Evidence in Drugged Driving Cases and Buffalo, MN DUI Lawyers

One day soon, marijuana Breathalyzers might revolutionize drugged driving prosecutions in Wright County. Under current law, if the defendant’s THC level was above five nanograms per milliliter of blood, the defendant was intoxicated as a matter of law. Marijuana, whether it was legally acquired or not, is the leading source of drugged driving prosecutions in Minnesota, followed by prescription medications like Xanax and Oxycontin.

For the foreseeable future, prosecutors must normally rely on rather thin circumstantial evidence to convict defendants in these situations. The burden of proof is very high. So, in order to overcome the presumption of innocence, the amount of evidence must be almost overwhelming.

Given the current environment, a skilled Buffalo, MN DUI lawyer is often able to successfully resolve these cases. That resolution could be a complete dismissal of charges, a not-guilty verdict at trial, or a favorable plea bargain arrangement.

Unapproved Drug Impairment Tests

The National Highway Traffic Safety Administration has approved three field sobriety tests for use in DUI-drug arrests. These tests arguably have some scientific basis, although that basis is rather shaky, as outlined below.

Nevertheless, many Wright County law enforcement officers have defendants perform unapproved tests as well. These tests fatigue defendants mentally and physically, so they do not do as well on the tests that count. Additionally, unless a Buffalo, MN DUI lawyer objects to their use, these test results are usually admissible in court.

Romberg’s balance test is probably the most common unapproved test. A German scientist developed this test about two hundred years ago. Subjects must stand perfectly straight while their eyes are closed and their heads are tilted back. This position robs subjects of the three things needed to maintain balance, which are:

  • Knowing the position of one’s body (proprioception),
  • Knowing one’s head position (vestibular function), and
  • Vision.

Sometimes, officers add additional bells and whistles, like having subjects touch the tips of their noses with their index fingers.

A Buffalo, MN DUI lawyer can normally get this test, and other tests, excluded. However, it’s sometimes best to let an officer try to explain things like “vestibular function” and “proprioception” to jurors. If the officer does not know the underlying principles of this test, which is likely, it looks like the state is trying to railroad the defendant.

Buffalo, MN DUI Lawyers and Approved Drug Impairment Field Tests

The Horizontal Dage Nystagmus test is usually the first approved test in the three-test battery. Subjects must follow moving objects, like ink pens, using only their eyes. If a pupil moves involuntarily at certain angles, the subject probably has nystagmus.

Drug impairment is one cause of nystagmus. But it’s not the only cause. It’s not even the leading cause. Genetic abnormalities and mild childhood brain injuries cause most nystagmus cases. This condition is also known as lazy eye. Many people have a lazy eye, but the symptoms are so mild they do not know it.

The bottom line is that many people “fail” this test even if they are not high or stoned. As a result, many Wright County judges only admit HGN test results for limited purposes.

The Walk and Turn usually comes next. Walking a straight line is probably the signature drug impairment field test. During this exam, officers look for a number of clues, such as swaying or not walking heel to toe, which indicate drug impairment.

Environmental factors often affect this test. It’s very difficult to walk an imaginary line unless the surface is perfectly level and flat. Additionally, it’s hard to maintain concentration when cars whiz by at high speeds and flashing strobe light dance on the top of the squad car.

By the time defendants get to the One Leg Stand, they are usually fatigued mentally and physically, especially if they had to do unapproved tests. Under these conditions, anyone with any mobility impairment will be unable to pass this test. Additionally, officers often issue failing grades on this test because of technicalities, like holding the elevated leg at slightly the wrong angle.

Drug Recognition “Experts”

DREs are police officers who have additional training in this area. That additional training usually comes exclusively from a brief, police-sponsored seminar, so its educational value might be limited.

If the DRE comes to the scene of the arrest early and administers the field sobriety tests, these individuals have some credibility. They are better able to grade tests than officers on the street.

But frequently, DREs arrive after the FSTs are in progress or completed. If they testify in court, a Buffalo, MN DUI lawyer can usually challenge the testimony. Their conclusion is based on hearsay, and under Minnesota law, these police officers normally do not qualify as “experts.”

Contact an Assertive Attorney

It is not easy for the state to prove DUI-drug cases beyond a reasonable doubt. For a free consultation with an experienced Buffalo, MN DUI lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

Jail Release and Minnesota Criminal Defense Lawyers

The Gopher State has one of the highest unsentenced inmate percentages in the United States. Most jail inmates are simply waiting for their trial dates. They have not been convicted of anything. This situation is not good for a number of reasons, some of which are outlined below.

The high unsentenced inmate population gives Minnesota criminal defense lawyers more options than ever in terms of jail release. Keep reading to learn more about them. In most cases, even if you were charged with a serious felony, there’s no reason to wait for your trial date in an iron cage.

Why Jail Release is Important

Pretrial detention makes it very difficult to successfully resolve criminal cases. In fact, according to many observers, pretrial detention transforms the presumption of innocence into a presumption of guilt.

These individuals understandably want quick trial dates. As a result, a Minnesota criminal defense lawyer might be forced to take shortcuts during the case evaluation and evidence collection processes. Furthermore, many people who are behind bars accept unfavorable plea bargain arrangements just to “get it over with.” Indirect effects, like immigration consequences of a felony conviction,  do not get the attention they deserve.

