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The Minnesota DWI Case Of The Week is State v. Brehmer (Decided April 28, 2025, Minnesota Court of Appeals, Unpublished) which stands for the proposition that even if the defendant was arrested before the police had probable cause, the evidence obtained was still admissible under the "inevitable-discovery" rule.

In Brehmer, the police saw the Defendant was driving the wrong way down a one-way street.  Defendant then hit his brakes and drove backwards into a parking lot.  The police activated their emergency lights to perform a traffic stop.  As the officers approached the Defendant's vehicle, one of the officers shouted, "Watch out. Watch out."

The officers exited the squad car with their firearms drawn and yelled at Brehmer to put his hands up. Brehmer moved his hands up and down several times before raising both hands, with one hand outside of the car window. One officer observed that Brehmer made “a lot of furtive movements . . . with the hands kind of up, down, side to side,” and specifically noted that he “reach[ed] to the right side.” 

One of the officers opened the driver-side door and pulled Brehmer from the car. The officers both pushed Brehmer to the ground face down and cuffed his hands behind his back. While Brehmer was handcuffed on the ground, one of the officers patted Brehmer’s pockets and pulled up his shirt to reveal his waistband. The officer then stood Brehmer up while handcuffed and brought him over to the squad car. The officers pat-frisked Brehmer next to the squad car, reaching into his front pants pocket and removing his wallet. During the frisk, one of the officers felt an object near Brehmer’s “right buttock area in his underwear.” He asked Brehmer what the object was, and Brehmer replied that it was “just a pipe.” The other officer removed a glass pipe from Brehmer’s underwear and, after inspecting it, concluded that it was a drug pipe containing drug residue.

One of the officers then ran information from Brehmer’s driver’s license in the police database and, after Brehmer stated that he did not have a license, confirmed that Brehmer’s license was suspended. The officer stated that he wanted to do “one more frisk search” before putting Brehmer in the back of the squad car. The officer reached into Brehmer’s front and back pockets and pat-frisked Brehmer’s body. The officer then placed Brehmer, still handcuffed, in the back of the squad car. During this time, the other officer observed that Brehmer exhibited several indicia of drug use, including pinpoint pupils, bloodshot eyes, sweating, and fast head movements. Officers also searched Brehmer’s car and found whiskey plates for the car.

One of the officers applied for and received a search warrant for Brehmer’s blood or urine for chemical testing. Officers obtained a urine sample from Brehmer that tested positive for amphetamine and methamphetamine.

The State of Minnesota charged Brehmer with felony DWI pursuant to Minn. Stat. § 169A.20, subd. 1(7) (2020). Brehmer moved to suppress evidence including the search of his person and car, his statements to the officers on the scene, and the chemical test of his urine, arguing that the police violated his right to be free from an unlawful search and seizure under the United States and Minnesota Constitutions. 

The District Court denied the motion to suppress and on appeal, the Court of Appeals affirmed stating:

"The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. And unless an exception applies, evidence obtained as a result of an unlawful search or seizure must be suppressed. State v. Bradley, 908 N.W.2d 366, 369 (Minn. App. 2018). One such exception is the inevitable-discovery doctrine, which permits a court to admit evidence obtained as a result of an unlawful search or seizure “[i]f the state can establish by a preponderance of the evidence that the fruits of a challenged search ultimately or inevitably would have been discovered by lawful means.” State v. Licari, 659 N.W.2d 243, 254 (Minn. 2003) (quotation omitted). To meet this burden, the state’s showing must “involve[] no speculative elements but focus[] on demonstrated historical facts capable of ready verification.” Nix v. Williams, 467 U.S. 431, 444 n.5 (1984)."

"It is uncontested that the officers had reasonable, articulable suspicion to stop Brehmer after observing his erratic driving and had reasonable concern for officer safety such that a Terry frisk was lawful. This frisk would have inevitably revealed the drug pipe with drug residue in Brehmer’s underwear. Indeed, the officer testified that he would have found the pipe “regardless” of any of Brehmer’s statements during the encounter."

"Similarly, the district court found that “a routine records check inevitably would have been performed” and would have revealed that Brehmer’s license was canceled as inimical to public safety and that the vehicle was subject to whiskey plates. Brehmer does not assert that this finding was clearly erroneous. One officer agreed during his testimony that it was “standard operating procedure to identify an individual” during a traffic stop, that the officer would have learned that Brehmer’s license was canceled, and that the officer would have discovered that the vehicle should have been displaying whiskey plates when stopped. See Diede, 795 N.W.2d at 846-47."

