June 2020

DWI

MISSOURI V. MCNEELY APPLIES RETROACTIVELY TO CHALLENGES OF FINAL CONVICTIONS FOR TEST REFUSAL UNDER BIRCHFIELD V. NORTH DAKOTA

In 2011, after crashing his vehicle into a median, Appellant was taken to the hospital, where police asked him to submit to a blood or urine test. Appellant refused and ultimately pleaded guilty to third-degree test refusal. In his 2017 post conviction petition, Appellant argued his conviction was unconstitutional under Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), because it was based on his refusal to submit to a warrantless blood or urine test in the absence of an exception to the warrant requirement. The district court denied Appellant’s petition and he appealed, but his appeal was stayed pending the Minnesota Supreme Court’s decision in Johnson v. State, 916 N.W.2d 674 (Minn. 2018). In Johnson, the court held Birchfield announced a substantive rule that applies retroactively to convictions that were final before the rule was announced. However, the district court was left to determine whether a warrant or an exception to the warrant requirement existed at the time of the test refusal. The district court found that the per se exigent circumstances exception (based on the dissipation of alcohol) applied and that, although this exception was invalidated in Missouri v. McNeely, 569 U.S. 141 (2013), McNeely does not apply retroactively.

The Court of Appeals finds that, in the test refusal context, McNeely’s rule is substantive and should be applied retroactively. “[T]he requirement that law enforcement secure a warrant or establish an exception to the warrant requirement has a critical bearing on the accuracy of the underlying determination of guilt,” and the driver cannot be convicted of test refusal “[w]ithout constitutional justification for the blood or urine test.” The State acknowledged no warrant existed for the requested blood or urine tests, but asserted the per se exigency exception applied. However, because the Court of Appeal concludes here that the per se exigency exception does not apply to Appellant’s case, the district court erred in concluding that an exception to the warrant requirement applied. Thus, Appellant’s conviction was unconstitutional and is reversed. Hagerman v. State, No. A19-1526, 2020 WL 2828783 (Minn. Ct. App. June 1, 2020).

HARASSMENT RESTRAINING ORDER

VIOLATION OF A HARASSMENT RESTRAINING ORDER REQUIRES PROOF OF KNOWLEDGE OF FACTS THAT WOULD CAUSE DEFENDANT TO BE IN VIOLATION OF ORDER

Appellant was prohibited by a harassment restraining order (HRO) from having contact with M.L.B. or from being within 100 feet of her residence, but her address was not disclosed in the HRO. He was convicted of violating the HRO after walking within 100 feet of M.L.B.’s apartment building. Before the district court and on appeal, Appellant argued the State did not prove Appellant knew the location of Appellant’s residence. The district court found him guilty but specifically found credible his explanation that he was walking in the area of M.L.B.’s apartment for the purpose of going to lunch and that the State did not prove beyond a reasonable doubt that Appellant had notice or knowledge of the location of M.L.B.’s residence.

Knowledge of the location from which a defendant is prohibited from being is not required by Minn. Stat. § 609.748, subd. 6(a), (b). However, the general common law rule is that proof of mens rea is required unless one of two exceptions apply: (1) the statute clearly sets forth a strict liability offense, or (2) the statute creates a “public welfare offense.”

Section 609.748, subd. 6, is void of any language concerning mens rea, including any language clearly evidencing the legislature’s intent to dispense with mens rea. Thus, the first exception to the common law mens rea rule does not apply.

As to the second exception, Minnesota’s appellate courts “have recognized that certain crimes arising from regulatory schemes fall within the ‘public welfare’ or ‘regulatory’ category,” such as keeping an unopened bottle of liquor in an automobile, DWI, serving alcohol to a minor, failing to provide proof of vehicle insurance, etc. Section 609.748, subdivision 6, is neither regulatory nor concerned with public welfare, but is, instead, concerned with physical or sexual assault and repeated incidents of intrusive or unwanted acts, words, or gestures. Thus, the court holds it is not a public welfare offense.

As neither exception to the common law rule that proof of mens rea is required applies, a conviction under 609.748, subd. 6, requires proof that the defendant had knowledge of the facts that would lead him or her to be in violation of an HRO. In this case, those facts included M.L.B.’s address. The record shows the State failed to meet this burden, and, therefore, the evidence is insufficient to sustain Appellant’s conviction. State v. Andersen, No. A19-0923, 2020 WL 3041277 (Minn. Ct. App. June 8, 2020).

PROCEDURE

DEFENSE COUNSEL’S CONCESSION OF SOME OF THE ELEMENTS OF THE CRIMES IS NOT A CONCESSION OF GUILT WARRANTING A NEW TRIAL

Respondent, a 26-year-old, was charged with first- and third-degree criminal sexual conduct for sexually penetrating a 12-year-old and a 13-year-old. Evidence presented at trial included DNA evidence, cell phone records showing communications between Respondent and the two victims and videos of one of the assaults, and statements from the victims identifying Respondent. In written arguments to the district court following a bench trial, defense counsel conceded the victims’ ages, Respondent’s age, the age differential between the parties, and venue in Steele County. The district court found Respondent guilty on both counts, making specific findings as to the parties’ ages, the age differential, and the county of the crimes. The Court of Appeals reversed on the grounds of ineffective assistance of counsel, finding that defense counsel’s concessions of elements of the crimes conceded guilt without Respondent’s consent or acquiescence.

The Minnesota Supreme Court reversed the Court of Appeals. Where ineffective assistance of counsel based on counsel’s concession of guilt without the client’s consent or acquiescence is claimed, a new trial is warranted without a showing of prejudice. That is, if such an improper concession was made, counsel’s performance is considered deficient and prejudice is presumed.

Here, however, Respondent’s counsel conceded various elements of the offense, not Respondent’s guilt. While an analysis of whether guilt was conceded necessarily requires an analysis of whether elements have been conceded, the court clarifies that an uncontested-to concession on any single element does not necessarily amount to a concession of guilt. On the other hand, a concession on each and every element of the crime is not necessarily required. In this case, counsel conceded fewer than all of the elements of the offenses against Respondent, and the elements conceded were undisputed at trial. Counsel never conceded the highly contested question of whether the Respondent sexually penetrated either victim. Thus, Respondent’s trial counsel was not ineffective and a new trial is not warranted. State v. Huisman, 944 N.W.2d 464 (Minn. June 10, 2020).