DWI Defense Attorney

It is critical to get a DWI defense attorney that knows the ins and outs of aggressively asserting legal DWI defenses on your behalf. While many may think DWIs are slam-dunk cases for the State, that’s only true insofar as the defense attorney is willing to allow that. At worst, knowing the available defenses and when to be assertive with them can be great leverage to negotiate a resolution that is much more favorable to you and limits the consequences you would otherwise face.

What Counts as a DWI in Minnesota?

Under Minnesota law, it is a crime for a person to drive, operate, or be in physical control of a motor vehicle while impaired. That can include being under the influence of alcohol, a controlled substance, an intoxicating substance, cannabis or cannabis-related products, or a combination of those substances. It can also include having an alcohol concentration of 0.08 or more at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle. For a commercial motor vehicle, the alcohol concentration standard is 0.04 or more.

Were You Driving, Operating, or in Physical Control of the Vehicle?

This may seem like a ridiculous question to ask. But you’d be surprised at how often the question of whether the defendant was actually the driver or in physical control of the vehicle comes up in DWI litigation. Minnesota courts have developed a very loose interpretation of the phrase “physical control” in order to find those not actually driving their vehicle at the time of the arrest to still be arrested and charged with DWI. Circumstantial evidence then becomes huge and your defense necessitates an aggressive approach to fighting DWI charges.

Was the Stop Legal?

Before an officer may stop you, he or she must have “reasonable suspicion” that you committed a crime — including traffic offenses — or that criminal activity is afoot. Officers are known to work backwards by creating a basis for the stop after the DWI arrest has occurred in order to legally justify the arrest. Police reports, and any and all video or audio, must be scrutinized. Challenging the stop — and proving successful — can lead to the charges being dismissed.

Was There Probable Cause for the Arrest and Testing?

The officer must have probable cause in order to make the arrest and request the defendant to submit to further testing in order to determine the alcohol concentration level or the presence of other impairing substances. Probable cause is determined based upon a review of all of the noted indicia of intoxication. This means that in almost all police reports, the officer will note some combination of the following indicia of intoxication: slurred speech, bloodshot and watery eyes, an odor of alcohol emanating from the driver or the vehicle, coordination issues — such as fumbling with identification, loss of balance when walking, and any admissions.

In addition, the officer will likely request the driver to perform field sobriety tests: HGN test, which is an eye test, walk-and-turn, and one-legged stand. Finally, the officer will likely seek the driver to provide a breath sample on the side of the road, called a preliminary breath test. These roadside requests are different from the later chemical test request. After gathering all of this information through these requests, the officer will likely believe he or she has developed enough facts to support a probable cause finding and arrest the driver. This is not automatic, though, and there are ways to challenge the probable cause finding — such as examining whether the officer conducted the field sobriety tests properly.

Did the Officer Properly Invoke the Implied Consent Law?

Upon arrest for probable cause DWI, Minnesota law requires the officer to follow the implied consent law when requesting a chemical test. For a breath test, the officer must inform the driver that Minnesota law requires the person to take a test, that refusal to submit to a breath test is a crime, and that the person has the right to consult with an attorney, but that this right cannot unreasonably delay administration of the test.

Blood and urine tests are treated differently under current Minnesota law. A blood or urine test may be conducted only pursuant to a search warrant or a judicially recognized exception to the search warrant requirement. Refusal to submit to a chemical test is still a crime when the refusal is to a breath test under the implied consent statutes, or to a blood or urine test required by a search warrant.

If the driver requests to speak with an attorney, the officer must give the driver a reasonable amount of time and the ability to contact an attorney. The officer may or may not leave the room to allow the driver to speak freely with the attorney. And, regardless, these conversations are likely audio and/or video-taped. So, if you are in this position and talk to an attorney, understand that this is not a confidential communication.

Were the Breath, Blood, or Urine Testing Procedures Followed?

Any legal analysis should also include whether or not the chemical test performed was conducted properly and that the test results were reliable and valid. In the case of a breath test administered using an approved breath-testing instrument, Minnesota law requires the test to consist of one adequate breath-sample analysis, one control analysis, and a second adequate breath-sample analysis. A breath test consisting of two separate, adequate breath samples within 0.02 alcohol concentration is acceptable; if the samples do not meet that criterion, the test is deficient.

The testing method used must be valid and reliable, and the test results must be accurately evaluated. That is why the details matter: the machine, the sequence, the samples, the officer’s training, the records, and the timing can all matter in deciding whether there is a viable DWI defense.

Was Your Request for Additional Testing Honored?

Finally, any legal analysis should include whether the request for additional testing was honored properly by the officer. Minnesota law gives the person tested the right to have someone of the person’s own choosing administer an additional chemical test or tests, in addition to any administered at the direction of a peace officer. That additional test must be obtained at the place where the person is in custody, after the officer’s test, and at no expense to the State. The failure or inability to obtain an additional test does not automatically keep the State’s test out of evidence, unless the additional test was prevented or denied by the peace officer.

What Affirmative Defenses Are Available by Statute?

The DWI law — Minn. Stat. § 169A — also outlines affirmative defenses that may apply in the right case, including post-driving consumption of alcohol and controlled substance use in accordance with a prescription. See Minn. Stat. § 169A.46.

For post-driving consumption, the defendant must prove that the impairment resulted from his or her consumption of alcohol after driving. Typically, this requires expert testimony that the impairment — i.e., having an alcohol concentration level in excess of 0.08 — resulted only from the amount of alcohol consumed after driving and that the alcohol concentration level at the time of driving was below the legal standard. Any defendant raising this defense must give proper notice of doing so to the State.

In order to argue that the presence of a controlled substance is explained by prescription use, the driver must demonstrate that the controlled substance was used according to the terms of a prescription issued for that person. This defense does not apply the same way to every DWI theory. For example, it does not defeat an “under the influence” charge if the State proves that the prescription drug actually impaired the person’s ability to operate a motor vehicle.