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 Wadekamper v. Commissioner of Public Safety which stands for the proposition that a DWI license revocation is never to old to effect your license.

In Wadekamper, the Petitioner was arrested for DWI on June 3, 2020. Mr. Wadekamper had five prior impaired-driving incidents from 1974, 1977, 1983, 1986, and 1994. Pursuant to statute, the Commissioner of Public Safety revoked the Petitioner's license for six years.

The Petitioner filed a challenge to the license revocation seeking a judicial review hearing.  The hearing was held, at which time the Petitioner conceded that there were no factual disputes but that he wanted to challenge the length of the six-year license revocation. Petitioner told the district court he only wanted to submit written briefs as testimony or oral argument was not required.

Petitioner submitted a written argument in the form of a letter to the district court, again challenging only the lawfulness of the six-year license-revocation period. He acknowledged that, under the license-revocation statute, the revocation period is not less than six years for a person with four or more prior impaired-driving offenses and conceded that he had more than four prior DWIs. Petitioner nevertheless argued that his prior DWIs should not be considered in determining the length of his license revocation because the prior impaired-driving incidents were “stale.” Petitioner also argued that the license-revocation statute requiring the district court to consider all prior DWIs, without requiring a prior enhancement warning, violated due process. Petitioner cited no legal authority in support of his due-process argument.

The district court rejected Petitioner's arguments and sustained the commissioner’s license revocation. The district court first determined that, because the length-of- revocation issue is outside of the exclusive list of issues that the district court is authorized to review at an implied-consent hearing under Minn. Stat. § 169A.53, subd. 3(b), appellant could not raise it. See Axelberg v. Comm ’r of Pub. Safety, 848 N.W.2d 206, 208-09 (Minn. 2014) (holding that issues a driver may raise at an implied-consent hearing are limited to those falling within topics listed in Minn. Stat. § 169A.53, subd. 3(b)). The district court then stated that the revocation period is mandated by the license-revocation statute and the commissioner had no discretion to ignore any qualifying prior impaired-driving offenses. The district court noted that Petitioner cited no legal authority for his claim that the lack of an enhancement-warning requirement in the license-revocation statute violated his due- process rights and declined to consider it. 

On appeal, the Minnesota Court of Appeals affirmed the district court noting:

"Appellant appears to argue that the district court denied him procedural due process by denying him a meaningful hearing. Whether the government violated a person’s procedural due-process rights is a question of law that we review de novo. Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012). The United States and Minnesota Constitutions prohibit the state from depriving any person of liberty or property without due process of law. U.S. Const, amend. XIV; Minn. Const, art. I, § 7. The suspension of a driver’s license implicates a property interest that triggers due-process protections. See Mackey v. Montrym, 443 U.S. 1, 12 (1979). Due process generally requires “adequate notice and a meaningful opportunity to be heard.” Staeheli v. City of St. Paul, 732 N. W.2d 298, 304 (Minn. App. 2007) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976))."

"Here, appellant received a meaningful opportunity to be heard. The district court granted his request for an implied-consent hearing after the commissioner revoked his license. Appellant had an opportunity to argue his case before the district court. At the hearing, appellant stated that “the only issue was the length of his license revocation” and told the district court that he just wanted to submit briefs. The district court allowed appellant to submit a written argument after the hearing, which he did in the form of a letter. Appellant therefore had every opportunity to argue his case before the district court in both oral and written form. He received a meaningful hearing and all the procedural due process to which he was entitled."

"To the extent that appellant’s argument on appeal could be construed as a challenge to the district court’s denial of his constitutional claim that the lack of an enhancement warning violated his due-process rights, appellant’s argument still fails. In his letter to the district court, appellant’s only explicit reference to his due-process claim is a single line stating that “The legislation . . . permitting the use of incidents over twenty years ago to be used, without an enhancement warning, as a lifelong stepping stone for six years of ignition interlock is a violation of due process.”  The district court declined to address appellant’s due-process challenge because he cited no legal authority in support of his position. Courts do not consider claims that are unsupported by argument or citation to legal authority. See Stephens v. Bd. of Regents, 614 N.W.2d 764, 769 (Minn. App. 2000), rev. denied (Minn. Sept. 26, 2000). We therefore discern no error in the district court’s rejection of appellant’s undeveloped constitutional challenge."

Moral Of The Story: A License Revocation Never Forgets!

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.

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

The Minnesota DW Case Of The Week is Amed v. Commissioner of Public Safety (Decided September 13, 2021, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it is a refusal to submit to testing if you don't pee in time.

In Amed, the Petitioner was arrested for DWI by the Minnesota State Patrol. The trooper obtained a search warrant for the Petitioner's blood or urine. The trooper asked the Petitioner if he would submit to a blood test and the Petitioner replied that he did not like blood tests and would give a urine sample instead.

The Petitioner drank several glasses of water over an hour and a half but was unable to provide a urine sample.  The trooper told the Petitioner that he would be considered to have refused testing. The Petitioner then asked for a blood test but the trooper rejected his request.

The Petitioner challenged his license revocation arguing that his license can't be revoked unless he refused both a urine and a blood test.  The District Court sustained the revocation and on appeal, the Minnesota Court of Appeals affirmed the lower court, stating:

"Here, the officer offered appellant a blood test but appellant declined it. Appellant asked to take a urine test, which the officer provided. Appellant then refused the urine test by failing to produce a sample, even after having an hour and a half to do so, during which appellant drank several glasses of water. Section 171.177, subdivision 2, requires only that appellant be offered both tests, not that he must refuse both tests. On these particular facts, we conclude that the officer offered appellant both tests and appellant refused the urine test, which is sufficient to revoke his driving privileges."

