Minneapolis DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week Is Henry v. Commissioner of Public Safety (Decided December 5, 2106, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you say you want to talk to a lawyer prior to testing, you damn well better try your best to reach one!

In Henry, the Appellant was arrested for DWI and was taken to the Benton County Jail where he was read the Minnesota Implied Consent Advisory informing him that he had the right to speak to an attorney prior to testing.  

Henry told the deputy that he wished to contact an attorney. He requested access to his cellular telephone so that he could find the telephone number of a person he described as "my attorney." After some discussion, the deputy granted the request. The deputy then escorted Henry to a separate room with a desk, a telephone, and telephone directories. Henry used the jail telephone to call his attorney and left a voice-mail message.

After Henry left the voice-mail message for his attorney, the deputy told Henry that he could use the telephone directories to contact other attorneys. Henry did not attempt to do so. After further discussion with the deputy, Henry stood up as if he was ready to leave the room. Henry was in the room with the jail telephone and telephone directories for approximately four minutes.

The deputy escorted Henry back to the alcohol-testing room and asked him to submit to a breath test. Henry initially responded by asking multiple questions. He later said repeatedly that he would like to speak with an attorney. The deputy informed Henry repeatedly that he would need to make a decision to either submit to a breath test or not. 

The deputy advised Henry that an unreasonable delay in making a decision would be deemed a refusal to submit to a breath test. The deputy asked Henry several times whether he would submit to a breath test, but Henry never answered the question. Eventually the deputy said that he would ask Henry one more time whether he would submit to a breath test. Henry again did not answer in the affirmative or the negative but, rather, indicated that he wanted to consult with an attorney. The deputy deemed Henry to have refused to submit to a breath test.

The Commissioner of Public Safety revoked Mr. Henry's license. Mr. Henry petitioned the district for review of the revocation arguing that his right to counsel had been violated.  The District Court upheld the revocation and on appeal, the Minnesota Court of Appeals agreed noting:

"In deciding whether a driver's limited right to counsel was vindicated, a court generally should consider the totality of the circumstances surrounding the implied-consent advisory and the driver's opportunity to consult with an attorney. (Citations omitted). This court's caselaw has recognized a few factors that are relevant to a totality-of-the-circumstances analysis: whether the driver made a good-faith and sincere effort to reach an attorney, the time of day when the driver attempted to contact an attorney, and the length of time the driver had been under arrest when his
consultation time was ended. (Citations omitted)." 

"If a driver's challenge is based solely on the amount of time allowed for contacting an attorney, the inquiry into whether the driver made a good-faith and sincere effort to reach an attorney is a threshold issue.  (Citations omitted)."

"In this case, the district court determined the threshold issue as follows:
'Petitioner failed to make a good faith effort to contact an attorney, because he voluntarily stopped trying after he called the first attorney and left a voice message. . . . The jail video clearly shows Petitioner never making any attempts to contact other attorneys. Deputy Eisenschenk was given no indication that Petitioner wanted any more time, so he asked Petitioner if he was done contacting attorneys. Petitioner responded by restacking the directories and standing up to leave the room. Petitioner never asked Deputy Eisenschenk for more time. . . . Petitioner failed to meet the good faith threshold required to determine if he was given a reasonable amount of time to contact an attorney. Therefore, his right to consult with an attorney was vindicated.'

"Henry contends that, even if he chose to not call more than one attorney when he was given the opportunity, he changed his mind shortly thereafter and should have been permitted to contact other attorneys at that time. Henry cites State v. Slette, 585 N.W.2d 407 (Minn. App. 1989), in which this court stated that "officers should recognize the withdrawal of a DWI arrestee's initial waiver of the right to consult with counsel when the change of mind is immediate and does not interfere with police officers' processing of a case or their ability to administer [a breath] test." Id. at 409. Henry cannot rely on Slette because the case is distinguishable, for at least three reasons:

