Minnesota DWI Blog

DWI Enhancement: Aggravating Factors Under Minnesota Law

Jason C. Brown — Tue, 01 Dec 2009 16:44:00 -0600

DWI charges in Minnesota range from misdemeanors to felony-level offenses. The severity of the offense is determined by the number of “aggravating factors” that might be present for a particular drunk driving incident.

Aggravating factors in Minnesota include: (1) a qualified prior “impaired driving incident” within the preceding 10 years; (2) an alcohol concentration of .20 or greater at the time of the offense; or (3) the presence of a child under age 16 in the vehicle (if more than three years younger than the offender). Prior impaired driving incidents include prior convictions and losses of a driver's license due to an implied consent revocation.

If there are no aggravating factors present when the DUI is committed, it will be charged as a fourth-degree misdemeanor DWI. The maximum penalty is a $1000 fine and 90 days of incarceration. If one aggravating factor is present, it will be charged as a third-degree misdemeanor DWI. The maximum penalty is a $3000 fine and a one year in jail. If two aggravating factors are present at the time of the offense, it will be charged as a gross misdemeanor second-degree DWI with the same maximum penalties as a third-degree DWI. Finally, if three or more factors are present, a felony first-degree DWI will be charged. The maximum penalty is seven years of incarceration and a $14,000 fine.

Charged with drunk driving? We can help. The sooner you involve an experienced defense attorney, the better able we will be to gather evidence and address other important elements of your case. Call our Minnesota DWI lawyers now at 612.789.2100 or feel free to contact us through our online consultation form.

Gross Misdemeanor DWI in Minnesota: License Plate Impoundment Issues

Jason C. Brown — Thu, 03 Sep 2009 14:17:31 -0600

The Minnesota Commissioner of Public Safety maintains the right to impound license plates if a driver is involved with a gross misdemeanor offense. These offenses involve a drunk driver with:

An alcohol concentration of .20 or more;
Having a child under age 16 present in the vehicle at the time of the DWI; or
Occurring while the person's license has been canceled for the person being inimical to public safety.

Plate impoundment applies to the following automobiles:

The vehicle used in the plate impoundment violation; and
Any vehicle owned, registered, or leased in the name of the violator, whether alone or jointly.

The arresting officer will typically issue a plate impoundment order at the time of arrest. The impoundment is effective immediately. The officer will then seize the plates and issues a temporary permit valid for one week. The violator is also subject to a number of restrictions when buying or selling a vehicle during the impoundment period.

The minimum amount of time that plates may be impounded is one year. During this time, the violator may not drive a car unless the vehicle has specially coded plates and they have been re-licensed to drive. These specially coded license plates, sometimes referred to as "whiskey plates" will have a "WX" contained within the plate code. These are issued if:

The violator has a properly licensed substitute driver;
A member of the violator's household is validly licensed;
The violator has been validly re-licensed; or
The owner is not the violator and is validly licensed.

It is illegal for a driver whose plates have been impounded to attempt to avoid the plate impoundment law, or for another individual to enable such evasion.

Have you been arrested for a gross misdemeanor DWI? Let us answer your questions. The sooner you involve an experienced lawyer, the better able we will be to gather evidence and address other important issues in your case. Call our Minnesota DWI lawyers now at (612) 789-2100 for a free consultation or submit an inquiry through our online consultation form.

Overview of Boating While Intoxicated in Minnesota: BWI Offenses

Jason C. Brown — Wed, 08 Jul 2009 21:28:08 -0600

Minnesota has over 10,000 lakes to enjoy and a staggering boat ownership ratio, making it easy to comprehend why so many Minnesotans face BWI charges. If an individual operates a boat(including personal watercraft), with an alcohol concentration above .08 they may be charged with boating while intoxicated under Minnesota law.

First time BWI offenders (a misdemeanor) face up to 90 days of incarceration, a $1,000 fine and the loss of the ability to operate a boat for 90 "boating season" days upon conviction. The Minnesota Department of Natural Resources is responsible for issuing the relevant revocation.

If an "aggravating factor" is involved, the BWI charge becomes a gross misdemeanor and, in the most serious of cases, a felony may result. These aggravating factors include:

Operating a boat with a blood alcohol concentration of .20 or more;
A prior conviction for DWI or test refusal in the 10 years leading up to; or
A passenger under age 16 on the boat or watercraft at the time of the offense.

