Tuesday, April 13, 2021

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The Minnesota DWI Case Of The Week is State v. Montonye (decided April 12, 2021, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a defendant has a right to a public trial at all phases of the proceeding.

In Montonye, the Defendant was charged with a DWI and went to trial in Stevens County, Minnesota. The Defendant was convicted and on appeal asserted his right to a public trial was violated when the Court examined a potential juror in chambers rather than in open court.  The Court of Appeals agreed with the Defendant and reversed his conviction, noting:

"The United States and Minnesota Constitutions, with identical language, grant criminal defendants the right to a public trial: “In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial. . . U.S. Const, amend. VI; Minn. Const, art. I, § 6. The right to a public trial applies during all phases of trial, including voir dire of prospective jurors."

"Despite the text of the Sixth Amendment, the right to a public trial is not absolute. State v. Taylor, 869 N.W.2d 1, 10 (Minn. 2015) (quotation omitted). The closure of a courtroom may be justified if (1) ‘“the party seeking to close the hearing . . . advance[s] an overriding interest that is likely to be prejudiced,’” (2) the closure is ‘“no broader than necessary to protect that interest,”’ (3) the district court considers “‘reasonable alternatives to closing the proceeding,”’ and (4) the district court makes 'findings adequate to support the closure.'


"The state argues that Montonye’s right to a public trial was not implicated because a closure did not occur. Not all restrictions on access during a trial raise constitutional concerns—“[s]ome restrictions on access to the courtroom are so insignificant that they do not amount to a ‘true closure’ of the courtroom.” Petersen, 933 N.W.2d at 551 (quoting Taylor, 869 N.W.2d at 11-12). To determine whether a “true closure” occurred, courts look to several factors, including whether: (1) the courtroom was cleared of all spectators; (2) the proceedings remained open to the public and press; (3) there were periods where the public was absent; and (4) the defendant, the defendant’s family and friends, or other witnesses were excluded. Id. (citations omitted)."

"Here, during voir dire, when prospective jurors were being interviewed in a group setting in the courtroom, Juror W. disclosed that he had been in an accident involving a drunk driver. He explained that the accident had injured him and that he had been “pretty upset” at how the situation was handled. Still, Juror W. said that he did not think the prior incident would influence his ability to be fair and impartial. During this questioning, the district court stated, “I don’t want to get into too much details in front of everybody about what happened. I wonder whether we should ask him questions separate and apart from the other jurors. Counsel?” The state replied, “Perhaps,” and Montonye’s counsel remained silent. A few minutes later, the district court allowed the rest of the prospective jurors to take a break and said to Juror W., “I guess we could—yeah, we could take you in my office, my chambers, just ask you a little more detail about what’s going on and how you feel, what your experiences might have been . . . .” Counsel thereafter conducted voir dire of Juror W. with the judge in chambers. Proceedings were held off the record for about half an hour, and no record was made of the in-chambers voir dire.

"The state argues that a “true closure” did not occur because only one juror was individually questioned for a short period of time. He contrasts the case with Petersen, where we concluded that a true closure occurred when the courtroom was closed for approximately five to six hours of individualized questioning of prospective jurors. 933 N.W.2d at 551. While it is true that Petersen involved a more substantial closure of the courtroom, it does not preclude the in-chambers voir dire here from being a true closure. And, as we noted in Petersen, cases in which restrictions have been deemed not to be true closures “generally have involved the limited exclusion of certain identified persons while persons already present in the courtroom were allowed to remain.” Id. at 552 (citing State v. Zornes, 831 N.W.2d 609, 620-21 (Minn. 2013) (concluding that removing the victim’s brother, who was on the witness list, from the courtroom was not a true closure); Brown, 815 N.W.2d at 617-18 (concluding that locking the courtroom doors during jury instructions was not a true closure); State v. Lindsey, 632 N.W.2d 652, 660-61 (Minn. 2001) (concluding that removing two minor children was not a true closure); State v. Hicks, 837 N.W.2d 51, 61-62 (Minn. App. 2013) (concluding that closures for administrative proceedings typically held in chambers but conducted in the courtroom were not true closures))."

