Minnesota Police and Prosecutors: Stop Stealing Vehicles

Published On: April 7th, 2014

Minnesota is one of many states that have laws giving the police and prosecutors the power to seize and ultimately forfeit a vehicle used by a repeat offender to commit a DWI. At first, this sounds like a reasonable, just goal. After all, the public must be protected from repeat offenders by taking away their means to put others at risk. However, there is new technology available in Minnesota that protects the public even better than forfeiture can: Ignition Interlock Devices (IID’s). This is a call to the Minnesota State Legislature to modify our existing DWI vehicle forfeiture laws in a way that will INCREASE public safety without needing to steal vehicles from individual offenders, innocent non-offender owners, and families.

First of all, let’s examine the circumstances that allow law enforcement and prosecutors to take vehicles away. Under current law (Minn.Stat. 169A.63), a vehicle may be forfeited if the offender is:

1. Convicted of a Second Degree DWI by having a combination of two of these factors: prior impaired driving offense within ten years (each prior within ten counts separately), testing at .20 or more, or having a child in the vehicle under the age of 16;

2. Convicted of a Second Degree Test Refusal by committing refusal to submit to testing while having one or more prior impaired driving offenses within ten years or having a child in the vehicle under the age of 16;

3. Convicted of a First Degree Felony DWI or Test Refusal (this happens if the person has three prior impaired driving incidents within ten years of the new offense or if the person has ever been convicted in their lifetime of a felony-level DWI or Criminal Vehicular Operation/Homicide);

4. Facing an impaired driving-related loss of license within ten years of two prior impaired driving incidents;

5. Convicted of a DWI or Test Refusal while the offender’s license is cancelled as inimical to public safety (this happens when a person has four DWI offenses in their lifetime over any span or if the offender has a third DWI offense within ten years of having their license reinstated after getting two DWI offenses within five years of each other); or

6. Convicted of a DWI or Test Refusal while the offender has a restriction on their driver’s license that forbids the use or possession of alcohol or controlled substances (this happens when a person whose license was cancelled as inimical to public safety fulfills the DMV requirements to get valid again).

While most of these categories are aimed at taking away vehicles from repeat offenders, it is important to realize that category 1 or 2 above can include a first time offender. For example, if a person refuses to submit to testing and had a child in the vehicle at the time of driving, or if a person tests at .20 or more and had a child in the vehicle at the time of driving. It is also important to note that the law allows the police and prosecutors to forfeit a vehicle even if the vehicle did not legally belong to the offender. They only need to prove that the offender was legally entitled to use, possess, or control the vehicle, without regard to whether the offender is even on the vehicle title. If a vehicle is jointly owned by an offender and someone else, the non-offender’s interest also is forfeited by law.

There can be no doubt that Minnesota’s DWI forfeiture law is harsh, as it was designed to be. However, consideration must be given to the rights of the individuals who are losing their personal property in these situations. According to the federal and state Constitutions, the government must balance the rights of the individual against the interests of the public to be safe. In its pursuit of public safety, the government must use the least punitive means to achieve that goal. This is where the current law in Minnesota fails. The law should be modified to allow for the return of vehicles to offenders and non-offending owners if they have an IID installed in the vehicle under the DMV’s Ignition Interlock Program. This solution protects the public AND protects the individual owner’s property interests.

Maybe Constitutional “technicalities” don’t bother you when it comes to DWI offenders (they should, but that is a topic for an entire other article). Well, aside from the Constitutional problems in Minnesota, the current law actually makes no sense when considered as a whole. In every single forfeiture category listed above, the offender will have their license revoked or cancelled. For those who have their license revoked, they will only be able to drive during the revocation period if they drive a vehicle equipped with an IID. For those who have their license cancelled, they will never be able to drive for the rest of their lives until they prove at least 3-6 years of continuous sobriety to the DMV (depending on number of previous license cancellations).

Here is where the real insanity begins. Guess how the DMV requires a cancelled offender to prove sobriety? By participating in the Ignition Interlock program and performing at least 30 ignition starts per month for at least three years (up to six years for repeat cancelled offenders). If the police and prosecutors are taking away a cancelled offender’s vehicle immediately upon arrest, how can that offender ever comply with the DMV requirement of proving sobriety with an IID? The cancelled offender must purchase a whole new vehicle. One law takes away a vehicle while another law requires the offender to obtain a vehicle.