If an individual accused of BWI has no qualified prior impaired driving incidents, they are subject only to the loss of operating privileges for their boat for the relevant period of suspension. Their license to operate an automobile remains in tact. However, any person arrested for BWI and who has a qualified prior impaired driving incident on record is subject to the same administrative sanctions and criminal penalties as the person would be if arrested while driving a regular motor vehicle. In other words, their license to operate a motor vehicle may be suspended as well.

Facing BWI charges? We know you have many unanswered questions. The sooner you involve an experienced BWI attorney, the better able we will be to gather evidence and address other important elements of your case. Call our Minnesota BWI defense firm now at 763.323.6555 or feel free to contact us through our online consultation form.

Minnesota DWI Attorneys Entitled to Intoxilyzer 5000 Source Code Says State Supreme Court

Jason C. Brown — Mon, 04 May 2009 18:42:02 -0600

Last week the Minnesota Supreme Court, in State v. Underdahl and Brunner, opined that the State of Minnesota must produce the Intoxilyzer 5000 EN source code if an individual charged with a DWI can show that the code relates to their guilt or innocence. Justice Meyer wrote for the majority.

Defendants Underdahl and Brunner sought discovery of the source code for the the Intoxilyzer 5000EN following DWI charges. In both cases, the trial court ordered the State of Minnesota to produce the code within one month, or the court would find that the breath test results were not admissible and dismiss the complaint against Underdahl and Brunner. The State of Minnesota appealed and the Minnesota Court of Appeals reversed. The Minnesota Supreme Court elected to hear the consolidated cases of Underdahl and Brunner.

The Minnesota Supreme Court upheld the Minnesota Court of Appeals decision to reverse the production order in Underdahl’s case. However, with respect to Brunner, the Supreme Court reversed and reinstated the trial court's order for State of Minnesota to produce the complete computer source code for the Minnesota model of the Intoxilyzer 5000EN.

The Supreme Court examined whether the trial court abused its discretion in concluding that the computer source code was relevant and otherwise discoverable under the Minnesota Rules of Criminal Procedure. Rule 9 provides:

Upon motion of the defendant, the trial court at any time before trial may, in its discretion, require the prosecuting attorney to disclose to defense counsel and to permit the inspection, reproduction or testing of any relevant material and information not subject to disclosure without order of court under Rule 9.01, subd. 1, provided, however, a showing is made that the information may relate to the guilt or innocence of the defendant or negate guilt or reduce the culpability of the defendant as to the offense charged.

The Minnesota Supreme Court has not previously stated what showing is required to support a trial court’s conclusion that information may relate to a defendant’s guilt or innocence in a DWI case. But in other criminal cases the Court has required “some plausible showing that the information sought would be both material and favorable to his defense.”

According to Justice Meyer, although broad discretion is given to district courts in discovery matters, the district court in Underdahl’s case abused its discretion in finding the source code relevant and related to his guilt or innocence. This was because Underdahl made no threshold evidentiary showing whatsoever; while he argued that challenging the validity of the Intoxilyzer was the only way for him to dispute the charges against him, he failed to demonstrate how the source code would help him do so. Justice Page and Justice Anderson dissented on the conclusion of the majority relative to Underdahl.

However, Brunner submitted source code definitions, written testimony of a computer science professor that explained issues surrounding the source codes and their disclosure, and an example of a breath-test machine analysis and its potential defects. Brunner’s submissions demonstrated that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to Brunner’s guilt or innocence. Therefore, Justice Meyer found that the district court in Brunner’s case did not abuse its discretion in concluding that the source code may relate to his guilt or innocence.

In an article authored in Minnesota Lawyer by associated editor Barbara Jones, she points out that this decision may mean that breath tests are a thing of the past. According to Dakota County Attorney Jim Backstrom. “I will be instructing officers to only administer blood or urine tests until we get further clarification."

Good news on some fronts. Urine tests are the least reliable of the three forms of testing. Most agencies opt for urine testing as opposed to blood tests.

Minnesota Felony DWI Conviction Stands Despite Lawyer's Argument that Pending Appeal Meant No "Conviction" for Prior Offense

Jason C. Brown — Mon, 20 Apr 2009 15:52:45 -0600

In an unpublished decision entitled State v. Johnson, the Minnesota Court of Appeals affirmed the district court's 48 month sentence on a felony DWI conviction. Judge Ross drafted the opinion.

In March of 2007 an officer approached a truck and asked its occupant to shut off the motor. The occupant, Johnson, had a blood alcohol content of .27. Johnson was charged with two counts of first-degree driving while impaired. He pleaded guilty to first-degree DWI and acknowledged that he had prior convictions for alcohol-related driving offenses in 1998, 1999, 2001 and 2005.

