Joel Heiligman is a Minnesota DWI lawyer.

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A07-1990

State  of Minnestoa,

Respondent,

vs.

Daniel L. Conley,

Appellant.

CONNOLLY, Judge

This case involves appellant Daniel Conley’s conviction of first-degree criminal sexual conduct and subsequent sentencing based on the aggravating factor of the presence of children during the commission of the crime.  After we affirmed his conviction, the supreme court decided 20 State v. Vance, 765 N. W. 2d 390  (Minn. 2009), and our decision was reversed on the issue of whether the district court erred when it imposed an upward sentencing departure based on the Blakely jury’s finding that the children were present in the home and remanded to this court for further proceedings.  Because we now conclude that the district court erred in the way it drafted the special verdict interrogatory, we reverse and remand for a new Blakely trial on the aggravating factor.

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A08-663

State of Minnesota,

Respondent,

vs.

Ronnie Duane Cartlidge,

Appellant.

WRIGHT, Judge

Appellant challenges the denial of postconvictions relief, arguing that (1) the district court abused its discretion by denying his petition for postconviction relief without an evidentiary hearing and (2) he received ineffective assistance of trial counsel.  We affirm.

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A08-1278

State of Minnesota,

Respondent,

vs.

Danny Kwami Barnes,

Appellant.

SHUMAKER, Judge

Appellant challenges his convictions, arguing that his waiver of counsel was constitutionally invalid.  Because the record does not reasonalby support a conclusion that sppellant’s waiver was intelligent and knowing, wew reverse and remand for a new trial.

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A08-1281

State of Minnesota,

Respondent,

vs.

Jason L. Jaqua,

Appellant.

MINGE, Judge

Appellant challenges the order requiring him to pay restitution in the amount of $13, 690. 02  Appellant argues that the amount of restitution awarded to the crime victim was unreasonable, that the district court erred in ordering appellant to pay restitution to crime victim’s adult son, and that the district court erred in failing to expressly consider appellant’s financial situation.  We affirm

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A08-1327

State of Minnesota,

Respondent,

vs.

Michael James Ferguson,

Appellant.

MINGE, Judge

Appellant challenges his conviction of eight counts of aiding and abetting second-degree assault and drive-by shooting and his sentence. Because we conclude that there was sufficient evidence to convict appellant of all counts and to corroborate the testimony of appellant’s accomplices, we affirm the convictions.  We further conclude that appellant was not sentenced in violation of his right to a jury trial.  But because the district court erred in failing to sentence appellant on the most serious offense, we remand for resentencing.

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A08-1569

State of Minnesota,

Respondent,

vs.

Ana Danira Hernandez-Maldonado,

Appellant

COLLINS, Judge

Appellant challenges  her conviction of aggravated forgery, arguing that the district court erred by denying her motion to suppress and by admitting evidence obtained as products of the unconstitutional search of her home.  We reverse and remand.

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A08-1785

State of Minnesota,

Respondent,

vs.

Joey Lamarr Lash, Appellant.

KALITOWSKI,  Judge

Appellant Joey Lamarr Lash challenges his conviction of misconduct of a public officer in violation of Minn. Stat. S609.43(2)   (2006).  Appellant argues that (1) a personnel rule contained in a city ordinance cannot lawfully constitute the basis for a criminal conviction of misconduct of a public officer;  (2) section 609.43 (2) is unconstitutionally vague under the due process clause of the Minnesota and federal constitutions; (3) appellant’s conviction of misconduct of a public officer, when coupled witha hung jury on the remaining theft-by-swindle charges, is perverse; and (4) the evidence was insufficient to support the conviction of a misconduct of a public officer.  Because a personnel rule contained in a city ordinance cannot constitute the basis for a misconduct-of-a-public-officer conviction, we reverse.

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A08-1847

State of Minnesota,

Respondent,

vs.

Cain Lee Wiskow

Appellant.

STAUBER, Judge

On appeal from his convictions of fleeing a peace officer and giving a false name to police, appellant argues that the district court abused it discretion by allowing testimony about the contents of a document found in his vehicle that he alleges was used to establish his identity as the driver of the vehicle. Appellant also contends that the district court committed plain error by (1) allowing testimony that police recognized appellant from prior contacts and that a warrant existed for appellant’s arrest and (2) providing the jury with a “reasonable doubt” instruction that was confusing and repetitive.  We affirm

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A08 2146

Perry Shawn Hardesty, petitioner,

Appellant

vs.

State of Minnesota,

Respondent

LARKIN, Judge

Appellant challenges the district court’s denial of his petition for postconviction relief.  Because the district court did not abuse its discretion by determining that appellant’s  challenge to the legality of his sentence is procedurally barred and by summarily denying his petition on this ground, we affirm.

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A09-0206

Ronald Mark Alstrup, petitioner,

Appellant

vs.

State of Minnesota,

Respondent

SHUMAKER, Judge

Appellant contends that the district court imposed an illegal consecutive sentence when it ordered that the second sentence commence upon completion of the first sentence rather than upon his release from prison, as provided by the sentencing guidelines.  Because the district court identified and relied upon sufficient  aggravating factors to support its sentencing departure, we affirm.

