Monday, August 21, 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The Minnesota DWI Case Of The Week is State v. Donarski (Decided August 21, 2017, Minnesota Court of Appeals, Unpublished), which stands for the proposition that the basis for an initial stop is an objective test and not what the officer subjectively believes. Duh! Otherwise, the police could stop anyone whenever they have a subjective feeling that they should.

In Donarski, the facts are great:  On July 1, 2015, at approximately 12:32 a.m., Officer Kenneth Dionne received a call from dispatch reporting a "suspicious vehicle" that had been "parked in or near the complainant's driveway" for approximately 15 minutes. The vehicle's headlights and taillights were on, but the complainant did not see anybody in the vehicle. The complainant provided a license-plate number, which the dispatcher ran and found that the vehicle was registered to appellant Melissa Ann Donarski.

Officer Dionne knew the complainant's name and the address. As the officer approached the area, a rural and lightly traveled region, he observed the vehicle moving southbound and then turn eastbound onto County Road 23, which goes through Tabor Township. Officer Dionne observed the vehicle moving very slowly, ten or twenty miles an hour. Officer Dionne also saw the vehicle's brake lights come on several times; the vehicle appeared to "slow[] down randomly," and its reverse lights came on one time.

When Officer Dionne reached Tabor, Donarski's vehicle was no longer on the county road; rather, the vehicle was traveling on a dike, a grass-covered area that is 3 or 4 feet high and approximately 15 feet wide. The dike is not for public use, it is not paved, it has no street lights, and it is not marked with any signage.   The dike has some vehicle tracks from moving farming machinery. The purpose of the dike is to keep water out of Tabor, which is on the north end of the dike, a "large ditch that is filled with water during the flooding season" is to the south. Officer Dionne has patrolled through Tabor approximately 500 times and has never seen anyone drive on the dike.

Officer Dionne then stopped Ms. Donarski and subsequently placed her under arrest for DWI. Ms. Donarski moved to suppress the test results and dismiss the charges in the district court, arguing that Officer Dionne lacked a reasonable, articulable suspicion of criminal activity to stop her. Following a hearing, the district court denied Donarski's motion, concluding that, while no single factor provided reasonable suspicion, Officer Dionne had reasonable suspicion to stop Donarski based on all of the circumstances.

On appeal, Donarski argued that her seizure was unconstitutional because Officer Dionne failed to state a subjective reasonable suspicion for the seizure.  but the Minnesota Court of Appeals rightly rejected her argument noting:

"Contrary to Donarski's assertion, an officer's suspicion must satisfy an objective test, rather than a subjective test. See State v. Smith, 814 N.W.2d 346, 351 (Minn. 2012) ("To be reasonable, the basis of the officer's suspicion must satisfy an objective, totality -of-the-circumstances test."). This objective test requires consideration of whether '"the facts available to the officer at the moment of the seizure [would] warrant a man of reasonable caution in the belief that the action taken was appropriate.' State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (quoting Terry, 392 U.S. at 21-22, 88 S. Ct. 1880)."

"The district court determined that no single factor provided reasonable suspicion to conduct a stop. But an officer may have reasonable suspicion to conduct an investigatory stop based on a combination of factors even when no single factor alone would justify a stop. Terry, 392 U.S. at 22, 88 S. Ct. at 1880-81. The district court here correctly assessed the totality of the circumstances in concluding that, when combined, the facts sufficiently supported an objective determination of reasonable suspicion."

Moral Of The Story:  If you are going to drive drunk, it might be a good idea to stay on the road.

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.

Monday, August 14, 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 McIntyre v. Commissioner of Public Safety (Decided July 14, 2017, Minnesota Court Of Appeals, Unpublished) which stands for the proposition that "close is good enough for government work"!

In McIntyre, the Petitioner was arrested for DWI and taken to the Savage police department for breath testing.  Ms. McIntyre provided two breath samples that were accepted by the testing machine. The first sample reported 0.087 alcohol concentration, and the second sample reported 0.080.   Because under the testing procedure, the lower of the two samples, rounded down, is the final reported value, Mclntyre's testing showed a final result of 0.08.

Ms. McIntyre filed a challenge to the license revocation arguing that the test result was not sufficiently accurate to find that she was over the legal limit.  An employee of the Bureau of Criminal Apprehension's breath lab testified for the defense that uncertainty ranges may be applied to the average of the two DataMaster testing results. She testified that with Mclntyre's test results, there was an 81.92 percent possibility that her test result was over 0.08.

