In State of Minnesota v. Nelson, Not Reported in N.W.2d, 2011 WL 6015167 (Minn.App.) a police officer ran the plates of a vehicle and the computer reported the plates expired, even though the plates appeared to have valid and current tags. The cop stopped the car, and determined that the tags were valid, but that the records of the Department of Public safety were not current (by several days). During the stop Deputy Silgjord noticed indicia of intoxication and arrested appellant for driving while impaired. Appellant was charged with first-degree driving while impaired and first-degree driving while impaired (over .08). Appellant moved to suppress the evidence from the stop, arguing that the stop was unconstitutional. The district court upheld the stop and denied appellant's motion and this appeal followed.
In denying the appeal, the majority wrote:
"We recently held that a discrepancy between displayed license-plate tabs and information derived from an officer's onboard computer system constitutes an objectively reasonable basis to initiate an investigatory stop. State v. Cox, ––– N.W.2d ––––, ––––, 2011 WL 5903399, at *1(Minn.App. Nov. 28, 2011). Our holding in Cox compels a similar result here. Upon observing a discrepancy between the displayed license-plate tabs on appellant's vehicle and the information contained in the state's computer database, the officer had an objectively reasonable basis for the stop. The district court therefore did not err by denying appellant's suppression motion."
The dissent wrote:
"[T]he United States Supreme Court has held:
[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.
Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401 (1979). Investigatory stops to check a vehicle's registration are therefore unconstitutional, unless supported by reasonable, articulable suspicion. By allowing an officer to stop a vehicle that is displaying current, legally purchased, properly affixed registration tabs, the majority has upheld a stop based upon the state's failure to keep its records current. I am aware of no published caselaw—save for this court's recently released opinion in Cox—allowing the police to conduct a seizure based solely on a delayed updating of the state computer system.FN2 Yet that is precisely what the majority has done, first in Cox and again here. I wish to take no part in the upholding of this stop."
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Showing posts with label Minnesota. Show all posts
Showing posts with label Minnesota. Show all posts
Wednesday, December 28, 2011
DWI Law - Stop for Touching Fog Line Criticized
Metcalf v. Commissioner of Public Safety, Not Reported in N.W.2d, 2011 WL 6015361 (Minn.App.) upheld a stop of a vehicle for touching the centerline and fogline twice. Of course, other jurisdictions allow for such a stop, but the dissent brings out why this one is so ridiculous. I repeat the dissent in its majority:
"I respectfully dissent. On appeal, we must determine whether Officer Barrett's investigatory stop, based on the totality of the circumstances, was lawful, or whether it was “the product of mere whim, caprice, or idle curiosity.” In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn.App.2005) (quotation omitted), review denied (Minn. June 28, 2005). The district court here considered the totality of the circumstances, and determined that appellant's driving conduct, though not illegal, was “maybe barely enough” to sustain the stop. But allowing officers to initiate investigatory stops on what can best be articulated as “maybe barely enough” invites even more questionably motivated police conduct.
In Warrick v. Comm'r of Pub. Safety, this court concluded that a vehicle's “subtle” weaving within its lane, without crossing over either the center line or the fog line, did not constitute “sufficient articulable facts” that “warrant[ed] the intrusion of a brief investigatory stop.” 374 N.W.2d 585, 586 (Minn.App.1985). I conclude that the factual circumstances in this case present no greater basis for allowing an officer to conduct an investigatory stop.
The record reflects that Officer Barrett spotted the tail lights of appellant's vehicle about three miles ahead of him on Highway 1. The officer did not observe any traffic violations or suspicious activity prior to simply spotting the tail lights. Officer Barrett's only reason for giving chase was that “bars close at 1:00 a.m.” But he admitted that he had not seen appellant come from the only bar in Cook open until 1:00 a.m.
Officer Barrett took chase in the whimsical hope that appellant might provide cause for a stop. He accelerated his squad car to 70 miles per hour (mph), 15 mph faster than appellant who, the officer noted, was properly traveling within the designated 55 mph speed limit. Using simple mathematics, traveling at 15 mph over the speed limit, it would have taken Officer Barrett 12 minutes, and 14 miles, to close the three-mile gap and catch up to appellant. He observed no traffic violations during his chase. Once he caught up to appellant, Officer Barrett tailed appellant at a distance of 120 feet for two more miles.
At no time did Officer Barrett notice any driving violations. Appellant drove the speed limit and did not drive carelessly. However, the officer claimed that while following appellant for two miles, he noticed appellant's left tire touch—but not cross—the center line twice; and similarly, claimed that appellant's right tire twice touched—but did not cross—the fog line on the right side of the highway. In each instance, this touch lasted for only a few feet. At 55 mph, this insignificant encroachment onto the lane markers would have lasted for only a fraction of a second. Other than that, Officer Barrett testified that appellant's driving behavior was not objectionable. Officer Barrett, by now many miles outside of Cook, stopped appellant and determined that he was driving while intoxicated. But like Warrick, the subtle weaving does not constitute sufficient articulable facts that warranted an investigatory stop. See 374 N.W.3d at 586. Therefore, because the record reflects that the investigatory stop was the product of mere whim, caprice, or idle curiosity, I would reverse."
"I respectfully dissent. On appeal, we must determine whether Officer Barrett's investigatory stop, based on the totality of the circumstances, was lawful, or whether it was “the product of mere whim, caprice, or idle curiosity.” In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn.App.2005) (quotation omitted), review denied (Minn. June 28, 2005). The district court here considered the totality of the circumstances, and determined that appellant's driving conduct, though not illegal, was “maybe barely enough” to sustain the stop. But allowing officers to initiate investigatory stops on what can best be articulated as “maybe barely enough” invites even more questionably motivated police conduct.
In Warrick v. Comm'r of Pub. Safety, this court concluded that a vehicle's “subtle” weaving within its lane, without crossing over either the center line or the fog line, did not constitute “sufficient articulable facts” that “warrant[ed] the intrusion of a brief investigatory stop.” 374 N.W.2d 585, 586 (Minn.App.1985). I conclude that the factual circumstances in this case present no greater basis for allowing an officer to conduct an investigatory stop.
The record reflects that Officer Barrett spotted the tail lights of appellant's vehicle about three miles ahead of him on Highway 1. The officer did not observe any traffic violations or suspicious activity prior to simply spotting the tail lights. Officer Barrett's only reason for giving chase was that “bars close at 1:00 a.m.” But he admitted that he had not seen appellant come from the only bar in Cook open until 1:00 a.m.
