A Brainerd, MN DWI Lawyer Looks at Some Possible Defenses

Alcohol-involved wrecks usually have both civil and criminal consequences for Minnesota drivers. In civil court, victims must only establish liability by a preponderance of the evidence. That’s the lowest standard of proof in Minnesota. But in criminal court, prosecutors must establish guilt beyond a reasonable doubt. That’s the highest standard of proof in Minnesota.

Essentially, the state’s evidence must be so overwhelming that it not only overcomes the presumption of innocence. The proof must also firmly convince jurors that the defendant is guilty. Maybe or probably guilty is not good enough.

Because the burden of proof is so high, a Brainerd, MN DWI lawyer has several options in terms of a successful defense. The result of this approach could be a complete dismissal of charges, a not-guilty verdict at trial, or a plea to a lesser included offense.

Procedural Issues

Most DWI arrests begin with traffic stops. Typically, officers can pull over motorists based on little more than a hunch. In a 2015 Iowa case, a federal judge ruled that officers could pull over a motorist for traveling 1mph over the speed limit, even though the speeding stop was just a pretext and the officers knew the charges would not hold up in court.

Sometimes, however, even this tiny bit of proof is unavailable in a DWI case. Informer tips are a good example. Frequently, these tips are so vague (blue sedan eastbound on Highway 210) that they have no value in court whatsoever.

If the stop was illegal, then the arrest was illegal as well, under the fruit of the poisonous tree doctrine. It does not matter if the driver was passed-out drunk behind the wheel.

Minnesota law enforcement officers also periodically set up DWI checkpoints. These roadblocks often appear around the Fourth of July, New Year’s Eve, and other holidays associated with drinking and driving. 

Officers do not need evidence of wrongdoing to pull over motorists at checkpoints. However, these roadblocks must meet rigid requirements. If they fall short, a Brainerd, MN DWI lawyer can invalidate the checkpoint and therefore invalidate the arrest.

Brainerd, MN DWI Lawyers and Intoxication Defenses

After they are pulled over, about 80 percent of defendants provide a chemical breath or blood sample. If the sample shows the defendant’s BAC was above the legal limit, the defendant is guilty as a matter of law.

Chemical tests are not always accurate. For example, if a defendant burped, vomited, or belched in the fifteen minutes prior to a Breathalyzer test, alcohol particles from the stomach gush into the mouth. As a result, the Brethalyzer’s BAC estimate might be artificially high.

Furthermore, chemical tests are not always admissible. If the Breathalyzer had not been calibrated properly or recently, any results might be legally inadmissible.

In the remaining 20 percent of DWI cases, prosecutors must use circumstantial evidence to prove intoxication. Such evidence usually comes from the four approved field sobriety tests, which are:

  • Horizontal Gaze Nystagmus: The DWI eye test determines if the defendant has nystagmus, a condition also known as lazy eye. Intoxication is only one cause of nystagmus, and it is not even the leading cause.
  • Portable Breathalyzer: Some of the Breathalyzer’s flaws were discussed above. Portable Breathalyzers are even more inaccurate than the larger ones used at police stations.
  • One-Leg Stand: People with any mobility impairment at all usually cannot stand on one leg for more than a few seconds, whether they are drunk or sober.
  • Walk and Turn: Environmental factors often affect these test results. For example, it is much more difficult to walk an imaginary line heel-to-toe than it is to walk an actual line, like a parking lot stripe, in this fashion.

Some officers administer additional unapproved tests, like Romberg’s balance test (head back, eyes closed, and arms extended test). These results are usually only admissible for limited purposes.

Non-Intoxication Defenses

Frequently, the “intoxication” element is the only real issue in a DWI case. But in many situations, a Brainerd, MN DWI lawyer can challenge the “driving” element as well.

According to the Minnesota DWI law, “driving” is more like “operating.” The vehicle need not be moving. If the defendant is behind the wheel and the vehicle is drivable, DWI charges will probably hold up in court, at least with regard to “driving.” Sometimes, however, the defendant does not have the keys, the car is out of gas, or there are other extenuating circumstances.

DWI collisions are another example. Generally, by the time emergency responders arrive, the defendant has left the vehicle. Unless a witness places the defendant behind the wheel at or near the time of the crash, there may be insufficient evidence on this point.

Other non-intoxication defenses include the public/private place issue. Driving while intoxicated is only illegal if the defendant was in a public place. Shopping center, apartment complex, and some housing development parking lots are not public places, even if they are open to the public. A private driveway is not a public place either. The street directly in front of a private residence is in a grey area.

