What Kind of DWI Defense Will a Lawyer Provide in Hutchinson?

In criminal court, McLeod County prosecutors must establish every element beyond a reasonable doubt for DWI defense. Under Minnesota law, a “reasonable doubt” is anything beyond “a fanciful or capricious doubt.” For example, the defendant’s doppelganger might have committed a crime, but that argument is capricious and fanciful. Instead, the doubt must be based on “reason and common sense.”

The “reason and common sense” line, which many states use, does little to adequately explain this rather difficult concept. Indeed, one court remarked that this description is like saying a white horse is a horse than is white.

In many ways, the debate over the precise meaning of this phrase is beside the point. The bottom line is that a Hutchinson DWI 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 DWI.

Possible Penalties of DWI in Hutchinson MN

Before we look at some types of DWI defense, let’s examine what is at stake in a DWI prosecution. Precise penalties vary, mostly depending on the defendant’s criminal record and the facts of the case. But the Big Three are always court supervision, aggravated circumstances, and driving privileges.

Typically, court supervision does not mean incarceration, unless the defendant has two or more prior DWIs. Court supervision, or probation, usually lasts around a year. During this time, defendants must comply with numerous conditions. The biggest ones are usually:

  • Reporting Regularly: Generally, probationers must personally report to probation officers at least once a month. These appointments are not like doctors’ appointments. Defendants cannot decide when to meet their probation officers and they cannot cancel if their kids get sick.
  • Avoiding Additional Legal Problems: Violation of this condition prompts most of the motions to revoke probation that Hutchinson DWI lawyers deal with. Anything more serious than a speeding ticket could mean jail time. 
  • Obeying Court Orders: Probation usually involves paying a fine, performing community service, and jumping through other hoops. Usually, only a steadfast and stubborn refusal to comply triggers a motion to revoke probation.

If the judge finds that the allegations in the motion to revoke probation are true, one of several things could happen. The judge could cancel probation and send the defendant to jail. More than likely, however, a motion to revoke usually means a longer period of probation or a few days in jail as a condition of reinstatement.

Aggravating circumstances in a DWI include prior drunk driving convictions, open container of alcohol in the passenger area, a child passenger under 16, and a collision. McLeod County prosecutors are notoriously aggressive in this area. If there is a hint that aggravated DWI charges might hold up in court, prosecutors usually tack on additional charges.

Refusal to provide a chemical sample is another example of an aggravating circumstance. You have the right to refuse to provide a sample, but this right is not free. The refusal is admissible in court. Most jurors assume people refuse because they have something to hide. A good Hutchinson DWI lawyer can blunt that presumption. For example, some people refuse because they are nervous or don’t trust government tests.

Refusal also impacts driving privileges. DWI usually means drivers’ license suspension, or at least drivers’ license limitation. The possibilities in this area are more severe in refusal cases.

The Venue Defense in Hutchinson DWI Cases

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 DWI suspects in one county and pull them over in another county. Technically, the state could bring charges in either county. But there are territoriality issues. To return to the previous example, the Meeker County Sheriff’s office usually does not want to send its deputies all the way to Hutchinson to testify in someone else’s criminal case.

Venue mistakes often give attorneys the leverage they need to successfully mount a DWI defense. If bureaucrats file charges in the wrong county, the judge must dismiss the case. Prosecutors can refile 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 DWI lawyer. Over time, memories fade and physical evidence disappears.

Lack of Reasonable Suspicion for the DWI Stop

Venue is a procedural DWI defense, as is lack of reasonable suspicion and lack of probable cause for the arrest. Prosecutors can work around the venue defense, if they are so inclined, but they cannot work around the next two procedural defenses. Lawyers cannot turn back the clock and erase police officer mistakes in these areas.

In 2020 and 2021, there were some high-profile police stops in Minnesota which involved little evidence of wrongdoing. Some people even claimed these stops were pretext detentions. They contend that officers essentially detained these individuals because they didn’t look right.

Legally, such stops almost always hold up in court. Officers only need reasonable suspicion, which is essentially an evidence-based hunch. Furthermore, the stop’s purpose is illegal. Usually, when officers pull over DWI suspects, they care almost nothing about the expired sticker or other infraction which prompted the stop. But the stop is still legal.

Because of this low standard of evidence, it’s very difficult for a Hutchinson DWI lawyer to invalidate a stop. Probable cause for the arrest, however, is a different story.