Officer Barrett took chase in the whimsical hope that appellant might provide cause for a stop. He accelerated his squad car to 70 miles per hour (mph), 15 mph faster than appellant who, the officer noted, was properly traveling within the designated 55 mph speed limit. Using simple mathematics, traveling at 15 mph over the speed limit, it would have taken Officer Barrett 12 minutes, and 14 miles, to close the three-mile gap and catch up to appellant. He observed no traffic violations during his chase. Once he caught up to appellant, Officer Barrett tailed appellant at a distance of 120 feet for two more miles.
At no time did Officer Barrett notice any driving violations. Appellant drove the speed limit and did not drive carelessly. However, the officer claimed that while following appellant for two miles, he noticed appellant's left tire touch—but not cross—the center line twice; and similarly, claimed that appellant's right tire twice touched—but did not cross—the fog line on the right side of the highway. In each instance, this touch lasted for only a few feet. At 55 mph, this insignificant encroachment onto the lane markers would have lasted for only a fraction of a second. Other than that, Officer Barrett testified that appellant's driving behavior was not objectionable. Officer Barrett, by now many miles outside of Cook, stopped appellant and determined that he was driving while intoxicated. But like Warrick, the subtle weaving does not constitute sufficient articulable facts that warranted an investigatory stop. See 374 N.W.3d at 586. Therefore, because the record reflects that the investigatory stop was the product of mere whim, caprice, or idle curiosity, I would reverse."
DWI Law - Minnesota Says Pre-Arrest Silence Can Be Used at Trial
In Minnesota v. Seebeck, --- N.W.2d ----, 2011 WL 6306620 (Minn.App.) a sheriff's deputy found Shawn Seebeck at two o'clock in the morning, alone, drunk, and wandering away from an unoccupied pickup truck on Highway 23. Seebeck agreed with the deputy that he should not have been driving because of his license revocation, suggested that he was not too impaired to drive, performed field sobriety tests, was arrested for drunk driving, and then submitted to a blood test without ever suggesting that he actually had not been driving. At the impaired-driving trial, the state emphasized Seebeck's omission to the jury, which convicted him. The appellate court was asked to decide whether the federal and state constitutions prohibited the state from emphasizing Seebeck's silence to bolster its trial position that, by saying nothing, Seebeck tacitly verified the deputy's understanding that he had been driving. Additionally, the court was also asked to determine whether the prosecutor plainly erred by misstating the law of physical control of a vehicle under the impaired-driving law.
With regards to pre-arrest silence, the court wrote:
"Seebeck's constitutional challenge to the use of his prearrest silence fails without the need for much discussion under the supreme court's recent decision in State v. Borg, No. A09–0243, ___ N.W.2d ____, 2011 WL 5560172 (Minn. Sept. 21, 2011). The Borg court reasoned that a defendant's silence that “is not in response to a choice compelled by the government to speak or remain silent” is not subject to Fifth Amendment protection. Id. at *7. After it extensively quoted Justice Stevens's concurring opinion in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124 (1980) (Stevens, J., concurring), the court expressly adopted his view that the decision whether to admit evidence of prearrest silence (as opposed to postarrest silence) raises no constitutional concerns, posing instead only “a routine evidentiary question.” Id. at *6–7 (quotations omitted). A prosecutor's comment about a defendant's prearrest silence therefore does not offend the defendant's constitutional right to silence. Id. at *7.
Regarding the use of the post-arrest silence, the court stated:
"Seebeck's constitutional challenge concerning the prosecutor's use of his postarrest silence fails for a different reason. The prosecutor pointed out during her opening statement to the jury and also elicited through Deputy Hasch's direct-examination testimony that, neither in responding to being told he was under arrest for drunk driving nor in responding to being advised of his blood-testing duty under the implied-consent law related to drunk driving, did Seebeck ever correct the deputy's assumption that he had been driving. This circumstance is different from those cases in which appellate courts have found no constitutional violation when the prosecutor used the defendant's postarrest silence to impeach the credibility of a defendant's trial testimony. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312 (1982) (holding that absent a Miranda warning, due process is not violated when a prosecutor relies on a defendant's postarrest silence to impeach his trial testimony); State v. Dobbins, 725 N.W.2d 492, 510 (Minn.2006) (recognizing that the Constitution does not bar the use of postarrest silence to impeach the credibility of a defendant who was not given a Miranda warning). In this case, by contrast, the state did not limit its use of the evidence of the defendant's postarrest silence to impeaching his trial testimony; it instead relied broadly on that evidence in its case-in-chief as substantive proof of an element of the offense charged. Neither the federal Supreme Court nor our state supreme court has decided the constitutional implication of a prosecutor's use of a defendant's postarrest, pre- Miranda silence in the prosecutor's case-in-chief rather than solely for impeachment. This court has similarly never answered the question.
"Several federal appellate courts have addressed the question, but with contradictory results. Three federal circuit courts (the Fourth, Eighth, and Eleventh Circuits) have deemed evidence of postarrest, pre- Miranda silence to be constitutionally admissible for use in the state's case-in-chief, while three others (the Seventh, Ninth, and D.C. Circuits) have deemed this use unconstitutional. Compare U.S. v. Love, 767 F.2d 1052, 1063 (4th Cir.1985); U.S. v. Frazier, 408 F.3d 1102, 1109–11 (8th Cir.2005); U.S. v. Rivera, 944 F.2d 1563, 1567–68 (11th Cir.1991), with U.S. v. Hernandez, 948 F.2d 316, 322–24 (7th Cir.1991); U.S. v. Velarde–Gomez, 269 F.3d 1023, 1028–30, 1036 (9th Cir.2001); U.S. v. Moore, 104 F.3d 377, 384–89 (D.C.Cir.1997). Of those courts, the two that most thoroughly addressed the constitutional concerns came to different conclusions. The D.C. Circuit in Moore and the Eighth Circuit in Frazier carefully discussed the compelled-statement concerns of the Fifth Amendment as well as due process concerns indirectly related to Miranda. See Moore, 104 F.3d at 385–87; Frazier, 408 F.3d at 1109–11. The Moore court surveyed the Supreme Court cases and interpreted their rationale to conclude that the prosecution can never constitutionally use a defendant's silence against him as evidence of guilt. 104 F.3d at 389. In contrast, the Frazier court rejected a bright-line prohibition and held that the silence may be applied by the state in its case-in-chief if the silence was not the result of compulsion by law enforcement. 408 F.3d at 1110–11."
