The Supreme Court of Minnesota, in State v. Brooks, today affirmed the lower court rulings in Wesley Eugene Brooks's
three (yes, he was a busy guy) separate DWI cases today.  The Court also tacitly ruled that Minnesota's Implied Consent law, which states that it is a crime to refuse BAC testing, is constitutional, though merely holding that Brooks did not show it was unconstitutional.  That said, the Brooks decisions leaves a lot of questions unanswered. 

The Court's ruled that, under the totality of the circumstances, Brooks had "consented" to supply his urine and blood to police following his arrests.  The Court found there was consent even though Brooks agreed to the tests after specifically being told it was a crime to refuse.  Because he did not refuse, but instead "consented", the police did not need to obtain a warrant.  The Syllabus of the decision states: "When, based on the totality of the circumstances, appellant consented to the search, police did not need a warrant to search appellant’s blood or urine." 

In reaching its decision, the Court emphasized that there was nothing in the record showing that Brooks was, in fact, agreeing to test only because he was told refusal was a crime.  It also emphasized that fact that Brooks had consulted with an attorney on the phone before agreeing to test.  This leaves open the possibility that the result could be different for the guy/gal who said, "I agree to test, but only because I'll be charged if I don't."  I know there are lots of people who said words to that effect, and so such an appeal will no doubt be coming soon.

The Court's decision makes clear that a person is not legally coerced simply because he/she is told it is a crime to refuse.  The Court attempts to explain, as other courts before it  have, that it is not coercive or deceiving to merely tell a person what the ramifications of their choices will be.  After all, the person is given the choice to refuse, albeit with criminal consequences.

To me, that explanation requires a great deal of pretending.  To begin, the focus is only the behavior of the police, and not the effect on the subject.  The State had the burden of proving Brooks's consent, not there other way around.  There is a presumption against the loss of constitutional rights.  So where did that occur in this case?  The real issue-- the actual effect of the words that everyone agrees was read to Brooks, "refusal to take a test is a crime"--is just sidestepped.  In my opinion, the old adage that there is an "OWI/DWI exception to the constitution" has more force after today.

Thankfully, this was not lost on Justice Stras, whose concurring decision stated, "It is hard to imagine how Brooks’s consent could have been voluntary when he was advised that refusal to consent to a search is a crime."  Justice Stras concurred only that the BAC evidence should not be suppressed, because at the time the blood and urine were obtained, the police were operating on state case law that permitted warrantless blood draws in all Minnesota DWI cases, based on exigent circumstances.  Basically, he believed the "good faith" exception decided the case. 

The argument that everyone who drives has consented ahead of time was discussed but not resolved in this case.  When "consent" takes place is something left for later cases.  However, since the Brooks Court analyzed consent at the point of the Implied Consent decision, and not the time of obtaining a driver's license or driving, it seems awful
inconsistent for anyone to now assert that consent happens at an earlier time.  After all, the Court determined that Brooks had consented, not that he had withdrawn his prior consent. 

As mentioned, the Brooks Court also rejected Brooks's argument that the Minnesota Implied Consent statute was unconstitutional.  In so holding, it recited language in Missouri v. McNeely that can be viewed as approving of implied consent statues generally. 

Overall, the Brooks case does not give the Minnesota Implied Consent statute a free pass.  Instead, the focus will be on the individual circumstances surrounding the supposed consent, something that many District Court judges with cases awaiting this decision will no doubt lament.

The Minnesota Supreme Court will issue its decision in State v. Brooks tomorrow, October 23, 2013, at 10 a.m.  The
decision is expected to provide much-needed guidance to the MN District Courts, which have split on what the landmark decision, Missouri v. McNeely, means for people who have been BAC tested for blood, breath or urine under the Minnesota Implied Consent Law, especially those who have been tested afterMcNeely's release in April.  The case is of such importance that the MN Supreme Court expedited its review after it was remanded by the Supreme Court of the United States.     

You can find the Brooks decision here tomorrow.  I can't wait to read it and supply some analysis.

For many years, I have been driving north up highway 35 to the Buffalo County Circuit Court in Alma, Wisconsin.  I have handled cases, ranging from OWI/DUI 1st or Disorderly Conduct, to very serious felonies, with very good results.  I have tried a civil case there, with equal success. 

I enjoy practicing in the Buffalo County Circuit Court.  Like the other smaller counties I travel to, including Trempealeau, Jackson, Pepin, Portage, Columbia, and Clark Counties in WIsconsin, the court personnel and staff are approachable and helpful.  The judges and District Attorneys are professional and courteous.  They appreciate the role of defense counsel. 

If you have been charged with OWI/DUI or a criminal charge in Buffalo County, or if you have been injured in a car accident there, call me at (608)  781-5400 for more information on how I can help you.  I know the Buffalo County Circuit Court.  I have established a reputation there as a serious trial lawyer.  My office is closer to Alma than La Crosse, and as with all other counties, I will substantially discount my rate for travel to Alma, making it affordable for you to have the finest legal assistance for your Buffalo County Case.  Most important, I will work my ass off to get you results. 

If you are ever charged with criminal Disorderly Conduct under circumstances that are considered "domestic", you could lose your right to possess or purchase a firearm for life.  Robert W. Evans Jr. found that out.  He is appealing the Wisconsin DOJ's denial of his application for a concealed carry permit.  His application was denied because he was convicted in 2002 of criminal Disorderly Conduct relative to an incident involving his adult stepdaughter, whom he reportedly admitted he had "pushed."    

