DWI Arrests Apparently Down?

I just had an opportunity to visit on the phone with one of the prosecuting attorneys for the City of Minnetonka. Somewhat to my surprise this person made a remark to the effect that over the past few weeks the number of DWI arrests is down. There was some speculation about what the reason might be, but the real answer is that nobody really knows why.

I can guess that the economy might have something to do with it. Even if people might be still drinking, doing it at home is certainly cheaper. Another issue of course is that DWI arrests have become more difficult from the point of view of the police officers, since there has been a great deal of concern lately about the accuracy of the breath test. If the officer wants a blood test, a trip to a hospital might be required. That takes a lot of extra time.

Come on Vacation, leave on Probation

I had to post this. I just heard from one of my lawyer buddies that the above is the slogan of the prosecutors for Aitkin County. Apparently is stems from a propensity for certain individuals to get arrested while ice fishing or snowmobiling in that county.

I have seen similar situations where individuals from out of state get arrested in the Twin Cities for DWI while here on business or for a wedding or funeral. I can’t explain why, but for some reason in my experience this seems to happen a lot in Eden Prarie. Typically after returning home they find me through my Minnesota DWI web site and retain my services.

Excused!

Friday morning – yesterday – I was instructed to report to the jury room at the Hennepin County Government Center for jury duty. After listening to a little talk about how things worked, twenty of us were run through security and led up to judge McGunnigle’s courtroom. As soon as I walked in I knew I would not be there very long. At the tables in the front of the courtroom sat two lawyers I knew, Rolph Sponheim for the prosecution and Marsh Halberg for the defense. These were both people I know, particularly Mr. Sponheim. Judge McGunnigle explained that the Defendant had been charged with a DWI. He didn’t say whether it was a misdemeanor, gross misdemeanor or felony. I could tell that it was no misdemeanor, however, since they were obviously looking to set up a jury of twelve, and with a misdemeanor you only get a jury of six.

I was seated as Juror No. 3. The judge started asking questions to the prospective jurors as a group. One question was whether any of us had an experience which would influence our ability to be objective in this type of case – driving while intoxicated. Several hands went up, including mine. One person was employed in the “beverage industry.” One person has a brother who had been arrested for DWI. Another had relatives who were injured in an accident by a drunk driver. I disclosed that I had defended hundreds of this type of case, and it would be hard to say that this would not influence my decision.

The judge went into a little lecture about how experiences of this sort should be set aside and compartmentalized, and he asked if we could do that. All of those who had raised our hands, including me, said that we thought we could. One of the next questions was whether we knew any of the witnesses, whose names were read off for us, and did we know the Defendant or any of the lawyers. Again, I raised my hand. The judge asked me to explain. I said that I knew Mr. Halberg, not well but I did know him. Besides that, the younger lawyer he had brought along to assist him looked familiar, I had surely seen him around, although I did not know him by name. When it came to Mr. Sponheim, I said I thought I knew him well. I had innumerable cases in which he had been the prosecutor. Then Judge McGunnigle asked if knowing these people would keep me from being able to make a decision based only on the evidence which was to be presented. I said that I believed I have a working relationship with Mr. Sponheim, and that I thought that should disqualify me.

At this point the judge called the lawyers up to the bench for a little conference. A moment later I was excused from that case, but I was to report back to the jury room. Back at the jury room the clerk there said that since I had been on call all week, that I would be excused entirely from any further jury duty. My duty was completed. Must say I was a bit surprised but also relieved. I had another feeling, however, which surprised me. During the short time that I had been up in the courtroom, I had started getting interested in the case. I think I would have enjoyed being on that jury. I would have enjoyed watching those lawyers do their stuff, and I would have liked to see how it all came out.

The thought of going downtown to watch the trial just to see what happens next has occurred to me. They are open to the public, and a trial like that ought to take a couple of days at the least. I already feel behind in my work as a result of the distraction from this episode, however, and I know I don’t really have the time to go watch that trial. I should just count myself lucky to have this experience behind me.

"Enhanced"

The electronic sign over I-394 just a half mile here from my office says “Enhanced DWI Enforcement Thru Jan 1.” I don’t think they’re kidding.

