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Is There A Way Out? A Minneapolis DWI Defense Lawyer Explains

Prior to the late 1990s, DWI in Minnesota was little more than a serious traffic ticket. After that period, an extended crackdown began, which is still in motion today. This get-tough campaign included things like stricter laws, such as a per se provision and a lower BAC limit, and new enforcement tools such as Ignition Interlock Devices. As a result,  today’s DWI is almost nothing like yesterday’s DWI, at least to an extent.

The DWI Stop

If the stop was illegal, a DWI defense attorney can invalidate anything that happened later, including field tests and chemical tests.

Field Sobriety Tests in Minneapolis

Exercises like walking a straight line are designed to measure impairment levels, but these tests have shaky scientific foundations.

Chemical Tests

If you blew into a Breathalyzer or provided a blood sample, you are not automatically guilty.

DWI Endgame

A successful DWI resolution could be a complete dismissal of charges, a not-guilty verdict, or a plea to a lesser-included offense.

The DWI Stop and Related Procedural Issues in Minnesota

Most DWIs begin with traffic stops. Typically, these stops are unrelated to the offense. Examples include speeding, changing lanes illegally, and our personal favorite, failing to stop when exiting a private driveway. Any traffic infraction, no matter how ticky-tack, serves as reasonable suspicion for the stop.

A few cases involve informer’s tips. These situations are a bit more complex. The judge must look at the totality of the circumstances and determine if the tip was reliable. Some factors include the source of the information and specificity of the tip.
When they examine the stop, some DWI lawyers overlook important details. There are some hidden defenses which, if they apply, could totally derail the prosecutor’s case.

  • Driving the Vehicle: Many DWIs involve collisions or drivers who were passed out behind the wheel of a motionless car. Frequently, in collision cases, there is no evidence that the defendant was driving the car. Additionally, if the vehicle was not moving, the state must prove that the defendant could start the vehicle and the vehicle was drivable.
  • Incorrect County: Many communities are partially in one county and partially in another one. If the state filed charges in the wrong county, the judge has no authority to consider the case.
  • Public Place: Shopping mall and apartment complex parking lots are not public places, even if the streets have street names and traffic control devices. Limited access roads, such as private roads or streets inside a gated community, are normally not public places either. If the DWI did not occur in a public place, the judge usually throws the case out of court.

These last two bullets are legal points. The car was in a public place or it wasn’t, and the case was filed in the proper county or it wasn’t.

The driving defense is different. The state must prove this element beyond a reasonable doubt. That’s the highest standard of proof in Minnesota law. For example, in a DWI collision case, the state must normally produce a credible eyewitness who saw the defendant driving the vehicle at or near the time of the collision. Alternatively, the defendant’s verbal or written admission might be admissible.

This same analysis applies to the “intoxication” element of a DWI, as outlined below. The state has a very heavy burden of proof in this area as well.

Additionally, police officers must timely inform defendants of their Miranda rights. As seen on TV, these rights include the right to remain silent and the right to an attorney. Offices must administer these warnings before custodial interrogation begins. Let’s look at this requirement up close.

  • Custody: Many people believe the C-word means being handcuffed or placed in a police car. Technically, however, custody begins when the defendant does not feel free to leave. Frequently, many people do not feel free to leave once they see flashing lights.
  • Interrogation: This word is also much boarder than many people realize. Interrogation does not just mean asking people about the elements of an alleged crime. Seemingly innocuous questions, such as “Where were you coming from tonight?”, can have incriminating answers.

If officers do not timely Mirandize the defendant, any subsequent statement is inadmissible.

On a related note, officers must also issue statutory warnings concerning possible drivers’ license revocation. These warnings are invalid if delivered untimely or in the incorrect form.

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Challenging the Field Sobriety Test Results in Minnesota

The FSTs are always critical in a DWI prosecution. If the defendant provided a chemical sample, the FST results serve as probable cause for the test. Probable cause is a nebulous standard of evidence which is somewhere between reasonable suspicion and beyond a reasonable doubt. If the defendant did not provide a chemical sample, the FSTs must normally serve as circumstantial evidence of intoxication.

