Tuesday, May 30, 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The Minnesota DWI Case Of The Week is Kokosh v. $4657 U.S. Currency (Decided May 30, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that in any forfeiture challenge (including Minnesota DWI vehicle forfeitures) the opposing party must be personally served or acknowledge in writing that they have received the forfeiture complaint in the mail.

The Kokosh case arises from the seizure and administrative forfeiture of $4,675 and a 2000 Lincoln LS automobile by the Minnesota State Patrol.  The state patrol personally served Mr. Kokosh with a copy of the notice of seizure and intent to forfeit the property.

On August 6, 2015 Mr. Kokosh's attorney filed a complaint for judicial determination of the forfeiture in Washington County District Court and he attempted to electronically serve the County Attorney's office but encountered some technical difficulties.  Mr. Kokosh's attorney was subsequently informed that the complaint was successfully filed and that the county would be served electronically as well. Believing that he had satisfied the requirements for service of process, Kokosh mailed a copy of the complaint to the county and the state patrol, but did not include an acknowledgement of service. The county never acknowledged service of Kokosh's complaint.

On November 19, the county filed a motion to dismiss for lack of subject-matter jurisdiction based on Kokosh's failure to timely serve a complaint pursuant to Minn. R. Civ. P. 4.05. The district court agreed and dismissed Kokosh's case for lack of subject-matter jurisdiction.

On Appeal, the Court of Appeals affirmed the District Court, noting:

"Jurisdiction to hear a demand for judicial determination of forfeiture attaches when an owner of the affected properly makes a timely demand that meets statutory requirements. Strict compliance is required, and if the owner of the affected property fails to properly serve the demand for judicial determination, no forfeiture action is commenced, and the district court lacks subject-matter jurisdiction to address the matter."

"The administrative forfeiture statute provides the means by which a claimant may challenge the forfeiture. Specifically, a claimant may file a demand for judicial determination of forfeiture within 60 days following service of the notice of seizure and forfeiture of properly. Minn. Stat. § 609.5314, subd. 3(a). 'The demand must be in the form of a civil complaint,' and must be filed with the court administrator 'together with proof of service' on the county. Id. Service on the county is by 'any means permitted by court rules.' Id. We conclude that, because it is a complaint that must be served on the opposing party in order to commence the civil in rem action, Minn. R. Civ. P. 4 is the only rule that applies. See id., subd. 3(b) ('[A]n action for the return of property seized under this section may not be maintained ... unless [claimant] has complied with this subdivision.')"

"The Minnesota Rules of Civil Procedure have a bifurcated system for service with different requirements for service of documents that commence an action and service of documents after an action has already been initiated. See In re Skyline Materials, Ltd., 835 NW.2d 472, 475-76 (Minn. 2013) (explaining difference between rule 4 and rule 5)."

"Service of a complaint when commencing an action must be completed by: (1) personal service under rule 4.03; (2) publication under rule 4.04; or (3) U.S. mail under rule 4.05. When serving a party by mail, service is complete "at the date of acknowledgment of service." Minn. R. Civ. P. 3.01(b). The rules of civil procedure do not allow for electronic service of a complaint 'unless consented to by the defendant either in writing or electronically.'"

"After Kokosh unsuccessfully attempted to electronically serve his complaint, he then attempted service by mail rather than by publication or personal service. As a result, service by mail under rule 4.05 is applicable here. Service by mail requires strict compliance and is not effective if the acknowledgment is not signed and returned. See Coons v. St. Paul Cos., 486 N.W.2d 771, 776 (Minn. App. 1992), review denied (Minn. July 16, 1992). It is uncontested that Kokosh's initial mailing to the county did not include an acknowledgment of service. Therefore, Kokosh's attempted service by mail was ineffective."

"We hold that service of a demand for judicial determination of forfeiture must be completed according to specifically Minnesota Rule of Civil Procedure 4 and not Rule 5, unless electronic service is consented to by the opposing party. Kokosh did not satisfy the service requirements of the rules of civil procedure, and the county did not consent to electronic service. Accordingly, the district court did not err in dismissing this matter due to lack of subject-matter jurisdiction."

