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F.T. Sessoms Minnesota DWI Lawyer
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The Minnesota DWI Case Of The Week is Puro v. Commissioner of Public Safety (Decided July 5, 2016, Minnesota Court of Appeals, Unpublished) which contains a good discussion of "physical control".

In Puro, the Appellant went to a restaurant and began consuming alcohol. Around 4:00 p.m., the bartender asked Mr. Puro to leave because he was getting rowdy from having had too much to drink. Mr. Puro left the restaurant and made his way to his wife's Subaru which was parked in the restaurant's parking lot. Mr. Puro fell asleep in the car and was subsequently discovered by the police.

The officer approached the Subaru and tapped on the window to try to wake up Mr. Puro who was sitting in the driver's seat but the engine was not running. Mr. Puro appeared startled and subsequently opened the car door to speak to the officer. The keys to the vehicle were located on the floor beneath the feet of Mr. Puro.

Mr. Puro was arrested for DWI and he challenged the revocation of his driver's license arguing that the police did not have probable cause to believe he was "in physical control" of a motor vehicle. The district court concluded that the state proved by a preponderance of the evidence that Mr. Puro was in physical control and on appeal, the Minnesota Court of Appeals agreed, stating:

"Under Minnesota's implied-consent law, the state may revoke a person's license if he is in physical control of a vehicle in order to "deter intoxicated persons from getting into vehicles except as passengers and to act as a preventive measure to enable the drunken driver to be apprehended before he strikes." State v. Fleck, 111 N.W.2d 233, 236 (Minn. 2010) (quotation omitted). The term "in physical control" includes "when an intoxicated person is found in a parked vehicle under circumstances in which the vehicle, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property." Id. (alteration omitted) (quotation omitted). A person is in physical control of a vehicle if the person has the means to initiate any movement and is close to the operating controls of the vehicle."

"But a person is not in physical control when the person has 'relinquished control of the vehicle to a designated driver."'Id. And presence in the vehicle by itself is not enough to show physical control. Id. This court examines the overall situation to make the determination, which includes the examination of a number of factors "including: the person's location in proximity to the vehicle; the location of the keys; whether the person was a passenger in the vehicle; who owned the vehicle; and the vehicle's operability." Id. Whether a person intends to drive is not part of the analysis in determining if the person was in physical control."

"Here, the officer found Puro alone, intoxicated, and asleep or passed out in the legally parked and operable Subaru. Puro, like Fleck, was in the driver's seat. The keys, which were on the floor between his feet, were readily accessible to him. He could have picked up the keys, started the vehicle, and tried to drive home." Therefore, the district court was correct in finding that Mr. Puro was in physical control of a motor vehicle.

Moral Of The Story: If you have been drinking, do not get into a car except as a passenger!!

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

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The Minnesota DWI Case Of The Week is Walsh v. Commissioner of Public Safety (Decided May 23, 2016, Minnesota Court of Appeals, Unpublished) which stands, once again, for the proposition that the police do not need probable cause to conduct field sobriety tests and a PBT test. I disagree but I am not on the Court of Appeals.

In Walsh, on January 30, 2015, Deputy Ryan Googins heard over his police radio that someone had called in a driving complaint. The caller identified himself and reported that he had seen a female in a vehicle at a Kwik Trip consuming what looked like small, airline-sized bottles of alcohol. The caller stated that when he made eye contact with the driver, she became nervous and drove away. The caller noted the vehicle's license-plate number, provided it to the police, and stated that he last saw the vehicle traveling south on Highway 3 from the Kwik Trip.

Deputy Googins spotted the vehicle and saw it turn into the Dakota County Library parking lot and park in an available space. Deputy Googins pulled into the parking lot, activated his lights, and parked behind the vehicle. As Deputy Googins approached appellant Shannon Forstrom Walsh, she was eating crackers and exiting her vehicle. Deputy Googins noticed an overwhelming odor of alcohol coming from the vehicle. When Deputy Googins asked appellant about the odor, she replied that she had not been drinking and suggested that the smell was coming from the crackers. Deputy Googins also noticed that appellant's eyes were watery and bloodshot.

Deputy Googins asked appellant to step out of the vehicle and take a series of tests. Appellant performed the horizontal-gaze nystagmus, walk-and-turn, and one-leg-stand tests and exhibited indicia of intoxication on all three tests, though the indicia of intoxication were subtle on the one-leg-stand test. Deputy Googins administered a PBT and placed appellant under arrest for driving while impaired (DWI). Deputy Googins read appellant the implied-consent advisory. Appellant declined to consult with an attorney. Deputy Googins offered appellant a breath test, and appellant agreed to take it. The test indicated that appellant's alcohol concentration was 0.12.

