Minnesota DWI

Posts Tagged ‘Minnesota DWI’

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On March 30, 2010, the Minnesota Court of Appeals filed an unpublished opinion in a case entitled Kruckow v. Comissioner of Public Safety, in which the petitioner, Ms.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 DWI “Whiskey” or Special Plates: Cannot be sole basis of traffic stop

Saturday, March 27th, 2010

Whiskey Plates Can’t Be the Only Reason a Driver is Stopped

When an driver has had two or more DUIs in a ten year period, tested with a BAC of .20 or more, refused testing, or had a child in the car he or she may end up with something called special series license plates, or “Whiskey Plates” on his or her vehicle. These special plates may be issued under Minn.Stat. §168.041, subd. 6, in the following circumstances: if a member of the violator’s household has a valid driver’s license, the violator or owner has a limited license issued under section 171.30, or the owner is not the violator and the owner has a valid or limited license or a member of the owner’s household has a valid driver’s license.

Until 2003, law enforcement officers could perform an investigatory stop – or pull over – any vehicle being driven on Minnesota’s roadways if that vehicle had Whiskey Plates, whether or not the driver had done anything wrong. This was because of Minnesota Statute §168.0422, which provides: A peace officer who observes the operation of a motor vehicle within this state bearing special series registration plates issued under section 168.041, subdivision 6, or 169A.60, subdivision 13, may stop the vehicle for the purpose of determining whether the driver is operating the vehicle lawfully under a valid driver’s license.

However, in State v. Henning, a case decided by the Minnesota Supreme Court in July of 2003, Minnesota Statute §168.0422 was found unconstitutional.

Minnesota Statutes §168.0422 was originally passed by the legislature in order to authorize the stops prohibited by the Minnesota Court of Appeals ruling in a 1995 case entitled State v. Greyeagle, in which the Appellate Court ruled that police may not make suspicionless stops of drivers based solely on special series registration plates, where the statute creating the special plates does not provide that the plates are issued under that condition. So, the legislature enacted § 168.0422 to allow law enforcement officers to do precisely what the Appellate Court had said they couldn’t do without a special law specifically allowing it.

In 2003, in Henning, the State argued that § 168.0422 was constitutional because by applying for the special series or Whiskey Plates, the driver had given something akin to implied consent and acknowledged that the police would be legally able to stop his vehicle at any time for no other reason than that he had special series plates. The Minnesota Supreme Court disagreed, and said:

“The special series registration plates are only issued upon a showing that someone will be legally driving the vehicle bearing those plates. This person may be the violator, who may be issued a limited license to drive under certain circumstances, such as attending work or school… However, the special series plates are also issued where someone other than the violator, either a member of the violator’s household or someone else identified to the commissioner of public safety, will be lawfully driving the vehicle. These qualified, licensed drivers of the specially registered vehicles are also subject to the possibility of numerous stops made each and every day, pursuant to Minn.Stat. §168.0422, solely on account of driving a motor vehicle bearing special series registration plates. Thus, Minn.Stat. §168.0422 subjects a number of licensed motorists, who were not party to the original revocation of the registration plates or the subsequent reissuing of the special series plates, to the possibility of being stopped by every law enforcement officer they encounter.”

For the same reason that road blocks as sobriety check points are unconstitutional in Minnesota, stopping cars for no reason other than that they have special series plates is unconstitutional: The Minnesota State Constitution, Article I, Section 10 states that police must have an objective, individualized articulable suspicion of criminal wrongdoing before they are able to stop a driver because that stop is a search and/or seizure under both the State and Federal constitutions.

You can read the full text of the Supreme Court’s opinion at:http://caselaw.findlaw.com/mn-supreme-court/1324139.html

Tags: Minnesota DWI, plate impoundment, special plates, whiskey plates
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Minnesota Court Upholds DWI Conviction of Man Asleep in Vehicle

Wednesday, February 10th, 2010

Being a criminal lawyer in Minnesota for the last 16 years, I’ve learned that one of the hardest concepts for lay people to grasp with regard to DWI law is the notion of “physical control”. In other words, the idea that someone could be charged or convicted of DWI for just sitting or lying in a motor vehicle. It really is one those head-scratching concepts under the law. Over the last several years, Minnesota Courts have given a very broad definition of “physical control” when it comes to DWI law. Therefore, this latest ruling by the Minnesota Supreme Court should come as no surprise.

