INTRODUCTION:
I define a legally significant win as one that is binding on all the courts in the State of Minnesota. There are three levels of court in Minnesota. The first is the trial court or district court level. Every county has a number of district court judges and the decisions of one district court judge are not binding upon any other district court judge. Anyone charged with a crime in Minnesota will have his or her case heard in the district court.
The second level is the Minnesota Court of Appeals. The Minnesota Court of Appeals oversees the district courts and handles the vast majority of all appeals by parties unhappy with the decisions of the district courts. The decisions of the Court of Appeals are generally binding on the district courts. That is, if the Minnesota Court of Appeals has ruled on an issue arising out of a similar factual situation, district courts are required to follow the ruling of the Minnesota Court of Appeals.
The third court level, or top level in Minnesota, is the Minnesota Supreme Court. The Minnesota Supreme Court decides all appeals of first-degree murder convictions and all election contest appeals. Otherwise, its review of cases decided by the Minnesota Court of Appeals is “discretionary”. Any party unhappy with a decision of the Court of Appeals must petition the Supreme Court to accept discretionary review. The Minnesota Supreme Court receives approximately 900 petitions for review each year and accepts only one-in-eight cases. So if somebody tells you that he, “is going to take your case all the way to the Supreme Court”, the odds of actually getting there, should the party be so inclined, is only 12.5%. The decisions of the Minnesota Supreme Court are binding on all the lower courts.
MY STATEWIDE VICTORIES THAT HAVE ALREADY HELPED YOU!
A number of attorneys will list their recent “victories” in district court as being evidence of their prowess in the courtroom. I do not have any problem with that as long as people realize that in a number of cases, where a dismissal or a reduction of the charges has occurred, the primary reasons for such results are: (1) the state’s witnesses are no longer available or are unwilling to testify, and; (2) the case was overcharged in the first place.
The state bears the burden of proving each criminal case beyond a reasonable doubt. Cases are routinely dismissed at trial because the state’s witnesses are not available on the trial date or are longer willing to cooperate. This is particularly true in assault cases. So sometimes you can win as a defense attorney just by showing up and pushing the state to trial!
But even if an attorney obtains a terrific result in a district court case, how does that help you with your current criminal case? The decisions of one district court are not binding on any other district court. So what happened to your “friend” in his DWI case has no bearing on what is going to happen to you. And that is why I want to talk about the cases I have handled which have had a statewide impact and which serve to protect and help you with your current DWI offense.
1. Kuhn v. Commissioner of Public Safety:
THE RIGHT TO COUNSEL:
Kuhn v. Commissioner, decided by the Minnesota Court of Appeals in 1992 and its decision is binding on all the lower courts. An individual arrested for a DWI has the right to contact and consult with counsel prior to deciding whether or not to submit to chemical testing at the police station. Police departments in the State of Minnesota would routinely give a person under arrest, “20 minutes” to reach an attorney. If the individual did not reach an attorney within the 20 minute time period, the police would force the individual to make the important testing decision without the advice of counsel. The district courts were generally condoning this police practice.
As the Minnesota DWI Lawyer representing Mr. Kuhn, I convinced the Minnesota Court of Appeals to eliminate the “20 minute rule”. I argued that most people are arrested for DWI late at night, when it is often difficult to reach a competent DWI attorney. I also argued that if a person is making a reasonable and good faith effort to reach an attorney, it is nothing short of absurd to limit the arrestee to “20 minutes” to exercise this important constitutional right.
The Minnesota Court of Appeals agreed with me in Kuhn, and held that as long as a person is making a good faith effort to reach an attorney, the police may not limit the exercise of the right to counsel to an arbitrary number of minutes.
Kuhn has now been cited literally thousands of times by the district courts and the Court of Appeals. The decision continues to protect anyone arrested for DWI against arbitrary police limits on the important right to counsel.
2. Ascher v. Commissioner of Public Safety:
NO MORE ROADBLOCKS:
My second legally significant win occurred in 1995, when I convinced the Minnesota Supreme Court to eliminate the use of DWI roadblocks (AKA “Sobriety Checkpoints”) in Minnesota even though the United States Supreme Court had already approved of its use!
The United States Supreme Court had previously held in Michigan v. Sitz, that the use of roadblocks or “sobriety checkpoints” to catch DWI offenders was a “legitimate law enforcement technique” that did not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures.
