Michael Scott's DWI

Start Back at One

There may be have a streak of 15 straight jury trial wins in Milaca that ended on a traffic case. However, what happens when you fall off of the horse? You get back on and win a case where someone allegedly swung a hammer. Sultry Smooth R&B singer, Brian McKnight created a formula to help in situations like this. By counting to four and then starting over again at one. Maybe the lofty heights of 15 will not be reachable again. But 16 out of 17 or 94% is not bad. That is higher protection than J&J, Pfizer and Moderna.

Back at one.

When you are 15….

Have you seen those old weekend update bits where Stefan tells Seth Myers about this club that had everything…..Then he bites his nails and rattles off some crazy stuff like, “Inside it’s just everything: lights, pyschos, Furbies, screaming-babies in Mozart wigs, sunburned drifters with soap sub beards.” That was basically, the State’s case. Everything. The outlook wasn’t brilliant for the trial streak last week.

Like Stefan, the State had: DNA on a cup, fired up witnesses, rope, half of the police officers in the state, Facebook messenger, a pinged cell phone and maps. So many maps. I got zero offer. Maximum sentence under law was the offer. The streak was looking as bleak as a period drama on PBS. But that’s why you try the case. Start planting those seeds of reasonable doubt early in hopes they will germinate during closing argument. So what happens when a prosecutor’s dream case runs against a 15 win streak? The immovable object versus the irresistible force.

Not guilty on the kidnapping. Not guilty on the aggravated robbery. Not guilty on the assault in the second degree. Not guilty on the False Imprisonment. 40 year/1200 month offer, down to zero. Zero months.

15. The streak is still alive.

Milaca Miracle

No one thought the Vikings were going to beat the Saints. They were down 24-23 with 61 yards to go and only 25 seconds. Former Quarterback Case Keenum threw a 27-yard pass to former Wide Receiver Stefon Diggs. Saints Safety Marcus Williams fell down and Diggs raced to the end zone sealing the Super Bowl Win for the Vikings. Just kidding it was only a playoff game, but exciting nevertheless. Schools were Skol clapping all over the State for the next week before the Vikings lost to Nick Foles and the Eagles. But the Eagles fans were really mean to the Vikings fans, so who really won? How does this relate to Milaca, you ask? In no way whatsoever. Except Stefon Diggs wore number 14. Chris Sailors has now won 14 trials in a row in Mille Lacs County. Is this a Milaca miracle? Possibly, because no one thought someone would win 14 trials in a row just like the Minneapolis Miracle. However, the Minneapolis Miracle involved breathtaking athleticism and grace. The Milaca Miracle involves dumb analogies and a lot of play acting.

Trial Win the 13th

Some people say the number 13 is unlucky. There are hotels without a 13th floor. One of the oldest legal documents in the world, the Code of Hammurabi, reportedly omitted a 13th law from its list of legal rules. And of course, Jason Voorhies. The number is not unlucky for SailorsAllen Law, as Chris Sailors, won his 13th straight trial in Mille Lacs County this week. [footnote: one of those trials was reversed by the court of appeals after a guilty verdict – still counts]. So if you get pulled over on the 13th of the month, you think you have no luck and you will be found guilty, call the attorneys at SailorsAllen. Maybe you can be the 14th straight W.

12th Straight Win

It has been since August 24, 2018, since the last blog. Somehow the legal community has continued to press forward in the absence.

However, I write today to discuss a streak. Joe DiMaggio once went 56 straight games with a hit. Chris Sailors has not done that. However, he has gone 12 straight trials in Mille Lacs County without an L. This streak dates back to early 2019. It includes 11 jury trials and 1 court trial. Another was found guilty by a jury and then subsequently reversed by the Court of Appeals. Still counts.

So next time you need to hire an attorney, ask them if they have won 12 straight trials. If the answer is no, you know where to go.

DWI Refusers….Unite!

It has been a little bit since the last blog so here are some updates.  Paul Manafort was not the only person this week some counts declared a mistrial.   We had an Ineligible Person in possession of a firearm hung jury where it was science versus belief.   Those type of sweeping arguments have never been made before so it was nice to argue such a noncontroversial subject matter to a jury of 12 people.