Jail release is also important for personal reasons, and not all these reasons are obvious. For example, incarceration greatly increases stress hormone production. Prolonged exposure to these hormones alters brain chemistry. Have you ever known a person who went to jail and came back as a different person? That’s because their brains are different.

Initial Jail Release

Blue states like Minnesota have rather liberal jail release policies. However, only a Minnesota criminal defense lawyer knows how to take full advantage of them.

If the defendant is charged with a nonviolent offense and has no criminal record, pretrial release might be an option. A review board examines the case, and if the board decides OR (own recognizance) release is appropriate, the board tells the Sherriff to release the defendant without posting any financial security.

Even if they meet the minimum qualifications, not everyone receives OR release. Sometimes, the board thinks that the defendant does not take the charges seriously. If the defendant has already hired a Minnesota criminal defense lawyer, that concern is irrelevant.

Cash bond is almost always an option. Essentially, cash bond is like a rental security deposit. If tenants pay the rent on time and take care of the property, they get most of the deposit back when the lease ends. Likewise, if defendants appear at trial and fulfill other obligations, like staying out of trouble with the law, they get most of the bond back when the case is over.

Bond amount varies, but it’s usually about $750 for a misdemeanor and $2,000 for most felonies. To many families, $2,000 might as well be $2 billion. That’s one reason the unsentenced proportion is so high. Many people simply don’t have the money.

So, a bail bond is usually available as well. A bail bond is like an insurance policy. If the house burns down, the fire insurance company covers the loss. If the defendant does not appear at trial, the bail bond company covers the financial loss. Most bonding companies charges about a 15 percent policy premium.

Frequently, bail bonds come with many, many strings attached. In addition to staying out of trouble with the police, most defendants must report to a bail bond officer and fulfill other conditions. A Minnesota criminal defense lawyer can negotiate with the bonding company and reduce these extra conditions.

Minnesota Criminal Defense Lawyers and Bail Reduction Hearings

Despite an attorney’s best efforts, bail is often either unavailable or unaffordable, at least initially. At the arraignment, which usually occurs about forty-eight hours after arrest, a Minnesota criminal defense lawyer can ask the judge to reduce bail. Some factors in this decision include:

  • Severity of the offense,
  • Defendant’s ability to pay,
  • Amount of evidence against the defendant,
  • Defendant’s contact with the community (e.g. family and/or job), and
  • Any threat to the community if the defendant is released.

These matters, and all criminal matters, usually settle out of court. For example, the prosecutor might agree to reduce bail if the defendant agrees to electronic monitoring.

Contact an Experienced Attorney

Prompt jail release does not guarantee a successful result, but it does put the wind at your back. For a free consultation with an experienced Minnesota criminal defense lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

Drugged Driving Charges and Criminal Lawyers in Brainerd, MN

In many parts of Minnesota, impairing drugs are easier to obtain than alcohol. Two neighboring states, Michigan and Illinois, have legalized recreational marijuana, including marijuana edibles. Prescription drug use is widespread, and behaviors like pill sharing and abuse are all too common. Furthermore, many of the drugs available at corner pharmacies, such as NyQuil and Sominex, could impair drivers and are therefore illegal in this context.

DUI convictions have significantThe state often relies on flimsy circumstantial proof in drugged driving cases. Our Brainerd, MN criminal lawyers know how to challenge this proof. direct and collateral consequences. Even for a first offense, defendants face extended court supervision and drivers’ license suspension, along with other penalties. Indirect consequences include sky-high auto insurance rates, adverse effects on family court parenting time disputes, and possible employment consequences.

Since the consequences are so severe and it’s so easy to fall into the drugged driving pit, aggressive representation from a criminal lawyer in Brainerd, MN is essential. By attacking the state’s evidence, which is usually circumstantial, an attorney can reduce or eliminate these aforementioned consequences.

What Does the Law Say?

The Gopher State’s drugged driving law is rather complex. Largely because there are so many drugs which could seriously impair drivers, there are basically two ways for the state to bring DUI-drug charges:

  • Under the Influence: Almost all DUI-drug prosecutions involve this part of the law. It’s illegal to drive under the influence of an intoxicating substance. That could be almost anything in your medicine cabinet, and many of the things in your kitchen pantry. However, the defendant must know that the substance is potentially impairing. That provision, along with the circumstantial nature of the proof, gives criminal lawyers in Brainerd, MN an opening.
  • Zero Tolerance: It’s also illegal to drive with even a trace amount of a Schedule I or Schedule II substance in one’s body. Most street drugs, like heroin and LSD, are Schedule I drugs. Most prescription drugs, like Vicodin and Oxycontin, are Schedule II drugs. Marijuana is also a Schedule I drug, but it’s specifically exempted from this part of the law. Peace officers rarely order urine or blood tests in drugged driving cases. That’s the only way to establish specific drug use beyond a reasonable doubt.

Minnesota also has a refusal-to-submit law. If officers demand a blood or urine sample and the defendant refuses to provide one, the defendant could be charged with a separate criminal offense. That’s on top of any administrative drivers’ license suspension.

Under Birchfield v. North Dakota, peace officers must obtain search warrants before they extract blood or urine samples. Officers rarely bother with such warrants, except on no-refusal weekends and other heightened enforcement periods.

