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.

How To Get Out Of A DWI In Minnesota

There are many ways to beat criminal charges. Prosecutors must prove every element of every offense beyond a reasonable doubt. Many times, there simply is not enough evidence to meet this burden. Other times, there is a defense available. Insanity and self-defense are two examples. In some cases, voluntary intoxication may be a defense, in addition to a mistake of fact.

Other defenses are procedural. If a Minnesota DWI lawyer finds procedural irregularities, those irregularities may invalidate the arrest. If the arrest is invalid, the case cannot go forward.

Reasonable Suspicion Stops

In cases like 2016’s Utah v. Streiff, the United States Supreme Court has considerably watered down this rule. Yet the fundamental requirement remains in place. To pull over a driver for suspicion of DWI, a Minnesota police officer must have reasonable suspicion. This is a low standard of proof which basically involves “specific, articulable facts” along with the officer’s interpretation of those facts, based on the officer’s “gut instinct.”

Most DWI arrests involve traffic stops. Some aspects of reasonable suspicion in these initial stops include things like:

  • Erratic Driving: Alcohol impairs both motor skills and judgement ability. Weaving is a classic example of alcohol-induced erratic driving. However, officers are just as likely to pull over a suspect for a non-moving violation, like a non-working headlight.
  • Bloodshot Eyes: Fatigue, cigarette smoke, and alcohol are three of the major causes of this condition. So, bloodshot eyes by themselves do not prove anything related to DWI.
  • Odor of Alcohol: If officers detect an odor of alcohol coming from the defendant’s clothes or vehicle, such evidence only establishes that someone close to the defendant had been drinking. If the odor comes from the defendant’s breath, such evidence only proves consumption.

If the officer relies only on one of these items for reasonable suspicion, a Minnesota DWI lawyer may have a basis to challenge the arrest. The more evidence there is, the harder such challenges are to win.

Other reasonable suspicion DWI stops involve third-party tips. There is no hard-and-fast rule concerning the reliability of these tips. So, Minnesota DWI lawyers may challenge them on several different grounds. The source is one example. Tips that come from fellow officers are highly reliable. Anonymous tips, on the other hand, are highly unreliable. If the tipster doesn’t vouch for the information, why should anyone else believe it? All other tips are somewhere in the middle.

High-intensity Selective Traffic Enforcement Program campaigns (STEP campaigns) introduce a new element into the mix. STEP stops are often easier for Minnesota DWI lawyers to challenge. Procedure varies by jurisdiction. Generally, during STEP campaigns, officers are pulled from their normal duties, sent to a certain part of town, and instructed to write as many DWI or other citations as possible. The result is something like a police dragnet. These dragnets often ensnare sober motorists along with intoxicated ones.

At all traffic stops, it’s usually best to comply now and complain later. Obey lawful commands, politely refuse to answer questions or perform sobriety tests, and let a Minnesota DWI lawyer handle the rest.

DWI Checkpoints in Minnesota

Drivers should respond in basically the same way at DWI roadblocks. Under state law, motorists must provide certain information for inspection, usually a drivers’ license and proof of insurance. But motorists have no legal duty to answer questions or even roll down their windows.

Most checkpoints pop up during certain holidays, like New Year’s Eve, which are associated with drinking and driving. Police officers at checkpoints do not need reasonable suspicion to pull over a motorist. In exchange for this power, there are a number of rules, including:

  • No Discretion: Every decision, including the time, location, and method of pulling over vehicles, must come from a supervisor. Officers at the scene have no authority to make even miniscule changes.
  • Preset Method: Officers cannot detain motorists who do not “look right” and wave other ones through. The method must be totally random; for example, officers might detain every second or third vehicle.
  • Minimal Disruption: Officers usually cannot detain every motorist because such a checkpoint would be too time-consuming. As a rule of thumb, any delay more than four or five minutes is too long. That includes both the time waiting in line and the interaction with the officer.

Other requirements include prior publicity which gives motorists the chance to stay away from the area and sufficient signage which informs motorists about the purpose of the checkpoint. If even one requirement is lacking, the checkpoint may be legally invalid.

Individuals also have the right to turn around and avoid DWI roadblocks. If that happens, motorists can expect police cars to tail them for at least several blocks. If these officers develop reasonable suspicion, as outlined above, they may pull over the driver.

Call Today To Speak With A MN DWI Lawyer From Carlson & Jones

Procedural irregularities may stop a criminal case in its tracks. For a free consultation with an experienced Minnesota DWI lawyer, contact Carlson & Jones, P.A. Home and jail visits are available.


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.


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


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.


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.


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.


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.


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


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


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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