Constitutional Challenge to Criminal DUI Test Refusal Fails on Both Due Process and Fourth Amendment Grounds.

Minnesota v. Netland, Minn.S.Ct. (February 12, 2009).  A jury convicted Ms. Netland of second degree criminal test refusal.  Ms. Netland argued that the manner in which the breathalyzer was administered to her violated due process; and that the criminal test refusal statute violated her right to be free from unreasonable searches and seizures. 

Police arrested Ms. Netland on suspicion of driving under the influence.  At the police station, an officer read her the implied consent advisory, which Ms. Netland acknowledged she understood; and permitted her to consult with counsel.  Counsel advised her to take the test; Ms. Netland asked the officer for a blood test.  The officer said, sorry, I'm only giving breath tests today.  She said, okay. 

Now, here the facts, I think, get a bit murky.  At first it seemed from the Opinion that poor Ms. Netland took the test nineteen times, but that's incorrect.  What she apparently did was to blow into the machine a great many times during the administration of the test.  The Intoxilyzer "times out" after four minutes.  During this first test, Ms. Netland apparently blew and blew into the damned machine nineteen (19) times; not once did the machine acknowledge her effort as sufficient.  (There is also a complaint that the officer didn't allow the machine to run its full, four minute course.)  The officer warned her early on in her breath efforts that she was on her way to a refusal, which is what happened.  (Indeed, the officer thought that Ms. Netland was trying to game the machine.)  At the end of the first test, distressed but undaunted, Ms. Netland asked to take the test again.  Exasperated and suspicious, the officer refused, and scored her as a refusal.  The officer did honor her request for an independent test, peeing in this instance.  This produced a reading of 0.036.  (The jury acquitted her of driving under the influence.)

The Court of Appeals had concluded that Ms. Netland's due process rights had been violated because she had not been given "a meaningful opportunity to obey the law" when the officer declined her request to take the breath test again.  The Supreme Court rejects such a due process standard out of hand.  Instead, the Court looks at the "unfairness"/due process claims that Ms. Netland made.

First, she said that the officer stopped the breath test before the machine had timed out, and then would not allow her to take a second test.  Second, she said that this testing behavior shocked (or, should, at any rate) the conscience of the court.  Justice Gildea, writing for only four members of the court, rejects both of these arguments. 

The Court also holds that the single exigency of the rapidly dissipating blood alcohol evidence authorizes the taking of a blood alcohol test without a warrant.  Justices Paul Anderson and Page dissent.  Justice Meyer had expressed similar views but in a felony vehicular operation Opinion, State v. Shriner, 751 N.W.2d 538 (Minn. 2008), but she did not join Justice Anderson's dissent.

Justice Meyer would not have reached the due process issue.  Rather, she would have upheld the Court of Appeals but on statutory grounds.  In her view of the statute, Ms. Netland's behavior did not violate the criminal refusal statute.  Justices Page and Paul Anderson joined this dissent.

Still No Access to Intoxilyzer Source Code

Abbott v. Commissioner of Public Safety, Minn.Ct.App., (February 17, 2009).  This is more Intoxilyzer 5000 source code discovery litigation.  The Commissioner revoked Ms. Abbott's license because she had been driving with a 0.09 alcohol concentration; she filed an implied consent.  In that proceeding she requested the source code.  In support of that request, she filed affidavits and memoranda, which the appellate court rather derisively characterized as mostly "various books and articles and [gasp] cases from other jurisdictions."

The implied consent statute says that the hearing is to be conducted according to the rules of civil procedure, except that pre-hearing discovery is "mandatory" but limited to four enumerated items.  The source code isn't one of those enumerated items.  Any other discovery requires an order of the court.  M.S. 169A.53.  Under the rules of civil procedure, a court may order discovery that is relevant "to the subject matter involved in the action," provided that the requester can show "good cause."   Minn.R.Civ.P. 26.02(a). 

The appellate court bats the statute and the civil rules around for a few paragraphs.  It then concludes that because Ms. Abbott is requesting non-mandated discovery - the source code - she must show either that the discovery is relevant; or, if not relevant, then she must show that there is good cause for its production.  Ms. Abbott failed in this instance to establish that the source code was relevant; and, she failed in this instance to establish good cause.

Meanwhile, the Commissioner's federal litigation to get his hands on the source code continues.

An Administrative License Revocation That Is Pending at the Time of a Subsequent DUI Arrest But Later Withdrawn is Properly Considered as an Aggravated Factor (Whew!)

