Category Archives: DWI Right to Counsel

How to Avoid a Marijuana Arrest in a Car in Minnesota: Top Nine Tips

The other day I was talking to a prosecutor.  I told him that we needed to keep client’s public record clean.  We don’t want words like “marijuana,” “drug paraphernalia,” and “criminal conviction” there.  And he mischievously said, “You know how he could avoid all that, don’t you?  Don’t get caught. He was joking, but like many jokes there was some truth in it.  So, how can you avoid a marijuana arrest in a car?

Safety in the final days of Prohibition

Avoid a marijuana arrest: do not consent to any search

Avoid a marijuana arrest: do not consent to any search

As of this writing, ten states have legal marijuana for responsible use by adults 21 years and older.  And, most of the U.S. population now lives in a state with legal medical marijuana, including Minnesota.  And hemp is now legal in Minnesota.  Today in Minnesota, not all marijuana is illegal to possess.

We should all know by now that marijuana is safer than alcohol.  After all, there is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.

But in Minnesota in 2019 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.  We should re-legalize in Minnesota.  And here is What Marijuana Legalization Should Look like in Minnesota.

In the meantime, know your rights.  And watch your six!

What can you do to reduce the chance of getting caught? Here are nine tips for avoiding a marijuana arrest in a car:

1. Situational awareness

Guess where the vast majority of police contacts with people happen?  Correct – in or near a motor vehicle.  As a result, the best way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.

Complacency can set in.  If it hasn’t happened yet, it never will.  Right?

Be smart.  Play the long game.  If a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.

There will be a traffic stop.  And when it does happen; marijuana should not be in the car.

Minnesota:  If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, she:

  • keeps it under the “small amount” 42.5 grams, plant-form only (not concentrates), but
  • always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).

Beware: a “small amount” of marijuana concentrates such as THC oil, dabs, marijuana wax, is always a crime under a loophole in Minnesota’s decrim law.  And over 1/4 gram of the resinous form of marijuana is a felony in Minnesota under that technicality.

The number one way to avoid a marijuana arrest in a car is: don’t have it the car.

2.  Odor

The most common excuse police officers use as probable cause to search after a traffic stop is “odor of marijuana.” The odor can be either fresh or burned.  But this is prone to abuse by police officers since it’s impossible to verify.

Even so, avoid having the odor of marijuana either on your person or in your car.

And, if the odor of marijuana is there, be sure not to have any actual marijuana in your car.

Have you or anyone you know experienced “nose blindness?”  A cigarette smoker may not be able to smell the odor of past cigarette use on another.  And a person who has been drinking alcohol– can’t smell the odor of alcohol on another person.  But non-users can smell it, right off.

Assume that if you’ve been smoking it that day, there is odor.  If it’s been smoked in the car, the odor is probably lingering in the car for a day or more.  (Tip: don’t ever smoke in the car.)

The second way to avoid a marijuana arrest in a car is: don’t smoke in the car. Don’t have fresh in the car.  And avoid any odor in the car.

3.  Consent? 

“No, officer, I do not consent to a search.”

Remember Paul Simon’s song “50 ways to leave your lover?”  Similarly, there are at least fifty ways to tell a police officer that you do not consent to any searches.

“I’m late, for a very important date.”

“Officer, am I being detained? I’m late, for a very important date.”

Make an excuse if you like: “I’m late, for a very important date.”  But no excuse is necessary.  You should not offer any justification for refusing a search.

Be confident and politely insist. After all, it’s your legal right to be secure from searches and seizures, unless they have a search warrant or an exception to the warrant requirement.  That’s the Fourth Amendment.

The rape metaphor:  One of those exceptions is a consent search.  Police often ask people “do you mind if I search”?  The correct answer is, “I do not want to be searched.”  And if police coerce you into “consent to a search,” is that really consent?

Change it to sex.  If someone coerces you into sex, did you consent?  Your lawyer may need to make that argument.  Far better if you resist all coercion, and do not consent.

If you do consent to a search, you’ve waived your right to object to it later.  Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.

The third way to avoid a marijuana arrest in a car is: do not consent to any search.

4.  You can do both

Don’t lie and don’t admit. How?

Remain silent.  Or if words do come out of your mouth make sure that they are:

  • not lies, and
  • do not relate to illegality.

More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car, often then telling the police where it is.  Wrong answer!

Instead, remain silent – meaning you do not produce words.  Tightening your lips may help your resolve.  If you do say something, change the subject.  And avoid talking about whether there is marijuana in the car or not.  And again, do not consent to a search.

