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.

A Hutchinson DUI Lawyer Looks at Some Possible Defenses

In criminal court, McLeod County prosecutors must establish every element beyond a reasonable doubt. Under Minnesota law, a “reasonable doubt” is anything beyond “a fanciful or capricious doubt.” For example, someone else might have impersonated the defendant, but that argument is capricious and fanciful. Instead, the doubt must be based on “reason and common sense.”

Significantly, a Hutchinson DUI lawyer need not “prove” anything. Creating a reasonable doubt is enough. If even one juror has such a doubt, the defendant is not guilty as a matter of law. Furthermore, if the state’s evidence is weak, many prosecutors are willing to reduce charges to something like reckless driving. This offense is also a misdemeanor, but it does not have the same collateral consequences as DUI.

Venue

In the movies and TV shows, fleeing suspects often say something like “If we cross the state line, the police cannot touch us.” That’s not entirely true, but it is partially accurate, because of the venue rule.

Venue is Legalese for the jurisdiction where the state brings criminal charges. McLeod County prosecutors only have authority over crimes which occur in McLeod County. The boundary lines are not always easy to determine. For example, Cedar Mills is partially in Meeker County and partially in McLeod County. Things get really confusing when officers spot DUI suspects in one county and pull them over in another county.

If bureaucrats file charges in the wrong county, the judge must dismiss the case. Prosecutors can re-file the charges in another county, but many times, they will agree to a favorable plea bargain rather than go to all that trouble. Furthermore, the delay benefits a Hutchinson DUI lawyer. Over time, memories fade and physical evidence disappears.

Hutchinson DWI Lawyers and Non-Intoxication Defenses

Not all cases have venue problems, but many do. So, a Hutchinson DUI lawyer must pay close attention to the details. This same diligence is necessary with regard to non-intoxication defenses, such as:

  • Public Place: It is not illegal to operate a motor vehicle while intoxicated if the vehicle was on private property at the time. Shopping mall parking lots are not public places, even if they have street names and traffic control signals. The space in front of a private dwelling, like the curb next to a driveway, is in a grey area.
  • “Wheeling” the Defendant: This defense often comes up in DUI-collision cases. Generally, when officers arrive on the scene, the defendant has exited the vehicle. Therefore, officers cannot testify that the defendant was driving. To prove this point, prosecutors must call another witness. Such a witness may or may not be available.
  • Operating the Vehicle: On a related note, the defendant must have been operating the vehicle at the time. Legally, a person sitting in a motionless car is usually operating the vehicle, even if the person is asleep or unconscious. That’s assuming the vehicle was driveable at the time.

How does reasonable doubt work in these defenses? Public place arguments are usually all or nothing. But the other two are more subjective. If a vehicle had more than one occupant, it’s very difficult to conclusively prove who was driving the car. Or, if a prosecutor fails to prove the car had gas and was in good working order, the state has arguably not established the “operating” element.

Intoxication Defenses

Even if these two areas are not issues in a DUI case, intoxication, or lack thereof, is usually a question. Over 80 percent of these cases involve chemical tests. Blood tests are more accurate than breath tests. But in 2016’s Birchfield v. North Dakota, the Supreme Court ruled that officers needed search warrants to perform blood draws. So, officers normally rely on flawed Breathalyzer tests. Some specific issues include:

  • Ketone Levels: Diabetics, smokers, and some other people have elevated ketone levels in their bodies. Breathalyzers register these particles as ethanol. So, the BAC estimate might be artificially high. In borderline cases, like a .08 or .09, jurors could have a reasonable doubt as to the result’s accuracy.
  • Mouth Alcohol: If the defendant burped or vomited prior to the test, ethanol particles from the stomach flood the mouth and skew the test result. Many officers do not watch defendants prior to the test, so there’s no way of knowing if mouth alcohol contributed to the result.
  • Recent Consumption: On a similar note, alcohol does not pass from the stomach to the blood. Instead, it goes from the stomach to the liver and then to the blood. So, if the defendant had anything to drink in the preceding hour, that alcohol has not yet entered the bloodstream.

To drive home these flaws with the jury, many Hutchinson DUI lawyers point out that the modern Breathalyzer is essentially the same gadget as the 1930s Drunk-o-Meter.

Connect with a Diligent Attorney

Attention to detail is often the key to creating reasonable doubt. For a free consultation with an experienced Hutchinson, DUI lawyer, contact Carlson & Jones, P.A. Home and jail visits are available.