Disorderly Conduct, or "DC", is prohibited by Wis. Stat.  947.01, which outlaws "engag[ing] in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance." (emphasis added.)  This is unbelievably broad language, and unbelievably, it has survived a constitutional challenge on the grounds of overbreadth.  When it comes to disturbances, I tell people, "If the police arrive and you were one of the reasons they are called, you could be arrested and charged with DC."    

Many, many people pleaded guilty or no contest to Disorderly Conduct believing it was just a minor offense.  Like Mr. Evans, they later got a rude awakening.  Not only can their applications for concealed carry be denied, but they could be charged criminally for possessing a firearm, under the Federal Firearms Act.  Attempts to undwind the conviction on the grounds that they were unaware of the ban when they pleaded were rejected, on the grounds that the ban is a "collateral" consequence of the conviction and not, therefore, grounds for a "do over."

Since 1996, the so-called Lautenberg Amendment to the Federal Firearms Act has prohibited gun possession by anyone convicted of a misdemeanor that "has, as an element, the use or attempted use of physical force, or the 
threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim."  18 U.S.C. §921(a)(33)(A), (g)(9) (emphasis added.).

A recent 2nd Amendment challenge to the federal ban did not end well in the 7th Circuit Court of Appeals for Steven Skoien, a man convicted of DC and, subsequently, the federal act. The challenge to the Wisconsin DOJ's application denial is not 2nd Amendment based.  It hinges on interpretations of the language of the federal statute and Wisconsin Disorderly Conduct statute.  The arguments by the appellant and DOJ are quite complicated, but can be accessed here (Appellant, Respondent, Reply) if you want to try to follow them. 

My thoughts?  Don't get convicted in the first place.  I have kept many people charged with Disorderly Conduct in La Crosse County and surrounding counties from losing their 2nd Amendment rights.   

Socialite Kerry Kennedy, daughter of the late Sen. Robert Kennedy and former wife of New York Governor Andrew Cuomo, was allegedly involved in an impaired driving accident on July 13, 2012, in Westchester County, New York.  A witness reported to police that she had no control over her vehicle has she was driving down the highway.  A subsequent blood analysis revealed levels of Zolpidem, which is the sleeping drug marketed as Ambien.  Kennedy claims she is not legally responsible because she took Ambien by mistake instead of her thyroid medication.  

"Lame excuse", you say?  I call it a great defense.  In fact,  fully expect it to be successful, since there were apparently no other  impairment-causing substances reported in her system.  I have gotten impaired-driving charges dismissed the same way. 

These so-called "sleep driving" cases have become more prevalent in recent years as more people reach for the powerful sleeping drug.  People with Ambien prescriptions often have other prescribed medications.  Accidents happen, and so the wrong pill can be swallowed.  Persons awake while on Ambien are often described as being in a hypnotic trance.  When this occurs, the defense of "involuntary intoxication" may be viable.  After all, it is not much different than the person who becomes impaired after being "slipped" a drug in their drink.  You wouldn't hold that person responsible if they suddenly became impaired while driving home.

Another way to attack it is to show that the act of driving was "involuntary" because of the effects of Ambien.  This
defense could be asserted even by drivers who intentionally became drunk but later took Ambien and somehow made it behind the wheel.  It is similar to asserting that a crime occurred while sleep walking.  In fact, the Supreme Court of Oregon recently ruled, in Oregon v. James Robert Newman, a 6-0 decision, that involuntary driving due to a sleep walking disorder is a viable defense.   However, Wis. Stat. § 939.42(1) provides that an intoxicated or drugged condition is a  defense if it is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at  the time the act is committed.  It would seem to include this fact pattern.

A  variation of this defense, which is more difficult case to make, is the "sleep drinking" defense.  In that scenario, the driver agrees that there was impairment due to alcohol but maintains that the drinking that caused the impairment was involuntary due to the hypnotic effect of Ambien.  This could also be framed as involuntary intoxication.   I have yet to see that defense play out.

These defenses are far different from the defense of "voluntary intoxication", wherein a defendant admits he/she
purposely became impaired but claims the impairment was so great that it rendered him/her incapable of forming the "intent" necessary to commit the crime.  That defense is now being played out in the appeals of Martin Heidgen, Taliyah Taylor and Franklin McPherson, also in the state of New York.  These defendants were all convicted of charges stemming from fatal crashes while driving in the wrong lane while drunk.  The law they were convicted under required that they acted with "depraved indifference to human life."  They claim their level of impairment prevented that mindset.  Like the defense of voluntary intoxication generally, that is a very tough sale, if you ask me.

I am a lawyer licensed in the State of Wisconsin and Minnesota.  I regularly practice in the field of OWI/DWI/DUI Defense.  However, none of my commentaries are ever meant to be legal advice.

Police Lt. Brian Thomson "resigned" on August 13th after reportedly being caught dipping into drugs in the evidence room at the La Crosse Police Department.  He appeared in court on August 14th for a bond hearing, but he has not been in court again.  He was supposed to be in the La Crosse County Circuit Court yesterday to face charges following a delay on August 30th.  However, if you search for his name on CCAP, you will not find a case for Brian Thomson yet.  Charges have now been delayed to October 23rd.  According to the La Crosse Tribune, Thomson's attorney cited "medical reasons" for the new delay.  

This is not your typical case, for sure, with judges and prosecutors having to bow out due to conflicts caused by their connection to the former policeman.  However, to date, Thomson has done a great job avoiding the courtroom, particularly since persons facing felony charges are typically required to be present in person for court hearings, aside from mere status conferences.  Maybe he'll be in court on October 23rd(?)