Police will try to make you think: “Busted.  The jig is up. May as well come clean now.  Give up.  You cannot win at this point.”

But don’t believe that for a minute!  Be ready for that trick.  Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.

The fourth way to avoid a marijuana arrest in a car is: avoid talking to police.

5.  Unlawfully prolonged detention

“Am I free to leave?”  Police stop you for a headlight out.  Normally it takes ten minutes to complete the stop.  Then they hand you the ticket, and walk away.  The government intrusion upon your liberty is over.  And you are “free to leave.”

Now, let’s change the scenario.  Police stop you for something normally resulting in a traffic ticket in ten minutes.  But this time the officer prolongs the detention.  Is that legal?

The courts apply a “totality of the circumstances” balancing test.  Courts balance the intrusion upon your Liberty, against the reasonable suspicion of criminal activity.

Avoid a marijuana arrest: "Officer, am I free to go?"

Avoid a marijuana arrest: “Officer, am I free to go?”

But one factor is: “did the person acquiesce to the detention?  Did the person communicate a desire to leave?

Police may say in court that “at that point, the person was free to leave; the prolonged time was consensual.”  If believed, then the prolonged detention needs less justification; fewer facts supporting a reasonable suspicion of criminal activity.

Since “Fleeing a police officer” is a crime, whether police are detaining should be a simple black and white question.  Either you are “free to leave,” or not.

It’s best to make a record.  Ask: Officer am I free to go? And do it more than once.  Say it loud and clear, for the camera.  If you’re asking, you’re winning.

This will help your lawyer challenge the legality of the prolonged detention, search and arrest later.

Or, just start slowly walking away, to force the police officer to tell you to stop.  (Yes, you can walk away from a car stop even if you’re the driver.)

The fifth way to avoid a marijuana arrest in a car is: if you’ve been detained for a while, ask “officer, am I free to go?” Repeat as necessary.

6.  “You have the right to remain silent.”

Button your lip: Remain silent

Button your lip: Remain silent

When you hear that, that is your cue to – what?  It’s your cue to stop forming words and allowing them to escape your mouth!

It’s best to say nothing.  But if you want to say anything:  “Officer, I am not a lawyer or a police officer. I need to assert my legal right to remain silent, and to consult legal counsel before talking.”  Repeat as necessary.

No matter what they do or say, they cannot require you to speak.  So don’t.

But follow physical police commands to:

  • show your hands,
  • lie down,
  • hands behind your back,
  • stand over there. 

Again, however, do not speak.

The sixth way to avoid a marijuana arrest in a car: do not talk about marijuana, smoking, if you have any, where it is, anything at all.

7.  Field Exercises

Sometimes police want to build a case for marijuana impaired driving.  They ask you to perform “Field Sobriety Tests.”

But these are not scientifically valid.  And their purpose is to incriminate.  Even completely sober people have a difficult time “passing” them.  If you do them, you will fail.  If you don’t, you won’t.

What to do?  Don’t! 

Police cannot legally require you to do these field exercises.  They include the “Nine-step walk and turn,” “One leg stand,” “Horizontal Gaze Nystagmus” eye test.  So, you can and should refuse to do any of these.

When you do, the police officer may invite an excuse.  But don’t take that bait!

Any excuse could be incriminating.  Instead say: Officer, I am aware of my legal rights.  And I respectfully choose not to do any field exercises or tests.”  Police will ask you again and again.  So just keep repeating that you choose not to do them – no excuses.  (Who cares if you have one leg! That’s beside the point.)  It’s your legal right.

Important:  (If the police officer has a factual basis to suspect impaired driving, she can request that you blow into a Preliminary Breath Test (PBT) machine.  And if you refuse, she can arrest you for that refusal.)

The seventh tip for avoiding a marijuana arrest in a car is: politely decline any request to perform Field Sobriety Tests.

8.  Smile, you’re being recorded

From the traffic stop, to sitting in a squad car, to the police station, assume that you are being recorded.

This recording may later hurt you, or help you.  And even when alone or with another person in the back of a police car, this is recorded.  The recording is on, even when no police officer is in the car.  Heads up!

Phone calls from jail are recorded for later use as evidence.  Be aware of this.  Avoid talking about the case in any of these contexts.

The eight tip for avoiding a marijuana arrest in a car is: be camera aware.