The District Court upheld the revocation of the Appellant's driver's license and on appeal, she argued that the field sobriety tests and PBT are subject to the "probable cause" and warrant requirements of the Fourth Amendment. The Minnesota Court of Appeals, however, rejected this argument stating:

"Appellant's position is inconsistent with the applicable caselaw. An officer needs only reasonable, articulable suspicion of criminal activity to administer field sobriety tests and a PBT. State, Dep 't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981); State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (holding that administration of field sobriety testing based on officer's observations of odor of alcohol and Klamar's bloodshot and watery eyes was reasonable); State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (stating that an officer may request a PBT on the basis of specific and articulable facts), review denied (Mi\m. May 16, 1986). Appellant's reliance on Colorado and Oregon law is thus unpersuasive because it is contrary to binding Minnesota precedent."

Far be it for the Court of Appeals to change its mind. And while it can be argued that field sobriety tests merely require a person to demonstrate their physical characteristics, (such as their ability to balance) and no "search" is involved in such tests, the same cannot be said for a preliminary breath test. A PBT requires a person to blow a specified volume of air into a machine and the air is then analyzed for alcohol. The PBT test is a search just like the Data Master test performed at the police station. And to claim that the PBT test does not require probable cause is just plain wrong.

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Law enforcement officers arrested 2,502 people in Minnesota for DWI between Thanksgiving and New Year's day, according to a report in today's Star Tribune.  The sweep included the arrest of a 29 year-old woman who has managed to rack up seven dwi arrests within the past 10 years (Well done, indeed!).

According to the Tribune, approximately 300 agencies participated in the annual holiday crackdown with the Minnesota State Patrol in the two metro districts making the most arrests with 345.  In the metro area, St. Paul came in second with 74 DWI arrests, followed by Minneapolis with 59 and Bloomington with 39 arrests.

In greater Minnesota, Rochester led the way with 62 DWI arrests, followed by Mankato with 39 arrests and St. Cloud with 34.

More than 25,000 Minnesotans were arrested for DWI  in all of 2014.  So it will be interesting to see, once the total is compiled,  how the number of 2015 DWI arrests compares to the previous year.

If you or a loved one have been arrested for a Minnesota DWI, contact Minneapolis DWI Attorney F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

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The Minnesota DWI Case Of The Week is State v. Wurtz (Decided November 16, 2015, Minnesota Court of Appeals, Unpublished), which stands for the proposition that if you think you are in trouble, it is NEVER a good idea to talk to the police!

In Wurtz, the Defendant was hunting-while-under-the-influence-of alcohol (guns and booze. What could go wrong?) and as the Defendant was approaching his parked car, he encountered officer Beckman of Cottonwood County.  

Officer Beckmann was able to smell a moderate odor of an alcoholic beverage coming from Mr. Wurtz. Officer Beckmann asked the Defendant to submit to field-sobriety testing but the Defendant claimed previous injuries that he thought would prevent him from doing the field-sobriety testing. Officer Beckmann then asked appellant to submit to a PBT. Defendant agreed, and his PBT result was . 114.  Mr. Wurtz then admitted he had consumed six or seven beers.

On Appeal, the Defendant argued that the district court erred by concluding that he was not in custody for Miranda purposes at the time he admitted in response to questions that he had consumed six or seven beers while hunting.  

The Minnesota Court of Appeals rejected this contention, explaining:

"A statement produced by a custodial interrogation is inadmissible unless the suspect is first advised of certain constitutional rights, including the Fifth Amendment right against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); State v. Tibiatowski, 590 N.W.2d 305, 308 (Minn. 1999). A person is in custody for Miranda purposes when there has been a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Minnesota v. Murphy, 465 U.S. 420, 430, 104 S. Ct. 1136, 1144 (1984) (quotation omitted). We apply an objective standard to determine whether, "based on all the surrounding circumstances, a reasonable person under the circumstances would believe that he or she was in police custody of the degree associated with formal arrest." State v. Thompson, 788 N.W.2d 485, 491 (Minn. 2010) (quotation omitted). But general on-scene questions such as "Have you been drinking?" and "How much?" do not convert a detention into an arrest, and therefore, do not trigger the need for a Miranda warning."