The Ignition Interlock program is already expensive enough without forcing someone to buy an entirely different vehicle. An individual must prepay the $680 reinstatement fee to the DMV, pay approximately $150 to have the IID installed, and obtain prepaid auto insurance on the vehicle being used for the program. It actually becomes a cheaper option for the cancelled offender to obtain a new “beater” vehicle and drive it illegally, which many people feel they need to do to stay employed and provide for their families. Many of these people get caught and the subsequent time and resources used to convict, supervise and/or jail them is astronomical. The system is broken, and it can be easily fixed. Many of these repeat offenders would be able to afford the Ignition Interlock program if they didn’t have to go out and buy a whole new vehicle first. Stop stealing vehicles when it isn’t necessary anymore to protect the public.

Finally, the most powerful opponents of drunk driving agree that IID’s prevent drunk driving and increase public safety. MADD has stated that less than 1% of participants in an Ignition Interlock program reoffend, which is phenomenal. See http://www.madd.org/drunk-driving/state-stats/Minnesota.html. It is not often that a DWI defense attorney can cite to MADD in support of something, but this is an easy example. Heck, even our own State Representatives encourage individuals to participate in the Ignition Interlock program: a law passed a couple of years ago allows a judge to ignore the mandatory minimum jail penalties for repeat offenders if the judge makes it a condition of probation that the offender only drive vehicles equipped with an IID. See Minn.Stat. 169A.275, subd. 7. Many offenders whose vehicles are stolen by the police cannot afford to go out and buy a new vehicle to give them the chance to avoid that mandatory jail time–they simply must serve the time. How fair is that? If our State Representative want to encourage repeat offenders to participate in the Ignition Interlock program, then stop allowing the police and prosecutors to steal vehicles away from these offenders.

Minnesota’s current law denies repeat offenders (and some first time offenders) with the means to participate in the Ignition Interlock program by allowing the police and prosecutors to steal the vehicle upon arrest. While “steal” may sound like a strong word, what other word can describe this behavior given the Constitutional issues involved, the inconsistent legal requirements from the DMV, and the safety reality of vehicles equipped with IID’s? It’s time for the Minnesota State Legislature to update this arcane law and STOP law enforcement from unnecessarily stealing vehicles from offenders. The public is better served by participation in the Ignition Interlock program, which gives repeat offenders the means to safely continue working, attending treatment/AA, and complying with other court orders. It provides a positive incentive to repeat offenders to maintain sobriety while avoiding the devastating financial loss of forfeiting their vehicle. And don’t forget, it allows innocent non-offenders (usually spouses or parents) a means to keep their vehicles as well.

If you agree with this article and want your State Representative to support legislation that protects the public, encourages sobriety, and allows individuals to keep their property, contact your State Representative today with this link: http://www.gis.leg.mn/OpenLayers/districts/.  Type in your zip code, then click the links for your State House and Senate members for their email addresses and phone numbers. Send them a link to this article and let’s make a difference.

Derek A. Patrin
Ethan P. Meaney
Meaney & Patrin, P.A.
derek@dwiguys.com
www.dwiguys.com

DWI Guys Win DWI Appeal on Illegal Entry

Published On: February 11th, 2014

Ethan Meaney of the DWI Guys at Meaney & Patrin scored an impressive reversal victory today at the Minnesota Court of Appeals. The issue appealed concerned whether the arresting officer made an illegal entry into the Defendant’s home while investigating a possible DWI. The District Court had ruled against our client and he had given up hope of victory, but eventually he decided to appeal the decision after consulting with Ethan about the issue and chances of success. This turned out to be the right choice, as Ethan convinced the Court of Appeals to reverse the DWI conviction and remand it to the District Court. You can read the decision here: http://www.mncourts.gov/opinions/coa/current/OPa130506-021014.pdf.