Preliminary Evidence of Impairment in Hutchinson

Technically, this intermediate step is not a procedural DWI defense. Officers do not need evidence of impairment to go to the next step. Such evidence usually includes:

  • An unwise answer to the dreaded “Have you been drinking” question, or
  • Physical symptoms, such as bloodshot eyes, slurred speech, slow reflexes, or unsteady balance.

However, this step is important for many jurors. If an officer pulls over a defendant and immediately assumes s/he is probably drunk, some jurors smell something fishy. That’s especially true if the officer had staked out a bar or was actively looking for DWIs as part of a concerted enforcement effort.

Once upon a time, efforts to erode police officer credibility in this way rarely worked and usually backfired. Most people highly esteemed police officers. Cops got free pancakes at Denny’s. Now, officers pay for their own pancakes. So, more jurors are willing to consider an argument that the officer railroaded the defendant. Public confidence in law enforcement officers recently hit an all-time low.

Probable Cause for the Arrest

This area is mandatory. Police must have probable cause to arrest suspects. In most cases, “probable cause” is an even more vague standard than beyond a reasonable doubt. But in the DWI context, the law is more certain.

Officers usually have probable cause to arrest suspects if they perform poorly on the field sobriety tests. In Minnesota, there are four such tests:

  • Horizontal Gaze Nystagmus: For the DWI eye test, suspects must track moving objects with their eyes without moving their heads. This test reliably reveals nystagmus, a condition also known as lazy eye. The problem is that intoxication is not the only cause of nystagmus. In fact, it’s not even the leading cause of it.
  • Walk and Turn: Suspects must walk a straight line heel to toe forwards and backwards. This test is very difficult to successfully perform if the suspect is wearing anything other than athletic shoes. Furthermore, it’s much harder to walk an imaginary line than an actual line.
  • One-Leg Stand: People with any mobility impairment whatsoever usually cannot possibly stand on one foot for fifteen or twenty seconds. Additionally, officers usually have suspects perform this test near the end, when they are physically and mentally fatigued.
  • Portable Breathalyzer: This gadget’s specific flaws, or at least some of them, are discussed below. For now, we’ll just say that the portable Breathalyzers police officers carry are even more inaccurate than the bigger ones at the police station.

Officers always swear that the defendant “failed” these tests, even if the failure was a technicality, like taking too many heel-to-toe steps. Since the standard of evidence is so low, most McLeod County judges take officers at their word. The field sobriety test flaws are more important at trial. Jurors decide for themselves, based on the evidence and not based on a police officer’s opinion, whether defendants passed or failed the tests.

However, sometimes this evidence is unavailable. People sometimes assert their Fifth Amendment rights and refuse to perform these tests. Other times, hurried officers skip right to the good part and immediately cuff the defendant.

In these situations, prosecutors must rely on the reasonable suspicion evidence, such as bloodshot eyes, mentioned above. This evidence usually proves consumption. But it does little or nothing to prove intoxication.

Non-Intoxication DWI Defense in Hutchinson, MN

Not all cases involve procedural defenses, but many do. So, a Hutchinson DWI lawyer must pay close attention to the details. This same diligence is necessary with regard to non-intoxication defenses. Frequently, intoxication is the only issue in a DWI trial, but this offense has other elements as well. Prosecutors must prove all elements of the offense, and not just one of them, beyond a reasonable doubt. Some possible non-intoxication DWI defenses include:

  • 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 DWI-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 in Hutchinson, MN

Even if these two areas are not issues in a DWI case, intoxication, or lack thereof, is usually a question. Scientifically, alcohol blood tests are much 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. These particles basically transform sugar into energy. Breathalyzers register ketone particles as ethanol. So, the BAC estimate might be artificially high. In borderline cases, like a .08 or .09, jurors could easily 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 DWI lawyers point out that the modern Breathalyzer is essentially the same gadget as the 1920s Drunk-O-Meter.

Connect with an Experienced Hutchinson DWI Lawyer

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



This article was originally published on Feb 21, 2020 and updated on June 01, 2021.

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.

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.

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.


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

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

Contact Tenacious Attorneys

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

How 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.

Stoned Driving Charges and Brainerd, MN Drug Crime Lawyers

The marijuana legalization movement has stalled recently, but it is probably only a matter of time before weed is legal in Minnesota. Legalization would be a game-changer for drug possession cases, but probably not affect DUI charges at all. Under existing law, alcohol is only one substance that could trigger DUI charges in Crow Wing County. Marijuana, legal or not, could do likewise.

