Preview
62-CV-18-8005
Filed in District Court
State of Minnesota
12/11/2018 3:29 PM
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT
Francesca Maria Ramos, Case Type 6: Implied Consent
Petitioner, IMPLIED CONSENT PETITION
FOR JUDICIAL REVIEW OF
vs. DRIVER’S LICENSE REVOCATION
AND/OR LICENSE PLATE
Commissioner of Public Safety, IMPOUNDMENT
Respondent. File No: ____________
PLEASE TAKE NOTICE that, pursuant to Minn. Stat. § 169A.53, Subd. 2(c), the
above-named Petitioner, by and through counsel, hereby requests judicial review of the
revocation of Petitioner's driver's license.
PETITIONER DEMANDS THAT A JUDGE HEAR THIS CASE.
PETITIONER DEMANDS A TEMPORARY STAY OF THE BALANCE OF THE IMPLIED
CONSENT DRIVER’S LICENSE REVOCATION PENDING A HEARING.
PETITIONER DEMANDS A HEARING WITHIN 60 DAYS.
FACTS
1. The true and correct name of the Petitioner is Francesca Maria Ramos.
Petitioner’s date of birth is 7/11/1990. Petitioner’s driver’s license number
is G887-004-851-223. Petitioner’s license plate number is AUP983.
2. The alleged offense for which the Petitioner's driver’s license was revoked
occurred on December 9, 2018 city of Roseville, county of Ramsey,
State of Minnesota.
3. Petitioner’s Notice and Order of Revocation is attached hereto.
4. Petitioner incorporates as the specific factual basis for each of the indicated
claims in the petition the following:
a. Petitioner was arrested on December 9, 2018 and Petitioner’s
driving privileges are pending revocation, or have been revoked as a result.
b. Petitioner was not involved in an accident involving property damage
or personal injury.
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62-CV-18-8005
Filed in District Court
State of Minnesota
12/11/2018 3:29 PM
ISSUES
1. The peace officer did not have valid articulable grounds to make an
investigatory stop or seizure of Petitioner.
2. Petitioner did not fail a properly calibrated and approved preliminary
breath test (PBT) or refuse to take such. Moreover, a PBT is a search requiring probable
cause; thus is cannot be used to garner probable cause. See Missouri v. McNeely, 133 S.
Ct. 1552 (2013) (DWI evidentiary breath test is a search requiring both probable cause
and a warrant or an exception to the warrant requirement); State v. Hardy, 577 N.W.2d
212 (Minn. 1998) (police request for suspect to open mouth to see if he had swallowed
drugs was a search requiring probable cause).
3. Petitioner was not driving, operating, or in physical control of a motor
vehicle.
4. The peace officer did not have reasonable and probable cause to believe that
Petitioner violated Minn. Stat. § 169A.20.
5. Petitioner was not lawfully placed under arrest for violation of Minn. Stat. §
169A.20 including but not limited to, insufficient cause for either the initial stop or
intrusion, for use of any preliminary screening device or for the arrest.
6. The peace officer did not inform Petitioner of his rights or consequences in
a way Petitioner would understand regarding the taking or refusing a chemical test.
7. The peace officer's language and/or conduct relating to Petitioner's rights
or consequences was confusing or misleading so as to render the Implied Consent
Advisory illegal.
8. The peace officer read the Petitioner's Miranda Warning prior to the
Implied Consent Advisory.
9. The officer read an advisory which did not comport with the information
mandated by Minn. Stat. § 169A.51, subd. 2.
10. There was no notice of revocation served on the Petitioner, notifying
Petitioner of the reason for or the length of the revocation; and/or the notice of revocation
served on the Petitioner was incomplete and/or does not contain the information
required by Commissioner's Rule 7503; and/or no seven-day hardship temporary license
was issued to Petitioner, violating due process. See Fedziuk v. Commissioner, 696 N.W.2d
340 (Minn. 2005); Heddan v. Dirkswager, 336 N.W.2d 54 (Minn. 1983). In addition,
the implied consent statute itself, Minn. Stat. Sec. 169A.51-.53, is unconstitutional on its
face and as applied, because it violated a driver’s substantive and procedural due process
rights under the state and federal constitutions.
