Blog Watch: Judicial Training & Education Blog

 

We pride ourselves on bringing timely and knowledgeable information to our readers on a regular basis. Our readers include clients (both current, former, and potential), other defense attorneys, judges, and even prosecutors. We focus on DWI defense because that’s the area of law we love most, and where the most interesting legal issues (and defenses) arise.

But criminal law is a broader area that just DWI defense, and today we’re bringing up another blog worth checking out. Judge Alan Pendleton is a very well-respected judge out of the Tenth District, and one of the things that sets him apart from other judges is his very own Judicial Training and Education Blog. If you practice as a defense lawyer and have not seen this blog . . . you don’t know what you’ve been missing. Of particular note are Judge Pendleton’s numerous Judicial Training Updates, which provide both a cheat sheet and a roadmap to many procedures used by criminal defense attorneys on a regular basis. Here’s one example of the difficult-to-master procedure for entering a Lothenbach “plea.”   

Why are we talking about someone else’s blog? Well, The Expert Institute out of New York is putting together the “2015 Best Legal Blog Competition” and Judge Pendleton’s own blog was invited by the Institute to participate in the “Education” category. This would be a good time for anyone who likes the Judicial Training and Education Blog to head on over to the Blog Contest Page and nominate a very worthy resource.

Here’s what you need to do to nominate a blog:

1.    Go to https://www.theexpertinstitute.com/blog-contest/ and scroll to the bottom of the page

2.    Enter your name and email address

3.    Enter the blog address (www.PendletonUpdates.com).

4.    Select the blog category as “Education”

5.    You can (and should) enter a short statement of why the blog deserves to be nominated. Here’s a short description of the Judicial Training and Education Blog:

 

This blog is the official repository of the "Judicial Training Updates" which are designed to be short, concise, easy to read judicial tips that every judge and attorney should know. Many of the updates are designed for use "in court" by judges and attorneys as resource guides to ensure the making of a full and complete record. Many judges and attorneys bookmark the blog for easy access while in court. In addition, the blog also serves as a “one-stop” judicial resource library for judges, attorneys, and the general public.

If you've ever used one of Judge Pendleton's Judicial Updates, you know that his blog is certainly worth nominating. If you haven't . . .again, you don't know what you've been missing. Go fix that mistake as soon as possible. 

 

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Know Your Rights During A Traffic Stop

You are responsible for knowing your rights and legal obligations. 

Law enforcement has no duty to make sure you know your rights or the law. Don't be fooled by what you see in the movies.

During a traffic stop:

You have the following legal obligations:

  • If an officer orders you to stop, you must stop.
  • You must provide your driver’s license and proof of insurance upon an officer’s request.
  • You must wait for the officer’s permission to leave.

You have the following constitutional rights:

  • Under the Fourth Amendment, you have the right to refuse to consent to a warrantless search of your body, your personal belongings, and your vehicle, with one limited exception for officer safety: an officer may legally pat-down your body over your clothes, and search the area within your immediate reach, for weapons only, if she has reason to believe you may be armed and dangerous.
  • Under the Fifth Amendment, you have the right to refuse to answer questions that may incriminate you.
  • Under the Sixth Amendment, if the police take you into custody and detain you, you have the right to have an attorney present with you during questioning.

Here is what I would do to protect my privacy and constitutional rights during a routine traffic stop. This is not legal advice. When it comes to my legal rights, I don't rely on the internet, and neither should you. Every individual, every officer, and every situation is unique. Different states have different laws. Always consult a lawyer if you have questions about your legal rights or obligations.

  • Pull over and turn on the emergency/hazard lights. Turn off any music. Make sure all car windows are closed, and then open the driver’s side window enough so that you can speak with the officer, and hand her your documents if she asks to see them.
  • Turn off the car, and remove the keys from the ignition. Place the keys in your lap or on the center of the dashboard. (You may need them to close your driver’s side window if the officer asks you to step out of the car.) If you smoke, extinguish your cigarette.
  • If there are passengers in the car, tell them to remain calm and silent. Everyone in the car has the same constitutional rights you do.
  • If you have time to retrieve your driver’s license and proof of insurance before the officer approaches the car, do so. If not, wait until the officer asks to see it. (When retrieving documents, move slowly, and keep your hands in plain view.)
  • Before the officer arrives at the window, set your hands at 11 o’clock and 1 o’clock on top of the steering wheel. Remember: everything will be recorded on video by the squad car’s video camera, and possibly recorded by an audio and/or video recorder on the officer’s person.
  • Be polite, respectful, and calm at all times, no matter what. 
  • Greet the officer and ask her “Why did you pull me over, officer?"
  • Officers can’t legally pull you over without reasonable suspicion of criminal activity. They must have some reason to suspect a violation of the law. Once you’ve been stopped, officers have the right to investigate what they stopped you for. However, officers can’t expand their investigation without additional information to justify that expansion.
  • Do not offer information; there's no need for small talk. You do not have to answer a question just because an officer asks. Officers are trained to ask questions that will elicit additional information. You have no legal obligation to answer questions if doing so may incriminate you. 
  • Here are some common questions designed to get you to waive your 5th Amendment rights, with potential responses that protect and preserve your rights:

Driver X:  “Hello officer. Why did you pull me over?”

