implied consent

Posts Tagged ‘implied consent’

Minnesota DWI Implied Consent Test Certification: Is Defective Good Enough?

Wednesday, April 7th, 2010

On March 30, 2010, the Minnesota Court of Appeals filed an unpublished opinion in a case entitled Kruckow v. Comissioner of Public Safety, in which the petitioner, Ms. Kruckow, challenged the revocation of her driver’s license under Minnesota’s Implied Consent law with two arguments: First, she challenged the certification of her test results because it appeared that the officer had certified her urine test results before the test results were actually known; and second, she argued that her procedural due process rights had been violated because the test results weren’t certified properly. The Appellate Court disagreed.

Police officers must comply with certification requirements when determining whether there is probable cause to request an individual suspected of driving under the influence of alcohol to submit to a breath, urine or blood test under the Implied Consent law in Minnesota, according to Minnesota Statute section 169A.52 subd. 4(a), which reads:

“Upon certification by the peace officer that there existed probable cause to believe the person had been driving, operating, or in physical control of a motor vehicle in violation of section 169A.20 (driving while impaired) and that the person submitted to a test and the test results indicate an alcohol concentration of 0.08 or more or the presence of a controlled substance listed in schedule I or II . . . then the commissioner shall revoke the person’s license. . .”

This certification is really line nine on the Implied Consent form; officers check the box next to line nine once they have the results of a person’s blood, breath or urine test and those results indicate an alcohol concentration of over 0.08. The officer then signs the form and this is the certification to which the statute refers.

Kruckow challenged the certification in her case because the signature and the checking of the box in line nine were in a different color ink and she argued it appeared as though the box had been checked and the signature completed before her urine test results had been returned.

In disagreeing with Kruckow, the Appellate Court cited to a case entitled Johnson v. Commissioner of Public Safety, decided in 2006, in which the Court of Appeals stated that even when a peace officer’s certificate is defectively completed, as long as the officer provides other supporting documentation – like the officer’s narrative report, the notice of order and revocation and the test results showing the individual’s blood alcohol was over the legal limit – the certification is proper.

The second argument Krukcow made unsuccessfully was that her procedural due process rights had been violated because of the improper certification. The Court again disagreed and cited to Johnson, stating that the alleged improper certification had not created “a direct and personal harm,” which is what is required to prove a procedural due process violation. In this case as well, the Court stated that because it was undisputed that Kruckow’s urine test results were 0.18, she also had not proven a direct and personal harm, which would have given her due process argument merit.

Tags: certification, driving while impaired, DUI, implied consent, Implied Consent Law, license revocation, Minnesota DWI, urine test
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Minnesota Court Issues Ruling in DWI Urine Test Case

Saturday, February 20th, 2010

Within the last several months there has been a string of rulings by the Minnesota Court of Appeals with regard to urine test challenges. I have discussed these rulings in my earlier blog postings. http://www.kanslaw.com/blog/minnesota-court-issues-ruling-on-reliabililty-of-urine-testing-in-dwi-cases.html and http://www.kanslaw.com/blog/minneapolis-dwi-lawyer-mn-court-issues-ruling-on-urine-testing.html. These cases, for the most part, dealt with the issue of ”urine pooling” and whether and expert witness should be allowed to testify with regard to this issue at the hearing or trial.

However, in the present case, Stucco vs. Commissioner of Public Safety, the court focused on this issue of whether a urine test obtained by the police after a DWI arrest is in violation of driver’s Fourth Amendment Constitutional right against unlawful searches and seizures.

In Stocco, the driver was asked to submit to a urine test subsequent to his DWI arrest and after he was read the Minnesota Implied Consent Advisory informing him that a refusal to submit to a test is a crime under the Minnesota Implied Consent Law. The driver submitted to the urine test which ultimately was tested by the Bureau of Criminal Apprehension (BCA ) and revealed an alcohol concentration of .14.

The driver’s attorney first argued that the urine test was not reliable because of the delay between the submission of the urine test and its ultimate testing by the BCA. An expert witness, testifying for the defense at the hearing in the lower court, stated that if the urine sample remained at room temperature or below freezing prior to testing, it may not be reliable. Without proof or evidence that either of these things actually occurred, the court ruled against the driver on this issue.

The second issue raised by the driver was whether the urine test was obtained by the police in violation of his Fourth Amendment Constitutional right against unlawful searches and seizures. The driver’s attorney argued that the ”implied consent” in this case was not voluntary consent as the test was coerced when the police told the driver he would be charged with the crime of refusal if he did not provide the urine sample. Furthermore, it was argued, since the driver did not give consent the police needed a warrant in order obtain his urine sample. Lastly, the driver’s attorney argued since the police did not have a warrant and the exigent exception to the warrant requirement did not exist, the urine test should be thrown out as violation of the driver’s Fourth Amendment Right.

However, the court, citing its earlier rulings, held that exigent circumstances did, in fact, exist in this case allowing for an exception to the warrant requirement. The court, citing an earlier Minnesota Supreme Court ruling, found that the natural dissipation of alcohol creates this exigency allowing for the exception.

Tags: DWI, fourth amendment, implied consent, Minnesota, reliabilty, unreasonable searches and seizures, urine pooling, urine test
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Minnesota Court of Appeals issues Opinion on License Revocations as Aggravating Factor in DUI Cases

Friday, June 19th, 2009

The Minnesota Court of Appeals releases its newly decided opinions each week on Tuesdays at 10 am. This last Tuesday, June 16, 2009, the Appellate Court handed down a decision that could have a huge impact for individuals who have received DUI charges in the last 8 years, as well as for individuals who will receive Minnesota DUI charges until the year 2016.