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62-CV-18-8005
Filed in District Court
State of Minnesota
12/11/2018 3:29 PM
11. The chemical testing method used was invalid and unreliable. Demand is
hereby made for the source code if this is a breath test case (test failure or refusal based
on a sample not accepted by the breath testing machine).
12. The chemical test results were inaccurately evaluated. In addition, Minn.
Stat. 634.16 is unconstitutional. Therefore, demand is made for a BCA breath test expert
to attend the hearing to testify regarding the accuracy and reliability of the test result.
13. The withdrawal of the sample, the manner of the testing, the qualifications
of the individual obtaining the sample, and/or a lack of chain of evidence make the testing
improper and the test inadmissible.
14a. Petitioner requests that if any chemical analysts was involved with this test,
that such analyst be present bring with him/her all records relating in any way to this
case. If a medical technician or any other person authorized under Minn. Stat. § 169A.51,
subd. 7, was used, it is also requested that such person or persons be present, bringing all
records or documents of any kind relating in any way to this case.
14b. Petitioner requests that the person(s) who prepared the blood test report,
and the person(s) who performed the laboratory analysis or examination for the report
be available to testify at the hearing. See Crawford v. Washington, 541 U.S. 36, 124 S.
Ct. 1354 (2004); State v. Caulfield, 722 N.W.2nd 304 (Minn. 2006); State v. Sickmann,
A05-2478, 2006 WL 3593042 (Minn. App. Dec. 12, 2006) (unpublished case).
15. Petitioner was denied the right to consult with an attorney prior to taking a
breath, blood, or urine test as required by article I, section 6 of the Minnesota Constitution
and, if any consultation occurred, the right was not fully vindicated.
16. The officer unlawfully coerced a chemical test or refusal by threatening
Petitioner with a criminal charge for test refusal which was legally erroneous under the
facts of this case. The driver was told refusal to submit to testing is a crime, and was then
offered only blood testing or urine testing, rendering the threat unconstitutionally
erroneous and coercive. McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848
(Minn. 1991); Raley v. Ohio, 79 S. Ct. 1257 (1959); State v. Nelson, 479 N.W.2d 436 (Minn.
App. 1992); State v. Thesing, 485 N.W.2d 734 (Minn. App. 1992); Minn. Stat. § 169A.51
subd. 3. Petitioner was also denied his right to an additional test.
17. The chemical test results were not properly certified to the Commissioner
of Public Safety.
18. Petitioner was coerced into submitting to a warrantless search and seizure
and testing of Petitioner's breath, blood, or urine testing, pursuant to McNeely vs.
Missouri, 133 S. Ct. 1552 (2013).
19. Petitioner reserves the right to raise such further issues (including specific
facts) as may be raised upon reasonable opportunity to review and examine: the police
reports, the chemical testing records, the licensing records, the Bureau of Criminal
Apprehension records, hospital records, and any other records relevant to this case.
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62-CV-18-8005
Filed in District Court
State of Minnesota
12/11/2018 3:29 PM
NOTICE OF RECORDINGS
PLEASE TAKE NOTICE, Petitioner is in possession of recordings relevant to
this case, but which are not part of the Mandatory Discovery in Minn. Stat.§169A.53,
subd. 2(d). You may review the recordings by calling for an appointment to review them
at our offices, or you may make a Motion for further discovery through the prescribed
method in Minn. Stat. §169A.53, subd. 2. We are not equipped to copy recordings in most
cases, as they involve player-drivers proprietary to the police and jails, and we are unable
to assure the proper driver would accompany a digital copy so that it would be playable.
This Notice is provided to you because the Attorney for the Commissioner continues to
object to the admission of recordings at Implied Consent hearings, claiming that they
were not provided with copies. This claim is being made despite the fact that the
Commissioner has not requested the recording for the Police, and despite the fact that the
police officer is the Commissioner’s witness, and is also the statutory agent of the
Commissioner for revocation of the driver’s license. Minn. Stat. §169A.52, subd. 6.
