August 2024

IMPLIED CONSENT: RESCINDING DRIVER’S LICENSE REVOCATION AS A SANCTION FOR COMMISSIONER’S FAILURE TO PRODUCE DISCOVERY WHERE NO DISCOVERY ORDER WAS ISSUED IS AN ABUSE OF DISCRETION

Respondent’s driver’s license was revoked following his arrest for driving while impaired. Respondent moved to compel discovery from the Commissioner, and, the following day, the Commissioner sent to Respondent what it claimed was all the evidence in its possession. Respondent asserted, however, that he still had not received all requested discovery. The court ordered the rescission of the revocation of Respondent’s driver’s license, noting that a judge who previously presided over the case had directed the Commissioner to provide all discovery to Respondent and that failure to do so would likely result in rescission, although there is no transcript or written order reflecting that such an order or directive was issued.

The civil procedural rules allow for sanctions for failing to obey discovery orders. In implied consent matters, prehearing discovery of certain evidence is required, but other discovery is available upon order of the court. Minn. Stat. § 169A.53, subd. 2(d).

Here, the Commissioner provided the required materials to Respondent, and there is insufficient evidence of any oral or written order for additional discovery. Therefore, the district court abused its discretion by sanctioning the Commissioner for failing to abide by this purported order. Reversed and remanded. Derksen v. Comm’r Pub. Safety, A24-0249, 2024 WL 3863558 (Minn. Ct. App. Aug. 19, 2024).

ASSAULT: DEFENDANT MAY NOT BE CONVICTED OF ATTEMPTED FIRST-DEGREE ASSAULT WHERE THE VICTIM DID NOT SUFFER GREAT BODILY HARM

Appellant was convicted of attempted first-degree assault (great bodily harm) and second-degree assault (dangerous weapon, substantial bodily harm) after cutting the victim’s neck. She argues on appeal that attempted-first degree assault is not a crime under Minnesota law.

Minn. Stat. § 609.221, subd. 1, provides that anyone who “assaults another and inflicts great bodily harm” may be convicted of first-degree assault. An assault is an act done with the intent to cause fear of great bodily harm or death or the intentional infliction or attempt to inflict bodily harm upon another. Minn. Stat. § 690.02, subd. 10. Attempt is defined as “[w]hoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.” Id. at 609.17, subd. 1.

The Court of Appeals notes that the assault statutory scheme is based on the level of harm inflicted, not intended, and each type of bodily harm is clearly distinguished (i.e., great bodily harm, substantial bodily harm, bodily harm). The court also notes that the legislature included attempts in other provisions of the assault statute, but not the subdivision at issue here, section 609.221, subd. 1. Thus, the plain language of the assault statute makes clear that, to be convicted of attempted first-degree assault (section 609.221, subd. 1), the State must prove the defendant assaulted another and inflicted great bodily harm – proof that a defendant intended a greater level of harm than the harm that resulted is not sufficient.

The court also holds the specific intent requirement of the attempt statute cannot be reconciled with the general intent requirement of the assault-harm statute. Attempt is a specific intent crime, which requires an intent to commit a particular crime. This is inconsistent with the general intent requirement of assault-harm, which requires only that the defendant intentionally engaged in the prohibited conduct. Applying the crime of attempt to assault-harm changes the nature of the offense to assault-fear, a separate offense. Appellant’s attempted first-degree assault conviction is reversed. State v. Oliver, A23-1062, 2024 WL 3863563 (Minn. Ct. App. Aug. 19, 2024).

CRIMINAL SEXUAL CONDUCT: PREDATORY CRIME IS “PREVIOUSLY COMMITTED” IF COMMITTED BEFORE SENTENCING DETERMINATION THAT THE OFFENDER IS A DANGER TO PUBLIC SAFETY

Appellant sexually assaulted a child in 2015. In 2017, he was convicted of an unrelated 2016 second-degree assault, a predatory crime. The victim from the 2015 offense disclosed the assault in 2021 and Appellant was convicted of second-degree criminal sexual conduct. At sentencing for the criminal sexual conduct offense, the district court found Appellant was eligible for the engrained offender sentencing enhancement because he had previously committed a predatory crime. Appellant argues that because the predatory crime, second-degree assault (2016), was committed after the criminal sexual conduct offense (2015), the predatory crime was not “previously committed.” The Court of Appeals rejected this argument and affirmed.

