State v. Burdick, Minn.Ct.App., 3/15/2011. How to play under Rule 26.01, subd. 4 keeps coming up, with the parties and the courts struggling to adhere to the rules. Subdivision 4 is supposed to be reserved for appellate review of dispositive pretrial rulings, and is a codification of State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). See here and here or the gory details.
Police arrested Ms. Burdick for driving while impaired; her blood alcohol level registered 0.19. Before trial, Ms. Burdick tried to raise a challenge to the blood alcohol test but the trial court said she had raised this too late under the rules. So, she agreed to submit the case for a decision under Rule 26.01, subd. 4. This rule sets out the procedure that must be followed in order to preserve pretrial issues for appellate review. Most importantly, the parties must acknowledge that the pretrial ruling is dispositive of the case or that in the evet that a defendant prevails on appeal a contested trial would not be necessary. Subd. 4 also limits appellate review to those dispositive pretrial rulings.
Well, the parties didn’t say any of those things. Even more problematic, what was actually being reviewed on appeal was the denial of a hearing on the suppression issue; an appellate court decision in Ms. Burdick’s favor only results in the resumption of litigation, including a trial. Not what the rule had in mind.
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