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.

Hutchinson, MN Lawyers and the DUI Field Sobriety Tests

In McLeod County, officers usually administer four FSTs (Field Sobriety Tests) during DUI arrests. These tests always play a critical role in the process.

Officers must have probable cause before they request a chemical breath or blood sample. In most cases, the FSTs provide this evidence. Probable cause is a rather low standard. However, if the defendant only performed one or two tests, it is not easy for prosecutors to establish probable cause in a pretrial hearing.

Furthermore, in about one in five cases, defendants refuse to provide chemical samples. In these situations, prosecutors normally rely on FST evidence to establish guilt beyond a reasonable doubt. That’s a much higher standard of proof.

So, Hutchinson, MN lawyers must undermine the FSTs if at all possible. Failure to do so may be the difference between a positive and negative final result.

Horizontal Gaze Nystagmus

Typically, the DUI eye test is the first FST. The HGN test is normally reliable, if it is conducted in controlled environments. Roadside HGN tests are not controlled environments. Additionally, the presence of HGN is not a very good indication of intoxication, or the lack thereof.

HGN, which is also called lazy eye, causes involuntary pupil movements at certain angles. Officers look for these movements when they ask suspects to track moving objects using only their eyes. Alcohol intoxication causes nystagmus, but it is not the only cause. In fact, it is not even the leading cause. Childhood brain injuries cause many more HGN cases than alcohol intoxication.

Many times, the symptoms are so mild that people do not even realize they have lazy eyes. The symptoms only appear during periods of extreme stress, and a DUI arrest certainly qualifies as such.

Walk and Turn

The WAT, which is also known as the heel-to-toe walk test, is a divided attention exam. It measures both mental acuity and physical dexterity. So, during the test, officers look for a number of clues in both areas, including:

  • Beginning the test before the officer says “start,”
  • Taking the incorrect number of steps,
  • Failing to walk on a straight line,
  • Using arms for balance,
  • Swaying while walking or standing still,
  • Failing to walk heel to toe, and
  • Ending the test before the officer says “stop.”

This test has a number of deficiencies. For starters, there is a big difference between walking an actual line, like a parking lot stripe, and walking an imaginary line. Moreover, if the defendant is wearing anything other than athletic shoes, it’s very hard to walk heel to toe.

Flicker vertigo may affect this test as well. This conditions may also affect other tests, especially the DUI eye test. This condition affects may pilots. The flickering lights on instrument panels have a disorienting effect. The same is true of flashing strobe lights atop police patrol cars.

In fact, squad car lights are designed to cause flicker vertigo. The flashing lights disorient suspects, making them easier to subdue. That’s also the reason officers yell different things at the same time. The cacophony of sounds also has a disorienting effect.

Hutchinson, MN Lawyers and the One Leg Stand

The OLS is quite similar to the WAT. Both tests are divided attention tests. So, officers look for both mental and physical intoxication clues.

Additionally, both tests are almost impossible to complete if the defendant has any mobility or other physical impairments. Hutchinson, MN lawyers can often use these impairments to question the test results. Moreover, prosecutors must establish that defendants failed the OLS because they were intoxicated, and not because they were tired, nervous, or clumsy.

In court and at the administrative license revocation hearing, officers invariably testify that the defendant “failed” the OLS. Many times, officers assign failing grades because of technicalities, like holding the elevated leg at slightly the wrong angle.

Portable/Preliminary Breathalyzer Test

Not many other states use PBT tests. These roadside Breathalyzer tests are not nearly as reliable as the larger models at police department stationhouses.

For example, if the defendant burped or belched in the fifteen minutes prior to the PBT, ethanol particles flood into the mouth. These extra particles affect the results. Generally, the arrest encounter does not last fifteen minutes. So, Hutchinson, MN lawyers can often create reasonable doubt on this point. Officers have not watched the defendant for fifteen minutes, so they do not know whether the PBT test is accurate. Flaws like this one are especially critical in .08, .09, and other borderline BAC cases.

The Fifth Amendment gives defendants an absolute right to refuse all FSTs, including the PBT. Police station Breathalyzer tests are different. If the defendant refuses, that refusal may be admissible in court, and the defendant may be charged with a separate criminal offense.