In a January 21st, 2010 ruling, State of Minnesota vs. Fleck, the Minnesota Supreme Court upheld a felony DWI conviction, after jury trial, of a driver that was found asleep in his motor vehicle in the parking lot of his apartment complex. When the police arrived, they found Mr. Fleck asleep behind the wheel of his vehicle with the driver’s side door open and the ignition keys in the center console of the vehicle between the driver and passenger seats.

Most often in “physical control” cases, there is the assumption that, although the police did not see the actual driving conduct, it’s clear that the individual actually drove to the location based on other circumstantial evidence. However, in Fleck, the officer’s had determined that Mr. Fleck had not recently driven his motor vehicle because the car was “cold to the touch”, the lights were not on, and it did not look as though the vehicle had been running.

Despite these facts, the Minnesota Supreme Court found that Mr. Fleck was in a position to exercise domain over his vehicle. In other words, without too much difficulty, the Court believed Mr. Fleck could have made his motor vehicle a source of danger on the roadways by awakening, in an intoxicated state, and then subsequently taking the keys from the console and starting the vehicle and driving off.

Mmmmm… is it just me or does this remind anyone else of the Spielberg Movie “Minority Report” with Tom Cruise playing Police Chief John Anderton of the Precrime Unit?

Again, as a Minnesota DWI defense lawyer that has had to argue the concept of “physical control” many times throughout my career, this decision comes as little surprise. Nevertheless, this case is remarkeable in the sense that there was actual evidence that the driver did NOT drive the motor vehicle to the location, but the Court still found “physical control”.

Tags: Felony DWI, Minnesota DWI, physical control
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Minnesota DWI Charges: A Brief Summary

Friday, January 15th, 2010

I’ve discussed the various levels or degrees of DWI charges in Minnesota on our website or previous blog postings in the past, but one of the most common questions we receive from prospective clients is to explain the different levels of DUI offenses. So, I figured a quick review would be helpful.

There are four degrees of DWI or DUI offense in Minnesota:

First Degree (Felony) DWI;
Second Degree (Gross Misdemeanor) DWI;
Third Degree (Gross Misdemeanor) DWI: and
Fourth Degree (Misdemeanor) DWI.

The degree or level of DWI offense an individual is charged with depends on the presence of what is called “aggravating factors’. The more aggravating factors that exist at the time of an individuals arrest, then the more serious the level of DWI charge.

The aggravating factors as acknowledged by Minnesota Statute include:

A qualified prior impaired driving incident within 10 years of the current DWI charge or incident;
Having a blood alcohol concentration of .20 or more at the time of driving or as measured within two hours of the time of offense;
Having a child under the age of 16 in the motor vehicle at the time of driving or the offense if the child is more than 36 months younger than the offender.

A driver will be charged with a fourth-degree DWI, if none of the above aggravating factors are present at the time of the offense. A driver will be charged with third-degree DWI, if there is at least one aggravating factor present at the time of the offense. A driver will be charged with a second-degree DWI, if there is at least two aggravating factors present at the time of the offense. With regard to felony first-degree DWI, a driver must have at least three qualified prior impaired driving incidents within ten years immediately preceding the current offense or was previously convicted of a felony DWI in Minnesota. Therefore, other than having a prior felony DWI conviction, the only aggravating factor that is relevant to enhancing a new offense to a felony level DUI is if the individual has a prior DWI conviction or a prior DUI related license revocation within the last ten years.

Lastly, it is important to note that each and every degree or level of DWI offense in Minnesota carries with it certain complexities. Such things as mandatory jail or prison sentences, license plate impoundment, mandatory high bail amounts and motor vehicle forfeitures can exist for various degrees of DWI offenses. Therefore, I strongly advise that an individual charged with any level of DUI offense seek the assistance or advice of a highly-skilled Minnesota DWI Lawyer.

