Is it a crime to drink and drive? No, of course not. But some people out there – like MADD people – appear hellbent on bringing back the Alcohol Prohibition; step by step. Do you know how to best handle a DWI stop in Minnesota?

Sure. “Don’t drink and drive,” can prevent a problem. So can counting your drinks to stay below the limit. But let’s dig deeper than the obvious.

Once, “drunk driving” was the crime

Then in the 1970s, the legislature created “per se” impaired driving laws. “Per se” is Latin for “the thing itself.”

And Minnesota Courts hold evidence of non-impairment to be irrelevant under “per se” limit laws. That’s why you don’t hear the term “drunk driving” much anymore. Impairment is irrelevant. But why should driving be a crime, with no impairment of driving skills?

A “per se” drunk driving law makes driving with an arbitrary alcohol-level the crime. And for those laws, it doesn’t matter that the driver was sober, not drunk; not impaired at all.

Ok. So the laws are unfair – punishing the innocent and their families for driving unimpaired. There it is.

Then, how can you protect yourself and your family from this bad law, during a DWI stop?

What can you do at a DWI stop to protect your rights?

This is a question that criminal defense lawyers hear at a party. Why? Because almost all people stopped and later charged with DWI didn’t do any of the following things. And people are curious. What can you do to protect your rights at a DWI stop?

There are a few different approaches and answers to the question. So let’s narrow our hypothetical, and provide one.

We know that most people at a DWI stop have:

alcohol concentration under 0.15,
no priors, and
no impaired-driving conduct.

So let’s start with all of those assumptions, as well as assuming Minnesota laws.

And given that most drivers travel faster than the low speed limits; let’s assume a police officer stops the driver for speeding late one Friday or Saturday.

The police squad car take-down lights are visible in the rearview mirror. Now what?

DWI Stop: Police Officer Approaches Vehicle

We train police to observe all of your actions, and note any that could support suspicion of impairment. And they ignore the rest. At this phase, these include:

odor of alcohol
eyes, “bloodshot, watery”
fumbled for driver’s license, insurance card
admitted drinking, coming from a bar, party

What are some potentially effective countermeasures to a DWI stop, then? If the window is open about an inch – that is enough to pass through the drivers license and insurance card; but not enough to expose the odor of alcohol. You can initially refuse to lower the window. This forces the officer command you to do so; making it difficult for them to argue you did so voluntarily.

When speaking to the police officer through the almost closed window, the driver can avoid eye contact. This prevents the officer from being able to observe the cliché “bloodshot watery eyes” they imagine come only from drinking. (All people who are alive, have “bloodshot watery eyes.”)

It’s a good idea to have the drivers license and insurance card ready in hand immediately after stopping. Do so well before the police officer walks up to the vehicle to request them. They are in your hands already, which are in plain sight on the steering wheel. (Police ask for your license and proof of insurance, then try to distract you with more questions while you get them,)

The new Prohibition? Tips for a DWI stop — New Prohibition? Tips for DWI stop

Be careful about what you say

If police ask “have you been drinking tonight?” at a DWI stop, you need not answer or answer responsively. Lying is a bad idea, for many reasons; so don’t. And it’s also a bad idea to admit facts the officer can use to build “probable cause;” to ask you out of the car, or for arrest.

Where does that leave you? Silence, or change the subject.

If a speeding stop, the officer should just write you a ticket and send you on your way; unless you give her reasonable suspicion to justify asking you to get out of your vehicle.

Police ask you to step out of the car: Now what?

If you use the car for support when getting out, they will use that. So don’t. They will ask you to walk behind your car, in front of theirs. Their many squad car lights will be on full brightness.

They will ask you to perform field exercises they like to call “Field Sobriety Tests.” These are not scientifically valid, though the government claims otherwise. Sober, trained police officers “fail” these “tests.” So how will you “pass” them? And who is your judge? The police officer!

What to do at a DWI stop, then?

Never perform field exercises

Do not do “Field Sobriety Tests!” The NHTSA Standardized FSTs are:

Nine step walk and turn
One leg stand
Horizontal Gaze Nystagmus (follow pen with eyes only, not moving head)

Can police require you to perform standardized Field Sobriety Tests?