"Montonye argues that applying the relevant factors yields the conclusion that a true closure occurred here. We agree. While the district court did not clear the courtroom of spectators, the courtroom proceeding of voir dire took place away from the courtroom, in chambers, where spectators had no access. See Petersen, 933 N.W.2d at 552 (concluding that the “complete exclusion” of spectators from voir dire constituted a true closure). The proceeding was not open to the public or the press, and both were absent. See id. And, although it is unclear from the record whether Montonye, the defendant, was present, it is clear that Montonye’s family and friends and other witnesses were excluded. See id. Thus, the in-chambers questioning of Juror W. was a true closure."

"The next question in determining whether Montonye’s Sixth Amendment right to a public trial was violated is whether the closure was justified under the Waller factors."

"We note first that the district court did not satisfy the fourth Waller factor— specifically, it did not make findings adequate to support the closure. See Fageroos, 531 N.W.2d at 201-02; see also Minn. R. Crim. P. 26.02, subd. 4(4)(f). In general, in a courtroom-closure case, if a remand to the district court for additional findings “on whether there was a specific basis for closure” could remedy the improper closure, “then the initial remedy is a remand, not a retrial.” State v. McRae, 494 N.W.2d 252, 260 (Minn. 1992); see also Petersen, 933 N.W.2d at 553 (remanding for the district court to make findings concerning whether a closure was justified). On the record here, however, remanding for additional findings is unwarranted because two of the Waller factors cannot be met."

"In deciding to conduct in-chambers voir dire of Juror W., the district court stated that it did not “want to get into too much details in front of everybody about what happened” during Juror W.’s accident with a drunk driver and questioned whether voir dire of Juror W. should occur “separate and apart from the other jurors.” The district court’s expressed concern reasonably fits within the first Waller factor—that the closure would advance an overriding interest that would be otherwise prejudiced. See Fageroos, 531 N. W.2d at 201-02. The interest was that other jurors not be biased by Juror W.’s description of his negative experience."

"But the record provides no basis to find that the second and third Waller factors were met—namely, that the closure was no broader than necessary and that there were no reasonable alternatives to the closure. See id. It is clear on this record that the district court could have protected the interest of not letting Juror W.’s experience bias the other prospective jurors by excusing them from the courtroom and individually questioning Juror W. in open court. Because, on this record, the Waller factors cannot be satisfied, the appropriate remedy for the courtroom closure is a new trial and not a remand for additional findings."

"Because Montonye’s constitutional right to a public trial was violated, we reverse his convictions and remand this case to the district court for a new trial on all counts. Because our resolution of Montonye’s courtroom-closure argument is dispositive, we do not address the merits of his other two arguments claiming trial error."

Moral Of The Story: What happens in chambers should not stay in chambers.

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

Monday, March 29, 2021

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 Soucie v. Commissioner of Public Safety and State of Minnesota (Decided March 29, 2021, Minnesota Court of Appeals, Published), which stands for the proposition that "touching" a fog or lane line provides the police with a legitimate reason to stop a motor vehicle.

In August 2019, a Minnesota State Trooper stopped Mr. Soucie's vehicle and subsequently arrested him for DWI. Mr. Soucie filed a challenge to the legality of the stop.  

At the combined Omnibus and Implied Consent hearing the trooper testified that she saw "the right. . . side of Soucie’s vehicle move completely over the fog line” and “occasionally touch the fog line." The video recording depicted Soucie’s passenger-side tires cross the fog line entirely at the end of the entrance ramp as the car merged onto the highway, corroborating the trooper’s testimony. But the transcript of the hearing and the order that followed demonstrated that the district court did not discuss that movement across the fog line. The district court instead focused on the moment the car’s tires later merely touched the fog line.

The District Court denied the Defendant's motion to suppress and sustained the license revocation. The issue on appeal was whether "touching" a highway line provides a sufficient justification to authorize a stop of a motor vehicle. 

