In our October 17th, 2009 blog posting we discussed an unpublished ruling by the Minnesota Court of Appeals with regard to “urine pooling”  http://www.kanslaw.com/blog/minneapolis-dwi-lawyer-mn-court-issues-ruling-on-urine-testing.html.  In that ruling, the Minnesota Appellate Court upheld a lower court’s decision excluding defendant’s expert testimony on the issue of whether urine testing is a reliable method for determining one’s blood alcohol concentration at the time of testing. 

The defendant’s argument was that since the driver did not have the opportunity to void his bladder prior to the state’s urine test,  the urine sample was not reflective of his actual blood alcohol concentration at the time of testing, but rather reflected the blood alcohol concentration since the last time he had urinated. 

The Minnesota Court of Appeals reasoned that the test need simply be performed and administered properly in order to be accurate and reliable.  Furthermore, the Court concluded that the test was administered under accepted Bureau of Criminal Apprehension (BCA) guidelines which does not require a bladder void prior to collecting a urine sample.  Therefore, the defendant’s expert testimony, contesting this method, was excluded. 

In another unpublished decision that was just released on December 15, 2009, Schroeder vs. Commissioner of Public Safety, the Minnesota Court of Appeals once again tackled this issue.  In Schroeder, the Court yet again upheld a lower court’s ruling excluding the defendant’s expert from testifying with regard to this “urine pooling” theory finding that the BCA urine-testing procedures valid and reliable. 

Appellant argued that the issue and analysis should not be just whether his specific urine test is reliable under Minn. Stat. 169A.53 subd. 3(b)(10), but whether urine testing, in general, should be an acceptable scientific method to determine one’s blood alcohol concentration at the time of testing in light of the “urine pooling” and first void issue.  Appellant further argued the urine testing method should be subject to the Frye-Mack test or scientific inquiry for reliability to be held admissable. 

The Minnesota Court of Appeals disagreed reasoning that the Frye-Mack test must only be met by the state if it was offering evidence from “a novel scientific technique” and therefore must show that such a “novel” technique is “accepted in the relevant scientific community”.   The Court found that urine testing is not a “novel” technique and has been established as reliable by previous court rulings and is therefore not subject to the Frye-Mack test. 

Since most jurisdictions in Minnesota are now avoiding use of the Intoxilyzer 5000EN machine to determine a driver’s blood alcohol concentration, I believe there will be more cases in the future attacking urine testing as a reliable alternative.

If you, or someone you know, has been arrested for a DWI or DUI related charge in Minnesota, then call respected Minneapolis DWI Lawyer Douglas Kans at  (952)  835-6314 (952)  835-6314 or (888) 972-6060 for a free initial consultation.

Mandatory Minimum Sentences in Minnesota DWI Cases

In Minnesota, there are mandatory minimum sentences for certain DUI or DWI offenses.  Mandatory minimum means exactly what it implies: the minimum required sentence.  If actually convicted of one of these offenses, courts rarely deviate from the mandatory minimum sentences associated with the offense.  However, a skilled Minnesota DWI Attorney can argue effectively on your behalf to help you take advantage of alternative sentencing arrangements, such as the 10-10-10 split allowed in some counties (in which a 30 day sentence is served in 10 day increments, with one year in between each block,), electronic home monitoring (which can sometimes be substituted for all or some workhouse time), or community work service.

The mandatory minimum sentences become increasingly more severe the more prior DUIs or DWIs an individual has on his or her record before the current offense.  Beginning with the least severe, for a second DWI in 10 years, the mandatory minimum sentence is 30 days incarceration, at least 48 hours of which must be served in jail/workhouse, with eight hours of community work service for each day less than 30 served.  For a third DUI in a ten year period, the mandatory minimum sentence is 90 days incarceration, at least 30 days of which must be served consecutively in a local jail/workhouse.  For a fourth DUI in a ten year period, the mandatory minimum sentence is 180 days of incarceration, at least 30 days of which must be served consecutively in a local jail/workhouse.  Finally, for a fifth DUI offense in a ten year period, the mandatory minimum sentence is one year of incarceration, at least 60 days of which must be served consecutively in a local jail/workhouse.  The remainder – or non-jail portion – of the mandatory minimum sentence may be served under REAM or EHM (electronic home monitoring), if a Minnesota DUI lawyer can successfully argue for that alternative sentence on someone’s behalf to the court.

For cases involving lengthy mandatory minimum jail sentences, an alternative sentence that a Minnesota DWI Attorney may be able to negotiate on a defendant’s behalf may include an intensive probation program that would require him or her to serve at least six days in jail, and then the remainder of the sentence on EHM while completing the program.

Regardless of the composition of the sentence, there is the potential for long-term monitoring, if the individual is a third time or more DWI offender within a described period of time.  Long term monitoring includes extensive probation and may include that the individual submit to at least 30 consecutive days of alcohol monitoring during each year of probation.