The National Highway Traffic Safety Administration has only approved three FSTs. There are actually four approved tests in Minnesota. We examine all these tests in detail below. But first, let’s look at some unapproved FSTs which officers often administer.

Romberg’s balance test, the head-back, arms-extended test, is probably the most common unapproved test. Moritz Romberg, who invented the test in the 1800s, claimed it robbed people of the three things needed for balance, which are:

  • Proprioception (knowing one’s body position),
  • Vision, and
  • Vestibular function (knowing the position of one’s head).

Generally, police officers cannot effectively explain concepts like proprioception and vestibular function to jurors. As a result, many jurors believe that the state is fabricating evidence to railroad the defendant.

Other unapproved tests include reciting part of the ABCs or asking the defendant a trick question, like “In what year was your first birthday?” Think about that one for a minute. These tests have absolutely no scientific basis.

Frequently, officers force defendants to take unapproved tests so they are more fatigued, both physically and mentally, when the real tests start.

You have a right to refuse to perform these tests. The Fifth Amendment is not limited to the right to remain silent. Defendants can also invoke their Fifth Amendment rights and refuse to perform tests.

Horizontal Gaze Nystagmus

During the DWI eye test, officers have subjects track moving objects, like fingertips, moving only their eyes. Involuntary pupil movements at certain viewing angles usually means the subject has nystagmus. But alcohol is not the only cause of nystagmus, a condition also known as lazy eye. In fact, alcohol is not even the leading cause. Many people have a lazy eye, but the symptoms are so mild, they do not know they have it.

Furthermore, the HGN test is only accurate under controlled conditions. Roadside HGN tests are anything but that. For example, the flashing squadcar lights in the background often trigger flicker vertigo, a medical condition.

Walk and Turn

The walking-a-straight-line test is perhaps the signature DWI field sobriety test. Subjects must walk a straight line heel to toe one way, and then walk back the same way. During this test, the officer looks for clues like:

  • Starting too early,
  • Using arms for balance,
  • Stumbling,
  • Taking the wrong number of steps,
  • Swaying,
  • Not walking heel to toe, and
  • Quitting.

Environmental conditions often affect this test as well. It’s much easier to walk an actual line heel to toe, like a parking lot stripe, than an imaginary line. Darkness also affects the test. So does the type of shoe and the slope of the surface.

Additionally, the state must prove, beyond a reasonable doubt, that the defendant failed the test due to intoxication, as opposed to nervousness, fatigue, or clumsiness.

One-Leg Stand

Much like the WAT, the OLS is a divided attention test which measures physical dexterity and mental acuity. Some scientists claim that intoxicated people cannot multitask in this way. Alcohol impairs brain functions too badly.

For this test, subjects must elevate one leg at about a 45-degree angle and keep it elevated for about thirty seconds. Some intoxication clues include:

  • Using arms for balance,
  • Not holding the elevated leg still,
  • Holding the leg at the wrong angle, and
  • Terminating the test early.

People with any mobility impairment cannot hope to complete this test. On a related note, the officer always testified that the defendant “failed” the test, regardless of how well the defendant did. An officer can always find something wrong. However, the jury also decides whether the defendant failed the test, and the jury’s opinion is the only one that counts.

Portable Breathalyzer

In most states, the FST battery is only three tests. Minnesota is one of the few jurisdictions which includes a fourth one.
Large Breathalyzers, like the ones in use at station houses, have a number of flaws, which are examined below. Portable Breathalyzers are even more unreliable.

For example, these devices are very temperature sensitive. Especially during certain times of the year, Minneapolis weather often changes quickly and with little or no warning. If the portable Breathalyzer was not calibrated according to the current air temperature, the results are probably invalid.

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Invalidating Chemical Test Results in Minnesota

At the outset, we mentioned Minnesota’s per se law. In the 1990s, a BAC above the legal limit, which is usually .08, was a presumption of intoxication. DWI attorneys could attack the circumstantial FST results to undermine the state’s proof of intoxication. Now, if the defendant’s BAC is above the legal limit, the defendant is intoxicated as a matter of law.

As a result, the conviction rate in chemical test cases is much higher than it is in non-test cases. However, that statistic does not mean that people who provide chemical samples are automatically guilty.

