How to Pass Field Sobriety Tests?

As an experienced Minnesota Criminal Defense Attorney, I am frequently asked questions about Drunk Driving.  A lot of people want to know:

How to pass the field sobriety tests that the officer gives - to determine if you are intoxicated.   Sadly --- here’s the secret: literally nobody who takes field sobriety tests ever passes.

Why?


Here's the reality of this situation: The officer administering the tests makes marks on a score sheet every time he observes something the officer wants to note. Each mark is more proof to support probable cause. No particular number of marks indicates a fail. Instead, each and every mark indicates one (or one more) indication of impairment. Then those marks, whether one or twenty, are included among other factors in a “totality of the circumstances” assessment of whether the officer had probable cause to arrest you.

Minnesota courts have held that even one of many ephemeral and subjective “clues” is enough to arrest, including “bloodshot, watery eyes,” “the odor of consumed alcoholic beverages,” or “an uncooperative attitude.” The rest is just more “evidence” to make the determination of probable cause stand up in court. Once you agree to step out of the car, the officer will note that you used the door or door frame to steady yourself (because nobody plants their feet and stands up without grabbing something). Anything you do from that point on, a walk-and-turn test, an eye test (Horizontal Gaze Nystagmus), or a one-leg stand, will simply add marks to support the probable cause finding.

Here’s the Secret

Don’t take them. You don’t have to stand on one leg, follow a pen-light with your eyes, or walk an imaginary line. You don’t have to blow in the PBT, the roadside breath test, although it is a crime, usually, to refuse the breath test at the police station. And you are not going to perform your way out of an arrest.

Feel free to call and set up a No-Cost Consultation - NOW - if you have questions for The Rolloff Law Office: (612) 234-1165

Minnesota DWI - Filed Sobriety Tests (Explained)

A Minnesota law enforcement officer, after pulling over a driver for suspected of drunk driving, will usually say something to the effect of “I need to have you step out --- and do a few tests to make sure you are okay to drive."

The sad truth is, the driver is (usually) not told that he/she has the option to refuse those tests.  

Filed Sobriety Tests (The Truth)

Almost always, the purpose for the Standardized Field Sobriety Tests (SFSTs) is to gather evidence against you to be used at trial --- not to "prove" that you are not under the influence. 

Here's what you need to know: there are (at least)  two ways to convict a person of DWI: one is to prove that they drove and had a alcohol concentration of .08 or more as tested by a blood, breath or urine test. However, suppose an experienced Minnesota Criminal Defense Attorney gets the test kicked out? The government can still convict you if they can prove that you drove at a time that you were impaired by alcohol. 

Whether or not you are “impaired” is determined by the officers observations, your conduct and your statements. It is for this reason that police will tell you to do the SFSTs. 

They will later testify in court that your inability to do the test proves you were impaired.

The good news is that you are not required by law to do SFSTs. You have a right to decline. If you decline, do not say you are declining because your are too drunk to do them. Simply say that you invoke your right not to perform those tests. 

If you do not perform the tests ... especially if you decline to offer of a sample of your breath (on the side of the road for the the preliminary breath test (PBT) ... the officer can place you under arrest, transport you back to the police station and ask you give a sample of you blood, breath or urine.  

You have no duty to make the cops case for him. 

If you need help with a DWI arrest, contact the Rolloff Law Office for FREE ANSWERS.  Call today: (612) 234-1165

Minnesota DWI - Field Sobriety Tests (Explained)

As an experienced Minnesota Criminal Defense Attorney, I get a lot of questions about DWIs.  One common inquiry is about Field Sobriety Tests.  Here's some info that you need to know.

Minnesota Field Sobriety Tests

A police officer, after pulling over a driver for suspected Drunk Driving will usually say something to the driver: 

“I need to have you step out of the car and do a few tests to make sure you are okay to drive."  At the time, the driver is not told that he/she has the option to refuse those tests. 

Here’s the skinny. 

Almost always, the purpose for the Standardized Field Sobriety Tests (SFST) is to gather evidence against you to be used at trial. 

The Truth

There are two ways to convict a person of DWI: one is to prove that they drove and had a alcohol concentration of .08 or more as tested by a blood, breath or urine test. However, suppose a clever defense attorney gets the test kicked out. They can still convict you if they can prove that you drove at a time that you were impaired by alcohol. 

Whether or not you are “impaired” is determined by the officers observations, your conduct and your statements. It is for this reason that police will tell you to do the SFST. They will later testify in court that your inability to do the test proves you were impaired.

The good news is that you are not required by law to do SFSTs. You have a right to decline. If you decline, do not say you are declining because your are too drunk to do them. Simply say that you invoke your right not to perform those tests. 