Lastly, the best way to prevent mandatory minimum jail sentences in Minnesota DWI cases is to hire an experienced Minnesota DWI Lawyer that will protect your rights and represent your interests.

The Caged Bird’s Song

In State v. Atkinson, a precedential opinion issued on November 5, 2009, the Minnesota Supreme Court upheld a district court’s admission into evidence of a defendant’s original rap lyrics – which he had hand written while in custody in a Ramsey County jail awaiting his trial. 

Entitled “An Official Jip Diss”, the lyrics contained various phrases that could be construed as threats of violence against “snitches”, and contained indirect references to two of the State’s eye-witnesses in the case. 

Until Atkinson, Minnesota law regarding threats made by a defendant against witnesses in a case was summarized in the opinion of State v. Mayhorn from 2006, which said, “threats made by a defendant against a witness may be relevant to show consciousness of guilt.”  A statement is considered a threat if it contains specific and legitimate information regarding harming someone.  As relevant evidence is admissible in a trial, Mayhorn stood for the principle that threats made by the defendant to a witness in the case could be admitted against him or her at trial as an indication of guilt. 

In Atkinson, the Minnesota Supreme Court addressed for the first time the question of “whether threats made against, but not communicated or intended to be communicated to, a witness show consciousness of guilt.” 

The court rationalized its ruling in favor of admitting non-communicated threats as follows: “[T]he fact that the threat was not communicated or intended to be communicated, however, does not by itself mean that the maker of the threat is any less conscious of guilt that one who intends to communicate the threat or otherwise take some action on the threat.  Consciousness of guilt is a state of mind.” 

The defense had argued that admitting the lyrics was a mistake because any value they might have had was outweighed by how prejudicial their admission was, and that they weren’t relevant because they were part of the defendant’s personal belongings and were never communicated to anyone, let alone to the witnesses themselves. 

The Supreme Court didn’t buy it.  The lesson from Atkinson is this: Defendants should be careful at every stage of their cases – from pre-arrest interviews to their time in custody awaiting trial – to not talk about any aspect of their cases to anyone, even to themselves in writing, because anything they say or write could become admissible against them in trial. 

You can read the full opinion at:

http://www.lawlibrary.state.mn.us/archive/supct/0911/OPA080146-1105.pdf

Myth-Busting Hollywood’s Legal Thrillers: Double Jeopardy Edition

Most of us are familiar with the Double Jeopardy clause – probably not because we’ve recently sat down with the Bill of Rights, but probably because we remember a 1999 Ashley Judd movie by that title, in which a woman (Libby) was framed for her husband’s murder, and because she had already been tried, sentenced and served time in prison for the crime, she couldn’t be re-prosecuted for finding and actually killing him thereafter. 

As usual, Hollywood wasn’t as concerned with providing accurate information as it was with making and marketing a blockbuster thriller.  So, here’s a quick Myth Busters breakdown of the movie versus the law in Minnesota.

Premise: In the movie, one of Libby’s fellow prisoners tells her about the Double Jeopardy clause of the Fifth Amendment, and how since the state already thinks she killed her husband, she can walk up to him in a public place, in the middle of the day, and shoot him with tons of witnesses around and she can’t be charged or convicted for the crime. 

Legal Fact: Double Jeopardy does come from the Fifth Amendment, and reads: “”[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb”.  The purpose behind it was to prevent prosecutorial harassment of defendants who were acquitted for a crime and to help uphold the right to a speedy trial by not clogging the court systems with cases that had already been tried.  The Fifth Amendment initially only applied to federal court cases, but through the doctrine of incorporation contained in the Fourteenth Amendment, it now applies in all state court cases as well, according to a famous US Supreme Court Case entitled Benton v. Maryland. 

There are actually three types of protection offered by the Double Jeopardy clause: First, an individual cannot be retried for the same crime after an acquittal; second, an individual cannot be retried for the same crime after a conviction; and third, an individual cannot be punished twice for the same crime.  This last protection was discussed in a Minnesota Appellate Court decision issued this last September, in which the defendant appealed a sentence and the court found that he could not be punished for both the main offense and for a lesser included offense that arose out of the same behavioral incident.  You can read that court opinion at:

http://www.lawlibrary.state.mn.us/archive/ctapun/0909/opa081177-0901.pdf

Double Jeopardy is sometimes considered a legal technicality, because it is an absolute defense that doesn’t address whether the defendant committed the alleged crime or not.  There is a great US Supreme Court case entitled Fong Foo v. US, in which the Court found that someone previously acquitted for the charged crime could not be retried for the same crime even if the trial court made errors in the original trial because a final judgment was entered in the case.  Double Jeopardy must “attach” in a case in order for the defendant to be protected by it.  Double Jeopardy attaches in a jury trial case as soon as the jury and alternates are sworn in, and it attaches in a court trial case as soon as the first evidence is submitted or heard.