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Tags: aggravated forgery, appellant, criminal sexual conduct, drive-by shooting, fleeing a peace officer, misconduct of a public officer, waiver of counsel
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DWI/DUI  Source Code Disclosure

The Court reverses  a District Court order  sustaining a license revocation and remands the proceeding to allow the driver to proceed with discovery of the source code and assert any appropriate challenges.  Duncan  v.  Commissioner, A08-2237  (Ct. App. Unpubl.  08/04/09)

DWI/DUI – Alcohol Restriction Violation

The Court affirms the cancellation of the petitioner’s driving privileges for the use of alcohol in violation of a restriction where an officer detected the odor of  alcohol  on petitioner’s breath, observed that his eyes were bloodshot and watery and testified that the petitioner tried to manipulate the PBT test.   Igo  v.  Commissioner, A08-2257  (Ct. App. Unpubl. 08/04/09)

DWI/DUI – P.B.T.  – Basis to Give

The defendant admitted he had failed to notice that the motorcycle directly in front of him had stopped and had a turn signal on.  There was one indicator of intoxication on one of the field sobriety tests, sufficient basis to offer a PBT even though the defendant satisfactorily performed a second field sobriety test.  State  v.  Krinke, A08-1670 (Ct. App. Unpubl.  08/11/09)

DWI/DUI  – Basis for PBT

An officer stopped a vehicle for speeding then observed the driver’s eyes were bloodshot, his breath smelled of alcohol, and the driver admitted to having 4 alcoholic beverages.  The officer had a reasonable basis to expand the scope of the traffic stop to administer a PBT test and conduct a DWI investigation.  Prigge  v.  Commissioner, A08-1891  (Ct. App. 08/25/09)

Tags: Alcohol Restriction Violation, PBT, preliminary breath test
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Criminal – Expansion of Stop

In reversing a District Court suppression order, the Court finds that observations made by an officer justified expanding the original stop by asking for consent to search where the officer smelled alcohol and a chemical order. The defendant’s probation prohibited him from consuming alcohol and the appearance of one of the passengers was consistent with meth use.   State  v.  Ramirez A09-0301  (Ct. App. Unbubl.  08/04/09)

Criminal – Drug Arrest – Probable Cause

The defendant accompanied a woman who was just observed participating in a drug transaction. One of the participants stated that the defendant was present with the woman during prior drug transactions.  When the officer approached the vehicle he saw the defendant holding $160.00 in cash. The Court finds there was probable cause to arrest the defendant.  State  v.  Hollins, A08-0971  (Ct.  App. Unpubl.  08/11/09)

Criminal – Approaching Stopped Vehicle

Officers drove behind a truck that was behind a closed truck stoop.  The defendant exited the vehicle on his own and told the deputies he had too much to drink.  The Court finds there was no seizure until after the defendant had left his vehicle and spoke with deputies.  State  v.  Casey, A08-1345  (Ct. App. Unpubl.  08/11/09)

Criminal- Brake Lights – Littering

An officer observed a vehicle with the center light not working, and at the same time noted the defendant was littering.  The Court finds each offense constitutes separate, valid reasons to stop the vehicle even though the officer did not investigate the violations further.  State  v.  Beall, A09-0501  (Ct. App. 08/25/09)

Tags: Approaching Stopped Vehicle, Drug Arrest, Expansion of Stop, Littering
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DWI/DUI Enhancement Based on Revocation

Affirming defendant’s felony DWI conviction based upon Lothenbach stipulation, the Court finds that the State need not prove all the underlying circumstances relating to a prior revocation , just the existance of the revocation itself. The Court rejects the defendant’s argument of insufficient notice of the prior revocation where the officer simply placed the notice with the defendant’s possessions rather than hand them to him personally.  State  v.  Omwega, A08-1738  (Ct. App. 07/21/09)

DWI/DUI  Refusal – Deficient Test

The Court finds sufficient reason to continue  defendant’s conviction of test refusal. The defendant took “short, quick puffs” rather than “long, hard breath” as instructed, in spite of the fact that the defendant told the officer he had asthma. The officer did not observe any breathing difficulty.  State  v.  Therrien, A08-0219 (Ct. App. Unpubl. 07/28/09)

Tags: DUI test refusal, revocation
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Criminal/ Report from Ex-Wife

The Court finds that a report from the driver’s ex-wife that she believed the driver was “borderline drunk” along with an officer’s observations reasonable suspicion to stop the vehicle.  Freeman  v.  Commissioner, A08-1433 (Ct. App. Unpbl.  07/07/09)

Criminal – Curtilage of Residence

The Court agrees with a District Court order surppressing evidence of drugs found underneath a tree in the backyard on a property where there was a call to put out a fire.  The pine was about 15-20 feet outside the back door of the residence and an officer seized the bag without a warrant.  The Court finds that the State failed to establish that the bag was found outside the curtilage of the residence.   State v. Boman, A09-0061  (Ct. App. Unpbl. 07/07/09

Criminal/ Private Search – No Suppression

An assisting emergency room technician searched the defendant’s clothes for valuables and found crack cocaine.  The technician turned the crack cocaine over to the state trooper who was not present during the search.  The Court finds that this was a private search and there was no State action requiring suppression. State  v.  Harris, A08-0717 (Ct. App. Unpubl.  07/07/09)

Criminal/ Search Warrant-Informant

A confidential informant came to  officers and told them that the defendant used meth and sold controlled substances at his place of business.  Some of the information was confirmed and officers found amphetamine in garbage set out at the defendant’s home.  The Court finds probable cause  for a search warrant at the defendant’s place of business.  State  v.  Pederson, A08-1555  (Ct.  App.  Unpubl.  07/07/09)

Criminal/ Broken Taillight

The  Court finds that a broken taillight provided sufficient reason to stop the vehicle.  State  v.  Jorgenson, A08-0865  (Ct. App. Unpubl.  07/07/09

Criminal- Vehicle Stop Improper

An officer observed the defendant’s vehicle stopped behind a railroad crossing at 1:30 a.m.  After a few minutes the vehicle had still not moved.  When the officer exited the squad car the vehicle drove away and stopped at a nearby stop light. The Court finds that the officer did not have reason to suspect criminal activity and finds the stop improper.   State  v.  Jahnke, A09-0322  (Ct.  App.  Unpubl.  07/07/09)

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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)

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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.

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