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.

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.

What Happens at Buffalo DUI Roadblocks?

New Year’s Eve is just around the corner, which means that local law enforcement departments are already planning their DUI roadblocks. These checkpoints usually appear at that time of year along with other drinking-and-driving holidays, like Memorial Day and Labor Day weekends.

Normally, police officers need reasonable suspicion to pull over suspected drunk drivers. The United States Supreme Court has diluted the reasonable suspicion standard in a few recent cases. But officers must still have some specific, articulable facts which indicate criminal activity. This requirement is embedded in the Fourth Amendment.

But roadblock stops are more difficult for Buffalo criminal defense lawyers to handle. At checkpoint stops, police officers do not need reasonable suspicion. Rather, officers may pull over vehicles according to a pre-set pattern.

DUI Roadblock Requirements

Since DUI checkpoints are exempt from the reasonable suspicion requirement, they must meet very specific standards, as set out by 1990’s Michigan Department of State Police v. Sitz and some other cases. Some of these requirements include:

  • Supervisor-Level Planning: A few street cops cannot get together and establish checkpoints where they feel they are needed. Arguably, sergeants and lieutenants do not have this power either. Instead, these directives must come from high-level supervisors, like captains, or from lawmakers. These individuals are accountable to the voters either directly or indirectly.
  • Neutral Formula: Some checkpoint officers are tempted to combine a watered-down reasonable suspicion requirement with roadblock procedures. But officers cannot pull over cars because they “look wrong.” Instead, the checkpoint guidelines must establish a schedule (e.g. every third vehicle is detained) and stick with it for the entire time.
  • Visibility: Checkpoints are not poorly-concealed speed traps. Instead, checkpoints must include traffic cones, warning lights, adequate signage, and other items. This requirement blends in with your right to turn around and avoid the checkpoint, which is examined below.
  • Publicity: Once supervisors set out detailed checkpoint guidelines, the department must publicize the checkpoint. The rules here are a little uncertain. But the publicity must be of a sufficient nature that it gives people the opportunity to stay away from the area altogether if they choose.
  • Detention Length: The rules are a bit vague here as well. Generally, however, any period longer than about three minutes is too long. That includes the time drivers spend waiting in line to reach the checkpoint itself, interaction with officers, and leaving the area.

Buffalo criminal defense lawyers can use any breakdown to invalidate the checkpoint, and intermittent breakdowns are common. For example, officers might start detaining every fourth vehicle to speed the line up. There’s nothing wrong with that sentiment. But unless the established checkpoint guidelines authorize such action, that initiative is illegal non-supervisor planning.

Your Rights at a DUI Checkpoint

At most traffic stops, Buffalo criminal defense lawyers can attack officers’ reasonable suspicion for the stop. For example, many officers claim that drivers made “furtive movements” while driving. Furtive gestures, like looking around quickly or appearing to hide something, do not constitute reasonable suspicion in most Wright County courtrooms.

Similarly, drivers have rights at DUI roadblocks. Motorists do not have the right to be free from unreasonable searches and seizures. But they do have the right to:

  • Avoid the Checkpoint: Generally, the aforementioned warning signs must begin before the line forms. Drivers must have the opportunity to make U-turns and avoid the checkpoint. If that happens, officers will probably shadow them for at least a few blocks.
  • Remain Silent in Line: When drivers reach checkpoint officers, they must produce drivers’ licenses and proof of insurance upon request. However, they do not need to answer any other questions. IN fact, they do not even have to roll down their windows. It’s enough to flash the documents, stop briefly, and then move on.
  • Remain Silent After Detention: To move motorists to the detention area, officers must have reasonable suspicion of intoxication. That could be physical symptoms, like bloodshot eyes or odor of alcohol. That could also be the driver’s statements. If officers ask you to answer more questions or perform field sobriety tests, your Fifth Amendment rights remain in place. If you remain silent, officers will almost surely arrest you. But that probably would have happened anyway.

Recording smartphone or other video is in a grey area. The United States Supreme Court has yet to rule that people have a fundamental right to film police officers as they exercise their official duties.

DUI checkpoints give police officers an enormous amount of power. If not for budget constraints, most departments would have checkpoints on every major intersection on every weekend. But this power is not absolute. Checkpoints erode some, but not all of, your constitutional rights.