Tags: Felony DUI, Felony DWI, First Degree DUI, First Degree DWI, Fourth Degree DUI, Fourth Degree DWI, Gross Misdemeanor DUI, Gross Misdemeanor DWI, Minnesota DUI, Minnesota DWI, Misdemeanor DUI, Misdemeanor DWI, Second Degree DUI, Second Degree DWI, Third Degree DUI, Third Degree DWI
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Minnesota DWI Vehicle Forfeiture: MN Supreme Court Issues New Ruling

Thursday, December 31st, 2009

Minnesota’s Forfeiture Statute and Joint Vehicle Ownership

Two weeks ago, on December 17, 2009, the Minnesota Supreme Court issued an opinion that specifically and dramatically addressed the issue of joint vehicle ownership and forfeiture.

The appellate case was entitled, “David Lee Laase v. 2007 Chevrolet Tahoe,” and the basic facts were as follows: Mr. Laase and his wife owned a 2007 Chevrolet Tahoe. Both their names were on the title, as many married couples’ names both appear on the titles to their vehicles. Ms. Laase was driving the Tahoe on May 16, 2006, when she met up with her husband at their golf club. Mr. Laase left the club in the early evening, and Ms. Laase stayed for an evening game. The next time he heard from her was at 1 o’clock the next morning, as she’d been arrested for DWI.

Mr. Laase asserted the innocent owner defense, as per Minnesota Statute section 169A.63 subd. 7(d) (2008), which states, “A motor vehicle is not subject to forfeiture under this section if its owner can demonstrate by clear and convincing evidence that the owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the owner took reasonable steps to prevent the use of the vehicle by the offender.”

Mr. Laase won the forfeiture challenge in district court, arguing that because he was an owner of the vehicle and he had no knowledge – either actual or constructive – that the Tahoe was going to be used in the commission of a DWI, the Tahoe should not be subject to forfeiture and he should receive the vehicle back because he was an owner of the vehicle and he was innocent. The Minnesota Court of Appeals also agreed with Mr. Laase, after the County appealed the district court’s ruling. The County next appealed to the Minnesota Supreme Court, arguing that because BOTH owners of the vehicle were not innocent, the innocent owner’s defense shouldn’t apply to ANY owner of the vehicle.

The Minnesota Supreme Court disagreed with both the district court and the Appellate Court and adopted the County’s argument. Supreme Court stated in its December 17 opinion that although the statute is written in the singular – owner – the legislature actually meant for that singular term to include the plural version of the term as well.

In short, that by drafting the law using the word “owner”, the legislature meant for the law to be read, “owner or owners.” The opinion includes a long discussion of canons of interpretation and the differences between “textual canons,” “extrinsic source canons,” and “substantive policy canons.” The result is that the Minnesota Supreme Court found that because each owner’s interest in the vehicle is an interest in the whole vehicle, any owner’s action that triggers forfeiture means the whole vehicle is subject to forfeiture.

The Minnesota Supreme Court did leave the door open for future defenses, even as they closed the door for the innocent owner statute in cases like the Lasses’. The Court concluded its opinion by stating that the outcome might be different in a case in which the vehicle in question is jointly owned, but is exclusively used by the owner not responsible for the forfeiture (see footnote 5 of the opinion), or in cases in which a challenge is made regarding the innocent owner’s constitutional rights (see footnote 11).

Finally, the Minnesota Supreme Court clearly stated in both the majority opinion and in Justice Barry Anderson’s concurring opinion that it is the legislature’s job to re-write statutes to ensure greater protection for private property and that as “the wisdom of vesting the right to possession of a forfeited vehicle in the law enforcement agency responsible for the arrest of the defendant and the forfeiture of a defendant’s vehicle is not immediately evident,” perhaps those questions should be put to the legislature in the near future.

If you or someone you know has been arrested for a DWI or DUI in Minnesota or has had their motor vehicle forfeited as the result of a DWI arrest, call Attorney Douglas T. Kans at 952-835-6314 or 1800-972-6060 for a free consultation.

