Category Archives: Search and Seizure Law

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.

Underage Consumption > Can a Minor Refuse a Breath Test in Minnesota?

What are the most important underage drinking laws in Minnesota?  Can police force a minor consumption suspect to blow into a breath test machine?  The three biggest legal problems for those underage are:  (1) underage consumption; (2) minor in possession of alcohol; and, (3) underage drinking and driving (“not a drop”)

Underage drinking and driving

Minnesota underage drinking laws: Can a minor consumption suspect refuse a breath test?

Minnesota underage drinking laws: Can a minor consumption suspect refuse a breath test?

The most important of the underage drinking laws is the “not a drop” underage drink and drive law.

If a person is driving a motor vehicle in Minnesota, a police officer can invoke legal authority under a Minnesota Statute to demand a breath sample for a Portable (or Preliminary) Breath Test (“PBT”) machine.

If the driver refuses, the statute then authorizes arrest for suspicion of DWI.

What about drivers under age 21?  Under 21, any alcohol consumption and driving is a crime.  It’s a crime in Minnesota even without impairment, even below the legal limit for adults.

Minor Consumption (not driving or in a car)  

What about the person under 21 years of age, who is not driving or anywhere near a motor vehicle?  

There are no underage drinking laws that require that young person to provide a breath sample, away from a car. 

An odor of an alcoholic beverage does not allow police to require a breath test.  This is true when walking down the street, or at a house party.

Police cannot require a breath test

A young person in this position can simply refuse to consent to such a search.  Refusal to blow into a PBT does not allow police to arrest a pedestrian (unlike some drivers).  Underage drinking laws don’t give police legal authority to demand a breath test.

The Minnesota DWI Statute on Preliminary Screening Tests does authorize use of these in underage consumption cases in court.  But it does not authorize police to “require” a breath sample for a PBT where the person has no connection to a motor vehicle.

A recent case in Michigan illustrates some of the key points.  Troy v Chowdhury, Michigan Court of Appeals, September 10, 2009.  The City of Troy had enacted an ordinance to allow police to force consent to breath testing of minors.

The court struck down the underage drinking law as unconstitutional.  There, police did not claim to have consent from the accused, nor did they have a search warrant.  The court also confirms the obvious – when police take a breath sample that is a search.

Don’t “consent” to a pedestrian breath test

Under the Fourth Amendment of the U.S. Constitution, police must have a search warrant, or a recognized exception to the warrant requirement.

Consent can be an exception.  If police coerce “consent,” then it is not consent.  But be sure to avoid any consent.  And ideally say “I do not consent!”

I know of no Minnesota statute or local ordinance that gives police authority to “require” a breath sample for alcohol testing (unless in connection with a carry weapon permit or motor vehicles). 

Police will often seek actual consent.  Or police try to coerce “consent.”  If police request a breath test, you do not have to consent to the search or provide a breath sample.

The police and local prosecutors can still charge underage consumption crimes without PBT evidence, based upon other available evidence.  (The most damning are verbal admissions by the accused.)

Regardless, you’ll have a stronger defense if you refuse to blow, and refuse to talk.

Minor in possession of alcohol

Know your rights: minor in possession, minor consumption

Know your rights: minor in possession, minor consumption

A related legal problem for people under 21 is a Minor in Possession charge.

Now that Minnesota’s underage drinking laws set the drinking age at 21, it’s really a underage possession of alcohol charge.  Since a “minor” becomes an adult at age 18, that is a more accurate name.

Defenses to a minor in possession charge includes those for any kind of criminal possession charge.  What evidence does the government have of “possession?”

Most police contacts happen with drivers and motor vehicles.  Therefore keeping contraband, including alcohol, out of the car is a basic precaution.  If in a car, at least in the trunk police won’t see it “in plain sight.”  And of course, the Open Bottle law applies to underage people just as must as to adults.

For pedestrians, defensive measures include refusing any breath test, and avoiding talking about it at all.

