It seems a Texas court of appeals has recently ruled that a driver taking a breath mint may be considered as sufficient additional evidence for a drunk driving arrest, even if the officer admits that there was insufficient evidence before then.

A panel consisting of three judges made this decision in an August 2010 case in Lewisville, Texas, when a limousine driver was stopped as he was fetching clients from the airport.

A trooper from the Texas Department of Public Safety was on Interstate 35E and was just about to issue a speeding ticket to a motorcycle when he saw a Chevy Tahoe changing lanes without signaling, and almost crashing into the motorcycle. The trooper had a feeling that apart from bad driving, it could also be a case of DUI.

When the trooper stopped the Chevy Tahoe, he noticed the mild odor of alcohol. The passengers denied drinking alcohol, although the driver seemed nervous. The trooper told the driver that he would issue a written notice for changing lanes without signaling. Upon returning from his police car, however, the trooper noticed a strong smell of breath mints.

The trooper asked the limousine driver if he had just taken a breath mint, to which the driver said yes. The driver was immediately asked to step out of the Chevy Tahoe, and was arrested and convicted of DUI.

The driver appealed, stating that the traffic stop was considered complete once the driver’s license was handed back to him without a warning. Anything after that, the driver pointed out, was considered an illegal detention.

Although the three-judge panel acknowledged this traffic stop principle, they had to determine whether or not the use of breath mints was enough to suggest that another criminal activity had been committed apart from the sudden lane change.

The trial court and appellate judges agreed that, combined with the clues the trooper picked up before the breath mint incident, there was enough evidence to provide suspicion to make a search reasonable with the Fourth Amendment.

Minnesota DWI

In the state of Minnesota, a fourth-degree or first time DWI is classified as a misdemeanor, which may result in a maximum jail time of 90 days and a fine amounting to $1,000. A second- and third-degree DWI are considered gross misdemeanors, with maximum sentences of up to one year in jail and a $3,000 fine. A first-degree DWI is classified as a felony, with a maximum sentence of 7 years behind bars and a fine amounting to $14,000.

Under this bill, House Bill 13-1114, the legal limit for driving and marijuana use would be 5 nanograms per milliliter of blood for THC (which is marijuana’s psychoactive ingredient). This limit would be equivalent to the existing DUI limit of .08 BAC for drivers impaired by alcohol. Drivers caught with such an amount of the drug in their blood could be arrested for DUI.

The final vote by the Senate Judiciary Committee was 4-1, ultimately rejecting the blood standard. Although Colorado and Washington are the first two states in the country to legalize the use of recreational marijuana, the committee felt there was a lack of scientific information on marijuana content in the blood, and that there was a significant concern with regards to impaired driving and public safety.

Some believe that the recent Supreme Court ruling on blood test consent may have had an impact on the outcome of the vote. The Supreme Court decision stated that the police must first obtain a warrant for a blood sample if the driver does not consent to the blood alcohol test. While some of lawmakers believed that the 5-nanogram ruling could still be enforced despite the given measure, other lawmakers disagreed on its feasibility.

Similar bills have also been rejected by Colorado legislature in the past, although proponents claim that more laws will be proposed in the future. After all, this bill took less than a week to find its way back in the Senate.

According to a representative who initiated House Bill 1317, a standard must be set if marijuana has already been legalized. The representative has proposed to amend the stoned-driving limit into this bill.

A number of state officials have already voiced their support for this proposal. The state’s attorney general, for one, stated that his office would not back up any marijuana regulations if a limit for stoned-driving were not included.

House Bill 1317 will establish rules for recreational marijuana stores, and will also include provisions to allow sellers and growers to operate independently. If a DUI provision is to be added to this bill, however, it must be done within the next two weeks so that it can still be reviewed prior to the closing of the current legislative session.

Marijuana in Minnesota

In the state of Minnesota, marijuana is still considered illegal. Possession of less than 42.5g of marijuana will result in a misdemeanor. Offenses that involve larger amounts of marijuana, dealing or distributing marijuana, or repeat offenses are considered as felonies, and may result in hefty fines and jail time.