The Minnesota Court of Appeals upheld the lower court noting:

The trooper "...stopped Soucie’s car because she believed he had violated a statute requiring drivers to operate only within their own lane. That statute mandates that 'a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.' Minn. Stat. § 169.18, subd. (1). We clarify that we are not deciding this appeal based on the trooper’s observation of Soucie’s passenger-side tires passing entirely over and beyond the fog line. Although the video recording corroborates the trooper’s testimony (as acknowledged by both attorneys during oral argument on appeal), the district court apparently did not notice this on its viewing. The state raised no related appeal challenging the district court’s factual omission as clear error, and neither party has briefed the question of whether an appellate court may hold a stop constitutional based on a violation that is unquestionably visible on a recording but that was apparently inadvertently missed by the district court. We therefore decide this appeal based on the factual findings of the district court, including specifically the finding that Soucie’s car (meaning his tires) touched the fog line. By 'touched,' it is clear from the district court’s description and our view of the recording that, only the outside edge of Soucie’s tires momentarily contacted the inside edge of the fog line."

"Soucie argues in essence that this touching is too insignificant to meet the statutory prohibition. We need only look to how we have construed the clear prohibition of section 169.18, subdivision 7(1), to reject this argument. In Kruse v. Commissioner of Public Safety, we held that driving with one’s outside tire completely on top of the fog line violates the statute. 906N.W.2d 554, 556 (Minn. App. 2018). The officer there had seen Kruse’s tire “move right and onto . . . but not over the fog line,” and we determined that this conduct violated the statute, justifying the traffic stop. Id. at 556, 560. The Kruse decision inspires inferences that we apply here."


"First, we infer that, under the statute, a lane is comprised of the area between the painted lines that demark it and does not include the lines themselves. To borrow from sports, a lane is like the area of play in basketball (where a player stepping on the boundary line is out of bounds) and unlike the area of play in tennis (where a ball landing on the boundary line is in bounds). Second, the statutory violation of moving a vehicle from the lane occurs when even a fraction of the vehicle extends outside its lane. The idea that one violates the statute by unsafely moving even part of one’s car from the lane arises not only from our holding in Kruse but also from a common-sense understanding of the danger the statute intends to avoid. It is self-evident that the statute aims to curb collisions with persons, obstacles, or vehicles outside of one’s lane, and dangerous collisions can occur when even a small portion of a car extends out of bounds. See Kruse, 906 N.W.2d at 559 (“Moreover, driving on the fog line could compromise the safety of any stopped motorist, pedestrian, or cyclist on the right side of the fog line.”); State v. Al-Naseer, 734N.W.2d 679, 681 (Minn. 2007) (“[A] car driven by Al-Naseer struck and killed a person who was changing a tire along the side of Highway 10.”). We can readily apply these premises to the facts here."


"Because operating a car with its tires touching the edge of the fog line constitutes moving a vehicle from the lane under Minnesota Statutes section 169.18, subdivision 7(1), the district court correctly concluded that [the] Trooper had reasonable suspicion to stop Soucie’s car for a traffic violation.

Moral Of The Story: If you are going to drive, stay in bounds.

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, March 15, 2021

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. Bonkowske (Decided March 15, 2021, Minnesota Court of Appeals, Published) which stands for the proposition that a person can only be convicted and sentenced for one DWI offense if all of the charges fall within the same statute and are a part of the "same behavioral incident".

In Bonkowske, the Defendant was arrested for DWI and taken to the police department.  The officers then read Bonkowske the breath-test advisory and after Bonkowske indicated that he wished to consult with an attorney, the officers provided him with access to a telephone and directories with the phone numbers of attorneys who handle DWI cases. Bonkowske briefly flipped through the directories but did not otherwise make any attempt to contact an attorney. The officers repeatedly informed Bonkowske that, if he was not going to attempt to contact an attorney, then they would continue with the breath-test-advisory process, but Bonkowske still made no attempt to contact an attorney. An officer then asked Bonkowske if he would consent to a breath test, and Bonkowske refused. When asked why he would not submit to a breath test, Bonkowske responded, ‘“cuz I don’t like you.”

The Defendant was charged with DWI, test refusal, and driving after suspension of his license. Bonkowske was appointed counsel, but later filed a petition to proceed pro se. The petition was granted following an omnibus hearing and Bonkowske represented himself at trial. A jury found Bonkowske guilty of all charges. The district court entered judgments of conviction and sentenced Bonkowske for each of the three offenses.