Heino v. One 2003 Cadillac, Minn.Ct.App. (February 17, 2009).  Police arrested  Charlotte Heino on March 7, 2007 for fourth degree DUI.  The police gave her a seven day notice of license revocation. Ms. Heino filed an implied consent petition, a hearing on which the trial court scheduled for May 1, 2007.  On April 9, 2007, however, Ms. Heino waived the sixty day hearing requirement so the hearing got re-set to August, 2007.

On May 9, 2007, police again arrested Ms. Heino for DUI, this time charging her with second degree; the aggravating factors were her blood alcohol level (0.26) and the March 7, 2007 license revocation.  Police again gave her a seven day notice of license revocation; they also gave her a forfeiture notice for the Caddy, based upon the March 7, 2007 license revocation that was, at the time, pending judicial review.  Ms. Heino judicially challenged both the second license revocation and the forfeiture.

Eventually, Ms. Heino plead guilty to both the fourth and (amended) third degree DUI charges; it looks like she withdrew both of the implied consent challenges as part of the plea deal.  She went to trial on the forfeiture.  The trial court denied forfeiture, concluding that due process required that the administrative license revocation had to be final before it could be the basis of the forfeiture.  In this instance, this administrative action was not yet final at the time of the second DUI arrest because judicial review was still pending.  The Court of Appeals reversed.

The legal fight here appears to be whether to apply State v. Wiltgen, 737 N.W.2d 561 (Minn. 2007).  There, the state had also tried to use a prior administrative license revocation as an aggravating factor in a forfeiture, even though that administrative determination was still pending judicial review at the time of arrest and forfeiture notice.  Mr. Wiltgen won, however, because it had not been his fault that the judicial review had not been concluded; rather, it had been the result of a standing order from the trial court that delayed everyone's implied consent hearings until conclusion of the underlying criminal prosecution. 

The appellate court disagreed with the trial court's conclusion that for Ms. Heino mere availability of judicial review prevented the license revocation from serving as an aggravating factor.  While this was true at the time of the second arrest, it was no longer true when the forfeiture trial commenced.  The Court of Appeals felt that Ms. Heino had been a bit too cute by half:

Under the district court’s analysis, a person accused of drunk driving may file a PJR, [implied consent],  waive the 60-day requirement, and then prevent that revocation from ever being used against him or her by withdrawing the PJR prior to the forfeiture trial but after the 60-day window has expired. This would lead to an absurd result that is contrary to the statutory framework.

The appellate court also thought that Ms. Heino's property interest in the Caddy was a bit less deserving of respect than Mr. Wiltgen's liberty interest, one of the three interests to be balanced under Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976).  (If the aggravator sticks, Mr. Wiltgen goes to jail for a longer term than without it; Ms. Heino loses her nice wheels.)  Ms. Heino's voluntary withdrawal of the implied consent hearings also rather strongly suggested that the second Mathews factor - chance of erroneous decision - was "not substantial.

Say It Ain't So, Just Don't Say It Ain't True.

  State v. Leutschaft, Minn.Ct.App., 1/13/2009, Petition for Review pending.  Mr. Leutschaft was out in Anoka County in his pickup truck, tooling down Highway 65, tailgating a woman driving a minivan.  After a while - too long, apparently for Mr. Leutschaft - the minivan moved into a different lane.  As Mr. Leutschaft passed the minivan he pointed a handgun at the woman driving the minivan, then sped away.  The minivan driver phoned the cops, who stopped Mr. Leutschaft, then arrested him on suspicion of second degree assault.  At trial, Mr. Leutschaft admitted to the bullying driving behavior but contended that he only pointed his finger at the minivan driver, a gesture meant to convey that she should move over for oncoming (him) traffic more quickly.

The jury convicted Mr. Leutschaft of second degree assault.  He complained on appeal of prosecutorial misconduct.  The state took umbrage with the terminology, saying that "misconduct" implies ethical violations.  The state would prefer to denominate the "misconduct" as "prosecutorial error."  Judge Shumaker acknowledges the nomenclature if not the point.  Even "prosecutorial error" can deprive a defendant of a fair trial.

The appropriate niceties settled the court turns to the law of "prosecutorial misconduct."  There was no trial objection to any  of the alleged misconduct; "plain error" - its own nicety - rules apply.

