Minnesota Rules Past DUI Blood Tests Valid

Back in April 2013, the United States Supreme Court ruled in Missouri v. McNeely that the practice of requiring those suspected of driving drunk to submit to a blood test without a warrant was unconstitutional. There has been a lot of debate over the ruling and Implied Consent here in Minnesota, but the Supreme Court’s decision left one big question: What about those people who submitted to a test without a warrant prior to the ruling?

That was issue facing Shawn O’Connell, who submitted to a blood test after his arrest in Bloomington once he was informed of Minnesota’s Implied Consent law, which penalizes drivers who refuse to submit to a test, even in the absence of a warrant. After the McNeely decision was handed down, O’Connell rightfully challenged that he be allowed to withdraw his plea based on the fact that the state’s case hung on the fact that he submitted to a test without a warrant.

Unfortunately for O’Connell, Judge Louise Dovre Bjorkman did not want to be a champion of individual rights. In her ruling last week, Bjorkman stated:

“Prior to McNeely, many jurisdictions, including Minnesota, recognized that the natural dissipation of alcohol in the blood constituted a per se exigency justifying a warrantless search. McNeely changed the law in these jurisdictions. Law enforcement can no longer rely on natural dissipation alone to create an exigent circumstance.  Rather, law enforcement is now obligated to obtain a warrant or establish a valid exception to the warrant requirement based on the totality of the circumstances. And the split in authority prior to McNeely demonstrates its holding was not dictated by existing precedent. We conclude that McNeely announced a new rule that would generally not apply to final convictions on collateral review.”

In a statement that clearly throws due process out the window, Bjorkman concluded:

“The requirement that law enforcement secure a warrant, or establish an exception to the warrant requirement, before administering a breath, blood, or urine test has little bearing on the accuracy of the underlying determination of guilt. Rather, it merely addresses the procedural requirements law enforcement must follow when gathering evidence against a suspect.”

In essence, so long as the ends justify the means, then violating a person’s 4th Amendment rights is fine. This is a dangerous precedent, and we as citizens should be concerned.

Related source: MPR News

What is Transdermal Alcohol Monitoring?

If you’re convicted of a crime, you’re likely to face a range of punishments, be it jail time, a fine, probation or any other option the court deems fit. If you’re convicted of a crime involving drugs or alcohol, the judge will likely impose restrictions on future substance use. You may be forbidden from consuming alcohol for a set period of time, but how can the court ensure you’re sticking to your probation guidelines? After all, your probation officer isn’t going to follow you 24/7. One such way the courts keep tabs on people is through a device called a Transdermal Alcohol Monitoring Device.

The device has many names, but it’s usually called the TAD or CAD, short for Transdermal/Continuous Alcohol Device. Transdermal, which is a fancy way of saying “through the skin,” suggests that the device measures skin emissions to determine what substances are in a person’s body. Although the device can’t detect what you had for lunch that day, it does test for the presence of alcohol, marijuana or other illegal substances.

Transdermal technology has been around for a long time, as the science behind alcohol emissions through the skin have been studied since the 1920s. The science was thoroughly tested, and in 1985 researchers at Indiana University School of Medicine published dual studies that analyzed how volatile substances moved through the skin and how they were emitted through perspiration.

How it Works

One of the more popular TAD devices, known as the SCRAM bracelet (short for Secure Continuous Remote Alcohol Monitor), takes a skin emission sample every 30 minutes throughout the day. Typically the devices are attached to a person’s ankle, and every half hour a tiny air pump collects an emission sample and tests its contents.

Unlike a home monitoring device, the SCRAM bracelet does not monitor your exact location, and cops aren’t going to descend on your house the minute alcohol touches your lips. Instead the device has to be synced up with a special wireless router that relays the recordings to the proper authorities. Typically these devices send their data in the early hours of the morning, between 3 am and 5 am, because the user is likely sleeping in his or her home where the router is located.

Some users note that the device can be tricked by placing a piece of paper or plastic over your skin. That method isn’t recommended though. While your alcohol content will read zero, the device will be able to tell that it did not get a true sample, which means you’ll likely be in violation of your parole for attempting to tamper with the device.

Related source: Scram Systems

Scholarship For Aspiring Law Students – The ALF Crime Scholarship

We’re excited to announce that we will once again be providing a law school student with a $1,000 scholarship to use for tuition and related expenses! Last year was the first year we gave away the scholarship, and it was a huge success.