Ultimately though, the court chose not to decide which approach to follow, holding that, even if the post-arrest silence was inadmissible, the error was harmless based upon the evidence in the case:
"First, the argument mistakenly assumes that Seebeck's postarrest silence was the only evidence that he was driving. Before Seebeck took the stand, the jury had sufficient evidence other than his silence from which it could have found that he was driving (specifically, his walking alone from the pickup truck in the middle of the night, his acknowledging that he should not have been driving while revoked and saying that he thought he was physically safe to drive, and his prearrest silence). And second, the argument mistakenly assumes that Seebeck's incriminating testimony resulted from his attempt to rebut the evidence inferred from his silence. The incriminating portion of Seebeck's direct testimony about the details of his contact with the vehicle's controls was wholly unnecessary to rebut the inculpatory inference from his silence. So to the extent that Seebeck believed that he needed to testify to rebut the assertion that he was actually driving, that need existed irrespective of any allegedly unconstitutionally admitted evidence of his silence; and the incriminating portion of Seebeck's voluntary testimony was unnecessary to rebut the only incriminating inference that could have been drawn from the challenged evidence. Seebeck's arguments do not overcome our impression beyond a reasonable doubt that the allegedly unconstitutional admission of evidence did not influence the jury in reaching the guilty verdict.
The court concluded that, because his right to remain silent does not prevent the state from using evidence of his prearrest silence and use of his postarrest silence was at most harmless error, and because the prosecutor did not misstate the law of physical control, we affirm.
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With regards to pre-arrest silence, the court wrote:
"Seebeck's constitutional challenge to the use of his prearrest silence fails without the need for much discussion under the supreme court's recent decision in State v. Borg, No. A09–0243, ___ N.W.2d ____, 2011 WL 5560172 (Minn. Sept. 21, 2011). The Borg court reasoned that a defendant's silence that “is not in response to a choice compelled by the government to speak or remain silent” is not subject to Fifth Amendment protection. Id. at *7. After it extensively quoted Justice Stevens's concurring opinion in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124 (1980) (Stevens, J., concurring), the court expressly adopted his view that the decision whether to admit evidence of prearrest silence (as opposed to postarrest silence) raises no constitutional concerns, posing instead only “a routine evidentiary question.” Id. at *6–7 (quotations omitted). A prosecutor's comment about a defendant's prearrest silence therefore does not offend the defendant's constitutional right to silence. Id. at *7.
Regarding the use of the post-arrest silence, the court stated:
"Seebeck's constitutional challenge concerning the prosecutor's use of his postarrest silence fails for a different reason. The prosecutor pointed out during her opening statement to the jury and also elicited through Deputy Hasch's direct-examination testimony that, neither in responding to being told he was under arrest for drunk driving nor in responding to being advised of his blood-testing duty under the implied-consent law related to drunk driving, did Seebeck ever correct the deputy's assumption that he had been driving. This circumstance is different from those cases in which appellate courts have found no constitutional violation when the prosecutor used the defendant's postarrest silence to impeach the credibility of a defendant's trial testimony. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312 (1982) (holding that absent a Miranda warning, due process is not violated when a prosecutor relies on a defendant's postarrest silence to impeach his trial testimony); State v. Dobbins, 725 N.W.2d 492, 510 (Minn.2006) (recognizing that the Constitution does not bar the use of postarrest silence to impeach the credibility of a defendant who was not given a Miranda warning). In this case, by contrast, the state did not limit its use of the evidence of the defendant's postarrest silence to impeaching his trial testimony; it instead relied broadly on that evidence in its case-in-chief as substantive proof of an element of the offense charged. Neither the federal Supreme Court nor our state supreme court has decided the constitutional implication of a prosecutor's use of a defendant's postarrest, pre- Miranda silence in the prosecutor's case-in-chief rather than solely for impeachment. This court has similarly never answered the question.
"Several federal appellate courts have addressed the question, but with contradictory results. Three federal circuit courts (the Fourth, Eighth, and Eleventh Circuits) have deemed evidence of postarrest, pre- Miranda silence to be constitutionally admissible for use in the state's case-in-chief, while three others (the Seventh, Ninth, and D.C. Circuits) have deemed this use unconstitutional. Compare U.S. v. Love, 767 F.2d 1052, 1063 (4th Cir.1985); U.S. v. Frazier, 408 F.3d 1102, 1109–11 (8th Cir.2005); U.S. v. Rivera, 944 F.2d 1563, 1567–68 (11th Cir.1991), with U.S. v. Hernandez, 948 F.2d 316, 322–24 (7th Cir.1991); U.S. v. Velarde–Gomez, 269 F.3d 1023, 1028–30, 1036 (9th Cir.2001); U.S. v. Moore, 104 F.3d 377, 384–89 (D.C.Cir.1997). Of those courts, the two that most thoroughly addressed the constitutional concerns came to different conclusions. The D.C. Circuit in Moore and the Eighth Circuit in Frazier carefully discussed the compelled-statement concerns of the Fifth Amendment as well as due process concerns indirectly related to Miranda. See Moore, 104 F.3d at 385–87; Frazier, 408 F.3d at 1109–11. The Moore court surveyed the Supreme Court cases and interpreted their rationale to conclude that the prosecution can never constitutionally use a defendant's silence against him as evidence of guilt. 104 F.3d at 389. In contrast, the Frazier court rejected a bright-line prohibition and held that the silence may be applied by the state in its case-in-chief if the silence was not the result of compulsion by law enforcement. 408 F.3d at 1110–11."
Ultimately though, the court chose not to decide which approach to follow, holding that, even if the post-arrest silence was inadmissible, the error was harmless based upon the evidence in the case:
"First, the argument mistakenly assumes that Seebeck's postarrest silence was the only evidence that he was driving. Before Seebeck took the stand, the jury had sufficient evidence other than his silence from which it could have found that he was driving (specifically, his walking alone from the pickup truck in the middle of the night, his acknowledging that he should not have been driving while revoked and saying that he thought he was physically safe to drive, and his prearrest silence). And second, the argument mistakenly assumes that Seebeck's incriminating testimony resulted from his attempt to rebut the evidence inferred from his silence. The incriminating portion of Seebeck's direct testimony about the details of his contact with the vehicle's controls was wholly unnecessary to rebut the inculpatory inference from his silence. So to the extent that Seebeck believed that he needed to testify to rebut the assertion that he was actually driving, that need existed irrespective of any allegedly unconstitutionally admitted evidence of his silence; and the incriminating portion of Seebeck's voluntary testimony was unnecessary to rebut the only incriminating inference that could have been drawn from the challenged evidence. Seebeck's arguments do not overcome our impression beyond a reasonable doubt that the allegedly unconstitutional admission of evidence did not influence the jury in reaching the guilty verdict.