This case is important as it makes clear that any Minnesota forfeiture (including any Minnesota DWI vehicle forfeiture) is subject to the strict service requirements of a civil action and the failure to comply with the rules will result in the dismissal of the vehicle forfeiture challenge. 

Moral Of The Story:  If you want to succeed at the game, you have to know the rules!

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, May 8, 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. Voss (Decided May 8, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you assault someone and then drive away drunk, the two crimes are not a part of the "same behavioral incident".

In Voss, Maple Grove Police Officer J.R. Ohnstad received a report of an assault in the City of Maple Grove. When Officer Ohnstad arrived at the address to investigate the report, he saw that the victim's lip had started to swell and change color. The victim stated that he was driving home when he noticed a driver tailgating him. The victim reported that the tailgating driver displayed his middle finger while continuing to follow him. The victim described the driver as a white male, with a crewcut, and reported that the man was driving a white Chevy Silverado with military plates.  As the victim turned onto a side street to reach his home, the tailgating driver did not follow him, and instead drove past him. The tailgating driver then did a U-turn and drove in the direction of the victim's neighborhood. As the victim parked his car in his driveway and stepped out of his vehicle, the other driver parked the Chevy Silverado behind the victim's car and stepped out of the truck. The driver punched the victim in the face, knocking him to the ground. The driver then raised his fist and approached the victim's mother—who had emerged from the victim's house—as if he intended to hit her, but instead returned to his vehicle and drove away.

Sergeant Steve Sarazin of the Rogers Police Department heard the dispatch report over the police radio. Within four miles of the assault and several minutes after the report, Sergeant Sarazin saw a white male with a crewcut driving a white pickup truck with military plates. Sergeant Sarazin noted the similarities to the dispatch description and stopped the white pickup truck to question the driver, who police later identified as Voss. Sergeant Sarazin noticed several indicia of intoxication, including a strong odor of alcohol, slurred and deliberate speech, and glassy eyes. As he continued to speak to the driver, a Maple Grove police officer arrived on the scene with the victim, and the victim positively identified the driver as the individual who punched him.

The City of Rogers charged Voss with two counts of driving while impaired. In a separate complaint, the City of Maple Grove charged Voss with three counts of misdemeanor assault (counts I-III), one count of disorderly conduct (count IV), and one count of careless driving (count V). Voss pleaded guilty to the City of Rogers' fourth-degree driving-while-impaired charge and sought dismissal of the City of Maple Grove's remaining charges.   At the omnibus hearing, Voss argued that allowing the City of Maple Grove to charge counts I-V would result in serialized prosecution, in violation of Minn. Stat. § 609.035.

The district court dismissed the remaining charges because the court found that they arose from the same behavioral incident.

On appeal by the State, the Minnesota Court of Appeals reversed the District Court, noting:

"Minnesota Statutes section 609.035 bars multiple punishments for offenses that arise from the same behavioral incident. Minn. Stat. § 609.035, subd. 1 ("[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them."). When a person is charged with multiple offenses, a district court must examine the offenses charged to determine whether they "resulted from a single behavioral incident." State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 524 (1966). In these instances, multiple prosecutions are strictly prohibited to 'protect a defendant convicted of multiple offenses against unfair exaggeration of the criminality of his conduct.' State v. Norregaard, 384 N.W.2d 449, 449 (Minn. 1986)."

"Minnesota law provides two separate tests for determining whether multiple offenses arose from the same behavioral incident. State v. Bauer, 792 N.W.2d 825, 827-28 (Minn. 2011) {Bauer II). The first test applies only if the offenses at issue are multiple intentional crimes; the second test applies when the challenged offenses include both intentional and nonintentional crimes. Bauer I, 776 N.W.2d at 478. We agree with both parties that the second test applies. Under the second test, Minnesota courts consider whether the offenses "(1) occurred at substantially the same time and place and (2) arose from a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment." Id. (quotation and citation omitted)."