The one exception (sort of) to this is the preliminary breath test (PBT) --- that little box that officers have you blow into on the side of the road. 

If you refuse to blow into the PBT the officer can place you under arrest and ask you to do a blood, breath or urine test. But, the PBT is not admissible in court (except for persons under 21) to show the existence of alcohol or if you later refuse the blood, breath or urine test.

Need help, with a Drunk Driving accustation, feel free to call the Rolloff Law Office to get FREE ANSWERS and set-up a consultation: (612) 234-1165

Minnesota Drunk Driving Stops (Explained)

Drunk Driving arrests in Minnesota frequently begin with a  traffic stop made by a police officer or state patrol trooper.  After the stop there is generally a sequence of actions taken by the officer if they suspect the driver has violated Minnesota's DWI law.

There are of course, legal and illegal (constitutional and unconstitutional) ways of both initiating a traffic stop and conducting subsequent questioning, testing, etc.  The following is a brief overview of the constitutional issues surrounding typical DWI traffic stop in Minnesota.

If you have any questions about this, your next best step is to contact an experienced Minnesota Criminal Defense Attorney.

The Traffic Stop

An officer can make a brief investigatory traffic stop without violating the constitutional prohibition against “unreasonable searches and seizures” if they have “reasonable, articulable suspicion” of criminal activity.  An officer’s observation of a traffic violation, even if insignificant, can provide the officer with an objective and reasonable basis to make a legal traffic stop.

Typical traffic violations which provide a basis for a stop include speeding, not signaling a lane change, and equipment violations.

Initial Questioning

After an officer has made an initial stop, they generally ask the driver a series of questions (e.g. “Are you aware of why I pulled you over?”) and request a driver’s license/identification and vehicle registration information

Field Sobriety Testing (FST)

During the initial questioning in a Minnesota DWI traffic stop, the officer will often make observations of alcohol use and/or intoxication.  These observations frequently include slurred speech, glassy/watery eyes, (strong) odor of alcohol, slow reaction time, and the driver admitting alcohol use prior to driving. If the officer does make these observations, they can provide the basis (reasonable, articulable suspicion that the driver has violated the DWI law) to legally conduct a series of field sobriety tests.  The standard field sobriety tests (SFST) include a series of three tests:  the walk and turn test (WAT); the  one leg stand (balance) test (OLS); and the horizontal gaze nystagmus test (HGN).  There are also non-standardized field sobriety tests that the officer may have the driver perform including: the Romberg  (Balance) Test; counting backwards; reciting the alphabet etc.  Failure of the  field sobriety tests can be used by the officer to establish probable cause to arrest the driver for DWI.  (In various areas throughout this blog, I;ve reported on these "tests" --- if I could make one suggestion --- don't agree to perform these tests!)

Portable Breath Test (PBT)

The officer will typically request  a portable breathalyzer test (PBT) from the driver if they fail the field sobriety tests.  The legal basis to request the PBT, however, is the same as for the request for field sobriety testing: “reasonable, articulable suspicicion” that the driver has violated Minnesota DWI law.  This can include the failure of one or more of the field sobriety tests, admissions from the driver of alcohol use, and/or other observations of possible alcohol use and/or intoxication (e.g. glassy eyes, strong odor of alcohol etc.). In addition, like the field sobriety tests, a PBT failure can be used by the officer to establish probable cause to arrest a driver for DWI.  (Like with the FSTs ... don't agree to take this test!)

Arrest

An officer must have probable cause to make a legal arrest of a driver for DWI.  Probable cause in Minnesota exists if a person of ordinary care and prudence holds an “honest and strong” suspicion that arrested party is guilty of a crime.  Probable cause is more than mere suspicion.  The officer can establish probable cause to make a legal arrest with a combination of observations of alcohol use and/or intoxication, statements by the driver indicating alcohol use and/or intoxication, failure of one or more of the field sobriety tests, and/or failure of the PBT test.

What Can Be Done About Illegal Conduct?
The constitution protects individuals against unreasonable searches and seizures.  The remedy for an illegal search and seizure is suppression of the evidence obtained as a result of the illegal search and seizure.

In a typical DWI case as described above, therefore, if the officer illegally made the initial traffic stop or otherwise illegally conducted the questioning, testing and/or arrest, the driver can move the court to suppress evidence that was obtained as a result of that illegal search or seizure.  In Minnesota, this is done at what is know as a “Rasmussen Hearing.”  If the Motion for suppression is granted, the prosecution cannot use the illegally obtained evidence at trial.  This can obviously have a huge impact on the case.  A very positive impact for the defense, and very negative impact for the prosecution.  In fact, the prosecution may dismiss the case and/or offer a very favorable plea agreement  in the event of suppression.