How Do Brainerd, MN Criminal Lawyers Challenge Drugged Driving Evidence?

Circumstantial evidence of drug intoxication almost always means the three approved Field Sobriety Tests. Most FSTs are divided attention tests which measure physical dexterity and mental acuity. Scientists claim that intoxicated individuals cannot walk and chew gum at the same time. The three approved FSTs, and some ways to challenge them in court, are:

  • Heel to Toe Walk: Generally, officers force defendants to walk an imaginary line in the dark while wearing something other than athletic shoes. It’s almost impossible for anyone, whether they are intoxicated or not, to successfully complete this test under these conditions.
  • One-Leg Stand: It’s very difficult for anyone with any mobility impairment at all to lift one leg and stand as still as a statute for more than two or three seconds.
  • Horizontal Gaze Nystagmus: The DUI eye test is the only FST that’s not a divided attention test. Many people have nystagmus, a condition also known as lazy eye. But they do not know they have it, since the symptoms are so mild. So, they will fail this test whether or not they are intoxicated.

Under the Fifth Amendment, defendants have a right to refuse to perform the FSTs. And, their refusal usually cannot be used against them in court.

Can I Expunge a Drugged Driving Conviction?

Partially. Misdemeanor DUI is usually expugnable. There is usually a two or four-year waiting period. And, the defendant must not catch any new charges during the waiting period. Even after expungement, which is really record sealing in Minnesota, the conviction still appears in judicial records and is still on the person’s driving record.

Expungement is not automatic. Some factors in the decision include the nature of the offense, amount of time that has passed, defendant’s rehabilitation efforts, the probation officer’s recommendation, and the defendant’s criminal history.

Rely on an Experienced Attorney

DUI-drug cases are almost as common as DUI-alcohol cases, and the law is very harsh. For a free consultation with an experienced criminal lawyer in Brainerd, MN, contact Carlson & Jones, P.A. The sooner you call, the sooner we start fighting for you.

How Do Hutchinson, MN Criminal Lawyers Attack the Evidence in Drugged Driving Cases?

Nationwide, drugged drivers cause more fatal crashes than drunk drivers. As a result, law enforcement officers in McLeod County are extremely aggressive in this area. Part of this crackdown includes a new kind of expert witness, as outlined below. And, as technology continues to advance, police officers might have even more anti-drugged driving tools by the end of 2020.

Legally, the Gopher State has one of the broadest drugged driving laws in the country. Under Minnesota law, it is illegal to drive “under the influence of. . .an intoxicating substance (when the person knows, or has reason to know, that the substance has the capacity to cause impairment).” It’s also illegal for drivers to have even trace amounts of most Schedule I (street drugs like heroin and cocaine) or Schedule II drugs (prescription pills like Adderall and Vicodin) in their systems.

Pragmatically, these cases are difficult to prove in court. Generally, prosecutors must rely on circumstantial evidence to establish guilt beyond a reasonable doubt. So, if a Hutchinson, MN criminal lawyer aggressively attacks the evidence, it might be possible to get the charges thrown out of court.

Field Sobriety Tests

The bulk of circumstantial evidence in a DWI case usually comes from the subjective FSTs. Sometimes, officers ask suspects to perform unapproved tests, like balancing with their eyes closed or reciting part of the ABCs. These tests have no scientific basis. The three approved FSTs, however, have at least some scientific basis. They are:

  • Horizontal Gaze Nystagmus: During the DWI eye test, officers look for involuntary pupil movements as suspects track moving objects with their eyes. Nystagmus, or lazy eye, is a fairly common condition. So, many people cannot pass this test whether they are drunk or sober.
  • One-Leg Stand: Somewhat similarly, it’s almost impossible for people with any mobility impairment whatsoever to balance on one leg for more than a few seconds. Officers deduct points for the slightest swaying, as well as for technicalities like holding up the wrong leg.
  • Walk and Turn: The heel-to-toe walk test might be the signature DWI field test. This test is almost impossible to successfully complete unless the defendant is wearing athletic shoes. It’s also very difficult to walk an imaginary line heel to toe, as opposed to an actual line.

This evidence is often unavailable. Defendants have a Fifth Amendment right to refuse the FSTs. And, the refusal cannot be used against them in court.

Hutchinson, MN Criminal Lawyers and Drug Recognition Experts

The sudden uptick in drugged driving cases has created a cottage industry in many police departments. When they stop motorists for suspicion of drugged driving, officers often summon DREs to the scene. There, they observe the FSTs and look for other physical evidence of drug use. Subsequently, they offer their “expert” opinions in court.

There are basically two ways a Hutchinson, MN criminal lawyer can undermine DRE testimony. First, these individuals often have suspect qualifications. They usually learned everything they know about drugged driving at police-sponsored seminars. Furthermore, DREs earn their wings by identifying drugged drivers, not by discerning drugged drivers from sober drivers.

Additionally, and on a related note, a DRE’s job is to confirm drugged driving, not to confirm or deny drugged driving. So, summoning a DRE to the scene is like initiating a self-fulfilling prophecy.

Chemical Tests

Marijuana Breathalyzers are not on the street yet, but that could change by the end of 2020. Several firms, including a California company, have developed prototypes. These gadgets measure THC particles in the breath, just like alcohol Breathalyzers count ethanol particles.