At the sentencing hearing, the lawyer for Johnson tried to to persuade the court to disregard the prior felony DWI because Johnson was not on probation for that offense and because it was the subject of an appeal to the Minnesota Court of Appeals at the time he committed the more recent offense. The Scott County district court had found Johnson guilty of felony DWI for the 2005 offense in early 2006. The argument, however, was that that Johnson had not been “convicted” of that offense because of the pending appeal.

Judge Ross wrote:

Johnson’s arguments regarding the timing of his prior appeal and his probation status are immaterial to whether he was previously convicted. Johnson offers no legal basis or plausible reasoning to support his contention that a defendant is not “convicted” until this court decides his appeal. Our opening line deciding that earlier appeal begins, 'Appellant challenges his conviction of first-degree refusal to submit to a chemical test.'

The Court found that because Johnson was convicted of a felony DWI before 2007, the district court properly considered Johnson’s prior conviction and did not err by imposing the presumptive 48 month executed prison sentence.

The more drunk driving convictions a defendant has on their record, the less sympathetic courts are in hearing arguments for a reduced charge or sentence. The Johnson case provides a clear example of a lack of sympathy on the part of Judge Ross, who wrote, "Johnson’s arguments miss the mark." It doesn't get much clearer than that. Kudos to counsel for trying.

Minnesota Court of Appeals Clarifies "Physical Control" of Motor Vehicle for Sleepy, Intoxicated Auto Owners

Jason C. Brown — Sun, 29 Mar 2009 17:11:32 -0600

In a decision published on March 24, 2009 entitled State v. Fleck, the Minnesota Court of Appeals affirmed that evidence that a person was alone, intoxicated, and asleep behind the wheel of his car parked in an assigned space in his apartment’s parking lot at 11:30 p.m. with the keys on the console, was sufficient to support a finding that he was "in physical control" of the motor vehicle within the meaning of Minnesota's drunk driving laws.

Late one evening, law enforcement responded to a call and found Fleck asleep behind the wheel of his car. The relevant vehicle was legally parked in an assigned space at the apartment building where he lived. Fleck was drunk, with a blood alcohol content of .18. The keys to the car were on the console between the driver and passenger seats, but there was no evidence that Fleck had recently driven the vehicle. Fleck was arrested and charged with two counts of felony DWI for being in physical control of a motor vehicle while impaired. He was convicted and ordered to serve 48 months in prison.

On appeal, Fleck argued that evidence that he was simply sleeping in his car, at his home, while intoxicated, was insufficient to support a finding that he was in physical control of the vehicle within the meaning of Minnesota's DWI statutes. The relevant statute provides that any individual who drives, operates, or is in physical control of any motor vehicle within the State of Minnesota while under the influence of alcohol or with an alcohol concentration of .08 or more is guilty of a crime. A person is in physical control of a vehicle if he "has the means to initiate any movement of that vehicle and he is in close proximity to the operating controls of the vehicle."

Judge Stoneburner wrote, "the evidence of Fleck’s use of his vehicle was not inconsistent with driving the vehicle, and the keys were readily available to him." His felony DWI conviction was affirmed.The Court distinguished this case from another, State v. Pazderski , in which the Court found that an intoxicated, sleeping vehicle occupant should not have been charged with a DWI. Of importantance, in Pazderski, no keys ever found in the vehicle.

What's frustrating about the Fleck decision is the fact that the Court went out of it's way to make a specific finding that there was "no evidence" that Fleck had driven the vehicle in question while under the influence. Seems to me that a rigid application of the relevant standard in this instance leads to a grossly unjust result. It makes far better sense for an officer to have probable cause to arrest someone for a DWI if, for example, the car engine is warm, there are fresh tire tracks in the snow, or some other objective evidence of vehicle operation presents itself - rather than pure speculation about whether a car was, or will be, driven.

If you have been charged with a DWI, you need to know your rights. The DWI lawyers with the Brown Law Offices, P.A. provide a strong defense. Please call (763) 323-6555 or contact us through our online consultation form.

Intoxilyzer Source Code Cases Continue: State Doesn't Have an Obligation to Disclose; Not in Possession

Jason C. Brown — Wed, 18 Mar 2009 20:15:59 -0600

On March 17, 2009, Judge Minge issued an opinion, in Patterson v. Commissioner, that denied an individual accused of drunk driving the ability to obtain the Intoxilyzer 5000 EN source code from the State of Minnesota. Why? Because the state says it doesn't have it.

