DWI Attorney Minneapolis, MN | Top DUI Defense

No right to counsel where police get a search warrant for a blood or urine test.

The Minnesota Supreme Court held in State v. Rosenbush (Minn. 2019) that where the police get a warrant for a blood test there is no limited right to counsel.  Additionally, although a defendant has a choice whether or not to allow a blood or urine test, a defendant has no right to counsel where the police have obtained a search warrant for a blood or urine test.  State v. Rosenbush, Minn. (2019).

There is a right to refuse a blood or urine test where the police get a warrant, but the police are not required to advise of the right to refuse.

The search warrant statute, Minnesota Statute §171.177, requires the police to inform a defendant that refusal to submit to a blood or urine test (presumably pursuant to a warrant) is a crime.  However, police need not inform defendants that they can refuse the test.  State v. Rosenbush, (Minn. 2019).    A person can refuse or blood or urine test, although it may be a crime to do so.

The limited right to counsel only exists in implied consent cases where the advisory is read; it does not exist in criminal cases.

In State v. Hunn, the Minnesota Supreme Court or Minnesota Court of Appeals held that the limited right to counsel only exists in implied consent cases where the Implied Consent Advisory is read, and does not apply in criminal cases.

Where police obtain a search warrant, the failure to advise a defendant that test refusal is a crime does not require suppression of test results.

In State v. Mike, (Minn. Ct. App), the Minnesota Court of Appeals held that where a search warrant is obtained for a test, the failure to advise a defendant that test refusal is a crime does not require suppression of the test results.  This was so held even though Minn. Stat. §169A.51, subd. 3 requires police officers to inform drivers that for blood and urine tests, test refusal is a crime.

Does a driver in a DWI case lose his right to counsel because the police obtain a search warrant?

A defendant challenged his convictions for first degree test refusal and driving after cancellation, arguing that his constitutional right to counsel was violated.  Additionally, he also argued that the evidence was insufficient to establish his guilt on an unadjudicated conviction of first degree driving while impaired.  The Minnesota Court of Appeals concluded that because the police obtained a warrant for defendant’s blood, he did not have a limited right to counsel.  Affirmed. State v. Howell, A19-0119, Chippewa County. DWI Lawyer Lynne Torgerson was not attorney of record in this case. Commentary:  it appears that this holding could not be more poorly reasoned.  An arrestee has a limited right to counsel in a DWI case.  An arrestee should not lose their right to counsel because the police get a search warrant.  Furthermore, eEven if the police obtain a search warrant, a person still has the right to refuse, with the consequent need to speak with counsel about this critical decision.  Woefully, the Minnesota Supreme Court has already upheld this decision.

Police must warn that refusal to test is a crime even after they obtain a search warrant to draw blood.

A patrol sergeant obtained a search warrant to draw and test defendant’s blood after she drove into and injured a child with her car and failed field sobriety tests.  Moreover, the blood test showed that defendant’s alcohol concentration exceeded the statutory limit, and the Commissioner of Public Safety revoked her driver’s license. Defendant petitioned for judicial review, arguing that her license could not be revoked because the sergeant had not given her the statutory warning that refusal to test is a crime.  In conclusion, the trial court upheld the revocation. The Minnesota Court of Appeals held that defendant’s driver’s license cannot be revoked based on a blood test of .08 of more, unless the officer directing the test gives the warning that refusal to test is a crime.  The Minnesota Court of Appeals also stated that where a search warrant for blood is obtained in a criminal vehicular operation case, a blood test may be forced even if a defendant refuses.  Reversed and remanded. Jensen v. Comm’r of Pub. Safety, A19-0243, Pipestone County. DWI Lawyer Lynne Torgerson was not attorney of record in this case.

Amendment of complaint at trial to charge different subsection of criminal vehicular operation.

Defendant challenged his convictions for criminal vehicular operation and fourth degree driving while impaired challenging the amendment of the complaint at trial to charge a different criminal vehicular operation offense, and the entering of convictions on both offenses. Noting that the amended complaint did not charge defendant with a new or different offense, but only charged defendant under a different subsection and eliminated the requirement that the defendant be under the influence of a controlled substance, the Minnesota Court of Appeal found no error. However, 4th degree DWI is a lesser included offense of the criminal vehicular operation offense.  Affirmed in part, reversed in part, and remanded. State v. Fry, A18-1837, Koochiching County. DWI Lawyer Lynne Torgerson was not attorney of record in this case.

Minnesota Court of Appeals concludes that DWI implied consent advisory violates due process in Minnesota DWI defense.

Defendant challenged the trial court’s order sustaining the revocation of his driver’s license under the implied consent law.  The trial court rejected defendant’s argument that the implied consent advisory misinformed him of the potential criminal penalty for refusing to submit to a blood test and violated due process. The trial court’s findings suggested that defendant submitted to the test because he understood that he would be charged with a crime if he refused, and that the advisory did not accurately inform defendant as to the legal consequences of test refusal.  The Minnesota Court of Appeals held that the revocation violated due process.  Reversed and remanded. Schhneider v. Comm’r of Pub. Safety, A19-0673, Isanti County.

Disclosure of urine test in DUI case did not violate Data Practices Act.

Defendant was convicted of misdemeanor driving while impaired and driving after cancellation in Nobles County, State of Minnesota.  Defendant argued that the trial court erred in denying his motion to suppress.  The Minnesota Court of Appeal concluded that because the results of defendant’s urine test was validly disclosed to the trial court by law enforcement for law enforcement purposes in the search warrant application, defendant’s claim of a violation of the Minnesota Government Data Practices Act was without merit.  Affirmed. State v. Cruz, A19-0344, Nobles County. DWI Lawyer Lynne Torgerson was not attorney of record in this case.

