DWI

WHEN CHALLENGING A TEST REFUSAL CONVICTION IN POSTCONVICTION PROCEEDINGS, PETITIONER MUST ALLEGE AND PROVE THERE WAS NO WARRANT AND NO EXCEPTION APPLIES

Respondent was arrested for driving while under the influence of narcotics. He was read the implied consent advisory and refused urine and blood tests. Respondent ultimately pleaded guilty to first-degree test refusal. In his second postconviction petition, he argued State v. Trahan, 886 N.W.2d 216 (Minn. 2016), and State v. Thompson, 886 N.W.2d 224 (Minn. 2016) (establishing that the State may not criminalize refusal of a blood or urine test absent a search warrant or an applicable exception to the warrant requirement), rendered his conviction unconstitutional. His petition was denied. The Court of Appeals found that the district court erred in concluding it was Respondent’s burden to prove the absence of exigent circumstances.

The Supreme Court reverses the Court of Appeals, finding that the district court properly placed the burden of proof on Respondent. The Court notes that in Johnson v. State, 916 N.W.2d 674 (Minn. 2018), the Court held that Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) (holding that blood test refusals could be criminalized only if police had a warrant or some other exception to the warrant requirement applied) applied retroactively. However, the Court did not specify in Johnson who had the burden of proving or disproving the applicability of a warrant requirement exception.

The postconviction statute and case law makes clear that the petitioner generally has the burden of proof in postconviction proceedings. The Court declines to “write a different rule here.” However, because this rule requires the petitioner to prove two negatives (no warrant and no exception), the Court adopts a heightened pleading requirement for Birchfield/Johnson postconviction proceedings, to ensure fairness.

First, the petitioner must affirmatively allege that no warrant was issued and that no warrant exception was applicable. Then, if the State wishes to controvert the petitioner’s allegations, it must do so in its responsive answer or motion, or the argument will be waived. The State must admit or deny the existence of a warrant and, if no warrant was issued, either admit the lack of an exception or state the specific exception relied on and the grounds for the State’s reliance in sufficient detail to give Petitioner adequate notice. The case is remanded to the district court to allow the parties to comply with this new pleading standard. Fagin v. State, 933 N.W.2d 774 (Minn. Oct. 2, 2019).

SENTENCING

UPWARD DEPARTURE BASED ON VICTIMS’ PARTICULAR VULNERABILITY ALLOWED WHEN VICTIMS FORCED AT GUNPOINT TO DISROBE

During the robbery of a home with an accomplice, Appellant’s accomplice, who had a gun in hand, ordered the victims to take off their clothes and Appellant placed a gun to the victims’ heads and ordered them to unlock a safe. Appellant pleaded guilty to, among other crimes, aiding and abetting first-degree aggravated robbery. A bench trial was held to determining whether a sentencing departure was appropriate. At issue here is the district court’s conclusion that an upward departure was justified based on the victims’ particular vulnerability, that is, their nudity.

In this case of first impression, the Court of Appeals holds that nudity may be considered as an aggravating factor for an upward departure. The sentencing guidelines provide a list of grounds for finding that a victim is particularly vulnerable, but that list is nonexclusive and has been expanded by the courts.

Appellant argues that the upward departure was not warranted because his victims’ nudity was not a substantial factor in the completion of the crime. However, neither the sentencing guidelines nor case law require that the victim’s particular vulnerability play a substantial part in the commission of the crime to warrant an upward departure on those grounds. Without deciding whether a substantial factor finding is required, the Court determines that the facts of the case support such a finding. Thus, the Court affirms the district court’s grant of an upward departure.

The Court finds, however, that the district court abused its discretion in imposing a greater than double upward departure, as there are not “circumstances so severe that this case is one of the extremely rare cases in which more than a double durational departure is justified.” The case is reversed and remanded for resentencing. State v. Rabold, A19-0278, 2019 WL 4924521 (Minn. Ct. App. Oct. 7, 2019).

FIRST AMENDMENT

MINN. STAT. § 609.27, SUBD. 1(4), IS FACIALLY UNCONSTITUTIONAL

The district court dismissed the complaint against Respondent, finding the charging statute, Minn. Stat. § 609.27, subd. 1(4), violated the First Amendment. Respondent was charged with attempted coercion after Respondent allegedly threatened to release a video of his ex-girlfriend “talking about smoking marijuana” to the Department of Human Services and her employer.

First, the Court of Appeals finds that the plain language of section 609.27, subd. 1(4), is not ambiguous and restricts protected speech. Section 609.27, subd. 1, provides that “[w]hoever orally or in writing makes any of the following threats and thereby causes another against the other’s will to do any act or forbear doing a lawful act is guilty of coercion… (4) a threat to expose a secret or deformity, publish a defamatory statement, or otherwise expose any person to disgrace or ridicule.” The following terms are not defined: threat, secret, disgrace, deformity, or ridicule. The Court looks to the obvious or common meanings of the words, and concludes section 609.27, subd. 1(4), criminalizes threats to expose something hidden, malformed, or defamatory that otherwise exposes any person to shame or contempt, and thereby cause another against their will to do any act or forbear a lawful act. The statute broadly criminalizes any threat to expose a secret or deformity that causes another against the other’s will to do any act or forbear doing a lawful act. Thus, it reaches more than unprotected threats to extort or defame and also criminalizes a substantial amount of constitutionally protected speech.

Next, the Court finds section 609.27, subd. 1(4), is not subject to a narrowing construction, nor can the unconstitutional language be severed, as both would require the Court to rewrite the statute. Ultimately, the Court finds section 609.27, subd. 1(4), is unconstitutional, as it is facially overbroad under the First Amendment. The district court is affirmed. State v. Jorgenson, 934 N.W.2d 362 (Minn. Ct. App. Oct. 7, 2019).

FOURTH AMENDMENT

SEIZURE OF EVIDENCE IS PROPER IF THE ITEM IS DESCRIBED IN THE WARRANT, THERE IS A STRONG RELATIONSHIP BETWEEN THE ITEM AND THINGS DESCRIBED IN THE WARRANT, OR THE ITEM CLEARLY AND DEFINITELY RELATES TO CRIMINAL CONDUCT THAT GAVE RISE TO THE WARRANT

Respondent was charged with criminal sexual conduct offenses and moved to suppress evidence found during a search. Prior to Appellant’s arrest, police obtained a warrant to search Appellant’s property and seize a number of items, including a “white dish towel-like cloth used by suspect following the sexual assault which is believed to be located in the red shed,” based on the victim’s description of Respondent taking her to a red shed, assaulting her, and using “a white cloth, similar to a dish rag” to wipe himself afterward. Police seized two white towels, one white towel with a floral design, and a blue and white striped towel. Testing later revealed semen on the blue and white striped towel that matched Respondent’s DNA. The district court suppressed evidence relating to the blue and white striped towel, finding its seizure exceeded the scope of the warrant.

Without determining whether the blue and white striped towel is within the search warrant’s description of the things to be seized, the Court of Appeals concludes that the towel was properly seized even if not described by the search warrant. At the very least, there is a “strong relationship between the blue-and-white striped towel and the white dish towel-like cloth that was described in the warrant.” The seizing officer had also just interviewed the victim, and “it was reasonable for him to conclude that the blue and white striped towel clearly and definitely relate[d] to the behavior which prompted the issuance of the search warrant.” The district court erred by suppressing evidence of the blue and white striped towel. State v. Sexter, A19-0586, 2019 WL 5106662 (Minn. Ct. App. Oct. 14, 2019).

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