Connect with a Dedicated Attorney

There is a big difference between a DWI arrest and a DWI conviction. For a free consultation with an experienced Brainerd, MN DWI lawyer, contact Carlson & Jones, P.A. The sooner you call us, the sooner we start fighting for you.

Should a Brainerd, MN Criminal Defense Lawyer Represent Me at the DWI ALR Hearing?

Few other offenses have more indirect consequences than DWIs. One such collateral consequence is the Administrative License Revocation process. If the defendant’s BAC level was above the legal limit at the time of arrest, the state automatically suspends the person’s drivers’ license. The same thing happens if the defendant refuses to provide a chemical sample.

However, because of the Fourteenth Amendment, states like Minnesota usually cannot “automatically” do anything. The Fourteenth Amendment requires due process of law, and at a minimum, that means notice and an opportunity to be heard.

This right is an important one, but like so many other rights, it is just ink on paper unless a Brainerd, MN criminal defense lawyer enforces it. ALR hearings are difficult, but certainly not impossible, to win. And, there is more than one way to “win” one of these hearings. Keep reading to learn more about these things.

Possible Defenses

ALR hearings are difficult to win because the administrative law judge is normally a paid DMV employee. Additionally, the ALJ serves as prosecutor, judge, and jury. Finally, this proceeding is not technically a criminal proceeding. So, many of the normal Constitutional protections do not apply. For example, the ALJ may force defendants to testify against themselves.

Moreover, the burden of proof is rather low in ALR hearings. The state must only establish that officers had probable cause to demand a sample and the defendant either failed the test or refused to take it. “Probable cause” basically means officers believed that a crime had been committed.

This standard might be low, but it is higher than a reasonable suspicion, which is basically an evidence-based hunch. So, unless the state presents substantial proof, a Brainerd, MN criminal defense lawyer can challenge the lack of evidence.

The Field Sobriety Tests are a good illustration. Normally, officers depend on these four tests to establish probable cause in a DWI. These tests are:

  • Horizonta Gaze Nystagmus (DWI eye test),
  • Walk and Turn,
  • One Leg Stand, and
  • Portable Breathalyzer.

Some officers administer unapproved field sobriety tests, like Romberg’s balance test (head back, eyes closed, arms extended test). But these controversial test results might not be admissible in the ALR hearing.

Frequently, defendants refuse to perform any of these tests. Or, they perform one or two and then refuse to go on. Either way, there might not be enough evidence to establish probable cause.

There is a preliminary matter as well. Generally, officers pull over DWI defendants because they saw them commit traffic violations or they got caught in a DWI roadblock. Sometimes, however, officers rely on more subjective proof, like furtive movements behind the steering wheel. But a nervous-looking driver is not probable cause in Minnesota.

Why You Should Work with a Brainerd, MN Criminal Defense Lawyer

If left to their own devices, many ALJs would probably ignore these things and always side with police officers. So, a Brainerd, MN criminal defense lawyer must diligently research the law and present these findings in a compelling way.

Once these defenses are presented, the ALJ might at least reduce the suspension period or probate part of the license suspension term.

A Brainerd, MN criminal defense lawyer can also help a defendant obtain an occupational drivers’ license, which is called a work permit in Minnesota. This limited license allows people to drive to and from work, to and from school, to and from the doctor, and to perform some essential household functions, like buying food. A waiting period applies, as follows:

  • Fifteen days for a first work permit,
  • 90 days for a second work permit, and
  • 180 days for a third work permit.

Longer waiting periods apply in complex cases, such as DWI-manslaughter or DWI-collision cases. Defendants cannot drive with their work permits until the waiting period expires.

After a fourth DWI, a work permit might not be available. But that doesn’t matter much, because at this point, the state usually revokes the defendant’s license permanently.

A Brainerd, MN criminal defense lawyer might still be able to help in these situations. A little-used loophole, called the B-card, is available in these situations. If these people complete alcohol treatment and sign alcohol abstinence pledges, the state can issue a limited drivers’ license after a waiting period expires. That waiting period is usually between one and three years.

Any alcohol use, even during something like a religious ceremony, cancels the license. It is a gross misdemeanor to drive with an invalid B-card.

Reach Out to a Dedicated Attorney

A DWI arrest does not necessarily mean an interruption or cancellation of your driving privileges. For a free consultation with an experienced Brainerd, MN criminal defense lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Crow Wing County and nearby jurisdictions.

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.

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.

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.

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.

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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