In this case, the Defendant was standing in a parking lot when he made the incriminating statements to the officer.  The Defendant argued that Officer Beckman's failure to tell the Defendant he could leave, shows that he was in custody.  But the Court of Appeals disagreed, stating:

"But the custody determination does not turn on "merely whether a reasonable person would believe he or she was not free to leave." Scruggs, 822 N.W.2d at 637. Instead, "an interrogation is custodial if, based on all the surrounding circumstances, a reasonable person would believe he or she was in police custody to the degree associated with formal arrest.'"
 
Moral Of The Story:  If you are suspected of a crime, keep your mouth shut!!!

If you or a loved one has been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

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Cops Go Undercover To Catch Texting Drivers!

Drug dealers are not the only ones who need to worry about undercover police as the Minneapolis Star Tribune reports today the Minnesota State Patrol has placed five unmarked squad cars into service in the past week to watch for people texting while driving.

Distracted driving has become a major problem on Minnesota roads as "last year alone, inattentive driving was blamed for 61 deaths and more than 7000 injuries".  "Distracted driving - primarily texting and driving - is something the public is harping on us to do something about", said Col. Matt Langer of the State Patrol.

According to the Star Tribune, the Minnesota Department of Public Safety claims, "Nearly one in four crashes with a death or serious injury was attributed to distracted driving in the past four years."  The number of drivers ticketed for texting while driving has risen from 180 in 2008 to 3,467  so far in 2015.

While it is not illegal to dial the phone or answer a call, it is illegal to surf the web or read, send or compose texts or emails while behind the wheel - even it you are stopped at a stop light!  It will cost you $50 for a first offense texting citation.  But a subsequent offense will now cost $225 as the legislature raised the fine this year for repeat offenders.

The State Patrol vehicles being used in the crackdown are Ford Tauruses. So if someone pulls up alongside of you, be sure you are not glued to your phone!

If you or a loved one have been arrested for a Minnesota DWI offense, please call Minneapolis DWI Lawyer F. T. Sessoms at (612) 344-1505 today. I will be happy to answer all of your questions.

The Minnesota Star Tribune reports that from August 21st through September 7th of this year, law enforcement officials arrested 1513 individuals for DWI in Minnesota.  Five deaths in alcohol-related crashes also occurred during this same period of time.

The St. Paul police made the most arrests with 47, followed by Minneapolis with 42 arrests, Bloomington with 26 arrests, Rochester with 25 arrests, White Bear Lake with 23 arrests, St. Cloud with 22 arrests and Mankato with 20 arrests.

During this year's Labor Day weekend of September 4th through 7th, 462 people were arrested for drunk driving.

A similar campaign last year, over the same period of time, resulted in 1,340 DWI arrests.

If you or a loved one have been arrested for a Minnesota DWI offense, please call Minneapolis DWI Lawyer F. T. Sessoms at (612) 344-1505 today. I will be happy to answer all of your questions.

The Star Tribune reports that the number of Minnesotans convicted of Felony Domestic Assault has risen dramatically in the past 10 years.  The number of convictions has gone from 299 in 2003 to almost 1500 in 2013.  And 315 of the defendants convicted in 2013 went to prison compared to only 44 individuals in 2003.  The average term of those defendants sent to prison was two years.

One of the reasons for the increase in felony convictions has been the 2006 change to the domestic assault statute which expanded the list of prior-misdemeanor offenses that can be used to enhance a current charge to a felony assault.  In addition, the look-back period for prior misdemeanor assaults was increased to 10 years and a perpetrator’s current crime no longer had to have the same victim to qualify as an enhanceable offense.

Another reason for the increase in felony convictions over the past decade is that in 2005, the legislature made domestic assault by strangulation a felony without regard to the severity of any injury to the victim. Before that, the crime was charged as a misdemeanor unless there were severe injuries to the victim

In addition, in 2007 the Minnesota Legislature created a specific domestic abuse no-contact order (DANCO) which must be issued by a judge in every case where a defendant is charged with any level of domestic abuse.  A first time violation of a DANCO is a misdemeanor.   If the defendant has a prior domestic assault conviction, a violation of a DANCO constitutes a gross misdemeanor.   If the defendant has 2 or more domestic assault convictions, a violation of a DANCO is a felony carrying a maximum prison term of up to five years.

If you or a loved one have been charged with any level of a domestic assault crime, contact Minnesota Criminal Defense Attorney, F. T. Sessoms at (612) 344-1505.  I will answer all of your questions concerning the charges and will explain the defenses we will pursue to obtain your acquittal.

In my previous article, I discussed the 2015 statutory changes to the Minnesota Expungement Law and explained the eligibility requirements to get your criminal records sealed.  In this article, I will discuss the factors the court must consider once a petition for expungement has been filed.