Officer:     “Why do you think I pulled you over?”

X:              “Why did you pull me over?”

O:              “Do you know how fast you were going?”

X:              “How fast was I going?”

O:              “Do you know what the speed limit is here?”

X:              “What is the speed limit here?”

O:              “Where are you coming from?”

X:              “Why did you pull me over?” or “Are you detaining me, officer?”

O:              “Where are you headed?”

X:              “Why did you pull me over?” or “Are you detaining me, officer?”

O:              “Have you been drinking?”

X:              “Why did you pull me over?” or “Are you detaining me, officer?”

  • If the officer persists in asking questions, ask “Am I free to leave, officer?”
  • If the officer says no, or keeps asking questions, you have been seized and you are being detained. You have the constitutional right to tell the officer “I invoke my 5th Amendment rights, and I refuse to answer any further questions without my attorney present." You must tell the officer that you are asserting your 5th Amendment rights; just remaining silent, without verbally asserting your rights, is not enough.
  • If the officer asks you to step out of the car, move slowly and keep your hands in plain view of the officer. Close your window, open your door, step out, close your door and lock the car.
  • If the officer asks to search anything—your mouth, your car, your luggage, your pockets—you have the constitutional right to refuse to consent to any searches.
  • If the officer places you under arrest, the officer has the right to conduct a “search-incident-to-arrest.” This search takes place during the arrest (at the same time and place where the officer says “I am placing you under arrest”). The officer may legally pat-search a person’s body for weapons and any evidence of the offense of arrest that the person could destroy if the officer did not confiscate it.
  • If officers continue to ask you questions, assert your 5th Amendment right to remain silent, and contact an attorney as soon as possible. Remember, everything is being recorded.

EXCEPTION IN MINNESOTA: ONCE AN OFFICER ARRESTS YOU UNDER SUSPICION OF DRIVING WHILE IMPAIRED, IF YOU ASSERT YOUR CONSTITUTIONAL RIGHTS, YOU WILL BE CHARGED WITH A CRIME.

IN MINNESOTA, IT IS A CRIME FOR ARRESTED DWI SUSPECTS:

- TO REFUSE A WARRANTLESS SEARCH OF THEIR BODY FOR BLOOD AND URINE;

- TO REFUSE A BREATH TEST;

- TO ASSERT THE FIFTH AMENDMENT RIGHT TO REMAIN SILENT; and

- TO ASSERT THE SIXTH AMENDMENT RIGHT TO THE PRESENCE OF AN ATTORNEY DURING QUESTIONING.

If you are concerned that your state provides different levels of constitutional protection depending on the alleged offense, contact an attorney.

Bad News For Hemophobiacs

Bad news for hemophobiacs:

The Eighth Circuit Court of Appeals just ruled that it is a-ok to arrest someone, haul her off to jail, and tell her:

We want evidence of the crime we think you committed, and we’re not getting a warrant. You submit to a blood draw right now, or you’re committing a new crime. If you don’t let us stick you and test the blood, you’re going down for the crime we arrested you for and the more serious crime of not giving us blood. So, what’ll it be?

Yep, according to 8th Circuit Chief Judge William J. Riley, the Minnesota law that forces DWI suspects to submit to a warrantless blood draw does not violate the Fourth Amendment. Wall v. Stanek, 2015 WL 4430495.

How is that constitutional? “Consent to search” is a judicially-created (and judicially-defined) exception to the Fourth Amendment of the Constitution. Apparently, in the 8th Circuit, whether an individual actually, voluntarily consents to a blood draw is irrelevant. Through some mysterious legal alchemy, by reading the Minnesota Implied Consent Advisory to a DWI suspect, the act of submission to a blood draw becomes “consent” to a warrantless search.

In other words, in the 8th Circuit, Fourth Amendment protection varies, based on the alleged offense. In the DWI context, submission is consent, and the court decides when a warrantless blood draw is reasonable. Chief Judge Riley "confirmed" that

society’s judgment [is] that blood tests do not constitute an unduly extensive imposition on an individual’s privacy and bodily integrity.