Drug Possession Charges and Brainerd, MN Criminal Defense Lawyers

Until the end of the 1980s, authorities focused mostly on large drug trafficking operations. These convictions meant headline-grabbing sentences. But the prosecutions had lots of moving parts and were difficult to win. The early 1980s prosecution of auto magnate John DeLorean is a good example.

So, beginning in the 1990s, authorities began focusing more on simple drug possession matters. As a result, the number of these prosecutions increased by 75 percent between 1990 and 2006. The number of drug possession arrests has leveled off since then, but these prosecutions still form the vast majority of most drug court dockets in Crow Wing County.

Drug possession cases are less involved than drug trafficking cases. For example, most possession prosecutions do not involve lengthy investigations or even search warrants. Officers see a violation and they arrest the alleged violator.

Nevertheless, drug possession cases still have a number of moving parts and they are not easy to win. So, a Brainerd, MN criminal defense lawyer can often successfully resolve these matters. That resolution could be a complete dismissal of charges or a diversion program which results in no criminal conviction.

Produce the Substance

As mentioned, police officers rarely obtain search warrants in drug possession cases. Events happen too quickly. However, the Fourth Amendment still applies in these situations. This provision prohibits unreasonable searches and seizures. So, in order for the seized physical evidence to be admissible in court, a search warrant exception must apply. Brainerd, MN criminal defense lawyers deal with several exceptions, including:

  • Consent: Owners or apparent owners can give police officers consent to search a building or other property. Apparent owners are people like a spouse whose name is not technically on the deed. Consent is an affirmative act. Opening the door for officers is definitely not consent. Verbally inviting them in is probably not consent to search either. But agreeing to “have them take a look around” is definitely consent.
  • Exigent Circumstances: The emergency exception is related to the consent doctrine. If officers believe someone is in trouble, they may enter a dwelling without a warrant. Common examples include disturbance calls and gas leaks. During these security sweeps, officers may seize any drugs or other contraband they see in plain view.
  • Plain View: This exception often comes up in vehicle searches. If officers see contraband in plain view, they may seize it without a warrant. The seized evidence is only admissible in court if officers were lawfully in that place at that time.

If prosecutors cannot produce the alleged drugs in court, there is no evidence against the defendant. An officer’s testimony about drug possession is not the best evidence under the rules of procedure, so such testimony is therefore inadmissible. Without any physical evidence, a Brainerd, MN criminal defense lawyer need not bother with the two issues discussed below. However, if a Crow Wing County judge rules the evidence is admissible, the case continues.

Brainerd, MN Criminal Defense Lawyers and Proof of Illegality

Officers always testify that the seized substance “field-tested” positive for cocaine, marijuana, or whatever. However, these field tests are completely unscientific. Frequently, they are little more than visual inspections. So, errors are common. In 2019, officers arrested Georgia Southern quarterback Shai Werts on drug possession charges. The substance field-tested positive for cocaine. A subsequent chemical test revealed that the substance was bird poop.

Significantly, the state will not perform an additional test unless a Brainerd, MN criminal defense lawyer makes such a request. In many situations, attorneys request a retest from an independent laboratory. Many times, these results are different from the ones police technicians found.

Marijuana is a special case, now that hemp is legal in Minnesota. Physically, marijuana looks, feels, and smells exactly like hemp. So, the state must perform a THC content test to determine the difference between the two. Legally, the substance is only marijuana if its THC content exceeds .03 percent.

Establishing Possession

There is one last major hurdle in a drug possession case. The state must establish all three elements of possession, which are:

  • Proximity,
  • Knowledge, and
  • Control.

Assume Juan gives officers consent to search his apartment. Unbeknownst to him, Jerry, Juan’s roommate, has a marijuana stash under his bed. Officers arrest Juan after they find the stash. Those charges will not hold up in court, unless the state can prove that Juan knew about the stash.

Or, assume Betty and her friends are passing a joint at a party. When officers arrive, Cathy is taking a drag. Officers arrest Betty because she was close to the joint and she knew it was marijuana. However, these charges will probably not hold up in court either. A Brainerd, MN criminal defense lawyer can argue that Betty did not control the joint.

Team Up with an Aggressive Attorney

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

How do Hutchinson, MN Lawyers Enforce DUI Checkpoint Requirements?

