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. 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. This bright line law is easier to enforce but can unfairly implicate drivers who are not actually impaired. (There is a reason we don’t hear them talk about “Drunk Driving” any more – most accused drivers were not drunk.) The arbitrary 0.08 law does require chemical test evidence from a breath, blood or urine sample.
In order to create a disincentive for suspected drivers to refuse providing a sample for chemical testing, the Minnesota legislature not only made a crime to do so, 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 as well a vehicle asset forfeiture for those accused with prior impaired driving incidents on record.
Given all of these laws, it’s best to retain a Minnesota DUI Defense Lawyer to help challenge the government’s case and protect the rights of the individual. Due to short deadlines for action by the driver in the drivers license, plate impoundment, and forfeiture cases, a good DUI defense attorney should be employed as soon as possible after the date of arrest.
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 an aggravating factor is alleged to exist, then the DUI crime is charged at a more serious level. For example, what might otherwise be charged as a misdemeanor can be charged as a gross misdemeanor.
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, which should result in dismissal of criminal charges and rescission of state action against the drivers license, plate and vehicle — assuming a DUI defense lawyer was employed soon enough 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. No excuses are necessary since there is no legal requirement to do them, and they are unfairly judged. After these, the police officer will normally request the driver to blow into a “Preliminary Breath Test (PBT)” machine. A Minnesota statute limits when police can require a driver blow into a PBT, or be arrested for refusal to do so. 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, the driver may be taken to a police station or hospital for a request for a sample for chemical testing. Chemical testing can be performed on either a breath, blood or urine sample. 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, they must read the Minnesota Implied Consent Advisory of rights to the person, including their right to consult a lawyer before deciding what to do. If the person chooses to use their right to call and consult a lawyer, police are required to help them vindicate that right to counsel. If the person provides a sample to police for chemical testing, they then have a right to have a second, additional sample tested by a lab independent of the police. If police interfere with this right, they cannot use the sample they collected.
It seems like every time we win a DUI case, the legislature passes a new law to make sure the defense can’t win on that issue again. But for all the many DUI laws in Minnesota, there are even more defenses that they 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. Defense attorney experience counts here, since we must collect every fact we can, then review what happened against what should happen and what the laws are. Often the best DUI defense attorneys are enforcers of the higher law of the U.S. and Minnesota Constitutions, benefiting not only our clients but all of us.
Questions? You can call Minneapolis DWI Lawyer Thomas Gallagher at