The factual scenario was somewhat unique, although officers are always trying to push the envelope when it comes to privacy and individual rights. In this case, the investigating officer came to the Defendant’s address after finding a vehicle registered to him parked in the middle of a nearby intersection with nobody present. After knocking on the front door, the Defendant’s father answered the door and was unsure about whether the Defendant had come home yet that night. He told the officer he was not sure, and the officer asked the father if he would go check inside the house. After he left the front screen door, which closed behind him automatically, the officer entered the home and walked far enough inside to look down the stairway (about 6-10 feet inside the home). The officer claimed that the screen door was left open, which he assumed was a non-verbal invitation to come inside the house. The officer also testified it was cold outside with snow on the ground, leading him to assume that the father would have invited him inside. Plus, the officer testified that it was his “common practice” to step into a home in these situations.

The Hennepin County District Court ruled in favor of the State because the judge felt it was reasonable for the officer to assume that he had non-verbal consent to enter the home, but the Court of Appeals reversed that decision noting a lack of evidence in the record to show that the Defendant’s father gave the officer consent to enter the home. The District Court did not make a specific finding about whether the screen door was closed or open when the officer entered, and the officer did not testify about any specific verbal or non-verbal manifestation of consent from the Defendant’s father to authorize entry into the home.

This victory is just one example of how the DWI Guys can use constitutional issues and other procedural issues to challenge the State’s case. We continue to hold officers to their duty to uphold the constitution when they conduct their investigations, and to compel prosecutors to actually prove their cases against our clients. While major victories like this one are hard to come by, the seasoned strategies followed by the DWI Guys give you the best chance to eliminate or minimize the penalties and long-term effects of a DWI arrest.

DWI: Are You Guilty?

Published On: February 8th, 2014

Nobody supports the idea of drunk driving, and nobody wants a DWI on their record, yet thousands of Minnesota drivers are arrested every month for DWI. Depending on who you ask, anywhere between thousands to tens-of-thousands more drunk drivers “get away with” committing DWI without being pulled over or arrested. Almost every year, the Minnesota Legislature increases the penalties for drinking and driving, and our appellate courts whittle away individual rights to make it easier and easier for the police to gather evidence from DWI offenders, which gives prosecutors easy convictions in court.

We all know this is happening, yet the number of DWI offenders stays relatively consistent every year. The Minnesota Department of Public Safety has stated for years that one in seven Minnesota drivers has at least one DWI on their driving record. Now you find yourself facing a DWI charge, license revocation, and possibly license plate impoundment and vehicle forfeiture. You probably feel regretful, ashamed, and embarrassed. You probably also feel hopeless and helpless to do anything about it. After all, aren’t you guilty?

Stop right there. Dealing with the aftermath of a DWI arrest should not start with the idea that you are “guilty” of the offense, even if you feel like you are. You can make the decision to never drink and drive again without pleading guilty to the DWI. What you really need to do now is develop a plan of action to deal with, minimize, and possibly eliminate the penalties you are facing.

The experienced DWI defense attorneys at DWI GUYS have your plan of action ready. In the short term, we may be able to postpone your license revocation and license plate impoundment. We have critical suggestions for actions you can take to be proactive and put yourself in the good graces of the prosecutor and the court. We will immediately begin gathering the evidence needed to develop your defense strategy. We will prepare and file the legal documents in court that are necessary to preserve your right to challenge the license revocation, license plate impoundment, and vehicle forfeiture.

Why put this plan into action if you think you are guilty? Because we get great results even for people who are guilty of their DWI. Our philosophy starts with the goal of making every effort to find some way to beat your case. This can be done if evidence is suppressed due to constitutional or procedural issues. If the evidence in your case cannot be suppressed despite our best efforts, the process of making these challenges will weaken the case and create additional leverage for negotiation with the prosecutor. The consequences (short term and long term) of a DWI conviction are so great that it is worth it to hire the best representation possible to try to eliminate or minimize these penalties. Some of the best results we have achieved in our careers defending DWI cases have come in cases where it was obvious that our clients were guilty.

Give us a call today and find out what we can start doing for you right away. You should not face this challenge alone and we have the tools to help you manage whatever penalties may be left when the process is said and done.

