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 DWI Case Of The Week is State v. Lang (Decided October 21, 2025, Minnesota Court Of Appeals, Unpublished) which stands for the proposition that the police may expand a traffic stop to investigate a possible DWI if the police action is reasonably related to the circumstances arising from the stop. 

In Lang, the Defendant was stopped by the police for failing to signal a lane change. The officer who stopped the Defendant recognized her and knew that Ms. Lang had a history of drug-related criminal activity. The officer directed Lang out of her vehicle and then questioned her about where she was traveling and her plans for the day. While speaking with Lang, the officer observed her to have “excited” behavior, facial twitching, dilated pupils, and dry lips. Based on his training and experience, the officer recognized these as indicia of recent methamphetamine use. The officer questioned Lang about her drug use. Lang responded that she had not used methamphetamine since March 2022. She agreed to perform field sobriety tests, after which the officer informed Lang that he believed that she had used methamphetamine more recently. After she admitted to smoking methamphetamine four days earlier, the officer arrested Lang.

The State of Minnesota charged Lang with one count of fourth-degree DWI (body contains any amount of schedule I/II drugs) and one count of fourth-degree DWI (under the influence of a controlled substance), in violation of Minn. Stat. § 169A.20, subd. 1(2), (7). Lang moved to suppress all the evidence obtained from the traffic stop arguing (among other things) the expansion of the stop was unlawful because the officer had no reasonable suspicion that Lang was driving while under the influence of a controlled substance. The District Court denied the defense motion to suppress and on appeal, the Minnesota Court of Appeals upheld the lower court stating:

"First, Lang argues that the officer expanded the scope of the stop by ordering her out of her vehicle without articulating safety concerns. We are not persuaded. An “officer may order a driver out of a lawfully stopped vehicle without an articulated reason.” Askerooth, 681 N.W.2d at 367 (citing Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977)). This is so because such an additional intrusion is de minimis. Mimms, 434 U.S. at 111. Accordingly, the officer did not expand the traffic stop by asking Lang to step out of her vehicle."

"Second, Lang contends that the officer expanded the scope of the stop by asking her and her passenger “general investigative” questions and extended the duration of the stop by questioning her passenger. An officer expands the scope of a stop if they engage in investigative questioning unrelated to the purpose of the stop and without reasonable, articulable suspicion of other criminal activity. See State v. Fort, 660 N.W.2d 415, 418-19 (Minn. 2003) (concluding no reasonable suspicion to expand a traffic stop for speeding and a cracked windshield to include questions about drugs and weapons); Sargent, 968 N. W.2d at 40-42 (holding that questions about pretrial release conditions were questions about noncriminal activity unrelated to a traffic stop). But an officer may “ask the driver about [their] destination and the reason for the trip” during a routine traffic stop. State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003). That is the situation here. Once the officer had ordered Lang out of the car, he proceeded to ask her questions about how she knew her passenger and where they were heading for the day. The officer then asked the passenger the same questions. We conclude that the officer’s initial questioning of Lang and her passenger falls within the scope of the “reason for the trip,” and did not expand the scope of the stop. Id."

"To the extent that Lang argues that the officer’s questioning of her passenger extended the duration of the stop, as we discuss below, the record demonstrates that the officer had reasonable suspicion that Lang was under the influence of methamphetamine before speaking to the passenger. In other words, the officer had a valid basis to continue to detain Lang during the passenger’s brief questioning. State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002) (“Law enforcement may continue the detention as long as the reasonable suspicion for the detention remains provided they act diligently and reasonably.” (quotation omitted))."

"Third, Lang argues that the officer impermissibly expanded the scope of the stop by continuing to question her about drug use after returning her license and registration and by administering field sobriety tests. This argument is unavailing. The officer testified that he observed “possible signs of impairment” early on, while speaking with Lang about what she was doing for the day. He described Lang as exhibiting “excited” behavior, very dry lips, dilated pupils, and facial tremors. Based on his experience and training, the officer recognized these as signs of possible drug use. The district court expressly found this testimony reliable. One “objective indicator of intoxication” can constitute reasonable suspicion that a person is under the influence. Otto v. Comm ’r of Pub. Safety, 924 N.W.2d 658, 661 (Minn. App. 2019) (quotation omitted). This record persuades us that the officer had reasonable, articulable suspicion to expand the traffic stop by asking Lang about drug use and requesting field sobriety testing."