Patterson was arrested for DWI, and his driver’s license was revoked pursuant to the implied-consent law. On review of the revocation, he argued that he was entitled to discover the Intoxilyzer source code because of its relevance to his challenge to the revocation. The State of Minnesota stated that it did not have possession, custody, or control of the source code and offered an affidavit in support of that fact. The district court denied Patterson's motion and sustained his license revocation on several bases, including that there was no evidentiary basis to believe the code was possessed by or available to the State. Patterson appealed.

The issue in this case is whether the district court abused its discretion in finding that Patterson failed to make a showing sufficient to compel discovery of the source code. Rulings related to discovery entail a considerable exercise of discretion by the district court. According to Judge Minge, "the most obvious basis for the district court’s denial of appellant’s motion was its finding that there was no basis to believe that the source code was in the possession of or available to [the State]."

Judge Minge found that the finding of the district court in this case was grounded on the rule 34 requirement that, to be discoverable, an item must be in the “possession, custody or control” of the party from whom it is sought. The State presented an unchallenged affidavit from a toxicology supervisor for the BCA, who attested that “the only individual or entity in actual possession of the source code . . . is its manufacturer, CMI, Inc." On that basis, the Court of Appeals affirmed.

Minnesota Court of Appeals Denies Drunk Driver's Request to Obtain Intoxilyzer 5000 EN Source Code

Jason C. Brown — Wed, 11 Mar 2009 15:55:53 -0600

In an unpublished opinion issued by the Minnesota Court of Appeals on March 3, 2009 entitled State v. Thompson, Judge Stoneburner affirmed the district court's denial of an accused drunk driver's request to obtain and review the source code for the Intoxilyzer 5000 EN.

In Thompson, the driver challenged his conviction of misdemeanor driving while impaired, arguing that the district court abused its discretion in denying his motion to discover the source code for the Intoxilyzer 5000EN. Under the Minnesota Rules of Criminal Procedure, in misdemeanor cases, any discovery beyond police investigatory reports is by consent of the parties or motion to the district court. Under the rule, the district court may exercise its discretion and require the prosecution to disclose material and information if the defendant shows that the information may relate to the guilt or innocence of the defendant or negate the guilt or reduce the culpability of the defendant as to the offense charged.

Thompson argued that the Intoxilyzer was “the State’s only witness” and asserted that he is entitled to “conduct a full examination” of this witness. He argued that he cannot assess the reliability of the testing method without access to the source code. He asserted that he has shown the relevance of the source code to his guilt or innocence in a manner sufficient to make the district court’s denial of its discovery an abuse of discretion. The Court of Appeals, however, disagreed, relying on the State's expert, who stated:

In the field of forensic toxicology, validation of analytical methodologies for analyzing alcohol and other drugs in the human body is performed exclusively without access to analytical instrument software source code . . . . I have never heard or read of a validation of a toxicological analysis method that was performed with access to the software source code of the analytical instrumentation. I also am unaware of any articles in peer review journals describing the necessity for access to source codes for any validation tests.

Judge Stoneburner opined:

Thompson has not shown the existence of any validation method that requires the source code; has not explained why existing reliability testing (that does not require the source code) is insufficient to establish the reliability of the instrument used in his test; and has not explained how the source code could invalidate existing reliability testing. On this record, we cannot conclude that the district court abused its discretion by denying Thompson’s request for discovery of the source code.

Why do we defense lawyers continue to push for the disclosure of the Intoxilyzer source code? It's actually pretty simple. The code is the hub between a breath sample and the method by which those samples are afforded a numerical value. Remember your math teacher demanding that you "show your work?" The Intoxilyzer manufacturer (obviously intending to protect what it believes to be valuable intellectual property) continues to refuse to show its work. How, then, can the court understand whether the results offered by a machine are inherently reliable?

Minnesota Court of Appeals Affirms Second Degree DWI Conviction Despite Prosecutorial Misconduct Claim

Jason C. Brown — Fri, 27 Feb 2009 09:34:56 -0600

In an unpublished decision from the Minnesota Court of Appeals entitled State v. Lucht, Judge Kalitowski affirmed Lucht's conviction for second degree driving while impaired despite her claim of prosecutorial misconduct. Lucht argued that the prosecutor’s use of “were they lying”- type questions during cross-examination constituted prosecutorial error during the trial.

Because Lucht failed to object to the prosecutor’s questions during trial, the alleged prosecutorial error was reviewed under the plain-error standard. To establish plain error, a defendant must show that (1) there was error, (2) the error was plain, and (3) the error affected his or her substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.

Generally, questions designed to elicit testimony from one witness about the credibility of another have no probative value and are considered improper and argumentative. But the prosecutor may ask these questions when the defendant holds the issue of the credibility of the state’s witnesses in central focus.