The court concluded that, because his right to remain silent does not prevent the state from using evidence of his prearrest silence and use of his postarrest silence was at most harmless error, and because the prosecutor did not misstate the law of physical control, we affirm.
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Tuesday, November 22, 2011
DWI Law: Proximate Cause and Multiple Drunk Drivers
In a Vehicular Homicide case, or a Great Bodily Harm DUI, when the other driver has also been drinking is that evidence admissible? DAD has covered this issue with varying results. In State of Minnesota v. Nelson, --- N.W.2d ----, 2011 WL 5829025 (Minn.App.) the defendant was charged with vehicular homicide. Both the defendant's vehicle and the victim (Carlson) vehicle drove off the same curve in the road. The defendant struck and killed the victim there and then fled the scene. Four hours late the defendant/appellant's family reported the accident and took him to the hospital for examination. Becker County Sheriff Deputy Bruce Anderson met appellant at the hospital, noticed that appellant showed signs of intoxication, and read him the implied consent advisory. Appellant's blood alcohol concentration was tested at .056 and .058. The victim's BAC was measured as 0.15.
The district court granted the state's motion to exclude any evidence of Carlson's alcohol consumption; although Carlson's BAC was measured at .15 following the accident and witnesses had told police that Carlson was so inebriated earlier in the evening that friends had convinced him to leave his vehicle at the bar.
The appeals court held that in a criminal vehicular homicide case in which the negligent conduct of two motor vehicle drivers intertwines to cause the death of one driver, the district court abuses its discretion by excluding evidence of the victim driver's alcohol consumption while admitting evidence of the defendant driver's alcohol consumption. Discussing the concept of proximate cause, the court stated:
"For a party's negligence to be the proximate cause of an injury, the act must be one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others. There must also be a showing that the defendant's conduct was a substantial factor in bringing about the injury."
* * *
"But there can be more than one cause of a resulting harm, and the negligence of a second party may affect the determination of proximate cause as to a first party's negligence. “An intervening, superseding act breaks the chain of causation set in operation by a defendant's negligence, thereby insulating his negligence as a direct cause of the injury.” Hofer, 614 N.W.2d at 737 (quotation omitted). “A superseding, intervening cause of harm is generally the act of a third party occurring after a defendant's negligent act and operating as an independent force to produce the injury.” Id. (quotation omitted). Or, “[w]hen the acts or omissions of two or more persons combine to bring about a harmful result, those acts or omissions are concurring causes of the harm.” Id. In some cases, the negligence of the parties is so intertwined that they “combine to bring about a harmful result[.]” Id. Thus, when “the negligence of each participant is so related to the negligence of the other” and the result of their conduct was foreseeable, one of the participants may be charged with the causal negligence. C.P.W., 601 N.W.2d at 208 (rejecting claim that a juvenile driver who initiated a car chase was not culpable for the death of several others whose vehicles were struck by the vehicle being chased, after that vehicle entered an intersection on a red light, even though the juvenile driver was able to stop before the intersection); Hofer, 614 N.W.2d at 738 (ruling that the combined acts of a negligent driver entering an intersection on a red light and a pedestrian running in front of a bus while a “Don't walk” signal was displayed, followed a natural sequence that resulted in the pedestrian's death, which “was a foreseeable consequence of each act of negligence” that did not excuse the driver's negligence); see also State v. Munnell, 344 N.W.2d 883, 887 (Minn.App.1984) (ruling that contributory negligence of victim was not a defense to a charge of criminal vehicular operation in an accident involving a victim who was lying drunk on a county highway when struck by a vehicle that had crossed the center line); Ramirez v. Miska, 304 Minn. 4, 7, 228 N.W.2d 871, 873 (1975) (stating that if two parties are negligent in causing a collision, this “does not compel a finding that the negligence of each is a proximate cause”)."
It also held that, when the intertwined negligent conduct of two motor vehicle drivers results in charges of criminal vehicular homicide being brought against one driver, the district court's jury instruction must define causation to inform the jury that a guilty verdict requires that the defendant driver's conduct must have played a substantial part in bringing about the death or injury of the victim driver. The appeals court wrote:
"With regard to the criminal vehicular homicide charges, the district court instructed the jury that an element of each charged offense was that “the defendant caused the death of Christopher Wade Carlson.” Appellant's attorney had proposed to further define “causation” by including the following statement: “A ‘direct cause’ is a cause that had a substantial part in bringing about the accident.” Appellant's attorney argued that a more complete definition or explanation of negligence was necessary in this case. We agree."
"The causation instruction given by the court was accurate, but it did not assist the jury in deciding whether appellant was criminally culpable for causing the accident. The jury necessarily had to decide the conduct of appellant and Carlson in relation to each other in order to determine whether appellant would be held criminally responsible for the death. As noted earlier, seconds before impact, appellant's vehicle approached Carlson's ATV from the rear at a high rate of speed, but Carlson's ATV also veered from its path and into appellant's path moments before impact. On these facts, the jury needed to be instructed on the parties' fault as it related to whose conduct played a substantial factor in causing the accident. Because the caselaw defines causation in criminal vehicular homicide or operation cases as “something that played a substantial part in bringing about the death or injury,” Jaworsky, 505 N.W.2d at 643, appellant was entitled to have this definition included in the jury instructions. Further, given the evidence on the victim's conduct of veering off the highway and into the path of appellant's vehicle just 50 feet before the collision, the victim's negligence could have been an intervening, superseding cause that necessitated a jury instruction on that aspect of causation. Without being properly instructed here, the causation instruction that the jury received did not fairly or adequately present the issue of causation to the jury. See Koppi, 798 N.W.2d at 364."
Based upon the above, the appellate court reversed the conviction and remanded for a trial consistent with its ruling.
EDITOR's Note: Other states do not use the 'substantial factor' phrase in their definitions of proximate cause, and such a phrase may have affected the appellate court's decision about 'intertwining causes'.
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The district court granted the state's motion to exclude any evidence of Carlson's alcohol consumption; although Carlson's BAC was measured at .15 following the accident and witnesses had told police that Carlson was so inebriated earlier in the evening that friends had convinced him to leave his vehicle at the bar.
The appeals court held that in a criminal vehicular homicide case in which the negligent conduct of two motor vehicle drivers intertwines to cause the death of one driver, the district court abuses its discretion by excluding evidence of the victim driver's alcohol consumption while admitting evidence of the defendant driver's alcohol consumption. Discussing the concept of proximate cause, the court stated:
"For a party's negligence to be the proximate cause of an injury, the act must be one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others. There must also be a showing that the defendant's conduct was a substantial factor in bringing about the injury."