“Enhanced” according to the old hard-bound dictionary on my desk means “to make greater” or to raise, intensify or heighten. It seems to be a term that is used a lot in connection with DWI. For example, if you have a second offense within ten years, that second offense is “enhanced” because of the first. Please remember that taxi cabs are really cheap compared to the cost of being arrested.

As I think I have mentioned earlier, I am noticing that the fact that one is considering or working on filing a bankruptcy seems to enhance to possibility of either being arrested for DWI or being injured in a serious accident. If you should happen to have bankruptcy on your mind, please keep a proper perspective. Focus on what you are doing, when you are doing it. It’s only money. You have more reason now than ever to properly care for yourself – including making sure that whatever you consume is in moderation.

Summoned for jury duty

I have received a summons to show up for jury duty on December 29th — downtown at the Hennepin County Government Center. The people who run the program tell me that I can arrange to check in by telephone to see if they need me. This apparently, however, can only be done after I at least show up in person on the first day.

Not long ago I commented to one of the court clerks that I supposed that the week of New Years Eve and New Years Day would be a slow week for jury trials. She laughed at me and said the opposite was the case. Apparently that week is loaded up with jury trials by people who didn’t want to have the trial Christmas week.

When I first received the summons I called in and got a hold of one of the supervisors. I had lots of excuses, not the least of which was that I have served as a referee in the Hennepin County settlement and arbitration programs. I have worn a black robe, sat at the big desk in front of the courtroom and have been called “your honor.” “So what”‘ was the response. They have required retired district court judges to serve. There is an exception for judges who are actually on duty as judges, but that of course would not apply to me.

I anticipate having more to say on this topic as the situation unfolds.

Why you don’t want to get a second Minnesota DWI

It’s dark and it’s cold in Minnesota and the holidays are upon us. This means my phone is about to ring, and on the other end of the line will be someone who just got arrested for the second time in ten years for driving while impaired (DWI).

The consequences of a second alcohol related driving offense are quite harsh, and it seems to me that they come as quite a surprise to many. The punishments for a first offense are quite light by comparison, particularly if your lawyer did a good job. Sometimes that’s one of the things I worry about when I have gotten a particularly good outcome for a client: that my client won’t realize how serious this could have been, and will therefore be more likely to offend again.

The first offense is usually a misdemeanor punishable by a $1,000 fine or 90 days in jail or both, unless there was some aggravating factor. The most common aggravating factors are having a breath test reading of over .20 or having a minor child in the car, and having such a factor could result in even a first offense being a gross misdemeanor. The second offense in ten years, however, is always at least a gross misdemeanor – punishable by $3,000 or a year in jail or both. If you continue to accumulate alcohol-related driving offenses, the fourth one in a ten year period can be a felony – and could involve a trip to Stillwater State Prison. The legalese for this process is “enhancement.” Each offense enhances the next.

Along with increased criminal penalties, the time one goes without being able to drive keeps getting extended for longer periods with each offense. After a third offense drivers are often classified as “inimical to public safety,” which is like becoming a second class citizen who will not be allowed to drive for several years if ever again.

You’d think the foregoing would be enough, but it’s not necessarily the worst of it. For many the most embarrassing thing for a second time offender is that he or she is issued special license plates — called “whisky plates” because they often start with the letters “WX.” It usually seems that lots of fellow employees in the employee parking lot know what that means, particularly if the person who has the special plates happens to be the boss.

Perhaps the worst thing is what happens to the car the offender is driving when it’s a second offense with one of those aggravating factors – such as testing above .20. In that event the police seize that vehicle. Forever in most cases. There are some limited circumstances under which the car can be recovered by the owner; but most of the time that car is gone and stays gone. If the car belongs to the driver’s wife, mother, husband, girlfriend, aunt, uncle or employer, the state does not care. Unless the owner can show that the driver did not have permission to drive that vehicle, it usually makes no difference that it belongs to someone else.

For those who wish to try to get the vehicle back, the seizure has to be challenged with a petition filed in district court; and the time allowed for doing so is very short. Winning such challenges is not easy.

In other words, if you happen to already have a first DWI offense on your record, you absolutely must not let that happen again.

September 10th and 11th

I’m working late here in the office this September 11th evening. It was a funky day, seven years after the big attack on our country. I was wall to wall all day with appointments, and the phone rang constantly. I finally gave up on the phone. I just could not keep up. I don’t think that’s ever happened before. Strangely, only about one caller in ten actually leaves a message. I have managed to call most of them back, but I really wonder about the others. If it was important enough to call in the first place, then why no message?