On appeal, the Defendant claimed the District Court committed reversible error by convicting and sentencing him for both DWI and DWI Refusal.  The Court of Appeals agreed and reversed the District Court stating: 

"“Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1. The

Minnesota Supreme Court has interpreted Minn. Stat. § 609.04 (2018) to “bar[] multiple convictions under different sections of a criminal statute for acts committed during a single behavioral incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985). Whether a conviction violates section 609.04 is a legal question that this court reviews de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn 2012)."


"In Jackson, the defendant was convicted of aggravated forgery and uttering a forged instrument under subdivisions one and three of Minn. Stat. § 609.625 (1982). 363 N.W.2d at 760. The supreme court ruled that, because the convictions were for offenses arising under different sections of the same statute and were committed as part of a single behavioral incident, the formal adjudication of the multiple convictions was in violation of Minn. Stat. § 609.04, subd. 1. Id. The court therefore held that “one of the two formal adjudications of conviction for violating section 609.625 must be vacated.” Id. While the present case involves convictions for DWI and test refusal, instead of forgery and forged instruments, we nevertheless determine that Jackson is the controlling precedent and governs our analysis in this case."

"The Jackson rule consists of two parts: first, the convictions must be for offenses that arise under different sections of the same statute and, second, the offenses must have been committed as part of a single behavioral incident. Id. at 759-60. Here, the first part of the rule is satisfied because Bonkowske’s convictions for DWI and test refusal arise under different sections of the same criminal statute—Minn. Stat. § 169A.20."

"The second part of the rule, whether the offenses arose out of a single behavioral incident, is also satisfied. Within hours, Bonkowske drove from the bar to his house while intoxicated, was arrested and, while in custody, committed the offense of test refusal. The supreme court and numerous decisions of this court have held that DWI and test refusal committed as part of a continuous course of conduct, as occurred here, arise out of a single behavioral incident. See State v. Simon, 493 N.W.2d 528 (Minn. 1992) (mem.) (the offense of test refusal, committed after a DWI arrest and test-refusal advisory, is part of the same behavioral incident as the preceding DWI offense); accord State v. Olson, 887 N.W.2d 692, 701 (Minn App. 2016); State v. Fichtner, 867 N.W.2d 242, 246, 253-54 (Minn App. 2015), review denied (Minn. Sept. 29, 2015); St. John, 847 N.W.2d at 708."

"Consequently, pursuant to Jackson, the entry of judgments of conviction for the two offenses violates Minn. Stat. § 609.04 and one of the convictions must be vacated. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (stating “the proper procedure to be followed by the trial court when the defendant is convicted on more than one charge for the same act is for the court to adjudicate formally and impose sentence on one count only,” retaining the guilty verdicts on the remaining charges, but not formally adjudicating those charges)."

I am surprised that the District Court made this mistake as the issue has been settled since State v. Simon in 1992.  I hope this published opinion will prevent future errors.

Moral Of The Story: Keep your crime sprees to a single offense and behavioral incident.

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.

Monday, March 1, 2021

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 State v. Urratia, (Decided March 1, 2021, Minnesota Court of Appeals, Unpublished) which stands for the proposition that some appeals are just a big waste of time.

In Urratia, the Defendant was arrested and convicted of DWI. On appeal, he argued the district court committed reversible error when it failed to suppress the evidence of his crime as the arresting officer used excessive force in making the arrest.

In February 2019, a Beltrami County Deputy Sheriff was patrolling a rural area late at one night when he observed a car with a loud exhaust passing him in the opposite direction. The deputy turned his squad car around, intending to initiate a traffic stop. But the loud car stopped in the middle of the road, backed up, and pulled into a driveway. The deputy positioned his squad car in the driveway behind it.

The deputy began approaching on foot and the driver then suddenly left the car. The deputy—alone and surprised—drew his handgun and ordered the driver to the ground. He holstered his gun when he was satisfied that the driver, Jesse Urrutia, was unarmed.