You can read the whole Fong Foo decision at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=369&invol=141 

Fiction: The main problem with the movie was the basis for the chase – that once Libby found her husband she could kill him without repercussion because she had already been tried for that crime.  The reality is, a charged crime is a set of specific facts, like “Miss Scarlet, in the Dining Room, with the Knife, on October 31, 2009.”  If any of those facts are substantially changed, the law views the new set of facts as a separate and different crime, and thus Double Jeopardy does not apply.  So, for Libby to have been protected, she would have had to commit the murder in the manner it was alleged and on the same or very similar date that it was initially alleged – not six years later after plotting in a women’s prison. 

Hollywood Ending: In the movie, Libby ends up killing her husband out of self defense, so the “story” ends happily enough, with she and her young son reunited, the villainous husband actually deceased, and Libby’s name being cleared.  However, she still did serve six years in prison for the first false conviction, and self defense can be a difficult affirmative defense to mount and win at trial. 

Have a favorite movie that deals with legal concepts and want to know which parts are fact and which parts are fiction?  Post a comment!

Passengers Beware: Probable Cause to Stop the Driver Can Be Enough to Search You 

In a published opinion issued October 27, 2009, the Minnesota Appellate Court ruled that “[u]nder Article I, section 10, of the Minnesota Constitution, a police officer does not need an individualized justification for directing a passenger in a legally stopped vehicle to get out of the vehicle,” and that “[t]he plain-feel exception to the warrant requirement applies when an officer performing a pat search has probable cause to believe that an object is contraband before seizing the object.” 

The facts are pretty common – which is why this opinion will likely have an impact on many individual’s lives in coming months and years.  In State v. Krenik, the defendant was riding as a passenger in her own car because she was distraught and had asked her friend to drive for her.  Their car was stopped by police because there was something hanging from the mirror and because the driver had failed to signal a turn.  During the stop, the officer learned that the driver was not the owner of the car, and that the friend’s driver’s license was suspended.  He asked her to step out of the car, and issued her a citation for driving with a suspended license.  He then returned to the car to speak with the owner/passenger.  He asked her to step out of the car, so they could make sure she was alright to drive, since the driver could not continue driving without a valid license. 

As she was stepping out of the car, the officers noticed a bulky object in her front sweatshirt pocket.  Because she placed her hands into that pocket when the officers had told her specifically to keep her hands out of her pockets, one of the exceptions to the warrant requirement was triggered – one involving an officer’s ability to perform a quick pat-down search of an individual for items that could cause harm to officers – and in doing this, the officer found a glass pipe with narcotics residue on it and a baby-wipe container that the officer stated was large enough to have potentially contained a small hand gun, but which, upon search, contained methamphetamine. 

The defendant was arrested and charged with a first-degree controlled-substance crime. Finally, because there wasn’t anyone at this point to drive the vehicle home, the police had it towed, and upon inventorying the vehicle, they found a black purse with a scale and baggies in it – commonly used to distribute narcotics. 

From a traffic stop for failing to signal a turn and having something small dangling from the mirror to a first degree controlled substance arrest, the Minnesota Appellate Court agreed with the state that the search was lawful and therefore the evidence seized was admissible and the charges stood. 

There are a number of lessons that can be learned from this case, but the essential two are these: Before allowing someone else to drive your vehicle, find out if he or she has a valid Minnesota driver’s license; and, know that anytime you get into a car and travel on public roadways, your reasonable expectation to privacy is significantly reduced under Minnesota law and police have a broader range of legal ways to search and/or seize you or your property.

The Lay-Z-Boy That Made Headlines

You may have run across this incredible story on the news, or at WCCO.com: In August 2008, Mr. Dennis Anderson was arrested and eventually pled guilty to driving under the influence with a blood alcohol concentration of 0.29 – over three times the legal limit. 

He was driving a Lay-Z-Boy at the time.  That’s what it says: A Lay-Z-Boy.  As in, America’s favorite brand of reclining furniture. Mr. Anderson had converted his recliner by modifying a lawn mower’s motor and attaching it to the comfortable chair, along with some cup holders and headlights. 

How does puttering around on a Lay-Z-Boy attached to a lawn mower qualify as a DUI?  The answer lies in the language of the statute that defines the crime of DUI, Minnesota Statute section 169A.20, which reads: “It is a crime for any person to drive, operate, or be in physical control of any motor vehicle… when:

(1) the person is under the influence of alcohol; (2) the person is under the influence of a controlled substance… or (5) the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.08 or more…” 

Take a look down this page at the blog posted on April 16, 2009, regarding a case entitled State v. Stevens, regarding a DUI involving a little red scooter.  The definition of “motor vehicle” in Minnesota includes, according Minnesota Statute section 169A.03 subdivision 15, “every vehicle that is self-propelled and every vehicle that is propelled by electric power obtained from overhead trolley wires. The term includes motorboats in operation and off-road recreational vehicles, but does not include a vehicle moved solely by human power.”

