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The Minnesota DWI Case Of The Week is State v. Anderson (decided March 27, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a sentence within the sentencing guidelines is not going to be disturbed on appeal.

In Anderson, the Defendant was charged with felony DWI as his alcohol concentration level was over the legal limit and he had a prior felony DWI from 2006. (Once a felony, always a felony unless the felony DWI is from another state). Mr. Anderson subsequently pled guilty and the district court ordered a pre-sentence investigation (PSI). The probation officer who authored the PSI report recommended that the district court impose a prison sentence of 54 months (the fixed sentence duration within the applicable sentencing range of 46 to 64 months), stay execution of the sentence, place Anderson on probation, and order him to serve one year in jail. 

The district court conducted a sentencing hearing in June 2022. The state requested that the district court impose an executed prison sentence of 48 months. The prosecutor noted that Anderson has five prior DWI convictions and two prior felony convictions, that Anderson’s alcohol concentration was more than twice the 0.08 threshold at the time of the offense, that he was driving in heavy traffic, and that his offense occurred only six months after he was charged with another felony DWI offense in Washington County. The prosecutor acknowledged that Anderson had remained sober while charges were pending but attributed his sobriety to the fact that he was subject to random testing.

Anderson’s attorney requested a downward dispositional departure on the ground that Anderson is particularly amenable to probation. Based on the information in the PSI report, Anderson’s attorney argued that Anderson had been sober for many years between his 2006 DWI conviction and his mid-2020 arrest for DWI in Washington County and had maintained sobriety again since being charged there. The attorney explained that, at the time of the offense in this case, Anderson was unemployed and had lost his home but that he since had regained employment and housing and was attending Alcoholics Anonymous (AA) meetings three times per week. The attorney introduced four letters of support written by persons who have attended AA meetings with Anderson.

The district court stated that it had read the letters of support and had “spent a lot of time looking at this and thinking about it.” The district court commended Anderson for doing well on probation for the Washington County offense. But the district court emphasized the fact that this is Anderson’s third felony DWI conviction. The district court noted its concern for public safety and stated that, in committing the current offense, Anderson had endangered others. The district court concluded by finding that Anderson is not particularly amenable to probation and that there are no substantial and compelling mitigating circumstances. Accordingly, the district court denied Anderson’s request for a downward dispositional departure and imposed an executed sentence of 48 months of imprisonment.

On Appeal, the Defendant argued that the district court erred by not exercising discretion in denying his request for a downward dispositional departure. He asserted that the district court did not consider the mitigating facts contained in the PSI report and, instead, focused on the fact that this offense is Anderson’s third felony DWI conviction. He relies on this court’s opinion in State v. Curtiss, 353 N.W.2d 262 (Minn. App. 1984), in which the court remanded for reconsideration after concluding that the district court had not considered all relevant mitigating factors. 

The Minnesota Court of Appeals affirmed the lower court noting:

"The Minnesota Sentencing Guidelines generally provide for presumptive sentences for felony offenses. Minn. Sent’g Guidelines 2.C (2020). For any particular offense, the presumptive sentence is “presumed to be appropriate for all typical cases sharing criminal history and offense severity characteristics.” Minn. Sent’g Guidelines 1.B.13 (2020). Accordingly, a district court “must pronounce a sentence . . . within the applicable [presumptive] range . . . unless there exist identifiable, substantial, and compelling circumstances to support a departure.” Minn. Sent’g Guidelines 2.D. 1 (2020)."

"The sentencing guidelines provide non-exclusive lists of mitigating and aggravating factors that may justify a departure. See Minn. Sent’g Guidelines 2.D.3 (2020). One of the listed mitigating factors is “particular amenability to probation.” Minn. Sent’g Guidelines 2.D.3.a(7). In determining whether a defendant is particularly amenable to probation, a district court may consider, among other factors, “the defendant’s . . . prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.” State v. Trog, 323 N.W.2d28, 31 (Minn. 1982)."

"This case is meaningfully different from Curtiss. In that case, the district court stated that there was “no justifiable reason” to depart from the presumptive sentence. Id. at 263. We determined that the district court had “abandoned” the possibility of a downward dispositional departure without “comparing reasons for and against.” Id. In this case, in contrast, the district court expressly mentioned the facts that Anderson’s attorney had cited in his argument for a departure, such as Anderson’s renewed sobriety, his success on probation in the Washington County case, and the letters of support submitted on his behalf. The record shows that the district court did consider the mitigating factors that might support a departure but determined that they did not outweigh other factors and did not allow a finding of substantial and compelling reasons for a departure. The district court did not abuse its discretion in doing so."