I have to share this with you all. While September 11th is a sad anniversary, so is September 10th. On that day in 1897 a taxi driver in London, England, became the first person in the world ever to be arrested for drunk driving — after slamming his vehicle into a building.

If I at all can I would like to get to the north shore for a peek at some fall colors. I might run away and try it this weekend. I’m up to date with most of my work. I can’t keep up with the calls in any event, and staying home would not fix that. These are the most desperate times I have seen in my lifetime; but I’ll be able to help more people if I take care of myself. I keep telling my kids: when the plane loses pressure and the oxygen masks come down, put the mask on yourself first. Then put the mask on your children or others who are in your care. The person who is first to pass out is no longer able to help others.

Underdahl II – End of the Source Code Issue?

I’ve mentioned here once or twice in the past, that there has been a small tempest brewing over the source code of the Intoxilyzer 5000 breath test machine. That’s the one that’s been in use all over Minnesota since the early 1990s. I’ve heard it said that the computer processor that is the guts of the gizmo has about as much computing power as one of those old pong games from the 1980s, although I doubt that’s true. It is true, however, that until recently a small minority of judges have been questioning the validity of the test results because the manufacturer of the machine has keep the source code of the software that dives the device a trade secret. No defense lawyer can get an expert opinion on the validity of the source code, because nobody can get the source code, not even the State of Minnesota.

My understanding is that earlier this year the Attorney General’s office in St. Paul filed a suit against the manufacturer demanding that they cough up the code. So far as I know, that is still pending.

Meanwhile our Court of Appeals seems to have either back tracked or flip-flopped on the issue of the Intoxilyzer’s source code, depending on how narrowly one reads the opinion. In 2007 in a civil implied consent case known as “Underdahl I,” they said that the question of the machine’s reliability is subject to challenge and that the Commissioner of Public Safety would not be granted an order which would prevent the district court from enforcing an order requiring that the Commissioner produce the source code. In May of 2008, however, after the State has continued to be unable to produce the code even after suing the manufacturer, the Court of Appeals in a criminal DWI case decision known as “Underdahl II” has said that the defendants failed to make an adequate showing that the source code is relevant to a plausible challenge to the reliability of the Intoxilyzer.

In short in Underdahl I they seemed to open the door to a source code challenge and in Underdahl II they seemed to close it. I must say that after sitting here for a while looking over these two decisions, my head is spinning a bit. I’m not sure if the dust has really settled on this issue or not, and whether there may be further appeals. I still am noticing that some police departments seem to be using a lot more blood and urine testing in an apparent move to side step any possible problem with this.

Shredding Day

I just got back to the office from my “storage facility,” where it took a truck from Shred-N-Go about 15 minutes to chew up 1,204 pounds of old files. Most of that was from the 1990s, although I did throw in a few things from as recent as 2002. OK, maybe even a few things from 2003 that I was sure were not worth saving. About a fourth of it was my own old financial and billing records.

I am feeling some emotions about seeing that stuff go. At the time that I generated those files, they were top priority in my life. I practically sweat blood over some of them. They represented skill, art, valuable lessons; important help provided to many people, whose lives were improved as a result. I believe I practically walked on water in a few of those cases, and perhaps performed a few near miracles. Or so it seemed at the time. And of course in a few of the cases, notwithstanding my best efforts, everything seemed to turn to crap.

I feel a certain sadness about it I suppose. Also relief.

The paper files are not nearly as important as they used to be. The fact is that I still have electronic copies of most of the paper I shredded on a disk or portable hard drive. All bankruptcy documents are available on line going back at least ten years. A summary of what’s in the state court files is available on line too.

Last time I did this was five years ago. That would mean that on average I generate about 240.8 pounds of paperwork per year. I wonder what the cost of the printer ink for all this is. No wonder my office supply cost is so high. In the next life will I meet the angry ghosts of all the trees I am responsible for killing?

Another Drunk Driving Crack Down

Today’s Star Tribune reports – as is often the case right before a major holiday – that starting today and continuing through the month of July there will be extra law enforcement on the roads and streets of this State specifically looking for drunk drivers. I recommend that you take a look at the full story. There’s information there about a new “safe and sober” web site that the state has put up as well.

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