"With regard to the first part of this test, the district court correctly found that the two offenses 'occurred at substantially the same time and place.'...With regard to the second portion of the test, the driving-while-impaired offenses and the assault-related offenses did not arise from "a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment." Bauer I, 776 N.W.2d at 478 (quotation and citation omitted). In this case, Voss engaged in at least two entirely separate offenses. Voss committed the first offense, assault, when he parked his vehicle in the victim's driveway, exited his truck, approached the victim, and punched the victim in the face, knocking the victim to the ground. Voss then stepped back into his truck and drove away. When Sergeant Sarazin stopped Voss to investigate the assault report, he noticed several indicia of intoxication and, after Voss failed the sobriety testing, the City of Rogers charged Voss with driving while impaired, the second offense. The record conclusively shows that Voss engaged in two separate and distinct offenses— driving while impaired and assault. "

"Because the remaining counts did not arise from a single behavioral incident, and because the City of Rogers and the City of Maple Grove were entitled to bring subsequent prosecutions in separate jurisdictions due to the nature of the offenses, we reverse."

Moral Of The Story: There is nothing worse than a mean drunk!

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

Monday, May 1, 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. Dhimbil (Decided May 1. 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that sometimes it is okay to ask if another witness is lying.

In Dhimbil, appellant and two other individuals were traveling westbound on Highway 94 in a silver Toyota Camry registered to appellant.   A witness, J.R., saw appellant's car "[d]riving out of control," making "very sporadic turns," driving at excessive speeds, and making "quick lane changes, even into almost the ditch." J.R. called 911 to report the incident. While on the phone with the 911 dispatcher, J.R. saw appellant's car "spin out, potentially even hit the median barrier, and spin and go into the ditch." J.R. saw appellant exit from the driver's side of the car, while the two passengers exited from the passenger's side. Minnesota State Patrol Trooper Jim Swanson responded to the emergency call and, upon arriving at the scene, saw appellant's car in the ditch and the car's three occupants standing on the side of the road.

Swanson noticed that appellant was leaning heavily on the two other individuals for support and smelled of alcohol. One of the passengers told the officer that appellant had been driving the car. Swanson asked the three men if they were wearing seat belts, and asked to see their shoulders to check for seat-belt marks. Appellant had marks on his upper left chest and shoulder, indicating that he was seated in the front driver's side of the car. Swanson then conducted field sobriety tests, which appellant failed, and administered a preliminary breath test, which revealed an alcohol concentration of 0.256. Based upon his training and experience, Swanson concluded that appellant was driving while impaired. 

The appellant was convicted of DWI and on appeal, alleged that the prosecutor committed misconduct by asking the appellant if the state's witnesses were lying when they identified the appellant as the driver of the vehicle.  The following exchange occurred at trial:

THE PROSECUTOR: Sir, you told [the officer] that there was a fourth person who was driving the car, correct?

THE DEFENDANT: I never did.

THE PROSECUTOR: So, sir, your testimony here today is that [the officer] lied to us yesterday when he was here in the courtroom?


THE PROSECUTOR: Sir, you're claiming before this jury that everything that your friend Hassan Osman said yesterday in front of this jury was a lie? Yes or no?

THE DEFENDANT: Yes, he did. He lied.

The Minnesota Court of Appeals rejected the appellant's contention stating:

"Were they lying"  questions  generally "have no probative value  and are improper and argumentative because they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence." State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999).  But Minnesota has not adopted a "blanket rule of law" prohibiting such questions because "[situations may arise where 'were they lying' questions may have a probative value in clarifying a particular line of testimony, in evaluating the credibility of a witness claiming that everyone but the witness lied or [where] the witness flatly denies the occurrence of events."  Id.   "[S]uch questions are permitted when the defendant [places] the issue of the credibility of the state's witnesses in central focus." State v. Morton, 701 N.W.2d 225, 233 (Minn. 2005) (quoting Pilot, 595 N.W.2d at 517); see also State v. Leutschaft, 759 N.W.2d 414, 422 (Minn. App. 2009) (noting that the "central focus" test applies when the defense expressly accuses opposing witnesses of fabrications or falsehoods)."

"We determine that the prosecutor's questions were not improper because appellant placed witness credibility squarely in issue. Appellant testified during cross-examination that the state's witnesses were lying.  The defense counsel asserted, in both his opening statement and closing argument, that testimony from the state's witnesses was 'coerced.'" 

The Court of Appeals, therefore, affirmed the District Court as the appellant chose to place the credibility of the state's witnesses directly in issue.

Moral Of The Story:  If you are going to accuse a witness of lying, don't be shy about it!

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.