The district court found that the implied consent statute did not require consideration of the margin of error for breath test results; that Mclntyre had supplied two breath tests, each with a blood alcohol content exceeding 0.08; and that the test was properly administered on a machine that had passed diagnostic and control tests. 

On appeal, Ms. McIntyre argued that the testing was unreliable because of the uncertainty measurement calculations applied.  Unfortunately, the Minnesota Court of Appeals disagreed with her argument stating:

"Mclntyre points out that the BCA expert testified that an uncertainty range was applied to the average of the two testing results, and the average of Mclntyre's two samples was 0.0835, which would mean an actual range of 0.0736 to 0.0934. But Mclntyre's argument based on the uncertainty range of testing is similar to alleging that alcohol concentration must be proved within a certain margin of error. We have held, in assessing the results of an alcohol testing instrument, that '[t]he Commissioner of Public Safety is not required to prove an alcohol concentration . . . within some alleged margin of potential error.' Dixon v. Comm'r of Pub. Safety, 372 NW.2d 785, 786 (Minn. App. 1985).  We agree with the district court that Mclntyre's argument based on the uncertainty range fails. We also note that the BCA expert testified that a probability had been calculated for Mclntyre's test results, and the possibility that her test result was over 0.08 was 81.92%. This is sufficient to meet the preponderance-of-the-evidence standard applicable in implied-consent hearings."

Moral Of The Story: Never have one for the road as it is likely to put you over the legal limit.

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.

Tuesday, August 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. Jensen (Decided August 7, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that swearing can help justify a seizure by the police.

In Jensen, a Hopkins police officer saw a vehicle stopped in the middle of an intersection.  Both doors of the vehicle were open and he observed the driver, Camille Jensen, kneeling over her friend, who was lying on the ground.  As the officer approached the car, he saw Jensen helping her friend into the passenger seat.  The officer saw vomit on the ground and he heard one of the people say, "Fuck, is that the cops?"  The officer asked both occupants for identification and he detected indicia of intoxication coming from Ms. Jensen, including the strong odor of alcohol, slurred speech and watery eyes.

After failing field sobriety tests and a preliminary breath test, Ms. Jensen was placed under arrest and subsequently tested at .20 on the Data Master Machine at the police station.  Jensen moved to suppress the evidence claiming the police had no basis to ask for identification and any subsequent observations/evidence must be suppressed.

The District Court denied the motion to suppress determining that Jensen was not improperly seized because her act of parking in the middle of an intersection was sufficient to justify an investigatory stop. The court further ruled that the car's location, coupled with Jensen's presence with a drunk friend at that time of the morning and the  overheard statement of "Fuck, is that the cops?" also provided the officer with reasonable suspicion that Jensen was engaged in criminal activity.

The Minnesota Court of Appeals affirmed the District Court noting:

"Not all encounters between the police and citizens constitute seizures: Persons found under suspicious circumstances are not clothed with a right of privacy which prevents law-enforcement officers from inquiring as to their identity and actions. The essential needs of public safety permit police officers to use their faculties of observation and to act thereon within proper limits. It is not only the right but the duty of police officers to investigate suspicious behavior, both to prevent crime and to apprehend offenders."
"But if a police officer requests identification and asks the driver to leave a vehicle, the officer must have specific and articulable facts which, together with reasonable inferences from those facts, reasonably warrant the intrusion."

In this case, "the totality of circumstances here supported a reasonable basis for Officer Cady to suspect criminal activity. When Officer Cady encountered Jensen's vehicle at 1:41 a.m., it was parked in the middle of an intersection, and both occupants had left the vehicle. The passenger was admittedly intoxicated, had vomited, and needed a ride home. One of the two vehicle occupants uttered an expression of dismay at the presence of police. From these facts, Officer Cady could reasonably suspect the following criminal activity to support his asking Jensen for identification: (1) Jensen may have violated the law by parking her car in the middle of an intersection; (2) the time of night, the choice of location to stop a vehicle, the admitted inebriation of the passenger, and the expletive-filled expression of dismay at realizing they had been noticed by police suggested that Jensen could be under the influence; and (3) the expression of dismay, alone, was suggestive of some sort of nefarious conduct. Based on the totality of these circumstances, we conclude that the district court did not err by denying Jensen's motion to suppress the evidence obtained after she was asked for identification."

Moral Of The Story:  It is never a good idea to swear when the police draw near!

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.