First up, the prosecutor impeached Mr. Leutschaft by suggesting that he tailored his testimony to that of the minivan driver.  For instance:  the minivan driver did not tell the scene officers that during the driving events either that she was wearing sunglasses or on her cell phone; at trial she said that she was neither wearing sunglasses nor on her cell phone.  Mr. Leutschaft, in an attempted "gottcha!" moment, testified that she was wearing sunglasses and was have trouble with her cell phone.  This leads to these questions on cross examination:

Q. You got to listen to the testimony here of [Minivan Driver], right?

A. Yes, I did.

Q. She didn’t get to listen to yours, right?

A. I don’t know that.

The court says that this comes "dangerously close" to violating the no tailoring rule, which says that “the prosecution cannot use a defendant’s exercise of his right of confrontation to impeach the credibility of his testimony, at least in the absence of evidence that the defendant has tailored his testimony to fit the state’s case.”  .” State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006).   It was not, however, "plain error."

Next up:  "were they lying" questions.  On direct, defense counsel asked Mr. Leutschaft whether he pointed a gun at the minivan driver; he responded, "That is absolutely untrue."  Disturbingly, the the court says that this answer "opens the door" to the "were they lying" questions.  (So, in an exercise, the purpose of which we are all told is a "search for the truth" be sure that your client never utters the word, true, or any of its variants.)

To be fair, Judge Shumaker does launch into an extensive review of the jurisprudence of "were they lying" questions.  He points out that a majority of jurisdictions that have considered the issue had ruled that such questions are "categorically improper."  The main rationale for this determination is that neither the questions nor the answers have any probative value. 

The minority jurisdictions, including Minnesota, eschew a "bright line" rule in favor of a case by case analysis.  The rule that emerges from Minnesota cases is that such questions are permissible when the defense makes the issue of the credibility of the state's witnesses "in central focus."  The problems with this rule are obvious:

Since credibility is a ubiquitous issue in trials, except those without factual dispute that raise purely legal questions, it is difficult to imagine a situation when credibility in some sense is not held in central focus. More problematic is the fact that credibility is a broader concept than truthfulness versus lying. It also encompasses honest inaccuracy stemming from deficiencies in the ability or the opportunity to acquire personal knowledge of the facts; honest but faulty recall; and honest but inadequate narrative on the witness stand, which may have numerous linguistic, cultural, and cognitive influences.

The court opines that such "were they lying" questions should only be allowed "when the defense expressly or by unmistakable insinuation accuses a witness of a falsehood."  In this instance, Mr. Leutschaft's use of the word, "untrue" arguably opened the door to the prosecutor's questions.

Next.  Mr. Leutschaft portrayed himself on direct as conscientious about gun safety.  In response, the prosecutor asked questions about such high regard for gun safety, and also about a dismissed charge of carrying a gun without a permit.   The court thought that this later set of questions was off the mark; the absence of a gun permit made it neither less nor more likely that he would handle a gun safely by not pointing it at the minivan driver.  Again, though, it was error, but not plain error.

Mr. Leutschaft also complained about the prosecutor's closing argument, one part of which was a public policy argument about road rage.  The Court concluded that it was okay to use this characterization in discussing whether Mr. Leutschaft pointed a gun at the minivan driver; it crossed the line, however, to allude to more egregious acts that might culminate in an actual shooting.   Again, error, but not plain error.  Same with closing argument about the absence of a gun permit:  error but not plain error.

So, the truth may or may not set you free, but you'd best steer clear of the word.  True enough.

Is There a New Appellate Standard of Review of Convictions Based on Circumstantial Evidence?

State v. Tscheu, Minn.S.Ct., 12/31/2008.  There's a Crawford issue buried in this Opinion, reviewed on "plain error" analysis because there was no defense objection; errors, such as they were, were not "plain."  The bulk of the Opinion, however, is a debate whether the Court has changed the appellate review standard for convictions based upon circumstantial evidence.  Finally, there's a reminder to be sure to request prosecution disclosure of prior convictions in the standard Rule 9 disclosure request.

On Saturday afternoon, February 26, 2005, Bonita Thoms' stepson, J.B. came out to Thoms' house to fetch a camper that he stored on her property.  J.B. found Thoms' dog, which normally slept indoors, outside with ice crystals on its face; J.B. also saw water running on the ground outside the house.  Inside, J.B. discovered Thoms dead in the bathtub, with the shower running.  There was no sign of a forced entry.