In one form or another, sobriety checkpoints have been around since the 1990s. McLeod County jurors once embraced such heavy-handed police tactics. They figured that if drivers were not breaking the law, they had no right to complain about DUI roadblocks.

But things are different now. Public confidence in police officers recently hit a 22-year low. That’s very important in this context. Jurors are no longer willing to overlook minor checkpoint violations. Instead, many jurors look for any reason possible to invalidate such checkpoints.

Even if a sobriety checkpoint meets all the requirements listed below, and that’s a big “if,” Hutchinson, MN lawyers still have defense options. For example, the complex nature of checkpoint requirements gives attorneys a chance to use the tried-and-true “sink and ink” defense. Generally, jurors must evaluate all aspects of every checkpoint, as outlined below. There is so much evidence on so many different points that confused jurors simply give up.

Respect for Individual Rights

DUI checkpoints override portions of the Fourth Amendment. Officers do not need reasonable suspicion of criminal activity to detain motorists. But many officers take things too far.

For example, officers might use their flashlights to peer into the back seat. That could be a violation of the probable cause rule, which is a different part of the Fourth Amendment than the reasonable suspicion rule. Or, officers could require motorists to roll down their windows or answer questions, like “where are you coming from” or “where are you going.” These activities are clear Fifth Amendment violations. People generally have the right to remain silent.

Failure to respect individual rights definitely affects officers’ credibility. That breakdown makes a lawful checkpoint look like a police dragnet. Additionally, if the failure to respect rights affected the arrest, that arrest might be invalid as a matter of law.

Supervisor-Level Decision

The definition of a “supervisor” is a bit vague. A police chief is definitely a supervisor and a desk sergeant is definitely not a supervisor. Everyone else is somewhere in the middle. Since police chiefs very rarely make checkpoint decisions, a Hutchinson, MN lawyer has some room to work.

Police chiefs might make policy decisions about checkpoints, but they hardly ever make operational decisions, such as the checkpoint’s location and hours of operation. Frequently, the chief makes high-level decisions and a subordinate takes care of the details. That arrangement is arguably illegal.

Additionally, in most cases, checkpoint officers can have absolutely no discretion on any operational point. They can only execute orders from higher up.

Pre-Checkpoint Publicity

To comply with Michigan Dept. of State Police v. Sitz and other cases, police departments must publish checkpoint locations in advance. This publicity gives motorists the chance to avoid the area altogether.

In ye olden days, a notice on the department’s social media account usually satisfied most jurors. But Hutchinson, MN lawyers can now argue that such lip service compliance is insufficient. Today’s jurors want to see more of an effort to publicize the checkpoint. That may not mean a full-page ad in the paper, but there must be more than a single Twitter blurb.

Neutral Formula

This area is the one major exception to the no-discretion rule. And officer discretion in this area is limited. Commonly, officers stop every second or third vehicle and allow the others to pass through. This formula keeps traffic moving. If traffic backs up and the delay becomes too long (more on that below), officers can change the formula and allow more vehicles to pass through uninspected.

In any situation, officers cannot wave through some vehicles and pull over motorists who don’t “look right.” In other words, the checkpoint cannot be truly random.

Brief Detention

Much like the aforementioned supervisor-level decision, this requirement is a bit vague. The law is quite clear that the detention period cannot be unreasonably long, but there is no precise definition of “unreasonable.”

Generally, if the detention period is longer than about twenty seconds, it is unreasonably long. This period includes both the time spent waiting in line and the time spent at the checkpoint itself.

Hutchinson, MN Lawyers and Physical Aspects of a DUI Checkpoint

Once upon a time, jurors were not too concerned with signage, lighting, traffic control, and other physical aspects of a DUI checkpoint. Anything was good enough. Now, jurors want to see clear signage, a well-lit area, and cones or other traffic control devices. Otherwise, they view the checkpoint as a souped-up speed trap, and that’s illegal.

There’s more. The traffic cones must start far away from the actual checkpoint, so motorists have the chance to turn around before traffic backs up. If motorists choose this option, police chase cars cannot pull them over, unless the officer has reasonable suspicion of criminal activity.

There’s still more. The signs must not just say “DUI Checkpoint Ahead” or something like that. They must also include instructions, like “Have Drivers’ License Ready.”

Contact a Dedicated Attorney

DUI checkpoints that do not meet legal requirements are invalid. For a free consultation with an experienced Hutchinson, MN lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

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