The claim that the Commissioner is not in privities with his own witnesses and agents, or
that no agency exists, is objected to, but this notice is being served despite the fact
that it is the Commissioner’s own witness’ recordings, so as to estop an
argument at the Implied Consent hearing that the non-mandatory discovery
is inadmissible because it was not served on the Commissioner’s attorney
before the hearing.
DISCOVERY DEMAND
Demand is hereby made for the production and delivery of all mandatory discovery
to Petitioner through the undersigned attorney as required by Minn. Stat. § 169A.53,
subd. 2(d). Inasmuch as the Separation of Powers doctrine forbids the government from
exercising any constitutional authority to modify or enact statutes that overrule court
rules of procedure already in place, demand is hereby made for the in-court testimony of
the person who obtained any sample of Petitioner's blood or urine, the person who
analyzed the same, and the person who attested to the results in the report or prepared
the report, the Intoxilyzer logs, and for the radar, laser, and speedometer logs 30 days
prior to the hearing and/or 30 days subsequent to the date of arrest giving rise to this
hearing. Petitioner also demands preservation of any and all audio and video tapes done
at the scene of pursuit and arrest, in the squad car, and at the station house, as well as the
officer's original notes and dispatch tapes. The undersigned guarantees reimbursement.
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62-CV-18-8005
Filed in District Court
State of Minnesota
12/11/2018 3:29 PM
Respectfully Submitted,
Dated: 12/11/2018 /s/ Max Keller
Max A. Keller, Attorney at Law
Attorney License #278816
Attorney for Petitioner
MINN. STAT. § 549.211 ACKNOWLEDGMENT
The party or parties on whose behalf the attached pleading is served acknowledge through
their undersigned counsel that costs, disbursements, and reasonable attorney and witness
fees may be awarded to the opposite party or parties pursuant to Minn. Stat. § 549.211,
subd. 2.
Dated: 12/11/2018 /s/ Max Keller
Max A. Keller, Attorney at Law
Attorney License #278816
Attorney for Petitioner
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Preview
62-CV-18-8005 Filed in District Court State of Minnesota 12/11/2018 3:29 PM STATE OF MINNESOTA DISTRICT COURT COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT Francesca Maria Ramos, Case Type 6: Implied Consent Petitioner, IMPLIED CONSENT PETITION FOR JUDICIAL REVIEW OF vs. DRIVER’S LICENSE REVOCATION AND/OR LICENSE PLATE Commissioner of Public Safety, IMPOUNDMENT Respondent. File No: ____________ PLEASE TAKE NOTICE that, pursuant to Minn. Stat. § 169A.53, Subd. 2(c), the above-named Petitioner, by and through counsel, hereby requests judicial review of the revocation of Petitioner's driver's license. PETITIONER DEMANDS THAT A JUDGE HEAR THIS CASE. PETITIONER DEMANDS A TEMPORARY STAY OF THE BALANCE OF THE IMPLIED CONSENT DRIVER’S LICENSE REVOCATION PENDING A HEARING. PETITIONER DEMANDS A HEARING WITHIN 60 DAYS. FACTS 1. The true and correct name of the Petitioner is Francesca Maria Ramos. Petitioner’s date of birth is 7/11/1990. Petitioner’s driver’s license number is G887-004-851-223. Petitioner’s license plate number is AUP983. 2. The alleged offense for which the Petitioner's driver’s license was revoked occurred on December 9, 2018 city of Roseville, county of Ramsey, State of Minnesota. 3. Petitioner’s Notice and Order of Revocation is attached hereto. 4. Petitioner incorporates as the specific factual basis for each of the indicated claims in the petition the following: a. Petitioner was arrested on December 9, 2018 and Petitioner’s driving privileges are pending revocation, or have been revoked as a result. b. Petitioner was not involved in an accident involving property damage or personal injury. 1 62-CV-18-8005 Filed in District Court State of Minnesota 12/11/2018 3:29 PM ISSUES 1. The peace officer did not have valid articulable grounds to make an investigatory stop or seizure of Petitioner. 