A witness saw Thoms in her car approximately five miles from her home between 3:30 and 4:35 p.m. the previous day.  Dr. Amatuzio, who performed the autopsy, placed the time of death between 3:18 and 9:19 p.m. on Friday, February 25.  Dr. Amatuzio described various bruising on the body which lead her to conclude that Thoms had been restrained in the bathtub, causing her to drown.  The defense presented expert testimony that although Thoms died from drowning she could have died suddenly from an enlarged heart.

Mr. Tscheu worked that Friday, after which he bought some automobile parts from a Fleet Farm, then spent the evening changing the engine in his van.  He first told police that he had not seen Thoms since August 2004; he later admitted that he and Thoms were having an affair, that he had been to her house on that Friday, February 25, at which time they had consensual sex.  He then came home where he did, indeed, work on his van.  Mr. Tscheu suggested three other persons as the killer: one was in California at the time, one was in prison at the time.  Thoms apparently owed money to the third person, M.H.; a defense witness placed a similarly looking sedan as M.H. was driving at Thoms' house on that Friday evening.

Forensics found semen inside Thoms' rectum; the DNA profile of this semen matched the profile of Mr. Tscheu.  Forensics also found semen inside Thoms' perineum.  The DNA analyst testified that 99.95% of the general population could be excluded as a contributor of this semen.   Finally, forensics found a partial male DNA profile from Thoms' fingernail clippings.  At best, no more than 7.4% of the population could be a contributor; however, Mr. Tscheu could not be excluded as a contributor.

A jury convicted Mr. Tscheu of first degree murder.  On appeal he argued that the evidence was insufficient to support that conviction.  In a circumstantial evidence case, the majority holds that it is sufficient to sustain a conviction when:

all the circumstances proved [are] consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of his guilt.” State v. Johnson, 173 Minn. 543, 545, 217 N.W. 683, 684 (1928) (emphasis added).

To prevail, the defense must be able to point to evidence in the record that is consistent with a rational theory other than guilt.  Inferences that a jury draws from the evidence are to be given what the concurrence describes as " nearly complete deference."  The concurrence argues that the majority has de facto adopted the approach of the Eighth Circuit, which gives the government the benefit of all inferences that reasonably could be drawn from the evidence, thus abandoning the previous state approach of undertaking an independent evaluation of those inferences.

Mr. Tscheu also argued that the state failed to give proper notice of its intent to impeach him with his prior convictions.  Unfortunately, the Rule 9.01 boilerplate did not include a request for disclosure of prior convictions.  Moreover, the state did disclose the prior convictions in its Spreigl notice.  Mr. Tscheu also complained about the timing of a hearing to determine the admissibility of prior convictions should he testify, which did not take place until after he testified on direct.  It's not clear, however, that trial counsel requested the hearing any sooner than that; when the court ruled that the priors were admissible it then permitted the defense to reopen its direct examination in order to be the bearer of the bad news to the jury.

Finally, Mr. Tscheu argued that the trial court erroneously admitted two out of court statements, to neither of which did the defense object at trial.  So, the Supreme Court applied the "plain error" analysis in its review.  The first statement had to do with what a snow plow driver told a BCA agent; the agent's recount of this statement was "testimonial"  and not within any hearsay exception of the evidence rules, and thus not admissible.  The admission of the recount, however, did not affect the outcome of the case.  Under "plain error" this argument fails.  The second statement had to do with a deputy's findings about records of a motor vehicle transfer and of a conversation the deputy had with the previous owner of the vehicle.  The vehicle transfer records were not testimonial;  the conversation with the previous owner was.  Again, though, it did not satisfy the "plain error" requirement of affecting the outcome of the trial. 

Barenaked License Plates: It's the Law

State v. White, Minn.Ct.App., 1/27/2009.  A Bloomington police officer stopped Mr. White's car because he saw a glare from the license plate because it had a clear cover over it.  Somehow - it's not explained in the Opinion - this leads to finding a gun in the car.  Mr. White did not have a permit for the gun so the officer arrested him. 

Mr. White argued that the officer had been unduly parsimonious in the reading of the applicable defective equipment statute, Minn.Stat. 169.79, Subd. 7:

It is unlawful to cover any assigned letters and numbers or the name of the state of origin of a license plate with any material whatever, including any clear or colorless material that affects the plate’s visibility or reflectivity.

Amazingly, two of the three judges on the panel thought that this statute was ambiguous.  It just might, they thought, permit plate coverings so long as those coverings didn't affect visibility or reflectivity.  So, they - or their clerks - went over to the History Center and rooted around in the boxes of cassette tapes to find the legislative hearings on this statute.  Notably proud of this accomplishment, the Opinion quotes from these hearings extensively.  Their conclusion is that the phrase beginning, "including ..." is illustrative only.