* * *
"But there can be more than one cause of a resulting harm, and the negligence of a second party may affect the determination of proximate cause as to a first party's negligence. “An intervening, superseding act breaks the chain of causation set in operation by a defendant's negligence, thereby insulating his negligence as a direct cause of the injury.” Hofer, 614 N.W.2d at 737 (quotation omitted). “A superseding, intervening cause of harm is generally the act of a third party occurring after a defendant's negligent act and operating as an independent force to produce the injury.” Id. (quotation omitted). Or, “[w]hen the acts or omissions of two or more persons combine to bring about a harmful result, those acts or omissions are concurring causes of the harm.” Id. In some cases, the negligence of the parties is so intertwined that they “combine to bring about a harmful result[.]” Id. Thus, when “the negligence of each participant is so related to the negligence of the other” and the result of their conduct was foreseeable, one of the participants may be charged with the causal negligence. C.P.W., 601 N.W.2d at 208 (rejecting claim that a juvenile driver who initiated a car chase was not culpable for the death of several others whose vehicles were struck by the vehicle being chased, after that vehicle entered an intersection on a red light, even though the juvenile driver was able to stop before the intersection); Hofer, 614 N.W.2d at 738 (ruling that the combined acts of a negligent driver entering an intersection on a red light and a pedestrian running in front of a bus while a “Don't walk” signal was displayed, followed a natural sequence that resulted in the pedestrian's death, which “was a foreseeable consequence of each act of negligence” that did not excuse the driver's negligence); see also State v. Munnell, 344 N.W.2d 883, 887 (Minn.App.1984) (ruling that contributory negligence of victim was not a defense to a charge of criminal vehicular operation in an accident involving a victim who was lying drunk on a county highway when struck by a vehicle that had crossed the center line); Ramirez v. Miska, 304 Minn. 4, 7, 228 N.W.2d 871, 873 (1975) (stating that if two parties are negligent in causing a collision, this “does not compel a finding that the negligence of each is a proximate cause”)."
It also held that, when the intertwined negligent conduct of two motor vehicle drivers results in charges of criminal vehicular homicide being brought against one driver, the district court's jury instruction must define causation to inform the jury that a guilty verdict requires that the defendant driver's conduct must have played a substantial part in bringing about the death or injury of the victim driver. The appeals court wrote:
"With regard to the criminal vehicular homicide charges, the district court instructed the jury that an element of each charged offense was that “the defendant caused the death of Christopher Wade Carlson.” Appellant's attorney had proposed to further define “causation” by including the following statement: “A ‘direct cause’ is a cause that had a substantial part in bringing about the accident.” Appellant's attorney argued that a more complete definition or explanation of negligence was necessary in this case. We agree."
"The causation instruction given by the court was accurate, but it did not assist the jury in deciding whether appellant was criminally culpable for causing the accident. The jury necessarily had to decide the conduct of appellant and Carlson in relation to each other in order to determine whether appellant would be held criminally responsible for the death. As noted earlier, seconds before impact, appellant's vehicle approached Carlson's ATV from the rear at a high rate of speed, but Carlson's ATV also veered from its path and into appellant's path moments before impact. On these facts, the jury needed to be instructed on the parties' fault as it related to whose conduct played a substantial factor in causing the accident. Because the caselaw defines causation in criminal vehicular homicide or operation cases as “something that played a substantial part in bringing about the death or injury,” Jaworsky, 505 N.W.2d at 643, appellant was entitled to have this definition included in the jury instructions. Further, given the evidence on the victim's conduct of veering off the highway and into the path of appellant's vehicle just 50 feet before the collision, the victim's negligence could have been an intervening, superseding cause that necessitated a jury instruction on that aspect of causation. Without being properly instructed here, the causation instruction that the jury received did not fairly or adequately present the issue of causation to the jury. See Koppi, 798 N.W.2d at 364."
Based upon the above, the appellate court reversed the conviction and remanded for a trial consistent with its ruling.
EDITOR's Note: Other states do not use the 'substantial factor' phrase in their definitions of proximate cause, and such a phrase may have affected the appellate court's decision about 'intertwining causes'.
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Tuesday, August 23, 2011
DWI Law - Minnesota hands Out Consecutive Sentences In Refusal and DAC Case
In Minnesota v. Parker, Not Reported in N.W.2d, 2011 WL 3654394 (Minn.App.), the defendant was sentenced to consecutive sentences for Driving After Cancellation and Test Refusal. On appeal, the defendant claimed that consecutive sentencing was barred, because the two offenses occurred at virtually the same time, involving the same essential acts. In Minnesota, ordinarily a district court may not impose more than one sentence for multiple offenses committed during a single behavioral incident.
The test for determining if violations of two or more traffic statutes result from a single behavioral incident is whether they occur at substantially the same time and place and arise out of a continuous and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.
Many states have the same basic law prohibiting consecutive sentences (unless specifically authorized) for the same basic acts in their sentencing statutes. Minnesota found that the two acts did not prevent multiple sentencing:
Thus, the court found that multiple sentences were not unauthorized. However, due to errors at to other sentencing issues (i.e. the score for defendant's criminal history, and an error in which sentence is first served) the case was remanded for further resentencing.
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“[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.”
The test for determining if violations of two or more traffic statutes result from a single behavioral incident is whether they occur at substantially the same time and place and arise out of a continuous and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.
Many states have the same basic law prohibiting consecutive sentences (unless specifically authorized) for the same basic acts in their sentencing statutes. Minnesota found that the two acts did not prevent multiple sentencing:
"In Reimer, we concluded that “driving with an expired driver's license is a continuing offense that recurs every time appellant drives.” Id. at 177 (affirming the district court's conclusion that prosecution for driving with an expired license and DWI did not violate prohibition on serial prosecutions). “Moreover, the offenses of DWI and driving with an expired license do not manifest an indivisible state of mind or coincident errors of judgment. Appellant's decision to drive with an expired license may be attributed to errors in judgment wholly independent of his decision to drink and drive.” Id. (quotation and citation omitted). We noted in Reimer that “Minnesota courts have reached similar results in a variety of factual situations involving one or more motor vehicle violations.” Id.; see also State v. Meland, 616 N.W.2d 757, 760 (Minn.App.2000) (holding that driving with expired tabs and DWI did not arise from a single behavioral incident); State v. Butcher, 563 N.W.2d 776, 784 (Minn.App.1997) (holding that illegally transporting a firearm and DAC did not arise from a single behavioral incident), review denied (Minn. Aug. 5, 1997); State v. Bishop, 545 N.W.2d 689, 692 (Minn.App.1996) (holding that DAC and aggravated DWI involved dissimilar errors in judgment and therefore involved two offenses). DAC is considered “continuous” in nature and therefore does not meet the test of requiring “an indivisible state of mind or coincident errors of judgment.” State v. Reiland, 274 Minn. 121, 124, 142 N.W.2d 635, 638 (1966). We therefore conclude that appellant's convictions of DAC and test refusal do not arise from a single behavioral incident—regardless of whether they occurred at substantially the same time and place.