As the Minnesota DWI Lawyer representing Mr. Ascher, I used Article 1, Section 10 of the Minnesota Constitution (which incorporates the 4th Amendment into the State Constitution), to argue that the Sitz decision constituted an erosion of traditional 4th Amendment principles and that as final arbiters of the state constitution, the Minnesota Supreme Court was not bound by the Sitz decision in determining the extent of the protection against unreasonable searches and seizures granted to Minnesota citizens by the State Constitution.
In Ascher, the Minnesota Supreme Court agreed with me and found that the use of a DWI roadblock was not a legitimate law enforcement technique. The Court reasoned that under Article 1, Section 10 (i.e. the State’s 4th Amendment), the police must have a least an individualized “articulable suspicion” that a person has engaged in criminal activity before they may conduct a seizure of said person. The Minnesota Supreme Court held that sobriety checkpoints, which corral the innocent public into a holding area while the police search for DWI offenders, violates the individualized suspicion requirement of Article 1, Section 10 and declared the use of DWI roadblocks unconstitutional in the land of ten thousand lakes.
The Ascher decision not only resulted in the dismissal of numerous DWI cases but it also eliminated the police-state tactic of rounding up the innocent in the hope of finding a DWI offender. As the result of my efforts, you no longer need to fear that your automobile trip will be interrupted or delayed by some police roadblock.
3. Davis v. Commissioner of Public Safety & Hamilton v. Commissioner of Public Safety:
SPEEDY HEARINGS FOR ALL LICENSE REVOCATIONS:
In Davis v. Commissioner of Public Safety (1994) and in Hamilton v. Commissioner of Public Safety (1999), I convinced the Minnesota Supreme Court to re-affirm that if the State of Minnesota is going to use a pre-hearing license revocation procedure (i.e. where your license is taken away on the night of your arrest before you have had a hearing on the matter) they must at least give the licensee a speedy license revocation hearing after the fact.
Several counties (e.g. Hennepin, Ramsey, Blue Earth) would prefer not to give people a speedy hearing on their license revocation. So in those counties, to comply with the speedy hearing requirement, if one files a challenge to the license revocation, the district court upon request, will immediately order the reinstatement of the license prior to the hearing! Once the license has been reinstated, the need for a speedy hearing disappears. The temporary reinstatement is a major benefit as if we are successful in the license or criminal challenge to your DWI arrest, the license revocation may never be imposed!!
4. State v. Severson:
A WOMAN’S HOME IS HER CASTLE:
Another legally significant win was State v. Severson. Ms. Severson hit a parked car on her way home. She did not stop her vehicle to leave identification information but instead proceeded to drive to her residence. Ms. Severson parked her car in her garage, closed the garage door and then went into her home.
The property damage accident was witnessed by a bystander who called the police and gave them the license plate number of Ms. Severson’s vehicle. The police came to the home of Ms. Severson, but she refused to answer the door. The police then entered her residence, without her consent, through the closed but unlocked garage door.
The district court upheld the legality of the seizure of Ms. Severson and her subsequent prosecution for DWI. I appealed her conviction and in 2001, the Minnesota Court of Appeals reversed the district court, holding that the police entry into the home was illegal. The conviction was vacated and the charges were dismissed.
The Severson case is significant as it makes clear that unless the police are in “hot pursuit” (i.e. chasing a suspect with their emergency lights flashing), they may not enter a home to make an arrest for a misdemeanor offense.
5. State v. Kuhlman:
BIG BROTHER IS NO LONGER WATCHING:
The City of Minneapolis, in an effort to raise revenues, implemented a “photo cop” program at various intersections in the city. These cameras would photograph the rear license plate of any vehicle entering the intersection on a red light. Because the city bought the cheapest photo cop equipment available, the cameras at the intersections were unable to photograph or otherwise identify the actual driver of the offending vehicle. To get around this problem (or so they thought) the city passed an ordinance stating that the ticket would be issued to the registered owner of the vehicle and that the burden of proof would be on the owner to prove that they were not the driver. In other words, the registered owner was presumed guilty and the burden of proof was placed on the owner to prove his or her innocence.
Attorney Howard Bass wrote the brief for the American Civil Liberties Union (ACLU) and I wrote the amicus brief for the Minnesota Association of Criminal Defense Lawyers (MACDL). The district court threw out the city ordinance and in 2004-2005 the Minnesota Court of Appeals and the Minnesota Supreme Court agreed that the ordinance was fatally flawed.
