Tuesday, May 26, 2020

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The Minnesota DWI Case Of The Week is State v. Moore (Decided May 26, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a prior license revocation notation on a driving record is not sufficient proof of a prior offense for enhancement purposes.

In Moore, the Defendant was arrested and charged with a Felony DWI because at the time of the current offense, she had two prior DWI convictions from 2011 and, according to a certified copy of the Defendant's driving record, a loss of license in 2009 for impaired driving.  The Defendant waived a jury trial and argued that her driving record was insufficient to establish a prior impaired driving incident. The District Court found Ms. Moore guilty of felony DWI but on appeal, the Minnesota Court of Appeals reversed the district court explaining:

"A person is guilty of first-degree DWI if they commit that violation within ten years of the first of three or more qualified prior impaired-driving incidents. Minn. Stat. § 169A.24, subd. 1(1). A “[qualified prior impaired driving incident includes prior impaired driving convictions and prior impaired driving-related losses of license.” Minn. Stat. § 169A.03, subd. 22 (2016). A “[p]rior impaired driving-related loss of license includes a driver’s license suspension, revocation, cancellation, denial, or disqualification.” Id., subd. 21(a) (2016). An implied-consent license revocation “becomes effective” when an officer notifies the person of the revocation and advises the person of the right to administrative or judicial review.  Minn. Stat. § 169A.52, subd. 6."

"Because a revocation does not “become effective” without notice, in order to prove a defendant guilty beyond a reasonable doubt of an offense that requires a prior license revocation, the state has the burden of proving that appellant received notice of that revocation. See State v. Burg, 648 N.W.2d 673, 677-78 (Minn. 2002) (“The Due Process Clause of the Fourteenth Amendment to the United States Constitution ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged.’”) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)) (alteration in original). Moreover, we note that, in previous license-revocation cases disputing notice, the state has provided either testimony regarding notice or evidence that it provided notice to the defendant. See, e.g.. Gray v. Comm’r of Pub. Safety, 918 N.W.2d 220, 225 (Minn. App. 2018) (identifying officer testimony that he personally provided notice); Johnson v. Comm’r of Pub. Safety, 889 N.W.2d 36, 37, 40 (Minn. App. 2016) (identifying officer testimony that he thought he placed notice in appellant’s property); Johnson v. Comm ’r of Pub. Safety, 394 N.W.2d 867, 868 (Minn. App. 1986) (identifying officer testimony that he placed order of revocation in front of appellant)."
"Here, the district court concluded that “the [s]tate has prove[d] beyond a reasonable doubt all of the elements of this offense” and that the certified copy of the driving-record history established a qualified prior impaired-driving incident. The district court relied on Omwega to reject appellant’s argument that the state had to prove notice. State v. Omwega, 769 N.W.2d 291, 296 (Minn. App. 2009) (noting officer properly placed notice in appellant’s bag with his other property when released from custody), review denied (Minn. Sept. 29,2009). First, as discussed above, the state has the burden of proving notice. Burg, 648 N.W.2d at 677-78. Second, Omwega is distinguishable because there, the state presented evidence that the police provided the appellant with notice. Omwega, 769 N.W.2d at 296. There is no such evidence here, and without it, we cannot make the reasonable inference that she received this notice. See Chambers, 589 N.W.2d at 477. Nor does appellant’s certified driving-record history allow for a reasonable inference that she received notice. The only inference the statute allows is that, if the police mailed the notice, appellant received it three days later. See Minn. Stat. § 169A.52, subd. 6."

As stated by the court, "...appellant’s certified driving record may prove the occurrence of a license revocation, but it does not prove that she received notice of that revocation. The state contends that the driving-record notation of “notice re requirements sent” constituted proof that the state provided appellant notice of the license revocation. But the state offers no testimony that the notation referred to the revocation, and the district court made no finding on it. Nor does the certified driving record contain any explanation of its headings, terminology, or abbreviations."

Moral Of The Story:  A prior isn't a prior without proof of notice.

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.

Monday, May 4, 2020

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 McCormick v. Commissioner of Public Safety, (Decided May 4, 2020, Minnesota Court of Appeals, Published) which stands for the proposition that when it comes to reading the Minnesota Implied Consent Advisory, close is good enough.