Evidence is the main difference between a drunk driving case and a stoned driving case. Most drivers provide chemical samples, and if the sample is above the legal limit, the defendant may be guilty as a matter of law. Stoned driving cases, however, have many moving parts. Generally, the state must depend on circumstantial evidence and “experts” who do not really qualify as such.

These proof problems make stoned driving cases a bit easier for Brainerd, MN drug crime lawyers to resolve. Wright County prosecutors normally do not reduce DUI charges to reckless driving or another lesser-included offense. So, an aggressive defense that challenges the state’s evidence is the best, and sometimes only, way to successfully resolve these matters.

To prove guilt in a stoned driving case, prosecutors must establish the following three elements beyond a reasonable doubt.

Under the Influence

As mentioned, most alcohol DUI prosecutions involve chemical samples. If the defendant provides a sample, a Brainerd, MN drug crime lawyer must normally cast doubt on the sample’s reliability. Showing such doubt is quite difficult but not impossible.

Alternatively, another defense might be available. For example, the defendant might not have been “operating” the vehicle under Minnesota law. Or, police might have pulled over the defendant on private property, like a shopping mall parking lot. These places are always private property, even if they have street names and traffic control devices, like stop signs.

Stoned driving cases are different. To establish this first element, prosecutors normally rely on the three approved field sobriety tests, which are:

  • Horizontal Gaze Nystagmus: The DUI eye test determines if the defendant has nystagmus, which is also called lazy eye. This test is quite accurate if done under controlled conditions. But roadside HGN tests do not occur under controlled conditions. For example, flashing squad car lights cause flicker vertigo, a condition that could skew the test results.
  • Walk and Turn: The heel-to-toe walk test requires defendants to walk a straight line forward and backward placing heel to toe while keeping their hands at their sides. This test has some flaws as well. For example, in many roadside WAT tests, the defendant must walk an imaginary line. That’s much harder than walking an actual line.
  • One-Leg Stand: Much like the WAT, the OLS is a divided attention test that measures physical dexterity and mental clarity. Also like the WAT, officers often testify that the defendant “failed” the OLS because of minor technicalities. However, the jury has the final say as to who passed and who failed these tests.

In Minnesota, the field sobriety tests also include a portable Breathalyzer test. But there is no Breathalyzer for marijuana use, at least not yet.

To bolster the FST results, an increasing number of prosecutors use Drug Recognition Expert testimony. These individuals are officers who have some additional training in this area. Supposedly, this training enables them to recognize when a person is stoned. However, they usually acquired all this training at a police-sponsored seminar.

Furthermore, Brainerd, MN drug crime lawyers can bring up the self-fulfilling prophecy problem. Arresting officers summon DREs to DUI scenes to confirm the defendant’s drug use. Typically, if you look for a quality in a person, you will find it, whether it is there or not.

Controlled or Intoxicating Substance

Currently, this element is easy to establish. Marijuana is a controlled substance under both state and federal law. In a drugged driving case, prosecutors need not produce the substance. The old “I smelled marijuana smoke” testimony is usually sufficient.

If marijuana’s legal status changes, prosecutors must establish that the substance was intoxicating. There is a general consensus that marijuana intoxicates drivers, but the consensus is far from universal. There is very little hard, scientific evidence on this point. The evidence is mostly anecdotal.

Brainerd, MN Drug Crime Lawyers and Knowledge of Possible Intoxication

On a related note, the state must also prove the defendant knew the substance was intoxicating. In many drugged driving cases, this point is also easy to show. Hard street drugs, like cocaine and LSD, are impairing. Prescription and over-the-counter drugs, like Oxycontin and NyQuil, have written warnings.

However, due to the lack of consensus about marijuana, this element is more difficult to establish in stoned driving cases, at least beyond a reasonable doubt.

There is a catch. Normally, a Brainerd, MN drug crime lawyer must allow the defendant to testify to establish a lack of knowledge. This is a high risk/high reward strategy. When defendants tell their side of the story, jurors often respond favorably. However, the defendant is exposed to cross-examination, and that could end very badly.

Connect with an Experienced Attorney

Stones driving charges often do not hold up in court. For a free consultation with an experienced Brainerd, MN drug crime lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Crow Wing 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.

Should a Buffalo, MN DUI Lawyer Represent Me at the ALR Hearing?