"In sum, the record supports the district court’s findings that Lang (1) violated a traffic statute by failing to signal when changing lanes, and (2) exhibited multiple indicia of controlled-substance use. Because the traffic stop was valid and the officer permissibly expanded it based on reasonable suspicion that Lang was impaired, we conclude that the district court did not err by denying Lang’s suppression motion."

Moral Of The Story: Loose lips sink ships.

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.

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. Quiroz (Decided December 9, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you are going to present a SODDI (Some Other Dude Did It) defense, you have to disclose more than a name.

In Quiroz, the Defendant was charged with felony DWI and he sought to use an alternative perpetrator defense.  The Defendant's attorney notified the state and the district court of his intent to use the defense and moved to introduce evidence to support his defense theory, requesting that the district court allow him to name the alleged alternative perpetrator. The only evidence appellant put forth to support his alternative-perpetrator defense was a name. At the hearing, Defendant's counsel explained that there was no additional information to disclose. The district court ruled that because the evidence was “just a name,” and there was not “any tendency to connect [the] name of some individual with the charged crime,” appellant could not name the alleged alternative perpetrator at trial.

A jury convicted the Defendant and on appeal he argued that  the district court violated his right to present a complete defense by preventing him from naming the person driving the car.

The Court of Appeals affirmed the conviction, noting"

"A criminal defendant is guaranteed a constitutional right to present a meaningful defense. State v. Ferguson, 804 N.W.2d 586, 590-91 (Minn. 2011)."

***

"Included within the right to present a complete defense is the right to present evidence showing that an alternative perpetrator committed the crime with which the defendant is charged. Id. State v. Nissalke, 801 N.W.2d 82, 99 (Minn. 2011). 'Determining whether alternative perpetrator evidence was improperly excluded at trial involves a two-step analysis.' State v. Atkinson, 774 N.W.2d 584, 590 (Minn. 2009). 'First, we must determine whether the defendant laid a proper foundation for admission of such evidence by offering evidence that has an inherent tendency to connect the alternative perpetrator to the commission of the charged crime.' Id. If the defendant fails to lay a proper foundation, the alternative perpetrator defense will not be permitted; but if the defendant lays a proper foundation, he may then introduce evidence of a motive of the third person to commit the crime, threats by the third person, or other miscellaneous facts tending to prove the third party committed the crime. Id."

"When appellant notified the state and the district court of his intent to rely on the alternative-perpetrator defense at trial, the only evidence he offered to support his theory was that “[someone else] committed the crime with which [appellant] is charged.” He offered no further evidence to support his theory, and the district court therefore properly rejected his motion because he had given “no information,” and the name alone provided “no connection” between the crime and the alleged perpetrator. And the district court’s ruling did not bar appellant from putting forth a meaningful defense. At trial, appellant testified at length regarding the series of events that led to his arrest and his testimony suggested that someone else had been driving the car."

Moral Of The Story:  The next time you have someone else drive your car, take their picture.

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.

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 Olson v. Commissioner of Public Safety (Decided October 21, 2019, Minnesota Court of Appeals, Unpublished) which, once again, stands for the proposition that if the Data Master Breath Testing machine prints a breath test result at or above the legal limit, the uncertainty of measurement inherent in said machine is not "relevant".

In Olson, the Petitioner was arrested for a Minnesota DWI and he tested at .16% BAC on the Data Master Breath testing machine.  Mr. Olson filed a challenge to the revocation of his license and notified the Commissioner of Public Safety that he intended to offer the testimony of a “breath testing expert” from the Bureau of Criminal Apprehension, who would “testify regarding the foundational reliability of the breath test result” and “the uncertainty of measurement values that apply to these breath test results.” The next day, the commissioner filed a motion in limine to exclude Olson’s evidence concerning uncertainty of measurement on the ground that the evidence is irrelevant.

The district court subsequently filed an order in which it granted the commissioner’s motion in limine and sustained the revocation of Olson’s driver’s license. The district court focused on the admissibility of Olson’s evidence concerning uncertainty of measurement. The district court stated that the terms “margin of error” and “uncertainty of measurement” describe the same concept and noted, “While a petitioner may challenge the actual administration of a breath test, a petitioner may not challenge the general reliability of the breath test, whether via margin of error, uncertainty of measurement, or another similar statistical method.”