Thus, the court found that multiple sentences were not unauthorized. However, due to errors at to other sentencing issues (i.e. the score for defendant's criminal history, and an error in which sentence is first served) the case was remanded for further resentencing.
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Monday, July 25, 2011
DWI Appeal - Minnesota Says No to Wheelchair DWI
Many thanks to Doug Hazelton for locating this gem. In State Of Minnesota v. Brown, --- N.W.2d ----, 2011 WL 2302319 (Minn.App.), a physically disabled individual operating a motorized wheelchair was convicted of his 3rd DWI. The case involved the following stipulated facts:
The appellate court found that a wheelchair used to assist a physically disabled person is simply a substitute device for walking, and as such did not constitute a vehicle, despite the definition to the contrary:
"It is plain that for purposes of traffic regulations contained in Chapter 169, Brown's scooter is a wheelchair and is not a motor vehicle, and Brown, who uses the scooter as a substitute for walking, is, while operating his scooter, a pedestrian. See Boschee v. Duevel, 530 N.W.2d 834, 839 (Minn.App.1995) ( “[T]he mere circumstance, that [a person] ... propels himself or herself along by means of a chair, or by some other mechanical device, does not clothe him or her, in a broad and general sense, with any other character than that of a pedestrian.”
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(1) Brown is physically disabled and uses a battery-operated three-wheel Legend Pride Mobility Scooter (scooter) as a means of mobility to “experience life and complete his day to day necessities”; (2) the scooter has a maximum speed of 5.75 miles per hour; (3) Brown drove his scooter on Grand Rapids city sidewalks to a car dealership; (4) the car dealership contacted the city police department regarding a possibly intoxicated individual in their automobile display lot; (5) the city police arrived and arrested Brown for DWI; (6) Brown consented to a breath test and tested .17 for alcohol concentration; (7) Brown has a 2001 DWI conviction; (8) a driver's license is not required to operate the scooter, vehicle insurance is not required for the scooter, and the scooter cannot be registered at the Department of Public Safety in order to obtain vehicle license plates; (9) Minn.Stat. § 169.212, subd. 2(c) (2008) provides thatMinnesota law defines a “Vehicle”, in relevant part, as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway.” However, Minnesota law also defines “motor vehicle,” in relevant part, as “every vehicle which is self-propelled,” excluding “an electric personal assistive mobility device.” Additionally, Minnesota law defines “pedestrian” as “any person afoot or in a wheelchair.” “Wheelchair” is defined as including “any manual or motorized wheelchair, scooter, tricycle, or similar device used by a disabled person as a substitute for walking.” In most states, one can be convicted of DUI?DWI on any vehicle, even if it is not a motor vehicle per se.
[a]n electric personal assistive mobility device may be operated on a roadway only:
(1) while making a direct crossing of a roadway in a marked or unmarked crosswalk;
(2) where no sidewalk is available;
(3) where a sidewalk is so obstructed as to prevent safe use;
(4) when so directed by a traffic control device or by a peace officer; or
(5) temporarily in order to gain access to a motor vehicle[;]
and (10) Grand Rapids does not have an ordinance prohibiting a person from public intoxicated in public or an ordinance prohibiting a person from consuming an alcoholic beverage in public.
The appellate court found that a wheelchair used to assist a physically disabled person is simply a substitute device for walking, and as such did not constitute a vehicle, despite the definition to the contrary:
"It is plain that for purposes of traffic regulations contained in Chapter 169, Brown's scooter is a wheelchair and is not a motor vehicle, and Brown, who uses the scooter as a substitute for walking, is, while operating his scooter, a pedestrian. See Boschee v. Duevel, 530 N.W.2d 834, 839 (Minn.App.1995) ( “[T]he mere circumstance, that [a person] ... propels himself or herself along by means of a chair, or by some other mechanical device, does not clothe him or her, in a broad and general sense, with any other character than that of a pedestrian.”
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Wednesday, June 08, 2011
DUI Appeal - Handcuffing Person Does Not Always Mean Arrest Says Minnesota
In Myhre v. Commissioner of Public Safety, --- N.W.2d ----, 2011 WL 2175838 (Minn.App.) the defendant appealed the revocation of his driving privileges, arguing that he was 'in custody' at the time he was interrogated and therefore his statements were obtained in violation of Miranda. On appeal, the facts revealed that the defendant was found inside the garage of a home by the owner, who did not know him. Apparently, the intoxicate man had stepped out of a neighbor's home to have a smoke and was confused upon re-entry. A small, diminutive female police officer, unsure about the facts upon arrival, handcuffed the individual for officer safety. he was then interrogated, where it was learned that he was a guest next door, had driven to the home after drinking, and had not driven after driving.
The appeals court found that the defendant was not "in custody" when he was handcuffed and interrogated. Rather than focusing on "whether a reasonable person, innocent of a crime, would believe they were no longer free to leave" as required by the SCOTUS decision in Mendenhall, the court focused instead on the officer's reasonableness:
Once the Minnesota Appeals court wrongfully applied the 4th amendment test of 'reasonableness' to the legal issue, rather than the 6th amendment test of 'custody', the result was inevitable and the refusal to suppress the defendant's non-Mirandized answers was affirmed.
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The appeals court found that the defendant was not "in custody" when he was handcuffed and interrogated. Rather than focusing on "whether a reasonable person, innocent of a crime, would believe they were no longer free to leave" as required by the SCOTUS decision in Mendenhall, the court focused instead on the officer's reasonableness:
"The district court found that Officer Carlson is “female and of smaller stature.” The district court also found the Officer Carlson was alone at the scene and that when she arrived the “parties were breathing heavily and Officer Carlson could tell that there had been an argument.” Based on these facts, we agree with the district court's determination that, under these circumstances, it was reasonable for Officer Carlson to handcuff appellant and remove him from the garage for officer safety reasons.
We also agree with the district court's determination that Officer Carlson's questions did not go beyond the scope of an initial investigation. After arriving at the scene, the officers quickly determined that appellant did not live at the residence and that he was not supposed to be there. Questions regarding where appellant was coming from and how he arrived at the residence were relevant to the initial investigation."