Tags: Joint Owner, Minnesota DUI, Minnesota DWI, Motor Vehicle Forfeiture, Owner
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Minnesota DWI Intoxilyzer Source Code Case: Federal Judge approves settlement.

Thursday, July 23rd, 2009

Last Thursday, on July 16, U.S. District Court Judge Donovan Frank published his opinion approving a settlement between the State of Minnesota and CMI, the Kentucky-based company that manufactures the Intoxilyzer 5000EN — the machine used by the state to administer breath tests to measure the blood alcohol concentration of suspected impaired drivers.

For over three years now, criminal defense attorneys have been arguing that without access to the source code (the computer programming that shows how the Intoxilyzer takes a breath sample and turns it into a blood alcohol concentration reading), there is no way to determine if the Intoxilyzer breath test results are accurate. If the results are potentially inaccurate, the argument concludes, then the results should be suppressed evidence, and not admissible in court to prove drunk driving. Defense attorneys made many motions in courts throughout the state asking judges to either grant their discovery requests and force the prosecution to hand over the source code, to test the accuracy of the results, or suppress the results.

Makes sense, right? The counter-argument that the State made was equally logical, though. Basically, the state argued that it didn’t have the source code, so it couldn’t give it to defendants. Why didn’t the state have it? The company that makes the Intoxilyzer machines had refused, when the State asked, to disclose the source code — claiming it was a trade secret, and protected under copyright laws. The Court could tell the State to hand it over, but the State had nothing to hand over.

A few Judges in DUI cases wrestled with this dilemma for a long time — until this last April, when something big happened in Minnesota: The Minnesota Supreme Court ruled in State v. Brunner that the State had 30 days to produce the source code, or the breath test was going to be suppressed, regardless of whether the State currently had access to it or not. However, in a very similar case, State v. Underdahl, the same Supreme Court said the defense hadn’t proven that the source code was relevant to the case and therefore that breath test would not be thrown out without the code. The reason for these two different results boils down to the individual facts of the cases, the differences in the test results and simple math regarding how far off the machine’s readings would have had to have been in order to for the source code to have made a difference.

What happened next was a settlement between Minnesota Department of Public Safety and CMI. This seems like a good thing for folks facing DUI charges based on Intoxilyzer 5000EN test results, right?

The gist of the settlement is that CMI agrees to grant access to the once-guarded, super-secret source code in that anyone who needs access to it can view it in its “native electronic format” at the company’s headquarters in Owensboro, Kentucky.

This is what the federal judge approved last Thursday: A trip to Kentucky and an unlimited number of hours pouring over non-sensical “native electronic format” in order to attempt to discover whether this company’s equipment is functioning the way it’s supposed to do.

But take heart, readers! There are two pieces of good news in this. First, the courts have shown CMI that claims of “proprietary” protection will no longer be entertained in the state of Minnesota. And second, although the federal opinion approves the settlement, individual state trial judges are not bound by the federal judge’s decision.

To read a summary of the settlement, check out this link: http://www.minnlawyer.com/userfiles/pdf/consent.pdf

Tags: Intoxilyzer Source Code, Minnesota DWI, Minnesota DWI Lawyer
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Minnesota Supreme Court Tackles DWI Intoxilyzer Source Code Issue

Saturday, May 2nd, 2009

The Minnesota Supreme Court in State vs. Underdahl, an 18 page ruling handed down on April 30th, 2009, affirmed one district court judge’s order that the source code for the Minnesota Intoxilyzer 5000EN breath testing machine be disclosed by the State of Minnesota in a Minnesota DWI prosecution case, but also ruled that the district court abused its discretion in ordering the State to disclose the source code in a separate Minnesota DUI prosecution case.

In the first case, the Minnesota Supreme Court found that the defense made a sufficient showing that the source code may relate to the defendant’s guilt or innocence in his Minnesota DWI or DUI case, as opposed to the second case where the Court found the defendant did not make such a showing.

Although the Court ruled that the State does have the source code in its possession, it made clear that it’s still within the district court’s broad discretion whether to grant a defendant’s motion requesting disclosure of the source code in a MN DUI case. It further found that the district court, in the first case, did not abuse this discretion in ordering production of the source code, where as the district court in the second DWI case did abuse its discretion by ordering production of the source code where the defendant failed to provide sufficient evidence.