Other potential legal problems

Other associated problems include the crimes of giving false information or identity to police, and less often, fleeing.  No Minnesota law that requires a person to identify themselves to police, with few exceptions.  Exceptions include driving, hunting, carry permit, etc. 

If a person is not driving, they need not carry a drivers license or other ID.

But avoid giving a false identity to police, which is a worse crime than underage drinking, in the eyes of most.

If a police officer tells you to stop, fleeing is a crime in Minnesota, whether in a vehicle or otherwise.  And it’s a more serious crime than minor consumption, minor in possession, or other violations of underage drinking laws.

Asserting your legal rights

You need to stick up for yourself and assert your rights.  What is a legal right?  It’s yours.  It belongs to you.  But like anything that belongs to you, you can throw it away.  You can give it up, or give it away foolishly.  Don’t do that.

Get your back up.  Assert your rights.  If you can’t do it with inner confidence, at least look confident about it.

Next, as long as you remember to assert your rights fully, you will have them.  And you can do so politely.  In fact, if you assert your rights in a polite but firm way, you’ll appear more confident.

Know your rights.  And protect yourself from police and the government.

In general, police cannot compel a person suspected of a crime to talk or provide information.  And police cannot force a person to consent to a search.  You should avoid doing either.  However, any information you do provide should be truthful.  Tip: you can’t lie if you say nothing. 

Liberty-Lawyer.com logo sm wideWhen in doubt, seek legal advice from a lawyer before making a statement or consenting to a search.

Author: Thomas Gallagher Minneapolis Criminal Lawyer

Minneapolis police investigate MyFastPass.com

According to recent news reports on press releases from Minneapolis police; local and federal law enforcement have arrested at least one suspect and executed search warrants – yielding a database of subscribers to My Fast Pass, apparently in connection with claimed criminal prostitution. An interesting twist in this case, police have publicly declared:

“As part of our ongoing criminal investigation, it is our intention to have face to face contact with people on this list, to include men and women. If you feel it is in your best interest to have input into the time and place of this meeting you can email [minneapolis police].”

I guess you can’t blame a fellow for trying, right?  One must wonder though – what kind of person (in that database) would find it in their best interest to set up an appointment for a police interrogation?  Why help the government take you down?

BillofRightsMost everyone realizes their sacred Constitutional right to silence in the face of police questioning, and their right to have a lawyer present from television and movies.  Unfortunately, many of those entertainments show the fictional suspect waiving their rights, to quickly commit legal suicide – but it does help move the story along, doesn’t it?

Too few movies and television stories show the innocent bullied or tricked into confessing or admitting facts by trained police officers. Criminal defense lawyers generally advise people suspected by police to (a) remain silent; (b) do not consent to any search of person or property; and (c) consult and retain a good criminal lawyer as soon as possible. In pre-charge, investigatory cases, an ounce or prevention is worth much more than a pound of cure.

For further information, see our page: Prostitution Laws in Minnesota

(Note: This was originally posted on another of the author’s blogs on June 20, 2009 – moved to here, deleted there.)

Avoiding Traffic Stops – Minnesota Laws 2009

Another year, another truckload of new laws – the usual, right?  How does that affect you?  For the most part, hopefully it doesn’t.

But when you consider the fact that most criminal law problems – large and small – start as vehicle traffic stops; it pays to be aware of new laws allowing police to stop you.  Some of these went into effect June, July and some August 1, 2009.  All represent an expansion of government power and a reduction of your liberty and freedom.

 Do you remember several years ago when advocates of another law to mandate seat-belt use upon penalty of a petty misdemeanor fine, reassured us “don’t worry, we will never ask for a primary seat belt law;”  How long is “never,” again?  Not that long, it seems.

It starts with a traffic stop...