Really? I must’ve missed that Gallup poll. And the Supreme Court must’ve missed it too, because in 2013, in Missouri v. McNeely, the Court wrote that the

compelled physical intrusion beneath [the driver’s] skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation [is] an invasion of bodily integrity [that] implicates an individual’s “most personal and deep-rooted expectations of privacy."

At one point in Wall v. Stanek Chief Judge Riley wrote:

The real question at issue is whether the “search[ ]” was truly “unreasonable.”

No, the real question is:

Why is every branch of Minnesota government fighting so hard to find a way around the Constitution? GET A WARRANT.

And, there is a silver lining. This ruling brings us much closer to the inevitable constitutional correction the U.S. Supreme Court will make. The 8th Circuit just made a great case for granting certiorari in State v. Bernard.

Is the Constitution Slowing You Down? Hop on the Legislative Bypass!

Happy Monday. Let’s start the week with a quick peek at the Minnesota judiciary, circa 2001.

In 2001, in State v. Larsen, 637 N.W.2d 315, Minnesota courts denounced the "legislative bypass": 

Of course, a statute cannot confer rights on law enforcement officers that the U.S. Constitution denies.

[W]hat the legislature may not do by statute is bypass the Bill of Rights and/or Minnesota Constitution.

The legislature does not have the power … to do away with constitutional limitations and to exempt law enforcement officers from their scope.

A state legislature can establish the law, but it cannot override its own state constitution.

Since statehood, the Minnesota Constitution and the Bill of Rights have served well the judiciary, the prosecution, the criminal defense bar, and law enforcement officers. These twin documents embody the right and the obligation given to [law enforcement] officers to work under, to work with, and to recognize the historical limitation on the power of state government over its citizens. Neither any other group of law enforcement officers, nor the attorney general’s office on their behalf, has ever challenged this obligation.

The state has never argued that, in prosecuting crimes against the state committed on public roads, a “shroud appears over constitutional guarantees” of due process and fairness. … Until now, no one has ever argued the contrary.

Our answer is simple. [] the county attorney, the county sheriff, the chief of police, and all other law enforcement personnel in the performance of their sworn duties are subject to the Minnesota Constitution and the United States Constitution …. No other rational answer can be given.

Our answer is simple too: Legislators and judges are also subject to the Constitution in the performance of their sworn duties. Enacting and upholding a statute that criminalizes refusal to submit to a warrantless search is unconstitutional. No other legal answer can be given. 

 

Dan Koewler Selected By Super Lawyers Magazine for Rising Star List

Ramsay Law Firm is proud to announce that Dan Koewler was recently selected for the 2014 Minnesota "Rising Star" list maintained by Super Lawyers. Each year, less than 2.5% of the lawyers in the State of Minnesota are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters Business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive, and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. For more information about Super Lawyers, visit SuperLawyers.com.

The DWI Suspect: Lady Liberty's "Red-Headed Step-Child"

The State of Minnesota—courts, cops, and legislators—provides more constitutional protection to convicted criminals than it does to drivers arrested under suspicion of drunk driving.

You read that right. Incarcerated, guilty beyond a reasonable doubt, violent criminals enjoy greater constitutional liberty than innocent-until-proven-guilty drivers suspected of driving while impaired.

 

Inmate

Driver

Applicable Law

Minn. Stat. §§ 241.33 – .339

Corrections Exposure to Blood-Borne Pathogens

Minn. Stat. §§169A.20 (DWI)

169A.51 – .53   (Implied Consent)

Reason for blood testing

Blood may contain blood-borne pathogens

Blood may contain alcohol or substances

Health/Safety Risk

Blood-borne pathogens may be transmitted and may cause illness resulting in injury or death

Blood containing alcohol or substances may indicate impaired driving ability; impaired driving may cause accidents resulting in injury or death

Standard for seeking blood sample

Corrections employee must report “significant exposure”

Law enforcement initiates a traffic stop

 

Licensed physician must determine that “significant exposure” has actually occurred

Law enforcement makes determination of probable cause to arrest suspect under suspicion of DWI

Consent required?