During oral argument on appeal, "his counsel explained that Urrutia is challenging the level of force the sergeant used, but he does not assert that the deputy’s conduct constituted a de facto, unconstitutional arrest." 

(Why Not?)

The Court of Appeals rejected the Defendant's claim noting that the exclusionary rule applies to 4th Amendment violations not excessive force claims:

"As one federal court accurately put it, “[T]here has been no appellate decision holding that the exclusionary rule can serve as a remedy for excessive force collateral to a search or seizure.” United States v. Collins, 714 F.3d 540, 544 (7th Cir. 2013). Urrutia has cited no Minnesota or federal case holding that a seizure that is unconstitutionally excessive in force precipitates the suppression of evidence collected during the seizure and unrelated to the force. It is unlikely that such a case exists, since the exclusionary rule generally justifies suppression of evidence discovered or collected because of a Fourth Amendment violation, United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 619 (1974), not evidence that is collected with no causal relation to an alleged Fourth Amendment violation. We doubt that the sergeant’s conduct here was excessive under the circumstances of Urrutia’s suspicious behavior in the secluded driveway, but because the appeal would fail anyway, we need not consider the assertion."

I do not understand why appellate counsel did not raise the claim of an unconstitutional arrest.  In State v. Carver, 577 N.W.2d 245 (Minn.App. 1998) the Minnesota Court of Appeals held the Defendant was illegally arrested for DWI where he was ordered to the ground and handcuffed before the police developed probable cause.  

At least the Defendant in this case would have had an argument.

Moral Of The Story:  The exclusionary rule does not apply to everything.

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

Monday, February 1, 2021

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. Noel (Decided February 1, 2021, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you exercise too much right to counsel, they may hold it against you in a DWI Refusal trial.

In Noel, the Defendant was arrested for DWI in Minneapolis after driving the wrong way down a one-way street.  Mr. Noel was taken the the Minneapolis Chem test station and during the 15-minute observation period, the Defendant appeared to be trying to burp. Because forced burping may cause vomiting, which would delay the test, the police told Noel to stop.

The police officer next read Noel the breath-test advisory. Noel said he did not understand the part about speaking to an attorney, requiring the officer to re-read that portion of the advisory. Noel again indicated he did not understand. The officer then gave Noel a phone to contact an attorney. After speaking with an attorney for approximately 45 minutes, Noel told the officer that he would take the test.

The officer handed Noel the mouthpiece to begin the first of two required breath samples. He immediately noted that Noel “was not keeping [the] minimum flow rate” of air into the machine necessary to record a sample. The officer advised Noel “several times” that he needed to provide a “strong, steady breath.” But Noel failed to do so, and did not provide a sufficient sample by the end of the three-minute testing period. The officer determined Noel’s conduct amounted to test refusal.

At trial, the officer testified that Noel’s behavior during the testing process and several other factors led him to conclude that Noel refused the breath test. The other factors include the length of time Noel talked to an attorney,  his stated inability to understand the advisory “even after multiple readings,” and his attempts “to force himself to burp.” These factors also prompted the officer’s decision not to attempt a second test—even though he had the discretion to do so.

The Defendant was convicted of test refusal and on appeal, asserted that the District Court committed reversible error by admitting evidence that Noel consulted with counsel for 45 minutes.

The Minnesota Court of Appeals, however, affirmed his conviction noting:

"Because at trial Noel only objected to one instance of the officer’s testimony regarding Noel consulting with an attorney—while leaving prior testimony on the point unchallenged—we must consider both whether the district court abused its discretion by permitting the challenged testimony and whether the district court committed plain error by permitting the unchallenged testimony."