9.  Keep your cool

If arrested, hitting the panic button will only make it worse.  Police may try to exploit your trauma and emotional upset.  So remain calm, cool, collected.

You can win the long game, by playing defense in the short game.  You or someone on the outside can help you contact a Minnesota criminal defense lawyer and if need be, a bail bond agent.  And most people will be able to get out within a few days or less.

The ninth and final tip for avoiding a marijuana arrest in a car is: don’t let them push your buttons.  Keep your cool.  Quiet confidence wins.

Liberty-Lawyer.com logo sm wideThomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.  In his spare time, he works on legalizing marijuana as a Board Member of Minnesota NORML.

Have a comment?  You are welcome to leave comments and responses below.

Countermeasures at a DWI Stop: the Party Question

Is it a crime to drink and drive? Of course it is not.  But there are people out there – like MADD people – who appear hellbent upon changing the laws to bring back the Alcohol Prohibition, one step at a time.

It used to be “drunk driving” was a crime. Then in the 1970s the criminal laws were expanded to include “per se impaired driving laws.”   Per se roughly translates from the Latin to “the thing itself” or “by itself.”

A per se drunk driving law is a law that makes driving with an arbitrary alcohol-level a crime – even if the driver is not drunk, not impaired at all.

That’s why you don’t hear the term “drunk driving” much anymore.  But why should it be a crime to drive when driving skills are not impaired?

Ok.  So the laws are unfair, and morally bankrupt – punishing the innocent and their families for no good purpose.  Fine.  There it is.  So how can you protect yourself and your family from this potential injustice?

What can a person do during a DWI stop to protect their rights?

This is mostly a question that criminal defense lawyers hear at a party.  Why?  Because almost all people stopped and later charged with DWI didn’t do any of these things.  But it can make for great conversation at a party.  There are a few different approaches and answers to the question.  So let’s narrow our hypothetical, and provide one.

Since most people stopped for a possible DWI have an alcohol concentration of less than 0.15, have no priors, and have not exhibited impaired driving conduct – let’s start with all of those assumptions, as well as assuming Minnesota laws.

Given the low speed limits these days and the most drivers travel faster than the speed limit most of the time, let’s assume a police officer stops the driver for speeding late one Friday or Saturday.   The police squad car take-down lights are visible in the rear-view mirror.  Now what?

The Police Officer Approaches the Vehicle

Police are trained to observe all of your actions and note any that could be interpreted as supportive of suspicion of impairment (and ignore the rest).  At this phase these include:

  • odor of alcohol
  • eyes – “bloodshot, watery”
  • couldn’t find or fumbled with driver’s license and insurance card
  • admitted drinking, coming from a bar, a party

What are some potentially effective countermeasures, then? If the window is not open, or open about an inch or so – that is plenty to pass the drivers license and insurance card through, but not enough to expose the odor of alcohol.  You can refuse to lower the window to force the officer to make a command to do so, making it difficult for them to argue you did so voluntarily.

When speaking to the police officer through the almost closed window, the driver can avoid eye contact.  This prevents the officer from being able to observe the cliché “bloodshot watery eyes” they imagine come only with drinking.

It’s a good idea to have the drivers license and insurance card in hand immediately after stopping, well before the police officer walks up to the vehicle to request those.  They are in your hands already, which are in plain sight on the steering wheel.

If asked “have you been drinking tonight?” you are not required to answer or answer responsively.  It is a bad idea to lie, for many reasons, so don’t.  It is also a bad idea to admit facts the officer can use to build “probable cause” to ask you out of the car, or for arrest later.

If you were stopped for speeding, the police officer should just write you a speeding ticket and send you on your way – unless you give him or her probable cause or reasonable suspicion to justify asking you out of your vehicle.

Police ask you to step out of the car.  Now what?

If you use the car or car door for support when getting out or walking, they will note that as suspicious.  So don’t.  They will ask you to walk behind your car, in front of theirs.  Their squad car lights will be on full brightness.

They will ask you to perform field exercises they like to call Field Sobriety Tests.”  These are not scientifically valid, though the government claims otherwise.  Sober, trained police officers “fail” these “tests.”  So how will you “pass” them?  And who is your judge?  The police officer!

What to do then?

Do not perform field exercises when asked to do so.  

Do not do “Field Sobriety Tests!”  Common ones include:

  • Nine step walk and turn
  • One leg stand
  • Recite the alphabet, backwards etc.
  • Horizontal Gaze Nystagmus (follow the pen or finger with eyes only, without moving head)
  • Walk a straight line

You cannot be required by law to do any of these. It would be a foolish mistake to willingly do any of them. 