Connect with a Dedicated Attorney

Unreliable FSTs greatly impact DUI prosecutions. For a free consultation with an experienced Hutchinson, MN lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

WHAT TO KNOW ABOUT BWIS IN MINNESOTA

This weekend, people all across the state will be celebrating Memorial Day with friends and family. Not only is this a three-day weekend, but it is also the unofficial start of summer. And as any Minnesotan knows, it’s vital to soak up every day of this season, rain or shine.

This means that many people plan to get their boats in the water at cabins or in lakes around the Cities during the holiday weekend. If this is part of your plan, remember that there are strict boating laws in place, especially with regard to boating and drinking. With this in mind, readers should understand a few important things about boating while intoxicated, or BWI, in Minnesota.

Drinking on boats is not prohibited

State laws allow people to drink alcoholic beverages on boats and have open bottles on watercrafts. And the laws prohibiting drinking and operating a boat do not apply if an boat is anchored, docked or being propelled by a non-mechanical means.

But there are still strictly enforced limits

Make no mistake, though: operating a boat while legally intoxicated is unlawful. To be considered legally intoxicated, a driver will need to have a 0.08 percent blood alcohol concentration, which is the same limit for operating a car.

Penalties can be the same for BWI and DWI

Convictions for both boating while intoxicated and driving while intoxicated can lead to jail time, loss of license and driving privileges, fines and loss of vehicle.

Stay safe and know your rights this weekend

Law enforcement agents often ramp up drunk driving patrols during holidays like Memorial Day, and these crackdowns happen on roads and the water. To avoid arrest and the potential for crashes, it is best to refrain from driving any vehicle if you are going to drink.

However, if you do wind up arrested for a BWI or DWI, understand that you have the right to speak with an attorney to defend yourself. With legal guidance, you can work to avoid exposure to the harshest penalties and minimize the impact a drunk driving offense has on your future.

YOUR PERFECT BLOOD ALCOHOL CONCENTRATION: STAYING HEALTHY

There is a significant difference between getting tipsy while you’re drinking and ending up drunk. Walking that line can be difficult, especially if you don’t have a way to test yourself.

While drunk driving is never a good idea, that doesn’t mean that drinking is bad for you. In fact, drinking a moderate amount of alcohol is actually good for you. It’s known to help reduce the risk of diabetes, helps reduce the risk of developing Alzheimer’s Disease and dementia end even reduces the risk of ischemic stroke.

What is moderate drinking, though? How can you stay safer on the roads by drinking only moderate amounts?

Moderate drinking means having no more than two standard drinks during each day of the week for men or women under the age of 65. Those over 65 should have no more than one standard drink daily.

It should also be fairly clear that one or two standard drinks per day is not likely to cause you to become intoxicated, although there are other factors that play a role in your blood alcohol concentration (BAC). When you drink only moderate amounts, your BAC is more likely to fall between .04 and .05 percent, which makes it perfectly legal for anyone who is not a commercial driver to get behind the wheel.

When you drink more than a moderate amount, it’s possible to see intoxication begin. Once your BAC reaches .04, you may feel good, and that might make you drink more. Avoid the trap, since it can end up causing you to be over the limit. If you do get behind the wheel, you could be arrested for having a BAC of .08 or higher. When that happens, you’ll want to talk to your attorney about defending yourself as soon as possible.

Source: BAC Track, “The Perfect BAC: Threading the Needle Between Tipsy and Drunk,” accessed June 23, 2017

COMMERCIAL DRIVERS AND DRUNK DRIVING DO NOT MIX IN MINNESOTA

You may be well aware of the serious nature of drunk driving criminal charges, but you may not know that a DWI can have a serious impact on your career as well. As a Minnesota commercial driver, accusations of drunk driving are detrimental to your ability to retain the license you need to drive certain types of vehicles.

If you are facing charges of driving while intoxicated while you were behind the wheel of a commercial vehicle, the repercussions and penalties can be steep. At this point, you would be wise to secure defense help as you work to confront these charges and mitigate the potential penalties that may affect your right to drive and your ability to keep your job.