 In Stevens, the defendant was charged with a DUI even though the police officer never saw him actually operating the Scooter – the court ruled it was sufficient that he had injuries consistent with a motor scooter accident and that witnesses had seen him driving a scooter earlier that evening. 

So, according to the state’s definition, if you plan on being on public roadways after consuming alcohol, and you don’t plan on taking a cab, you should dust off your bicycle (no self-propelled motor) , unicycle, tricycle or old school Big Wheels to get you around for the evening.  Your own two feet are also a good option.  Just leave the scooters, golf carts, snowmobiles, ATV’s, mopeds and Lay-Z-Boys at home!

Affirmative Defenses: Playing Offense as a Defense Strategy 

In football, there are offensive plays and defensive plays, and a good team understands that it’s succeeding in a combination of these two types of plays that helps them win the game. 

In a criminal case, the State is usually on the offensive: Bringing the complaint, and carrying the burden of proof throughout the case.  And the defendant and his or her attorney are usually on the defensive: Defending his or her constitutional rights, protecting his or her procedural rights, ensuring that police didn’t overstep the rules and that there is sufficient evidence being presented by the State for it to meet its hefty burden. 

Sometimes, though, the defense gets to play offense.  This happens when defense attorneys utilize Affirmative Defenses in criminal cases.  Bringing an affirmative defense has the same effect as when the home team manages to get the ball just about all the way to the visitor’s goal line before they let the visiting team get the ball back, so the visitors have to go the whole length of the field all over again to try to score.  Affirmative Defenses can set the State back substantially and sometimes, they can also act as a complete bar to an element of the State’s case, effectively stopping the State from proceeding. 

There are approximately ten main affirmative defenses in Minnesota: Self-defense (includes defense of other), entrapment, mental illness or deficiency, duress, alibi, double jeopardy, statute of limitations, collateral estoppel, intoxication, and mistake of fact.  Following is a brief description of each of these Affirmative Defenses. 

1.  Self-defense, and defense of other.   True self defense or defense of another requires that an individual acted out of fear for his/her safety or the safety of another against the imminent use of unlawful force against him/herself or another.  Factors that affect a claim of self defense are things such as the extent of the right to self defense in the situation, the force used, against whom it was used, and for what reason. 

2.  Entrapment.  When someone is induced or persuaded by law enforcement officials to commit a crime that the person had no previous intent to commit, he or she has been entrapped. 

3.  Mental illness or deficiency.  This defense asserts that at the time the acts constituting the offense were committed, the defendant was not capable of comprehending that what he or she was doing was a crime due to mental illness or deficiency. 

4.  Duress.  If a defendant participated in a crime only because he orshe believed or had reason to believe that he or she would be seriously harmed if he of she did not participate, the defendant may be able to use the defense of duress. 

5.  Alibi.  In Latin, alibi means “elsewhere.”  The affirmative defense of alibi means that the defendant can prove he or she was somewhere else at the time of the crime and therefore could not have committed it. 

6.  Double jeopardy.  The Fifth Amendment to the US Constitution protects us from being tried by the government for the same crime twice.  This means that if the crime the defendant is currently facing is one that she or he has already faced and been either convicted or acquitted of, the government cannot bring a case against that person for that crime again. 

7.  Statute of limitations.  Just like in civil cases, some criminal statutes involve time limitations, and if the State attempts to charge a defendant under a criminal statute after the statute of limitations has run on that particular act, this defense may be used. 

8.  Collateral Estoppel.  In criminal cases, this term – which means “issue preclusion” – usually refers to a case in which the State has already prosecuted an individual for a particular crime and the individual was acquitted, at which time the federal government would not be able to later attempt to prosecute the individual for the same charge, or vise versa if the Federal government prosecuted first. 

9.  Intoxication.  Involuntary intoxication, or involuntarily being under the influence of a drug or substance – can be an affirmative defense.  Voluntary intoxication is only potentially a defense against the intent element of a crime; it can be used to prove an act was committed recklessly instead of with intent to cause serious harm. 

10. Mistake of fact.  This defense could be used like intoxication to negate the intent of the crime charged.  To do this, the mistake must be made in honest good faith and it must be a reasonable mistake.  For example, mistaking a young man who is actually 17 for a 21 year old. This is never a defense against strict liability crime (crimes that do not have an intent element).  Mistake of law is another legal theory that sometimes is labeled an affirmative defense.  Mistake of law is never a defense, unless the defendant can prove that he or she believed his or her actions were legal and based this belief on an official but erroneous interpretation of the law. 

Whether an Affirmative Defense applies in your case or not is a decision that you and your attorney need to make together.

In an unpublished decision that was released on October 9, 2009, the Minnesota Court of Appeals looked at the equal protection clause of the Minnesota Constitution and its application to urine tests resulting from DUI charges.  