In McCormick, the Petitioner was arrested for a DWI and was taken to the police station to be tested on the Data Master (breath testing) machine.  Prior to taking the test, Mr. McCormick was told, "This is the breath test advisory" and that "Minnesota Law requires you to take a test to determine if you are under the influence of alcohol.  Refusal to take a test is a crime...Do you understand what I've just explained?" Mr. McCormick indicated he understood and would submit to a breath test.  The test result revealed a test reading in excess of the legal limit.

The Petitioner's license was revoked and the Petitioner's attorney filed a challenge to the revocation arguing that it should be rescinded because the officer did not read the statutory language of the advisory.  The statutory language of Minnesota Statute § 169A.51, sub 2. states, "refusal to submit to a breath test is a crime".  Since  the officer did not include the word "breath" when he read the advisory, the issue was whether the failure constituted sufficient grounds to rescind.  

The Minnesota Court of Appeals affirmed the revocation of the driver's license, noting:

"Appellant does not argue that section 169A.51, subdivision 2, is ambiguous. Rather, he essentially argues that the statute requires officers to read its language verbatim. He asserts that the officer’s failure to state “breath” directly before “test” misstated the law both because it is not a crime to refuse a warrantless blood or urine test  and because it makes the word “breath” in section 169A.51, subdivision 2, meaningless, contrary to the legislature’s intent."

"The plain language of section 169A.51, subdivision 2, unambiguously requires officers to “inform” a person “that refusal to submit to a breath test is a crime.” The statute does not define the word “inform.” However, we may consider dictionary definitions when determining the plain meaning of a word. See In re Restorff, 932 N. W.2d 12, 19-21 (Minn. 2019). To “inform” means to “impart information to; make aware of something.” The American Heritage Dictionary 899 (4th ed. 2000). To inform a person that refusal to submit to a breath test is a crime therefore requires that officers make the person aware that refusal to submit to a breath test is a crime."

"Here, the district court found that the officer stated that “[t]his is the breath test advisory of [appellant],” stated that refusal to submit to “a test” is a crime, and asked appellant only if he wanted to take a breath test, without mentioning any other test. (Emphasis added.) Appellant does not dispute these findings, and the record supports them. Based on the context of the advisory that the officer gave to appellant, the officer informed appellant by making him aware that refusing to take the breath test, as the only test offered, would be a crime. The officer did not mention or request a blood or urine test and therefore did not improperly inform appellant that refusal to submit to one of those tests is a crime."
"We presume that the legislature understood the effect of using “inform” and of not using language requiring a verbatim recitation of the statute. See Dayton Hudson Corp. v. Johnson, 528 N.W.2d 260, 262 (Minn. App. 1995) (stating that we “presume that the legislature understood the effect of its words”); cf, e.g., Minn. Stat. § 270C.4451, subds. 3, 4 (2018) (requiring “the following verbatim statements,” followed by quoted language); Minn. Stat. § 332B.11, subd. 2 (2018) (requiring “the following verbatim disclosure,” followed by quoted language); Minn. Stat. § 144.6521 (2018) (providing written disclosure “must read as follows,” followed by quoted language).  It is not the role of this court to read additional language into statutes. See State v. Noggle, 881 N.W.2d 545, 550 (Minn. 2016)."
"We “highly encourage[]” uniformity in breath-test advisories and “recommend that police officers read the exact words of the statute in order to avoid any possibility of confusion or improper deviation.” See Hallock, 372 N.W.2d at 83. Although no previous published opinion has addressed the adequacy of a breath-test advisory stating that failure to take “a test” is a crime, we have concluded in three unpublished opinions that this language is not a misstatement of law or misleading when the officer offers the person only a breath test.  We find these opinions persuasive."

"We therefore hold that whether an officer gave a breath-test advisory that informed a person that refusal to submit to a breath test is a crime depends on whether the given advisory, considered in its context as a whole, is misleading or confusing. Because we conclude that the officer complied with the implied-consent statute by informing appellant that refusing to take the breath test would be a crime, we do not reach the state’s argument that any misstatement of law in the advisory would be only a technical statutory violation not requiring reversal of government action."

Moral Of The Story: Close enough for government work.

If you or a loved one have been charged with 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 and DUI questions.