move. She testified that the road the vehicle was parked on only allows access to the schools, so it is not a place that vehicles would usually park. Officer Bahl noted that there were not any parking spaces near the vehicle and that there were no cars in the school's parking lot. She also noted that there was no indication that there was an event happening at the school, and that there are no nearby residences or businesses that the vehicle could have been associated with.

Officer Bahl first approached the parked vehicle in her squad car without her emergency lights activated. The vehicle's headlights then came on, and it started moving westbound toward Highway 41. Officer Bahl then activated her emergency lights, and the vehicle pulled over at the stop sign before Highway 41. The Defendant was subsequently arrested for a DWI.

The Defendant moved to suppress all of the evidence arguing the officer did not have a sufficient constitutional basis to make the initial stop of his vehicle.  The District Court denied the motion to suppress and on appeal, the Minnesota Court of Appeals agreed.

The Court of Appeals noted in its opinion:

"The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. However, a law enforcement officer may temporarily detain a person that he or she suspects has engaged in criminal activity if "the stop was justified at its inception by reasonable articulable suspicion, and ... the actions of the police during the stop were reasonably related to and justified by the circumstances that gave rise to the stop in the first place."

"Here, under the totality of the circumstances, there is evidence in the record that appellant was sitting in a parked vehicle with the headlights extinguished in a high-crime area, then turned on the headlights and started to leave the area after seeing a squad car. It was not error for the district court to conclude that appellant's conduct was evasive or that it contributed to the officers' reasonable articulable suspicion to support the traffic stop."

"Furthermore, in addition to finding that appellant's behavior was evasive, the district court relied on the location of appellant's vehicle, the time of night, and Officer Moore's knowledge of criminal activity in the area. The court found that the officers testified credibly that because of the vehicle's unusual location, its extinguished headlights, the lack of light inside the vehicle, its movement from one side of the frontage road to the other, and its presence in an area that was considered to be high-crime on a summer night, they became suspicious of the vehicle. Under the totality of these circumstances, the officers had reasonable articulable suspicion to stop the vehicle even without a finding that it engaged in evasive conduct."

Moral Of The Story:  A stopped vehicle is easy pickings for the police!

If you or a loved one are facing a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms for answers to all of your Minnesota DWI and DUI questions.

Monday, October 30, 2017

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Xiong (Decided October 30, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you do not challenge in the district court a police officer's qualifications to make a DWI arrest, the issue is waived for appeal.

In Xiong, Minnesota State trooper Krause was driving west on Highway 94 near Snelling Avenue in St. Paul. Trooper Krause noticed a vehicle in the right adjacent lane, about 40 feet away. Trooper Krause observed the vehicle swerve into its right adjacent lane, and both of its driver's side tires crossed over the dotted lane line. Trooper Krause slowed her squad car to continue to monitor the vehicle's operation and manually turned on her in-car camera.

Trooper Krause activated her emergency lights and initiated a traffic stop. After the vehicle pulled over, Trooper Krause exited her squad car, and approached the vehicle.  Trooper Krause asked Xiong how many drinks she had consumed. Xiong "stuttered a little" and, after additional questioning, indicated that she had had two drinks. Trooper Krause asked Xiong to get out of the vehicle so Trooper Krause could determine whether it was safe for Xiong to drive. Trooper Krause administered field sobriety tests, and Xiong performed poorly on the tests. Xiong submitted to a preliminary breath test, which registered a 0.134 alcohol concentration.  Ms. Xiong was placed under arrest and was subsequently charged with a Third Degree DWI.

Xiong moved to suppress the evidence supporting the charge, arguing that she was "unlawfully seized without reasonable, articulable suspicion of criminal activity, and her seizure was expanded without lawful justification." The district court held a hearing on Xiong's suppression motion and allowed defense counsel to submit a written memorandum.

Xiong's attorney submitted a memorandum arguing, in part, that the state did not present evidence that Trooper Krause was a licensed peace officer and therefore did not establish that she was authorized to conduct the traffic stop and DWI investigation in this case. 