Earlier court minutes of defendant’s prior DWI conviction was admissible evidence.

Defendant was convicted of 1st degree felony DWI.  He appealed.  He argued his conviction must be reversed because (1) the evidence was insufficient to established 3 qualified prior impaired driving incidents within the preceding 10 years and (2) the trial court erred when it admitted hearsay evidence. The Minnesota Court of Appeals concluded that the certified copy of the 2012 court minutes of defendant’s prior DWI conviction was admissible competent and reliable evidence and same was sufficient to establish defendant committed a qualified prior impaired driving incident in 2012.  Affirmed. State v. Permann, A19-0296, Itasca County.

Whether a certified driving record was insufficient to prove the defendant received notice of a prior driver’s license revocation?

Defendant was convicted of felony 1st degree driving while intoxicated.  On appeal, defendant argued that the State failed to provide that she had three (3) prior qualified impaired driving incidents under Minn. Stat. §169A.24, subd. 1(1).  The Minnesota Court of Appeals held that the defendant’s certified driving record was insufficient to prove that defendant received notice of a prior license revocation, without which the State cannot demonstrate the required three (3) prior qualified impaired driving incidents.  Reversed and remanded. State v. Moore, A19-1055, Stearns County. DWI Lawyer Lynne Torgerson was not attorney of record in this case.

Whether the prior Wisconsin driver’s license revocation could be used for enhancement?

Defendant was charged with four (4) counts of 3rd degree gross misdemeanor DWI. These were enhanced because of a prior Wisconsin alcohol related driver’s license revocation. The trial court dismissed the gross misdemeanor charges on the grounds that the Wisconsin revocation could not be used for purposes of enhancement because the defendant was not represented by an attorney. The Minnesota Court of Appeals reversed the trial court holding that the prior Wisconsin DL revocation was a proper basis for enhancement, regardless of whether defendant was represented by counsel. State v. Jones, A20-0161, Hennepin County. Minneapolis Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case. Her legal services extend to various counties, including Washington County.

DWI/DUI conviction upheld because traffic stop was supported by reasonable suspicion.

Defendant was convicted of driving while impaired (DWI).  On appeal, defendant argued that the traffic stop was not supported by a reasonable, articulable suspicion of criminal activity.  The Minnesota Court of Appeals concluded that the trooper’s suspicion that defendant had violated a traffic statute by parking on the highway was reasonable.  Affirmed. State v. Huhnerkoch, A19-1981, Redwood County. DWI Lawyer Lynne Torgerson was not attorney of record in this case.

Failure to produce a signed search warrant invalidates search.

Defendant was stopped for DWI.  The police stated that they obtained a search warrant for a blood draw.  Defendant brought a motion to suppress the results of the test on the grounds that the State failed to produce a signed search warrant. Officers testified that they obtained a search warrant signed by a judge.  The trial court denied defendant’s motion.  Defendant appealed.  The Minnesota Court of Appeals reversed on the grounds that the officers’ testimony was not sufficient, and the State failed to produce a signed copy of the search warrant. State v. Skaudis, A19-1741, St. Louis County.

Giving a police officer a true partial name constitutes crime of false information to police officer.

Defendant was convicted of giving a fictitious name to a peace officer in violation of Minnesota Statute §609.506, subdivision 1.  The Minnesota Court of Appeals confirmed defendant’s conviction.  Defendant argued that because he gave police a name that was part of his full name, the evidence was insufficient to prove his gave a fictitious name. The Minnesota Supreme Court held that (1) a fictitious name for purposes of §609.506, subdivision 1 includes names that uses only parts of a full legal name; and (2) because the State proved that defendant gave police a partial name with intent to obstruct the police investigation, the State presented sufficient evidence to support defendant’s conviction. State v. Thompson, A19-0253, Minnesota Supreme Court. DWI Lawyer Lynne Torgerson was not attorney of record in this case.

Whether the forfeiture of defendant’s 1985 Ferrari worth approximately $75,000 should be reversed?

Defendant was convicted of 3rd degree DWI while he had a B card restriction.  Concurrently, his 1985 Ferrari worth approximately $75,000 was forfeited.  On appeal, defendant challenged the forfeiture on the grounds (1) that he was not convicted of a designated offense; and (2) the forfeiture of his Ferrari violated the 8th Amendment prohibition on excessive fines. The Minnesota Court of Appeals upheld the forfeiture.  Usually, a vehicle may be forfeited only if a person is convicted of 2nd degree DWI or greater.  However, the statute also provides for forfeiture if a defendant is convicted of any level DWI when the defendant also has a restriction on their driver’s license.  Hence, defendant was convicted of a designated offense. Additionally, the Minnesota Court of Appeals simply concluded that the $75,000 vehicle forfeiture was not grossly disproportionate. This case is a very good example of why forfeiture laws need to be struck down. Jensen v. 1985 Ferrari, A19-1927, Dakota County. Minnesota DWI Lawyer Lynne Torgerson was not attorney of record in this case.

Whether mailing notice of suspension to defendant’s last known address is sufficient notice?

Defendant was convicted of petty misdemeanor driving after suspension of his driver’s license.  On appeal, defendant argued that the evidence was not sufficient to support his conviction.  The Minnesota Court of Appeals concluded that evidence that the Minnesota Department of Public Safety mailed the notice of suspension to defendant’s last known address was sufficient to establish the notice element of the offense of driving after suspension. State v. Johnson, A20-0124, McLeod County. DWI Lawyer Lynne Torgerson was not attorney of record in this case.