First, the defendant in Slette waived his right to consult with an attorney without making any telephone calls. Id. at 408. But Henry exercised his right to contact an attorney and chose to call only one attorney. 
Second, Henry's renewed requests to consult with an attorney did not occur immediately after he voluntarily terminated his opportunity to use the jail telephone and telephone directories. Rather, he did not request another opportunity to consult with an attorney until he was brought to the testing room and was read the implied-consent advisory three additional times. 
Third, Henry did not expressly state that he wanted to contact an attorney other than the attorney for whom he already had left a message. Thus, it appears that he wanted Deputy Eisenschenk to allow him to wait until his attorney returned his call. But the caselaw is clear that a driver who has been arrested for DWI "cannot be permitted to wait indefinitely for a call that may never come." Palme, 541 N.W.2d at 345. For that reason, Henry's last-minute request to consult with an attorney, if granted, would have interfered with Deputy Eisenschenk's "processing" of Henry's case and the deputy's "ability to administer [a breath] test." See Slette, 585 N.W.2d at 409. Accordingly, Henry was not entitled to change his mind about continuing to try to consult with an attorney.

Thus, the district court did not err by concluding that Henry's limited right to counsel was vindicated."

Moral Of The Story:  If you want to talk to a lawyer, you had better "exercise" your right to do so.  Otherwise the police can cut you off.

If you or a loved one have been arrested for 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 questions.

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Johnson V. Commissioner of Public Safety (Decided November 7, 2016, Minnesota Court Of Appeals, Published) which stands for the proposition that the Minnesota Implied Consent Advisory violates due process when it threatens a criminal refusal charge that the state is not authorized to impose.

In Johnson, the Petitioner was involved in a single-vehicle collision.  When the police arrived, the officer noticed a large unmarked bottle in Petitioner's vehicle which appeared to contain a number of pills.  The Petitioner appeared to be under the influence of something but the officer did not suspect that alcohol was involved.

The Petitioner was placed under arrest for driving while impaired and the officer read Johnson an implied-consent advisory, informing him that Minnesota law required him to take a test to determine if he was under the influence of alcohol or a hazardous or controlled substance and that he had the right to speak with an attorney before deciding whether to take a test. The officer also informed Johnson that refusal to take a urine test is a crime.  The officer did not request a breath test because he did not suspect that Johnson was under the influence of alcohol. Johnson refused to submit to testing.

Appellant Commissioner of Public Safety revoked Johnson's license to drive based on his refusal to submit to a chemical test. Johnson petitioned the district court for rescission of the license revocation. Johnson claimed that his right to due process was violated because the officer did not properly inform him of the consequences of test refusal. The district court rescinded the revocation of Johnson's license to drive, relying on McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991). The district court reasoned that the implied-consent advisory violated Johnson's right to due process by inaccurately informing him that refusal to take a urine test is a crime when Johnson "could not have been criminally charged for refusing an unconstitutional search." 

On appeal by the state, the Minnesota Court of Appeals upheld the District Court, noting:

"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). 
However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873 (Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). 
The district court relied on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom. "
***
"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test
13
refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873
(Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). The district court relied
on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom."
***
"Thompson holds that Minnesota's criminal test-refusal statute is unconstitutional as applied to an individual who refuses to take an unconstitutional urine test. The circumstances of this case fall squarely within Thompson's holding, and the refusal statute is therefore unconstitutional as applied to Johnson. Because a criminal test-refusal charge would be unconstitutional, the implied-consent advisory inaccurately informed Johnson that refusal to take a urine test is a crime. When the state provided that inaccurate advisory, it misinformed Johnson regarding the penalties he would face if he refused to submit to testing, in violation of his right to due process, as established in McDonnell."

Moral of the Story: Don't Make A Threat If You Can't Enforce it.

If you or a loved one have been arrested for 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 questions.

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Johnson V. commissioner of Public Safety (Decided November 7, 2016, Minnesota Court Of Appeals, Published) which stands for the proposition that the Minnesota Implied Consent Advisory violates due process when it threatens a criminal refusal charge that the state is not authorized to impose.

In Johnson, the Petitioner was involved in a single-vehicle collision.  When the police arrived, the officer noticed a large unmarked bottle in Petitioner's vehicle which appeared to contain a number of pills.  The Petitioner appeared to be under the influence of something but the officer did not suspect that alcohol was involved.

The Petitioner was placed under arrest for driving while impaired and the officer read Johnson an implied-consent advisory, informing him that Minnesota law required him to take a test to determine if he was under the influence of alcohol or a hazardous or controlled substance and that he had the right to speak with an attorney before deciding whether to take a test. The officer also informed Johnson that refusal to take a urine test is a crime.  The officer did not request a breath test because he did not suspect that Johnson was under the influence of alcohol. Johnson refused to submit to testing.