In this area, the law has not caught up with science. Most researchers agree that .08 is a reasonable BAC limit for non-commercial drivers. But there is no such consensus with regard to THC. Minnesota law states that five nanograms per milliliter of THC seriously impairs drivers. But that figure is completely arbitrary. So, before marijuana Breathalyzers appear, Hutchinson, MN criminal lawyers will advocate for clients at the statehouse to change the law, before these cases reach the courthouse.

Rely on Dedicated Attorneys

Drugged driving cases often have shaky evidentiary foundations. For a free consultation with an experienced Hutchinson, MN criminal lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

Drug Possession Charges and Brainerd, MN Drug Crime Lawyers

In the 1980s, possession cases accounted for about 5 percent of all drug arrests. Since then, that proportion has grown to over 80 percent. Police officers are more aggressive when it comes to possession cases, but many Crow Wing County jurors are more forgiving. Increasingly, people view drugs as a health and safety issues as opposed to a criminal law issue. That’s especially true with regard to semi-legal drugs, like marijuana and prescription painkillers.

Partially because of this attitude, it’s easier for Brainerd, MN drug crime lawyers to successfully resolve these cases, particularly if the defendant has little or no criminal record. Additionally, as outlined below, drug possession charges are difficult to prove in court.

Produce the Substance

According to an obscure legal principle called the best evidence rule, a police officer’s testimony that a defendant had drugs is usually not good enough, unless there is corroborating physical evidence. And, just because officers seize contraband, that doesn’t mean the substance is admissible.

Normally, physical evidence is inadmissible unless officers have search warrants. Since officers rarely bother with search warrants in possession cases, they must rely on a search warrant exception. Some common ones in these cases include:

  • Consent: Officers cannot look in backpacks, glove compartments, or other containers without the owner’s permission. Typically, consent is an affirmative, immediate act. However, different rules sometimes apply if the defendant was on probation or parole.
  • Exigent Circumstances: Police officers can disrupt parties or other gatherings if they believe someone is in trouble. In these cases, they can perform a safety sweep and seize any contraband they see in plain view.
  • Plain View: As the name implies, if officers see drugs or other contraband in plain view, they may seize it without a warrant.  Partial plain view cases, such as a pistol grip protruding from under a car seat, are in a grey area.

Judges usually determine if contraband is admissible during pretrial hearings. Brainerd, MN drug crime lawyers can use previous cases to show that the seizure was illegal. If the evidence is admissible, the case moves to the next area.

Brainerd, MN Drug Crime Lawyers and Proof of Illegality

Officers always claim that substances “field-tested” positive as illegal drugs. These field tests are completely unscientific. Frequently, they are not much more than sensory tests. Additionally, these tests are completely uncorroborated. There are usually no actual test results. Frequently, it’s just the officer’s word.

So, these preliminary tests are never conclusive. In December 2018, police arrested a Florida man was arrested on heroin possession charges. That “heroin” turned out to be laundry detergent.

The lesson from cases like this one is clear. A Brainerd, MN drug crime lawyer must always order scientific tests from an independent laboratory.

This element is particularly complicated in marijuana possession cases. Industrial hemp is legal, and recreational marijuana is illegal. The problem is that hemp and marijuana are physically indistinguishable. They look alike and smell alike.

To prove the substance was marijuana and not hemp, prosecutors must order expensive THC content tests. These tests are not cost-efficient in some cases, and not available in other cases. So, it’s even easier for Brainerd, MN drug crime lawyers to resolve marijuana possession cases. Frequently, prosecutors would rather offer pretrial diversion or another alternative in these cases, especially because of the aforementioned juror attitudes.

Establishing Possession

It’s not enough to produce the substance and prove it was illegal. Crow Wing County prosecutors must also establish possession. And, they must establish it beyond a reasonable doubt.

In the everyday world, possession usually means proximity. I possess my smartphone even if it’s on the table instead of in my hand. But to Brainerd, MN drug crime lawyers, possession means more than proximity. Prosecutors must also establish knowledge and control.

Assume officers pull over Freddy for speeding. They suspect wrongdoing, and Freddy gives them consent to search the car. During that search, officers find marijuana in the glove compartment. So, they arrest Freddy and Shaggy, who was a passenger.

The possession charges against Shaggy will not hold up in court unless the state proves Shaggy knew there was marijuana in the glove box and he had access to it. Unless Freddy and Shaggy were practically joined at the hip, a Brainerd, MN drug crime lawyer could probably beat the charges against Shaggy, even if the substance turned out to be marijuana instead of hemp.

Contact an Aggressive Attorney

Several defenses are available to drug possession charges. For a free consultation with an experienced Brainerd, MN drug crime lawyer, contact Carlson & Jones, P.A. Home and jail visits are available.

Can a Brainerd, MN Criminal Defense Lawyer Beat a DWI if I Took a Breath or Blood Test?

This question is an important one. Roughly 80 percent of DWI suspects provide breath or blood samples. And, in Minnesota, if the defendant’s BAC is above the legal limit, the defendant is guilty as a matter of law.