Work with a Dedicated Lawyer

Every minute they are operations, DUI checkpoints must conform with the law. For a free consultation with an experienced Buffalo criminal defense lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.


Can MN DWI Lawyers Beat the Breathalyzer?

If officers have probable cause to believe that the defendant is intoxicated, they may ask the defendant to provide a chemical sample. Nationwide, about 20 percent of drivers refuse to Breathalyzer test. That percentage may be a little lower in Minnesota, since the Gopher State has a refusal-to-submit law. In refusal cases, prosecutors can, and almost always do, upgrade the charges to third-degree DUI.

Without a chemical test, prosecutors must rely on circumstantial evidence to obtain convictions in these cases. It is much easier for MN DWI Lawyers to challenge such evidence in court. That’s especially true because of the high burden of proof in criminal cases. County prosecutors must establish guilt beyond any and all reasonable doubt.

Even if the defendant provided a breath sample, there may be an effective defense. However, some of these defenses are more effective than others.

Three Breathalyzer Myths in Minnesota

Alexander Pope once wrote that “A little knowledge is a dangerous thing.” Some of the most prominent breathalyzer myths have a grain of truth, but that’s about it.

Suck on a Penny

“If you’ve been drinkin’ then suck on Lincoln,” right? Copper does disrupt the chemical process which the Breathalyzer measures. A sufficient amount of copper may alter the results enough to call them into question.

Alas, pennies only have trace amounts of copper. They are mostly zinc and other cheap metals with copper coloring. So, to affect the test, a person must suck on a mouthful of pennies, and even that may not be enough. Moreover, officers almost always check for foreign substances before they administer the test.

Drink Coffee/Chew Gum

These actions temporarily eliminate some intoxication effects. Drinking coffee helps people feel more alert and chewing gum masks the odor of alcohol.

However, these things do not “cure” intoxication. Only time does that. So, even if you chew a whole pack of Extra Spearmint Gun and down a thermos of coffee, Breathalyzer results are unaffected. Moreover, officers may use other signs of alcohol consumption as reasonable suspicion, such as bloodshot eyes or an oral admission.

Chug Alcohol

In 2012, a Florida man left the scene of a fatal DUI crash, went to a nearby Circle K, bought a can of beer, and began drinking. He eventually pleaded guilty, but his idea was somewhat sound. As outlined below, mouth alcohol affects Breathalyzer results.

However, the Breathalyzer measures ethanol particles in the breath as opposed to liquid alcohol in the mouth. So, much like the penny suck defense, someone must consume a very, very large amount of alcohol to change the test results. That’s usually not possible. Moreover, the jury may consider sudden consumption an admission of guilt. Jurors may also not look too kindly on such a brazen attempt to flaunt the Breathalyzer.

Three Breathalyzer Flaws

So much for some major Breathalyzer myths. Fortunately, MN DWI Lawyers may also draw on some Breathalyzer facts. These flaws are especially significant in borderline BAC cases, such as a .08 or .09.

To fully appreciate these flaws, it’s important to understand how the Breathalyzer works. Breathalyzers measure breath alcohol levels and then use that figure to estimate Blood Alcohol Content. That extra step may make a big difference.

Mouth Alcohol

Liquid alcohol only affects the results slightly. But burping, vomiting, or belching affects the results significantly. Ethanol particles flood the mouth when these things happen.

Technically, officers must monitor defendants for fifteen minutes before they administer breath tests. But under current law, officers need not monitor defendants very closely. So, there may be no way to tell if the defendant burped, vomited, or belched immediately prior to the test.

Unabsorbed Alcohol

The body processes alcohol through the liver, into the blood, and out through urine. The absorption process takes at least an hour in most cases.

If the defendant has been drinking during that time period, the breath alcohol level may not accurately reflect the blood alcohol level. It is not illegal to “drink and drive.” In chemical test cases, it is only illegal to have a BAC above the legal limit.

Unless the defendant says s/he has not had anything to drink within the last couple of hours, a Brainerd lawyer can use the unabsorbed alcohol theory to create reasonable doubt as to the test result.

Ketone/Acetone Levels

Smokers, diabetics, and some other people have high acetone levels in their breath. Acetone is an industrial solvent commonly found in nail polish remover. But the body also produces acetone in small quantities. In certain cases, that production is even higher. In fact, some people with high ketone levels develop ketoacidosis, which is a potentially fatal condition.