The case involved an individual, who was arrested for DWI in April of 2008, at which time he submitted to a urine test that resulted in a BAC reading of 0.13.  However, at the time the sample was taken from the driver, the arresting officer did not allow the driver to void his bladder before providing the sample for the test. 

The result, according to a theory called “urine pooling”, was that the sample this individual provided contained his average alcohol concentration since the last time he had urinated, but not his alcohol concentration at the time of the test itself.  The defense had lined up an expert to testify at this trial regarding “urine pooling,” but the Commissioner of Public Safety successfully moved the trial court to exclude the testimony, stating that because appellate courts in Minnesota have not endorsed the urine pooling theory, the expert testimony should not be admitted in trial.  The trial court agreed, the testimony was excluded, this individual lost the trial, and appealed the lower court’s ruling.

On appeal, in addition to the urine pooling theory, the defense argued that appellant’s equal protection rights under the Minnesota Constitution had been violated because breath and blood tests measure the driver’s alcohol concentration at the time of the test while urine samples taken without allowing a driver to void his bladder first don’t. 

Because expert testimony is only allowed at trial if the expert’s opinion will “assist the fact finder” in resolving factual questions presented during the trial, the Appellate Court ruled that the trial court correctly excluded defense expert’s testimony.  The fact in question at his trial was whether or not the urine test was accurate and reliable because the officer did not require a bladder void first.  

The Appellate Court reasoned that a test sample must be administered properly in order to be accurate and valid, and because the Bureau of Criminal Apprehension (BCA) does not require a bladder void first before collecting a urine sample, the officer who arrested the appellant had administered the urine test properly and the test was therefore valid and accurate. 

The Appellate Court continued to state that the law that enables the Commissioner of Public Safety to revoke drivers’ licenses, the Minnesota Implied Consent Law, does not require a driver to be impaired at the time of driving but only requires that there be probable cause to believe a driver committed the offense of DWI by looking to see if the test results indicate a BAC of over 0.08.  (See Minnesota Statute Section 169A.52, subdivision 4(a) for the full text of this part of the law.) 

As for his equal protection violation argument, the Appellate Court ruled that appellant needed to show intentional or purposeful discrimination on the part of the arresting officer who selected a urine test for the driver over a blood or breath test.  Appellant could not show that the test selection was intentionally discriminatory; it simply was the test that the officers in that jurisdiction choose. 

Does it seem like there are some discrepancies in the Appellate Court’s ruling in this case?  It’s never a winning argument in Minnesota to try to compare driving privileges with a constitutional right, or to try to get driving privileges protected the same way that a constitutional right would be, but appellant’s argument that being given a urine test instead of a blood or breath test when both those tests have been proven to measure one’s alcohol concentration at the time of the test while urine tests don’t, does seem like a toothy legal issue.  Perhaps another case with different facts could result in a different ruling from the Appellate Court.

If you, or someone you know, has been arrested for a DWI or DUI related charge in Minnesota, then call respected Minneapolis DWI Lawyer Douglas Kans at (952)  835-6314 or (888) 972-6060 for a free initial consultation. 

You can read the full opinion at the court’s website: www.mncourts.gov/opinions/coa/current/opa081884-1006.pdf

Driving After Cancellation (DAC), Driving After Revocation (DAR), Driving After Suspension (DAS), and Driving After Disqualification are common additional charges that individuals can end up facing, if their driver’s licenses have been invalidated for a period of time due to a recent DUI or DWI conviction. 

In a nut shell, all four of these offenses are governed by Minnesota Statute 171.24, which reads, “[A] person is guilty of a misdemeanor if: (1) the person’s driver’s license or driving privilege has been suspended; (2) the person has been given notice of or reasonably should know of the suspension; and (3) the person disobeys the order by operating in this state any motor vehicle, the operation of which requires a driver’s license,” while the person’s license or privilege is suspended, revoked, or canceled.  Also, if a person is operating a commercial vehicle and has been disqualified from holding a commercial driver’s license in Minnesota, that person is guilty of a misdemeanor. 

The statute continues to state that a person has committed a gross misdemeanor if the “person’s driver’s license or driving privilege has been canceled or denied” because “the commissioner has good cause to believe that the operation of a motor vehicle on the highways by the person would be inimical to public safety or welfare,” and “the person has been given notice of or reasonably should know of the cancellation or denial; and… the person disobeys the order by operating in this state any motor vehicle, the operation of which requires a driver’s license, while the person’s license or privilege is canceled or denied.” 

If an individual already has a conviction for one of the charges involving driving without a valid license, the penalty for a second offense is much steeper.  Minnesota Statute 168.041 subdivision 2 states, “If a person is convicted of violating a law or municipal ordinance, except a parking law or ordinance, regulating the operation of motor vehicles on the streets or highways, and the record of the person so convicted shows a previous conviction for driving after suspension or revocation of the person’s driver’s license or driving privileges, the court may direct the commissioner of public safety to suspend the driver’s license of the person for a period not exceeding one year. The court may also require the registration plates of any self-propelled motor vehicle owned by the violator or registered in the violator’s name to be surrendered to the court.” 