Also, in more important news…a prosecutor who was listening to my client’s jail phone calls had admitted my client told the person on the other line that he has the best attorney north of the cities.  One, I am flattered.   That is a very nice thing to say.   Two, what does the Twin Cities have that is so special?

Next, the MN Supreme Court ruled on what the kids like to call “dick pics.”  We are too classy here to refer to them as “DP’s” so we will call them genitalia paraphernalia.  In State v. Decker, the MNSC said Decker could be charged with Indecent Exposure and 5thDegree Criminal Sexual Conduct for his genitalia paraphernalia.  You don’t know to be in the same place, just the same cyber space.    So don’t pretend before you hit send.

The biggest news is what the MN Supreme Court did on Wednesday.  The case was State v. Johnson and they applied new law that can be retroactively applied to old DWI refusals.   They got there by looking at three decisions.

The Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160 (2016), and MNSC’s decisions in State v. Trahan, 886 N.W.2d 216 (Minn. 2016), and State v. Thompson, 886 N.W.2d 224 (Minn. 2016), created a class of people who could not be prosecuted for refusing an unconstitutional blood or urine test.

So a bit of history, Birchfield consolidated three cases.   The bottom line was the State could not ask for a blood test without a warrant but they could ask for a breath test because a breath test was a search incident to a lawful arrest.   The reasoning behind this is, blood and urine tests are far more personal than a breath test.  For example, someone could find out pregnancy or disease through a blood or urine test.  Breath tests just involve the presence of alcohol and Hardees.

Therefore, a refusal to unconstitutional blood or urine test cannot be valid since the police would have to get a warrant.   So you cannot be prosecuted for refusing something unconstitutional.  So in order to get a DWI for refusing a blood or urine test the police need to get a warrant or show exigent circumstances, that they could not a warrant and the natural dissipation of alcohol in the bloodstream.  For example, if a person is in a hospital and going to be airlifted.  Thompson and Trahan, affirmed those rulings for the State.

So anyone who challenged refusals on blood or urine would have won while those case were being litigated, but what about the people before?   What about the guy who is in prison for refusing a blood or urine test?  Or the girl who is on probation for 4 more years for refusing a blood or urine test? Or someone who had an attorney who didn’t challenge the constitutionality of a blood or urine refusal?

The court said this following:

“The Birchfield rule does not merely regulate the manner in which a defendant is determined to be guilty or not guilty. The rule instead changes who can be prosecuted for test refusal. Prior to Birchfield, Minnesota statutes provided that persons could be convicted of test refusal if they “refuse[d] to submit to a chemical test of the person’s blood, breath, or urine.” See Minn. Stat. § 169A.20 (2016). But under the Birchfield rule, persons may be convicted of test refusal only if they refuse to submit to a breath test or if they refuse to submit to a blood or urine test when the police have a search warrant or a valid exception to the warrant requirement applies. Because of the Birchfield rule, those drivers who refuse to submit to warrantless blood or urine tests cannot be prosecuted unless the State proves that an exception to the warrant requirement applies. If no exception is proved, these drivers then are beyond the power of the State to punish.”

Retroactive.

This does not happen often.  So if you or anyone you knew pleaded guilty or got found guilty for refusing a blood or urine test since…forever…you should contact the law offices of SailorsAllen Law. The best attorneys…not in the Twin Cities.

This is a watershed moment.  The floodgates are open.   Luckily we are talking about urine refusal floodgates.

 

 

 

Technicality Reality

The last couple of weeks we have talked about more interesting topics.    We have talked about a defendant who concealed drugs in dark cavernous places.  We have talked about a South Dakota Deputy who expanded the scope of the stop to a drug investigation because the driver was driving too well.  Sometimes you have to eat your vegetables.   Sometimes if there is nothing funny you need to talk about people getting off on technicalities.

In this case, the juvenile was placed on probation on August 16, 2016 and violated probation a bunch of times.   The PO filed a violation on May 30, 2017.   That is within 360 days, right?  For all your calendaric scholars.    The juvie gets hit with consequence after consequence  and gets placed on indefinite probation, right? Wrong.  He got nothing and the State has to like it.  Actually, they don’t have to like it.  It just reminds me of the Spaulding from Caddy Shack scene.