Breathalyzers register acetone as ethanol, since these substances are chemically similar. The Breathalyzer result is just a number. This gadget does not break down the breath alcohol level. So, there is no way to know how much of the score is ethanol and how much is acetone. In some cases, that uncertainty may be enough to produce reasonable doubt as to the results.

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

Even if the defendant provides a chemical sample, all is not lost in a DUI case. For a free consultation with an experienced MN DWI Lawyer, contact Carlson & Jones, P.A. We routinely handle cases statewide.

Six DWI Roadblock Requirements in Minnesota

Normally, police officers must have reasonable suspicion to detain motorists for DWI or other criminal offenses. Such reasonable suspicion could be an offense committed within plain view, like a traffic infraction, or a tip from an informer.

Roadside checkpoints are a major exception to this rule. At a roadblock, officers need not have any suspicion at all, reasonable or otherwise, to detain motorists. Instead, officers can detain motorists according to a pre-arranged formula.

Roadblocks are a key weapon in the anti-DWI law enforcement arsenal. So, MN DWI lawyers must take extra care to hold the state accountable in such situations, to protect people from government overreaches. Many of these requirements are outlined in 1990’s Michigan Department of State Police v. Sitz. In this case, the United States Supreme Court finally set ground rules for DWI checkpoints, some of which are discussed below.

Supervisor-Level Planning

Before Sitz, some states allowed informal checkpoints. A group of officers could get together and block traffic for almost any law enforcement-related purpose.

The Supreme Court put an end to this practice for good. In DWI checkpoint situations, every detail about the roadblock’s operation must come from a supervisor. Generally, officers can have no discretion when it comes to items like:

  • Checkpoint location,
  • Hours of operation,
  • Manner of detaining motorists, and
  • Checkpoint purpose.

As indicated below, officers have some limited discretion when it comes to the manner of detaining motorists.

If police supervisors only make a general operational outline and allow officers to fill in the blanks, the checkpoint is probably invalid.

Safe Location

Most officers would like to place checkpoints in high-traffic areas, like freeway off-ramps. Moreover, they would like for these checkpoints to be at peak driving times.

But these conditions simply are not safe for motorists. If they exist, a MN DWI lawyer may once again be able to challenge the checkpoint’s validity. High-speed and high-traffic areas create a high potential for accidents.

Prior Publicity

Before officers set up the roadblock, the sponsoring agency must advertise the checkpoint’s exact location and hours of operation. A post on the police department’s website may be sufficient, but a social media post is even better. The idea is that people should have the chance to avoid the area altogether. Without sufficient publicity, motorists would be unable to exercise that right.

Sufficient Signage

There is a similar purpose here. There must be warning signs far away from the actual checkpoint. Motorists must have the option of turning around before traffic backs up. As a rule of thumb, a sign like “DWI Checkpoint Ahead” must be at least a quarter-mile before the checkpoint itself.

There are other requirements in this area as well. Officers should be available to direct traffic, or they should at least place safety cones in the road. Furthermore, the signs should clearly set forth the checkpoint’s purpose as well as its authorization under Minnesota law.

The signage question is really a question of individual rights, and these are the rights that MN DWI lawyers fight to preserve.

If officers see a motorist turn around to avoid the checkpoint, they have the right to follow that motorist. If they develop reasonable suspicion, perhaps because of the motorist’s unsafe lane change, they may detain that driver.

Minimal Disruption

Officers must keep traffic flowing as quickly as possible. Any wait longer than about three minutes is probably excessive. That includes both waiting in line and the time spent interaction with officers.

This is the one area where officers have some discretion. For example, many checkpoint operating instructions allow officers to pull over every other vehicle. However, if traffic backs up and wait time increases, they may have the discretion to detain every third or fourth vehicle. These alternate instructions must be clearly laid out in writing.

Respect for Individual Rights

Police officers are not the only people with rights at DWI checkpoints. Drivers have important rights as well.

Motorists have a legal responsibility to produce certain documents, such as a drivers’ license and proof of insurance, for inspection. There usually needs to be a sign to that effect. The obligation ends there. Motorists need not answer questions or even roll down their windows. A refusal to interact does not constitute reasonable suspicion. However, motorists who exercise their right to remain silent may pick up police tails, as outlined above.

