DWI/DUI: Implied Consent in Minnesota
Unconstitutional
Impacts Minneapolis & Hennepin County Cases.

When the Minnesota Supreme Court decided the case of Feduziuk v.
Commissioner of Public Safety on May 19, 2005, Minneapolis DWI and DUI
lawyers took particular note. The case has had a significant impact on
the DWI laws generally, but in Minneapolis and Hennepin County
particularly. In Fedzuik, the Supreme Court of Minnesota struck down the
DWI and DUI laws as unconstitutional and violating Due Process since they
did not allow driver’s whose licenses were revoked for a DUI to challenge
that revocation by having a hearing within 60 days of their Petition for
Review.

Why this is particularly critical to Minneapolis DWI lawyers and DUI
cases is that in Hennepin county, including Minneapolis and its
surrounding suburbs, the court has implemented a system where a criminal
case must be completed before an Implied Consent revocation resulting
from the DWI can be scheduled. This almost inevitably places the hearing
outside of 60 days required by Fedzuik. As a result, Minneapolis and
Hennepin county DWI and DUI lawyers are quickly filing their requests for
Judicial Review of license revocation as soon as possible for cases in
Hennepin County. The end result is a rescission of the license revocation
and an erasure of the Implied Consent violation on the driving
record.

In Fedzuik, a driver who received a DWI and who had her license
revoked under Minnesota’s Implied Consent Laws brought
an action against Commissioner of Public Safety seeking declaration that
Implied Consent Law unconstitutionally violated procedural due process.
Specifically, the driver challenged changes in the Implied consent law
that occurred in 2003 and which eliminated the requirement that a
judicial review of any prehearing suspension of a driver’s license be
held at the earliest practicable date, and in any event, no later than 60
days following the filing of the petition for review.

The Supreme Court agreed stating that the prehearing revocation
procedures of Implied Consent Law, which did not provide for prompt and
meaningful review of driver’s license revocations, violated due
process.

The significant impact of this ruling on Hennepin county and
Minneapolis DWI and DUI cases continues to this day. A DWI that occurs in
Minneapolis or the surrounding Hennepin County suburbs still falls into a
system that rarely allows the Implied Consent Judicial Review Hearing to
occur within 60 days. As a result, any person with a DWI in Minneapolis
or surrounding suburbs would be well advised to immediately seek a
review. In Hennepin county and Minneapolis, the end result is a
reinstatement of the driving privileges and an elimination of the Implied
Consent violation appearing on your driving record.

Source:

Minnesota Becomes Last State in Nation to Adopt .08 DUI Limit

August 1, 2005

TRIMONT, Minn. — It was only a broken headlight on a beat-up pickup
truck, but it led Martin County Deputy Matthew Owens to stop it for a
check.

The pickup’s driver reeked of alcohol and a test showed he had a 0.12
percent blood-alcohol level, enough for a drunken driving offense — even
on one of the last nights in the last state in the country to have a 0.10
percent minimum for driving under the influence.

Minnesota’s DUI limit drops to 0.08 percent today, giving the United
States a uniform standard.

”It’s taken a long time, but at least we can all be glad that we
finally have this sensible national level,” said John Moulden, former
president of the National Commission Against Drunk Driving.

Even though Minnesota has a reputation for being tough on drunken
drivers — automatically revoking licenses when a person is arrested —
the state lagged when it came to adopting the 0.08 limit.

Backers had pushed for the lower limit starting in the 1980s. AP

Minnesota Implied Consent Law
By Law Office of William Kueffner

When a police officer decides he thinks it is appropriate to revoke
someone’s driver’s license, he fills out a form and sends a copy of it to
the Department of Public Safety in St. Paul. This is actually a copy of
the “Notice and Order of Revocation” form which he also gives to the
driver. When the Department of Public Safety receives this form from the
police officer, they put the revocation into effect. They do not do any
investigation of the facts. They do not ask any questions. They presume
that the officer had a legitimate legal basis for the revocation, and
that the officer followed all proper procedures during the stop, arrest,
booking and testing process.

If the person whose license is being revoked wants to fight the
revocation on legal grounds, he has the right to request a hearing before
a judge called an Implied Consent hearing. This hearing is separate from
the criminal court case. It is optional, and it is only held if the
revoked driver requests it. In other words, if the revoked driver does
not request an Implied Consent hearing, none will be held, and the
revocation will proceed. The burden is on the revoked driver, if he wants
to contest the legality of the revocation, to request the Implied Consent
hearing.