It starts with a traffic stop…

Police now can stop you for merely not wearing a Seat-belt in Minnesota.  A “primary violation” seat belt law gives police the legal right to stop a vehicle if someone in the vehicle appears to not wear a seat belt.  The previous version of the seat belt law did not allow traffic stops solely for the appearance of not wearing a seat belt.  This year’s law does.  The law eliminates personal choice, and personal responsibility.  It hands over more responsibility and more power to the government, taking it away from the individual.  It reduces the need for people to educate themselves, be responsible for themselves, and develop a personal moral code.  It reduces your freedom.  As usual, they claim sacrificing your freedom is worth it – for your own good.

The new “primary” seat belt violation law increases the potential for stops and arrests resulting from racial profiling.  Racial profiling is a real problem – difficult to solve.  Though police generally don’t view themselves as racist (few people do), they are no different from the rest of us, and are no more perfect in relation to racial stereotyping and its effects.  We know that when it comes to race, there is a disparate impact upon people identifiable as part of a racial minority group that can only be explained by race.  Creating more opportunities for police to stop people for petty, technical violations inevitably leads a worsening of the racial profiling problem.

Social control by force – by law enforcement – is corrosive to our culture and our youth.  Why learn responsibility as an individual if the government allows you little of it, and controls ever smaller aspects of your life – year after year, law after law?  This seat belt law gives law enforcement yet another reason to pull someone over, and to find another, bigger reason to interfere with your life.

Expansion of Child Seat law.

Under the new law, children in a motor vehicle must now be in a child passenger restraint system until their eighth birthday or they reach 4 feet 9 inches tall.  Of course, this is yet another reason for police to stop you if it appears you might be in violation of this.

Global Positioning Systems on Windshield .

Global Positioning Systems (GPS) can now lawfully be mounted or located near the bottom-most part of a vehicle’s windshield.  Previously, anything mounted on the front or rear windshield put the driver at risk of a traffic stop by police.  The “obstructed windshield” statute, used by police to justify such traffic stops, does have some language about obstruction to the drivers view – yet, it gave police the legal excuse to stop someone if there was anything on the windshield, or between the windshield and the driver.  These have included RADAR detectors (otherwise legal), notepads stuck to the windshield, air fresheners or other items hanging from the rearview mirror, and the like – in addition to GPS units mounted to the windshield.  At least now there is an exception for GPS units mounted to the lowest portion of the windshield.  Presumably in that location, the driver’s view will not be impeded.

What about a RADAR detector?  Prudence might argue for a newer RADAR detector with a GPS unit incorporated in the same unit.  That – or don’t mount it to the windshield.  (See, Speeding Laws in Minnesota for a discussion of MN speed law and defense.)

Tips for Avoiding Traffic Stops.

Other than changing your race, age, car, etc., how can you minimize your risk of a traffic stop?  Of course, obeying the traffic laws seems obvious.  But what about all of the technicalities the police can use to either ruin your day, or ruin your life?  Here’s a list of a few:

  1. Avoid placing any decals of any kind on your front or rear windshield, even where instructed to do so by a government agency.  Instead, place them on a side window, where necessary.
  2. Make sure there are no cracks in your windshields.  In winter, make sure they are free of ice and snow.
  3. Avoid hanging items from your rear view mirror, like air fresheners.  Place them below the windshield level.  Avoid hanging anything from sun visors.
  4. Make sure all of your lights, brake lights, turn and lane change indicator lights, as well as license plate illumination light – are all working.
  5. Make sure your vehicle is displaying proper license plate or other registration evidence.
  6. Make sure your vehicle’s suspension, alignment and steering are good enough that your vehicle does not weave.
  7. Avoid tinted glass police may view as illegal.  (And work on changing this law.)

Given the plethora of overreaching laws already in existence, it has never been more important to prevent police from violating your privacy and liberty interests.  Traffic stops are the narrow end of the wedge the government can drive into you and your life, to hurt or destroy you.  Every police contact creates a risk of a life-altering criminal charge – innocent or not.  Every smart citizen should strive to avoid these police contacts in the first place.

For further information: Author, Thomas Gallagher, Minneapolis Criminal Lawyer.