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

"Evidence consisting of “the results of a breath test” is, as a matter of law, “admissible in evidence without antecedent expert testimony that an infrared or other approved breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath,” so long as the breath test was “performed by a person who has been fully trained in the use of an infrared or other approved breath-testing instrument . . . pursuant to training given or approved by the commissioner of public safety or the commissioner’s acting agent.” Minn. Stat. § 634.16 (2018); see also In re Source Code, 816 N.W.2d at 528 n.3; State v. Norgaard, 899 N.W.2d 205, 207-08 (Minn App. 2017); State v. Ards, 816 N.W.2d 679, 685 (Minn. App. 2012). “But section 634.16’s presumption of reliability may be challenged in a proceeding under section 169A.53, subdivision 3(b)(10), which specifically permits a driver to challenge the reliability and accuracy of his or her test results.” In re Commissioner of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007); see also State v. Underdahl, 767 N.W.2d 677, 685 n.4 (Minn. 2009)."

***

Olson "sought to prove that the breath-test results were not accurately evaluated on the ground that the DataMaster instrument’s measurements of the alcohol content of his breath samples was subject to a degree of uncertainty. Olson contends that his proffered evidence was relevant because it would have shed light on the 'actual true range' of the alcohol concentration of his breath samples."

The Court of Appeals rejected the proffered evidence as not "relevant" as there are a long line of cases which state that  “Minn. Stat. § 169.123 (1982), does not require the Commissioner of Public Safety to prove an alcohol concentration of. 10 within an alleged margin for potential error.” Grund, 359 N.W.2d at 653. A later opinion explained the rationale for that statement:

Under Minn. Stat. § 169.123, subd. 4 (1982), the Commissioner must revoke a person’s license when “the test results indicate an alcohol concentration of. 10 or more.” The statute clearly requires a concentration of. 10—not. 10 plus or minus an error factor. And, Minn. Stat. § 169.123, subd. 6(3) (1982), expressly limits the issue to be raised at a hearing to whether “the test results indicate an alcohol concentration of .10 or more at the time of testing,” not whether or not the reading was . 10, coupled with some margin of error."

***

"In light of the above-described caselaw, as well as the fact that both of the Datamaster’s two measurements exceed the legal threshold, the district court did not abuse its discretion by reasoning that Olson’s proffered evidence was not relevant to the issue to be decided at the implied-consent hearing."

Moral Of The Story:  When it comes to breath testing, close enough is good enough.

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. Larson (Decided September 23, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a bicycle becomes a motor vehicle subject to the Minnesota DWI laws if it has a motor on it.

In Larson, the appellant argued that the state failed to prove beyond a reasonable doubt that he operated a motor vehicle when riding his three-wheeled, motorized bicycle. The Court of Appeals rejected his contention noting that "Minn. Stat. § 169A.20, subd. 1 (2016). Section 169A.03, subd. 15 defines “motor vehicle” as “every vehicle that is self-propelled .... The term includes motorboats in operation and off-road recreational vehicles, but does not include a vehicle moved solely by human power.” The DWI definitions point to chapter 169 for the definition of a “vehicle”: “every device in, upon, or by which any person or property is or may be transported . . . upon a highway.” Minn. Stat. § 169.011, sub. 92 (2016)."

"The relevant statutes are unambiguous and they are only subject to one reasonable interpretation. We therefore construe the words of the statutes according to their plain and ordinary meaning. Accordingly, chapters 169A and 169 provide that when a person under the influence of alcohol operates a device that can transport a person or property upon a highway and is self-propelled, that person commits a crime. But operation of a device that is moved solely by human power while under the influence does not result in a crime under the DWI statutes."

"The motor-vehicle definition provides two requirements for a motor vehicle: (1) self-propelling and (2) not moved solely by human power. Here, the bicycle’s motor, which allows the bicycle to travel up to 40 miles-per-hour, makes the bicycle self-propelling. The motor and gas tank are affixed to the bicycle, and a chain connects the motor to the rear wheel to propel it. Although the record does not support this, Larson argues that his motorized bicycle can also operate solely by being pedaled, without the motor running. Even taking this as true, Larson’s motorized bicycle meets the definition of “motor vehicle” because the motor makes it a self-propelling vehicle, and the bicycle is not solely moved by human power because it has a self-propelling motor."

***

"Accordingly, we affirm the district court’s ruling that Larson’s motorized bicycle falls under the “motor vehicle” definition, and therefore sufficient evidence supports his conviction."

Moral of the Story: It doesn't matter if you have your motor running.

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.

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. Kalkbrenner (Decided August 12, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police can make stuff up to justify an automobile stop and as long as the court calls their claim a "reasonable mistake of fact" the stop will be upheld.