2. Petitioner did not fail a properly calibrated and approved preliminary breath test (PBT) or refuse to take such. Moreover, a PBT is a search requiring probable cause; thus is cannot be used to garner probable cause. See Missouri v. McNeely, 133 S. Ct. 1552 (2013) (DWI evidentiary breath test is a search requiring both probable cause and a warrant or an exception to the warrant requirement); State v. Hardy, 577 N.W.2d 212 (Minn. 1998) (police request for suspect to open mouth to see if he had swallowed drugs was a search requiring probable cause). 3. Petitioner was not driving, operating, or in physical control of a motor vehicle. 4. The peace officer did not have reasonable and probable cause to believe that Petitioner violated Minn. Stat. § 169A.20. 5. Petitioner was not lawfully placed under arrest for violation of Minn. Stat. § 169A.20 including but not limited to, insufficient cause for either the initial stop or intrusion, for use of any preliminary screening device or for the arrest. 6. The peace officer did not inform Petitioner of his rights or consequences in a way Petitioner would understand regarding the taking or refusing a chemical test. 7. The peace officer's language and/or conduct relating to Petitioner's rights or consequences was confusing or misleading so as to render the Implied Consent Advisory illegal. 8. The peace officer read the Petitioner's Miranda Warning prior to the Implied Consent Advisory. 9. The officer read an advisory which did not comport with the information mandated by Minn. Stat. § 169A.51, subd. 2. 10. There was no notice of revocation served on the Petitioner, notifying Petitioner of the reason for or the length of the revocation; and/or the notice of revocation served on the Petitioner was incomplete and/or does not contain the information required by Commissioner's Rule 7503; and/or no seven-day hardship temporary license was issued to Petitioner, violating due process. See Fedziuk v. Commissioner, 696 N.W.2d 340 (Minn. 2005); Heddan v. Dirkswager, 336 N.W.2d 54 (Minn. 1983). In addition, the implied consent statute itself, Minn. Stat. Sec. 169A.51-.53, is unconstitutional on its face and as applied, because it violated a driver’s substantive and procedural due process rights under the state and federal constitutions. 2 62-CV-18-8005 Filed in District Court State of Minnesota 12/11/2018 3:29 PM 11. The chemical testing method used was invalid and unreliable. Demand is hereby made for the source code if this is a breath test case (test failure or refusal based on a sample not accepted by the breath testing machine). 12. The chemical test results were inaccurately evaluated. In addition, Minn. Stat. 634.16 is unconstitutional. Therefore, demand is made for a BCA breath test expert to attend the hearing to testify regarding the accuracy and reliability of the test result. 13. The withdrawal of the sample, the manner of the testing, the qualifications of the individual obtaining the sample, and/or a lack of chain of evidence make the testing improper and the test inadmissible. 14a. Petitioner requests that if any chemical analysts was involved with this test, that such analyst be present bring with him/her all records relating in any way to this case. If a medical technician or any other person authorized under Minn. Stat. § 169A.51, subd. 7, was used, it is also requested that such person or persons be present, bringing all records or documents of any kind relating in any way to this case. 14b. Petitioner requests that the person(s) who prepared the blood test report, and the person(s) who performed the laboratory analysis or examination for the report be available to testify at the hearing. See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004); State v. Caulfield, 722 N.W.2nd 304 (Minn. 2006); State v. Sickmann, A05-2478, 2006 WL 3593042 (Minn. App. Dec. 12, 2006) (unpublished case). 15. Petitioner was denied the right to consult with an attorney prior to taking a breath, blood, or urine test as required by article I, section 6 of the Minnesota Constitution and, if any consultation occurred, the right was not fully vindicated. 