Rob is happy to announce that Tom has once again been named a Rising Star by Minnesota Law & Politics. This honor is awarded to recognize top up-and-coming lawyers in the state. It is based on input from other attorneys familiar with the high quality of Tom’s work and with the great results he has acheived for his clients. Congratulations Tom!

Minnesota law provides for mandatory minimum sentences for certain DWI offenses. These mandatory minimum sentences become progressively more severe based on the number of prior DWIs a person has within the previous ten years. If convicted of one of these crimes it is very difficult for an unrepresented defendant to convince the court to deviate from these required minimum sentences. However, a skilled Minnesota DWI attorney can often negotiate a plea agreement which avoids the significant jail time and high fines which would otherwise be imposed.  The following is a listing of mandatory minimum sentences from least to most severe.

• 2 DWIs in 10 years: mandatory minimum sentence is 30 days incarceration, $900 fine.
• 3 DWIs in 10 years: mandatory minimum sentence is 90 days incarceration, $900 fine.
• 4 DWIs in 10 years: mandatory minimum sentence is 180 days of incarceration,$4200 fine.
• 5 DWIs in 10 years: mandatory minimum sentence is one year of incarceration, $4200 fine.

Don’t just give in, plead guilty, and allow a judge to sentence you with these severe sentences as a minimum. Hire an experienced Minnesota DWI attorney to defend your rights and prevent a DWI from ruining your life.

COURT OF APPEALS OF THE STATE OF MINNESOTA

State of Minnesota v. Bernard Connie

UNPUBLISHED OPINION

Appellant challenged his conviction of fifth-degree controlled-substance sale, arguing that the district court erred by denying his motion to suppress a pistol and marijuana that officers discovered during a search of appellant. The district court held that the search was lawful, relying on the consent and search-incident-to-arrest exceptions to the warrant requirement. Because the state did not meet its burden of establishing that appellant’s consent was voluntary and because the search was not a valid search incident to arrest, the court held that the search was illegal. The court reversed and remanded.

Officers observed Connie and three other males “loitering” on a street corner in Minneapolis.  Officers parked their unmarked squad car approximately one block away and observed what appeared to be a drug transaction between Connie and another male.  Officers approached the males shortly thereafter with weapons drawn and ordered them to put their hands in the air.

After Connie complied, Blackmon asked Connie for permission to search him for “guns, knives [or] drugs.” Connie replied “yes,” and he told the officer that he was carrying a pistol in his waistband and claimed he had a permit to carry the firearm.

The officer reached into Connie’s waistband and removed the firearm. He then handcuffed Connie and told him he was under arrest. The officer continued to search Connie and discovered cash and five baggies of marijuana during the process. Connie was subsequently charged with fifth-degree controlled-substance crime.

Connie moved to suppress the firearm and marijuana on the grounds that the search violated his Fourth Amendment constitutional right to be free from unreasonable search and seizure. The district court denied the motion and Connie was subsequently convicted and later appealed.

The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution prohibit the unreasonable search and seizure of “persons, houses, papers, and effects.” Warrantless searches are per se unreasonable, subject to limited exceptions.  To justify a warrantless search based on consent, the state must prove that the consent was freely and voluntarily given. Consent must be received, not extracted.

In the analysis, the court considered the “totality of the circumstances” surrounding the giving of consent in this case which led the court to conclude the state did not satisfy its burden of proving that Connie’s consent was voluntary. The court observed that Connie was standing on a street corner when, without warning, four law-enforcement officers pulled up to the corner and exited their vehicle with guns drawn. They identified themselves as police officers and instructed Connie and his companions to put their hands up in the air. An officer then directed Connie to turn away from the officer and to place his hands on a fence. As Connie stood with his back to the officer and with his hands up against the fence, the officer asked to search Connie for “guns, knives or drugs.” The court concluded that a reasonable person would not have felt free to decline the officer’s request or to otherwise terminate this encounter. The court further concluded that the officer’s immediately ensuing request for Connie’s consent to a search was not severable or distinguishable from the multiple commands that preceded it. The court was not persuaded that the facts that the officer had holstered his gun and used “a calm voice” eliminated the coercive nature of the encounter.