"Based on these inevitabilities, the officers would have had probable cause to arrest Brehmer for operating a vehicle while his license was canceled as inimical to public safety—a gross misdemeanor. Minn. Stat. §§ 171.04, subd. 1(10), .24, subd. 5(1) (2020). And given that probable cause to arrest, officers would have inevitably discovered the drug pipe with residue on Brehmer in a search incident to arrest. Brehmer’s erratic driving, drug pipe with residue, and his canceled license and vehicle-registration status, taken together, formed sufficient probable cause to support a warrant for chemical testing for DWI."

Moral Of The Story: If someone continues to drive and act the wrong way, they will inevitably get into trouble.

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. Kost which stands for the proposition that a defendant's failure to provide adequate samples for a breath test does not automatically constitute a criminal refusal to submit to testing.

In Kost, the defendant was arrested for a DWI and was asked to submit to a Data Master Breath Test at the police station. Ms. Kost agreed to submit to the breath test but when the officer attempted to administer the test, the machine was unable to register an alcohol concentration level. The officer attempted to administer the test a second time, but Kost’s breath sample was again inadequate. He believed that Kost was purposefully providing inadequate breath samples. During the testing process, Kost requested multiple times that another officer be brought in to administer the test because a different officer had been able to successfully administer the PBT before she was arrested; the officer declined her requests. Kost also repeatedly stated that she was not refusing to take a test and offered to provide a blood sample; the officer declined to collect a blood sample.

Ms. Kost was charged with refusal to submit to testing and at trial, the Court gave the following jury instruction:

"A refusal to submit to chemical testing includes any indication of actual unwillingness to complete the testing process, as determined from the driver’s words and actions, in light of the totality of the circumstances. Refusal may be shown in a number of ways, including verbal refusal, nonverbal indication of unwillingness to comply, failure to make a decision, or actions that frustrate the testing process. When a test is administered using an infrared or other approved breath testing instrument, the failure of a person to provide two separate, adequate breath samples in the proper sequence constitutes a refusal." 

The defense challenged the instruction arguing that the last sentence only applies to license revocations and is not proper in the criminal case as it negates the willfulness requirement of refusal. 

The Minnesota Court of Appeals agreed with the defense and reversed the conviction stating:

"Kost acknowledges that the challenged portion of the instruction was taken directly from Minn. Stat. § 169A.51, subd. 5(c). But she argues that the language of that statute misstates the law for criminal test refusal because it applies only to license-revocation proceedings. The statute provides in relevant part: “For purposes of section 169A.52 (revocation of license for test failure or refusal), when a test is administered using an infrared or other approved breath-testing instrument, failure of a person to provide two separate, adequate breath samples in the proper sequence constitutes a refusal.” Minn. Stat. § 169A.51, subd. 5(c) (emphasis added). The same introductory phrase also appears in the first of the three subsequent provisions, which collectively address when a breath test (as opposed to a sample) is deficient and when a deficient test constitutes refusal. Id., subd. 5(d)-(f) (2022). Kost argues that this introductory phrase means that the failure to provide two separate, adequate breath samples constitutes refusal as a matter of law only in license-revocation cases."

***

"The statutory provision on its face includes the qualifying language that the failure to provide two separate, adequate breath samples constitutes a refusal “[f]or purposes of section 169A.52 (revocation of license for test failure or refusal).” Minn. Stat. § 169A.51, subd. 5(c). This case is not a license-revocation proceeding under Minn. Stat. § 169A.52 (2022); it is a criminal prosecution for test refusal under Minn. Stat. §§ 169A.20, subd. 2(1), .25, subd. 1(b) (2022). Accordingly, Minn. Stat. § 169A.51, subd. 5(c), does not apply."

***

"In Ferrier, we held that a conviction of test refusal “requires proof of a volitional act that indicates unwillingness to submit to a test,” and that such “actual unwillingness” may be determined from the driver’s words and actions in light of the totality of the circumstances. Ferrier, 792 N.W.2d at 99, 102. Kost argues that, while the district court accurately recited the actual-unwillingness standard to the jury, it then negated that standard by instructing the jury that failure to provide two separate, adequate breath samples constitutes test refusal as a matter of law. Again, we agree. The latter instruction effectively directs a guilty verdict if a driver fails to provide two breath samples that the testing machine registers as adequate, even if other circumstances indicate that the driver was not actually unwilling to submit to testing."

"In sum, because Minn. Stat. § 169A.51, subd. 5(c), does not apply in this criminal test-refusal case, and instructing the jury with that statute’s language negated the actual- unwillingness standard that does apply, we conclude that the challenged jury instruction materially misstated the law regarding criminal test refusal."

Moral Of The Story: Just because you are not a blowhard does not mean that you have refused testing.

