Minnesota law provides that if you drive, operate, or are in physical control of any type of motor vehicle anywhere in the state, then you basically have consented to a chemical test of your blood, breath, or urine to determine your blood alcohol content (BAC) or the presence of hazardous controlled substances in your body. This law is also known as an “implied consent law.”
It’s a crime to refuse a chemical test
Refusal to take the chemical test is a crime. And not only is a crime, but it carries enhanced punishments and license penalties as well. A chemical test is administered by a police officer when there is probable cause to believe that a person is driving, operating, or in physical control of a motor vehicle or boat while intoxicated and that person:
- Is arrested for DWI;
- Is involved in a motor vehicle accident;
- Refuses to take a screening test, or PBT, at the scene of the arrest; or
- Takes a screening test, or PBT, and the test results in a BAC of .08 or more. To clarify, there is no criminal penalty for refusing a PBT or breathalyzer test at the scene of a DWI arrest as there is for refusing a chemical test.
Multiple factors contribute to probable cause
Probable cause for a DWI arrest can stem from an officer’s observations of impaired driving, from stopping and questioning a driver, from field sobriety tests, and/or from PBT results. If an officer determines that there is probable cause to make a DWI arrest, the driver is taken in to the police station, where they are required to submit to a chemical test at the station. At the station, an officer has the discretion to decide whether the test is of blood, breath, or urine. The officer also must inform the driver that:
- Minnesota law requires that you take the test;
- Refusal to take a test is a crime;
- If the officer has probable cause to believe that you violated the criminal vehicular homicide and injury laws, a test can be taken regardless of consent; and
- That you have the right to consult with an attorney prior to taking the test, but that right is limited to the extent that it cannot unreasonably delay the administration of the test.
You have the right to consult a DWI attorney
In other words, in most cases, a driver stopped for DWI must take the chemical test chosen by the officer, but the driver also has a limited right to a reasonable amount of time to attempt to consult with an attorney before deciding whether to comply with the test.
A limited right to counsel means that you have the right to consult with a lawyer of your own choosing. A police officer must inform the driver of the right to counsel but also must assist in making sure the right is honored. An officer may support or honor a driver’s limited right to counsel by providing a telephone and a reasonable amount of time to contact and speak with an attorney. If an attorney cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in absence of counsel because the test must be administered within two hours of the arrest. Whether the time given to contact an attorney is reasonable depends on the time of day of the arrest, the length of time the driver has been under arrest, and whether the driver had made a good faith and sincere effort to contact counsel.
If you or a loved one has been arrested and charged with driving while intoxicated, you have the right to contact a DWI attorney even before you submit to a chemical test at the police station. Even if you do not take advantage of this right, it is important that you speak with a knowledgeable criminal defense attorney at Gerald Miller, P.A. right away. An arrest and charge of DWI should not be taken lightly. Contact an experienced attorney at Gerald Miller, P.A. 24 hours a day.