State of Minnesota  v. Bobby Vang

UNPUBLISHED OPINION

Appellant challenges his conviction of felony firearm possession by an ineligible person, arguing that the district court should have suppressed the evidence as the product of an illegal search and seizure. Because the search of the car that resulted in the discovery of the firearm was supported by a reasonable, articulable suspicion, the court affirms

Vang was the passenger seated in the backseat behind the driver.  As officers in a marked squad car passed the vehicle driving in the opposite direction, the driver raised his left arm and shielded his face with his hand.  Officers found that behavior suspicious and turned to follow the vehicle.  As the squad turned, the vehicle made an abrupt turn without signaling.  The officers initiated a stop and the vehicle pulled over immediately.  Officers ran the license plate and found the registered owner to be a gang member with a violent history.  As officers approached the vehicle they observed Vang make “unusual leaning movement to his right” as if he were “digging behind his back with his left arm.”  Officers ordered all four occupants to exit the vehicle.  Upon searching the vehicle officers found a handgun behind the seat where Vang was seated.  Vang was charged with felony possession of a firearm by an ineligible person.  He was sentenced to 36 months in prison.

Appellant argues that the search of the vehicle in which he was a passenger, and the seizure of his gun, violated his rights under both constitutions, and that the district court was therefore required to suppress the gun as evidence in the state’s case against him.

Although U.S. Supreme Court cases have cast doubt on whether the Fourth Amendment still requires reasonableness under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), during a “very minor” traffic stop when the stop is supported by probable cause, the Minnesota Constitution independently requires that the Terry framework be used to evaluate “the reasonableness of seizures during traffic stops even when a minor law has been violated.”

After an exhaustive analysis of Terry, the court affirmed the conviction reasoning that Vang made “suspicious movements” as they approached the vehicle.  The driver as well, by shielding his face.  Further, the court found that the driver’s gang affiliation as well as Vang’s clothing matched that typically worn by Crips gang members as relevant.  Finally, the stop occurred in a high crime area raising officer’s suspicion.  The court reasoned that although no single act may be sufficient alone, a Terry analysis considers the “totality of the circumstances.”  Vang’s conviction affirmed.

State of Minnesota v. Antonio Collins

UNPUBLISHED OPINION            

On appeal from his conviction of third-degree controlled substance crime, appellant argues that the prosecutor committed prejudicial misconduct by inflaming the passion and prejudices of the jury during closing argument. The court affirms.

Appellant objected to the following remark made by the prosecutor in his closing statement:

“Dealing with what this case is about from the police perspective, it must be–seem like an insurmountable difficult task at times to try to have a significant impact on street-level drug dealing, to be able to feel like they can make a significant dent in that particular problem.”

For prosecutorial misconduct that is objected to at trial, the standard of review varies based on the severity of the perceived misconduct.” If the misconduct is less serious, the court determines whether it “likely played a substantial part” in influencing the jury. Although appellant concedes that the alleged misconduct is “somewhat less serious,” he contends that he is entitled to a new trial because the alleged misconduct likely played a substantial part in influencing the jury to convict him.

The court affirmed the conviction reasoning that “when viewed as a whole” it is unlikely that the prosecutor’s statements inflamed the passions and prejudices of the jury. See Taylor, 650 N.W.2d at 208 (stating that the reviewing court considers the prosecutor’s closing argument as a whole and does not focus on selected phrases taken out of context).

State of Minnesota v. Stanton Williams

UNPUBLISHED OPINION

Appellant challenges his first-degree aggravated robbery conviction, arguing that, among other issues, the district court abused its discretion by refusing to instruct the jury on a lesser-included offense.

Appellant Stanton Williams was convicted of first-degree aggravated robbery. He argues that the district court abused its discretion by refusing to instruct the jury on fifth-degree assault. Failure to give a lesser-included-offense instruction is grounds for reversal if the defendant is prejudiced. Prejudice exists when there was a rational basis to convict on the lesser offense and acquit on the greater offense.

In considering whether to give a lesser-included-offense instruction, the district court must determine whether (1) the offense is a lesser-included, (2) the evidence provides a rational basis for a conviction on the lesser offense, and (3) the evidence provides a rational basis for an acquittal on the greater offense. A lesser offense is included if it is impossible to commit the greater offense without committing the lesser. In determining whether an offense is a lesser-included, the court looks at the elements of the offense, not the facts of the particular case. If the offense is a lesser-included, the court must then determine whether the evidence provides a rational basis for a conviction on the lesser offense and an acquittal on the greater offense.

Because fifth-degree assault is a lesser-included offense of simple robbery, and simple robbery is a lesser-included offense of first-degree aggravated robbery, fifth-degree assault is a lesser-included offense of first-degree aggravated robbery. The next step is to determine whether the evidence provides a rational basis for a conviction on the lesser offense and an acquittal on the greater.

While at a barbeque, appallant asked to speak with the victim, and when the men went outside, appellant immediately punched him in the face.  The victim fell to the ground, and whiule others continued the attack, appellant reached into the victims pocket and pulled out victim’s money and cell phone.