Yes, voluntary, express, intentional consent

Implied by statute 

“Any person who drives, operates, or is in physical control of a motor vehicle … consents … to a chemical test of that person's blood, breath, or urine … when an officer has probable cause to believe the person [has been driving while impaired]”

Note: By driving on Minnesota roads, drivers impliedly “consent” to take a test; "consent" can be unintentionally, unknowingly, unwillingly given, through action (submitting to testing)

Language in the statute

“[T]he correctional facility shall obtain consent from the inmate before collecting a blood sample for testing for blood-borne pathogens”

“The consent process shall include informing the inmate that the inmate may refuse to provide a blood sample and that the inmate's refusal may result in a request for a court order … to require the inmate to provide a blood sample”

“[A]t the time a test is requested, the person must be informed: that Minnesota law requires the person to take a test … [and] that refusal to take a test is a crime…”

Note: Any course of action other than submitting to a test--even exercising the constitutional rights guaranteed by the Fifth Amendment (right to remain silent, no compelled self-incrimination)--is the crime of test refusal

What happens if the subject does not consent to give a blood sample?

Inmate does not take a test, no test is performed, and there are no penal or civil consequences

Driver does not take a test and is charged with DWI and test refusal

Or

Driver submits against her will to avoid the criminal charge of test refusal, and the court later finds that she “voluntarily consented” under the totality of the circumstances (in Minnesota courts submission = consent)

Due process protections

“A correctional facility or a corrections employee may bring a petition for a court order to require an inmate to provide a blood sample for testing for blood-borne pathogens. … The correctional facility shall serve the petition on the inmate three days before a hearing on the petition." The court may order the inmate to give blood if "the court finds a compelling need for the test results. ...[T]he court shall weigh the need for the court-ordered blood collection and test results against the interests of the inmate, including, but not limited to, privacy, health, safety, or economic interests

“It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine”

Note: Law enforcement's unofficial policy--and officers' standard practice--is that no search warrant is required for DWI suspects, despite the availability of telephonic warrants

Right to counsel?

“[T]he inmate may arrange for counsel in any proceeding”

“[T]he person has the right to consult with an attorney, but … this right is limited … it cannot unreasonably delay administration of the test”

Can test results or test refusal be used in civil or criminal proceedings?

No

The test results may not be used as evidence in any criminal proceedings or civil proceedings, except for procedures under sections 144.4171 to 144.4186

Yes, both

Civil legal consequences

None

If “the person refuse[s] to submit to a test, the commissioner shall revoke the person's license [without a hearing]… even if a test was obtained ... for a period of not less than one year”

If a person fails a test (0.08 BAC or higher), the commissioner shall revoke the person's license [without a hearing] "for a period of 90 days"

 

 

 

Criminal legal consequences

None

First time DWI is a misdemeanor:

Up to 90 days imprisonment, up to $1,000 fine, or both

First time test refusal is a gross misdemeanor:

Up to one year imprisonment, up to $3,000 fine, or both

Convictions and revocations will be used to enhance future criminal and civil DWI-related offenses

 

Continue Reading...

D(efense)-Day: Opening a Second Front In Defense of the Constitution

In early 1944, Nazi Germany (the polar opposite of a country based on constitutionally guaranteed freedoms) was struggling to retain the territory it had captured, while the Allies were bombing Germany from the skies in anticipation of an amphibious landing for a new battle - the "Second Front".

In early 2015, the U.S. Constitution (which is the polar opposite of a totalitarian dictatorship like Nazi Germany) is struggling to maintain the rights that it affords all citizens, including those privacy rights enjoyed by everyone who lives and drives in the State of Minnesota.

The struggle intensified when the Minnesota courts threw two constitutional grenades. First, the Minnesota Supreme Court concluded that, in DWI cases, the State can lock drivers up, tell them they are required by law to submit to a warrantless search, tell them that it's a crime to say no to that warrantless search, and then successfully claim that the search was valid because the driver "consented." 

Next, the Minnesota Supreme Court concluded that DWI breath tests are not technically "searches" anymore, so the Constitution doesn't even apply to most DWI cases (a decision that flies in the face of legal precedent).

But there is hope - we're attacking on a Second Front, and we've already got boots on the ground!

The first new battleground is the Supreme Court of the United States. On June 15, 2015, counsel for the driver in State v. Bernard filed a petition for certiorari with the highest court in the land. The U.S. Supreme Court now has the opportunity to restore constitutional civil liberties to Minnesota drivers. The Court can end this war by rejecting Minnesota's test refusal law and restoring voluntariness to the legal analysis of what "consent" actually means. If you want to read the petition asking for review, click here and enjoy the show

The second front is federal district court. We have filed two petitions for a writ of habeas corpus challenging Minnesota's DWI test refusal law. If you want to read our recent petition, click here.

The protections of the Fourth Amendment in Minnesota will be re-won on one of these two new federal battlegrounds. Until then, the constitutional battle rages on. 

Why get a warrant when you can use a statute instead?

We the People understand and appreciate that law enforcement’s job is to investigate crime by collecting evidence to be used in a criminal prosecution. In the DWI context, an officer’s primary goal is to generate evidence of a suspect driver’s blood alcohol concentration.