What's Next?

If you or someone you love needs help with a legal issue - like a Minnesota DWI --- call The Rolloff Law Office to set up a FREE CONSULTATION today.  Call (612) 234-1165.

Minnesota's Implied Consent Law & Test Refusal Crimes (Explained)

The Minnesota Implied Consent Law requires that anyone who “drives, operates, or is in physical control” of a motor vehicle in Minnesota consents to be subject to Minnesota's Drunk Driving Law and the Implied Consent Law.  The Implied Consent Law further requires a person to submit to a chemical test of their blood, breath, or urine (or face a criminal charge for test refusal) when a peace officer has probable cause to believe the person has violated Minnesota DWI law (and other specific circumstances exist).  If this sounds even remotely confusing, consider consulting an experienced Minnesota Criminal Defense Attorney - please.

The purpose of the chemical test is to determine the presence of alcohol, a controlled substance  or its metabolite, or a hazardous substance, and the test must be given at the direction of a peace officer (e.g. a police officer).

When a Chemical Test Can Be Requested

A peace officer has the option of requesting a chemical test when they have probable cause to believe a person was driving, operating, or in physical control of a motor vehicle in violation of the DWI law, and at least one of the following conditions exist:

1. the person has been lawfully placed under arrest for violation of Minnesota’s DWI law (or an ordinance in conformity with it);
2. the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death;
3. the person has refused to take the screening test (preliminary screening test/portable breath test (PBT)); or
4. the screening test was administered and indicated an alcohol concentration of 0.08 or more. 

The test may also be required of a person when a peace officer has probable cause to believe the person was driving, operating, or in physical control of a commercial motor vehicle with the presence of any alcohol.

Implied Consent Advisory

The Implied Consent Advisory is a provision of Minnesota’s Implied Consent Law which requires the peace officer to inform the suspect of the following before requesting a chemical test submission:

•  Minnesota law requires the person to take the test:
•  to determine if the person is under the influence of alcohol, controlled substances, or hazardous substances;
•  to determine the presence of a controlled substance listed in Schedule I or II or metabolite, other than marijuana or tetrahydrocannabinols; and
•  if the motor vehicle was a commercial motor vehicle, to determine the presence of alcohol;
•  that refusal to take a test is a crime;
•  if the peace officer has probable cause to believe the person has violated the criminal vehicular homicide and injury laws, that a test will be taken with or without the person’s consent;
•  that the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test.

The Test Refusal Crime & Administrative Penalties

Criminal Penalties

It is a crime in Minnesota to refuse to submit to a chemical test of blood, breath, or urine under the Implied Consent Law.  The criminal penalties depend on the unique circumstances of the case and the prior record of the defendant.  As an example, a typical first-time DWI offender who is charged with test refusal is subject to a gross misdemeanor level offense (up to one year in jail and/or up to a $3,000 fine).

Administrative Penalties

In addition to the criminal penalties associated with the Implied Consent Law & Test Refusal Crime, there are also significant administrative penalties.

Test Refusal Penalties

There are significant administrative penalties (e.g. license revocation) which apply to test refusal under the Implied Consent Law  (i.e. when a peace officer has probable cause to believe a suspect has violated the DWI law and they refuse to submit to a chemical test).

Specifically, a peace officer can immediately serve a notice of intention to revoke/revocation on a suspect on behalf of the Commissioner of Public Safety upon test refusal, and also must take the following steps:

•  invalidate the person’s driver’s license or permit card by clipping the upper corner of the card in such a way that no identifying information including the photo is destroyed, and immediately return the card to the person;
•  issue the person a temporary license effective for only seven days; and
•  send the notification of this action to the commissioner along with the required certificate.

The period of license revocation and/or other administrative penalties depends on the unique circumstances of the case and the record of the offender.  As an example, the period of license revocation is one year for a first-time test refusal offender.

Test Refusal Criminal Conviction Penalties

In addition to the administrative penalties for test refusal  under the Implied Consent Law, there are also administrative penalties (e.g. license revocation) which result from a test refusal criminal conviction.

The period of license revocation and/or other administrative penalties depends on the unique circumstances of the case and the record of the offender.  As an example,  the period of license revocation is 90 days for a first-time test refusal offender.

To fully understand your options, please take the time to speak with an experienced lawyer.  The Rolloff Law Office has handled any and all sorts of criminal matters --- DWIs and otherwise.  Call today to set up a FREE CONSULTATION: (612) 234-1165

Minnesota Field Sobriety Tests (Don't Do 'Em?)