Appellant argued that there was a rational basis for the jury to acquit on the first-degree aggravated-robbery charge because there were no eyewitnesses and the allegedly stolen items were never recovered. However, the court disagreed reasoning that even viewing the evidence in the light most favorable to appellant, the evidence does not provide a rational basis for an acquittal on first-degree aggravated robbery as the victim testified that he had been robbed.

SUPREME COURT OF THE STATE OF MINNESOTA

David Lee Lasse v. 2007 Chevrolet Tahoe

The Minnesota Supreme Court rules that the “innocent owner defense” in Minn.Stat. § 169A.63, subd. 7(d) (2008), does not apply in a case of joint ownership of a vehicle if one of the joint owners is also the offender causing forfeiture of the vehicle. 

On May 16, 2006 Mr. Lasse finished a round of golf during the day and met his wife at the golf club later in the evening.  Mr. Lasse was on his way home while Mrs. Lasse had planned to play a round of evening golf.  Mr. Lasse testified that he never saw his wife hold a drink nor did he suspect that she had been drinking at all.  During the early morning hours of May 17, Mrs. Lasse was charged with DWI.  She subsequently plead guilty to second degree test refusal thereby triggering seizure of the vehicle.

Mr. Lasse challenged the seizure by filing the demand for judicial determination.  After a hearing, the district court concluded that the vehicle was not subject to forfeiture because Mr. Laase demonstrated that he was an “innocent owner.”  The County appealed and the district court granted the County’s motion to stay its order directing that the vehicle be returned to Mr. Laase pending appeal. The court of appeals affirmed.

The question presented in this case is whether the “innocent owner” defense provided for in Minnesota’s vehicle forfeiture statute, Minn.Stat. § 169A.63, subd. 7(d), applies to prevent forfeiture of the Lasses’ vehicle under this defense:

A motor vehicle is not subject to forfeiture under this section if its owner can demonstrate by clear and convincing evidence that the owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the owner took reasonable steps to prevent the use of the vehicle by the offender.

The parties appear to agree that the “innocent owner” defense in the vehicle forfeiture statute is unambiguous. The parties disagree, however, over whether all owners of the vehicle must be innocent in order for the defense to apply. The statute is written in the singular, providing that the defense is available if the vehicle’s “owner” demonstrates innocence. But the County contends that we should rely on the canon in which the legislature has stated that the “singular includes the plural.”  With “owner” construed as “owners” in subdivision 7(d), the County argues it is clear that the defense does not apply to this case because both “owners” were not innocent.

Despite the opinions of three dissenting Justices, the Supreme Court reversed and the vehicle was forfeited.

COURT OF APPEALS OF THE STATE OF MINNESOTA

State of Minnesota  v. August Leroy Kihlgren

UNPUBLISHED OPINION

Kihlgren appeals his conviction of first degree sexual misconduct on the basis of prosecutorial misconduct arguing that the prosecutor disparaged his defense theory during closing argument.  The court affirmed his conviction.

The court will not reverse based on prosecutorial misconduct if the misconduct is harmless beyond a reasonable doubt. State v. Mayhorn. 720 N.W.2d 776, 785 (Minn.2006). An error is “harmless beyond a reasonable doubt only if the verdict rendered was surely unattributable to the error.”

Appellant’s defense theory involved characterizing the victims injuries as minimal and inconsistent with sexual assault. He argues that the prosecutor mocked this theory by stating “apparently the victim wasn’t beaten well enough for appellant’s counsel’s liking.”

The district court sustained appellant’s objections to these statements. But they represented just two lines in the prosecutor’s four-page argument and were a direct response to appellant’s characterization of the victims injuries. Considered in the context of the entire closing argument, the court ruled that the statements did not rise to the level of prosecutorial misconduct nor did they prejudice appellant.

State of Minnesota v. Naser Omer Ali

UNPUBLISHED OPINION

Ali was convicted of possessing cathinone, a Schedule I controlled substance found in “khat,” a plant grown in Africa.  The basis of Ali’s appeal was that he did not know that the substance in his possession, khat, contained cathinone.

From June 2005 to March 2006 Ali received multiple shipments via FedEx of khat.  Each shipment contained 4 to 17 pounds of the substance for a total amount of 140 pounds.  The khat had an estimated street value of $13,000.  Ali contends that he had no knowledge that the khat contained cathinone.

The operative statute provides that “[a] person is guilty of controlled substance crime in the fifth degree if … the person unlawfully possesses one or more mixtures containing a controlled substance classified in schedule I, II, III, or IV.”   Possession crimes require proof that the defendant “had actual knowledge of the nature of the substance” in his possession.

