Minnesota Implied Consent Law (Explained)

Believe it or not - any individual who chooses to drive, operate, or be in physical control of a motor vehicle is assumed to have already consented to a breath, urine, or blood test to determine the presence of alcohol or hazardous or controlled substance in the body.  (See ... the things you probably didn't know that you didn't know --- this is why you need to speak to a Minnesota Criminal Defense Attorney.)  This chemical test is administered only after a police officer has established that there is probable cause to believe a Drunk Driving violation has occurred and that the person has been subsequently placed under arrest.

When is Probable Cause Established?
Probable cause exists only after a police officer reasonably suspects an impaired driving violation by observing impaired driving behavior.  This is usually accomplished when the officer observes any erratic driving conduct prior to the traffic stop. It can also be effectuated after the officer stops a driver - in their subsequent interaction.  (Here, the cop is looking for slurred speech, bloodshot watery eyes and the accused's overall appearance.) The officer will also critique the driver’s performance on some Field Sobriety Tests. Generally, after these tests a thorough officer will ask the driver to perform a preliminary breath test ("PBT") test to confirm his belief of impairment.

If an officer believes that probable has been established, the officer may then place the driver under arrest and (only) after reading the Minnesota Implied Consent Advisory, request an evidentiary breath, urine, or blood sample.

The officer is required to read the advisory - explaining that the test is mandatory, refusal to take the test is a crime, and the driver has the right to consult or speak with an attorney before agreeing to take the test. The individual is given a “reasonable period” of time under the “totality of circumstances” standard to contact an attorney.

Blood or Urine?

It is the officer that decides whether to administer a breath, urine or blood test. The Minnesota Bureau of Criminal Apprehension (BCA) analyzes blood and urine samples and forwards the results to Minnesota Department of Public Safety (DPS).

If a driver is asked to take a blood test - the individual can refuse - and the officer has to be afforded him or the chance to take breath or urine test.  That right to refuse also extends to urine - meaning that you can say "no" and the officer has to offer blood or breath.  (The rational is that some individuals are adverse to needles and they shouldn’t be charged with the crime of refusal simply because of this fact. The same rational applies to those who are offered a urine test, but for some reason are not able to physically urinate at the time.) However, if you're offered a breath test - you are required to do as much - or you do subject yourself to possible legal consequences.

What Should You Do?

My suggestion to anyone facing a legal dilemma is "talk to a lawyer."  Honestly, you only get one chance (all too often) to take on these things.  Get the answers you need to make the next right decision - your future could depend on it.  Call the Rolloff Law Office today at (612) 234-1165 to set up a FREE Consultation. 

Top 5 MN DWI Mistakes (and How To Avoid Them)

One in seven drivers in the State of Minnesota has been arrested Drunk Driving. To many, an arrest for DWI is considered the biggest mistake of their lives. However, instead of learning from that mistake, all too often these same individuals compound that error in judgement by committing the following missteps. 

Here are the Top 5 Post-Arrest Minnesota DWI  mistakes:

#5 - Not Taking a MN DWI Arrest Seriously

As like with almost no other charge on the books in the State of Minnesota, an conviction for Drunk Driving will follow you around for the rest of your life. Couple that with the fact that - in addition to the penalties that a judge will impose - there will be life long consequences such as driver's license revocations and increased motor vehicle insurance charges that you'll have to navigate. Moreover, a conviction can NEVER be Expunged from your record.

#4 -  Failing to Appear for Court and/or Driving After Your License Was Revoked

If you fail to show up for court, the judge issue a warrant for your arrest Then, the next time you are stopped for a traffic infraction, you will be spending some time in jail and probably be posting some bail to insure your future appearance in court.  Oh, and if your driving at the time (without a valid driver's license) expect to get another ticket for that too.

#3 - Failing to Hire an Experienced Minnesota DWI Attorney

DWI law is complex and to ensure that your constitutional rights are protected and that your arguments are heard you really need competent representation on your side. To win the results you desire, someone must effectively raise the right defenses - at the right time) -or you will lose your right to argue them forever. If you fail to do that, a winnable case could quickly become a loser. Think of it like seeking medical attention - for cuts and scrapes maybe Dr. Mom is okay; but, if you need someone to counsel your through a major medical procedure... you're goning to need a real doctor. As such, if you not a lawyer, maybe you better turn over your case to someone who knows how the system works.  See also: Believing That Googling "Minnesota DWI Defenses" Will Help You Handle Your Own Case.

#3 -   Taking the Government's First Settlement Offer.

In my experience, as both a lawyer for the government and as an experienced Minnesota Criminal Defense Attorney, I know that the first offer is seldom a bargain; rather it is often just a way for the prosecutor to get rid of a case without having to do too much work on it. Believe me, at this stage of the proceedings very few cases are dismissed or reduced to a non-alcohol related charge. In addition, if you just settle your case, you give up the biggest right you have - and that is to have the government prove its case against beyond a reasonable doubt. 

#2 -  Failing to Appear for Court and/or Driving After Your License Was Revoked

If you fail to show up for court, the judge issue a warrant for your arrest Then, the next time you are stopped for a traffic infraction, you will be spending some time in jail and probably be posting some bail to insure your future appearance in court.  Oh, and if your driving at the time (without a valid driver's license) expect to get another ticket for that too. 

#1 - Hiring an Attorney Based Only On What They're Charging

The government has nearly unlimited resources when it comes to prosecuting your case. To ensure your rights - and most specifically to preserve your future - you need to hire an attorney and pay a fee which will allow him to put in the time and effort your case requires to fight the state's case.  Attorneys must earn enough in the time they spend on your case in order to keep their doors open and make a living wage. If you choose your attorney based on the lowest bidder, he may not be able to put in the time necessary to protect you. He also may not have the right experience with Minnesota's DWI Laws. In stead of the cheapest guy - look for a reasonable, predictable fee.

What Should You Do?

When you hire a Minnesota Criminal Defense Attorney, you should consider more than just price. Ask yourself this, in addition to the out-of-pocket-costs you'll incur --- what else is important to you?  Do you want personal attention, aggressive representation, someone who is experienced in getting his clients just and fair results?

Hey, I've worked on both sides of the aisle - as a prosecutor and a criminal defense attorney. I know the law, I know the government's schemes and motivations - and as a result, I know how to get my clients the results they desire.  Oh, and, I charge a reasonable, well-earned fee.

If you or someone you know needs effective representation - feel free to contact me today to schedule a free, no obligation consultation.

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.