The McNeely Case & Its Impact on Minnesota DWI Law

Published On: May 8th, 2013

On April 17, 2013, the U.S. Supreme Court issued a landmark decision of Missouri v. McNeely. This decision has the opportunity to have a direct impact on Minnesota DWI law in years to come. While the extent of the impact is not yet known, we will be arguing that that this decision could be the death knell for Minnesota’s harsh Test Refusal criminal statute. We also believe that this decision will change the way police officers conduct testing procedures during DWI arrests, although the early response from prosecutors and law enforcement is that the McNeely decision only applies to blood tests taken without the driver’s consent. If you are facing a DWI or Test Refusal charge, contact our office at (612) 333-3636 to discuss how this case will help your defense.

Meaney & Patrin has recently been using this issue in criminal DWI cases to assist with negotiation of favorable outcomes. Now that we have the decision, we will continue to aggressively apply it to many of our pending and future cases to seek out favorable reductions in charges and/or penalties. We anticipate conducting contested hearings in various counties throughout Minnesota in an effort to lead the charge in the wide application of the McNeely decision to all DWI and Test Refusal cases.

Why does the McNeely decision have such a profound impact on Minnesota specifically? It is helpful to review a little bit of recent history to understand why. The broad issue addressed by the McNeely decision is whether an officer is conducting a “search” protected by the Fourth Amendment of the U.S. Constitution, and if so, does the officer need a warrant to conduct that search? Defense attorneys waged this battle for years until the Minnesota Supreme Court issued the decision in State v. Shriner in 2008. The Shriner case involved an officer’s blood draw from an individual without her consent after she had been in an accident with injuries and was suspected of being impaired. The driver argued that the blood draw was an illegal search performed without a warrant and without her consent. The Minnesota Supreme Court held that the natural dissipation of alcohol in the driver’s bloodstream created a “single factor exigency” that justified the search being conducted without a warrant.

The Court was careful to limit its holding only to situations involving accidents with injuries:

“Consequently, we conclude that when officers have probable cause to believe a defendant has committed the offense of criminal vehicular homicide or operation under Minn.Stat. § 609.21, it is important that the defendant’s blood be tested within 2 hours of the accident causing injury to or the death of another. With every passing minute, the most probative evidence of this crime is subjected to destruction by the body’s natural processes. The rapid, natural dissipation of alcohol in the blood creates single-factor exigent circumstances that will justify the police taking a warrantless, nonconsensual blood draw from a defendant, provided that the police have probable cause to believe that defendant committed criminal vehicular operation.”

After that decision was released, defense attorneys continued to argue that warrants were needed in more “routine” DWI investigations that did not involve injuries. Prosecutors and law enforcement disagreed and sought to extend the analysis of the Shriner decision to all DWI investigations. Eventually, the Minnesota Supreme Court sided with the prosecutors in the decision of State v. Netland in 2009. The Netland case was a criminal Test Refusal case where the driver challenged the constitutionality of the Test Refusal criminal statute. The basic argument was that it was unfair and unconstitutional for the State to threaten a driver with criminal sanctions for refusing to submit to a search of the driver’s alcohol concentration, because an individual has the right under the Fourth Amendment to refuse to consent to a search and force the officer to get a warrant. The only way the State could avoid having the Test Refusal criminal statute being found unconstitutional was if the State could convince the Minnesota Supreme Court that a warrant is not needed in a routine DWI investigation. They argued that the limited “single factor exigency” warrant exception from the Shriner decision should be extended to ALL DWI investigations, not just DWI’s involving injuries, and the Court agreed.

With the release of the Netland opinion in 2009, the search warrant argument died in Minnesota DWI cases. Officers were authorized in every DWI situation to conduct the search for alcohol concentration without even attempting to get a warrant. Defense attorneys strongly disagreed with the Shriner and Netland decisions, but those cases were the law of the land in Minnesota. But the case of Missouri v. McNeely tackled the issue of whether the natural dissipation of alcohol in the bloodstream, by itself, should be a “single factor exigency” that justified bypassing the search warrant requirement in all DWI cases. The Missouri Supreme Court decided that this single factor should not be enough by itself to absolve officers from getting a warrant. The Missouri Supreme Court also noted the split of authority on this issue in a few different jurisdictions across the country, including the Shriner and Netland cases in Minnesota. The prosecutors asked the U.S. Supreme Court to review the issue, and it agreed to do so.

