September 2020

DWI: POSTCONVICTION CHALLENGE OF A TEST REFUSAL CONVICTION IS TIMELY IF FILED WITHIN TWO YEARS OF JOHNSON v. STATE

Appellant was arrested for DWI after police suspected he drove while under the influence of cannabis. He was offered blood and urine tests, but he refused both. He ultimately pleaded guilty to third-degree test refusal. He was discharged from probation in 2014. In 2019, he petitioned for postconviction relief asking that his conviction be vacated based on the rule declared in Birchfield v. North Dakota, 136 S.Ct. 1260 (2016), a rule the Minnesota Supreme Court declared retroactive in Johnson v. State, 916 N.W.2d 674 (Minn. 2018). The State argued Appellant’s petition was time-barred, because it was not filed within two years of the 2016 Birchfield decision. The postconviction court found Appellant’s petition timely, but denied the petition.

First, the Court of Appeals agrees that Appellant’s petition was timely. Section 590.01, subd. 4(a), requires that a post conviction petition be filed within two years of a conviction, sentence, or appeal disposition, but the court can consider petitions filed outside of that time if any of five exceptions applies. Petitions invoking an exception must be filed within two years of the date the claim arises, that is within two years of when the petitioner knew or should have known that the claim existed. Minn. Stat. § 590.01, subd. 4(c). Appellant invokes the exception to the general two-year requirement contained in section 590.01, subd. 4(b)(3), which applies when “the petitioner asserts a new interpretation of federal or state constitutional or statutory law... and the petitioner establishes that this interpretation is retroactively applicable to the petitioner’s case.” The event that supports Appellant’s right to postconviction relief is the new and retroactive interpretation of law, which occurred in two steps: (1) a new rule of law was announced in Birchfield, and (2) Johnson determined that the Birchfield rule applies retroactively. This second step did not occur until 2018. Thus, Appellant’s 2019 petition was timely.

Next, the court holds that the post conviction court erred in denying Appellant’s petition based on the post conviction court’s conclusion that the McNeely rule does not apply retroactively to Appellant’s case. The retroactive application of Missouri v. McNeely, 133 S.Ct. 1552 (2013), was decided by the court in Hagerman v. State, 945 N.W.2d 872 (Minn. Ct. App. 2020), review granted (Minn. Aug. 25, 2020), in which the court held that “McNeely, as applied through the Birchfield rule, is substantive and retroactive.” Thus, the post conviction court’s decision is reversed.

Finally, the court concludes the postconviction court erred in failing to follow the heightened pleading requirement and burden-shifting procedure set out in Fagin v State, 933 N.W.2d 774 (Minn. 2019), for postconviction challenges raising a Birchfield claim. The case is remanded for further proceedings. Edwards v. State, 950 N.W.2d 309 (Minn. Ct. App. Sept. 21, 2020).

FOURTH AMENDMENT: SCOPE OF TRAFFIC STOP MAY BE EXPANDED TO INVESTIGATE SUSPECTED PRETRIAL RELEASE VIOLATION IF EXPANSION IS REASONABLE UNDER TERRY v. OHIO AND SUPPORTED BY REASONABLE SUSPICION

Appellant was on pretrial release with conditions in a DWI and controlled substance case when police pulled over a speeding vehicle in which he was a passenger. The officer recognized Appellant and was aware he had a record. The officer had also investigated Appellant’s involvement in an assault ten days earlier, during which he learned Appellant was on pretrial release. The officer smelled alcohol coming from the vehicle and asked the driver and passengers if they had been drinking. Appellant responded affirmatively and admitted a condition of his release was abstaining from alcohol. Appellant then blew 0.03 on a PBT. He was arrested for violating his release conditions. During a search of his person, the officer found shotgun shells in his clothing. The district court denied Appellant’s motion to suppress the shotgun shells, concluding the evidence was found during a valid search incident to arrest. Appellant was convicted for unlawful possession of ammunition after a stipulated facts bench trial.

When a lawful investigatory traffic stop is expanded beyond the initial purpose of the stop, each incremental intrusion must be tied to the original legitimate purpose of the stop, be supported by independent probable cause, or be reasonable, as defined in Terry v. Ohio, 88 S.Ct. 1868 (1968). Here, the traffic stop was initially justified because the driver of the vehicle failed to signal a turn.

The expansion of the stop to investigate whether Appellant’s alcohol consumption violated any pretrial release conditions was also justified, because the court finds it was reasonable under Terry. Terry calls for a balancing of the government’s need to search and seize and the individual’s right to personal security free from arbitrary interference by the government. The court finds that expanding the investigation to include Appellant’s pretrial release status did intrude upon his individual rights, but that the intrusion was minimal. This minimal intrusion was outweighed by the public safety interest underlying the imposition of pretrial release condition.

The officer also articulated an adequate basis to expand the stop to investigate Appellant’s pretrial status. When the officer asked Appellant if he was subject to a “no drinking” condition, he had smelled alcohol in the vehicle, Appellant had admitted to consuming alcohol, and the officer was aware of Appellant’s history with law enforcement and that Appellant was on pretrial release ten days earlier. Under these circumstances, the officer reasonably suspected a pretrial release violation and was justified in questioning Appellant about his release conditions. Appellant’s subsequent admission that he had a “no drinking” condition provided a reasonable basis for the PBT. The PBT’s confirmation of Appellant’s alcohol consumption provided a reasonable basis for the officer’s investigation into the status and conditions of Appellant’s pretrial release. That investigation led to Appellant’s lawful arrest for violating his pretrial release conditions and the discovery of shotgun shells during search incident to Appellant’s arrest. Under these circumstances, the expansion of the traffic stop was justified, and the district court did not err in denying Appellant’s motion to suppress evidence seized as a result of that expansion. State v. Sargent, A19-1554, 2020 WL 5755482 (Minn. Ct. App. Sept. 28, 2020).