IN ORDER TO BE EFFECTIVE, A FORMAL WRITTEN REQUEST FOR AN IMPLIED
CONSENT HEARING MUST BE FILED WITH THE COURT AND SERVED ON THE
COMMISSIONER OF PUBLIC SAFETY WITHIN 30 DAYS OF THE ARREST. A request for
an Implied Consent Hearing filed more that 30 days after the arrest is
not valid, there is no grace period.

On the back side of the Notice and Order of Revocation form is some
information about the procedures available for challenging the license
revocation. Although the information is accurate, it does not provide
enough detail to enable an average person to do the job himself. While it
is not legally required that a person use an attorney to handle an
Implied Consent case (also referred to as a Judicial Review) the
technical requirements and the legal issues are fairly complex. It makes
good sense for someone who is considering an Implied Consent case to
consult with an attorney regarding the specifics of his case, and if the
case looks promising, use the attorney to handle the paperwork and
represent him at the court hearing.

Source: http://library.findlaw.com/

Minnesota Man Charged with 23rd Drunk Driving Offense

Hennepin County, MN – A
41-year-old man named Raymond James Sherman has been charged with his
23rd alcohol-related driving offense in the Hennepin County District
Court.

On June 24 Sherman appeared in court with a public defender. He faces
several charges including the felony of first-degree driving while
impaired, the felony of refusal to submit to a chemical test, and the
misdemeanor of driving after cancellation of his drivers’ license. With
these charges Sherman may have to serve up to seven years in prison and
be required to be supervised for five years after his release.

He is still in custody of Hennepin County jail with a $75,000 bail. He
will appear in court July 22, and the trail will convene Aug. 17.

According to court records from last week, Sherman’s automobile was
spotted by a Minnesota state trooper. She saw Sherman cross the center
line of Minnesota Highway 62 at approximately 3 am, and attempted to pull
him over on the next exit ramp. Sherman, however, allegedly accelerated
and reentered the highway again. Sherman continued to southbound
Minnesota Highway 77, and the trooper, who was then joined by other law
enforcement authorities, pursued the car until it reached the “stop
sticks” that had been set up to force Sherman to stop his car in the town
of Eagan.

According to court documents, the troopers found Sherman to be
uncooperative as well as clearly smelling of alcohol. They located empty
beer cans under the driver’s seat, and one can filled with alcohol on the
passenger seat.

Sherman had not possessed a valid driver’s license since 1984, and
despite that he has been tried 23 times for drunk driving, this case is
the first in which he will be charged a felony. In the state of
Minnesota, a DWI was a misdemeanor crime regardless of the number of an
offender’s convictions. The law changed in 2002, and now a felony DWI law
ensures that repeat offenders are penalized.

June 30, 2004

Safe Time

By: Jamie Wagner – Staff Writer

For any Michigan Tech student the road and highway systems are a big
part of every break, including the semester break coming up. As most of
us prepare for the long automotive trek home for the holiday season, we
are worried about the road conditions being snowy, icy, whiteout or just
plain slow. What may not be common knowledge is that this is the worst
time of year for losing your life on the road because of alcohol. Mothers
Against Drunk Driving cite that in 1999, 1,610 people were killed in
alcohol-related traffic fatalities between Thanksgiving and New Year’s
Day.

We have all heard the facts and numbers about drunk driving
statistics, but one fact that can be found with any alcohol statistics is
that every 33 minutes someone is killed in a drunk driving accident.

The percentage of drunk driving fatalities for Michigan, Wisconsin,
and Minnesota are all above the national average of 38.4%. In the latest
year that data is available, 1998, 536 people lost their lives in
Michigan drunk driving accidents. 302 died in Wisconsin, and 280 in
Minnesota. Nationwide, 15,935 people were killed by drunk drivers in
1998. In 1999 this number was slightly down to 15, 736 alcohol-related
motor vehicle deaths.

The Blood Alcohol Content levels for Michigan, Wisconsin and Minnesota
are all 0.1 BAC. A woman of average health that weighs 140 pounds is
legally intoxicated after three drinks in one hour—though her
impairment begins with the start of her second drink. For an average
healthy man weighing 170 pounds with a full meal in his system, four
drinks in one hour will put him at the legally intoxicated level.