Here is why they don’t like it:

Minnesota Statutes section 260B.198, subdivision 7(a). The statute states:

When it is in the best interests of the child to do so . . . the court may continue the case for a period not to exceed 180 days on any one order. The continuance may be extended for one additional successive period not to exceed 180 days, but only with the consent of the prosecutor and only after the court has reviewed the case and entered its order for the additional continuance without a finding of delinquency.

Minn. Stat. § 260B.198, subd. 7(a) (emphasis added). The same requirements are stated in Minnesota Rule of Juvenile Delinquency Procedure 15.04, subdivision 4(B).

Because the district court imposed two 180-day continuances without adjudication, the defense attorney, said the court had no jurisdiction over the juvie because the judge did not review the case and order another 180-day continuance without a finding of delinquency.

The COA agreed said the questioned statute is unambiguous.  It plainly limits a court to only issue one continuance, up to 180 days, and requires a court’s review prior to extending that continuance for another 180 days. See Minn. Stat. § 260B.198, subd. 7.

Here, the district court continued the case without adjudication for two 180-day periods at the initial disposition proceeding and failed to review the case within the first 180-day continuance to extend the continuance an additional 180 days. The district court did not comply with the plain language of the statute.

The district court acknowledged its mistake, stating “this Court’s dispositional order, which continued the case for one year without a finding of delinquency, did not comply with the precise requirements of Minn. Stat. § 260B.198, subd. 7.” (Emphasis added.)

Therefore, probation is over.  The juvie and justice…both win.

 

 

 

 

Sit up Straight or Go to Jail

It is not often we review North Dakota cases but when cases get sent to us by “friends of the firm,” we have to review them.    North Dakota has no precedential value on Minnesota courts but they can be persuasive.  They are considered a “sister court” to Minnesota but it is more like a step sister.  Until they do something like this and totally redeem themselves.  Here is what happened.

Nhia Lee and Bee Thor were driving through the North Dakota presumably counting power lines when they got pulled over.   (Side note:  The name Bee Thor rules.    It would only be cooler if Praying Mantis Loki were in the car as well).   They got pulled over by a Stutsman County Deputy Matt Thom.  They were traveling 2 miles below the speed limit.   A faster car pulled in front of their truck and apparently their truck did not slow down “enough” (underneath the speed limit) so they were following too close.   So they got pulled over.

When the Deputy approached the truck, he noticed Lee was sitting “too rigidly,” had a “suspiciously” tight grip on the steering wheel, and Lee did not turn to look when the deputy drove past.  Thom followed the pair for 12 miles before pulling them over.  So because of this horrible posture, he decided to search the car.   Deputy Thom found 476 pounds of the Colorado Cotton (I don’t think that is a term).  However, our story does not end there.

Judge Jay Schmitz ruled that Lee’s, apple on the head, posture, firm grip, and decision to focus on the road rather than to gaze Thom, did not constitute probable cause to pull him over.   Schmitz called the prosecution’s argument “absurd” and Thom’s testimony “too inconsistent and contrived to be credible.” The evidence was suppressed during the stop could not be used at trial.

Stutsman County State’s Attorney Fritz Fremgen is unsure if he’ll appeal the ruling. The fate of the weed is up in the air.   The could just put out in front of a 7-11 and write “free” on it.   So feel free to cross state borders and grab that wheel as hard as you want.

Mr. Brown’s Anus

So you have been arrested by the police and they have a suspicion you have drugs up your butt.  What happens next?   Luckily, the MN COA published a case that answers this cavernous question once and for all.   The case is called State v. Brown, but could possibly be called, State v. Green, depending if asparagus was consumed prior.    Here are the sticky facts.  Minneapolis PD arranged for a Confidential Informant.  After the transaction was complete the police observed Brown reaching down his pants.  They believed he was trying to conceal something.  I would argue he didn’t wipe very well.  At the police station, police observed Brown “grinding his buttocks” against his chair in a back and forth motion.  Again, I would argue that he was twerking.

Brown then stood up, straddled the chair rail, and ground his butt cheeks into it. An officer told Brown to stop, believing that he was “attempting to jam narcotics up his rectum.” Then the officer observed Brown “taking his hands and shoving . . . kind of between his legs, shoving upwards.”  The officer believed that Brown was trying to insert something into his rectum.  A strip search revealed clear plastic sticking out of Brown’s anus. Again, back to the single ply toilet paper argument.

