Joel Heiligman is a Minnesota DWI lawyer.

Criminal Detention-Exhaust to Window

An officer observed a man in the driver’s seat of a running car with a garden hose extending from the exhaust pipe to the passenger window. The court finds the officer had probable cause to approach the car and make a DWI/DUI arrest because the  driver was in physical control of the car while under the influence.   Osowski   v.   Commissioner, A08-0875   (Ct. App. Unpubl.  05/19/09)

Criminal/ Waiver of Court

During a search warrant, the defendant asked to speak to his attorney.  The officer explained to the defendant that he couldn’t speak to his attorney at the arrest site and would have to wait until he was booked into jail. At that point the defendant said, “I’ll speak to you” and gave a recorded statement.  The Court finds the defendant waived his right to counsel and the officer made no error in admitting the defendant’s statement into evidence. State  v.  Rockett, A08-0286 (Ct. App.  Unpubl.  05/10/09)

DWI/DUI – Intoxilyzer Source Code

The Court finds that the District Court erred in refusing to order the disclosure of the Intoxilyzer source code where the petitioner/defendant submitted  documents from an expert witness. The Court finds that the information submitted to the District Court shows “that the source code used in a breath-test machine is capable of bearing on the accuracy of and reliability of test results produced by the machine.”  Abbott v.   Comm. 760 N.W.  2d 920  (MInn.  App  2009)  Bowen  v.  Commissioner,  A08-1267  (Ct  App.  Unpbl.  05/12/09)

DWI/DUI  Intoxilyzer Source Code

The Court finds that the District court abused its discretion by denying the driver’s request for discovery of the Intoxilyzer source code where the petitioner/defendant submitted affidavits generally demonstrating the possible problems with the source code of the Intoxilyzer.  Thompson   v.   Commissioner, A08-1240  (Ct.  App. Unpubl.  05/26/09)

DWI/DUI  Test Refusal Statutue

The Court decided that an officer was allowed to request a breath alcohol test of the defendant on the exigent circumstances  exception to the warrant requirement and therefore affirms the defendant’s DWI/DUI test refusal conviction, finding no viiolation of the defendant’s right to be free of unreasonable searches and seizures.   State   v.  Scofield, A08-1067  (Ct App. Unpbl. 05/26/09)

Criminal- Stop for Noise Complaint

Police were called for a noise complaint at about 1:00 a.m. and saw the defendant and two others standing in front of the residence. When the men saw the officer they began to run although the officer asked them to stop.  The Court finds the officer’s arrest was warranted because running away added to the suspicion .  State  v.  Karras, Jr., A07-1528  (Ct App. Unpubl.  03/03/09)

Criminal/ Traffic  Atv on Public Road

The Court determines that the offiers properly stopped the defendant for driving an all-terrain vehicle (ATV) on a county road where driving is prohibited.  State  v.  Juelson, A08-0549  (Ct App. Unpubl.  03/03/09)

Criminal/ Expsansion of Stop

During a lawful stop of the defendant’s vehicle for a traffic violation, the officer noticed the defendant was very nervous. Withing one minute the officer received a report of a suspicious vehicle that the officer believed may be the defendant’s vehicle.  The officer asked the defendant to step out of his vehicle. The nervous defendant began giving conflicting answers to questions.  The Court finds that each incremental and minor intrustion into the defendant’s liberty was justified by reasonable articulable suspicion.

Criminal/ Stop-Uncalibrated Radar

The Court finds that an officer had a lawful basis to stop a vehicle based upon receiving a 39 mile per hour reading even though the officer had not calibrated his radar that evening.  Chastek  v.  Commissioner, A08-0803  (Ct App. Unpbl. 03/31/09)

DWI/DUI  Enhancement – Alaska DWI

The defendant’s prior DWI conviction in Alaska that was based on a plea of no contest  was used to enhance the defendant’s current DWI charge to a first degree offense. The Court finds no error and finds the defendant waived his right to counsel.  The Court finds the defendant could not challenge the lack of a factual basis to support the plea and also finds that the license revocation could be used for enhancement. State  v. Skerjance,  A08-0065  (Ct. App. Unpubl.  03/03/09)