To help prevent and combat drunk driving Congress signed a bill in
October of 2000 to establish a .08 BAC as the national standard for
impaired driving. States have until 2003 to adopt the .08 level and those
that do not will have highway construction funds withheld from them every
year with the penalty increasing each year. The Transportation Equity Act
for the 21st Century also created incentive grants for states enforcing
the .08 BAC standard.

The reason that .08 BAC was chosen is from the results of years of
research and studies. Over 80 percent of drivers involved in fatal
crashes had alcohol levels exceeding .08 BAC.

All states have strict laws for repeat drunk driving offenders
including license and vehicle sanctions, alcohol assessment programs, and
mandatory imprisonment or community service. But two thirds of all drunk
drivers apprehended each year are first time offenders.

The state of Michigan has tough drunk driving laws to protect those
out on the road. These laws have been advertised on radio and TV and in
the news in the past year. These laws apply to those over the legal
drinking age of 21. The first time a person is convicted of driving after
drinking the driver’s license will be suspended for 30 to 90 days and
four points will be added to the driving record. Michigan’s Zero
Tolerance law for underage drunk drivers leaves an underage offender
nearly defenseless in a court of law.

After being stopped for drunk driving several different charges can be
brought against the offender. Operating While Impaired (OWI), means that
because of alcohol or other drugs in the body, the ability to operate a
motor vehicle was visibly impaired. For a first time offender, the
driver’s license will be suspended for 90 days and fines up to $300 can
be imposed, and/or jail time community service, or vehicle
immobilization. For a second offense of OWI, the license is revoked,
license plates confiscated, and possible vehicle forfeit. Jail time and
community service are also possibilities as well as more fines up to
$1000.

The Operating Under the Influence of Liquor offence means that the
alcohol in your body substantially affected your driving ability so that
you could not operate a motor vehicle safely.

Charges for this are the same as charges for Operating With an
Unlawful Bodily Alcohol Content (UBAC), which means at the time you were
driving, your bodily alcohol content was 0.1 or more. First time
offenders lose their license for six months and face 180 days of
immobilization. Jail time and community service and/or $100 to $500 in
fines can be levied. Repeat offenders face more serious jail time,
revocation of their driver’s license, plates and vehicle are almost
certain.

If the drunk driving incident causes bodily harm to someone a
five-year felony penalty is applied to the drinker. If someone is killed
in the drunk driving incident a 15-year felony charge for that conviction
is imposed.

When pulled over the police will ask the driver to take some sobriety
tests, and refusing is not an option that should be exercised. A
Preliminary Breathe Test is the roadside test that can be given
immediately and refusal results in a civil infraction and fines up to
$100. Under 21 year old drivers will automatically have two points added
to their records. After arrest the chemical test is given to determine
the BAC, and refusal of this test adds six points to the record, the
destruction of the driver’s license, and suspension of it for six months
months.

Nearly 18,000 Arrested for Drunk Driving in Michigan

John Bumgardner
9/15/2006

Undated – An end-of-summer effort aimed at catching drunk drivers
resulted in more than 18,000 arrests in Michigan.

The statewide crackdown ran the last 2 weeks of August through the
Labor Day weekend.

Besides catching drunk drivers state police near Detroit and Flint
used grant money to go after people with outstanding warrants for
alcohol-related convictions.

Those efforts resulted in nearly 259 arrests.

Police across the state also handed out more than 18,000 speeding
tickets.

Source: http://www.wzzm13.com

Behind wheel drunk, but legal

High court rules there’s no evidence woman touched car controls
By Steven Elbow

A person simply sitting in the driver’s seat of a parked, idling car
cannot be charged with drunken driving, the state Supreme Court said
today.

The court ruled that a Cross Plains woman found intoxicated at the
wheel of her parked car was not guilty of drunken driving because there
is no evidence she ever touched the controls of the car.

The case involves Kristin Haanstad, whom police found intoxicated in
the driver’s seat of her idling Chevrolet Cavalier in Baer Park in Cross
Plains on May 26, 2003.

According to court records, Haanstad had been drinking at a bar for
several hours when she handed her keys to a man she was with. The man
drove Haanstad and a companion to Baer Park, where he had left his
vehicle. The man parked Haanstad’s car next to his vehicle and got out of
the car, leaving Haanstad’s car running with the lights on. He helped his
companion into his vehicle and returned to Haanstad’s car, where Haanstad
had slid from the passenger seat to the driver’s seat to let the man into
the car so the two could discuss their relationship. She sat with her
body and feet toward the man in the passenger seat, never touching the
controls of the car.