Believe it or not, Minnesota's Standardized Field Sobriety Tests are NOT a valid method for determining impairment --- due to drug or alcohol use.  Shocking - but true.  Ask any self-respecting Minnesota Criminal Defense Attorney - like me.

If you hold "other" beliefs - after examining the following questions - tell me if you have even the slightest change of heat.

Field Sobriety tests Are Meaningless 


Here are some simple questions that should demonstrate to any right thinking individual why those road-side calisthenics the cops have drivers go through are all pointless.

• Have you ever stumbled while walking?
• Did that stumbling mean you were drunk?
• If you can stumble while walking normally, what about when asked to perform the difficult and awkward task of walking heel-to-toe?
• (As a side note, does anybody actually walk this way?)
• What about standing on one leg?
• Is this something you practice often?
• If you stumbled does that automatically mean you are drunk?

The fact of the matter is that "not passing" these very difficult Field Sobriety Tests can be attributed to a number of factors. such as:

• Age
• Body weight/size
• Medical History - including any lingering leg or back injuries
• The type of shoes one has on
• Innate Clumsiness
• Nervousness

Despite everything set-forth above, the government (and judges) continue to place a lot of weight on these tests to determine intoxication.  As a result, many innocent people have been found guilty of M9innesota DWIs (especially DWI- where drug use is implied.

Think About it

Considering was been laid out here, this is why I suggest that (if you have been arrested for a Minnesota DWI) that consider hiring an attorney who is willing to fight the good fight - especially when it comes to is an Field Sobriety Testing - sop you can defend yourself against this "junk science" in court.  Protect your rights - contact the Rolloff Law Office today to get answers to your legal dilemmas.  Call:  (612) 234-1165.

DWI Tests - Does Anyone Pass?

The standardized field sobriety tests ("FSTs") - commonly used by police officers during their Drunk Driving investigations to determine whether a driver is under the influence of alcohol - are not meant to be passed.  Rather, more often than not, these "tests" are employed to confirm a suspicion the officer has already developed. Therefore, because you can can only "fail" these tests - my suggestion is don't take them.

What are FSTs?

Typically, they consist of 3 or 4 different exercises, such as the Walk-and Turn test, the One-Leg Stand test, Horizontal Gaze Nystagmus testing (ie., the follow the pencil with your eyes examination) and the alphabet recitation exercise.

In the end, no matter your feelings on how well you did on the tests, the officer's subjective opinion as to whether you "passed" or "failed" is all that really matters.

The FSTs Don't Prove Anything

These tests, which have been around for sometime, have unfortunately gained a certain aura of credibility with judges and juries; however, believe it or not they have no real basis in science for determining intoxication and as such I believe their useless.

As any police officer worth his salt will tell you, the decision to arrest someone is made at the driver’s window - not after these tests have been performed.  If that's the case, then why are drivers asked to perform these "test"? Generally speaking , you're asked to do these roadside gymnastics so that additional evidence can be gathered against you. 

Think of it, since the officer has already made up his mind to arrest you - is he going to be looking for things you do that change that opinion - or validate it?  Considering that these tests you are asked to be perform are often done under extremely stressfull situations, in less than ideal circumstances and weather - you have a recipe for disaster.

What Should You Do?

Contact the Rolloff Law Office today at (612) 234-1165 for your free, no obligation consultation. You need an aggressive Minnesota Criminal Defense Attorney on your side; someone who will listen to you and ensure that you get the best outcome for your particular case. Therefore, don’t hesitate - make sure you have the right representation by your side immediately.  

The Breathalyzer (Explained)

Most Minnesota drivers are familiar with what a Breathalyzer is and what it is alleged to do.  (In Minnesota, the Intoxilyzer 5000 is the device of choice in most jurisdictions; however, that will soon be changing as it is phased out and new Datamaster machines are employed. 

At their most basic, these devices are used by law enforcement to determine if someone is Driving Drunk - to see if a driver's alcohol concentration is (.08) or greater. 

What Does (.08) or Greater Mean For You?

If you learn one thing today, I hope it is this - a breath test result of (.08) or greater does not necessarily mean that someone is too drunk to drive. Rather, all lawmakers have done is mandate that that level of alcohol concentration in someones system - (.08) or greater - is by itself enough to determine that someone is too drunk to drive. Ass such, nothing much else about one's ability to drive really matters. The result is the result - as far as the cop, prosecutors and all to often judges and juries are concerned. Therefore, instead of being able to make a case that a driver's perceptions, conduct, balance and/or judgement are not effected by the amount of alcohol in his or her system, the work of an experienced Minnesota DWI Attorney  is often centered around taking on a machine printout that by itself is presumed to prove someone is too drunk to drive a vehicle properly.

