Tuesday, April 7, 2020

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

The Minnesota DWI DWI Case Of The Week is State v. Permann (Decided April 6, 2020, Minnesota Court of Appeals, Unpublished), which stands for the proposition that a prior conviction need only be established by competent and reliable evidence.  Permann also shows what can happen when a person can't keep their mouth shut.

In Permann, the Defendant was on probation and at a meeting with his probation officer, Mr. Permann mentioned he had used methamphetamine "two days prior".  Permann also told the agent that he had driven to her office. 

The agent told Mr. Permann that he would be taken into custody for violating his probation and Mr. Permann asked if he could make arrangements for his sport utility vehicle, parked outside.

At the jail, Mr. Permann was read his Miranda rights and the Defendant gave a recorded statement stating he drove his black Ford Bronco to the probation agent’s office for a scheduled meeting. When asked how many DWIs he had in the past ten years, the Defendant stated he had three prior  DWI offenses. 

The police obtained a search warrant and Permann gave a urine sample, which was sent to the Bureau of Criminal Apprehension (BCA) and tested positive for methamphetamine. The state subsequently charged Mr. Permann with Felony DWI alleging he had 3 priors within the past 10 years.  

At trial, in addition to the testimony, the state offered three exhibits to prove the existence of the prior DWI offenses:
Exhibit six was a certified “true and correct copy from the records of the Driver and Vehicle Services Division” of the Department of Public Safety (DPS) of a 2009 notice and order revoking Permann’s license for DWI (2009 notice and order of license revocation).
Exhibit seven was certified as “a true copy of the original record in [the] custody” of the Olmsted County Court Administrator of the September 28, 2012 court minutes showing Permann’s DWI conviction (2012 court minutes). Exhibit eight was a certified copy of a 2015 warrant of commitment from Dakota County showing Permann’s DWI conviction.

The Defendant was convicted of Felony DWI and on appeal he argued that the state failed to offer sufficient evidence establishing two of the three qualified prior impaired driving incidents committed within the ten years before his 2018 DWI. On appeal, Permann did not challenge the admissibility of exhibit eight, (the 2015 warrant of commitment for a DWI), but argued that exhibits six and seven were insufficient to sustain his first-degree DWI conviction.

The Court of Appeals rejected the Defendant's challenge, stating:

"First, Permann argues that exhibit six is insufficient to prove a qualified prior impaired driving incident because the 2009 notice and order of license revocation was appealable. Because the state failed to offer a “final notice of revocation,” Permann argues that the state failed to prove his license was revoked. The state responds that the prosecution can use “competent and reliable evidence” to prove a license revocation."

"Permann cites no legal authority to support his argument that the state had to prove that his 2009 license revocation was not overturned on appeal. And Permann does not even claim that he sought judicial review of his 2009 license revocation. A license revocation is effective when the commissioner of public safety, or a peace officer acting on the commissioner’s behalf, gives the notice and order of revocation to the driver. Minn. Stat. § 169A.52, subd. 6 (2016); see also State v. Goharbawang, 705 N.W.2d 198, 201 (Minn.App. 2005) (determining that license “revocation takes effect when the officer issues the notice and order of revocation”), review denied (Minn. Jan. 17, 2006). Even if we assume that Permann sought judicial review of his 2009 license revocation, a driver’s petition for judicial review “does not stay the revocation.” Minn. Stat. § 169A.53, subd. 2(c) (2016)."

"Because a notice and order of revocation is effective when the commissioner or peace officer “notifies the [driver] of the intention to revoke” his license, and a qualified prior impaired driving incident includes a “loss of license” by revocation, we conclude that exhibit six is sufficient evidence to establish that Permann had a qualified prior impaired driving incident in 2009. See Minn. Stat. § 169A.52, subd. 6; Minn. Stat. § 169A.03, subd. 21."

"Next, Permann argues that exhibit seven, 2012 court minutes of Permann’s DWI conviction, is not “an official record of a conviction” and thus is insufficient to prove a qualified prior impaired driving incident. The state argues that the 2012 court minutes are a certified court record and thus are “competent and reliable."

"Minn. Stat. § 609.041 (2016) provides:
In a criminal prosecution in which the degree of the crime or the penalty for the crime depends, in whole or in part, on proof of the existence of a prior conviction, if the defendant contests the existence of or factual basis for a prior conviction, proof of it is established by competent and reliable evidence, including a certified court record of the conviction."

"In State v. Eller, this court held that “section 609.041 does not mandate that only a certified record may be used to prove a prior conviction. Rather, it requires only that proof of the [prior] conviction is established by competent and reliable evidence.” 780 N.W.2d 375, 380 (Minn. App. 2010), review denied {Minn. June 15,2010). Eller also clarified that “[t]he statute does not limit such proof to a certified court record” and held that a sworn statement in the probable-cause section of a complaint was competent and reliable evidence to establish the appellant’s prior conviction at a stipulated-facts trial. Id. at 380-81. We conclude that the 2012 court minutes of Permann’s DWI conviction is competent and reliable evidence and exhibit seven is sufficient to establish Permann committed a qualified prior impaired driving incident in 2012.  Thus, we conclude that the evidence is sufficient to support Permann’s conviction for first-degree DWI."

Moral Of The Story:  Loose lips gets you shipped!

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 Minnesota DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

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