Nearly all states, including Minnesota, have implied consent laws. These laws allow authorities to automatically suspend drivers’ licenses of people who fail chemical tests or refuse to provide specimens on demand.

The Administrative License Revocation proceeding is not a criminal law matter. So, there is a lower burden of proof. Furthermore, there’s a limited number of points that Buffalo, MN DUI lawyers can contest. Finally, many of the normal constitutional protections do not apply. For example, the administrative law judge can require defendants to be witnesses against themselves. Incidentally, that administrative law judge is usually a paid DMV employee. There’s no possible bias there, right?

Yet despite all these obstacles, a Buffalo, MN DUI lawyer can still obtain a positive result at ALR hearings. Additionally, win or lose, the ALR hearing has some inherent value. So, failure to contest ALR suspension does not just hand the state an easy win. Your Buffalo, MN DUI lawyer loses a critical advantage in the fight for a favorable outcome in the criminal case.

What’s at Stake

Minnesota has very complex DUI laws, and the license suspension rules are equally complex. The suspension period, and conditions, vary significantly according to the facts of the case.

Most Wright County DUI offenders have no prior drinking and driving convictions, provide a breath sample, and blow a .16 or below (a .16 is twice the legal limit). In these situations, the maximum suspension period is 90 days. However, after fifteen days, drivers can apply for limited licenses. These substitute drivers’ licenses allow people to drive to and from school, to and from work, and in a few other situations.

If the defendant has no priors and refuses to provide a sample, the maximum suspension period catapults to one year. The same limited license option applies. Defendants must serve fifteen days “hard time” and then they can drive on a limited license for the remaining 350 days. Or, defendants who install ignition interlock devices for a year may keep their full licenses.

Special rules apply to people who blow over a .16, have at least one prior conviction, or have a child passenger under 16, whether or not the child is kin to the driver.

After suspension periods end, the state does not automatically reinstate drivers’ licenses. Before that happens, the driver must pay a $700 fee. The driver must also undergo a chemical health assessment and successfully complete a DUI knowledge test.

Procedures at the ALR Hearing

Guilt or innocence is not relevant at this stage. Instead, the ALJ must determine if officers had probable cause to request a chemical sample. Generally, the arresting officer provides the necessary testimony. If the officer does not appear, the ALJ can force the defendant to testify about the arrest. But generally, the ALJ resets the hearing to give the officer another chance to show up.

Probable cause basically means that the officer had a good reason to request a sample. Usually, if the defendant performed at least one field sobriety test and failed it, that’s sufficient. So, Buffalo, MN DUI lawyers often successfully challenge probable cause if the defendant refused to perform field tests or “failed” the test because of a minor technicality.

Possible Outcomes

Given the low standard of proof, narrow issues, and ALJ bias, it may seem like a Buffalo, MN DUI lawyer cannot possibly obtain a positive outcome. For that reason, many drivers do not bother to contest the suspension.

However, if there is a question about the evidence, the ALJ often at least reduces the suspension period or relaxes the restrictions. That’s especially key in refusal cases, because a year is a long time to drive with an ignition interlock device.

Furthermore, there is no risk. Even if the ALJ throws the book at the defendant, the worst thing that could happen is a one-year suspension in a refusal case or a 90-day suspension in a failure case. These things would have happened even if the defendant did not contest the proceeding at all. So, you have nothing to lose and a lot to gain.

How the ALR Hearing Gives Your Buffalo, MN DUI Lawyer an Edge

That gain is not just the potential of a shorter or easier suspension period. At the ALR hearing, your Buffalo, MN DUI lawyer cross-examines the officer under oath. This type of discovery, if it is available at all in a misdemeanor case, usually costs hundreds of dollars.

Credibility is a very fragile thing. That’s especially true for police officers. Jurors do not trust police officers as much as they did even a few years ago. So, the slightest inconsistency between the ALR testimony and the trial testimony often causes at least one juror to discount the officer’s testimony altogether. And, if just one juror has a reasonable doubt as to the evidence, the defendant is not guilty as a matter of law.

Call a Tenacious Attorney

Assertive representation at the ALR hearing is very important. For a free consultation with an experienced Buffalo, MN DUI lawyer, contact Carlson & Jones, P.A. Home and jail visits are available.

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Buffalo Lawyers

215 East Highway 55, Suite 201
Buffalo, MN 55313

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Brainerd Lawyers

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Brainerd, MN 56401

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Hutchinson, MN 55350

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Minnetonka Lawyers

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Minnetonka, MN 55305

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