Despite all its bells and whistles, the modern Breathalyzer is basically an updated version of the 1920s Drunk-o-Meter. Both these devices measure ethanol particles in the breath to estimate the defendant’s Blood Alcohol Content level. Then as now, this process has some specific flaws, including:

  • Mouth Alcohol: If the subject belches or vomits in the fifteen minutes prior to the test, ethanol particles from the stomach flood the mouth. Thus, the measured breath alcohol level is artificially high. Technically, state law requires officers to monitor defendants for at least fifteen minutes before the test. But courts have diluted this requirement to the point that it is almost a non-factor.
  • Ketone Particles: Breathalyzer techs usually brag to jurors about how many zillions of particles a Breathalyzer counts. This accuracy works against the gadget, at least in this context. Smokers, diabetics, and other individuals have high ketone levels, and the Breathalyzer registers these particles as ethanol.
  • Unabsorbed Alcohol: Alcohol does not go directly from the stomach to the blood. Instead, it travels to the stomach and then the liver and then the blood. So, if the subject has been drinking in the last hour or two, that alcohol is not yet in the bloodstream. Once again, the BAC estimate is artificially high in these cases.

These flaws, and others like them, are especially compelling in borderline BAC cases, such as .08 or .09. The Breathalyzer already has a rather sizeable margin of error. If there is evidence of a specific flaw, its margin of error moves even higher.

Many Minneapolis DWI defense lawyers partner with chemists or other such professionals to drive home these flaws with jurors. These individuals usually have much more credibility than the Breathalyzer techs prosecutors usually rely upon.

Blood tests are much more accurate than breath tests. So, there are not as many scientific issues. However, blood tests often involve a number of procedural issues.

The Supreme Court recently ruled that police officers must have search warrants before they can extract blood samples. These warrants must be based on probable cause. In most cases, the FST results usually serve as probable cause evidence. So, if the defendant refused to perform these tests or did not fail them in an objective sense, the warrant affidavit might be fatally flawed.

Additionally, blood samples physically move a lot. They normally travel from the defendant’s body to a police laboratory to an evidence room to a courtroom. Any gap in the chain of custody casts some doubt on the blood sample’s validity.

On a related note, since blood samples are preserved for trial, a Minneapolis DWI lawyer can demand a re-test. If that test result is different from what the state found they could have a problem proving their case.

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How Does a DWI Lawyer in Minneapolis Resolve These Charges?

As mentioned above, there are basically three ways to successfully resolve a DWI case. All these resolutions reduce or eliminate the direct and indirect consequences of a DWI. The direct consequences usually include incarceration, lengthy court supervision, and drivers’ license suspension. The indirect consequences include higher auto insurance rates and employment issues.

If there is no admissible evidence, the judge usually throws the case out of court. Successful arguments in this area usually hinge on procedural defenses, such as the failure to properly Mirandize the defendant, an illegal stop, or a lack of probable cause.

Lack of probable cause is not just an issue in search warrants or arrests. Officers must have probable cause to demand chemical samples. If the defendant performed all requested FSTs and did poorly on any one of them, that’s usually sufficient probable cause.

If officers skip from the HGN test to a Breathalyzer test, the DWI eye test by itself is arguably insufficient for probable cause, even if the defendant clearly failed the test.

Sometimes, the evidence is rather weak, but the judge allows the case to go forward. Frequently, Hennepin County judges only issue pretrial dismissals if there is no evidence whatsoever. The jury trial is such an important part of American jurisprudence that judges will do almost anything to preserve this right.

Weak evidence often does not establish guilt beyond any reasonable doubt. Minnesota’s definition of reasonable doubt, “doubts based upon reason and common sense,” is not very helpful. That’s like saying a grey horse is a horse that is grey. Since this definition is vague, a Minneapolis DWI defense attorney has significant leeway. Generally, if a lawyer advances any evidence-based theory other than guilt, the jury might find the defendant not guilty.

Only a small percentage of criminal cases go to trial. In many jurisdictions, plea bargains resolve over 95 percent of DWI cases.

Minnesota law includes a number of lesser-included intoxication/driving offenses. Careless driving springs immediately to mind. Like DWI, careless driving is a misdemeanor. However, it does not have the same collateral consequences as DWI, especially with regard to drivers’ license suspension and car insurance rates.