Appellant Commissioner of Public Safety revoked Johnson's license to drive based on his refusal to submit to a chemical test. Johnson petitioned the district court for rescission of the license revocation. Johnson claimed that his right to due process was violated because the officer did not properly inform him of the consequences of test refusal. The district court rescinded the revocation of Johnson's license to drive, relying on McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991). The district court reasoned that the implied-consent advisory violated Johnson's right to due process by inaccurately informing him that refusal to take a urine test is a crime when Johnson "could not have been criminally charged for refusing an unconstitutional search." 

On appeal by the state, the Minnesota Court of Appeals upheld the District Court, noting:

"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). 
However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873 (Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). 
The district court relied on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom. "
***
"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test
13
refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873
(Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). The district court relied
on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom."
***
"Thompson holds that Minnesota's criminal test-refusal statute is unconstitutional as applied to an individual who refuses to take an unconstitutional urine test. The circumstances of this case fall squarely within Thompson's holding, and the refusal statute is therefore unconstitutional as applied to Johnson. Because a criminal test-refusal charge would be unconstitutional, the implied-consent advisory inaccurately informed Johnson that refusal to take a urine test is a crime. When the state provided that inaccurate advisory, it misinformed Johnson regarding the penalties he would face if he refused to submit to testing, in violation of his right to due process, as established in McDonnell."

Moral of the Story: Don't Make A Threat If You Can't Enforce it.

If you or a loved one have been arrested for 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 questions.

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Johnson V. commissioner of Public Safety (Decided November 7, 2016, Minnesota Court Of Appeals, Published) which stands for the proposition that the Minnesota Implied Consent Advisory violates due process when it threatens a criminal refusal charge that the state is not authorized to impose.

In Johnson, the Petitioner was involved in a single-vehicle collision.  When the police arrived, the officer noticed a large unmarked bottle in Petitioner's vehicle which appeared to contain a number of pills.  The Petitioner appeared to be under the influence of something but the officer did not suspect that alcohol was involved.

The Petitioner was placed under arrest for driving while impaired and the officer read Johnson an implied-consent advisory, informing him that Minnesota law required him to take a test to determine if he was under the influence of alcohol or a hazardous or controlled substance and that he had the right to speak with an attorney before deciding whether to take a test. The officer also informed Johnson that refusal to take a urine test is a crime.  The officer did not request a breath test because he did not suspect that Johnson was under the influence of alcohol. Johnson refused to submit to testing.

Appellant Commissioner of Public Safety revoked Johnson's license to drive based on his refusal to submit to a chemical test. Johnson petitioned the district court for rescission of the license revocation. Johnson claimed that his right to due process was violated because the officer did not properly inform him of the consequences of test refusal. The district court rescinded the revocation of Johnson's license to drive, relying on McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991). The district court reasoned that the implied-consent advisory violated Johnson's right to due process by inaccurately informing him that refusal to take a urine test is a crime when Johnson "could not have been criminally charged for refusing an unconstitutional search." 

On appeal by the state, the Minnesota Court of Appeals upheld the District Court, noting:

"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). 
However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873 (Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). 
The district court relied on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom. "
***
"Applying the reasoning of McDonnell, we consider whether the advisory in this case permitted police to threaten criminal charges the state was not authorized to impose. "It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test
13
refusal or failure; revocation of license)." Minn. Stat. § 169A.20, subd. 2 (2014). However, in State v. Thompson, this court held that the criminal test-refusal statute violates substantive due process, as applied, where it criminalizes refusal to submit to a urine test that would have been unconstitutional under the Fourth Amendment.   873 N.W.2d 873
(Minn. App. 2015), aff'd, N.W.2d (Minn. Oct. 12, 2016). The district court relied
on this court's decision in Thompson in concluding that Johnson could not have been criminally charged for refusing the urine test in this case.
While this appeal was pending, the Minnesota Supreme Court affirmed this court's decision in Thompson. Thompson, 2016 WL 5930162, at *8. The supreme court held that Minn. Stat. § 169A.20, subd. 2, is unconstitutional, as applied, where the state attempts to prosecute a driver for refusing to consent to a search that would violate the Fourth Amendment. Id. Given the supreme court's recent affirmance of Thompson, we apply the supreme court's decision in this opinion.
Under Thompson, Johnson could not be prosecuted for refusing to consent to the urine test in this case if the test would have violated the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement." State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015), aff'd sub nom."
***
"Thompson holds that Minnesota's criminal test-refusal statute is unconstitutional as applied to an individual who refuses to take an unconstitutional urine test. The circumstances of this case fall squarely within Thompson's holding, and the refusal statute is therefore unconstitutional as applied to Johnson. Because a criminal test-refusal charge would be unconstitutional, the implied-consent advisory inaccurately informed Johnson that refusal to take a urine test is a crime. When the state provided that inaccurate advisory, it misinformed Johnson regarding the penalties he would face if he refused to submit to testing, in violation of his right to due process, as established in McDonnell."

Moral of the Story: Don't Make A Threat If You Can't Enforce it.

If you or a loved one have been arrested for 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 questions.

Minneapolis DWI Attorney Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Smith (Decided October 24, 2016, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police do not have to PROVE you were speeding in order to justify a vehicle stop. The officer just has to "believe" you were speeding. Yikes!

In Smith, Officer Robert Weir of the St. Paul Police Department had just completed an unrelated traffic stop when he observed the Defendant's vehicle.  Officer Weir visually estimated that the Defendant's car was traveling at 45 miles per hour in a 30-miles-per-hour zone.  Officer Weir then followed the vehicle and noted that when his squad car reached a speed of 40 mph, he still was not gaining on the Defendant's vehicle.  The officer then stopped the Defendant and Mr. Smith was subsequently arrested for DWI.

The Defendant moved to suppress all of the evidence arguing in the district court that the stop was illegal.  At the district court hearing, Officer Weier testified that he had been trained in visual estimation of vehicle speeds and could visually estimate speed to within five miles per hour. Appellant testified that he had been driving under the speed limit and argued that the squad video, coupled with mathematical computations concerning time and distance, proves that he was not speeding before the stop. The district court denied appellant's motion to suppress, relying on Sergeant Weier's testimony to conclude that the stop was supported by reasonable and articulable suspicion.

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

"Here, appellant argues that Sergeant Weier mistakenly determined appellant to have been driving 45 miles per hour: a mistake of fact. A mistake of fact does not invalidate a traffic stop so long as that mistake is reasonable. See State v. Johnson, 392 NW.2d 685, 687 (Minn. App. 1986) (holding that mistaken identity did not render a stop invalid). An officer who visually estimates the excessive speed of a car, and is able to corroborate his estimate by following that car, has a reasonable and articulable suspicion of a traffic violation. Even if appellant can now demonstrate that he was not speeding (which we need not determine for reasonable-suspicion purposes), Sergeant Weier's suspicion that appellant was speeding was reasonable and sufficient to support a stop."

The problem with today's ruling by the Minnesota Court of Appeals is this, how can the officer's mistake be "reasonable" if the scientific evidence shows the officer was wrong?  Police are human and some of them lie to justify their actions.  When science shows the police officer 's claim is untrue the Courts should act to protect a citizen's right to be left alone.

MORAL OF THE STORY: If you have been drinking, don't even think about speeding!!

If you or a loved one have been arrested for 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 questions.

Minneapolis DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week Is State v. DeRoche (Decided October 17, 2016, Minnesota Court of Appeals, Unpublished), which stands for the proposition that just about any suspicion by a police officer will be deemed "reasonable" to justify a stop of a motor vehicle.

In DeRoche, the police officer observed appellant driving his vehicle in the early morning hours on a frontage road in a commercial area near a trailer dealership. The officer was aware that the trailer dealership had been burglarized in the past one or two months, and other commercial properties in the area had experienced thefts. The officer observed appellant drive from the frontage road onto a private driveway, 10-15 feet past a sign reading "Private Property. No Trespassing." The vacant property, which occasionally hosts a flea market, is adjacent to the trailer dealership. Appellant's vehicle sat in the driveway for one to two minutes. The area was dark and unlit. When the officer approached in a marked squad to investigate, appellant backed out of the private drive to turn around, and the officer stopped appellant. 

