(DWI) and (DUI) FAQs

Driving While Intoxicated (DWI) and Driving Under the Influence (DUI) FAQs:

When can an officer pull me over?

Getting pulled over means being stopped by a police officer for an investigatory purpose and may also result in being detained for a brief period. In all contexts, DWI included, an officer may only do this if that office has reasonable suspicion of ongoing criminal activity. In this context criminal activity includes any traffic violations and even if you’re driving in itself is not a criminal act but raises reasonable suspicion that you are driving while impaired (DWI), then a police officer will have grounds to pull you over. Of course, those facts may be disputed to prove reasonable suspicion of a DWI. Detection and determination of reasonable suspicion is challenging, and most officers will follow you until they have sufficient cause. Once pulled over, as a DWI attorney, I can provide a strong argument and defense that there is no criminal activity going on to raise suspicion and the detainment should have ended.

When can an officer expand a traffic stop into a DWI investigation?

A traffic violation does not give the officer(s) authority to start a DWI investigation, namely requesting submission portable breathalyzer or a Field Sobriety Test. The officer must provide objective facts that you are impaired. Officers have found away around this, if you look at your police report or complaint, I can almost guarantee you will see some variation of “bloodshot and watery eyes” and “emanating the odor of alcohol.” Why? Because these are two indicators of impairment that are very challenging to overcome. Body-camera and dash-camera footage cannot prove the officer did not smell alcohol on your breath, and often do not show your eyes with enough clarity to rebut the officer’s testimony.

You need a DWI attorney with a unique approach. To dispute this, I pull public records of police reports involving the arresting officer in DWI charges. Most of the time, you will find the officers sight the same indicators. This goes to their credibility. It’s hard to believe everyone who drinks displays bloodshot and watery eyes, and therefore, their testimony is not credible

When can an officer arrest me for DWI or DUI?

In general, arrests for driving while intoxicated do not require a warrant although, there would have to be probable cause for the arrest. “[An officer] needs only one objective indication of intoxication to constitute probable cause to believe a person is under the influence.” [State v. Kier, 678 N.W.2d 672, 678 (Minn.App. 2004)]. Objective indications include odor of alcoholic beverage, bloodshot and watery eyes, slurred speech, and uncooperative attitude [Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 840 (Minn. Ct. App. 2000)]. Some common questions I investigate to determine if the Officer is lying about observations for probable include: 1. Was the officer close enough and facing your line of breath directly? 2. Does the officer have a reporting pattern of citing emanating odor of alcohol every DWI arrest, even when the suspect is later proven to have no alcohol level? 3. Are your eyes clear in the booking photographs?

To rebut probable cause, you need a DWI attorney who knows how to obtain the evidence you need.

How can I fight the Field Sobriety Test after taking it?

If you took a field sobriety test, I fight the results of it. Field Sobriety Tests must be administered correctly, which means under the directions of the National Highway Safety Administration. I frequently see officers administer Field Sobriety Tests all the time. Beyond administering DWI Field Sobriety Test incorrectly, they also analyze the results incorrectly. If you felt the test is unfair, that is likely because it was. When the test isn’t done correctly, I will argue it cannot be used to establish intoxication level, and therefore, must be suppressed.

What is the difference between the portable breathalyzer and the one at the station?

The portable breathalyzer is used to establish probable cause but cannot be used to establish intoxication in DWI cases. Why? It is not accurate enough to be scientifically accepted to show any alcohol level. Probable cause requires a lesser standard in DWI cases. The large machine you will come across once taken to the station is still unreliable for DWI testing, but almost always accepted in courts. While the accuracy of test results from the station is unreliable and inaccurate, be weary of attorneys who tout fighting the results. That battle is only worth going down if you are at or very neared the required BAC level by DWI statute (.08 and .16). In those cases, it very well be worth the battle to fight the test’s accuracy because experts and attorney may prove that the reading does not prove you were over the level.

When can you fight breathalyzer accuracy in DWI cases?

The best time to fight a test result in DWI cases when the test was not administered correctly. Some requirements for breathalyzer administering include: a fifteen-minute observation to watch for coughing and vomiting (the acid leads to an inaccurate test result), nothing was in your mouth and if so, the officer made checked, and the machine used a control sample before testing.

Does an officer need to actually see me drive?

Not necessarily, the officer needs probable cause to deduct that you drove. For instance, if a non-anonymous witness states that you were in fact the driver and the officer does not have reason to suspect the credibility of the witness, then this statement alone may establish probable cause.

What if the delay was more than two hours between when you drove and when you were tested?

That is a problem! For measurement related DWI charges, the State may use retrograde extrapolation (using science to determine the measure of your BAC level within two hours) to prove a DWI charge, but they need certain data including but not limited to the amount of alcohol ingested, time since last drink, food intake to carry out the measurements. Determination of the charges then relies solely on science and the jury cannot determine that. Therefore, if there is no scientific method to prove your alcohol level with absolute certainty, a judge will dismiss your DWI case. I’ve successfully dismissed DWI charges on these grounds.

When can I speak with an attorney after being arrested for DWI but before submitting to a breathalyzer, blood or other chemical test?

There are separate procedures for breath tests and warrants. For breath tests, an officer must read you the implied consent and then you must be granted the opportunity to speak with an attorney. In order to exercise your right to speak with an attorney, the officer must provide you reasonable means to do so. These means include: a phonebook and telephone, you must be provided with privacy during your conversation, unless there is a security concern, you must be granted a reasonable timeframe to carry out the conversation depending on the time of day and other relevant factors. You can also meet with an attorney in person if the attorney arrives within a reasonable timeframe.

A recent supreme court ruling held that blood tests cannot be given without a warrant, a former common practice in DWI arrests. In response, Minnesota changed their DWI statutes to remain constitutional. The Minnesota Supreme Court held as such because you are not “meeting your maker” in the same sense as a request for a breath test (warrants are reviewed by a neutral third-party judge).

Can an officer force me to take the breathalyzer or give my blood?

No, in both scenarios, the officers must respect your request and the only exception to this rule is if you are unconscious. This also goes for the Field Sobriety Test and portable breathalyzer administered on the road. If you were forced to take any test, as your DWI attorney, I can argue to suppress the results and ultimately dismiss your DWI.

Should I take the PBT or Field Sobriety Test?

You should only take the PBT if you have not had a sip of alcohol and do not have any drugs in your body even if you are not impaired in that moment. PBTs are inaccurate and you need not even blow past the legal limit for it to provide sufficient probable cause. Refusing a PBT does not provide sufficient probable cause in it of itself. If you take the PBT and fail, your attorney now will lose most probable cause arguments and only have to ability to attack reasonable suspicion.

On the other hand, I would advise that you never take the Field Sobriety Test because they are near impossible to pass even if you are sober. Almost all the time, the Field Sobriety Test will hurt you and your case and although refusing to take the test will be again go toward probable cause, not taking the test will not adversely affect your circumstances as much as failing a test.

Can I choose what test I take (breath, blood or urine)?

All drivers in Minnesota are presumed to be able to take a breath test. I often see clients believe they are entitled to a blood test if they request it and can opt to use the blood test instead of the urine test. The officer must only offer you the breath test in order charge you with refusal. You are entitled to independent testing, but you must pay for it.

Blood tests on the other hand require warrants and if an officer offers you a blood test, they must also offer you a urine test and vice versa, if an officer offers you a urine test, they must also offer you a blood test. For that reason, urine tests essentially require warrants.

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