The Problems with Breath Testing

A breath tests top task is to test the level of ethyl alcohol in your blood. (One's breath is tested, instead of blood, because it is cheaper and less intrusive.)  This is done by determining the relationship between the alcohol content in one's breath and then extrapolating that number out to determine the alcohol content in one's blood. This can be done because one way alcohol is expelled from the body is through he deep tissues of the lungs which is then breathed out of the body.

However, because it is not blood - there can be problems.  Not the least of which is that the temperatures in the lungs changes throughout the process, IMHO limiting the true true relationship, or correlation, between the alcohol in your breath and in your blood - often leading to grossly inflated overestimations.  Another problem is that humans have been found to have ethanol alcohol in their systems - even without having having had consumed alcohol.  There are also extensive issues surrounding how one's breath is tested - and what the machine does and does not "read". 

At the end of the day, I feel comfortable asserting that breath test machines, like the Datamaster and the Intoxlyzer 5000, aren't 100% accurate. Therefore, the results they produce - the almighty number that will label you a Drunk Driver - is likely inaccurate. 

What Should You Do?

In addition to digesting the information collected here about the "hows" and the"whats" of Minnesota's DWI laws -  if you or someone you love has been arrested for DWI - your next best step is to contact an experienced Minnesota Criminal Defense Attorney to learn your rights and to have him fight for you in court.  

The Top 5 Minnesota DWI "Rules"

Although there is really only one foolproof way to "beat" a Minnesota Drunk Driving arrest, there are some things that you can do to protect yourself from doing the government's work for them. 

Sure, if you follow these "rules" it is quite possible that you will be arrested; but, if you don't follow them, it is just as likely that you'll be taken into custody. The difference between the two?  Well, for one, you can save yourself from giving law enforcement the kinds of evidence that they will later use against you in court.  In addition, you might make it easier for an experienced Minnesota DWI Attorney to win you a favorable result - when and if you are ever charged with Drunk Driving.

It goes without saying that the easiest way to avoid the attention of law enforcement - when traveling on the highways and byways of the State of Minnesota is to follow the rules of the road.  This includes - abiding by the speed limit (the most common circumstance I've seen for the cops to initiate a vehicle stop,) not texting and driving, wearing your seat belt, coming to a complete stop for stop signs and/or traffic lights, and driving entirely within your lane of travel.  If you've failed to heed this warning, then you need to follow these rules.

#1 - Never Admit to Drinking

Don't get me wrong, any contact with law enforcement is bound to be stressful and often, a certain human-instinct kicks in where you want to be helpful. If you're like me, you either believe you can negotiate your way through the situation - proving your innocence to the police officer - and/or you somehow come to think that if you cooperate with him that he'll take some sort of pity upon you and in the face of (often) insurmountable evidence just let you go.  Believe me, neither of these courses of action is better than doing and saying nothing.

When the police start asking you about where you've been, where you're going, or what you've been drinking - believe it or not their #1 concern isn't - or your well being; rather, what they're trying to do is gather information - that they might use against you at a later time.

Remember, your right to remain silent - you don't have to answer these questions. Instead, offer up you identification information and then graciously zip your lip.

#2 - Field Sobriety Tests - Don't Do 'Em!

In the past, I've tried to make my opinions known on this issue - here, here, and here.  The simple truth of the matter is - virtually nothing you can do during the performance of these tests is going to make it any less certain that you will not be arrested.  Remember, your performance on these "tests" is being judge by someone who thinks you've been driving drunk.  With that said, isn't safe to assume that he is not going to be looking for your successes; rather, his focus is going to be on your failures - where you're performance is not perfect.  Therefore, this rule is a simple one -  say No to the Field Sobriety Tests.

#3 - The Portable Breath Test - Don't Do it!

The reasons for this are the same reasons as for why you should politely decline doing the Field Sobriety Tests - you don't have to, it doesn't help you, it helps the officer make his case against you, and they're often unreliable.  In addition, this test is not allowed to be entered into evidence in your case.  Again, just say NO to the PBT!

#4 - Exercise your Right to Speak to Minnesota DWI Attorney
If you do as I've suggested you do - it is all but certain that at some point you'll be arrested.  At that moment, you're supposed to entitled to speak a Minnesota Criminal Defense Lawyer. Once you ask for an attorney, the police are should stop any questioning of you and take the reasonable steps to get you get in touch with a lawyer. That's your Constitutional Right - use it. Don't let the cops try to talk you out of it. I know this is going to be hard to understand, but asking for a lawyer does not make you look guilty. It makes you look smart. People ask for attorneys because they need an expert help them deal with the police. Don't be afraid to get help.