To keep things simple, we’re not doing much to change up the requirements for the scholarship. In order to be eligible for the Appelman Law Firm Criminal Defense Scholarship an applicant must meet the following criteria:

  • Be a U.S. citizen or permanent resident.
  • Have a criminal record or a significant law-related life event that sparked an interest in pursuing a career in law.
  • Be enrolled or accepted into an accredited law school in the United States.
  • Have a cumulative GPA of 3.50 or higher.

Do you meet those criteria? Great! Here’s the rest of the information you need to send in to be eligible to receive the scholarship.


An applicant will need to submit the following documents:

  • An official copy of your current academic transcript.
  • Copy of the police report documenting your criminal record. (This information will be held in confidence.)
  • An essay of 1-3 pages describing your crime, punishment, how the incident led you to pursue a career in law/criminal justice and what you intend to do in the future with your law degree.

Upon selection, the winner will need to provide proof of residency, and Appelman Law Firm will contact you/your school to ensure the funds go towards appropriate expenses.

Award and Deadlines

One award winner will be selected to receive a $1,000 scholarship to assist with their college expenses. The winner will be notified of their selection on or before August 1, 2015.

Applications and all required forms must be postmarked no later than May 31st, 2015. You can email your application and documents to Ryan McGinty at ryan@aacriminallaw.com, or you can mail your submission to:

Appelman Law Firm
4501 Minnetonka Boulevard Suite 100
St. Louis Park, MN, 55126

MLK’s View on Law From a Birmingham Jail Cell 

Today is Martin Luther King Day, a day when we honor Dr. King for his role in bringing the Civil Rights Movement to the national stage. We’ve written about Dr. King’s fascinating legal escapades last year in a post, but today we present his poignant view on law and the citizen’s role in questioning it.

Here is an excerpt from his piece, Letter From a Birmingham Jail. The full text can be read here.

We have waited for more than 340 years for our constitutional and God given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, “Wait.”

But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: “Daddy, why do white people treat colored people so mean?”; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger,” your middle name becomes “boy” (however old you are) and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodiness”–then you will understand why we find it difficult to wait.

There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern.

Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.

All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an “I it” relationship for an “I thou” relationship and ends up relegating persons to the status of things.

Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man’s tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law. 

The Top States For Black Homicide Victims

Protests and demonstrations calling for an end to police brutality and racial discrepancies have made headlines over the past week, and for good reason. Murders and homicides shake small communities to the core, but oftentimes it’s black communities that are most affected.

According to FBI, in 2012 the national homicide rate was 4.5 homicides per 100,000 people. For whites, that rate fell to 2.65 per 100,000. For African Americans, that rate skyrocketed to 18.03 per 100,000.

Digging further into the statistics, we can see which states have the most black homicide victims per 100,000 people.

The Top 10

The top ten states for black homicide victims are:

1. Missouri – 34.98 per 100,000
2 Nebraska – 34.93
3 Michigan – 34.77
4 Pennsylvania – 31.02
5 Louisiana – 25.75
6 Indiana – 25.48
7 Oklahoma – 25.04
8 Wisconsin – 24.38
9 California – 23.25
10 Tennessee – 22.40

Surprisingly, a slew of Midwestern states fall on that list. Michigan, Indiana and Wisconsin all rank in the top 8. As for Minnesota, the Land of 10,000 Lakes lands right in the middle of the list at 24, with 15.44 deaths per 100,00 people.

Additionally, six states reported zero black homicide victims in 2012. Those states are Hawaii, Idaho, Maine, Montana, New Hampshire and Wyoming.

More Data

Some related data from the findings include:

  • Of the 6,565 black homicide victims, 5,708 (87 percent) were male, and 856 (13 percent) were female.
  • The homicide rate for black male victims was 32.78 per 100,000. In comparison, the overall rate for male homicide victims was 7.27
    per 100,000. For white male homicide victims it was 3.86 per 100,000.
  • The homicide rate for female black victims was 4.51 per 100,000. In comparison, the overall rate for female homicide victims was 1.80 per 100,000. For white female homicide victims it was 1.45 per 100,000.
  • 17 states had a black homicide victimization rate higher than the national per capita rate of 18.03 per

Related source: Violence Policy Center

35 Charged in #BlackLivesMatter Protest at Mall of America

A total of 35 people have been charged in connection with their participation in the Black Lives Matter protest at the Mall of America on December 20, one of the busiest shopping days of the year.