Briefly, it is usually a good idea to refuse to provide a chemical sample. Yes, you will face additional drivers’ license suspension penalties. And yes, Minnesota has a refusal-to-submit law. So, people who refuse face additional criminal charges independent of DWI. But your drivers’ license will also be suspended if you fail the test. And, a refusal-to-submit conviction usually does not have the same collateral consequences as a DWI conviction.

Nevertheless, if you provided a sample, what’s done is done. Fortunately, there are a number of ways a Brainerd, MN criminal defense lawyer can successfully challenge chemical test results, as outlined below.

Probable Cause for Breath Tests

Before officers administer Breathalyzer tests, they must have probable cause to demand a sample. That’s a higher evidentiary standard than reasonable suspicion, which is the standard that applies at traffic stops. So, officers cannot pull over motorists, smell alcohol on their breaths, and demand chemical samples. They must collect additional evidence. Normally, the field sobriety tests provide this evidence.

However, many defendants refuse to perform these tests, like walking a straight line. Additionally, especially during high-enforcement periods, many hurried offers skip the probable cause phase. In these cases, a Brainerd, MN criminal defense lawyer can argue the state does not have enough evidence to establish this critical element.

Brainerd, MN Criminal Defense Lawyers and Breathalyzer Flaws

Pretty much all DWI-alcohol prosecutions involve breath tests. These gadgets may also soon be available for marijuana “drugged driving” cases. So, we’ll spend a little more time on this point.

No device is 100 percent accurate 100 percent of the time. That’s especially true of a Breathalyzer. This device is essentially a 1920s contraption that could “test a tippler’s breath,” except it has additional bells and whistles. Those early devices were flawed, and modern Breathalyzers have many of these same problems.

  • Mouth Alcohol: Technically, officers are supposed to closely monitor defendants before they provide breath samples. However, they almost never do so. So, there is no way to know if the defendant burped, vomited, or belched. If that happened, ethanol particles from the stomach gushed into the mouth. So, a BAC reading would be artificially high.
  • Errant Count: Ethanol is one of many, many ethyl particles in a person’s breath. The Breathalyzer often registers all these particles as alcohol. So, when police techs brag about how many particles the gadget measures, a good Brainerd, MN criminal defense lawyer can turn this statistic against the state.
  • Temperature: As a rule of thumb, the smaller the device is, the more sensitive it is to the environment. Drop a laptop and it might survive. Drop a smartphone and it’s probably toast. This same principle applies to Breathalyzers, especially regarding temperature extremes. A few degrees often affects the results significantly.
  • Undigested Alcohol: This one is a bit complicated. Most alcohol goes from the mouth to the stomach to the liver to the blood. Because of this slower process, if the defendant has been drinking within the past hour, the breath alcohol count will be higher than the blood alcohol count.

Brainerd, MN criminal defense lawyers often partner with degreed chemists to drive home these flaws with the jury. These professionals carry more weight with jurors than police department technicians. Generally, Breathalyzer techs learned everything they know about these gadgets at brief, law enforcement-sponsored seminars.

Search Warrants for Blood Tests

These flaws normally do not apply in blood test cases. Blood samples are much more accurate than breath samples. However, the Supreme Court recently rules that officers must have search warrants to extract blood samples. Generally, officers do not bother to take this extra step.

Under the Fourth Amendment, search warrants must be based on affidavits which show probable cause. The probable cause portion was discussed above. An affidavit is a written and specific document supported by an oath or affirmation. A phone call to a judge is not a written document. And, a vague description of the arrest, like “we pulled over a guy for suspicion of DWI,” is not specific.

Blood Test Flaws

As mentioned, blood samples are usually accurate. However, the method that police technicians use to examine these samples is not always accurate. So, Brainerd, MN criminal defense lawyers routinely order re-tests. Frequently, professionals at independent labs uncover results that are markedly different from the ones police officers claimed they found.

Additionally, blood samples often have chain of custody issues. These samples must travel from the defendant’s body to a police lab to an evidence room to the courtroom. A gap in the chain of custody might not invalidate the evidence, but it does cast doubt on its authenticity.

Team Up with a Hard-Hitting Attorney

Chemical tests are not always accurate in DWI cases. For a free consultation with an experienced Brainerd, MN criminal defense lawyer, contact Carlson & Jones, P.A. Home and jail visits are available.

The Field Sobriety Tests and Hutchinson, MN DUI Lawyers

Most people know that, under the Fifth Amendment, they have the right to remain silent and refuse to answer questions without a lawyer present. However, most people do not know how broad this right is. Defendants also have the right to remain silent in terms of their actions. They need not appear in staged lineups, pose for pictures to be used in photo lineups, or perform DUI field sobriety tests.

The FSTs are always an integral part of a DUI case. If the defendant provided a chemical sample, the FSTs serve as probable cause. If the defendant refused to provide this sample, McLeod County prosecutors normally use the FSTs as circumstantial evidence of guilt. Either way, if a Hutchinson, MN DUI lawyer undermines the FST results, it is much easier to successfully resolve these cases.

Horizontal Gaze Nystagmus

Once upon a time, many people believed the HGN was the most reliable FST. But times have changed. As a result, many McLeod County judges only allow HGN results for limited purposes.

Nystagmus, which is also called lazy eye, is involuntary pupil movements at certain viewing angles. Most patients have probably taken a “follow my finger” eye test at one time or another. Doctors determined that many of these people had nystagmus, but almost none of them were intoxicated. That’s because a childhood brain injury and a genetic abnormality are responsible for most nystagmus cases.