“Why won’t you do them?”  “A lawyer told me that I don’t need to, and shouldn’t.”

“Preliminary Breath Test” (PBT)

Minnesota statutes authorize police officers to ask a driver to blow into a PBT machine – a portable breath-alcohol machine.  But the law requires certain conditions, where there is a basis to suspect DWI or selected other alcohol-related offenses.  Don’t worry about whether those preconditions exist at this point.  Your lawyer can do that later if need be.

What is important is that a PBT machine report of 0.08 or more can provide probable cause to arrest for DWI, and so can “refusal” to perform a PBT. Refusing a PBT is not a crime.  That would only provide probable cause to arrest.

“Should I refuse the PBT?”

One can imagine a logical person, knowing that, deciding to refuse the PBT if they felt sure they would end up with a PBT report of well over .08, for example .16 or more.  That person might feel they would have nothing to lose by refusing – since they would be arrested either way.

Compare that to a person who believed they would get a PBT report of less than 0.08.  That person would be foolish to refuse it, since it could result in their not being arrested.

Keep in mind that the little PBT machine on the side of the road, is not the same as the big, evidentiary breath test machine at the police station.

If a person is arrested for DWI, they can be asked to submit a sample for alcohol testing again, even though they already submitted to a PBT.  The PBT report is not admissible in a criminal DWI trial because they are deemed too unreliable and inaccurate for that purpose by the legislature.

If arrested, then what?

Every step further in the chain of events described above brings the driver closer to arrest (unless the PBT is less than 0.08).   If the PBT reads too high, that and the rest will be followed typically with handcuffs and the back of the squad car.  Then normally the arresting officer will wait for back up or a tow truck, and leave for the police station once either arrives.  Talking is not a good idea at any point, including while in the squad car.

At or near the police station (or hospital for a blood draw), the police normally read “the Minnesota Implied Consent Advisory” which informs the driver of certain legal rights.

The most important is your right to consult a lawyer before deciding whether to submit to chemical testing.

Pre-test Right to Legal Counsel

It is always, always, always – best to call a lawyer first!  The police are required by law to help you do so.  If they fail to help you call a lawyer, the chemical test could be suppressed from evidence.  You should always make every effort to call a lawyer in this situation – even if you are still sitting in the squad car in handcuffs!  Tell the officer you want to call a lawyer.   This part is usually recorded – a good thing.

Right to an Additional Test

The other important right is secret in the sense that it is never mentioned in the “Implied Consent Advisory” by the cop.  what is it?  It is your Constitutional right to exculpatory evidence, as manifested in your statutory right to an “Additional Test.”  Say what?

You have the legal right in Minnesota to a Second Test, after the you provide the sample requested by police.

Liberty-Lawyer.com logo sm wideIn this situation, the arrested person should always, always, always request an Additional Test.  If you do, the police are only required to give you a phone to use.  You can use the phone to call whoever you need to call to arrange for an additional test.  See the midnight DWI jail call to a Minnesota lawyer blog post for more on this issue.

Stay safe out there.

By: Thomas C Gallagher, Minneapolis DWI Defense Lawyer.

The Midnight DWI Jail Call to a Minnesota Lawyer

phoneIn Minnesota, a person arrested on a police officer’s suspicion of DWI has the legal right to consult a lawyer prior to responding to a request by police to consent to chemical testing.  A problem often arises due to the fact that most of these situations happen in the late night or early morning hours when most people – and most lawyers – are asleep.  Most people who find themselves in this unwelcome circumstance never believed they would be, and may not know a criminal lawyer or DWI defense lawyer to call.

Sometimes they call any Minnesota lawyer they can think of, even though they might not be a criminal lawyer, or DWI defense attorney.  This article is intended to help that lawyer.

If possible, refer the caller to a DWI defense attorney to call.  If that does not work, they should call you back.  Here are some basics for the Minnesota lawyer who does not regularly practice DWI defense.

Understand that the purpose of the phone consultation is to help the caller navigate the legal threats presented by the most lengthy and complex set of criminal laws – the DWI laws in Minnesota Statutes Chapter 169A.

Here is a list:

1.  “Was there a collision or accident?”

