Tag Archives: alcohol testing in minnesota

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.

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