By Minneapolis DUI Attorney Thomas Gallagher
Impaired Driving vs. Over the Limit – Justice vs. Expediency
Driving Under the Influence (DUI) charges in Minnesota require convincing proof that a person was driving, operating or in control of a motor vehicle while impaired by alcohol or another drug. A good DUI Attorney can help defeat those charges.
An exception to the requirement of proof of impairment is Minnesota’s per se limit law, making it a crime to be driving, operating or in control of a motor vehicle within two hours of having an alcohol concentration of 0.08 or more.
Enforcement of a bright line law is easier. But that enforcement can unfairly snare drivers who are not impaired. (We don’t hear about “Drunk Driving” any more, because most accused drivers weren’t.)
The arbitrary 0.08 law does require chemical test evidence from a breath, blood or urine sample.
Administrative Revocation of Drivers License vs. Criminal DWI Charge
Even first-timer will have at least two legal actions taken against them by the government after a DWI arrest:
- Administrative Revocation of Drivers License (“implied consent revocation”); and,
- Criminal DUI Charge.
Where a breath machine test reports 0.08 or more, or “refusal,” the police officer will typically provide a Notice of Revocation and Temporary License, beginning the Administrative Revocation of Drivers License. This also is when the “alcohol-related incident” will go on your driver’s license record.
In the case of a blood or urine test, the Notice should come by mail, after the lab test report is complete.
Either way, the driver must challenge the Administrative License Revocation by filing a Petition for Judicial Review within 60 days, or it will be too late to do so. If done, the court will schedule a hearing on the matter before a Judge.
Win the hearing, and the Court will rescind the Administrative License Revocation. The Minnesota Department of Public Safety will then delete the “alcohol-related incident” from your driver’s license record.
The driver must still avoid an alcohol-related conviction (such as DUI or DWI-Refusal) to prevent an “alcohol-related incident” going on the “driver’s license record.” It’s a two-step process for the driver. Yes, the laws favor the State. But Gallagher does win many of these cases.
The Crime of Refusal to Provide a Bodily Fluid or Breath Sample
To create a disincentive for suspected drivers to refuse providing a sample for chemical testing, the Minnesota legislature made refusal a crime. And, it made refusal a more serious crime; and made drivers license consequences more severe for refusal as well.
In addition to criminal and drivers license consequences, Minnesota’s DUI laws now include provisions for the impoundment of vehicle license plates, though not for first-timers. If police impound plates, a DUI Attorney can help challenge that. Win the challenge in court, and the driver gets their regular plates back. Otherwise, vehicles must carry Special Plates, aka Whisky Plates.
Minnesota’s DWI laws now allow the government to seize your vehicle, sell it, and keep the money. Most of that money goes to the very same police department that pulled you over and arrested you.
A prosecutor can attempt a vehicle asset forfeiture against those accused with prior impaired driving incidents.
“Do I need a Minnesota DUI Attorney?” – Short Deadlines
Given all of these laws, it’s best to retain a Minnesota DUI Attorney to help challenge the government’s case and protect the rights of the individual.
Deadlines for action by the driver in the driver’s license, plate impoundment, and forfeiture cases, are short. The hard deadline is sixty days. That is why you should employ a good DUI defense attorney as soon as possible after the date of arrest.
Aggravating Factors – Criminal DWI Charges
The term “aggravating factor” includes:
“(1) a qualified prior impaired driving incident within the ten years immediately preceding the current offense;
(2) having an alcohol concentration of 0.16 or more as measured at the time, or within two hours of the time, of the offense; or
(3) having a child under the age of 16 in the motor vehicle at the time of the offense if the child is more than 36 months younger than the offender.”
If a prosecutor claims an aggravating factor, the DUI charge is more serious. For example, a prosecutor can enhance misdemeanor DUI to a gross misdemeanor or felony DUI based upon priors.
A DUI offense “within ten years of a qualified prior impaired driving incident” can have mandatory sentencing laws apply, due to the prior(s). This may create an issue since generally priors used to enhance the criminal charge to a more serious one, cannot lawfully be double counted again to inflate the length of the sentence. This is also an issue with Felony DUI charges based on priors within ten years.
Most DUI cases begin with a traffic stop — in other words, a Fourth Amendment Seizure of a person by a government official. Police may not lawfully seize a person or impair their liberty without some justification.
For purposes of a Fourth Amendment Seizure police must have facts supporting either Reasonable, Articulable Suspicion of criminal activity, or observe a traffic law violation.
If the stop was unlawful, all evidence stemming from it must be suppressed. Then, with all evidence suppressed, criminal charges will be dismissed. And the state action against the driver’s license, plate and vehicle will be rescinded. That will require a DUI Attorney employed soon enough to act on the drivers behalf.
After a traffic stop, police officers will attempt to observe and gather evidence of impairment. This includes talking to the driver and others. Police seek admissions and observe speech and other behavior.
They will ask a driver suspected of DUI to perform roadside exercises which they optimistically term “field sobriety tests.” Though drivers cannot be required to perform any of these and should not, police are trained to pressure the driver into doing them or offering excuses. The driver should make no excuses, since there is no legal requirement to do them. They are false tests.
After these, the police officer will normally request the driver to blow into a “Preliminary Breath Test (PBT)” machine. Police cannot lawfully request a driver blow into a PBT without the preconditions required by Minnesota statute. A driver who refuses to blow into a PBT at the side of the road can be arrested for refusing. Though notoriously inaccurate, PBT reports of 0.08 or more can result in claimed probable cause to arrest.
Chemical Test at Police Station or Hospital
After arrest, police may take the driver to a police station or hospital for a request for a sample for chemical testing. The sample collected can be either breath, blood or urine.
All of these are searches, however blood and urine sample collection must be authorized by a search warrant. In certain circumstances, police can choose to invoke the so-called implied consent statute in order to take away the person’s drivers license before trial in the criminal case.
If they do, police must read the Minnesota Chemical Test Advisory of rights, including the right to consult a lawyer before deciding. Then when the driver chooses to use their right to call a lawyer, police are must help vindicate that right to counsel.
After that, when the person does provide a sample for chemical testing, they have a right to have a second, additional test sample. An independent lab can then analyze this additional test sample. If police interfere with this right, they cannot use the sample they collected.
Does the legislature pass a new law to make sure the defense can’t win on an issue, every time we win a DUI case? Seems like it. But for all the many DUI laws in Minnesota, there are even more defenses that these new laws engender.
The laws are unfair. That very draconian unfairness helps fuel the defense to find paths to justice for beleaguered drivers.
Some defenses are issues that have been around for decades or longer.
Others are of the timely nature, have their season only to be replaced by other new defenses.
DUI Attorney experience counts. We must collect every fact we can, then review what happened against what should happen and the laws. Often the best DUI defense attorneys are lead enforcers of the higher law of the U.S. and Minnesota Constitutions, benefiting not only our clients, but all of us.
Question? You can call Minneapolis DUI Attorney Thomas Gallagher at 612 333-1500