The officers applied for a search warrant and took Brown the hospital.  In the emergency department, Christopher Palmer, M.D., performed an external body search and did not see anything protruding from Brown’s anus.Dr. Palmer offered Brown a liquid laxative, but he refused it. After consulting the hospital’s legal counsel, Dr. Palmer declined to administer a laxative or perform any procedure to remove the suspected narcotics without Brown’s consent.

Police then applied for and obtained a more specific search warrant from the same district court judge who had granted the first warrant. The second warrant expressly authorized hospital staff to “use any medical/physical means necessary to have Brown vomit or defecate the contents of his stomach or physically by any means necessary remove the narcotics from the anal cavity so Officers can retrieve the narcotics.” Police transported Brown to the emergency department at Hennepin County Medical Center (HCMC) ( to hopefully a more liberal anus removal facility), where Paul Nystrom, M.D., reviewed the warrant and consulted the hospital’s legal counsel about his rights and obligations.  Dr. Nystrom understood the warrant to authorize the removal of the narcotics through any medically reasonable means but not to compel him to act if he was ethically opposed. His assessment was that leaving cocaine in the rectum had the potential to cause serious complications or death, but that no medical emergency existed at the time.

Dr. Nystrom offered Brown four options to remove the suspected narcotics: (1) Brown could remove the bag himself, (2) Dr. Nystrom could administer an enema,1(3) Dr. Nystrom could sedate Brown and perform an anoscopy, or (4) Dr. Nystrom could put Brown on a ventilator and insert a nasogastric tube to deliver a laxative that would“eventually clear his bowels.” After explaining the different procedures and associated risks, Dr. Nystrom recommended options one or two. Dr. Nystrom told Brown that if he did not select an option, they would proceed with a sedated anoscopy. Brown remained silent.   Remember that 5th amendment here, kids.

Dr. Nystrom elected to proceed with the third option—sedation and anoscopy. Dr. Nystrom concluded that, absent Brown’s cooperation, anoscopy was the safest and most conservative means of removal. He described the procedure as the insertion of a speculum in the rectum to allow inspection of the four quadrants. The procedure is typically done to look for internal bleeding or hemorrhoids, but can also be used to remove a foreign body. Dr. Nystrom explained that the speculum is “like the size of a large bowel movement, so it’s not comfortable,” but it allows visualization of “whatever it is you’re worried about.” The procedure takes “a couple of minutes,” and then the speculum is removed. He testified that although sedation is not always required for anoscopy, relaxation makes the procedure, “less painful, less uncomfortable.”

After another medical doctor sedated Brown intravenously with Propofol, Dr. Nystrom inserted the anoscope and conducted a visual inspection, but he did not immediately see anything. Taking a second look, he saw the edge of a plastic bag. Using Magill forceps, Dr. Nystrom removed the bag and handed it to police. Later testing confirmed that the bag contained 2.9 grams of crack cocaine.

The state charged Brown with fifth-degree crack-cocaine possession under Minn. Stat. § 152.025, subd. 2(a)(1) (2014). Brown moved to suppress the evidence, arguing that the procedure by which the cocaine was removed violated his constitutional right against unreasonable searches and seizures.

Here is the law:

Winston articulates three factors that courts should consider when determining whether a medical-procedure search is reasonable: (1) “the extent to which the procedure may threaten the safety or health of the individual,” (2) “the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity,” and (3) “the community’s interest in fairly and accurately determining guilt or innocence.” 470 U.S. at 761-62, 105 S. Ct. at 1617-18.

  1.  Dr. Nystrom testified that it was safe and the equivalent of a large bowel movement, which can sometimes be relieving.
  2. The district court properly determined that “the procedure was demeaning, humiliating, and an infringement on Brown’s dignitary interests.” This factor favors a conclusion that the procedure was unreasonable.
  3.  The district court found that the community has a strong interest in prosecuting those who sell illegal drugs on street corners. Brown does not dispute this finding.  Significantly, unlike in Winston, the evidence sought here was the state’s only direct evidence of crack-cocaine possession.