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 WI Case Of The Week is Reihs v. Commissioner of Public Safety (Decided January 20, 2025, Minnesota Court of Appeals, Published) which stands for the proposition that an extension of a revocation or cancellation of a driver's license is not subject to judicial review. I always thought procedural due process required that any government action concerning the "property interest" of a driver's license is subject to judicial review, but live and learn, in this case, to one's detriment.

In Reihs, the Petitioner's license had been revoked due to a drunk driving arrest.  Reihs enrolled in the Minnesota's Ignition Interlock program which enabled him to regain driving privileges subject to the requirements laid out in the interlock-program guidelines. 

The interlock-program guidelines require participants to submit to two types of alcohol-detecting breath tests via a device installed in their vehicle: an initial test and rolling tests. The participant must pass the initial test to legally start their vehicle. The device then periodically requests rolling tests at intervals of five to 45 minutes while the vehicle is running. 

Reihs he failed to complete multiple rolling tests. Because of this, in July 2023, the commissioner sent him a warning letter stating that he had violated the interlock-program guidelines and that further violations would result in an extension of his program enrollment. In September, after Reihs again missed rolling tests, the commissioner informed him that his license-revocation period was extended for 180 days pursuant to Minn. Stat. § 171.306, subd. 5(a). And when Reihs thereafter continued to miss rolling tests, the commissioner advised him that his revocation period was extended for an additional year. Both extension notices included language informing Reihs that he had “the right to judicial review” as “outlined in Minnesota Statutes, section 171.19.”

Reihs filed a challenge in district court to the extension of the license revocation period but the lower court held that it lacked "subject matter" jurisdiction because extension of a revocation is not one of the five challenges enumerated in Minn. Stat. § 171.19. 

In a published decision, the Minnesota Court of Appeals upheld the lower court stating:

"Minn. Stat. § 171.19 provides, in pertinent part:

Any person whose driver’s license has been refused, revoked, suspended, canceled, or disqualified by the commissioner, except where the license is revoked or disqualified under section 169A. 52, 171.177, or 171.186, may file a petition for a hearing in the matter in the district court."

"First, Reihs asserts that extending a license-revocation period constitutes a 'revocation' under Minn. Stat. § 171.19 because there is “no material difference” between   a revocation and an extension of revocation. He suggests that an extension of a revocation period is, effectively, a 're-revocation.' We disagree."

The appellate court reviewed various definitions of revocation and found, "...'revocation' plainly means the initial act or instance of withdrawing a person’s driver’s license. Because an extension of a revocation period is not an initial instance of license withdrawal but a continuation of a withdrawal that has already occurred, it is a distinct and separate action from the revocation itself. Simply put, a revocation extension does not alter the license status of the revoked person. Accordingly, we conclude that the plain meaning of the term “revocation,” as used in Minn. Stat. § 171.19, does not include an extension of a driver’s license revocation issued pursuant to Minn. Stat. § 171.306, subd. 5(a)."

"Second, Reihs argues that, if an extension of revocation is not a “revocation” under Minn. Stat. § 171.19, it is a “de facto refusal to restore [his] license.” This argument is no more convincing."

"Like “revocation,” the term “refusal” is not statutorily defined. See Minn. Stat. § 171.01. Dictionaries define it as “[t]he act or an instance of refusing,” The American Heritage Dictionary of the English Language 1478, and “a denial or rejection of something demanded or offered,” 13 The Oxford English Dictionary 494. To “refuse” means to “indicate unwillingness to do, accept, give, or allow,” The American Heritage Dictionary of the English Language 1478, and to “decline to take or accept (something offered or presented); to reject [an] offer,” 13 The Oxford English Dictionary 495."

"The ordinary meaning of the term “refusal” clearly contemplates an action taken in response to a preceding request, application, or demand. Indeed, “indicating] unwillingness” and “declining] to accept” are both affirmative, responsive actions. Similarly, both definitional phrases imply discretion on the part of the refuser. It follows that an extension of revocation issued due to a violation of the interlock-program guidelines cannot be a “refusal.” This is so because an extension does not arise from any sort of request or application and it does not depend on the exercise of the commissioner’s discretion. Minn. Stat. § 171.306, subd. 5(a) (stating “[i]f a program participant. . . violates the program guidelines . . ., the commissioner shall extend the person’s revocation period” (emphasis added)). We conclude that the plain meaning of the term “refusal,” as used in Minn. Stat. § 171.19, does not encompass an extension of a driver’s license revocation issued under Minn. Stat. § 171.306, subd. 5(a). 

"A district court lacks subject-matter jurisdiction under Minn. Stat. § 171.19 to review the extension of a driver’s license-revocation period. Accordingly, the district court did not err by denying Reihs’s petition."

Moral Of The Story: Once you are in the program, the Courts are not going to help you get out of it.