The district court upheld the validity of the stop and on appeal, the Minnesota Court of Appeals agreed, stating:

"Based on these circumstances and rational inferences drawn from them, an officer could reasonably suspect appellant of committing property crimes of nearby businesses. This reasonable suspicion justified the officer's stop of appellant's vehicle."

Seriously?

At least Justice Ross had the good sense to dissent from the majority decision as he correctly notes:

"Reasonable suspicion is a low standard. But it is a standard of some degree. If driving briefly just onto a vacant lot somewhere near a different lot where a theft occurred "maybe a month or two" earlier allows police to force a stop for a police investigation, then the standard is virtually meaningless. I respectfully dissent because we must distinguish between a mere "hunch" (undeveloped, vague speculation), which can never justify a police stop, and reasonable, articulable suspicion that a crime has occurred or is about to occur, which does justify a police stop. This is a pure-hunch case."

MORAL OF THE STORY: If you are out late at night, don't get lost as you are likely to be pulled over by the police!

If you or a loved one have been arrested for 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 questions.

Minneapolis DWI Attorney Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Hall (Decided September 6, 2016, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the open doorway to your home is not a constitutionally protected area.

In Hall, the Defendant's neighbor saw the Defendant drive his car at a high rate of speed on their residential street. The neighbor walked over to the Defendant's home and they had an altercation.  The neighbor called the police, who then went to the Defendant's home and knocked on the front door.  

The Defendant answered the door and when he spoke to the police the officer noted that the Defendant's eyes were bloodshot, he smelled of alcohol, his speech was slurred and he held onto the front door to keep his balance.  The police officer never entered the home but spoke to the Defendant from the front porch.

The Defendant told the officer that he had just come home from a bar and had driven past the complaining-neighbor's house. Based upon the Defendant's condition and statements, officer believed the Defendant had been driving while intoxicated.

The officer then asked the Defendant to come out of his house to perform some field sobriety tests; Defendant said it was his house and the officer should not be there. The officer said he did not want to have to come in and get Defendant, but would do so if necessary, and that Defendant would be arrested for DWI in any event. 

Defendant then came out of the house and attempted to perform the field sobriety tests. He failed a preliminary breath test (PBT). The officer determined that he had probable cause to arrest Defendant and arrested him. Defendant was taken to a police station, where the implied consent advisory was read to him, and he provided a breath sample; it indicated an alcohol concentration of 0.19.

The Defendant was charged with misdemeanor DWI but he moved to suppress all of the evidence on the grounds he had been illegally seized from his residence.  The District Court agreed with the Defendant and ruled that the seizure was not lawful because the Defendant was "coerced and threatened into leaving the sanctuary of his house".

It is well established in Minnesota that the police may not enter a home to make a misdemeanor arrest unless they are "in hot pursuit" of a suspect but that was not the case here.  In this case, the Court of Appeals reversed the District Court because there was no "entry" into the residence.  Or as stated by the Court of Appeals:

"Here, the officer knocked and remained on the porch while he talked to defendant. There was no "warrantless entry of  a family residence" because the officer stood in the open doorway"..."For Fourth-Amendment purposes, an open doorway is a public place. United States v. Santana, All U.S. 38, 42, 96 S. Ct. 2406, 2409 (1976). A defendant who is in a public place when officers initiate an arrest may not thwart the arrest by retreating into his residence. Id. at 43, 96 S. Ct. at 2410. Defendant opened the door of his house to the police officer and, while they were in the open doorway, gave the officer probable cause to arrest him by displaying several indicia of intoxication and admitting that he had just driven home from a bar where he had been drinking. Having done these things, Defendant had no right to thwart his arrest by retreating into his house. See id. at 42-43, 96 S. Ct. at 2409-10 (stating that a defendant's "act of retreating into her house could [not] thwart an otherwise proper arrest" and concluding that the officer's following the defendant into her house was "hot pursuit" and justified his warrantless entry). If Defendant had retreated into his house and the officer, without a warrant, had followed him, the warrantless entry of Defedant's house would have been justified."

MORAL OF THE STORY: A man's home is not his castle until he shuts the door!

If you or a loved one have been arrested for 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 questions.