#5 - Treat the Police With Respect - Even if They're Rude to You 

DWI investigations are not fun - for anyone. And believe it or not, that kind officer who on another occasion helped find your dog, may not have that same disposition when it comes to dealing with you when he thinks you've been driving drunk.

No matter how hard it can (and often will) be - you have to remain calm and hold your tongue. If you don't - your actions will be used against you later --- this I can assure you. The calmer you remain and the less you let the cops get to you - the better your case.

---

The next time you are stopped and investigated for Drunk Driving, put these five suggestions to use. You'll be glad you did. If your reading this after you've been stopped (and thinking - "where was this before I was so stupid?") don't fret. Just because you've been arrested for a DWI does not mean you will be convicted of that offense.

Take the next right step - be smart, now, and contact an experienced Minnesota DWI Attorney to explain to you your rights and to fight for you in court.

DWI Field Sobriety Tests - The One Leg Stand (Explained)

Just like with the the Walk & Turn test, another standard Field Sobriety Test you should prepare yourself for - as you would "study up" before any sort of examination - is the One Leg Stand Test.  To do your best on this task, an experienced Minnesota Criminal Defense Attorney is going to tell you that it is important that you understand not only the procedures involved but also what the cops are really looking for when they have your perform this test.  Plus, like with the other Drunk Driving tests, this one also makes for a fun party game, no?

One Leg Stand Test (Explained)

As with any of these tests, the officer who has you perform them will most likely will read from a set of instructions much like those offered here - straight from the standard field manner for how to administer such exercises.

First, before having your perform the test, the officer should make sure that you are on a hard, level, non-slippery surface. (Special consideration should also be given to those individuals over a certain age, of a certain weight and/or those who have a physical impairment that would affect their performance.)

As with the Walk & Turn Test, this test also consists of two stages: instruction and performance.

The Instructions

During this stage, you will be the told what to do and and ways to score.  In addition, these instructions should not only be explained to you, the officer should also demonstrate the test . Here's what you should be tasked with.

1. Stand with your feet together and your arms down at the sides, (like this.)
2. Do not start to perform the test until I tell you to do so.
3. Do you understand the instructions so far?
4. When I tell you to start, raise one leg, either leg, with the foot approximately six inches off the ground, keeping your raised foot parallel to the ground."
5. You must keep both legs straight, arms at your side.
6. While holding that position, count out loud in the following manner: 'one thousand and one, one thousand and two, one thousand and three, until told to stop.'
7. Keep your arms at your sides at all times and keep watching the raised foot.
8. Do you understand?
9. Go ahead and perform the test.

In addition, you should also be told that if you put your foot down while taking the test, that you should pick it up and continue counting from the point where your foot touched the ground.

The Performance/Scoring

As with any test, you're going to want to know how it's score - so you can do what's necessary to pass, right? Not knowing the criteria - coupled with trying to perform this test at night, with a cop bearing down on you, and traffic whizzing by - is bound to impact even the best test-takers performance. So, try this, before you read ahead, take a stab at the test. Then, after you've read the "teacher's guide" try it again.  My guess is, your performance will improve. 

During this test, the officer is looking for these behaviors: 

• Raising your arms in order to gain your balance
• Hopping on one-foot
• Swaying
• Putting your foot down and/or touching the ground
• Failing to complete the test 

This is what your performance will be graded on. And, believe it or not, two or more of these "signs" can equal a FAIL and give the officer probable cause to arrest you. 

What To Do

If your not doing some pre-test studying - but rather you've been arrested for Drunk Driving after failing this silly examination, your next, best step should be to contact an experienced Minnesota DWI Defense Attorney. The One-Leg Stand Test - like nearly all of these tasks - is entirely subjective, and a person could fail it for many reasons other than being intoxicated. An attorney can investigate whether the test was administered properly and what your performance really showed.

But, just as I explained before, in the State of Minnesota taking these tests is completely voluntary. As such, my advice to you is: Don't take these tests - they cannot help you. As a matter of fact, they'll often only hurt one's chances of beating a Drunk Driving charge because the cops tend to pay more attention to every little slip or misstep you make and they often ignore or disregard every correct one - o paint a picture of you as a drunk driver. 

Just say no!