"Noel asserts his choice to avail himself of the right to counsel cannot be held against him at trial, citing State v. Roberts, 208 N. W.2d 744 (Minn. 1973). But the right described in Roberts is derived from the Fifth Amendment protection from self-incrimination. See 208 N.W.2d at 746 (citing Miranda v. Arizona, 384 U.S. 436, 468 n.37, 86 S. Ct. 1602, 1625 n.37 (1966)); see generally Miranda, 384 U.S. at 465-66, 86 S. Ct. at 1623 (discussing U.S. Const, amend V). The limited right to counsel following a DWI arrest does not fall under the umbrella of protections afforded by the Fifth Amendment. See Friedman, 473 N.W.2d at 835, 837 (citing Minn. Const, art I, § 6). Accordingly, “[c]hemical testing in a DWI proceeding, pursuant to the implied consent law, is not self-incrimination and does not trigger Fifth Amendment protection against self-incrimination.” Busch v. Comm ’r of Pub. Safety, 614 N.W.2d 256, 259 (Minn. App. 2000)."

"Second, conduct that unreasonably delays or otherwise frustrates the testing process—even conduct involving the limited right to counsel—may constitute test refusal. See Collins, 655 N.W.2d at 658 (driver’s belligerent speech and behavior, during which she invoked her limited right to counsel, frustrated the testing process and amounted to test refusal); Busch, 614 N.W.2d at 259-60 (driver’s silence during reading of breath-test advisory and conduct constituted retraction of his request for counsel and test refusal). Thus, evidence of the manner in which a person exercised his limited right to counsel may be relevant to whether he frustrated the testing process to such an extent that he refused the test."

"That is the situation here. Noel’s conduct before and during the administration of the breath test are relevant to whether his conduct frustrated the testing process. The fact that he spoke to an attorney for 45 minutes is one of several circumstances that tended to show he sought to unreasonably delay or otherwise obstruct the testing process. He initially attempted to burp up stomach contents, which could delay the process; he made the officer re-read portions of the breath-test advisory; and he did not follow repeated instructions to provide sufficient airflow, causing the test to restart several times over the course of three minutes, and resulting in a deficient sample."

"In sum, this record persuades us that the district court did not abuse its discretion or otherwise err by admitting the officer’s testimony that Noel spoke with an attorney for 45 minutes before the officer administered the breath test."

Moral Of The Story: When it comes to your rights, we don't have all day.

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

Monday, January 4, 2021

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. Nichols (Decided January 4, 2021, Minnesota Court of Appeals, Unpublished), which stands for the proposition that an inadmissible comment made by a state's witness will not usually lead to a reversal of the conviction. 

In Nichols, the Defendant was stopped by the police after receiving cell phone call from a citizen complaining about the Defendant's driving conduct. The Defendant was ultimately arrested for DWI and taken to the Yellow Medicine County Jail.

Nichols was read the breath-test advisory at the jail, which informed her that refusal to take a test is a crime and that if she wished to contact an attorney she would have the opportunity to do so. Nichols indicated that she wanted to contact an attorney and she was provided with a telephone and phone books, including phone directories with contact information for DWI attorneys in the area. Nichols was very argumentative for the first ten minutes and did not make any attempt to contact an attorney. She then stated that she had her own attorney and asked to search her purse for the attorney’s business card. The officers checked her purse for her but were unable to locate the business card. Nichols attempted to contact one attorney over the course of the next 35 minutes, but only reached an answering service. The officers then asked Nichols numerous times if she would consent to a test; she stated that she was not refusing to take a test but never consented to one. Nichols also repeatedly claimed that she was not driving that morning. After approximately 45 minutes, Nichols’s actions were deemed a refusal to consent to testing.

The State of Minnesota charged Nichols with one count of second-degree test refusal and gross misdemeanor DWI. The case was tried to a jury, and the jury found Nichols guilty on both counts.

On Appeal, Nichols argued that the prosecutor committed misconduct by failing to adequately prepare the officer to testily and that this misconduct requires reversal of her convictions and a new trial. She cites to two specific statements, the officer made that she asserts impermissibly referenced her prior criminal convictions and contacts with law enforcement. The first statement, which Nichols objected to at trial, relates to her “not being new to the system.” Nichols has two prior convictions for DWI-related offenses— one for driving with an alcohol concentration of 0.08 or higher and one for test refusal, which the state sought to admit into evidence. The district court initially reserved ruling on the issue but, during trial, determined that the evidence of Nichols’s prior convictions was inadmissible due to the “tremendous opportunity for prejudice” and comparatively little probative value.