Once the Minnesota Appeals court wrongfully applied the 4th amendment test of 'reasonableness' to the legal issue, rather than the 6th amendment test of 'custody', the result was inevitable and the refusal to suppress the defendant's non-Mirandized answers was affirmed.
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Tuesday, May 17, 2011
DWI Appeal - Minnesota Stop for Cracked Windshield OK'd
In State of Minnesota v. Oliveros, --- N.W.2d ----, 2011 WL 1833057 (Minn.App.) the defendant argued that his stop was illegal because she was stopped for a windshield that was cracked but did not impair her vision. Such a windshield was not illegal. Officer Anselment stopped Oliveros's vehicle after observing that her windshield was cracked, believing it was in violation of Minn.Stat. § 169.71, subd. 1(1) (2008), which states that “[a] person shall not drive or operate any motor vehicle with a windshield cracked or discolored to an extent to limit or obstruct proper vision.” Oliveros contends that her windshield was cracked but that the crack did not obstruct her vision. She contends that because she was not cited for violating this statute and because Officer Anselment could not articulate at her omnibus hearing whether she had violated both elements of the statute, the stop of her vehicle was unlawful. The district court found that:
Thus, the appeals court concluded that this stop was valid. On the other hand, the dissent offered a vigorously opposing point of view:
EDITORS NOTE: If an officer mistakenly believes that standard auxiliary equipment violates state law (because he thought they were headlights instead of auxiliary lights) then a stop can be illegal. But if an officer mistakenly believes that pine tree freshener is illegal even if it does not obstruct a driver's view, then the stop is lawful. Seems difficult to rationally explain under that analysis, so both appear to be mistake of fact scenarios. It is also interesting that, in Minnesota, apparently a 'pretext stop' could be unlawful even if there was otherwise a valid basis for a stop, contrary to federal rulings...
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There was no testimony [at the omnibus hearing] on the specifics of the crack that Officer Anselment observed in the windshield except that it was noticeable while traveling behind [Oliveros's] vehicle. Officer Anselment did not describe the crack in the windshield because he could not remember where the crack was at the time of the contested hearing almost six months after the incident. In the Statement of Probable Cause attached to the complaint and the Application for Judicial Determination of Probable Cause to Detain An Adult, it was described as a “large crack in the windshield of the vehicle.”On appeal, the court differentiated the facts herein from a prior case where a stop for 3 headlamps on a motorcycle was found invalid when it turned out that the other 2 lamps, being auxiliary lamps, were not illegal:
"Oliveros argues vigorously that Office Anselment did not have a reasonable, articulable suspicion to stop her because, although he could see a cracked windshield, he could not tell from the outside if it actually impaired her vision. Oliveros cites George as support. State v. George, 557 N.W.2d 575 (Minn.1997). There, an investigatory stop was held to be unlawful because there was no violation of an equipment law, even though the officer thought that there was. Id. at 578–79. The officer suspected an equipment violation, but this suspicion was wrong. The officer testified that it was a violation to have three headlights on a motorcycle. George did not have three headlights on his motorcycle, he had one headlight and two permissible “auxiliary passing lamps.” Id. at 578. The headlight configuration would have been easily visible to the naked eye. The differences between George and the present case are multiple.
First, the Minnesota Supreme Court stated that George's headlight configuration “clearly conformed to Minnesota law.” Id. at 576. Appellant's cracked windshield does not clearly conform to any Minnesota law."
Second, in George, the supreme court took note of the trial court's finding that the stop was “no doubt ... a pretext stop in that the officer's intention was to seek a consensual search of [George's] motorcycle and belongings.”
Finally, the suspected headlight-configuration violation in George was a technical equipment violation. In forming articulable suspicion, police officers may draw on their experience and training. See generally State v. Harris, 590 N.W.2d 90, 99 (Minn.1999) (stating that police “may draw inferences and deductions that might elude an untrained person” (quotation omitted)); State v. Capers, 451 N.W.2d 367, 371 (Minn.App.1990) (noting that officer's experience weighs heavily in determining articulable suspicion), review denied (Minn. Apr. 25, 1990). But the consequence of this in George was that the police hunch had to be right. See George, 557 N.W.2d at 579 (holding that because state law clearly permitted the motorcycle lighting configuration, “[t]here was no objective basis in the law for the trooper to reasonably suspect” a violation).
George implies a police duty to know the law. See also State v. Anderson, 683 N.W.2d 818, 823–24 (Minn.2004) (holding that officer's “mistaken interpretation of a statute” cannot provide suspicion justifying a stop). It does not require police to conduct a factual investigation, which in this case would have been impossible, to confirm their suspicions before conducting a stop. The very purpose of an investigative stop is to allow for further investigation. See generally Wilkes v. Comm'r of Pub. Safety, 777 N.W.2d 239, 244–45 (Minn.App.2010) (noting police may conduct a stop to “make reasonable inquiries”).
Appellant's contention that both the cracked windshield and the impairment of the driver's vision had to be seen at the same time to justify the stop would gut the law, virtually ending enforcement of the prohibition against the dangerous combination of a cracked windshield and driver vision impairment."
Thus, the appeals court concluded that this stop was valid. On the other hand, the dissent offered a vigorously opposing point of view:
The stop here was based on the officer's incorrect belief that a cracked windshield alone was a violation of the law. The stop, the arrest, the charges, and the state's case-in-chief at the omnibus hearing were premised on the incorrect notion that a cracked windshield per se violates the law. Even on appeal, the state maintains that erroneous belief in its brief: “Unlike the officer in George, Officer Anselment had an objective legal basis for suspecting that appellant was in violation of a traffic law. After all, a cracked windshield is a violation of Minnesota law. Therefore, State v. George is distinguishable and not similar in facts. ” (Emphasis added.)
The majority here goes astray in three ways. First, in attempting to distinguish George, the majority contends that, in that case, the officer misapprehended the law and there was no statutory prohibition against three headlights. But here, according to the majority, there was a violation of the law. In that conclusion, the majority begs the question. It assumes that which has not been shown by the evidence, namely, that the crack was of such an extent that it limited or obstructed Oliveros's vision. Furthermore, Officer Anselment also misapprehended the law for, as he testified, his sole basis for the stop was his belief that a cracked windshield per se violates the law. Thus, this case is not distinguishable from George.