Moral Of The Story:  If you do the crime, you are presumed to do the time.

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 Maas v. Commissioner of Public Safety (Decided March 20, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that "physical control" of a motor vehicle is broader than "driving" or "operating" same.

In Maas, a Faribault County deputy observed a 2007 Dodge Durango (the Durango) in a snow-filled ditch. Upon approaching the Durango, the deputy noticed it was unoccupied, locked, and turned off. Through the Durango’s window, the deputy observed a plastic cup in the center console containing an amber liquid. The deputy recognized the plastic cup as a type bars and other establishments use to sell alcohol. The deputy left the Durango and did not interact with anyone.

Approximately two hours later, the deputy passed the Durango again. This time, the deputy noticed a man, later identified as the Petitioner, next to the Durango. The deputy observed appellant on the passenger side attempting to dig the Durango’s wheels out of the snow. Maas waved to the deputy seeking assistance. The deputy activated the emergency lights and parked near the Durango. The deputy did not observe anyone other than Petitioner within or near the Durango. At this time, the Durango was running with the keys in the ignition. Mr. Maas admitted he drove the Durango into the ditch.The deputy noticed the Petitioner exhibit indicia of intoxication and arrested Mr. Maas after he failed field tests and refused to submit to a preliminary breath test.

Mr. Maas filed a challenge to the revocation of his driver's license asserting the deputy did not have probable cause to believe Petitioner was in physical control of a motor vehicle while impaired by alcohol. The district court sustained the revocation finding probable cause, stating (1) “[appellant]’s vehicle was running, and he was in the process of trying to dig it out of the snow”; (2) “by [appellant]’s own admission, he had been consuming alcohol”; (3) appellant showed “physical symptoms of intoxication (e.g., watery and bloodshot eyes, slurring of speech and odor of alcohol)”; (4) the deputy observed a “plastic cup filled with amber liquid in the Durango’s center console”; and (5) the deputy observed “numerous empty beer cans littering the trunk of the Durango.” 

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

"We give the term “physical control . . . the broadest possible effect” to “enable the drunken driver to be apprehended before he strikes” and to “deter individuals who have been drinking from getting into their vehicles, except as passengers.” Shane, 587 N.W.2d at 641 (quotations omitted). Thus, “physical control” encompasses more than “drive” or “operate.” State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992). But “mere presence in or about the vehicle is insufficient [to show] physical control; it is the overall situation that is determinative.” Id. at 838. Courts consider several factors when determining whether a driver exercised physical control over a vehicle, including: “the person’s location in proximity to the vehicle; the location of the keys; whether the person was a passenger in the vehicle; who owned the vehicle; and the vehicle’s operability.” State v. Fleck, 111 N.W.2d 233, 236 (Minn. 2010)."

"Appellant asserts that he did not exercise physical control because the deputy never observed appellant seated in the Durango. But a person does not need to be seated behind the steering wheel to exercise physical control over the vehicle. For example, in State v. Woodward, 408 N.W.2d 927, 927-28 (Minn. App. 1987), we concluded a motorist standing alone outside the rear of her vehicle was in “physical control” when the engine was running with the key in the ignition. We noted that “a person is in physical control of a vehicle if [they have] the means to initiate any movement of that vehicle and [they are] in close proximity to the operating controls of the vehicle.” Id. (quoting State v. Duemke, 352 N.W.2d 427, 429-30 (Minn. App. 1984))."

"Appellant also argues that he did not exercise physical control because the Durango was inoperable. But we have repeatedly held that a person may exercise “physical control” over a temporarily disabled vehicle. Flamang v. Comm ’r of Pub. Safety, 516 N.W.2d 577, 580-81 (Minn. App. 1994), rev. denied (Minn. July 27, 1994); see also Woodward, 408 N.W.2d at 927-28 (concluding appellant exercised physical control even though the vehicle had a flat tire); Abeln v. Comm ’r of Pub. Safety, 413 N.W.2d 546, 547-48 (Minn. App. 1987) (concluding appellant exercised physical control over a vehicle with a dead battery); Duemke, 352 N.W.2d at 429, 432 (concluding the sleeping appellant stuck in a snow-filled ditch exercised physical control over the vehicle). “Inoperability or, more precisely, the nature and duration of any inoperability, is simply a factor or circumstance to be evaluated with all the surrounding facts and circumstances ... in determining whether the situation gives rise to physical control.” Starfield, 481 N.W.2dat 839."

***

"The deputy found appellant, by himself, digging the Durango out of the snow. When the deputy arrived, the Durango was running with the keys in the ignition. Additionally, appellant admitted the Durango belonged to him and that he drove the Durango into the snow-filled ditch. In this case, the “overall situation” supports the district court’s decision that appellant exercised physical control over the Durango. Starfield, 481 N.W.2d at 838; Fleck, 111 N.W.2d at 236."