DWI Field Sobriety Tests - The Walk and Turn

Falling somewhere between the "Hokey-Pokey" and "Simon Says" - Field Sobriety Testing for Drunk Driving is an integral element in DWI prosecution - and defense. The tests are often used by an investigating officer to establish probable cause to arrest someone for DWI; and, in cases where no test of someone's blood, breath or urine was collected - one's performance on said tests can be used to ultimately determine whether there are sufficient indicia of intoxication to establish a per se violation of the Drunk Driving law.

With this awareness of the test's importance in mind, you would be suprised how many how many police officers, prosecutors, attorneys and judges lack even a basic understanding of their procedures and what one's performance on these tests actually determines.

So, even though it may feel a little silly, the next time you're throwing back a few "pops" - you might want to consider making yourself something of an expert on Field Sobriety Tests by practicing them - at a time in which your not under the watchful eye of a police officer.

Seriously, the better you understand the tests - the more familiar you are with the instructions, the performance thereof and what's expected of you- the better your chances might become at passing them. As my dad used to loved to repeat - practice makes perfect.

In the end, would that you and I were to be able to discuss taking these tests at all - I'd advise you (in no uncertain terms) to NOT take them.  However, if you feel you need to try and impress your new friend in law enforcement - I would suggest that you become intimately familiar with what these tests are really trying to reveal --- your ability to perform a task - at a time in which your attention is being pulled in more than one direction at a time.

The Walk & Turn Test - Explained

So as not to screw this up, police officers often read from a standard set of instructions when asking a driver to perform these tests.  (Click HERE for a video explanation.) What I would suggest of you - is that prior to performing this test, make yourself familiar with the instructions, and then attempt the test.  The better you understand what will be asked of you - I would posit --- the better your chance at success.

1. Place your left foot on the line (real or imaginary).
2. Place your right foot on the line ahead of the left foot, which heel of right foot against toe of left foot.
3. Place your arms down at your sides.
4. Maintain this position until I have completed the instructions. Do not start to walk until told to do so.
5. Do you understand the instructions so far?
6. When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back.
7. When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot. (Often the officer will demonstrate the exact turn he would like you to perform - pay attention.)
8. While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.
9. Once you start walking, don't stop until you have completed the test.
10. Do you understand the instructions?
11. Begin and count your first step from the heel-to-toe position as one.

Now try the test.

What the Officer is Looking For

While your walking the line, this is what the police are keeping the closest eye on:

• Did you keep your balance - while being instructed in the test?
• Were you able to touch heel-to-toe - what was the largest distance between the two?
• Did you keep your balance - while performing the test? 
• Did you sway?
• Did you "use" your arms to balance; did you raise them more than six-inches from your side?
• Did you start the test - before being instructed to do so?
• Did you stop in the middle of the test?
• How did you execute the turn - was it as instructed?
• Did you take the proper number of steps - or too few/many?

If an officer observes two or more of the above listed "clues" --- you have FAILED the test.

Now, knowing what you know, you may want to retake the test --- and in the privacy of your own home, you have that option. However, believe it or not, the certification manual for Field Sobriety Testing asserts to officers that if someone struggles with this test that he or she should NOT have a driver them re-take it - because the test loses its "sensitivity" if repeated.  Therefore, if you don't get your practice in now - odds are you're not going to get a 2nd chance to make a 1st impression on an officer in the field.

What You Should Do  

At the end of the day, as any experienced, Minnesota DWI Attorney will tell you, by performing these tests -  you cold do more harm than good to your case. However, if your so inclined - understanding what you might be in for - if you do choose to take these tests - could go along way toward keeping you from a DWI arrest. 

DWI - Field Sobriety Tests - Don't do 'em

Field Sobriety Tests are commonly used by the police to ascertain whether a driver is "under the influence." However, to most experience Minnesota DWI Attorneys these controversial "tests" are fertile ground for debate in court - regarding what they don't demonstrate about an individuals level of intoxication.

As is common - when asked to do something by the police - most of us comply.  Maybe it's because we were asked nicely, or maybe it's because we don't want to be confrontational or appear to have something to hide. Irrespective of one's motivations, in more cases than not - based on the hundreds of DWI police reports I've read through - we're not doing anyone (but the cops) a favor if we submit to these roadside calisthenics.

As you will see in upcoming posts, one's chances of "passing" these tests (even when a driver is not over the legal limit) is often low - considering the conditions under which they're often administered. Plus, if you have been drinking - and the officer has already noted the odor of alcohol coming from you - it's just common sense that he or she is going to note any missteps during your taking of these tests as additional signs of intoxication, no? Remember, his subjective opinion is what will go into the police report - and that carries considerable weight when it comes to charging and prosecuting someone for Drunk Driving.