Pursuant to Minnesota Statute § 609A.03, the Court shall consider the following to determine whether a petition for expungement should be granted:

(1) the nature and severity of the underlying crime, the record of which would be sealed;

(2) the risk, if any, the petitioner poses to individuals or society;

(3) the length of time since the crime occurred;

(4) the steps taken by the petitioner toward rehabilitation following the crime;

(5) aggravating or mitigating factors relating to the underlying crime, including the petitioner's level of participation and context and circumstances of the underlying crime;

(6) the reasons for the expungement, including the petitioner's attempts to obtain employment, housing, or other necessities;

(7) the petitioner's criminal record;

(8) the petitioner's record of employment and community involvement;

(9) the recommendations of interested law enforcement, prosecutorial, and corrections officials;

(10) the recommendations of victims or whether victims of the underlying crime were minors;

(11) the amount, if any, of restitution outstanding, past efforts made by the petitioner toward payment, and the measures in place to help ensure completion of restitution payment after expungement of the record if granted; and

(12) other factors deemed relevant by the court.

If the prosecutor agrees to the expungement and with the approval of the court, the expungement may be ordered without the need to file a petition.  In addition, the new law allows an expungement to be ordered even if restitution is still owed for the crime.

If the Petitioner requests it, in his or her petition, and the expungement is granted, each agency or jurisdiction is now required to send a letter to the Petitioner confirming the relevant record has been expunged.

If you or a loved one seek to have your criminal records expunged, please call Minneapolis Criminal Defense Lawyer F. T. Sessoms at (612) 344-1505 today!

On January 1, 2015, it will become much easier to expunge or "seal" criminal arrest or conviction records.  Previously, judges in most cases could only seal the court records pertaining to a crime as they had no inherent authority to expunge the records held by the various police departments or the Minnesota BCA.  Since the BCA is the primary source for employer and housing background checks, a person could prove to the court they were entitled to a second chance but the expungement of court records was of little value as the BCA would provide the full criminal history of the rehabilitated individual to anyone making a background request.

The new law eliminates the problem as it now allows the district courts to order the full expungement of all records held by both the courts and the executive branch.  If the case resulted in a conviction, the person seeking the expungement must prove to the district court that their need to have their record sealed outweighs any legitimate concern for the public safety. Under the new law, the following records may be expunged:

1.  If the individual pled guilty, but the sentence resulted in a stay of adjudication or in a diversion, expungement may be granted 1 year after the completion of the sentence;

2.  If the individual received a petty misdemeanor or a misdemeanor sentence, expungement may be granted 2 years after the completion of the sentence;

3.  If the individual received a gross misdemeanor conviction, expungement may be granted 4 years after the completion of the sentence;

4.  If the individual received a non-violent, low-level felony conviction, expungement may be granted 5 years after the completion of the sentence.

Domestic violence convictions are not eligible for expungement until July 1, 2015.  It is required for all of the above categories that the individual applying for expungement has remained crime-free since the completion of their sentence.

In addition, all records of juvenile delinquency may now be expunged and any case that was resolved in the individual's favor, by either dismissal or acquittal, is statutorily presumed to be eligible for expungement.

On November 26th, law enforcement officers started a "DWI Enforcement and Awareness Campaign".  The campaign was timed to start the Wednesday prior to Thanksgiving as the State Patrol claims it is one of the "biggest drunk driving days" of the year.

The campaign is a state-wide multi-agency effort and it will run every weekend through December 27, 2014. Nearly 400 law enforcement agencies are involved in the DWI campaign.

In 2013, there were 25,719 DWI arrests in Minnesota and 81 DWI deaths.  The campaign is aimed at reducing the DWI death rate for 2014.

In 1995, I was the attorney who convinced the Minnesota Supreme Court to declare the use of "drunk-driving roadblocks" (AKA "sobriety checkpoints") unconstitutional.  As a result, the law enforcement agencies involved in the current DWI campaign will be conducting "saturation patrols" where additional officers are on the look-out to stop motorists for any perceived offense, such as "weaving within the lane" or touching a fog line.

This leads to the interesting question as to whether these saturation patrols are constitutional.  In other words, the police are going to stop motorists at 2 am for conduct they would never consider stopping the motorist for at 2 pm.  So why should a person's right to be left alone under the 4th Amendment be dependent upon the time of day?  I do not believe that your constitutional rights are time-dependent and if you or a loved one have been arrested for a Minnesota DWI, please call Minneapolis DWI Lawyer F. T. Sessoms at (612) 344-1505 today!
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