“Were they lying” - type questions may be permissible when those questions would be particularly probative in clarifying a line of testimony, or when the jury must evaluate the credibility of a witness who claims that everyone but the witness lied, or when the witness flatly denies the occurrence of events, and thereby places the central focus on the credibility of the state’s witnesses.

In this instance, the Court affirmed based upon the fact that no plain error occurred in allowing "were they lying" - type questions. Lucht's version of the facts in her case differed substantially from that of three witnesses to the events in question.

Even if there were an error in allowing such questions:

In light of the strong evidence against appellant–testimony from three witnesses about appellant’s intoxication, the BAC test results, and appellant’s unclear and inconsistent testimony–we conclude that there is no reasonable likelihood that the absence of any prosecutorial error would have significantly affected the jury’s verdict.

This opinion of the Minnesota Court of Appeals sounds radically different from that which was rendered by the Maryland Court of Appeals in 2007. In State v. Hunter, Judge Cathell opined that "When prosecutors ask 'were-they-lying' questions, especially when they ask them of a defendant, they, almost always, will risk reversal."

Summary of Minnesota DWI Charges

Jason C. Brown — Sat, 14 Feb 2009 22:05:58 -0600

DWI involves the operation of a motor vehicle while under the influence of alcohol to the degree that cognitive and motor skills are impaired. In Minnesota, DWI laws also apply not only to motor vehicles, but also to recreational vehicles, such as ATVs, airplanes, boats and snowmobiles.

Minnesota statutes outline four major categories of drunk driving crimes:

The degree of a DWI in Minnesota depends upon whether "aggravating factors" are present at the time of arrest. These factors include:

A qualified prior impaired driving incident within the ten years immediately preceding the current offense;
Having an alcohol concentration of .20 or more as measured at the time, or within two hours of the time, of the offense; and
Having a child under the age of 16 in the motor vehicle at the time of the offense, if the child is more than 36 months younger than the offender.

A drunk driver is guilty of first-degree DWI if they commit a violation within ten years of the first three or more drunk driving incidents, or have been previously convicted of felony DWI in Minnesota. A drunk driver is guilty of second-degree DWI if two or more aggravating factors were present when the violation was committed. A drunk driver is guilty of third-degree DWI if one aggravating factor was present when the violation was committed. A drunk driver is guilty of fourth-degree DWI if their blood alcohol content totals .08 or more at the time of operating a motor vehicle.

Your Options for Representation in a DWI Case

Jason C. Brown — Thu, 05 Feb 2009 20:32:14 -0600

If you've been charged with a DWI in Minnesota, you have three options for representation: (1) the public defender; (2) represent yourself; or (3) hire a private DWI lawyer. While many handle their case themselves or work with the public defender, it is probably in your interest to retain the services of an experienced, reputable DWI defense lawyer.

Public defenders are, contrary to popular belief, exceptional attorneys. Many view them as government lawyers who do nothing more than move piles of indigent defendants through the courts. A former colleague was known in the local jail as "Penitentiary Pat" and I've heard may referred to as "public pretenders." Nothing could be further from the truth.

Despite the respect they deserve, there are some significant disadvantages in working with a public defender if you've been charged with a DWI. First, the amount of time a public defender may devote to your file is substantially less than private counsel. They are simply assigned too many cases. Second, when you go to court, you will likely be one of dozens of clients they represent that day. Be prepared to wait a while to speak with your lawyer - and then only for a few minutes. Third, you have no say in who your public defender is. If you don't click with your attorney, you're out of luck. Finally, the public defender will not handle the implied consent portion of your case with the Commissioner of Public Safety. If you wish to recover your suspended license or challenge the validity of the stop, only private counsel will advocate for you.

What about representing yourself? Because of the serious consequences that flow from a DWI, it is not advised to go it alone. I know from firsthand experience that plea offers can turn far more attractive when an individual is represented by counsel. A recent client went to court without a lawyer for his first appearance. The prosecutor told him he would offer nothing less than ten days of jail time as an offer to resolve the matter short of trial. We were retained and went to the next appearance with him. The prosecutor agreed to a plea deal that called for no executed jail time. Yes, a skilled DWI defense lawyer at your side does make a difference.

A reputable DWI lawyer will raise all of the favorable constitutional and evidentiary issues involved in your situation and assess the merits of your case in light of the county you are charged in and judge you are appearing before. No matter how intelligent or smooth an individual may be, a defendant charged with a DWI will rarely handle their matter as well as an experienced DWI attorney.