Court prosecutors sometimes have limited ability to reduce DWI charges to a lesser-included offense. Politics sometimes gets in the way.
Nevertheless, a successful plea bargain is usually available. The agreement could call for a lesser sentence, like a shorter court supervision period and a lower fine. Technically, the judge has the final say in these matters. But judges almost never invalidate plea bargain agreements which were negotiated in good faith.

All said and done, make it a point to consult a Minneapolis DWI Defense lawyer who has experience in handling cases similar to yours. There is no point in hiring an assault lawyer in Minneapolis or a drug crime lawyer in Minneapolis as their knowledge and experience may not benefit you in a DWI case.

Frequently Asked Questions

DWI, or Driving While Intoxicated, is normally a misdemeanor. Defendants are guilty if they lost the normal use of their mental or physical faculties, or their BAC level was above the legal limit. Loss of faculties usually involves poor performance on Field Sobriety Tests. The legal limit in Minnesota is .08.

DWI is normally a misdemeanor, but prosecutors can upgrade these charges to felony DWI. If the defendant has more than three prior DWI convictions in the past ten years, a subsequent charge is normally a felony. Aggravating circumstances might also elevate the charges. bOne examples include a DWI which included a serious injury crash.

DWI stands for Driving While Intoxicated. This acronym is a bit misleading, because in Minnesota, defendants need not be “driving” their vehicles. Operating the vehicle, which usually means sitting behind the wheel of a drivable vehicle, is usually sufficient.

DUI stands for Driving Under the Influence, and DWI stands for Driving While Intoxicated. These two acronyms describe the same offense, but there is a perception issue. When many people hear “under the influence,” they think “one drink too many.” When they hear “intoxicated,” they think “drunk.” So, whenever possible, Minnesota DWI attorneys usually say intoxicated as opposed to under the influence, especially duty jury arguments.

Driving Under the Influence and Driving While Intoxicated are the same thing. DUI/DWI is normally a misdemeanor unless aggravating facts, like multiple prior convictions, are present. DUI and DWI also have the same indirect consequences, such as higher auto insurance rates.

Driving While Intoxicated means the loss of normal mental or physical faculties due to excess alcohol consumption or a BAC above the legal limit. In a loss of faculties case, prosecutors must prove that loss was because of intoxication and not fatigue or something else. The BAC limit is usually .08. The limit is lower for commercial drivers and minors. The commercial driver limit is usually .04, and Minnesota has a zero-tolerance law for minors. Even a trace amount of alcohol is considered intoxicated in these cases.

Prior convictions or additional facts could support aggravated DWI charges. Normally, if the defendant has one prior DWI conviction in the past ten years, a new charge is a more serious gross misdemeanor. That means harsher direct and indirect consequences. Three or more prior convictions usually elevate DWI to felony charges. Certain facts in the case itself, such as a blood alcohol concentration of .16 or higher, or a child passenger, could also prompt prosecutors to enhance DWI charges.

Attacking the evidence is the best way to fight a DWI. The state must prove intoxication beyond a reasonable doubt. Sometimes, the state’s evidence is mostly field sobriety test results. The FSTs are deeply flawed in a number of ways. Chemical tests, especially Breathalyzer tests, are not open and shut either. A procedural defense, such as a failure to administer Miranda warnings or a lack of probable cause, is often available as well.

Remember, a Minneapolis DWI defense attorney will be able to provide a stronger defense in your DWI case compared to a disorderly conduct lawyer in Minneapolis or a criminal vehicular operation attorney in Minneapolis.

Initially, DWI bail amount depends almost entirely on the severity of the offense. For a first-time misdemeanor DWI, there usually is no bail. Certain DWI’s have a mandatory $12,000 bail, and felony DWI charges can have bail set anywhere from $20,000 to $100,000 or more.

Higher auto insurance rates are usually the largest DWI expense. Many drivers see their rates double or even triple. They must pay these higher rates for at least three years. Other direct and indirect costs include fines, court costs, supervision fees, and missed work due to community service and other court-ordered obligations. Altogether, these costs often eclipse $10,000.

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