In its decision in the case of Odegard v. State of Minnesota, the Minnesota Appellate Court concluded that a decision from the Minnesota Supreme Court issued in 2007 that precluded the use in DUI cases of unreviewed license revocations to enhance DUI charges is NOT retroactively applicable. The 2007 Supreme Court case was entitled State v. Wiltgen, and in it, the Minnesota Supreme Court created a new rule of constitutional criminal procedure in Minnesota, holding that any license revocation that had been challenged but not yet decided could not be used in a new Minnesota DUI charge to enhance the new DUI to a higher degree crime.

However, in Odegard, the Appellate Court decided that any convictions for DWI that were final before Wiltgen was decided in 2007 cannot be altered based on the rule pronounced in Wiltgen.

What does this mean for individuals facing DUI charges now? Here’s how the ruling in Odegard works: Lance Odegard had pled guilty in 2003 to first degree DWI. The enhancing factors that made his charge a first degree DWI were two prior DWI convictions, one from 1998 and one from 2001, and a 2002 Implied Consent Driver’s License Revocation. Therefore, with three enhancing factors in the ten year window prior to the 2003 DWI charge, Odegard was charged with first degree DWI. In 2008, after the Minnesota Supreme Court decided Wiltgen, Odegard appealed his first degree DWI, arguing that because one of the enhancing factors used to make his DWI a first degree charge was a license revocation that he had challenged and had not yet received review regarding at the time of his conviction for first degree DWI, like Wiltgen, he was entitled to have the license revocation precluded and the DWI dropped to a second degree.

The Minnesota Court of Appeals disagreed with Odegard’s argument. The Appellate Court said the point of the Supreme Court’s rule in Wiltgen was that the use of an unreviewed license revocation to enhance a subsequent DUI was unconstitutional because it denied the defendant of his due process rights, which were to have the revocation that was challenged reviewed and ruled on before it could be used to enhance another, later charge.

But the Appellate Court decided that Wiltgen should not be applied retroactively, and therefore did not apply to Odegard’s case, because his conviction for first degree DWI was final in 2003, before Wiltgen was decided in 2007.

The Appellate Court’s decision in Odegard means that everyone with a DUI charge that was enhanced due to a license revocation, if that revocation was under review at the time of conviction, cannot appeal his or her conviction on the grounds granted in Wiltgen.

Because there is a ten year window in Minnesota for enhancing DUI charges with prior DUI charges and license revocations, the ruling in Odegard means that individuals who received enhanced charges due to challenged license revocations in the last 8 years cannot take advantage of the due process protections in Wiltgen, because their convictions were final at the time Wiltgen was decided, just like Odegard’s was.

Looking to the future, because it takes 10 years for a DUI charge or license revocation to no longer fall in the window of prior convictions which can be used to enhance new charges, individuals facing Minnesota DUI charges will be feeling the effects of the Odegard decision until the year 2016!

You can check out the Appellate decision at: http://www.courts.state.mn.us/opinions/coa/current/OPa082012-0616.pdf

It is important for the Minnesota Driver to understand the significance of prior DWI convictions. If you are charged with a DUI, you should contact a skilled Minnesota/Minneapolis DWI Lawyer. Prior convictions for a DWI can be used against you at sentencing for potentially lengthy jail sentences. If you’ve been arrested or charged with a Minnesota DUI or DWI, call Kans Law Firm, LLC at (952) 835-6314 for a Free Consultation.

Tags: First Degree DWI, implied consent, Minneapolis DWI Lawyer, Minnesota DUI, prior license revovation
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Probable Cause Existed For DWI Arrest: The Case Of The Scooter

Thursday, April 16th, 2009

Minnesota DWI law defines a “motor vehicle” as:

“Every motor 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.”

Therefore, as summer approaches here in the beautiful State of Minnesota, and most of us increase our outdoor recreational activities, it is important for the Minnesota Driver to be aware of the above definition of a motor vehicle with regard to Minnesota’s DWI laws. The law defines a “motor vehicle” as any vehicle that is “self-propelled” or propelled by electric power. So, for all the golfers out there, and there are many in this State, please be advised that a golf cart does indeed fit the above criteria. This would also apply to mopeds, snow-mobiles, ATV’s, and, as the case below describes, Scooters!

In an unpublished opinion by the Minnesota Court of Appeals on April 7th, 2009 entitled State v. Stevens, The Minnesota Court of Appeals affirmed the district court’s previous order finding that probable existed to believe a man, thought to have driven a motor- scooter, was in violation of Minnesota’s DWI Laws.

In Stevens, the police responded to the scene of an accident. At the scene, the police discovered a man lying in the middle of the road with injuries consistent with a motor-scooter accident. However, the police were unable to locate a scooter at the scene. Several people at the scene told the police that there was a red scooter lying next to the man, but it had been removed from the scene, before the police arrived, by another individual.

The officers eventually questioned the other individual, who indicated to the police, that it was his scooter and the defendant had driven off on it earlier in the evening without the man’s permission. The defendant was questioned by the police later that evening, at the hospital where he was being treated for his injuries, and admitted to conuming four to six glasses of “straight” whiskey earlier in the evening.

Based on this information, the police officer invoked the Minnesota Implied Consent Advisory and asked the defendant to submit to a blood test. The defendant ultimately refused to submit to testing and was charged with Second Degree DWI/Refusal.

The defendant’s attorney argued that the police officer did not have probable cause to believe the defendant was driving, operating, or in physical control of a motor vehicle. Therefore, the police officer lacked the probable cause necessarry to invoke the implied consent law.

The Minnesota Court of Appeals ruled, considering the “totality of the circumstances”, the officer did have probable cause to believe the defendant was indeed operating or in physical control of a “motor vehicle” under the influence of alcohol.

Tags: implied consent, Minnesota DWI, motor boats, motor vehicle, off-road recreational, probable cause
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