In Kalkbrenner, a police officer observed that the taillights on appellant’s vehicle were not illuminated and initiated a traffic stop. While speaking with appellant, the officer noticed multiple indicia of intoxication and placed appellant under arrest. Appellant was charged with third-degree impaired driving and a taillight infraction. Appellant moved to suppress the evidence obtained as a result of the stop, arguing that the officer mistakenly thought the vehicle’s taillights were not illuminated and his mistake was objectively unreasonable. The parties stipulated to the underlying facts of the case and submitted the police reports and a statement from an automotive expert, which stated it is impossible to turn on the headlights without also turning on the taillights and that an examination of the vehicle four days after the stop indicated that all the lights were in working order. The district court did not hear any testimony and decided the matter based on the stipulated facts and briefing by the parties. The court assumed that the officer’s “observation of the taillights on [appellant]’s vehicle [w]as a mistake of fact,” and denied the motion to suppress on the ground that the officer’s mistake was reasonable.

On appeal the Minnesota Court of Appeals upheld the district court, stating:

"Given the unrebutted expert testimony and the report from the body shop, the district court found that the officer “may have made a mistake of fact” regarding the taillights. However, the court concluded that “[b]ased upon the stipulated record before the Court, assuming [the officer]’s observation of the taillights on [the] vehicle as a mistake of fact, the Officer’s mistake was reasonable.”2 Minnesota law recognizes that an officer’s “honest, reasonable mistakes of fact are unobjectionable under the Fourth Amendment.” State v. Licari, 659 N.W.2d 243, 254 (Minn. 2003). Further, a good-faith and reasonable mistake of fact will not invalidate an otherwise valid stop. See State v. Sanders, 339 N.W.2d 557, 560 (Minn. 1983) (holding that stop based on a reasonable mistake of identify was lawful). Even if the officer made a mistake of fact as to the taillights, there is no evidence in this record that his mistake was the product of “mere whim, caprice, or idle curiosity” or unreasonable. State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996). As such, the officer’s traffic stop was not “unobjectionable under the Fourth Amendment.” Licari, 659 N.W.2d at 254."

I can't object to the appellate court's analysis as they were stuck with the district court's finding that the mistake was "reasonable". But the district court's ruling that the mistake was "reasonable" is absurd.  Either the tail lights were on or they were off.  Their condition is not something that is "reasonably mistaken". I know that when I drive down the highway, I often cannot tell if the car in front of me has working tail lights at night.  I mean, give me a break.

Moral Of The Story:  Get the squad video for every DWI case.

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. Preston (Decided August 5, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police may conduct a traffic stop if they observe a partially obscured license plate.

In Preston, Beltrami County Sheriff's Deputy Bender was monitoring traffic when the Defendant drove past.  The Deputy was unable to read Defendant's license plate number as it was obstructed by a dangling light.

Deputy Bender initiated a traffic stop. He then approached the car and recognized the Defendant. Deputy Bender knew Defendant's driver’s license was cancelled. Preston was arrested and Deputy Bender searched the vehicle and found numerous smoking devices, marijuana, and an open container of alcoholic iced tea. Appellant admitted to smoking methamphetamine six hours earlier. A search warrant was obtained and executed, and appellant’s blood tested positive for methamphetamine.

Defendant was charged with driving after cancellation, DWI and 5th Degree possession. Mr. Preston filed a motion to suppress arguing the initial stop of his vehicle was not valid. 

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

"Minnesota law prohibits obstructing the view of a license plate. “The person driving the motor vehicle shall keep the plate legible and unobstructed ... so that the lettering is plainly visible at all times.” Minn. Stat. § 169.79, subd. 7 (2016). In finding that appellant violated this traffic law, the district court relied on a photograph of the license plate and testimony from Deputy Bender. The photograph, taken at the time of the traffic stop, shows a light dangling over the last three letters of the license plate. One letter is obstructed and another letter is partially obstructed. Further, Deputy Bender testified that the light made the license plate “difficult to see.” Because the record supports the district court’s factual finding that the license plate was obstructed and this provided Deputy Bender with a reasonable, articulable suspicion to stop appellant’s vehicle, we affirm."

Moral Of The Story: He should have joined the "clean plate" club!

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 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. Handeland (Decided June 24, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that ANY time spent in a Minnesota jail or for a mental evaluation must be credited when imposing jail time for an unrelated offense.

In 2012, the Defendant was convicted of First Degree DWI in Mille Lacs County and was given a sentence of 42 months stayed, with the Defendant to serve to 180 days jail, 60 of which were done in the jail facility with the remainder on electronic home monitoring. 

Mr. Handeland was arrested in April 2016 in Benton County for Felony DWI.  The District Court in Benton County found the Defendant incompetent to stand trial and he was ordered into the state's competency restoration program at the  Anoka County Treatment Center. Mr. Handeland was found competent in November 2016 and his Benton County case resumed, resulting in a guilty plea in April 2018.