As the 168.041 subdivision 2 indicates, in addition to the criminal misdemeanor or gross misdemeanor charges that an individual who drives without a valid license can face, plate impoundment can also result, whether the individual driving without a license owned the vehicle or not.  Minnesota Statute 168.041 subdivision 1 reads, “When a person is convicted of driving a self-propelled motor vehicle after the suspension, revocation, or cancellation of the person’s driver’s license or driving privileges, the court shall require the registration plates of the self-propelled motor vehicle involved in the violation owned by the person or registered in the person’s name to be surrendered to the court. …If the violator is not the owner of the self-propelled motor vehicle, the court shall require the registration plates of the motor vehicle to be surrendered to the court if the vehicle was used by the violator with the permission of the owner and the owner had knowledge of the fact that the violator’s driver’s license had been revoked or suspended prior to the commission of the offense.” 

Driving without a valid driver’s license can put not only an individual’s future driving privilege in jeopardy, but can also potentially lead to license plate impoundment for the vehicle, even if the vehicle belongs to a third party. 

All Minnesota Statutes can be found online, in full, at:https://www.revisor.leg.state.mn.us/index.php  This website is kept up to date by the Minnesota Office of the Revisor of Statutes and provides a comprehensive key word search of all Minnesota Statutorylaw.

Commercial Drivers’ Licenses and Minnesota DUI Law 

For those of you who hold Commercial Drivers’ Licenses (CDL), you know that a CDL isn’t just part of your everyday life, it’s your livelihood.  There are specific laws that apply to drivers holding CDL’s when it comes to DUI and DWI in Minnesota. 

Minnesota Statute section 169A.20, subd. 1(6) states: It is a crime for any person to drive, operate, or be in physical control of any motor vehicle …within this state or on any boundary water of this state when: the vehicle is a commercial motor vehicle and the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the commercial motor vehicle is 0.04 or more. 

Therefore, commercial drivers driving a commercial vehicle are in violation of DUI law with a blood alcohol concentration (BAC) of 0.04, instead of the non-commercial BAC of 0.08.  A first time DWI conviction for a commercial driver will result in the loss of the commercial driver’s license for 1 year, while any subsequent DWI offenses will result in a lifetime loss of the commercial license. 

Minnesota’s implied consent law does apply to commercial drivers, but the administrative penalties for operating a motor vehicle as a commercial driver while under the influence of alcohol are different.  In fact, Minnesota’s implied consent law applies not only to test refusals in Minnesota, but also in any jurisdiction, because commercial drivers are subject to some federal regulations.  Minnesota Statute section 171.165 subd. 2 states, “The commissioner shall disqualify a person from operating commercial motor vehicles for a revocation under section 169A.52 or a statute or ordinance from another state or jurisdiction in conformity with it, for a period that is equivalent in duration under the driver disqualifications and penalties in Code of Federal Regulations, title 49, part 383, subpart D, that pertain to a conviction of being under the influence of alcohol or refusal to be tested.” 

Minnesota Statute section 169A.54 subd. 7 reads, in part, “The commissioner shall disqualify a person from operating a commercial motor vehicle as provided under section 171.165 (commercial driver’s license, disqualification), on receipt of a record of conviction for a violation of section 169A.20… A person driving, operating, or in physical control of a commercial motor vehicle with any presence of alcohol is prohibited from operating a commercial motor vehicle for 24 hours from issuance of an out-of-service order.” 

Minnesota Statute section 609B.206 lists the time periods that a driver’s license will be revoked in the state of Minnesota, depending on the level of DUI offense. 

Also, it is important to know that a vehicle’s license plates may be impounded due to a DUI conviction while using a CDL.  Minnesota Statute section 169A.60, subdivision 1, reads, “As used in this section, the following terms have the meanings given in this subdivision… Plate impoundment violation includes: (1) a violation of section 169A.20 (driving while impaired) or 169A.52 (license revocation for test failure or refusal), or a conforming ordinance from this state or a conforming statute or ordinance from another state, that results in the revocation of a person’s driver’s license or driving privileges, within ten years of a qualified prior impaireddriving incident; (2) a license disqualification under section 171.165 (commercial driver’s license disqualification) resulting from a violation of section 169A.52 within ten years of a qualified prior impaired driving incident…” 

For those of you who don’t hold a CDL personally, but are looking for information for someone else, http://www.cdl-course.com/faq-mn.html is a great website with general information about Commercial Drivers’ Licenses, including the different “classifications” and “endorsement codes” that can accompany a CDL that you may want to check out for more information.

License Plate Impoundment: How Does it Work in Minnesota? 

License plate impoundment can be confusing in Minnesota.  Here is a quick guide you can use to determine if you or someone you know is in a situation where license plate impoundment might happen.  

When can plate impoundment happen?  