Are you aware that there is no legal requirement that law enforcement pursue license revocation when an officer suspects a driver of DWI? Chemical testing may be required at the discretion of the officer. The implied consent advisory only comes into play if the officer chooses to pursue a revocation.

In other words, an officer doesn’t have to read the implied consent advisory to a DWI arrestee; the officer has a choice. She has two options; both accomplish her primary goal of gathering criminal evidence, but only one is constitutional: (1) read the implied consent advisory that makes it a crime to refuse a chemical test, or (2) submit probable cause to a judge to get a search warrant. Convenience or Constitution?

From the officer’s perspective, of course it is more convenient to rely on a statute to execute a search than it is to go to the trouble of getting a warrant.

But We the People didn’t write the Fourth Amendment from the officer’s perspective, for government convenience. The Constitution didn’t create rights. We the People have individual rights, and We the People wrote the Constitution to ensure that government honors and protects those rights. (And We certainly didn’t empower the legislature to create offense-specific exceptions to the warrant requirement.)

We wrote the Constitution to regulate our government. It sure would be nice if government played by the rules. 

Will the Test Refusal Law Fall on Its Face?

Once again, we can see that the legal landscape is reaching one of those tipping points, where everything we thought we knew is turned on its head.

The United States Supreme Court just issued a decision, in California v. Patel, that should prompt those who believe Minnesota's test refusal law is constitutional to stop what they're doing, sit up, and listen.  

The bottom line is: We can and will keep making the argument that Minnesota's test refusal statute is unconstitutional until we win.

California v. Patel stands for two basic principles:

1.   Just like laws that involve other constitutional rights, state laws that involve the Fourth Amendment are subject to facial challenges. By "facial", the Supreme Court means that some laws are so blatantly unconstitutional as written--regardless of any possible fact scenario to which they might apply--that no court could enforce the law without violating the Constitution. The Court found the law in Patel, which authorized warrantless searches of hotel registry documents on demand, to be facially invalid.

2. SCOTUS said (again!) that it is unconstitutional for the state to make it a crime to refuse to submit to a warrantless search. To put things in perspective:

In Patel, the statute struck down by the Court made it a crime for hotel owners to refuse to permit a search of the hotel's guest registry: who checked in, how long they stayed, how they paid for the room, etcetera.

Here in Minnesota, the test refusal statute makes it a crime for drivers suspected of DWI to refuse to permit a search of their body: the chemical composition of their blood, breath, and urine. 

The Constitution--on its face--provides far more protection for individuals' privacy and bodily integrity than it does for the comings and goings of guests in a hotel database.

We'll post soon about our recent efforts to bring Minnesota's test refusal law before the federal courts for review - but the takeaway message today is that Minnesota's DWI test refusal law may soon fall on its face.

Cherry Picking with the BCA

For a driver with a breath alcohol concentration (BrAC) that straddles one of the statutory cutoffs (0.04, 0.08, 0.16), measurement uncertainty is reasonable doubt -- reasonable doubt that the BCA refuses to report.

Consider this scenario adapted from the National Academy of Sciences' Strengthening Forensic Science in the United States: A Path Forward (2009):

A driver gives three breath samples. The device calculates three results: 0.08, 0.09, and 0.10. The different test results arise from a number of factors: the internal components of the test device, calibration, and environmental characteristics, to name a few. Without accounting for these factors--by presenting the average of the three samples, 0.09, as an actual BrAC--the prosecution is able to argue that there is no reasonable doubt.

That is not science.

It is scientifically impossible to achieve 100% accurate results. In this scenario, the variation between the three breath sample results clearly indicates some uncertainty of measurement. Because of this scientific reality, test results must be accompanied by the area around those results, known as a confidence interval, in which there is a high probability that the actual BrAC lies.

How is this confidence interval calculated? Here, the average is 0.09 (the sum of the three values, 0.27, divided by 3) and the standard deviation is 0.01 (the three results deviate from one another by 0.01). This means that a two-standard-deviation confidence interval (0.07, 0.11) has a high probability of containing the person’s true BrAC. Here, for the per se crime of driving with a BAC at or above 0.08, science establishes reasonable doubt.

But … not in Minnesota. Here, the BCA refuses to report measurement uncertainty in breath tests, even though other state courts have held that:

Given the requirements of due process, the discovery rules and [rules of evidence], therefore, the State must provide Defendants with a confidence interval for each Defendant’s breath-alcohol measurement. Absent this information, a defendant’s breath-alcohol measurement will be suppressed.

In other words, cherry picking is not allowed when it comes to science.