The majority's second error is its unwarranted reliance on the unpublished decision in State v. Wright, No. C4–94–898, 1995 WL 81382 (Minn.App. Feb. 28, 1995), review denied (Minn. Apr. 18, 1995). As an unpublished case, Wright has no authoritative or persuasive value here. Additionally, the facts in Wright are not sufficiently developed to show a reliable similarity to this case. The factual issue there appeared to be one of credibility relating to an alleged pretextual traffic stop. We have no credibility issues here. Oliveros agrees that Officer Anselment testified honestly and accurately about the stop. Oliveros does not contend that the stop was pretextual and, at least implicitly, concedes that Officer Anselment was at all times acting in good faith and with an honestly held belief that a cracked windshield violated the law.
Of particularly serious concern is the majority's apparent acceptance of the statement in Wright that it is proper for an officer to make “an investigatory stop to determine whether the crack obstructed proper vision had a particularized and objective basis.” Id. at *1. The proposition the majority appears to endorse is that, if a law-enforcement officer observes a cracked windshield but is not able to conclude that the crack violates the second condition of the statute, the officer may stop the vehicle and then develop an articulable, objective basis for the stop. At least as to cracked windshields, the majority would seem to condone a stop on some evidence (an observed crack) coupled with a hunch (that the crack might violate the law). But, as the majority notes, “an officer may, consistent with the Fourth Amendment, conduct a brief investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 675–76 (2000). The “reasonable, articulable suspicion” must precede the stop because without it the stop is not justified. A cracked windshield alone can never justify a brief, investigatory stop because it simply provides no basis for a belief that “criminal activity is afoot.”
Finally, the majority—as well as the state and the district court—appears to give credit to the officer's belief that “he could have cited Oliveros for a cracked windshield.” That is not a fact that deserves credit in assessing the validity of this stop because Officer Anselment was incorrect in his belief that he could issue a citation merely for a cracked windshield.
The state failed to show that Officer Anselment had a reasonable, articulable suspicion that Oliveros was in violation of the law when he stopped her car, and the district court clearly erred when it speculated that the essential second condition of the statute was satisfied, despite the lack of any evidence whatsoever addressing that condition. The majority now perpetuates the district court's error, and I would reverse.
EDITORS NOTE: If an officer mistakenly believes that standard auxiliary equipment violates state law (because he thought they were headlights instead of auxiliary lights) then a stop can be illegal. But if an officer mistakenly believes that pine tree freshener is illegal even if it does not obstruct a driver's view, then the stop is lawful. Seems difficult to rationally explain under that analysis, so both appear to be mistake of fact scenarios. It is also interesting that, in Minnesota, apparently a 'pretext stop' could be unlawful even if there was otherwise a valid basis for a stop, contrary to federal rulings...
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Thursday, April 28, 2011
DWI Appeal - Minnesota Refusal Reversed From Underinsured Cops
This case is brought to DAD through the watchful eyes of NCDD Member Doug Hazelton. In State of Minnesota v. Hester--- N.W.2d ----, 2011 WL 1563683 (Minn.) the defendant was convcited of criminal test refusal. A person can commit criminal test refusal in violation of Minn.Stat. § 169A.20, subd. 2 (2010), only if he or she refuses a request to take a chemical test of the person's blood, breath, or urine that is made by a “peace officer,” as defined in Minn.Stat. § 169A.03, subd. 18 (2010). On appeal, the Minnesota Supreme Court held that because the Lower Sioux did not comply with Minn.Stat. § 626.91, subd. 2(a)(2), by failing to carry the required liability insurance limits at the time of appellant's arrest, the Lower Sioux police officer did not have the authority to request that appellant take a chemical test.
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Sunday, March 27, 2011
DUI Appeal - Minnesota DWI Evidence Insufficient - Conviction Reversed
In State of Minnesota v. Riesgraf, Not Reported in N.W.2d, 2011 WL 891118 (Minn.App.), the defendant was convicted of DWI based upon the evidence that appellant drove his vehicle to the Walmart store located in Dilworth, that appellant admitted that he drank a one-ounce bottle of rum, that appellant exhibited indicia of intoxication when he was questioned by police at his vehicle in the Walmart parking lot and subsequently failed field sobriety tests, and that approximately 1-1/2 hours post-arrest he had a blood alcohol level of .20.
The appeals court held that the evidence was insufficient as a matter of law and reversed the conviction outright:
As finally stated by the court: "Given that each element of an offense must be proven beyond a reasonable doubt, we agree that respondent failed to meet its burden of proof in this case."
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The appeals court held that the evidence was insufficient as a matter of law and reversed the conviction outright:
The evidence offered by respondent did not include a temporal link between appellant's driving and his being under the influence of alcohol, and the circumstantial evidence of appellant's inebriation was not inconsistent with any rational hypothesis other than guilt. The jury heard no evidence to establish at what time appellant drove to the Walmart store, how long he was in the store, or whether he consumed alcohol after driving to Walmart. Further, the vehicle's keys were not in appellant's possession when he was approached by police. Given that each element of an offense must be proven beyond a reasonable doubt, we agree that respondent failed to meet its burden of proof in this case.The State also tried to argue that the breath alcohol concentration created circumstantial evidence in support of the guilty finding. The court retorted: appellant was not apprehended while driving his vehicle, and the evidence of the amount of alcohol consumed by appellant bears no relation in time to his driving conduct, other than that the alcohol was consumed on the same day that appellant drove his vehicle.
As finally stated by the court: "Given that each element of an offense must be proven beyond a reasonable doubt, we agree that respondent failed to meet its burden of proof in this case."
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Thursday, July 01, 2010
Intoxilyzer breath test results under fire in Minnesota
Once again, arguably faulty breath test machines continue to be used despite clear evidence that they may produce inaccurate and misleading results. If people's liberty wasn't at stake, perhaps this egregious conduct could be overlooked. However, where people arguably innocent of a crime are being wrongfully convicted and, in some cases, sent to jail, ignoring the glaring problem with the Intoxilyzer's used in Minnesota simply isn't an option. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!In an e-mail dated Sept. 27, 2006, a Minnesota Bureau of Criminal Apprehension toxicologist alerted CMI that the Intoxilyzer "on occasion" printed out blood-alcohol readings different from what it displayed on its screen.
He also noted that the amount of air required for a breath sample varies depending on the version of software running the machine.
The minimal amount of air necessary to provide a breath sample is 1.1 liters of air blown at .17 liters per second. But if a driver blows too hard, the minimum sample required increases to 4.1 liters, according to the toxicologist's e-mail.
"The minimum value quadrupled," Sheridan said. "And by doing that, it would exclude about 80 percent of women. ... The shorter and older you are, you're virtually guaranteed you'd be unable to provide a sample."
The misfires are recorded as test refusals, and that can have disastrous legal consequences. Punishments for test refusals are in some cases more severe than the penalties for drunken driving.
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