At about 12:30 a.m., a Cross Plains officer approached the car, and
despite the fact that Haanstad explained she had not driven the car,
asked her to perform sobriety tests, then arrested her for drunken
driving.

The case was thrown out by Dane County Circuit Judge Diane Nicks, but
the state Appeals Court reversed Nicks’ decision, ruling that Haanstad
was in fact operating the vehicle and was guilty of drunken driving.

The Supreme Court today reversed the Appeals Court ruling because
there was no evidence that Haanstad actually operated the car.

In a 6-0 decision – Justice Jon Wilcox didn’t participate – Justice
Louis Butler wrote that state statute specifically spells out what
constitutes the operation of a motor vehicle.

The word “operate,” the law reads, “means the physical manipulation or
activation of any of the controls of a motor vehicle necessary to put it
in motion,” Butler noted.

“The village does not dispute, and the Court of Appeals concluded,
that Haanstad never physically manipulated or activated any of the
vehicle’s controls. … Haanstad simply sat in the driver’s seat with her
feet and body pointed toward the passenger seat,” Butler wrote.

Butler drew a sharp distinction between Haanstad’s case and a case
presented by the village as precedent. In that case a man was charged
with drunken driving after he was found sleeping behind the wheel of his
pickup truck on an interstate emergency ramp. The defendant admitted
driving the truck to the spot where officers found him.

“In contrast, the evidence here is undisputed that Haanstad did not
drive the car to the point where the officer found her behind the wheel,”
Butler wrote.

The village never claimed that Haanstad tried to drive the car or even
touched the controls.

“As the Circuit Court judge so aptly stated, ‘If she is guilty, she is
guilty of sitting while intoxicated,’ ” Butler wrote.

Source:
http://www.madison.com/tct/news/index.php?ntid=72621&ntpid=0

Melanie’s Law Targets Repeat Drunk Drivers

Boston, MA – A new drunk driving law in Massachusetts will aid
prosecutors in punishing drunk drivers with repeated convictions. Under
the new law, prosecutors will use certified court records in order to
prove prior drunk driving incidents. The law is named “Melanie’s law”
after the 13-year-old Melanie Powell, who was killed in an accident
caused by a repeat drunk driver two years ago. With Melanie’s law, repeat
offenders must utilize an ignition interlock device, which connects a Breathalyzer to the
ignition of their car. In order to turn the car on, they must measure
their blood alcohol content.

New drunk driving crimes have been established under Melanies’ law:
loaning a car to someone who is clearly drunk; driving under the
influence with a child under the age of 14; and manslaughter caused by
drunk driving. Motor vehicle manslaughter now carries a mandatory
sentence of five years, doubled from two-and-a-half years.

Melanie Powell’s family is proud that the new law has gone into
affect. Powell’s grandfather, Ron Bersani, said, “We’ll never know how
many lives Melanie’s Law will save, but we have faith it will be many, so
today, we thank you, Melanie.”

The house and senate approved a weaker version of the bill last week,
which created some backlash from the governor and others. On Friday,
lawmakers voted to put the tougher punishments back into the
legislation.

October 29, 2005

Also See:

• Massachusetts Toughens OUI
  Penalties

DRUNKEN DRIVING DISGRACE – Flunking the Test: Mass. Policy is
Nation’s Most Lax

By SUE REINERT and JULIE JETTE The Patriot Ledger

Massachusetts has no law requiring alcohol testing, but five other
states do. Drivers involved in fatal accidents in New Hampshire have no
right to refuse blood-alcohol tests if they’re
suspected of causing the crash.

‘‘The officer can actually, if
need be, restrain the person physically while the blood is being
withdrawn,’’ said Earl Sweeney,
assistant commissioner of public safety in New Hampshire.

Maine has the same policy, but it applies to all fatal accidents
regardless of who’s at fault.

‘‘We test anybody in a serious
accident where death occurs or is likely to
occur,’’ said Kennebec County
District Attorney Evert Fowle, head of the Maine Prosecutors Association.
‘‘It’s certainly
called for by the law, and we do
it.’’

Maine tests 77 percent of drivers involved in fatal crashes, second
only to South Carolina’s 94 percent. New Hampshire
tested 32 percent, slightly above the national average.

But in Massachusetts, police can ask drivers to take a test only after
they’ve been arrested for drunk driving. Here, the
number tested is less than 2 percent. No other state tests so few
drivers.