DWI/DUI – BCA Report Admissable

The Court agrees with a revocation of driving privileges in finding that a BCa lab report showing the driver’s alcohol concentration was admissable in an implied consent hearing under Minn. Stat 634.15 without violating the confrontation clause.  Hubbard  v.  Commissioner, A08-0714  (Ct App. Unpubl. 03/10/90)

DWI/DUI  PBT Results Admissable

Defendant was charged with first degree driving while impaired and refusal to submit to testing, and his PBT test results were admitted on the test refusal charge. The Court finds no error in admitting the PBT test results on the test refusal charge.  State  v.  Maiers,  A08-0216 (Ct. App. Unpubl. 03/10/09)

DWI/DUI  Refusal by Conduct

Although the officer repeatedly read the implied consent advisory to the defendant, the defendant continually interrupted, yelled, and used expletives.  The defendant stated he wanted his attorney present, yet when the officer asked if he wanted a lawyer, the defendant said, “Leave me alone”.  No breath test was received.  The Court finds the defendant’s behavior constituted a retraction of his request for counsel and a refusal to take the test.  State  V. Gerardy, A07-2161 (Ct. App. Unpubl. 03/17/09)

DWI/DUI  Physical Control – Sleeping

The Court agrees with the defendant’s conviction for DWI where the defendant was found alone, intoxicated and asleep behind the wheel of his vehicle parked in an assigned space in his apartment’s parking lot at 11:30 p.m.  His keys were found on the center console.  State  v.  Fleck, A08-0072  (Ct.  App 03/24/09)

DWI/DUI  PBT Results

Following defendant’s arrest for DWI and test refusal, he was taken to jail where he submitted to a preliminary breath test.  The defendant wanted to admit these test results to show he was not intoxicated at the time of his initial arrest.  The Court finds there was overwhelming evidence of probable cause to make the arrest.  State  v.  Mason, A07-2451  (Ct App. Unpubl. 03/24/09)

Partial Blocking Not Seizure

Westerham  v.  Commissioner

An officer received a report of a possible intoxicated person sitting in a vehicle in a bar parking lot.  The officer arrived in a crowded lot and parked close to the defendant’s vehicle, making it difficult, but not impossible for the vehicle to be backed out of the parking spot.  The officer did not activate his lights or give any other signal.  The Court affirms the District Court finding that the officer did not seize the driver of the vehicle and sustains the revocation of driving privileges resulting from the incident.

Second Detention

State  v.  Kellum

Defendant was a passenger in a vehicle that had been legally stopped. An officer smelled marijuana in the vehicle and found marijuana on the defendant’s person, and defendant was cited for possession of marijuana. Defendant was evasive when asked if he was staying in a nearby hotel. A key fob for a motel room was found in the squad car where the defendant was sitting.  The Court finds a sufficient articulable  suspicion to justify a brief additional detention to explore defendant’s connection with the motel known from drug activity.

Stop-Suspended Object

State  v.   Wruck

The Court affirms a District Court order finding that an officer saw a suspended object between the driver and the windshield, a radar detector attached to the windshield with suction cups, rejecting defendant’s argument that the officer could not have seen the object.

Requesting ID Not Seizure

State  v.  Pracht

An officer responded to a tip that some individuals were attempting to sell large quantities of new electronic equipment at a store that buys and sells such items. The officer went to the store, approached the defendant who fit the description, requested identification and asked some general questions. The Court finds that this encounter was not a seizure where the officer stood at a socially acceptable distance from the defendant and did not use any course of tone or behavior.

Illegal Seizure-No Suppresion

State  v.   Bettin

Police lawfully stopped a vehicle and arrested the driver.  The Defendant, a passenger. was seized by retaining her identification and her purse.  The Court indicates that this seizure was unlawful.  However, no evidence was recovered as a result of this seizure.  The drug evidence was recovered as a result of the lawful search of the car, independent of the defendant’s seizure.  The defendant’s conviction for fifth degree possission of a controlled substance is affirmed.

Speeding-Officer Opinion

State  v.  Holm

In a DWI case, the defense challenged the basis for the stop, asserting that there was no evidence of the testing of the radar.  The Court acknowledges that the radar evidence may have been inadmissible without the evidence about testing, but finds that the officer’s opinion based upon his training that the vehicle was speeding was sufficient to justify the stop.