Furthermore, this test has environmental problems. Laboratory HGN tests are usually accurate. Roadside HGN tests are more of a question mark. These tests do not occur under controlled conditions. Hutchinson, MN DUI lawyers can often challenge test results based solely on adverse environmental factors.

Walk and Turn

In many ways, the WAT, which is also known as the heel to toe walk (HTW), might be the signature field sobriety test. Subjects must walk as straight line heel to toe forward and backward while keeping their arms at their sides. During the test, officers look for intoxication clues, such as:

  • Beginning the test before the officer says “start,”
  • Starting with the wrong foot,
  • Not stepping heel to toe,
  • Falling off the line,
  • Taking the wrong number of steps,
  • Using hands or arms for balance, and
  • Ending the test before the officer says “stop.”

Environmental issues are even more of a problem in this test than in the HGN test. It’s very difficult to walk heel to toe on an imaginary line, yet officers often demand that suspects do this. It’s also very hard to walk a straight line in anything other than athletic shoes.

Hutchinson, MN DUI Lawyers and the One-Leg Stand

In this test, officers instruct suspects to elevate one leg about forty-five degrees, keep it there for about fifteen seconds, and stand perfectly still the entire time.

Repeating a familiar theme, environmental problems plague the one-leg stand. It is very difficult for anyone with any mobility impairment to stand on one leg for more than a second or two. Additionally, the OLS is often the last test that officers administer. That order is intentional. Since the suspect is mentally and physically tired, the suspect usually does not do as well on this test.

Nevertheless, according to the National Highway Traffic Safety Administration, the OLS is a reliable indicator of intoxication. Of course, NHTSA says the same thing about the HGN test, so its opinion is shaky.

Portable Breathalyzer

The final FST is rather unique to Minnesota. In most states, officers only administer chemical tests at the stationhouse. But in the Gopher State, officers usually administer portable Breathalyzer tests at the scene. Authorities believe this additional test gives the FST battery additional credibility with jurors. However, the opposite might be true, because portable Breathalyzers have a number of flaws.

Temperature is a good example. Portable Breathalyzers are very sensitive to temperature changes. And in Minnesota, the weather changes rapidly, especially during certain times of the year. If the gadget was not calibrated according to the current temperature, the result might be off.

To drive home flaws like this one with jurors, many Hutchinson, MN DUI lawyers partner with chemists. These professionals carry much more weight with jurors than the police technicians that prosecutors usually call to the stand.

Rely on an Experienced Attorney

Undermining the FSTs is usually the first step toward a successful resolution in these cases. For a free consultation with an experienced Hutchinson, MN DUI lawyer, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

Three Key Elements of Marijuana Possession Cases and Drug Crime Lawyers in Brainerd, MN

Minnesota peace officers are very aggressive when it comes to marijuana possession arrests. In fact, in 2019, these arrests increased 66 percent, partially due to marijuana edibles from Illinois and other states where recreational pot is legal. Traditional joint and dime bag arrests are very common as well.

Many advocates point to these high arrest figures as proof that Minnesota should legalize pot and focus law enforcement resources elsewhere. But as the 2020 legislative session gets underway, it’s very unlikely that the Republican-controlled Senate will pass a legalization measure.

So for now, POM (possession of marijuana) cases will continue to dominate Crow Wing County criminal court dockets. Fortunately, there are a number of ways for a Brainerd, MN drug crime lawyer to successfully resolve these cases. Most of these resolutions involve one of the three main elements of a POM case, as outlined below.

Produce the Substance

Possession cases always involve physical evidence. An officer can testify that the defendant had a marijuana edible or a joint, but oral testimony is not good enough.

According to the Fourth Amendment, it’s illegal to search private property, like a backpack, and seize contraband, like drugs, unless the officer has a warrant or a narrow exception applies. Drug possession arrests often happen so quickly that officers do not have warrants. So, to produce the alleged illegal substance in court, Crow Wing County prosecutors must normally rely on a search warrant exception. Some examples include:

  • Consent: Owners or apparent owners can allow peace officers to search property, like a dwelling, car, or cell phone. Usually, consent is a voluntary, affirmative act made at the time of the search. Special rules might apply if the defendant is currently on probation or parole.
  • Exigent Circumstances: If officers respond to a disturbance call or see an erratically-parked car, they can usually enter the dwelling or car without a warrant and perform a security sweep to make sure the occupants are okay. During this sweep, they can seize any contraband they see in plain view.
  • Plain View: Drugs and other contraband are in plain view if they are at least partially visible to the naked eye. These seizures are lawful if officers were legally in that place to begin with. So, the traffic stop, DUI roadblock, or whatever must have been legitimate.

The state has the burden of proof on this point. A Brainerd, MN drug crime lawyer need only raise the issue in court and cast doubt on the search’s legality.

Brainerd, MN Drug Crime Lawyers and Proof of Illegality

In many possession cases, legality or the lack thereof is rather easy to establish. For many years, that was the case with leafy marijuana, marijuana edibles, and black-market marijuana vaping cartridges. But then, Congress legalized industrial hemp, and everything changed.

Physically, hemp and marijuana are indistinguishable. They look the same, feel the same, and smell the same. Additionally, they can be used in roughly the same way.