On April 17, 2013, the McNeely decision was released and it held that the natural dissipation of alcohol in the bloodstream is not automatically enough to bypass the search warrant requirement in every DWI situation. Rather, the State needs to prove that the totality of the circumstances of an individual case created enough of an exigency to justify conducting the search without a warrant. This was the result that DWI defense attorneys had been arguing for in Minnesota before the Shriner and Netland decisions came out! The McNeely decision overturns the holdings in Shriner and Netland, leaving a void to refill with more litigation from both sides. While the McNeely case involved a blood test conducted without a warrant and without consent, the principle has now been made clear that the natural dissipation of alcohol in the body is not enough by itself to justify a warrantless search for alcohol concentration after a DWI arrest is made. It is also clear that the search warrant analysis always applies in any DWI investigation, and the State must prove that an exception to the warrant requirement was present if an officer conducts a search without a warrant.

Prosecutors are scrambling to limit the holding of McNeely to only nonconsensual blood test cases, which are rare in Minnesota. Officers have been advised to continue with business as usual, a risky gamble that could lead to even more litigation moving forward while the two sides hash out the extent and scope of the McNeely decision in Minnesota. Remember in the Netland case when prosecutors asked the Minnesota Supreme Court to extend the limited Shriner holding to ALL DWI cases? Now they are arguing for the exact opposite, that the McNeely case should be strictly limited to nonconsensual blood test only, even though the McNeely case has no language expressly limiting it like the Shriner decision had. It is important to note that the U.S. Supreme Court has specifically stated in a previous case that blood, breath and urine tests are all protected searches under the Fourth Amendment because each type of test involves intrusion into the body or invasion of personal privacy. The McNeely case only mentions the intrusion of a blood draw because the facts of McNeely only involved a blood draw. There is no language expressly limiting the McNeely holding to nonconsensual blood tests only.

Prosecutors also argue that most alcohol content searches are only conducted after the driver consents to the search, which is another exception to the warrant requirement. This is where things get really interesting in Minnesota specifically. As mentioned earlier, Minnesota is one of only a handful of States with a criminal sanction for refusing to submit to an alcohol concentration test. Minnesota law requires officers to inform drivers of this criminal penalty just before asking the person to submit to the test. Given Minnesota’s unique criminal sanction, defense attorneys have argued that any “consent” given after being threatened with a crime if consent is withheld should not be considered valid voluntary consent for the officer to conduct the search. It is easy to see why this “consent” is not freely given when you consider the same legal framework applied to a search of a person’s home. If an officer came to your front door and informed you that refusal to allow a search is a crime, then asked for your consent to search, there is no way that anyone would consider that “consent” to be voluntarily given.

Back when the Shriner and Netland decisions were pending, prosecutors had already tried to use the consent angle to convince the courts that a search warrant was not needed in DWI cases. Rather than using consent to justify these warrantless searches, the Minnesota Supreme Court purposely left the consent argument for another day and used the “single factor exigency” angle instead to justify the warrantless searches. Now that the McNeely case has nullified the single factor exigency standard, Minnesota goes back to square one. Prosecutors are returning to their old arguments, as are defense attorneys, regarding the quality of the consent given prior to conducting these warrantless searches. How the appellate courts will interpret this issue remains to be seen, but Meaney & Patrin will be leading the battle.

Another note should be mentioned here about Minnesota’s Test Refusal crime. Now that the McNeely decision has made it clear that the search warrant analysis of the Fourth Amendment applies to all DWI arrests, shouldn’t an individual have the right to refuse to submit to a search and thereby force the officer to obtain a search warrant? Under current Minnesota law, an individual who refuses to submit to the search is charged with the crime of Test Refusal and DWI, and the officer makes no attempt to get a warrant at all. The refusal to submit to the search is the final step in the process and the search is simply never conducted because the officer can fall back on the (usually) more serious criminal charge of Test Refusal instead of respecting the individual’s exercise of the Fourth Amendment right to be free from warrantless searches. Will the criminal Test Refusal statute continue to be found constitutional in the face of the McNeely decision? Again, this will be another major battle that Meaney & Patrin will be fighting across the State of Minnesota. The road ahead will be interesting, and hopefully the rights of the individual will be strengthened when the dust settles in Minnesota this time.