Sentences for certain sex offenses may be enhanced if “the offender previously committed” a predatory crime. Minn. Stat. § 609.3455, subd. 3a. The Supreme Court finds that the plain language of section 609.3455, subd. 3a, requires only that the predatory crime be committed before the sentencing determination for the present offense of conviction. The predatory crime need not be committed before the commission of the present offense. State v. Balsley, A23-0133, 10 N.W.3d 671 (Minn. Sup. Ct. Aug. 28, 2024).

FOURTH AMENDMENT: DOG SNIFF OF VEHICLE’S EXTERIOR IS PERMITTED IF SUPPORTED BY A REASONABLE, ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY

As part of an operation targeting drug, weapons, and sex trafficking, police used a drug detection dog to sniff the exterior of Respondent’s car when it was parked at a known trafficking location. Prior to the dog sniff, police determined the registered owner lived 130 miles away and was much older than the car’s occupants, and police observed Respondent spend a significant amount of time appearing to clean items from the car and place them in a plastic bag in the trunk. Police also noticed physical signs of prolonged drug use on the passenger and observed some suspicious items inside the vehicle that police thought could be drug related. While speaking with the passenger, police saw Respondent watch the interaction from a distance and then walk away towards a wooded area. After sniffing the vehicle’s exterior, the dog repeatedly alerted to the possible presence of controlled substances. The dog then sniffed the interior and again alerted. The police searched the vehicle and found 410 grams of methamphetamine. The district court denied Respondent’s motion to suppress the drugs found in the car and found him guilty of first-degree possession of narcotics. The Court of Appeals reversed the district court’s order on the suppression motion, finding police had no reasonable, articulable suspicion to justify the dog sniff of the car’s exterior.

The Supreme Court, however, finds that, under the totality of the circumstances, police did possess reasonable, articulable suspicion of drug-related criminal activity. The court emphasized the need to examine all the circumstances together, rather than merely evaluating each individual circumstance on its own. The Court of Appeals is reversed. State v. Garding, A22-1436, 2024 WL 3975342 (Minn. Sup. Ct. Aug. 28, 2024).

CONTROLLED SUBSTANCES: A FIREARM NEED NOT BE INSTANTLY ACCESSIBLE TO BE “WITHIN IMMEDIATE REACH” FOR AGGRAVATED FIRST-DEGREE CONTROLLED SUBSTANCE SALE AND POSSESSION

Police found 110 grams of methamphetamine and a handgun in a locked glove compartment in car driven by Appellant. Appellant was convicted of aggravated first-degree controlled substance possession and sale. The Court of Appeals rejected Appellant’s argument that the handgun was not “within immediate reach” because it was not immediately accessible in the locked glove box.

Aggravated first-degree controlled substance sale and possession both require proof that Appellant possessed a firearm “within immediate reach.” Minn. Stat. § 152.021, subd. 2b(1). “Within immediate reach” is not defined and the Supreme Court finds that conflicting definitions of “immediate” render the phrase ambiguous. The court declines to fully define the phrase, as the parties do not dispute the evidence was sufficient to convict Appellant under any reasonable interpretation of the phrase other than that it requires instant access. The court examines legislative intent and holds that “within immediate reach” does not require instant accessibility. Whether a firearm is in within immediate reach is a fact intensive inquiry that should be left to the factfinder. Here, the court finds the evidence was sufficient to allow the jury to find the firearm in the locked glove compartment was within immediate reach because Appellant was sitting in the driver’s seat and the key to the locked compartment was in the ignition. State v. Moore, A22-1570, 10 N.W.3d 676 (Minn. Sup. Ct. Aug. 28, 2024).