If no, go to the next question.  If yes, “do you know if anyone was injured?” and “where are you calling from?”  If there was an alcohol-related injury motor vehicle accident, then the caller may be at risk of a felony Criminal Vehicular Operation (or Criminal Vehicular Homicide) charge.  If that is the case, they may be better off refusing to consent to provide a sample for chemical testing.

There is currently in Minnesota, however, a statute defining such a refusal to consent to such a search – a crime, the crime of “Refusal to Submit to Chemical Testing.”  Though this statute seems unconstitutional, in that it makes a crime out of a refusal to consent to a warrantless search, so far the Minnesota Appellate Courts have upheld it.

As a result, the lawyer should exercise caution, and avoid directly advising the caller in such a situation (likely felony CVO) to “refuse” to consent.

Rather, a Minnesota lawyer can safely advise the caller that “Since refusal is a crime, I can’t advise you to refuse.  A lawyer is prohibited from advising a person to commit a crime.  However a lawyer also has a duty of loyalty to the client, and to explain the legal consequences of your actions.  If you submit a sample for chemical testing that may make it easier for the state to convict you of a felony crime.  If you do not consent to giving a sample that may make it more difficult for them to do so, but could also be used to charge with a gross misdemeanor crime of ‘Refusal.’

The question “where are you now,” is intended to discover whether they are at a police station or a hospital.

2.  If you provide a sample, tell the police that you want an additional test.

In Minnesota, a person who consents to a body search by submitting a sample for chemical testing  after a DWI arrest, has the legal right to an “additional test.”  This should always be done, whenever the breath test machine report is 0.08 or more, or when a blood or urine sample is collected.

Minnesota Statutes Section 169A.51, subd. 7 (b):  The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state. The failure or inability to obtain an additional test or tests by a person does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.

Though this right is statutory, it is also a way to protect the state’s chemical testing scheme from constitutional challenges for violation of the accused’s right to exculpatory evidence and the state’s duty to preserve it, as in the Trombetta case.

How can a person get an Additional Test (as the statute calls it)?  The time-honored method was to get someone to come down to the jail with a clean jar, and collect a urine sample, with the best attention to chain of custody issues, to be refrigerated and tested quickly.

Today, the better method in Minnesota is to call Additional Testing, Inc. – a local company that employs contract nurses to go out to jails, properly collect samples, preserve them, and submit them to a lab for chemical testing, with good chain of custody.  If the evidence is exculpatory, they can testify in court as well.

The Additional Testing Right has been held to only require police to allow an in custody person the use of a phone (again) to arrange an Additional Test.  I recommend calling Additional Testing, Inc.:  24-hour Dispatcher:  Phone: (612) 333-3226 or Toll Free: (877) 333-3226.

3.  “Is the police officer requesting a breath, blood, or urine sample?”

In Minnesota, the police officer may request any of these but if they request blood, the person cannot be deemed a “Refusal” unless the police officer then requests a urine sample which is then also refused.  Similarly, if urine is requested, the person cannot be deemed a “Refusal” unless the police officer then requests a blood sample which is then also refused.

Minnesota Statutes Section 169A.51, subd. 3:  Type of test.  The peace officer who requires a test pursuant to this section may direct whether the test is of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.

This is called the “Alternative Test Right.”  It only applies to blood and urine requests.

4.  “Were you involved in a motor vehicle accident?  Was anyone injured?”

Most callers will (a) not have been in a motor vehicle accident, will (b) have no priors, and (c) won’t submit samples that will be claimed to be 0.16 or more alcohol concentration.  These callers will be better off consenting to the search, after consulting a Minnesota lawyer.  Callers not involved in a collision, with priors or 0.16 or more BAC will usually be better off consenting to providing a sample for testing.  The exceptions to that general statement are unusual and beyond the scope of this Legal First Aid article.

5.  Avoid answering questions about drinking, driving, etc.

After the samples for chemical testing are taken, or the claimed “refusal” is done, police officers normally will read a Miranda Warning and ask questions from an “Alcohol Influence Report” form; then write down and audio record the answers.  Callers should be advised to remain silent, and decline to answer any questions.  (The questions relate to drinking, feeling impaired, origin and destination, etc.)

Liberty-Lawyer.com logo sm wideThe author, Thomas Gallagher is a Minneapolis DWI Defense Lawyer with three decades experience helping people facing DWI charges and license revocations, with a strong win rate.

He is a frequent lecturer on DWI defense law to lawyers, police and judges.  Other lawyers seek his insights on their cases often.  Now, you can call him for help or with a question if you like.  Phone: 612 333-1500.