So, get out the wash bucket and remove all that road grime from your plates.

A Valid Order for Protection Defeats Challenge to Entry Without Warrant

State v. Stephenson, Minn.Ct.App., 2/3/2009.  Mr. Stephenson's wife obtained an order for protection, which specifically prohibited him from being at his wife's residence.  Strangely enough, that's where the police went looking for him when he missed court.  He was there; the officer could see him relaxing in front of the television when he looked in the window.  Mrs. Stephenson admitted the officer, who then found Mr. Stephenson hiding in the bathroom; the officer promptly arrested Mr. Stephenson on the bench warrant, as well as violation of the order for protection.

Pretrial, Mr. Stephenson challenged the entry into the residence without a warrant.  The trial court said that Mr. Stephenson had no reasonable expectation of privacy since he wasn't supposed to be there in the first place.  The Court of Appeals agrees.  That he was the home owner did not create such an expectation, at least not when he's found hiding in the bathroom.  In addition, even if he did have such an expectation, it is not a reasonable one.  The court looks to other jurisdictions that have held that an expectation of privacy in a place from which the law has prohibited him is not reasonable.  Washington v. St. Albans Police Dep’t, 30 F. Supp. 2d 455, 457 (D. Vt. 1998). 

Asking for a "Different" Blood Alcohol Test Is Not Asking for an "Additional" Test.

Schulz v. Commissioner of Public Safety, Minn.Ct.App., 2/10/2009.  An officer stopped Mr. Schulz, then arrested him for impaired driving.  At the station, the officer offered Mr. Schulz a urine test; Mr. Schulz wanted a blood test, instead.  Mr. Schulz urinated for the officer, but did not renew his request for a blood test.

The Commissioner subsequently revoked Mr. Schulz's license.  At the Implied Consent hearing, Mr. Schulz argued that his right to an independent test had been violated in two ways:  the officer didn't advise Mr. Schulz of his right to an additional test, and the officer didn't provide a phone by which Mr. Schulz could arrange that test.  The trial court disagreed, and the Court of Appeals affirms.

Here's what the statute says about testing:

The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state. The failure or inability to obtain an additional test or tests by a person does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.

[Emphasis in the original.]  Mr. Schulz made his desire for a blood test known, but that was before the urine test.  He needed to renew his desire (request) after submitting to what the officer wanted; otherwise it doesn't count.  Further, the office has no obligation to assist in any way the procurement of an alternative test, even when the requester has said all the magic words (and said them at the right time). 

A Deaf Driver Who Reads and Writes English is not Entitled to Interpreter During DWI Arrest

State v. Kail, MN.Ct.App., 2/3/2009.  Police stopped Mr. Kail's car on suspicion of weaving within it's own lane and following another car too closely.  Mr. Kail can neither hear no speak, although he could read and write English.  After approaching Mr. Kail's car, the officer suspected that Mr. Kail may be intoxicated.  Mr. Kail ultimately produced a breath test reading of 0.09.  All communications between the officer and Mr. Kail were in written notes.

On motion to suppress all evidence because the officer did not provide Mr. Kail with a sign language interpreter, Judge Michael Fetsch dismissed the charges.  The state appealed.  The Court of Appeals reverses the dismissal and remands back to the trial court.

The Court of Appeals concluded that Mr. Kail was not "disabled in communication" under Minn.Stat. 611.32.  In pertinent part, this statute provides that a person is so disabled:

(a) because of a hearing, speech, or other communication disorder, or (b) because of difficulty in speaking or comprehending the English language, [the person] cannot fully understand the proceedings or any charges made against the person, or the seizure of the person’s property, or is incapable of presenting or assisting in the presentation of a defense.

The Court reached this conclusion by extending dicta from an implied consent case, Warner v. Comm’r of Pub. Safety, 498 N.W.2d 285, 288 (Minn. App. 1993), review denied (Minn. May 28, 1993).  The officer in that case had communicated by use of writing, gestures and lip reading.  That apparently suffices.

To learn more about the obstacles that hearing impaired persons confront in the justice system, see:  Michele La Vigne & McCay Vernon, An Interpreter Isn’t Enough: Deafness, Language, and Due Process, 2003 Wis. L. Rev. 843 (2003).