Minnesota DWI Crackdown: More Than 2,600 Cited Last Month

Jason C. Brown — Fri, 09 Jan 2009 15:48:49 -0600

The Minneapolis Star Tribune reports that 2,655 people were cited for drunk driving in Minnesota last month. The relevant article by Paul Walsh claims that the average blood alcohol content of impaired drivers that were arrested and charged was .14, nearly twice the legal limit.

Walsh points out that enhanced DWI patrols with continue through 2009 in the most critical areas of the state for drunk driving offenses, including Anoka County, Hennepin County, Dakota County, Sherburne County, Wright County and Washington County. From 2005 through 2007, 533 motorists have been killed by drunk drivers on Minnesota roads, 1,200 serious injuries were sustained as the result of a drunk driver and more than 117,000 (nearly twice the capacity of the Metrodome) were arrested for driving drunk.

Probable Cause and Articulable Suspicion in Drunk Driving Cases

Jason C. Brown — Tue, 30 Dec 2008 20:32:19 -0600

Thanks to Matthew Ruff, a respected Los Angeles DUI Lawyer who handles cases throughout California, for a recent post concerning the main reasons that the police pull people over for a DUI.

In his article, Ruff notes that the National Highway Safety Transportation Safety Administration has identified a number of behaviors that suggest a probability of driver intoxication (the basis for the police to stop a driver):

Turning the car with a wide radius;
Straddling the center or a lane line or marker;
Appearing to be drunk or visibly intoxicated;
Almost striking a fixed roadside object or vehicle;
Weaving within or outside a lane of travel;
Driving the vehicle somewhere other than the designated roadway;
Swerving in a sudden fashion;
Driving at a slow speed;
Stopping the car in the lane without cause;
Following another vehicle too closely, improper or unsafe distance;
Drifting in and out of the lane;
Tires traveling on center or lane marker;
Braking suddenly or erratically;
Driving into opposing or crossing traffic;
Signaling a turn inconsistent with driving actions;
Stopping inappropriately other than in lane;
Slow response to green lights or other traffic signals;
Turning abruptly or illegally, in violation of traffic laws;
Accelerating or decelerating rapidly; or
Headlights off at night.

He further points out that once a driver is pulled over, the following behaviors indicate some level of intoxication on the part of the driver (and provide probable cause for an officer to conduct field sobriety tests):

Difficulty with vehicle controls;
Difficulty exiting vehicle;
Fumbling with a drivers license or registration;
Repeating questions or comments to the officer;
Swaying, unsteadiness or balance problems while speaking to the police officer;
Leaning on the vehicle;
Slurred, thick or drunken speech;
Slowness in responding to questions, or asking officer to repeat questions;
Providing incorrect information or changing answers; or
Odor of an alcoholic beverage.

Keep in mind that one of the key defenses in a DWI case is the argument that the arresting officer did not have an "articulable basis" for the stop that resulted in a drunk driving charge or probable cause to conduct field sobriety tests. If the court agrees, a DWI stemming from an illegal stop or a legally insufficient demand to submit to testing will be dismissed.

Felony DWI in Minnesota: Among the Toughest Drunk Driving Laws in the Nation

Jason C. Brown — Tue, 25 Nov 2008 21:25:13 -0600

Minnesota's felony DWI laws are among the toughest in the country. According to the Minnesota Felony DWI statute, a person who violates section 169A.20 (driving while impaired) is guilty of first-degree driving while impaired if the person:

Commits the violation within ten years of the first of three or more qualified prior impaired driving incidents; or
Has previously been convicted of a felony DWI.

A person who commits first-degree driving while impaired is guilty of a felony and may be sentenced to imprisonment for not more than seven years (longer if they have a criminal history), or to payment of a fine of not more than $14,000, or both.

A person confined to prison for a felony DWI in Minnesota is not eligible for early release unless the inmate has successfully completed a chemical dependency treatment program while incarcerated. The court will also require a felony DWI offender to remain on conditional release for five years following release. The former inmate is subject to any conditions that the commissioner of corrections opts to impose, including an intensive probation program. If the defendant fails to comply with the release conditions, the commissioner of corrections may revoke probation and return them to prison.

Minnesota DWI Vehicle Forfeiture Standards

Jason C. Brown — Tue, 18 Nov 2008 21:29:40 -0600

Minnesota's DWI statutes allow for vehicle forfeiture in some circumstances. Most often, forfeiture occurs when a defendant receives a third DWI violation within a ten-year period. With one or more enhancing factors, a person’s second, or even first, DWI violation may result in the forfeiture of their car.