DWI penalties for commercial drivers

There are specific license classifications for commercial drivers — types A, B and C — and a DWI can impact all of them. In fact, any commercial driver, no matter the driver’s classification, could face the total disqualification of his or her license. Some of the penalties associated with commercial drivers and suspected drunk driving or DWI include:

  • The disqualification of the commercial license for a period of one year if he or she refuses to submit to a sobriety test of any kind when requested to do so by law enforcement.
  • If a commercial driver is transporting any type of hazardous material at the time of an arrest for DWI, his or her license could face a suspension of three years.
  • After the initial DWI, a commercial driver will face a lifetime disqualification of his or her commercial license for any subsequent DWI.

For a commercial driver, there is much at stake when accused of drunk driving. Defending yourself against these charges is not only important on a personal level, it is critical for your ability to continue with your career.

Shielding yourself against drunk driving penalties

Fortunately, it is possible to defend yourself against drunk driving penalties. With help, you can challenge the case against you, even calling into question the evidence brought by the prosecution. From challenging the grounds for the initial traffic stop to the results of a Breathalyzer test, there are many ways to defend against DWI charges.

As a commercial driver, you know how important it is to keep your license in good standing, no matter the classification. A conviction is never your only option; you would be wise to learn how you can fight back.

THESE SEASONAL DRINKS CAN GET YOU DRUNK FAST

It’s the end of summer, and that means that there will be plenty of parties and events taking place. New school years mean fraternity parties and sorority gatherings at universities, too. Drinking and driving is a particular hazard any time there is a party, event or holiday.

Here are a few that you should watch out for, so you don’t make a poor decision that affects your future. These drinks only usually pop up during the late summer, fall and winter holidays, so prepare yourself with knowledge to know how much you can handle.

Spiked Cider

If you plan to go to an orchard and pick apples or if you’re celebrating a fall harvest festival, spiked cider might be on the list of alcoholic drinks. Hot apple cider doesn’t always have alcohol in it, so don’t be caught off-guard. Always ask if the drink is alcoholic. An average drink has between 6 and 12 percent alcohol by volume.

Hot Toddy

Typically served overseas, a hot toddy is essentially just a bourbon that has been warmed. It has a pinch of lemon and honey added, but that won’t disguise the average 28 percent alcohol by volume in each 8 ounces.

Eggnog

In the late fall and early winter, you might come across eggnog. Many found in grocery stores aren’t alcoholic, but those that do have alcohol are mixed with bourbon. Eggnog has 15 percent alcohol by volume, so with just 14 ounces, you could be over the limit.

These are just a few drinks you might try in the fall and winter months. Seasonal drinks can be great, but if you’re drinking, make sure you have a safe way home. Otherwise, you could face a drunk driving charge. Our website has more on what to do if you’re stopped for drinking and driving.

YOU CAN FIGHT ACCUSATIONS OF DRUNK DRIVING

In 2015, there were 10,265 deaths as a result of alcohol-impaired crashes in the United States. While those deaths are sad and probably preventable, the result of so many occurring means that the police are hard on people when they believe alcohol is involved in a crash.

Alcohol isn’t always involved in a collision, though, and it can be very hard to prove that you were not intoxicated if you were showing signs of recklessness or confusion. There are many different medical emergencies that could make you appear drunk, and there are even conditions that actually make you drunk despite never having a drink.

As someone accused of drunk driving, you have a right to refuse a blood test without a warrant. This is an invasive procedure, so it is not covered under implied consent. Officers are able to take a breath sample under implied consent laws, but if they request blood, you should ask that they get a warrant first.

Your actions don’t always tell the full story. Collisions caused by alleged recklessness could be a result of your brakes failing or being unfamiliar with a different type of vehicle. The alcohol that sets off a breathalyzer could be from mouthwash or because you burped during the test and created a false positive.

There are many different reasons for someone to be accused of a DUI, but there are just as many reasons for someone to be innocent. Your attorney can help you fight charges, so you don’t lose your license or your liberties. Our website has more information.