Until now, the vast majority of district court judges in Minnesota have denied defense motions requesting production of the source code in DWI cases. The question now becomes as to what affect this decision will have on these same judges. The Minnesota Supreme Court ruled that district judges still have broad discretion whether to grant or deny similar motions by Minnesota Criminal Lawyers on behalf of DWI defendants.

At the very least, perhaps the DWI defendant is now given a blue print as to what may be required to make a sufficient showing to obtain an order requiring production of the Minnesota Intoxilyzer 5000EN source code. Also, with this ruling, there seems little doubt that the flood gates may now be open for source code demands. I think the question still remains as to what will be the result of such demands, based on this Minnesota Supreme Court decision.

Tags: breath test, Intoxilyzer, Minnesoa DUI, Minnesota DWI, source code
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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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Minnesota DWI Laws: The Four Degrees

Saturday, April 11th, 2009

As an experienced Minnesota Criminal Lawyer that has represented driver’s charged with Minnesota DUI related charges for over the last 15 years, I have been asked hundreds of questions over the years relating to MN DWI Laws or MN DUI Laws by clients, prospective clients, other lawyers, and simply curious people from many other professions. With the invention of our new blog, I thought it would be useful to answer, in a several part series, the most common questions I’ve been asked about Minnesota DWI Laws.

Two of the most common questions I receive are:

1. What are the different degrees of Minnesota DWI offenses; and

2. What are the differences between the various degrees of DWI offenses.

First, in Minnesota, we have four different degrees of DWI offenses:

1. First Degree DWI (Felony)

2. Second Degree DWI (Gross Misdemeanor)

3. Third Degree DWI (Gross Misdemeanor)

4. Fourth Degree DWI (Misdemeanor)

There are many differences with regard to each of these offenses, including, but not limited to, mandatory minimum jail sentences, mandatory bail and conditions of release, and the greater potential civil consequences with certain degrees (i.e. vehicle forfeitures, license plate impoundment ). I’ll will address these other issues in the later parts to our Minnesota DWI Law series, but for now, I want to focus on how a driver can go from a Fourth Degree DWI (misdemeanor) to a First Degree DWI (felony). The key is the presence of what is defined by Minnesota DWI Law as “aggravating factors”.

These “aggravating factors” include:

1. a qualified prior impaired driving incident within the ten years immediately preceding the current offense;

2. having an alcohol concentration of 0.20 or more as measured at the time, or within two hours of the time of the offense; or

3. having a child under the age of 16 in the motor vehicle at the time of the offense if the child is more than 36 months younger than the offender.

It’s the presence of any of the above factors that would cause a Minnesota Driver to go from a Misdemeanor Fourth Degree DWI, to a more serious DWI offense. The more “aggravating factors” that are present, the more serious is the Minnesota DUI offense.

It should be noted that Refusal to submit to chemical testing of the person’s blood, breath, or urine, although not defined as an “aggravating factor”, functions in the same manner. For example, a first time Minnesota DWI, in which the driver refused chemical testing , would be charged as a Third Degree Refusal/DWI (Gross Misdemeanor). If this same driver had a prior DWI within ten years, or a child under the age of 16 in the motor vehicle at the time, he or she could be charged as a Second Degree Refusal/DWI (Gross Misdemeanor).

Lastly, unless a person has a prior Felony DWI conviction or Felony Criminal vehicular homicide and injury conviction, for a Minnesota driver to be charged with Felony First Degree DWI in Minnesota, he or she must either have three prior convictions for DWI, or three prior DWI related alcohol license revocations within the ten years of the new DWI charge.

Tags: Felony DWI, First Degree DWI, Fourth Degree DWI, Gross Misdemeanor DWI, Minnesota Criminal Lawyer, Minnesota DWI, Minnesota DWI Laws, Misdemeanor DWI, MN DUI, MN DWI, Second Degree DWI, Second Degree Refusal, Third Degree DWI, Third Degree Refusal
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