The following "designated offenses" may result in a forfeiture:

A violation of section 169A.20 (driving while impaired) under the circumstances described in section 169A.24 (first-degree driving while impaired), or 169A.25 (second-degree
driving while impaired); or
A violation of section 169A.20 or an ordinance in conformity with it: (i) by a person whose driver's license or driving privileges have been canceled as inimical to public safety under section 171.04, subdivision 1, clause (10), and not reinstated; or (ii) by a person who is subject to a restriction on the person's driver's license under section
171.09 (commissioner's license restrictions), which provides that the person may not use or consume any amount of alcohol or a controlled substance.

Other vehicles that are owned by the offender, but were not involved in the DWI are not subject to forfeiture. For those who own, but were not present in, a vehicle used in the commission of a DWI, their car is subject to forfeiture only if they knew or should have known of the unlawful or intended illegal use of the vehicle.

Once the forfeiture process is complete, the law enforcement agency making the arrest may keep the vehicle for its own use. But, the loan or lease against the vehicle, if any, is protected. The lien holder may choose to sell the vehicle at a foreclosure sale or agree to a sale by the arresting agency. A proportionate share of the sale proceeds will be paid to the lender.

First Consequence of a Minnesota DWI: License Revocation

Jason C. Brown — Tue, 11 Nov 2008 21:25:26 -0600

If the operator of a car is pulled over for drunk driving, their driver's license can be revoked immediately if they fail a blood alcohol test or refuse to submit to testing. The Minnesota Department of Public Safety will issue a seven-day temporary license before the revocation becomes effective.

In Minnesota, the period of license revocation is as follows:

90 days for a person with no qualified prior impaired driving incident within the past ten years and no other aggravating factor was present in the current incident;
180 days, if violator is under age 21;
180 days, if person has had a qualified prior impaired driving incident within ten years;
Double the applicable period above, if the person was arrested with an alcohol concentration of .20 or more or while having a child under age 16 in the vehicle;
365 days, if the person refused to submit to the chemical test of blood, breath, or urine; and
Cancelled and denied indefinitely as inimical to public safety, pending treatment and rehabilitation for a third or more impaired driving violation within a ten-year period.

Once the relevant timeline has passed, the accused may reapply for their driver's license. A new license will be issued if the driver passes a written test and pays a substantial reinstatement fee. In the meantime, some driver's can apply for a limited license that allows them to drive to and from their place of employment.

Minnesota DWI Suspects Allowed to Intervene in Federal Intoxilyzer Lawsuit

Jason C. Brown — Sat, 08 Nov 2008 18:20:58 -0600

Thanks to Barbara Jones, Associate Editor of the Minnesota Lawyer newspaper for publishing an article concerning U.S. District Court Judge Donovan Frank's decision to allow four DWI defendants to intervene in a lawsuit between the State of Minnesota and the manufacturer of the Intoxilyzer breath machine. That litigation involves access to the source code within the Intoxilyzer machine that is used to detect blood alcohol levels.

Jones' article outlines the fact that Minnesota DWI lawyers are seeking the code, the State of Minnesota doesn't have it and the manufacturer won't produce it, calling it a "trade secret." A recent decision of the Minnesota Court of Appeals requires the state to disclose the code. The position of defense counsel is that we need the code in order to understand how the machine calculates blood alcohol levels and, therefore, how reliable the results actually are.

Keep track of the case progress in State of Minnesota v. CMI by periodically reviewing the docket.

Basis for Law Enforcement to Perform Field Sobriety Tests in Minnesota

Jason C. Brown — Thu, 30 Oct 2008 15:55:37 -0600

In order for an officer to require a driver to submit to field sobriety tests and a preliminary breath test, they must have witnessed something that warranted a reasonable, articulable suspicion that the driver was impaired by alcohol. Probable cause is not a prerequisite to obtaining a PBT or compelling a driver to submit to field sobriety testing.

There are four key ways in which an officer can articulate suspicion of drunk driving:

Driving Conduct. The behavior of driver often provides the basis for a stop. If an officer witnesses a driver who appears unable to control a vehicle, drives unusually fast or slow, weaves, accelerates excessively, makes wide turns or attempts to evade law enforcement, sufficient suspicion exists to pull a driver over.
Characteristics of the Driver. Once a driver is pulled over, the officer will look for visual clues of intoxication, including watery eyes, bloodshot eyes, flushed face, dilated pupils, slow reaction to light, difficulty in moving within the vehicle and the presence of bottles or other drug paraphernalia in the vehicle.
Odor. In addition to witnessing a driver's physical characteristics, the officer will report whether an odor of alcohol was found on the person's breath or in the car. Any unusual odor, including breath sprays or other materials use to mask the smell of alcohol, may also serve as a foundation for further testing.
Audible Evidence. Finally, the officer will always speak with the driver in a way geared toward determining whether the person has consumed alcohol. Routine questions may be asked, with an ear toward slurred speech, delayed response or angry reactions.