Massachusetts has no law requiring alcohol testing. Police can only
ask drivers to take a blood or breath test after they have been arrested
for drunken driving.

That’s not the way in works in states where testing
is mandatory.

Fowle, the Kennebec County prosecutor, said the Maine law has survived
legal challenges because police must have probable cause that a person
was drunk before test results will be admitted in court.

Massachusetts leaves testing decisions completely up to police
officers. Drivers can lose their license for life for refusing a test,
but some are never asked.

On Halloween night, for example, five teenagers were injured in Quincy
when a car driven by a 17-year-old crashed through a fence, hit a tree
and rolled over. Beer cans surrounded the overturned car when police
arrived.

Capt. John Dougan said the officer who responded to the accident
reported that the driver appeared to be sober and did not test her.

As an under-18 driver, she was not allowed to have any alcohol in her
system. If she had refused a test, she would have lost her license for
four years.

Legal and practical barriers also impede testing in Massachusetts.

Many surviving drivers end up in the emergency room. Police officers
do not test injured drivers, and prosecutors must seek medical records in
court.

It’s unclear if an officer can ask a hospital to
test a patient.

Andrea Nardone, spokeswoman for the Massachusetts District
Attorney’s Association, said police can never request
a blood test. State Police Trooper Stephen Mullaney said police can
request a test for a person who has been arrested.

Hospitals are sometimes reluctant to test because some health
insurance policies don’t cover treatment for
intoxicated patients.

Liability insurance does not cover people who drive drunk. In that
case, a victim cannot collect on the driver’s
insurance, but must instead sue the person, who often lacks assets as
well as insurance.

In another hurdle for testing, not all police cruisers carry the
equipment.

Despite the obstacles, advocates for tougher drunken driving laws
strongly support mandatory testing.

‘‘The more you test the more
opportunity to deter drunk
driving,’’ said David Deiuliis,
spokesman for the Massachusetts chapter of Mothers Against Drunk
Driving.

‘‘It sends a message to the
public that if you choose to drink and get behind the wheel of a car,
there will be enforcement,’’ he
said.

Copyright 2006 The Patriot Ledger Transmitted Saturday, November 18,
2006
http://ledger.southofboston.com

Massachusetts Toughens OUI Penalties

Boston, MA–A new, comprehensive drunk driving law that will make
punishment for repeat offenders of drunk driving offenses took effect on
October 28, 2005. State Rep. William C. Galvin, D-Canton, stated, “Not
only do these laws work to punish those who are guilty of repeat drunk
driving offenses but they also work as a deterrent measure.”

The new law, called “Melanie’s Law” after a young girl who was killed
in a drunk driving accident, includes numerous provisions. A new offense
charges drunken drivers for operating a vehicle with a child under the
age of 14. Anyone with a blood alcohol
level of .15 or higher must attend an alcohol assessment program. The
penalties for knowingly allowing someone to use an automobile, though he
or she has a suspended license from drunk driving, have increased to a
fine of $500 for the first offense, and a fine of $1,000 and also
possibly one year in jail for the second offense.

Mandatory sentences have become stricter. The mandatory sentence for a
drunk driver who convicts manslaughter is now doubled. A new mandatory
sentence of one year in prison will be applied to those driving under the
influence with a suspended license.

Prosecutors can use original court papers and certified information of
a defendant’s prior life history from certain records for a previous OUI.
These documents will serve as complete evidence, and no testimony or
additional evidence will be necessary to prove authenticity.

Repeat offenders will need to operate cars with ignition interlock
devices that force them to measure their blood alcohol level before being
able to turn on the ignition. Tampering with the device or driving a car
without the interlock devices will serve time in prison.

License suspension procedures will be more severe with first offenders
having suspended licenses for 15 years, up from 10 years. Second-time
offenders of OUI Motor Vehicle Homicide will have their licenses
suspended for life. Anyone refusing to take a Breathalyzer test will have his or
her license suspended for 180 days, but if an accident results in death
or injury of another person and the driver refuses the Breathalyzer test,
a 10-year suspension will result. Refusal with previous OUI violations or
convictions will result in license suspension, and those with three
previous violations will have lifetime license suspension. Those who
refuse the Breathalyzer test will also have their cars impounded for 24
hours.

November 18, 2005

Also See:

• Melanie’s Law Targets Repeat Drunk
  Drivers