As a criminal defense attorney that has been representing individuals charged with DWI or alcohol related offenses throughout the State of Minnesota for over 17 years, I have litigated numerous issues with regard to the defense of a DWI case. I am often asked by people ”how to beat a DUI” and what are some of the possible DUI defense strategies in a DWI/DUI case here in Minnesota. Therefore, I thought it would be helpful to list the most common potential issues that may exist when I review a client’s case for the first time. Below are 6 potential issues that a criminal defense lawyer should review in any driving under the influence of alcohol case.
1) Is there sufficient evidence to establish that the defendant was driving, operating or in physical control of a motor vehicle at the relevant time?
Relevant time refers to the time in which the defendant was determined to be under the influence of alcohol or the time at which he or she had a blood alcohol concentration of 0.08 or more. Most DWI arrests are the result of a traffic stop in which the defendant is behind of the wheel of the vehicle. Obviously, in such cases, the prosecution will have little trouble establishing this element.
Where this issue becomes relevant is when the defendant is never seen by the officer to be behind the wheel of the motor vehicle. In such cases, the defense attorney must review any circumstantial evidence the government may wish to offer to prove driving conduct or physical control of the motor vehicle at the relevant time.
2) Was the traffic stop or initial seizure of the DWI suspect supported by articulable reasonable suspicion?
Before a driver is stopped by a police officer in his or her vehicle, the officer must have reasonable suspicion to believe that the driver has committed a traffic violation or from the conduct of the vehicle prior being stopped, the officer has reason to believe criminal activity is afoot. If it is determined by the court that the officer lacked a “reasonable articulable suspicion” supporting the traffic stop, all the evidence obtained subsequent to the stop is potentially inadmissible.
3) Did the police officer have “probable cause” to arrest the driver on suspicion of driving under the influence of alcohol?
Subsequent to a traffic stop, probable cause is needed to allow for further detention and chemical testing of a driver at the police station. In a DWI case, the officer needs to establish probable cause that the particular driver is under the influence of alcohol. In order to establish this, the officer will generally ask the driver to perform a variety of tests called field sobriety tests. The more common tests are: Horizontal Gaze Nystagmus or HGN, walk a straight line heel to toe and stand on one leg and count to a certain number – usually thirty seconds. Also, an officer will usually request that the driver submit to a preliminary breath test at the scene which usually gives a digital read-out of the driver’s alcohol concentration.
4) Was the driver’s right to counsel vindicated prior to being asked to submit to a chemical test of his or her blood, breath or urine?
In Minnesota, an officer is required to read a driver the Minnesota Implied Consent Advisory prior to testing. As part of this advisory, the driver should be asked if he or she wishes to contact an attorney to get advice on testing. If a driver informs the officer that they would like to speak with an attorney, then the officer must allow the driver access to the telephone and must give the driver a “reasonable period” of time to contact an attorney. What is considered a reasonable period of time can depend on a number of circumstances or factors such as the time of day and the amount of diligence the driver is showing in his or her attempt to contact an attorney.
5) If the driver requests a second test which is independent of the state’s chemical test, did the police officer provide the driver access to a telephone to make arrangements for the test?
If a driver is going to remain in-custody following his or submission to the state’s chemical test request and then informs the officer that they would like to have their own blood or urine test done, they should be allowed access to a telephone to contact someone to arrange the administration of that test.
6) Was the testing method utilized by the police reliable in determining the driver’s blood alcohol concentration?
With regard to breath tests, Minnesota currently utilizes the Intoxilyzer 5000EN and the Datamaster DMT. The criminal defense lawyer should carefully review every testing method to determine if it meets all the standards required of the particular method to insure its reliability.
Again, obviously the above 6 potential issues or defenses in a DWI case are not comprehensive. Nevertheless, they can serve as a perfect starting point for any criminal defense attorney reviewing a client’s police reports and other discovery to determine any possible or potential defenses.