In between the Defendant's return to competency and his April 2018 plea, he managed to get arrested on two separate fifth-degree controlled-substance offenses and spent additional days in local jails related to those offenses.

At the Defendant's 2018 sentencing in Benton County, the district court sentenced Handeland to 60 months in prison, stayed execution of the sentence and placed him on probation for seven years. The court awarded the Defendant 194 days of jail credit.

Mille Lacs County then brought the Defendant back to face a probation revocation hearing. The district revoked Handeland's probation and sentenced him to 42 months in prison and only awarded the Defendant eight days of custody credit.  How stupid!

On appeal, the Minnesota Court of Appeals reversed the lack of custody credit and does a nice job explaining when a Defendant is entitled to credit for jail time and treatment. As stated by the Court:

"Between his 2012 Mille Lacs County arrest for DWI and the 2018 execution of his 42-month sentence for that DWI, Handeland spent approximately 389 days in custody. Those days largely fall into three buckets: the days spent in the Mille Lacs County jail related to the 2012 DWI; the days spent in local jails related to other convictions (primarily an additional DWI arrest and conviction in Benton County) and days spent in examination and treatment as part of his competency restoration. To properly calculate Handeland’s custody credit, we first address the Mille Lacs County jail time, clearly related to the underlying DWI conviction. Next, because both the second and third buckets of days involve unconnected cases, we then turn to the issue of how to evaluate credit for intrajurisdictional custody. Finally, we address the custody-credit standards for secure treatment for competency-restoration purposes."

60 Days In Mille Lacs County Jail:

"The Minnesota Rules of Criminal Procedure clearly state that a criminal defendant is entitled to jail credit for time spent in custody “in connection with the offense or behavioral incident being sentenced.” Minn. R. Crim. P. 27.03, subd. 4(B) (emphasis added). As the state concedes on appeal, although these days were not discussed at Handeland’s probation-violation hearing, they clearly were time spent in custody in connection with the original sentence and should count as custody credit."

Credit for Custody in Unconnected Cases:

In State v. Brown, the Minnesota Supreme Court held that jail time spent out-of-state will not be credited unless it is connected to the offense for which the Defendant is being sentenced.  But this does not apply to in-state, but unrelated cases.  The reason is, "In evaluating credit for intrajurisdictional custody, we seek to avoid four potential concerns: “de facto conversion of a concurrent sentence into a consecutive sentence; indigent persons serving effectively longer sentences as a result of their inability to post bail; irrelevant factors . . . affecting the length of incarceration; and manipulation of charging dates by the prosecutor so as to increase the length of incarceration"(citations omitted).

"Having reviewed the governing approach to intrajurisdictional credit, we turn to the time Handeland spent in other local jails. This constitutes 194 days—primarily related to the Benton County DWI—between his original Mille Lacs County sentencing and his probation revocation five years later....To deny credit without evaluating these days in light of the intrajurisdictional approach described above was error."

Mental Health Treatment Credit:

The Court of Appeals notes that Rule 20.01, subd. 11, states: "If the defendant is convicted, any time spent confined to a hospital or other facility for a mental examination under this rule must be credited as time served."

"As the state suggests, the rule only dictates jail credit for the examination period. Minn. R. Crim. P. 20.01, subd. 11. But our inquiry does not end with this rule. As this court explained in Bonafide, the language of the rule may simply not address—rather than affirmatively exclude—credit for competency-restoration treatment during a commitment."

"And to examine this issue of credit for treatment, the Bonafide court first looked at the supreme court’s expansion of custodial credit, in light of “the philosophy behind the rule.” Id. at 214. This court also, citing other state court decisions, explained that “the degree of deprivation of liberty in a mental commitment facility is equivalent to a jail or prison facility.” Id. And this court took note of the ABA Criminal Justice Mental Health Standard, which provides that a defendant detained for examination of competence “or treatment... to effect competence to stand trial should receive credit against any sentence ultimately imposed for the time of such pretrial confinement.” Id. at 215. As a result, the Bonafide court interpreted rules 20.01 and 27.03, subd. 4, as requiring credit against sentence for custodial time spent in a secure hospital under a rule 20 presentence commitment procedure.  We see no reason to retreat from Bonafide, to the more restrictive reading of rule 20 the state suggests."

Moral Of The Story:  In Minnesota, we give credit where credit is due!