The Court of Appeals affirmed her conviction noting:

"For objected-to prosecutorial misconduct, there are two harmless-error standards of review taken from State v. Caron. 218 N.W.2d 197, 200 (Minn 1974). The harmless- error test for “unusually serious” misconduct requires an analysis of whether the misconduct was “harmless beyond a reasonable doubt.” State v. Nissalke, 801 N.W.2d 82, 105 (Minn 2011) (quotation omitted). An error is harmless beyond a reasonable doubt “only if the verdict rendered was surely unattributable to the error.” Id. at 105-06 (quotation omitted). The harmless-error test for less serious misconduct requires an analysis of “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. at 105 (quotation omitted)."

"For allegations of prosecutorial misconduct that were not objected to during trial, we utilize a modified plain-error standard of review. Stale w Ramey, 721 N.W.2d 294, 302 (Minn 2006). The defendant bears the burden of establishing an error that is plain, but upon doing so the burden shifts to the state to prove that there is no reasonable likelihood that the absence of the misconduct would have had a significant effect on the jury’s verdict. Id."


"The state concedes that the officer’s statement that Nichols was “not new to the system” was inadmissible testimony and we agree. As such, this could be construed as a failure on the part of the prosecution to adequately prepare the officer. Thus, we will next consider whether the inadmissible statement deprived her of a fair trial. In doing so we must determine “whether the misconduct likely played a substantial part in influencing the jury to convict.” Nissalke, 801 N.W.2d at 105 (quotation omitted).  We conclude that it did not."

"The inadmissible statement that Nichols was “not new to the system” was brief, general, and the district court immediately instructed the jury to disregard the statement. See State v. Atkinson, 774 N.W.2d 584, 596 (Minn. 2009) (noting that references to appellant’s previous arrests were not unfairly prejudicial where the references were “fleeting” and “nonspecific”); see also State v. Budreau, 641 N.W.2d 919, 926 (Minn. 2002) (stating that there is a presumption that the jury follows the district court’s instructions). Moreover, the prosecutor did not emphasize or repeat the statement, which lessens the chance of unfair prejudice. State v. Hall, 764 N.W.2d 837, 842-43 (Minn. 2009). Finally, the jury heard testimony about Nichols’s driving and subsequent conduct from S.M. and the three officers involved, and viewed the video that was recorded during the breath-test advisory process. This provided the jury with ample evidence on which to base its convictions. On this record, we conclude that the state satisfied its burden of demonstrating that it is not likely that the inadmissible statement played a substantial part in influencing the jury to convict. Consequently, Nichols is not entitled to a new trial with regard to the first statement."

The second statement, which was not objected to at trial, relates to the officer's testimony that he had observed the Defendant drive her vehicle earlier in the day. The officer testified"

"We’re going into towards the casino and we saw a female driving a Honda SUV. She is sitting next to [defense counsel]. Her name is Olga Nichols and then we shortly after we were pulling into the casino, we had a driving complaint dispatched from Yellow Medicine County.

Q. All right. When you say that you saw Ms. Nichols driving, you’re referring to the individual sitting next to [defense counsel]?

A. Yes.

Q. Okay. At the time you saw her, did anything at that time strike you as noteworthy or unusual or anything?

A. Not at that time. I mean there was a brief passing and we turned in and she was going west."

"Because defense counsel did not object to this testimony, Nichols bears the burden of establishing that it constitutes plain error that affected her substantial rights. Ramey, 721 N.W.2d at 302. 'An error is plain if it was clear or obvious.' Id. (quotation omitted). Nichols argues that the statement suggests that the officer recognized her from prior contacts with law enforcement. But the officer did not testify that he recognized her from such contacts, he merely stated that he observed her driving earlier in the day on the date of the offense. This statement does not clearly or obviously refer to her prior contacts with law enforcement. And as the state points out, this was potentially relevant to rebut Nichols’s previous assertions that she was not driving on the date in question. Accordingly, we discern no plain error in the officer’s testimony that he saw Nichols driving on the date of the offense and conclude that neither of the two challenged statements deprived Nichols of her right to a fair trial."

 Moral Of The Story: A person is entitled to a fair trial; not a perfect one.

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.