MAN ARRESTED FOR 28TH DRUNK DRIVING ACCUSATION

If you are out drinking at a bar, there is always a chance that an officer could see you there. What isn’t very fair is if the officer knows you and tells others to watch out for you on the roads because he or she believes you might be intoxicated. It sets you up for an arrest before you’ve even done anything wrong.

That is essentially what happened to this man in Minnesota. The man in Minnesota is facing his 28th drunk driving charge, but it’s not what it seems. The 64-year-old man was charged with felony drunk driving charges because he refused to take a breath test when asked by police.

The man was arrested after leaving the VFW, a veteran’s club. In the complaint, it stated that a deputy was in the VFW. That deputy allegedly saw him drinking in the club and alerted authorities that they should stop him once he was in his vehicle.

The police pulled over the man after he failed to stop for a stop sign. He was driving slowly on Highway 10 when he was stopped. Allegedly, he told the officer that he was “way over” the limit. The man is in jail now with bail set at $100,000. If he is convicted of the charges, he faces seven years in prison.

If you are stopped by police, you don’t have to do or say anything incriminating, but know that implied consent does mean you have consented to a breath test in the past. You don’t have to try to defend yourself or say anything if the breath test comes back high; you can wait to speak with your attorney.

Source: CBS Minnesota, “Minnesota Man Facing 28th Drunk Driving Charge,” Oct. 03, 2017

IS IT POSSIBLE TO FOOL A BREATHALYZER TEST?

There have always been questions about being able to trick a Breathalyzer test. These questions would answer age-old concerns about whether or not a Breathalyzer could be wrong in a number of circumstances. If you’re a person who wants to know if you can trick a Breathalyzer, here are a few facts to know.

Mouthwash doesn’t help lower your blood alcohol concentration

The truth is that some mouthwash actually has alcohol in it, and that alcohol can give a false positive reading. So, in reality, you are tricking the Breathalyzer, but not in the way you want.

Breathalyzers work on all people, even smokers

Some people believe that if they smoke, they’ll be less likely to be found over the limit by a Breathalyzer. That’s false. In truth, the acetaldehyde in a cigarette doesn’t throw off a professional grade Breathalyzer.

Breathalyzer tests can read your breath whether you blow hard or not

Professional Breathalyzer tests can read even a small sample of your breath, so holding your breath or blowing softer in hopes that it won’t set off the test isn’t a good way to beat the test.

In reality, it’s extremely hard to trick a Breathalyzer unless you want to make it read positive. To avoid a DUI, the best option is to avoid driving when you’ve had a few drinks. It’s better to call a taxi, get a ride with a friend or walk home than to get caught behind the wheel and hope you can beat the system. If you are stopped for drunk driving, be prepared to defend yourself in court.

Source: BACTrack, “Can You Trick a Breathalyzer?,” accessed Nov. 16, 2017

A FELONY DUI HAS HARSH PENALTIES YOU SHOULD FIGHT TO AVOID

Getting caught drunk driving is a problem for more than one reason. It not only means you could have your license taken away, but also that you could end up facing time in jail or have to go through substance abuse classes. You could face fines or be forced to use an ignition interlock device.

Depending on the number of times you’ve been arrested for driving under the influence (DUI), you could face a felony charge. If this is your fourth DUI in 10 years, you will be charged with a felony in most cases. You could lose your license for up to four years and face up to seven years in prison. The fine for a fourth offense is typically up to $14,000.

If you cause a crash that results in the death of an unborn child, you face as many as 10 years in prison and a $20,000 fine. You also face a 15-year revocation of your license. For any other fatal accident, you face the same penalties and a 10-year revocation of your license.

Causing harm to an adult leads to three years in prison and up to $10,000 in fines. You also could lose your license for two years. For crashes that result in injuries to an unborn child, you face five years in prison and a $10,000 fine with a six-year revocation.

In cases in which you cause bodily harm that is not considered to be substantial, you face only a year in prison and a $3,000 fine, since the arrest will be for a gross misdemeanor.

These are just some of the things you need to know about felony DUIs. If you have been arrested in the past, it’s in your best interests to work with someone familiar with your case and background. Our website has more information.

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Buffalo Lawyers

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