Under Minnesota law, the license plates of a vehicle may be impounded taken and destroyed) if a Gross Misdemeanor driving offense is committed.  These offenses include:

1.  A first-time DWI with a chemical test result is 0.20 or more;

2.  A first-time DWI that occurs while there is a passenger in the car

who is under the age of 16;

3.  Any DWI by an individual who has had a prior DWI in the last 10 years; or

4.  Any person driving without a valid driver’s license because his or

her license had been revoked as inimical to public safety. 

License plate impoundment applies to two types of vehicles:

1.  Any vehicle used by an individual to commit an offense listed above; or

2.  Any vehicle owned, registered or leased by someone committing any

offense listed above. 

How does plate impoundment happen?  

The Commissioner of Public Safety is the office that is authorized by state law to impound license plates in Minnesota.  Usually, however, it is the arresting officer at the scene of a DUI that issues the impoundment order. 

What can you do if plate impoundment happens? 

When a vehicle’s plates are impounded but the owner of the vehicle was not the individual who committed the offense, the registered owner can sometimes have regular, new license plates issued for the vehicle.  A Minnesota DUI lawyer can help walk a registered owner through the paperwork and legal procedure for doing this. 

Sometimes, an officer impounds plates by mistake, or there may be a legal defense that applies to an impoundment action, even if the individual who committed the offense was the owner of the vehicle.  A Minnesota DUI lawyer can request a review of the impoundment order and challenge the impoundment.  The review of a license plate impoundment, like an Implied Consent Challenge, is a civil action and very specific rules govern the proceeding.  For example, if a review is possible, it must be requested within 30 days of receipt of the impoundment order – no extensions are granted.

When license plate impoundment goes into effect, it lasts for one year.  The arresting officer will issue a 7 day permit along with the license plate impoundment order, and after this permit expires, the vehicle will need special plates in order to be driven in the remainder of the one year period.  These special plates are often referred to as “Whiskey Plates”, because of the letters that usually occur in the plate code – for example, “WX,” or “WY,” followed by a series of numbers.  Due to a recent change in law, Minnesota Statute section 168.0422 now allows police officers who see vehicles being driven with these special plates to pull those vehicles over – without any other reason – to check to see if the driver is operating the vehicle lawfully and with a valid Minnesota Driver’s license.  

How Does License Plate Impoundment End?  

At the end of the one year period, if the driver has succeeded in getting his or her full driving privileges reinstated, he or she may apply for new regular license plates for any vehicle registered in his or her name, including a vehicle that had no plates or Whiskey plates for the last year.

How Underage Consumption Laws Work In Minnesota 

With many 18-22 year olds heading to – or back to – colleges throughout the state in the next couple of weeks, dorm life kicks back into gear.  Regardless of whether the campus is dry or not, chances are, most college-bound individuals will encounter alcohol in a social setting this fall whether as a guest or a host.  Minnesota Underage Consumption laws are clear: Drinking alcohol while under the age of 21 is a crime, and so is providing alcohol to someone under the age or 21 – either directly or indirectly. 

Here is a brief outline of what the Minnesota law says about underage consumption, and what you can do to ensure you don’t get charged with underage consumption or furnishing to a minor. 

1.  It is a Felony to… 

Under Minnesota Statute 340A.701 subdivision 1, clause 4, it is a felony “for a person other than a licensed retailer of alcoholic beverages… to sell, barter, furnish, or give alcoholic beverages to a person under 21 years of age if that person becomes intoxicated and causes or suffers death or great bodily harm.  This is known as the Brockway Bill, or “Kevin’s Law” and it is the only Social Host Liability law Minnesota has.  In other words, there is no Social Host Liability imposed on hosts who provide alcohol to their guests if their guests are over 21 years old. 

2.  It is a Gross Misdemeanor to… 

Section 340A.702 states that it is a gross misdemeanor for anyone to “sell, give, furnish, or in any way procure for another alcoholic beverages for the use of an obviously intoxicated person,” (this language is from section 340A.502, to which section 702 refers); …or “to induce a person under the age of 21 years to purchase or procure any alcoholic beverage, or to lend or knowingly permit the use of the person’s driver’s license, permit, Minnesota identification card, or other form of identification by a person under the age of 21 years for the purpose of purchasing or attempting to purchase an alcoholic beverage.”  (This language is located in section 340A.503, subd. 2 (1) and (3).) 

3.  If you are under the age of 21, it is illegal to… 

Minnesota Statute Section 340A.503 states that it is illegal for a person under the age of 21 years old to consume any alcoholic beverages.  However, the statute also states that it is an affirmative defense to a violation of this clause if the defendant can prove that the defendant consumed the alcoholic beverage in the household of the defendant’s parent or guardian and with the consent of the parent or guardian. 