Moral Of The Story:    If you have been drinking, don't get near any of your vehicles except as a passenger.

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. Dolby (Decided March 6, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person can commit the crime of DWI refusal to submit to testing if their conduct tends to frustrate the process.

In Dolby, the Defendant was arrested for DWI and was subsequently charged with Second Degree Refusal to submit to testing. The Defendant waived his right to a jury trial and had the matter decided by a district court judge.  The district court found the Defendant guilty of DWI refusal. On appeal, the Defendant argued the evidence was insufficient to sustain the verdict.

The Minnesota Court of Appeals affirmed the conviction, noting:

"The officer then read Doby the breath-test advisory form. Doby stated that he did not understand and needed an interpreter. But at trial, Doby testified that he grew up in St. Paul and spoke English as his native language. He explained that when he asked for an interpreter, he “felt like [he] needed a mediator” to help him understand what was happening. The breath-test advisory began at 1:36 a.m. and finished at 1:41 a.m., when the officer decided to treat Doby’s actions as a refusal to test. The officer testified that Doby never said he would take the test, while Doby testified that he never refused to cooperate with the test."

***

"The implied-consent statute provides that a driver may be obligated to submit to a chemical test of their blood, breath, or urine when an officer has probable cause to believe the driver has been operating a vehicle while intoxicated and the driver has been lawfully placed under arrest for driving while intoxicated. Minn. Stat. § 169A.51, subd. 1(a), (b)(1) (2018). It is a crime to refuse to submit to this chemical test. Minn. Stat. § 169A.20, subd. 2 (2018). When the officer requests that the driver perform the test, the driver must be informed of specific information set out in the implied-consent statute. Minn. Stat. § 169A.51, subd. 2 (2018). The statute does not state that verbal refusal is required. Minn. Stat. § 169A.20, subd. 2(1). Rather, circumstantial evidence, such as the driver’s words and actions in light of the totality of the circumstances, can establish refusal without a direct statement of unwillingness. Ferrier, 792 N.W.2d at 102. An individual’s actions that completely frustrate the implied-consent procedure constitute test refusal. State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003)."

"Here, the district court found that the state proved that Doby constantly interrupted the officer during the reading of the implied-consent advisory, asked for an interpreter three times but had no need for an interpreter, and refused to respond three times when the officer asked if Doby wanted an attorney. Further, the district court found that when the officer asked Doby if he would take a breath test, Doby indicated that he needed an interpreter and that he did not understand, but never said yes or no. Doby argues that these circumstances support the alternative rational hypothesis that he did not refuse the test because he was not given enough time to consider his options and the officer did not sufficiently explain the test requirement. We disagree."

"Doby’s actions were inconsistent with any rational hypothesis other than that he intended to frustrate the implied-consent procedure. There is no evidence in the record other than Doby’s testimony that he ever affirmatively indicated a willingness to take the test. The officer read the required advisory to Doby and gave him time to decide before treating Doby’s behavior as a refusal, and the body-camera footage does not show Doby asking for additional time. These actions demonstrate nothing other than an actual unwillingness to submit to chemical testing."

"Still, Doby argues that the officer did not give him enough time to process the implied-consent advisory and make an informed decision, and that he was not refusing. Rather, he asserts that he was asking for more time to make his decision. But the statute includes no minimum time period for giving the advisory; it only includes the information that an officer must convey to a person at the time of the breath test. Minn. Stat. § 169A.51, subd. 2. And an “officer is not required to wait for the driver to decide at his convenience whether or not he will submit to testing.” Gabrick v. Comm ’r of Pub. Safety, 393 N.W.2d 23, 25 (Minn. App. 1986) (stating that a reasonably prompt decision whether the driver will take the test aligns with the purpose of the statute to protect the public from the hazards of intoxicated drivers). Furthermore, the officer asked Doby three times if he would submit to a test, and we have held that refusing to reply after three implied-consent advisories frustrates the testing process. Busch v. Comm ’r of Pub. Safety, 614 N.W.2d 256, 257, 260 (Minn. App. 2000)."

"Finally, Doby posits that because his conduct was not persistent, extreme, offensive, and abusive from beginning to end, his conduct did not frustrate the testing process. But we have held that a simple refusal to answer the question “will you take the breath test” after it is asked once is enough to constitute a refusal to test. Gabrick, 393 N.W.2d at 25. Doby’s attempt to move the bar so that his conduct clears it is unavailing."

Moral Of The Story: Actions speak louder than words.

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.