10 organizers face a range of charges, while 25 others face charges stemming from their arrests on the day of the protest, Bloomington Police Chief Rick Hart said in a release. Some of the charges filed include:

  • Unlawful assembly
  • Public nuisance
  • Trespassing

“To ensure the safety and experience of its guests, Mall of America has had a long-standing policy in place that does not allow protests or demonstrations on their site. This policy has been consistently enforced. The Black Lives Matter group was informed that it did not have permission to gather and demonstrate in Mall of America. An alternative location was provided, and rally organizers declined to re-locate the demonstration.”

The demonstration, spurred by the high profile deaths of citizens Michael Brown and Eric Garner at the hands of police, sought to decry and bring attention to the problem of police brutality. An estimated 1,500 to 2,000 people took part in the demonstration, despite warnings from police. After the event, authorities announced they were conducting an investigation into who helped organize the demonstration.  Details of the event were primarily shared on social media sites like Facebook and Twitter.

Over 80 stores had to be shut down for two hours out of concerns for public safety. Bloomington officials said lost revenue on one of the busiest days of the year, as well as the extra cost of providing an increased officer presence at the mall led to the decision to pursue charges.

Organizers of the event said they were “saddened” by the city’s decision to use public resources to put an end to the protest.

Related source: Pioneer Press

Five Facts About Police Body Cameras

Police body cameras are popping up across Minnesota and the United States, but not a lot is known about the technology. Today, we share five facts about police body cameras.

1. Becoming the norm – As we mentioned above, an increasing amount of police precincts are adopting the body cameras. Michael White, a professor at Arizona State University’s School of Criminology and Criminal Justice, estimated that 25 percent of police departments are using the technology or are planning on instituting the cameras in the near future. White believes that figure will jump to 33 percent or even as high as 50 percent within the next year.

2. The cameras are costly – Your Canon Rebel may have only cost $80, but police body cameras have a much larger price tag. Research conducted by the Police Executive Research Forum found that agencies spent between $120 and $2,000 for each camera. For example, the Mesa Police Department just spent $67,000 on 50 new cameras. There are also additional fees for video storage and expert analysis.

3.  No long term studies - Because of their relatively recent inception, there really aren’t any long term studies on the effectiveness of the body cameras. A short term study in California found that allegations of police misconduct and false claims dropped in the months after the department adopted the cameras, but not much is known about their long term effectiveness.  Researchers also want to determine how effective the video evidence is in the court of law, in terms of guilty verdicts.

4. Some disagreement over recording procedures – Since the cameras don’t constantly record, there has been some debate over when they should be turned on. Some departments want their officers to turn on their cameras during every encounter, while some officers think they should only be recording when a citation or arrest is likely. The American Civil Liberties Union believes all encounters should be recorded in order to avoid any possible tampering.

5. Minnesota ahead of the curve - While some departments are discussing the cameras, many Minnesota precincts are early adopters. Departments in Burnsville, Duluth, Gilbert, Farmington and Minneapolis have all begun outfitting their officers with cameras. Assuming the cameras are successful in reducing false claims and instances of police brutality, it seems likely that more Minnesota cities will join the movement.

Related source: AZ Central


Poor Drunk Driving Excuse and Vanilla Extract DUI

We mentioned last week that although DUIs were down over the course of the year in Minnesota, there was a spike during the holidays. That holiday increase likely came as little surprise to Daniel Pratts, who was arrested in New Jersey on New Year’s Eve.

An officer pulled Pratts over after witnessing the driver blow through a stop sign. The officer suspected that Pratts had been drinking, but the driver refused to take a breath test. Despite his refusal to comply, the officer had enough evidence to place Pratts under arrest and take him to the station.

According to the police report, while at the station Pratts told the officer that he shouldn’t be charged with a DUI because “it’s New Year’s Eve, everyone drives drunk.” Unfortunately for Pratts, the officer wasn’t buying his logic. Pratts was eventually charged with driving under the influence, refusal to take a breath test and reckless driving.

Excess Extract

A New York woman has been charged with a sweet smelling DUI after consuming alcohol-rich vanilla extract and getting behind the wheel.

Carolyn Kesel, 46, was stopped by officers after they noticed that she was driving erratically in a Wal-Mart parking lot. Authorities suspected Kesel was under the influence after a short discussion, and they asked her to submit to a Breathalyzer. The breath test revealed she was operating the vehicle with BAC more than three times the legal limit.