In order to distinguish between legal hemp and illegal marijuana, prosecutors must generally administer a Tetrahydrocannabinol content test. Legally, hemp is marijuana which has a THC content less than .3 percent. If the alleged “marijuana” has a .29999 THC content, legally, it is not marijuana.

These chemical tests are often unavailable, so there may be no such evidence. THC content tests are quite expensive, so many small counties, like Crow Wing County, cannot afford them.

Regarding edibles, some prosecutors try to introduce labels which state the product has the requisite THC content. But a product label is not the best evidence of a product’s content. Therefore, like an officer’s testimony about substance possession, such evidence is usually inadmissible.

Establishing Possession

The state’s job is not over yet. Even if prosecutors produce the substance and prove it was illegal, they must still prove legal possession. Under Minnesota law, possession is more than proximity. Prosecutors must also establish knowledge and control. Here are some examples that Brainerd, MN drug crime lawyers often deal with.

Assume Tommy is a passenger in Frank’s car. Unbeknownst to Tommy, Frank recently purchased some marijuana edibles in Illinois. Even if the edibles were within Tommy’s reach, he did not legally possess them. He did not know about them.

Let’s change the facts a bit. Now assume Tommy knows about the edibles, but they are locked in Frank’s glove compartment. Even if Tommy was in the passenger’s seat, he did not possess the edibles. He did not control them.

In both these situations, Tommy is presumed innocent until proven guilty beyond a reasonable doubt. So, prosecutors must have overwhelming evidence on all three elements of marijuana possession. Otherwise, the presumption of innocence alone might be enough to acquit Tommy.

Contact an Aggressive Attorney

Marijuana possession charges often do not hold up in court. For a free consultation with an experienced Brainerd, MN drug crime lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

A Hutchinson, MN DUI Lawyer Looks at Roadside Checkpoint Requirements

St. Patrick’s Day is one of the most alcohol-fueled holidays on the calendar. Roughly a third of Americans celebrate at a bar or restaurant. St. Patrick’s Day is also the number four drinking day of the year, behind New Year’s, Christmas, and the Fourth of July. So, if you pull out of a neighborhood bar on or around St. Patrick’s Day, do not be surprised if you see a DUI roadblock dead ahead.

Police departments love checkpoints. If they did not cost so much money, they would probably be up every weekend. Properly-executed DUI roadblocks enable officers to bypass the Fourth Amendment and detain motorists without reasonable suspicion.

However, motorists still have rights at checkpoints. For example, the Fifth Amendment is still in play. So, you have the right to remain silent. In fact, drivers do not have to roll down their windows. They must simply flash a drivers’ license and proof of insurance.

If officers violate your rights at a checkpoint, or it does not meet any of the legal requirements listed below, a Hutchinson, MN DUI lawyer can probably invalidate both the stop and the arrest.

Pre-Checkpoint Publicity

Police departments need not take out full-page ads in local newspapers to advertise checkpoints in advance. However, a brief tweet or note on the department’s Facebook site is probably not sufficient publicity. The goal is to alert people who normally drive in a certain area and give them the opportunity to avoid that area altogether.

In court, the state has the burden of proof on this point and all other aspects of checkpoint operation. A Hutchinson, MN DUI lawyer must only create doubt.

Roadblock Location and Hutchinson, MN DUI Lawyers

DUI roadblock location has become increasingly controversial. Frequently, police departments set up checkpoints to search for illegal weapons, drugs, and other contraband. Or, they use checkpoints to arrest people with outstanding traffic warrants or other issues unrelated to DUI.

To invalidate a checkpoint on this point, a Hutchinson, MN DUI lawyer often pulls arrest statistics in that area from the previous year. The argument is very meticulous and time-consuming, but it’s often worth the effort.

Additionally, the DUI roadblock must be in a safe place. Freeway off-ramps are not safe places, although they might ensnare more drivers. Additional safety measures include lots of signage and lighting. More on this point below.

Neutral Formula

Contrary to popular myth, checkpoints are not random. Officers cannot detain motorists who do not “look right” and wave other people through. For example, officers might detain every third vehicle that pulls through the roadblock.

Generally, field officers have no discretion when it comes to checkpoint operation. A supervisor must set up every detail, such as the length of operation and checkpoint location. However, if traffic backs up, officers can change to another neutral formula. That formula might be detaining every fourth or fifth motorist.

Checkpoint Signage

DUI roadblocks are not modified speed traps. Warning signs should be deployed about a quarter-mile ahead of the checkpoint. Other signs should tell motorists what to do, like “Be Prepared to Stop” and “Have Drivers’ License and Proof of Insurance Ready.” DUI checkpoints should also include things like traffic cones.

The first signs should be far enough away that drivers have a chance to turn around and avoid the checkpoint. Patrol cars normally tail these people for at least several blocks, but officers must have reasonable suspicion to detain these motorists.

Length

The operational length must be limited. About two or three hours is as long as a checkpoint can last. Anything much longer is an unreasonable length which violates Michigan Dept. of State Police v. Sitz and other key cases.

Additionally, individual motorists cannot wait at checkpoints for more than about twenty seconds. That includes the time spent waiting in line and also the time spent at the actual checkpoint. A longer detention violates the Fourth Amendment.