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. Anderson (Decided June 17, 2019, Minnesota Court of Appeals, Published) which stands for the proposition that the use of a prior implied consent license revocation to enhance the severity of the current DWI charge does not violate due process provided the prior implied consent license revocation is "final" prior to the conviction for the current offense.  This case just basically follows State v. Wiltgen, 737 N.W.2d 561 (Minn. 2007).

In Anderson, the defendant was arrested for DWI on October 2, 2016 and on December 18, 2016.  Anderson filed a challenge to the October DWI license revocation but in April 2017, Anderson waived his right to further judicial review of the October license revocation.

On August 7, 2017. the state charged Anderson with 2nd Degree DWI Refusal using the October license revocation to enhance the charges stemming from his December 2016 arrest.

The Defendant filed a Motion To Dismiss the 2nd degree charge arguing that at the time the December offense was committed, the challenge to the October license revocation was not "final" and the revocation could not be used to enhance the present charge.  The Court of Appeals rejected the argument stating"

"The United States and Minnesota Constitutions guarantee due process of law for criminal defendants. U.S. Const, amend. XIV, § 1; Minn. Const, art. I, § 7. Due process requires an “opportunity to be heard at a meaningful time and in a meaningful manner.” State v. Krause, 817 N.W.2d 136, 145 (Minn. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976)) (other quotation omitted). The United States Supreme Court has held that when an administrative proceeding, such as a license revocation, plays a “critical role” in imposing a subsequent criminal sanction, “there must be some meaningful review of the administrative proceeding.” United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S. Ct. 2148, 2155 (1987). Accordingly, some “means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense."

***

"In Wiltgen, the supreme court applied the three-part test established in Mathews v. Eldridge. Id. at 568-70 (citing Mathews, 424 U.S. at 335, 96 S. Ct. at 903). After weighing the Mathews factors, the supreme court determined that the combined private interest and risk of an erroneous deprivation outweighed the government interest. Id. The supreme court held that the potential prejudice to the defendant “from the use of an unreviewed administrative revocation to enhance a subsequent DWI rises to the level of a violation of [the defendant’s] right to procedural due process.” Id. at 570."

"In footnote seven of Wiltgen, the supreme court considered whether the state was prejudiced by its ruling and determined that it was not. Id. at 572 n.7. The supreme court reasoned that, in future cases, the state “can delay the issuance of a second-degree DWI complaint until after the implied consent hearing has been conducted and the revocation has been sustained, or can charge third-degree DWI before the implied consent hearing and amend the complaint to add a second-degree DWI charge after the hearing."

***

"Like the defendant in Heino, Anderson filed, then waived review of, his petition for judicial review of his 2016 license revocation before the state served a complaint that asserted an aggravating factor for his 2016 DWI. Although Heino involved a defendant’s property interest, and Anderson’s due-process claim involves his liberty interest, the risk of an erroneous deprivation is slight for Anderson. See Heino, 762 N.W.2d at 264 (concluding that “the risk of erroneous deprivation in this case was minimal”). If Anderson had proceeded with judicial review of the 2016 license revocation and successfully obtained a rescission, then the state could not have used his revocation as an aggravating factor for his 2016 DWI."

Moral Of The Story:  If you can delay and delay and delay justice, you may be able to deny it!

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. Donner (Decided June 10, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a defendant need only make a prima facie showing to be entitled to a jury instruction.

Mr. Donner was arrested for a DWI on August 7, 2016 after driving home from a nightclub.  He testified at trial that someone slipped him a drug and that he was entitled to an involuntary intoxication jury instruction.

Mr. Donner testified he ordered a club soda at a night club while his friend went to the dance floor.  Mr. Donner had been in a car accident roughly a week before the arrest, and so, following his doctor’s recommendation, he did not have any alcoholic beverages to drink that night. He was also carrying about $300 in cash because he had been paid the same day.

Defendant testified that after his friend went to dance, he was approached at the bar by a woman he did not know. He purchased a drink for this woman. After chatting with this woman, appellant left his club soda at the bar while he went to the bathroom, and then came back and continued his conversation with the same woman at the bar for approximately 20 or 30 more minutes.

Mr. Donner then ended this conversation and joined his friend on the dance floor. After a short time, he “started to feel funny,” so he went back to the bar to buy a bottle of water. At this point, Donner noticed that most of the $300 in cash he had been carrying was gone. After looking and asking around for his missing money, the Defendant got upset and decided to leave the club.