No. Police cannot legally require you to do any of these. And it would be a foolish mistake to willingly do any of them. These roadside field exercises give police another justification for prolonging the traffic stop. If you listen carefully, police don’t say “you must do these field sobriety test exercises.” Instead they say, “I’m going to ask you to perform some tests and if you do well, you can go home. Sound good?” But the correct response is, “no thanks officer, but I’ll blow into the PBT right now if you like.”

If your five-year old makes the same request over and over again, you still say “no.” So when a police officer repeats a request for “Field sobriety Tests,” you don’t need to make excuses, just keep saying “no thanks,” as long as it takes.

“Why won’t you do them?” “A lawyer told me that I don’t need to, and shouldn’t.”

Preliminary Breath Test (PBT)

Minnesota statutes authorize police officers to ask a driver to blow into a PBT machine – a portable breath-alcohol machine. But the law requires certain preconditions, where there is a basis to suspect DWI or selected other alcohol-related offenses.

Don’t worry about whether those preconditions exist at the side-of-the-road DWI stop. Your lawyer can deal with that later.

A PBT machine report of 0.08 or more can give police probable cause to arrest for DWI. And so can “refusal” to perform a PBT. Refusing a PBT is not a crime. But, refusing a PBT would provide police with probable cause to arrest.

“Should I refuse the PBT at a DWI Stop?”

So, a logical person knowing that, might decide to refuse the PBT; if sure they would end up with a PBT report of well over .08, for example .16 or more. So that person may have nothing to lose by refusing – since they would be arrested either way.

But compare that to a person who believes they will get a PBT report of less than 0.08. That person would be foolish to refuse it, since it could result in no arrest and no charges.

Two different breath machines: one small; the other large

Many drivers become confused with the second breath test request by police. They refuse the second request, “because I already blew!”

But be aware that the little PBT machine at the DWI stop; is not the same as the big, evidentiary breath test machine at the police station.

And after a DWI arrest, police ask for a testing sample again, even though you already blew into a PBT. The PBT report is not evidence in a criminal DWI trial, because it’s too unreliable and inaccurate.

If arrested after a DWI stop; then what?

Every step along in the chain of events, brings the driver closer to arrest (unless the PBT is under 0.08). But if the PBT reads high or is refused; arrest follows with handcuffs and the back of the squad car.

Then normally the arresting officer will wait for back-up or a tow truck. And then drive to the police station. Talking is not a good idea, including while in the squad car. The interior squad camera is recording it all.

At or near the police station (or hospital for a blood draw); police may read “the Minnesota Implied Consent Advisory” which informs the driver of certain legal rights.

The most important is your right to consult a lawyer before deciding whether to submit to chemical testing.

Pre-test Right to Legal Counsel

It is always, always, always – best to call a lawyer first!

The law requires police to help you do so before a breath test. If they fail to help you call a lawyer, the chemical test could be suppressed from evidence.

So, always, make every effort to call a lawyer – even if in the squad car after a DWI stop! Tell the officer you want to call a lawyer. They usually record this part – a good thing.

Exception: If police get a search warrant for a blood or urine sample; they might not assist you in calling a lawyer first. But when in doubt, always ask to call a lawyer, anyway. Your lawyer will thank you later for preserving your rights.

Right to an Additional Test

The “Implied Consent Advisory” read by the cop does not mention the other important right. What is it? They neglect to mention your Constitutional right to exculpatory evidence. And your statutory right to an “Additional Test,” reflects your Constitutional right Say what?

You have the legal right in Minnesota to a Second Test, after the you provide the sample requested by police. (But not if you “refuse” to provide a testing sample.)

So, the arrested person should always request an “Additional Test,” after giving a sample for police testing.

If you do make that request, the law requires police to help, by giving you a phone to use. You can use the phone to call whoever you need to arrange for an additional test.

Remember, time is of the essence with alcohol testing. Your test could defeat theirs, if done soon enough.

Stay safe out there.

Countermeasures at a DWI Stop