    After balancing the three Winston factors, the COA conclude that the district court properly determined, in a comprehensive and thoughtful decision (nice job Judge Hoyos), that the anoscopy procedure was reasonable under the circumstances.

    So there you.    The lesson here is drugs are bad but if you have them up your butt don’t act like a bear scratching an itch on a tree.

The Improper Etiquette for Leaving Voicemails for Judges

Nothing published by the MN Supreme Court and Court of Appeals so we are going to dive into unpublished cases.  This one involves leaving voicemails for Judges.  It is probably a bad idea to leave a voicemail for a Judge in general, but it is a really bad idea to do what Mr. Ivers did.

In early 2016, appellant Robert Phillip Ivers called a Hennepin County judge’s chambers to inquire about a case. D.J., the judge’s law clerk, answered the phone and told Ivers that his case had been dismissed.  Which is a good thing.  Ivers called again and asked to speak to the judge. D.J. answered again and told Ivers that attorneys and parties were not allowed to speak directly to the judge, but offered to relay a message.  Ivers decided to leave a few voicemails. The judge never listened to the voicemail but D.J. did.  DJ relayed the messages to the Sheriff’s Department and Ivers got charged with making Terroristic Threats.  A couple of years ago we blogged about a woman trying to get a call back from social services by leaving threatening voicemails who was charged with the same crime.   No one leaves voicemails anymore, just don’t do it.

Ivers’ voicemails were played for the jury during trial.   One night he left four voicemails.  Which is annoying to hear one and see that he is coming back for more.  The judge was identified as the intended recipient of the first two messages in which Ivers accused the judge of failing to do his job, insulted the judge, and used a great deal of vulgarity. Specifically, Ivers called the judge “a dead f-ck,” and threatened to put a woman who opposed him in his case “on the stand and . . . tear her f-cking c-nt out.

Ivers left a series of 12 voicemail messages a second night containing a barrage of vulgarities, insults, and accusations. Ivers threatened to make the judge “feel some pain”; he warned that he was “coming for” another judge; he cautioned the judges to “be on guard”; he accused the judicial system of “rigging . . . f-cking court cases”; and he stated: “[T]he whole Hennepin County f-cking judicial system, you’re f-cking corrupt, you pieces of f-cking garbage. You’re corrupt. And . . . we’re coming after you, you pieces of f-cking trash.” Transcribed, Ivers’s openly hostile messages left by voicemail filled more than ten pages and included more than 125 uses of the expletive “f-ck” or some variation of it.

So a total of 16 messages with 125 uses of expletive “f-ck,” or a total of 7.8 f bombs per message.  Again, Ivers got his case dismissed.  So lord only knows what he would have said if his case wasn’t dismissed.   So Ivers was convicted and he appealed the conviction for sufficiency of the evidence.

The statute he was convicted of Minn. Stat. § 609.749, subd. 2(5) (2014).1  The state was required to prove that (1) Ivers made or caused the telephone of another repeatedly or continuously to ring; (2) Ivers knew or had reason to know that this conduct would cause D.J., under the circumstances, to feel frightened, threatened, oppressed, persecuted, or intimidated; and (3) Ivers caused this reaction on the part of D.J. See id., subds. 1, 2(5).

He argued that he never intended for D.J. to hear the messages because they were intended for the Judge. That doesn’t help.  In State v. Hall, the COA stated that assessing whether the calls caused the victim to be frightened, threatened, oppressed, persecuted or intimidated required consideration of all the attributes of the calls. Id. at 858 (citing State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975) (explaining that words must be considered within the context in which they were used to assess whether they were threatening)).  The actor’s knowledge of the harassing nature of the calls could “be inferred from the content” of the messages, which were “personal, often vulgar, and contained veiled threats.” Hall, 887 N.W.2d at 858.

Ivers loses here.   He says he called at night to leaved unobstructed messages.  12 of them.  He also was vulgar to the whole “f-cking Hennepin County judicial system.” He should have called Ramsey County.   So Ivers loses, and of course he does.  This bears repeating but Ivers had his case dismissed.   Just be happy it it is gone and send a poop emoji to the chambers.   But leaving 16 messages with 125 f-bombs and threatening to launch a revolution against the whole judicial system from your couch is not the right play here.   Ivers don’t threaten anyone, especially judges and DJ’s.