16. The officer unlawfully coerced a chemical test or refusal by threatening Petitioner with a criminal charge for test refusal which was legally erroneous under the facts of this case. The driver was told refusal to submit to testing is a crime, and was then offered only blood testing or urine testing, rendering the threat unconstitutionally erroneous and coercive. McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848 (Minn. 1991); Raley v. Ohio, 79 S. Ct. 1257 (1959); State v. Nelson, 479 N.W.2d 436 (Minn. App. 1992); State v. Thesing, 485 N.W.2d 734 (Minn. App. 1992); Minn. Stat. § 169A.51 subd. 3. Petitioner was also denied his right to an additional test. 17. The chemical test results were not properly certified to the Commissioner of Public Safety. 18. Petitioner was coerced into submitting to a warrantless search and seizure and testing of Petitioner's breath, blood, or urine testing, pursuant to McNeely vs. Missouri, 133 S. Ct. 1552 (2013). 19. Petitioner reserves the right to raise such further issues (including specific facts) as may be raised upon reasonable opportunity to review and examine: the police reports, the chemical testing records, the licensing records, the Bureau of Criminal Apprehension records, hospital records, and any other records relevant to this case. 3 62-CV-18-8005 Filed in District Court State of Minnesota 12/11/2018 3:29 PM NOTICE OF RECORDINGS PLEASE TAKE NOTICE, Petitioner is in possession of recordings relevant to this case, but which are not part of the Mandatory Discovery in Minn. Stat.§169A.53, subd. 2(d). You may review the recordings by calling for an appointment to review them at our offices, or you may make a Motion for further discovery through the prescribed method in Minn. Stat. §169A.53, subd. 2. We are not equipped to copy recordings in most cases, as they involve player-drivers proprietary to the police and jails, and we are unable to assure the proper driver would accompany a digital copy so that it would be playable. This Notice is provided to you because the Attorney for the Commissioner continues to object to the admission of recordings at Implied Consent hearings, claiming that they were not provided with copies. This claim is being made despite the fact that the Commissioner has not requested the recording for the Police, and despite the fact that the police officer is the Commissioner’s witness, and is also the statutory agent of the Commissioner for revocation of the driver’s license. Minn. Stat. §169A.52, subd. 6. The claim that the Commissioner is not in privities with his own witnesses and agents, or that no agency exists, is objected to, but this notice is being served despite the fact that it is the Commissioner’s own witness’ recordings, so as to estop an argument at the Implied Consent hearing that the non-mandatory discovery is inadmissible because it was not served on the Commissioner’s attorney before the hearing. DISCOVERY DEMAND Demand is hereby made for the production and delivery of all mandatory discovery to Petitioner through the undersigned attorney as required by Minn. Stat. § 169A.53, subd. 2(d). Inasmuch as the Separation of Powers doctrine forbids the government from exercising any constitutional authority to modify or enact statutes that overrule court rules of procedure already in place, demand is hereby made for the in-court testimony of the person who obtained any sample of Petitioner's blood or urine, the person who analyzed the same, and the person who attested to the results in the report or prepared the report, the Intoxilyzer logs, and for the radar, laser, and speedometer logs 30 days prior to the hearing and/or 30 days subsequent to the date of arrest giving rise to this hearing. Petitioner also demands preservation of any and all audio and video tapes done at the scene of pursuit and arrest, in the squad car, and at the station house, as well as the officer's original notes and dispatch tapes. The undersigned guarantees reimbursement. 4 62-CV-18-8005 Filed in District Court State of Minnesota 12/11/2018 3:29 PM Respectfully Submitted, Dated: 12/11/2018 /s/ Max Keller Max A. Keller, Attorney at Law Attorney License #278816 Attorney for Petitioner MINN. STAT. § 549.211 ACKNOWLEDGMENT The party or parties on whose behalf the attached pleading is served acknowledge through their undersigned counsel that costs, disbursements, and reasonable attorney and witness fees may be awarded to the opposite party or parties pursuant to Minn. Stat. § 549.211, subd. 2. Dated: 12/11/2018 /s/ Max Keller Max A. Keller, Attorney at Law Attorney License #278816 Attorney for Petitioner 5