Once the officer has pieced together a number of these elements, it is safe to say that the stop was legal, giving the officer the authority to conduct further testing to determine whether there is probable cause to arrest the driver for DWI.

Minneapolis Officer Charged with DWI in Plymouth

Jason C. Brown — Wed, 22 Oct 2008 19:45:56 -0600

The Minneapolis Star Tribune reports that a Minneapolis police officer will likely be charged with a DWI for driving drunk during off-duty hours. Jeffrey Pennaz was arrested yesterday afternoon by Plymouth and Medina police. Two children were in the vehicle when Pennanz was pulled over.

Blood alcohol test results indicated a blood alcohol content of .21, nearly three times the legal limit. He faces gross misdemeanor charges a result of two aggravating factors: having a child in the vehicle and have a blood alcohol content in excess of .20.

A second degree DWI is punishable by up to a year in jail and a $3,000 fine. The State may also impound the license plates of the driver and seek to forfeit the vehicle that was being driven. Pennaz was booked and released.

Arrested for DWI in Minnesota? Avoid These Common Mistakes

Jason C. Brown — Mon, 13 Oct 2008 13:25:05 -0600

Troy Burleson is a respected Texas DWI lawyer with offices in Dallas. He recently posted about the biggest mistakes most people make after being arrested for a DWI:

Thinking that being charged with DWI is not a serious matter. A DWI charge is a very serious matter. You face fines, jail time, loss of driving privileges and other hidden costs like raised insurance rates and the possible denial of certain employment opportunities. Also, a DWI conviction will be on your record forever. A DWI conviction cannot be removed from your criminal record for any reason.
Representing yourself. The DWI laws in Minnesota are complicated and combine elements of civil, criminal and governmental law. Even lawyers who do not specialize in DWI case often times struggle with DWI laws. For the best results, you should choose a qualified, experienced DWI lawyer for the best possible outcome for your case.
Choosing an attorney based solely on cost. Your opponent in this lawsuit is the State of Minnesota. It has almost unlimited resources (attorneys, investigators, police, etc) to prosecute you. You should expect to pay a fair fee based upon the time, effort, experience and reputation of the attorney. If you choose the lowest price, you are certain to obtain the least amount of effort toward defending your case.
Not asking the attorney about her/his DWI experience. Do not be afraid to ask your attorney what his or her experience is with DWI cases. Ask, (1) how many DWI cases the attorney handles per year, (2) how many DWI cases has he or she taken to trial, (3) what specialized training does your attorney have in regard to DWI, (4) how vigorously does your attorney fight to prevent your driving privileges from being suspended, etc.
Agreeing to the first plea offer from the prosecutor. When you accept a plea your are admitting to the crime for which your were charged. In addition, you are waiving your Constitutional rights. Plus, very few prosecuting attorneys have the authority to dismiss or even reduce a DWI offense. Without a thorough investigation of your case, you cannot possibly know whether or not their offer is reasonable.
Failing to appear on your court dates. When you posted your bond and were released from jail you promised to appear at every court date you are given. If you fail to appear for these dates, your bond will be forfeited and a warrant will be issued for your arrest. Additionally, a judge may decide to place you in jail until your trial date.
Hiring an attorney who is not an experienced DWI attorney to represent you. It is simple, if you needed a root canal, you wouldn’t go to an eye doctor, right? Lawyers are like doctors, the specialize in certain area of the law. DWI is a highly specialized area of law. Different facts involve different provisions of the law. There is no substitute for actual, hard earned experience when it comes to defending clients accused of DWI. Prosecutors know who the experts in the field of DWI are and which attorneys are tough in trial. You want the most competent person to represent you when your freedom in at risk. Therefore, only choose an experienced attorney dedicated to the practice of DWI defense.
Think that talking to numerous attorneys will help you handle it on your own. Without an attorney, you are relying in the kindness and integrity of your major opponent. Without knowing the rules that govern the entire process, you may be prevented from even presenting any meaningful defense.

Good work Troy! I would add one more, specific to Minnesota. Most of our new clients don't understand the limitations and time frames imposed on their driver's license following a DWI arrest. Minnesota has one of the toughest administrative sanctions in the country. We've posted about them within our Blog.