If you are under the age of 21 years, it is also illegal to purchase or attempt to purchase any alcoholic beverage unless under the supervision of a responsible person over the age of 21 for training, education, or research purposes. It is also illegal for a person under the age of 21 to possess any alcoholic beverage with the intent to consume it at a place other than the household of the person’s parent or guardian. It is important to know also that possession at a place other than the household of the parent or guardian creates a rebuttable presumption of intent to consume it at a place other than the household of the parent or guardian. 

Finally, if you are under the age of 21, it is a misdemeanor crime to drive, operate, or be in physical control of a motor vehicle while consuming alcoholic beverages, or after having consumed alcoholic beverages while there is physical evidence of the consumption present in the person’s body, under Minnesota Statute Section 169A.33.  This is known as the “Not a Drop Law,” or Zero Tolerance, because the only legal blood alcohol content for a driver who is under the age of 21 is 0.0. 

4.  If you are over the age of 18, you may… 

If you are at least 18 years old, you may be employed as a server or a bartender in an establishment that has a license to sell alcoholic beverages.  This means you may “handle, transport or sell beer, wine or spirits in a liquor store or off-premises establishment

How to Stay Safe When Getting Pulled Over 

Many women – and men – have expressed concern about being pulled overby a police car at night in a location where there is no one else around and the safety concerns this type of situation holds, especially in light of the rash of police-impersonator crimes that were committed in 2004, which many of you may remember, and in light of the recent police beating that happened here in Minneapolis last month. 

There is a good article written by Allison Ford that was published online last month, entitled, “Imposter!  How to Spot a Fake Cop”, that talked about some simple ways people can use common sense to avoid being victims of police-impersonators, or utility-worker impersonators.  There was also an article on www.driving-while-intoxicated.com, a national website that discussed 16 things folks should remember when being pulled over by police in order to not run a-fowl of the law. 

I’ve combined these sets of information and tailored them to be in compliance with Minnesota law, to provide you with the following checklist of How to Stay Safe When Getting Pulled Over. 

Step 1: You saw the flashing lights, and just figured out they’re for YOU. 

First, put on your hazards and SLOW DOWN.  This will indicate to the police that you acknowledge them and are going to pull over at the first opportunity.  If you’re on the freeway it’s best to stop as soon as possible, but if you are clearly unable to do so safely, then take the next exit up to a gas station, or a rest area.  If you’re on a side or city street, find a place that is well lit with other people around.   If you can’t find someplace with other people around, make sure the officer is recording the stop on the squad car’s video system. 

Second, when the officer approaches, STAY IN YOUR CAR, windows rolled up, doors locked, and CHECK for proper identification.  A real police officer will have his or her badge, badge number, name, jurisdiction (like the city name, or “State Trooper”) on his or her uniform for easy viewing.  Real officers also wear radios and utility belts – in short, their uniforms are complicated, and their authenticity is in those details. 

Third, sometimes plain clothed officers pull folks over in unmarked cars.  If this looks like the case, ask the officer to show his or her badge for identification and, if you still aren’t sure, tell them you’re going to call 911 to verify that an unmarked car has made a stop in your area.  Police dispatchers know where their officers are and can easily conform an officer’s identity for you. 

Step 2: The officer is really a cop, and you are REALLY being pulled over. 

Stay in your car.  Officers want to be able to see you, and to know where you and your hands are.  Think through where your driver’s license and your “registration” – which is your car insurance card – are, so that when the officer asks for them, you can go right to them.  The only time you should get out of your car is if/when the officer asks you to get out of it. 

“Taking the fifth” has become a TV sitcom punch line, but in the legal world, it is a real and important constitutional right.  You have the right to not answer the officer’s questions, and to not volunteer information.  This includes answering, “I don’t know,” when asked if you know why you are being pulled over, and not answering when asked if you have been drinking.  That said, you should identify yourself to the officer if/when he or she asks, by giving your name, your date of birth and your current address – as this information is already on your driver’s license and registration.  Remember, also, that giving an officer false information about anything is a crime in and of itself. 

Step 3: To Arrest or Not to Arrest 

An officer needs probable cause to arrest you for a crime.  Not answering questions about how much you’ve had to drink can be used as probable cause, but telling an officer that you’ve had 7 beers can be used as evidence to convict you of DUI, so don’t be surprised if you are arrested.  Stay calm.  The important thing to remember at this stage of the stop is to ask the officer if his squad camera is on and recording the stop.  This way, if the officer doesn’t follow protocol, but not reading you your Miranda Warning, or by deviating in any way, there will be clear proof on video to support your version of the story later. 

Step 4: “Who You Gonna Call?” 

The “Ghostbusters” can’t help you – but a lawyer can.  It’s a good idea to have the phone number of a Minnesota DUI lawyer in your wallet, purse or cell phone BEFORE you need to make that call.  It’s no fun to have to thumb through a phone book in the jail looking for the number of someone you aren’t sure will answer the phone and whom you’ve never talked to before at a time when you need good advice. If you’ve been arrested, call respected Minnesota Criminal Attorney Douglas T. Kans at (952) 835-6314.