Moral Of The Story: If your kidneys are shy, take a blood test!

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.

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. Kersey (Decided June 7, 2021, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the Court of Appeals is not going to second guess the District Court's sentence for Felony DWI if the sentence is within the sentencing guidelines.

In Kersey the Defendant pled guilty to Felony DWI arising from a 2019 DWI arrest.  It was the Defendant's second Felony DWI conviction and fifth DWI conviction overall.  The Defendant moved for a dispositional departure instead of the presumptive prison sentence of 42 months.

The district court imposed a presumptive sentence, reasoning that the probation department did not recommend probation and that “all of the good things” Kersey had done in his life had to be weighed “against the public policy . . . that dictates accountability for this offense.” The district court sentenced Kersey to serve 42 months in prison with a five-year period of conditional release. 

The Defendant appealed the presumptive sentence but the Minnesota Court of Appeals affirmed the district court noting:

"A sentence that is prescribed by the Minnesota Sentencing Guidelines is “presumed” appropriate. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (quotation omitted). A district court may depart from a presumptive sentence only if “identifiable, substantial, and compelling circumstances” warrant a departure. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (quotation omitted). If a defendant requests a downward dispositional departure, that is, a probationary sentence instead of a prison sentence, a district court focuses on the defendant and considers whether he is particularly amenable to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (stating that in assessing whether a defendant is particularly amenable to probation, a district court may consider age, prior record, remorse, cooperation, attitude in court, and support of family and friends). But even if the record shows that the defendant would be amenable to probation, a district court is not required to depart from the presumptive sentence. State v. Olson, 765 N.W.2d 662, 664-65 (Minn. App. 2009)."

***

"Kersey contends that he presented “substantial evidence meeting the Trog factors,” along with documentation “of his medical condition, which [is] comprised of an immuno¬compromising condition particularly susceptible to threat from the COVID-19 virus.” He claims that his “condition along with the ongoing COVID-19 pandemic presented a substantial risk of harm or death to [himself] if confined to prison.” Kersey argues that although the district court gave “significant consideration to the character evidence presented,” the court “appeared to downplay the threats that his medical condition and the COVID-19 pandemic posed to [his] safety and well-being ... in a prison setting." 

***

The record shows "the district court considered Kersey's arguments related to the COVID-19 pandemic. Moreover, the district court also considered the reasons weighing against a dispositional departure."

***

"A district court is not required to depart from the presumptive sentence even if mitigating factors are present. See State v. Jackson, 749 N.W.2d 353, 360 (Minn. 2008) (stating that if a jury finds facts supporting a departure, a district court may, but is not required to, depart); State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006) (affirming denial of a request for departure despite defendant’s argument that Trog factors were present); State v. Pegel, 795 N.W.2d 251, 253-54 (Minn. App. 2011) (stating that the mere existence of mitigating factors does not require the district court to place a defendant on probation). Here, the district court considered the arguments for and against a downward dispositional departure and concluded that a presumptive sentence was appropriate. This is not the “rare case” that warrants reversal of the district court’s refusal to grant a downward dispositional departure."

Moral Of The Story: While it is important to know the law, it is more important to know your judge.

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.

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. Halverson (Decided April 26, 2021, Minnesota Court of Appeals, Unpublished) which stands for the proposition that entering a home uninvited is sufficient suspicious conduct to justify a vehicle stop.

In Halverson, the police received a report of a suspicious person on Allendale Drive in St. Cloud. The suspicious person had entered a home to see “Crystal,” who did not live there. The suspicious person did not apologize for entering the home uninvited or further inquire about “Crystal” before fleeing the scene. The report described the suspicious person as a white male with short hair, a black shirt, and blue jeans who fled in a black car.

As the officer responded to the report, he passed a person driving a black car. He thought the person and car matched the descriptions in the report. A bicyclist flagged the officer down and stated that the black car that the officer had just passed nearly hit him. The officer saw Defendant Shane Kenneth Halverson driving his car, which matched the descriptions of the car and person from the report, and then stopped him. The  Defendant was subsequently arrested for a DWI, driving after cancellation and trespass.

The Defendant challenged the legality of the traffic stop arguing that the "suspicious-person" description was too general. He also argued that the bicyclist's tip could not have supported the stop because the officer did not observe any driving conduct consistent with the tip. 

The District Court upheld the legality of the stop and on appeal, the Minnesota Court of Appeals agreed with the district court noting:

"In considering whether reasonable, articulable suspicion exists, courts “consider the totality of the circumstances and acknowledge that trained law enforcement officers are permitted to make inferences and deductions that would be beyond the competence of an untrained person.” State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001); see also State v. Britton, 604 N.W.2d 84, 88-89 (Minn. 2000) (noting we are deferential to police officer training and experience). But an officer may not act on “mere whim, caprice, or idle curiosity.” Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (quotation omitted)."

"The undisputed facts here are that the officer responded to a reported trespass involving a white male with short hair, a black shirt, and blue jeans who fled in a black car. Within ten minutes of the report,  the officer stopped appellant, a white male with short hair driving in a black car near the reported trespass. The officer relied on appellant’s proximity to “the exact area of the suspected trespass” in deciding to conduct a traffic stop."

***

"Considering the description of the car and suspicious person, the officer’s testimony about the proximity of the stop to the reported trespass, and the relatively short time that elapsed between the report and the stop, we conclude that the officer had reasonable, articulable suspicion to stop appellant’s car. Consequently, we decline to address appellant’s alternative argument."

Moral Of The Story: Not every house is your home.

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.

  

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.

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.

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.

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.

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.

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.