A subsequent search of the vehicle uncovered a bottle of vanilla extract. According to FDA standards, pure vanilla extract contains a defined level of natural vanilla and a minimum of 35 percent alcohol. Authorities said the bottle found in Kesel’s car was 41 percent alcohol.

Kesel was eventually charged with driving under the influence.

Related source: WATE, Huffington Post

DUIs Spike During Holidays But Down Overall in 2014

Although Minnesota saw a small increase in DUIs during the holiday season compared to 2013, the state saw an overall reduction in the annual number of drunk driver arrests.

A Freeborn County woman with a 0.45 blood-alcohol concentration was one of 2,537 Minnesotans arrested during the “Drive Sober or Get Pulled Over” campaign that stretched from Thanksgiving to New Year’s Eve. That’s up ever so slightly from 2013 when 2,453 drivers were arrested during the same holiday period.

Despite the holiday uptick, DUI arrest numbers are trending in the right direction. 24,159 people were arrested for DUI in Minnesota in 2014, more than a 6 percent decrease from 2013 when 25,719 Minnesotans were booked for drunk driving. This year marked the eighth straight year the drunk driving arrests fell, but Donna Berger, director of the Minnesota DPS’ Office of Traffic Safety, said DUIs are still a problem in the Land of 10,000 Lakes.

“Drunk driving is a choice, a choice that can have life-altering consequences for you or other on the roads,” said Berger. “Even though we are encouraged by declining DWI numbers, one drunk driver is one too many.”

Speaking of one too many, although the Freeborn County woman took the unofficial record for highest BAC, the police statistics show that 16 drivers were booked with a blood-alcohol concentration of 0.30 or greater, essentially four times the legal limit. The State Patrol said these individuals are lucky they didn’t hurt themselves or others during their drunken drive.

“This woman is very fortunate that she didn’t injure or kill herself or another motorist,” said State Patrol Lt. Tiffani Nielson.

More DUI Statistics

Some other statistics from the six-week DUI enforcement include:

  • 303 drivers were arrested for DUI on the Saturday before Christmas, the highest one-day total during the six-week stretch.
  • The State Patrol’s east metro district had the most DUI arrests during the campaign, with 168.
  • Outside the metro, the top DUI arresting agencies were in Rochester, St. Cloud and Stearns County.
  • In addition to drunk driving arrests, police also issued 2,093 seat belt violations during the six-week campaign.

Minnesota Women Used Facebook To Take Shoplifting Orders

Nine Minnesota women are accused of taking shoplifting orders on Facebook before heading into several stores and stealing the items.

Some of the stolen items include 30 bottles of name-brand perfume, 41 pairs of Levi jeans and multiple designer handbags. The thefts occurred at stores in Burnsville, Maplewood, St. Paul and other local outlets.

Ramsey County Attorney John Choi said he believes these women are part or a larger shoplifting ring.

“I’d be willing to bet this is just the tip of the iceberg,” said Choi.

Police say the women were part of a sophisticated and organized shoplifting ring. Those involved would use Facebook and other social media sites to take “orders” before heading to the stores to steal the high-end merchandise. Shoplifting and fraud cases aren’t usually top priority for most departments, but Choi said stopping these types of crimes are very important.

“I think when you’ve got organized rings like this and you’ve got chronic individuals who are engaged in this type of activity, it really sends the wrong message if they can continuously get away with all this,” Choi said.

20 Felonies

In all, the nine women have been charged with 20 felony counts in five different counties. Criminal complaints suggest the women stole approximately $35,000 in merchandise from several stores between September 2012 and June 2014.

Police documents suggest the alleged criminals were very organized in their ruse. Authorities say the women:

  • Took specific routes to stores.
  • Parked out of range of video cameras.
  • Teamed up with accomplices to complete a job.
  • Devised specific tactics for certain stores.

One of the women, Christina Coombs, told police she’d steal goods then post the items “for sale” on Facebook, usually at half price. Coombs told authorities she had between 200 to 300 customers, not including repeat buyers.

Briana Jefferson, who worked with Coombs during several thefts, has been charged with five felonies. He told police she only stole the goods “to feed her kids and pay her bills.”

Nationally, shoplifting and related retail crime costs retailers about $30 billion a year.

Related source: Inforum.com


by Appelman Law Firm