Contact Tenacious Attorneys

Law enforcement officers do not have unlimited rights at checkpoints. For a free consultation with an experienced Hutchinson, MN DUI lawyer, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

How does a Brainerd, MN DWI Lawyer Help People Avoid Direct and Indirect Consequences?

Law enforcement officers are highly-focused on drunk drivers, especially during certain times of the year. In fact, Minnesota has one of the highest DWI arrest rates in the nation. Once these cases go to court, the consequences are potentially severe, even for first-time offenders. The Gopher State also has rather strict DWI laws.

But there is a big difference between an arrest and a criminal conviction. Defendants are presumed innocent until proven guilty beyond a reasonable doubt. Generally, the harder a Brainerd, MN DWI lawyer works, the more frequently this presumption of innocence holds up in court.

Consequences of a DWI in Crow Wing County

Extended court supervision and drivers’ license suspension are usually the two most significant direct consequences of a DWI conviction.

Almost all first-time offenders receive probation. Ordinary probation normally lasts between twelve and twenty-four months. For aggravated DWI, the probationary period could be up to six years.

Basic conditions, such as reporting regularly to a probation officer and submitting to random drug tests, are just the beginning. DWI probation also normally means things like large community service requirements and mandatory alcohol counselling. DWI is theoretically an offense against community safety, because the number of alcohol-related vehicle collisions is so high. Alcohol counseling usually includes classes and evaluations as well as mandatory follow-up, such as a period of alcohol abstinence.

In a criminal case, everything is usually negotiable. So, a Brainerd, MN DWI lawyer is often able to modify these conditions, at least to some extent.

Drivers’ license suspension typically lasts one or two years, depending on the facts of the case. License suspension is crippling in places like Brainerd.

Once again, a Brainerd, MN DWI lawyer can address this consequence. Generally, a conditional drivers’ license is available. These conditions could include time restrictions, such as only driving for essential household purposes, or an Ignition Interlock Device.

Indirect DWI consequences include higher auto insurance rates. These higher rates usually make up most of the estimated $20,000 cost of a first-time offense in Minnesota. Brainerd, MN DWI lawyers obviously cannot change car insurance rates. But an attorney can limit the period of probation. That usually affects the amount of time drivers must have SR-22 high-risk insurance. Additionally, an attorney can often refer defendants to insurance professionals who work with people that have DWIs on their records.

How Brainerd, MN DWI Lawyers Undermine Field Sobriety Tests

Another way to reduce DWI consequences is to aggressively attack the state’s evidence. In both test and non-test cases, this evidence usually includes the field sobriety tests, which are:

  • Horizontal Gaze Nystagmus: The HGN test detects nystagmus, or involuntary pupil movements at certain viewing angles. The test is generally accurate if administered under controlled conditions. But roadside HDGN tests do not take place under controlled conditions.
  • One-Leg Stand: This test is a divided attention test which measures physical dexterity and mental acuity. It is almost impossible for anyone with any mobility impairment to stand on one leg for any length of time. Additionally, most officers administer this test last, when defendants are physically and mentally fatigued.
  • Heel to To Walk: Conditions also affect this test, which is also known as the WAT (Walk And Turn). It’s very hard to walk a straight line heel to toe unless the subject is wearing athletic shoes. It’s also much harder to walk an invisible line than an actual line, such as a parking space stripe.
  • Portable Breathalyzer: In most states, officers only administer Breathalyzer tests at the station house. But in Minnesota, the breath test also occurs at the stop. In addition to the flaws mentioned below, a significant disparity between the roadside and station house Breathalyzer test usually indicates that one of them was wrong.

In test cases, the field sobriety tests serve as probable cause for the arrest. In non-test cases, prosecutors must normally use FST results to establish guilt beyond a reasonable doubt. That’s a tall order.

Challenging Chemical Tests in Court

Like all other machines, Breathalyzers are not 100 percent accurate. In fact, these gadgets have some inherent flaws. Unabsorbed alcohol is a good example. Typically, alcohol travels from the stomach to the liver to the blood. Since the digestive process is longer, the Breathalyzer’s BAC estimate might be artificially high, especially if the defendant has had anything to drink in the previous hour or so.

Other times, the Breathalyzer’s supposed accuracy works against it. Police Breathalyzer techs often brag about how many particles these devices count to determine a person’s BAC level. These particles usually include anything in the ethyl family. Such particles make up about 70 percent of the particles in a person’s blood, and not all of these particles are ethanol (alcohol).

Blood tests are usually more accurate than breath tests. However, blood test results are not unassailable. Brainerd, MN DWI lawyers can use issues like gaps in the chain of custody to create reasonable doubt as to the results.

Reach Out to Aggressive Attorneys

A good Brained, MN DWI lawyer can reduce the consequences of a criminal conviction. It all begins with a free consultation at Carlson & Jones, P.A. We routinely handle matters in Crow Wing County and nearby jurisdictions.

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Buffalo Lawyers

215 East Highway 55, Suite 201
Buffalo, MN 55313

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Brainerd Lawyers

17025 Commercial Park Rd, Suite 2
Brainerd, MN 56401

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Hutchinson Lawyers

114 Main Street North
Hutchinson, MN 55350

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3911 Ridgedale Dr, Suite 404E
Minnetonka, MN 55305

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