R.A., a security guard at the parking lot Donner parked at, testified that appellant walked to the garage around 2:00 a.m. on August 7, 2016. Defendant appeared drunk, and R.A. told him to take a nap before driving. A.S., a second security guard at the parking garage, testified that he saw Defendant get into his car, sit without driving for four or five minutes, start driving, and almost immediately hit a parked car. R.A. then called 911 to summon the police.

Officer Ross Blair was one of the officers who responded to the call. When Officer Blair arrived, Defendant was asleep in his car and had to be woken up. Officer Blair testified that appellant showed signs of intoxication and failed multiple field sobriety tests, but did not smell like alcohol. Defendant also took a preliminary breath test for the presence of alcohol which did not detect any alcohol in appellant’s system. Police arrested Defendant based on his failed sobriety tests and took him to get tested for the presence of other chemicals in his system.

Police obtained a warrant for Defendant's blood, had a sample taken at a nearby hospital, and sent it to the Bureau of Criminal Apprehension to be tested for the presence of intoxicants. The test revealed that Defendant had a significant amount of alprazolam, more commonly known as Xanax, in his system. The therapeutic range for alprazolam is between .02 and .06 milligrams per liter, while the testing revealed appellant had a concentration of .074 milligrams per liter in his bloodstream. Appellant was eventually charged with second-degree driving while impaired in violation of Minn. Stat. § 169A.20, subd. 1(2) (2016), and careless driving in violation of Minn. Stat. § 169.13, subd. 2 (2016).

At trial, Defendant did not contest the fact that he drove while impaired, but testified that he did not knowingly consume any intoxicating substances the evening of his arrest. At the close of evidence, the district court considered whether to instruct the jury on the affirmative defense of involuntary intoxication. Though the district court noted that it was a “close call,” it elected not to include this instruction, concluding that Defendant had failed to establish a prima facie case.

On appeal, the Minnesota Court of Appeals justifiably reversed the district court.  It appears that the district court did not know the meaning of prima facie. Or, as stated by the Court of Appeals:

"It is beyond dispute that a party is entitled to an instruction on his theory of the case if there is evidence to support it.” State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977). If an instruction is “warranted by the facts and relevant law” it must be given. State v. McCuiston, 514 N.W.2d 802, 804 (Minn. App. 1994), review denied (Minn. June 15, 1994); see also State v. Moser, 884 N.W.2d 890, 905 (Minn. App. 2016) (noting that once a defendant meets “a burden of production by making a prima facie showing that the defense applies,” the district court must give a jury instruction on an affirmative defense)."

"A prima facie showing is that which is “based on what seems to be true on first examination, even though it may later be proved to be untrue.” Black’s Law Dictionary 1382 (10th ed. 2014) (defining “prima facie”). “[T]he defendant’s burden of making a prima facie showing that would entitle him to a jury instruction and the defendant’s burden of proving to the trier of fact by a preponderance of the evidence each element of the defense proffered are two separate inquiries.” State v. Voorhees, 596 N.W.2d 241, 250 n.2 (Minn. 1999)."

***

"We conclude that, when viewing the evidence in the light most favorable to appellant, appellant did establish a prima facie case for the affirmative defense of involuntary intoxication. Therefore, the district court abused its discretion when it declined to instruct the jury on involuntary intoxication."

Moral Of The Story:  While appearances may be deceiving, they are enough to get you a jury instruction.

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.

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 Platt v. Commissioner of Public Safety (Decided April 29, 2019, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you act like a jerk, you will get jerked around.

In Platt, the Petitioner was arrested for DWI and the arresting officer obtained a search warrant for a sample of Mr. Platt's blood or urine. Platt refused to submit to blood testing and said that he would submit to urine testing, but demanded time and water in order to provide the sample. Over the next hour, the officer would check in to see if Platt was prepared to give the sample, but Platt repeatedly indicated that he needed more time. In all of his interactions with the officer, Platt was insulting and profane, frequently shouting over the officer. The officer determined that Platt’s conduct amounted to test refusal, and so informed the commissioner of public safety, leading the commissioner to revoke Platt’s license.

Platt filed a challenge to the license revocation in district court arguing that : (1) his license cannot be revoked as the officer did not read him the statutorily mandated advisory and (2) that his right to due process was violated as he was not told that his refusal to submit to testing was a crime.