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

Any failure to comply with Sitz or other rules may invalidate a checkpoint. For a free consultation with an experienced MN DWI lawyer, contact Carlson & Jones, P.A. We have a number of offices throughout the state.

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.

Five Possible Ways to Beat a Minnesota DWI Case

The fines, probation, licenses suspension, and other direct consequences of a first DWI are bad enough. The indirect consequences, such as higher insurance rates and the ramifications of a criminal record, could be even worse. Altogether, a DWI costs over $10,000.

Truth be told, many of these cases are difficult to defend. In some situations, the conviction rate can be over 80 percent. But Minnesota DWI lawyers know how to use procedural irregularities to suppress damaging evidence at trial. Moreover, these cases have lots of moving parts. Some of the more prominent ones are outlined below.


In many Minnesota DWI cases, intoxication is basically the only issue. Under Minnesota law, that intoxication could be because of any combination of drugs in the defendant’s system. Alcohol is almost always the only substance. But various other legal and illegal drugs, perhaps even substances like caffeine, could also trigger a DWI arrest.

To establish this vital element, prosecutors may use several types of evidence. The most common types are:

  • Chemical Test: If the driver provides a breath or blood sample and the sample indicates a Blood Alcohol Content of over .08, the defendant is intoxicated as a matter of law. Even if the defendant “passes” the Breathalyzer or other test, police officers can (and almost always do) file charges, based on the other types of evidence available.
  • Field Sobriety Tests: Exercises like the walk-and-turn (heel-to-toe walk) and the one-leg stand measure the defendant’s mental and physical abilities. If either is substantially impaired, a jury may conclude that the defendant was intoxicated. A third FST, the horizontal gaze nystagmus, is more of a medical test.
  • Statements: “I only had a couple of beers” and “I just came from a bar” are two of the most damaging statements that a defendant can make. Such evidence may also be indirect. For example, if the defendant refuses to provide a chemical sample, that refusal is usually admissible at trial.

The burden of proof (beyond a reasonable doubt) is very high in these cases. So, lack of credible evidence is often the best defense that Minnesota DWI lawyers can use. For example, if the defendant admits to prior drinking, such evidence only establishes consumption. Or, a jury may well conclude that the defendant “passed” the FSTs even though the officer claims the defendant “failed” the test.


In plain English, driving simply means being behind the wheel and controlling the motor vehicle. In traffic stop cases, this element is easy to establish. The officer sees the defendant driving the car, and the defendant is behind the wheel when the officer approaches the car and identifies the driver.

But in other cases, this element is not so straightforward. Minnesota DWI lawyers handle many collision cases, and these are a good example. In a nonserious injury case, the defendant has usually exited the vehicle by the time first responders arrive. Since the officer or other responder did not see the defendant behind the wheel, that person cannot testify that the defendant was also the driver. In cases like these, the prosecutor must produce an additional witness who saw the defendant driving the car. That’s not always easy to do.

Of course, if the defendant admits to driving or makes a similar statement, such a witness is not necessary.


The “operating a motor vehicle” element is very broadly defined. According to the underlying court cases and the Minnesota DWI lawyers who prosecute these cases, operating really means “controlling” the vehicle.

Assume officers encounter a drunk person in a parked car. Even though the car is not in motion, the defendant was probably “operating” the vehicle for purposes of the statute. The prosecutor’s case is even stronger if the defendant had the keys. If the defendant did not have the keys or the car was inoperable for some reason, the prosecutor’s case is much weaker on this point.

Public Place

Any street, highway, or alley is a public place. A driveway or parking lot is not a public place, even though people turn around in other people’s driveways and anyone can drive to Walmart.

Motor Vehicle

Basically, any powered vehicle is a “motor vehicle.” That includes motorboats, Segways, riding lawnmowers, golf carts, powered wheelchairs, and so on. Boats and some other vehicles, like airplanes and helicopters, may be covered by different statutes.

Unpowered vehicles are another matter. Bicycles, skateboards, and so on are not motor vehicles in the Gopher State. Minnesota DWI lawyers could use a similar argument in cases involving something like a canoe, sailboat, or kayak. In the Land of 1,000 Lakes, such cases come up more often than you may think.

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

There are a number of ways to defend DWI and related cases. For a free consultation with an experienced criminal defense attorney in Minnesota, contact Carlson & Jones, P.A. We have four offices in the state.

How Do Brainerd Lawyers Fight DWI’s?