The City of Minneapolis was subsequently forced to refund hundreds of thousands of dollars in illegally obtained photo-cop fines!
6. State v. Poetschke:
THE POLICE MAY NOT RUMMAGE THROUGH YOUR MEDICAL RECORDS SEEKING EVIDENCE OF A CRIME:
Ms. Poetschke was alone in her vehicle when she drove off the road and hit a tree. She was badly injured in the accident and was transported to a local hospital for emergency treatment. The police, being very suspicious individuals, wanted to investigate Ms. Poetschke for drunk driving. The police were unable to obtain a blood or urine sample from her as she was being treated for her injuries.
Several days after the accident, a police detective decided to obtain a search warrant to acquire the medical files of Ms. Poetschke. Upon execution of the warrant, the police located the test results of the blood sample obtained from Ms. Poetschke for purposes of diagnosis and treatment. The test results revealed an alcohol concentration in excess of the legal limit and Ms. Poetschke was subsequently charged with DWI.
I moved in the district court to suppress the alcohol concentration test results arguing that the Minnesota medical privilege prohibits a police search for evidence of a crime. While the district court denied my motion, in 2009, the Minnesota Court of Appeals agreed with me and held that the medical privilege does not contain a law enforcement search exception. The Court of Appeals, therefore, held that the medical evidence was improperly obtained even though the police had obtained a search warrant for the records. The DWI case against Ms. Poetschke was subsequently dismissed.
As a result of my efforts in the Poetschke case, the police may no longer rummage through your medical records seeking evidence of a crime!
7. State v. Wicklund:
THE POLICE “POLICY” OF COLLECTING A BLOOD OR URINE SAMPLE WHENEVER A SERIOUS ACCIDENT OCCURS VIOLATES THE FOURTH AMENDMENT:
In the case of State v. Wicklund, I convinced the Minnesota Court of Appeals to rule that the police “policy” of collecting a blood or urine sample from a driver, whenever an accident involving serious injury or death occurs, violates the Fourth Amendment to the United States Constitution.
Brent Wicklund caused a fatal multi-vehicle accident after the brakes on his box truck failed and he attempted to stop by driving into a raised concrete median that separated the opposing lanes of a multi-lane highway. Mr. Wicklund’s truck did not stop; it jumped the median, entered oncoming traffic, and struck and fatally injured a motorcyclist.
The police arrived and based upon the nature of the accident and nothing more, compelled Mr. Wicklund to provide a urine sample for drug testing. The police did not observe Mr. Wicklund exhibit any indication of drug or alcohol consumption. But it was the policy of the Plymouth Police Department to test a driver whenever there was the possibility that the crime of criminal vehicular injury/homicide had been committed.
The urine test result revealed the presence of amphetamine and methamphetamine and as a result, Mr. Wicklund was charged with Criminal Vehicular Homicide.
I moved, in the district court, to suppress the results of the urine test arguing that the police lacked probable cause to obtain a urine sample from Mr. Wicklund. The district court held that the results were admissible because the police had probable cause to believe that the crime of criminal vehicular operation had occurred and that obtaining a blood or urine sample would aid in the prosecution of the crime.
I subsequently appealed the district court’s decision and in January 2010, Minnesota Court of Appeals agreed with my contention that there was nothing specific to Mr. Wicklund that would justify a search of his bodily fluids. The Court of Appeals held that Mr. Wicklund did not exhibit any indicia of alcohol or drug consumption and there was nothing about the accident itself that would give rise to a reasonable belief that a search of Mr. Wicklund’s body fluids would yield evidence of a crime. The appellate court, therefore, held that the search was unconstitutional and reversed the conviction.
My efforts in the Wicklund case resulted in the police department’s “policy” of collecting body fluid evidence whenever a serious accident being nullified. For a further review of the Wicklund decision, please click here.
SUMMARY:
I have fought when necessary, “all the way to the Supreme Court” to establish and protect the rights of my clients. It is a privilege to be a criminal defense attorney and to participate in cases that have had a statewide impact. I believe it is my duty to give voice to the protections contained in the constitution and to protect, to the very best of my ability, any individual charged with a crime.
If you would like to learn what I might do for you, please call me as I would be happy to discuss your case!