The district court refused to consider this issue, concluding that it was waived because it was "not clearly presented or litigated at the motion hearing." The district court noted that at the beginning of the hearing, Xiong identified the issues to be addressed as "the basis for the stop, the expansion of the stop into a DWI investigation, the necessity of a warrant for alcohol concentration testing, and the violation of [her] due process rights." The district court further noted that Xiong did not argue that Trooper Krause was not a licensed peace officer until after the motion hearing, when Xiong submitted her supporting memorandum.

On appeal, Xiong argued that the state presented no evidence that Trooper Krause was a licensed peace officer and so she had no power to conduct a traffic stop or a DWI investigation. The Minnesota Court of Appeals, however, held that the issue has been waived, stating:

"This court generally does not decide issues that were not determined in the district court, State v. Smith, 876 N.W.2d 310, 335 (Minn. 2016), and we will not do so here. Moreover, issues that are not briefed on appeal are waived. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). Because Xiong does not argue that the district court erroneously concluded that the licensing issue was waived, we do not consider reversing and remanding for the district court to decide this issue."

"Trooper Krause testified that she is a "sworn officer" with the Minnesota State Patrol and has made over 150 DWI arrests. In fact, Xiong does not claim that Trooper Krause was unlicensed; Xiong merely complains that the state failed to present evidence regarding the trooper's licensing status. There is little reason to believe that the state would not have been able to prove that Trooper Krause was a licensed peace officer had the issue been raised at the motion hearing."

Moral Of The Story: If you do not raise it, you lose it!

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

Sunday, October 29, 2017

Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: Should I submit to chemical testing if this is my first DWI?

I answer telephone calls 24 hours a day for people who have been placed under arrest for DWI.  And I am often asked by the person under arrest if they should submit to testing.  Most people have never been arrested before and they do not know if they should take a chemical test (breath, blood or urine) at the police station.  

The answer is: it depends!

Most people will test between .08% and .16% alcohol concentration level.  For those people, taking the test is the correct choice as they would then be charged with a misdemeanor offense with a maximum punishment of 90 days in jail and a $1,000.00 fine.  Their license revocation period would be for 90 days with a limited license after 15 days.  

If, on the other hand, the person refuses to submit to testing, the penalty is a gross-misdemeanor with a maximum punishment of one year in jail and a $3,000.00 fine. The license revocation period is for one year with a limited license after 15 days.

If, however, the person under arrest knows that their preliminary breath test (PBT) was over .16%, then taking the test may not be in their best interest.

If a person tests a 16% or more alcohol concentration level at the police station, then the penalty is a gross misdemeanor (the same as a refusal) but the license revocation is for one year and the person is not eligible for a limited license.  In addition, the plates on any vehicle registered to the offender must be impounded and the only way a person can thereafter legally drive is with an interlock device installed on their vehicle and all of their vehicles must have "whiskey plates".

Plate impoundment does not occur on a first time refusal.

In addition, if a person enters a guilty plea to the refusal charge, the license revocation period is cut to 90 days and if the case is reduced to a misdemeanor DWI, the license revocation is further reduced to 30 days. This benefit is not available to a first time 16% (or more) offender.

In other words, say the offender tests at .16% at the police station and the case is reduced by the prosecutor to a misdemeanor DWI: The offender still has to do the one year license revocation and the plate impoundment, with whiskey plates, would also still be in effect for one year even though the criminal charges were reduced.

I will never tell a potential client to refuse to submit to testing. but I will advise the client of the consequences of their decision to allow them to make an informed choice on testing.

This is why it is very important for an individual arrested for a DWI to exercise their right to counsel prior to testing so that they are aware of all of the consequences of their decision to submit to testing.

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

Thursday, October 12, 2017

Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Carson (Decided October 11, 2017, Minnesota Supreme Court) which stands for the proposition that if a dangerous substance is not listed as a "hazardous substance" in the DWI statute, a person under the influence of the substance may not be convicted of a DWI.