The district court upheld the license revocation and on appeal, the Minnesota Court of Appeals affirmed noting that they need not decide the merits of Mr. Platt's arguments as there are a long line of cases which hold that a driver's misbehavior constitutes a waiver of rights under the implied consent law. Or, as stated by the Court:

"Drivers who are arrested on suspicion of driving while intoxicated have a duty to avoid frustrating the implied-consent testing process. State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003). When a driver’s conduct prevents officers from completing the implied-consent procedure, the driver is deemed to have waived his or her rights under that process. See State v. Busch, 614 N.W.2d 256, 259 (Minn. App. 2000) (holding that a driver who frustrated the implied consent process by his silence had waived his right to an attorney). Thus, where a driver prevented an officer from reading the implied-consent advisory by “screaming, swearing, making accusations of rape, and insisting that she would not listen,” the driver could be convicted for test refusal even though the implied-consent advisory was not read and she was never provided with an opportunity to contact an attorney. Collins, 655 N.W.2d at 658. Although Collins and Busch address the limited right to counsel, their rationale applies here. See id.; Busch, 614 N.W.2d at 259-60; see also Sigfrinius v. Comm ’r of Pub. Safety, 378 N.W.2d 124, 126 (Minn. App. 1985) (holding that a driver’s conduct frustrates administration of the test where his conduct is “calculated to avoid any ‘suspension’ of his license”). Accepting Platt’s argument that implied consent cases also apply to Minn. Stat. § 171.177, a driver receiving a warrant advisory may not frustrate the advisory and then contest the revocation because the advisory was not given."

Moral Of The Story:  If you have been arrested, don't make matter worse for yourself by being a jerk.

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. Rusthoven which stands for the proposition that if you act like you have something to hide, you are going to get searched by the police.

In Rusthoven, the Defendant was stopped for speeding in Swift County, Minnesota. When Deputy Hoffman approached the Defendant's truck, he noticed Mr. Rusthoven was, "very fidgety and very agitated".  When Deputy Hoffman asked Rusthoven if he was under the influence of a controlled substance, Rusthoven became “even more agitated.”

The deputy returned to his squad car to look up Rusthoven’s driver’s license. The search revealed that Rusthoven’s license was restricted, requiring that, if any drugs were found in his system, his license would be invalidated. The deputy returned to speak with Rusthoven and observed that, "his arms were constantly moving, just back and forth, up and down. He would take his hat over [sic] very quickly and put it on very quickly and he was always, you know, it appeared that he was always digging around inside the vehicle or moving his arms inside the vehicle."

Deputy Hoffman asked Rusthoven to exit the vehicle, but Rusthoven refused. This made the deputy “fairly nervous.” The deputy waited to take further action until a second deputy arrived.

When a second deputy arrived, Deputy Hoffman asked Rusthoven to exit his vehicle again. After several requests from both deputies, Rusthoven did so. Deputy Hoffman performed a pat-down search for weapons and thought that he felt a methamphetamine pipe in Rusthoven’s front pocket. Deputy Hoffman told Rusthoven that he was under arrest.

A search warrant was obtained to get a sample of Rusthoven's blood. The blood tested positive for methamphetamine and amphetamine. Mr. Rusthoven was charged with felony DWI and he moved to suppress all of the evidence arguing the deputy did not have a reason suspicion to expand the stop and conduct a pat-down for weapons.  The district court denied Rusthoven’s motions, finding that each expansion of the stop was justified.  

The Minnesota Court of Appeals upheld the district court, stating:

"To be constitutional, “each incremental intrusion during a traffic stop [must] be tied to and justified by one of the following: (1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry.” State v. Askerooth, 681 N.W.2d 353, 365 (Minn. 2004). The supreme court has summarized Terry as follows: “[E]ven in the absence of probable cause, the police may stop and frisk a person when (1) they have a reasonable, articulable suspicion that a suspect might be engaged in criminal activity and (2) the officer reasonably believes the suspect might be armed and dangerous.” State v. Flowers, 734 N.W.2d 239, 250 (Minn. 2007) (quotations omitted); accord Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968)."

***

"Based on the totality of the circumstances, Deputy Hoffman reasonably believed that Rusthoven was armed and dangerous. The deputy observed indicia of drug use and found that Rusthoven’s license was restricted from prior drug use. In addition, Rusthoven was unwilling to cooperate with the deputies’ requests to exit the vehicle. Based on those facts, combined with Rusthoven’s “erratic and agitated” movements, including “digging around inside the vehicle,” “moving his arms inside the vehicle,” and “fidgeting with everything,” the deputy reasonably believed that Rusthoven was armed and dangerous. At that point, given the totality of the circumstances, Deputy Hoffman possessed reasonable suspicion that criminal activity was afoot and that Rusthoven was armed and dangerous, justifying a pat-down frisk for weapons."

Moral Of The Story:  If you get fidgety, the cops will get frisky!


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.