Ali argues that the evidence was not sufficient to establish that he knew that his khat contained cathinone. The state responds that Ali’s conduct shows that he knew he possessed an illegal controlled substance.

“The law is settled that a defendant need not know the exact nature of a drug in his possession to violate, it is sufficient that he be aware that he possesses some controlled substance.”  United States v. Villarce, 323 F.3d 435, 439 (6th Cir.2003) “Drug type and quantity are irrelevant to the mens rea element of which requires nothing more specific than an intent to distribute a controlled substance.”United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002)

Consistent with this precedent from other states and the overwhelming majority of federal circuits, the court held that when a defendant is prosecuted for possessing cathinone-containing khat, proof that the defendant was aware that he possessed a controlled substance satisfies the statute’s actual-knowledge requirement.

State of Minnesota v. Catherine McQueen

UNPUBLISHED OPINION

Appeallant entered a guilty plea to third degree DWI and sentenced to 15 days house arrest in Anoka County District Court.  McQueen later attempted to withdraw her guilty plea because she felt dizzy and ill and feared the onset of a seizure.  The denied withdrawal of the plea and upheld the conviction.

A criminal defendant does not have an absolute right to withdraw a guilty plea once it is entered. But Minn. R.Crim. P. 15.05, subd. 1, provides that any time before or after sentencing, a court shall allow withdrawal of a guilty plea “upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” A manifest injustice exists where the plea was not accurate, voluntary, and intelligent. The voluntariness requirement insures that the guilty plea is not in response to improper pressures or inducements; and the intelligent requirement insures that the defendant understands the charges, his or her rights under the law, and the consequences of pleading guilty.  Withdrawal is not warranted if the defendant understood the nature and seriousness of the offense charged at the time of pleading.

Upon review of the record the court concluded that McQueen’s plea was voluntariy and intelligent and affirmed her conviction.

State of Minnesota v. Sadi Muhamed Gure

UNPUBLISHED OPINION

Gure was convicted of first degree DWI and appeals his conviction based on insufficient evidence to support the conviction.  The Court of Appeals affirmed the conviction.

At trial, the State’s only witness was the arresting officer.  The officer testified that upon receiving information from dispatch of a possible impaired driver, he located a vehicle matching the description.  He observed the vehicle swerve over the both fog lines and make an abrupt lane change.  After failing field sobriety test and refusing to submit to a preliminary breath test, Gure was arrested and taken to the police station.

Upon arrival, Gure apparently fell asleep.  Officer’s were unable to rouse Gure and subsequently had him taken to the hospital.  Because of thse circumstances, officers were unable to obtain a blood, breath or urine test. 

Appellant argues that this evidence is circumstantial in nature and that the state failed to prove beyond a reasonable doubt that appellant’s behavior and failure of field sobriety tests were due to alcohol impairment and not some other cause. But an individual can be convicted of driving while impaired by the testimony of an arresting officer alone. See State v. Waterston, 371 N.W.2d 650, 651-52 (Minn.App.1985).

State of Minnesota v. Breanna Vesaas

UNPUBLISHED OPINION

Vesaas appeals her third degree DWI conviction also on the basis of insufficient evidence.  Vesaas argues that the evidence is insufficient to support the guilty verdict because the state provided no expert testimony that the Intoxilyzer or its results were reliable or accurate.

The court affirmed her conviction reasoning:

“[T]he results of a breath test, when performed by a person who has been fully trained in the use of an infrared or other approved breath-testing instrument … are admissible in evidence without antecedent expert testimony that an infrared or other approved breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath.” Minn.Stat. § 634.16 (2006). The standard of proof beyond a reasonable doubt for a DWI conviction does not require any particular type of evidence and does not require expert testimony on the reliability of the Intoxilyzer. State v. Birk, 687 N.W.2d 634, 638-39 (Minn.App.2004). Here, the test was performed by the police officer, a certified Intoxilyzer operator, in accordance with standard BCA testing procedure. This is sufficient to negate the need for expert testimony on the reliability of the test results.

A deeply divided Minnesota Supreme Court today issued a ruling in Laase v. 2007 Chevy Tahoe which allows the government to take away private property from an innocent husband or wife in DWI related cases. The decision overturns the trial and appellate courts who found that a spouse who was a named co-owner on the title of a vehicle could assert the “innocent owner defense” and thus force the government to return property seized after a DWI arrest. This ruling gives the government the green light to seize property from those who are entirely innocent of any wrongdoing. In effect, the Court is allowing police departments and prosecutors throughout the State of Minnesota to punish people for the sole offense of marrying the wrong person. Lets hope the legislature finally sees the huge possibilities for abuse that the forfeiture laws create and finally purges “policing for profit” from this state.