In Carson, the Defendant was arrested three times for DWI.  Each time she was arrested, her blood or urine was found to contain the chemical 1,1-difluoroethane (DFE).  It appears that the Defendant would purchase cans of compressed air which contain DFE as a propellant and she would get high by inhaling, or "huffing" the chemical.

In three separate cases, respondent State of Minnesota charged Carson with two counts of third-degree DWI, Minn. Stat. §§ 169A.20, subd. l(2)-(3), 169A.26 (2016)—one for operating a motor vehicle while under the influence of a hazardous substance and one for operating a motor vehicle while under the influence of a controlled substance. Carson filed a motion to dismiss the hazardous-substance DWI charges because she claimed, in part, that there was insufficient evidence that she was under the influence of a "hazardous substance" as defined in Minn. Stat. § 169A.03, subd. 9.

During a contested omnibus hearing, a forensic scientist testified that DFE is "a propellant commonly seen in cans . . . usually found in products used to clean keyboards on computers." The scientist explained:

[DFE] is commonly seen in a product called Dust-Off It is commonly abused as an inhalant simply because it is easy to obtain and you don't need to be a particular age to acquire it or purchase it, and it will produce a pretty rapid high, as well.

The abuse comes from inhaling, whether it be through a small tube . . . or . . . a bag that is held over the nose and mouth of the person ....

It is flammable .... [T]he can is under pressure so there is a hazard. . . .

If it is inhaled ... it can [cause injury].

The district court found that the characteristics of DFE made it a hazardous substance under the DWI statutes and denied Carson's motion to dismiss.  The Minnesota Court of Appeals affirmed the district court but the Minnesota Supreme Court reversed, noting:

"In Minnesota, it is a crime to drive, operate, or be in physical control of a motor vehicle while "the person is knowingly under the influence of a hazardous substance that affects the nervous system, brain, or muscles of the person so as to substantially impair the person's ability to drive or operate the motor vehicle." Minn. Stat. § 169A.20, subd. 1(3) (emphasis added). Hazardous substance, in turn, is defined as "any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health)." Minn. Stat. § 169A.03, subd. 9 (emphasis added)."

"Chapter 5206 contains a specific rule on hazardous substances, which includes a "[l]ist of hazardous substances" in alphabetical order."
"Carson contends that Minn. R. 5206.0400, subp. 5, is the only list of hazardous substances in the applicable rules, and that this list does not include DFE. The State argues that Minn. R. 5206.0400 acknowledges that the list of hazardous substances in subpart 5 of the rule is "illustrative" and "does not include all hazardous substances." As a result, the State contends that Minn. R. 5206.0100, subp. 7(B), contains "a list of characteristics which, if possessed, would make a chemical or substance or a mixture ... a hazardous substance." According to the State, DFE meets the definition of a hazardous substance under Minn. Stat. § 169A.03, subd. 9, because it "possesses a number of characteristics listed under Minn. R. 5206.0100, subp. 7(B)."

In rejecting the State's position, the Minnesota Supreme Court correctly held:

"If the Legislature had wanted to criminalize the operation of a motor vehicle while knowingly under the influence of any substance that meets the definition of a hazardous substance for purposes of the occupational safety and health rules, it knew how to do so and could have done so explicitly by using a phrase like "has the meaning given." The statutory language plainly demonstrates that the types of hazardous substances that can give rise to a driving-while-impaired conviction are limited to those substances specifically listed in Minn. R. 5206.0400, subp. 5."

"We acknowledge that based on our holding today, a driver dangerously intoxicated by DFE is not criminally liable under the plain language of the current DWI statutes. The dissent argues that the Legislature could not have intended this outcome. In other words, the dissent concludes that the Legislature could not have intended to criminalize the operation of a motor vehicle while the driver is knowingly under the influence of only those chemical compounds that are explicitly listed as hazardous substances under the occupational health and safety rules. But "[fjhis public policy concern should be directed to the Legislature because we must read this state's laws as they are, not as some argue they should be."

Moral Of The Story: Everyone Is Entitled To Know Beforehand If Their Conduct Is Illegal.

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