Drinking-and-driving infractions are quite common in semi-rural areas like Crow Wing County. In some jurisdictions, as many as half the probationers were convicted of DWI. Due to the high volume, many Brainerd Lawyers automatically try to arrange plea bargains in these cases. Especially if the defendant took a chemical test, which most do, these attorneys believe that the state’s evidence is just too overwhelming.

However, that’s not always the case. Even if the defendant provided a chemical sample, it’s possible to fight a DWI charge and win.

What is at Stake?

Even if you are convicted of a first-time DWI, you may some jail time. You will almost certainly serve a lengthy period of probation. But those are not the biggest consequences of a DWI.

One major effect is possible drivers’ license suspension. In a place like Brainerd that has very little public transportation, a drivers’ license is practically a necessity. There may be no other way to run necessary errands, get to and from work, and get the kids to and from school. A first DWI could mean up to a one-year suspension.

Higher insurance rates are the second major consequence. These costs are usually the biggest ones, by far, in a DWI. Many people may see their rates increase by as much as 90 percent. Their rates usually stay that high for at least three years.

Attacking the FSTs

The Field Sobriety Tests almost always provide probable cause for the arrest. Legally, if the officer did not have probable cause, the arrest is invalid and so is the prosecution. If the defendant did not provide a chemical sample, and about one in five do not, the FSTs also serve as evidence of intoxication at trial.

So, it’s important to undermine the FSTs to the greatest extent possible. At Carlson & Jones, our Brainerd lawyers use proven methods to do just that.

  • Horizontal Gaze Nystagmus: In the HGN test, defendants must track moving objects with their eyes without moving their heads. If there are involuntary pupil movements at certain angles, the person probably has nystagmus. One problem with the HGN DWI test is that it often takes place at night while overhead squad car lights flash in the defendant’s face. Another problem is that alcohol is not the leading cause of nystagmus. In fact, it’s not even close to the leading cause of nystagmus.
  • Walk and Turn: For the heel-to-toe walk test, defendants must walk a straight line heel-to-toe then walk back the same way. Officers are supposed to give defendants the opportunity to remove high-heel shoes and account for various disabilities, but they don’t always do those things. Furthermore, it is almost impossible for anyone, drunk or sober, to walk an imaginary line in the dark heel-to-toe.
  • One Leg Stand: Much like the WAT, the OLS is a divided attention test that measures both physical and mental ability. Also like the WAT, officers often testify that the defendant “failed” the test based on a technicality like lifting the leg at a slightly-incorrect angle.

Some peace officers in Brainerd also use unapproved FSTs, like reciting the ABCs or the finger-to-nose test. But these tests are usually either inadmissible or only admissible for limited purposes.

How Brainerd DWI Lawyers Challenge Chemical Tests

If the defendant provides a chemical sample, it is nearly always a breath sample. Per a recent Supreme Court decision, officers must obtain search warrants to perform blood tests. Except in rare cases, they usually do not take that extra step.

Today’s Breathalyzer is a small device that looks very high-tech. But on the inside, it is basically the same gadget as the Drunk-O-Meter which appeared in the 1950s. So, the Breathalyzer suffers from some of the same flaws, including:

  • Acetone Levels: Diabetics, smokers, and many other individuals have high levels of these particles in their bodies. The Breathalyzer reads them as ethanol. So, the reading may be artificially high.
  • Mouth Alcohol: The law was once very strict about a fifteen-minute monitoring period. That’s no longer the case. Ironically, however, the change may benefit Brainerd DWI Lawyers and their clients. With no one to monitor the defendant, there may be no way to prove that the defendant did not burp or belch prior to the test. Such activity releases mouth alcohol which skews the results.
  • Unabsorbed Alcohol: If the defendant has been drinking in the past hour or so, the kidneys have not yet absorbed the alcohol into the bloodstream. Once again, the results may be artificially high.

These flaws are especially important in borderline BAC cases, such as a .08 or .09. Basically, the Breathalyzer measures breath alcohol and uses that value to estimate the person’s blood alcohol level. Many people do not understand that there is an extra step involved, so Brainerd lawyers must educate jurors without talking down to them.

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

The anti-DUI fight is a winnable fight. For a free consultation with experienced Brainerd Lawyers, contact Carlson & Jones. We routinely handle cases in Crow Wing County and nearby jurisdictions.


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