In the State of Minnesota, the option to take these tests is up to the driver. My advice, to anyone requested to perform them, is - as Nancy Reagan was fond of intoning - Just Say No! As with any criminal case, the burden is on the government to prove you're guilty. Knowing that, why would anyone want to give them additional fuel for their fire? Also, believe it or not - you cannot prove your innocent. If you submit to these tests, more likely than not, the officer is going to pay more attention to the problems with your performance than the perfection of it - and (either he or the prosecutor) is going to slant those missteps in such a way as to bolster their case against you.

Most likely if your reading this, the question as to whether you want to - walk the line, or stand on one leg has already been put to you and you've agreed. If that's the case, there are ways to work with that; however, for those of you a tad more fortunate, I hope you never find yourself in such a position, but if you do --- Just say no.

Remember, for questions like this, an experienced Minnesota DWI Attorney is always just a phone call away; use him or her to learn your rights and to minimize the evidence the government collects from you.

Top 5 Things To Do When Stopped by the Cops - DWI Edition

I've done it - and maybe you have too. You're out with friends or family and you have a couple of drinks with dinner. Not feeling "drunk" - you get in your car and you drive home. The next thing you know - BAM - there are red and blue flashing lights in your rear-view mirror and soon you're being asked by the police - "Sir, how much have you had to drink this evening?"

As you may already be aware, it isn't illegal to drink alcohol and drive. But... it's natural, when encountered by the cops, to feel nervous or even to be scared when you've had some alcohol, drove and then by the police.

Knowing what to do in that situation is essential. Believe or not, how you react can go along way toward determining whether or not you'll wake up in your own bed the next morning - or - in jail.

Here are 5 tips that could help you navigate a stressful situation.

#1 - Don't Do the Cops Job For Them - Don't Talk About Your Drinking 

We all have Constitutional rights - the greatest among them is the right to remain silent and the right not to incriminate ourselves. These rights exist whether or not you are under arrest and when you are in your car and an officer is asking you questions - above and beyond name name and date of birth. Don't be afraid to respectfully exercise these rights.

When the cops start asking you about where you've been, where you're going, or what you've been drinking - believe it or not their biggest concern ususally isn't about you - or your well being. What they're actually do is gather information - that they might use against you at a later time. Often, these exchanges are the beginings of a DWI investigation. Remember, you don't have to answer these questions. Offer up you identification information and then graciously zip your lip.

2. Don't Do the Cops Job For Them - The Field Sobriety Tests

Did you know, you have no obligation to participate in the roadside gymnastics/field sobriety tests that an officer might ask you to take? Sure, you're going to want to cooperate - right? It's natural to feel as though you can "impress" the officer by trying to do what he asks. But believe me, you are taking quite a risk - because if this officer decides you've failed these silly little tests, you're going to do more harm to his or her impression of you than you could have ever done good.  Plus, field sobriety tests won't tell an officer (or anyone else for that matter) if you can safely drive a vehicle. Rather, all they do is give that officer much more information to use against you later to prove that your were driving drunk.

3. Don't Do the Cops Job For Them - The Roadside Breath Test (the "PBT")

The reasons for this are the same reasons as with why you should polite decline doing the field sobriety tests - you don't have to, it doesn't help you - it helps them, and they're often unreliable. Again, just say no.

4. If You Feel Uncomfortable - Ask to Speak to a Minnesota DWI Attorney

The moment you're placed under arrest - you are supposed to be entitled to a Minnesota Criminal Defense Lawyer. Once you ask for an attorney, the police are should stop questioning you and take reasonable steps to get you get in touch with a lawyer. That's your Constitutional Rights - use it. Don't let the cops try to talk you out of it. I know this is going to be hard to understand, but asking for a lawyer does not make you look guilty. It makes you look smart. People ask for attorneys because they need expert help to deal with the police. Don't be afraid to get help.

5. Remain Calm and Treat the Police With Respect - Even if They're Rude to You 

A DWI investigation is not fun - for anyone. And believe it or not, that kind officer who on another occasion helped find your dog, may not have that same disposition when it comes to investigating you for a crime.

No matter how hard it can (and will) be - you have to remain calm and hold your tongue. If you don't - your actions will be used against you later --- this I can assure you. The calmer you remain and the less you let the cops frazzle you the better your case.

The next time you are stopped and investigated for a Drunk Driving, put these five suggestions to use. You'll be glad you did. If your reading this after you've been stopped (and thinking - "where was this before I was so stupid?") don't fret. Just because you've been arrested for a DWI does not mean you will be convicted of that offense.

Be smart, now, and contact an experienced Minnesota DWI Attorney to explain to you your rights and to fight for you in court.