If you are charged with a crime in the state of Minnesota, call the Kans Law Firm at (952) 835-6314 for a free consultation and case evaluation.

The much-publicized Minnesota drunk driving crackdown, which took place last weekend, was a great success according to state officials with the Department of Public Safety. The agency trumpeted its accomplishment after the massive law enforcement blitz that took place last Friday night and early Saturday morning. The Minnesota Department of Public Safety flooded the streets in and around the Twin Cities with more than 150 squad cars whose only mission was sweeping up suspected drunk drivers.

According to officials, the law enforcement push resulted in 160 arrests across the state, much more than an average night despite unseasonably cool weather, which likely kept many people at home and off the roads. The State Highway Patrol says that drunk driving crashes happen disproportionately during the warm summer months. The May 10th campaign was thus intended to act as a warning message for drivers at the beginning of the summer fishing season to be aware that cops are on the lookout.

Of the 160 arrested, 100 of those drivers were in the metro area. That’s more than the total number of driver arrested across the entire state on a typical weekend night. Nathan Bowie, a spokesman at Minnesota DPS says that the one-night campaign amounted to the largest coordinated DWI event in Minnesota history. Not only did the agency have cop cars on the roads and checkpoints in operation, but all the major overhead electronic message boards carried warnings about enforcement zones. Additionally, the Department of Public Safety decided to turn to Twitter to live broadcast their string of arrests.

After word spread about the police intention to use Twitter to broadcast announcements about arrests, officials with the state made a clarification saying that they would only announce the occurrence of arrests, not the names of those that were arrested.

The problem was that the attempt at avoiding public shaming failed when another Twitter account, mpls_dwi_arrests, began using the same trending tag of “#May10DWI” and proceeded to Tweet the names and ages of all those arrested during the drunk driving roundup. Police disavowed using that Twitter account and said that whoever was operating it was not affiliated with the State Patrol or Department of Public Safety in any way.

Whether the account was affiliated with any state agency does not matter to those who had their names plastered across the internet. Their online reputations have now been negatively impacted in an unsettling act of public shaming.

Source: StarTribune.com.

To refresh you on the ruling… the police must first obtain a search warrant before being able to take a blood alcohol sample from a drunk driving suspect. The failure of an arresting officer to take a blood test without consent or without a search warrant would be in violation of the individual’s Fourth Amendment rights.

In the state of Minnesota, less than 20 percent of all DWI cases are made up of blood tests. The remaining 80 percent of such arrests are made after breathalyzer tests. This ruling, however, will greatly impact all DWI tests.

The State Patrol, on the other hand, sees the situation very differently. To them, the Supreme Court ruling will not make much of an impact on the Minnesota DWI arrests. After all, this decision only affects blood tests that are involuntary.

According to defense attorneys from across the state, this will remain to be an issue as practically no DWI tests in Minnesota are voluntary. In fact, DWI suspects are even informed that it is considered a crime not to comply with such tests. In Minnesota, police officers are also allowed to take blood samples without a court order in cases that involve serious injury or death.

Minneapolis City’s attorney’s office handles more than 1,000 DWI cases each year, and they insist that this new ruling will have little impact as it has narrow applicability, and will not have an automatic effect on existing cases.

In a 5-4 vote, high-court justices established that it was much more important for police officers to obtain a warrant for a blood test compared to the risk that an individual’s blood alcohol levels could diminish or lower with time.

DWI attorneys, however, believe that the ruling will cause courts to throw out every pending urine, blood and breathalyzer test in Minnesota.

Defense attorneys and law enforcement officials have very different takes on the effects of this ruling, and this could possibly result in lengthy legal battles over individual cases.

If you are charged with DWI in the state of Minnesota, call the Kans Law Firm, LLC at (952) 835-6314 for a free consultation and case evaluation.

Police in Minnesota have announced that this coming weekend is going to be a tough one for anyone considering drinking before getting behind the wheel. The Minnesota Department of Public Safety has announced that this weekend it will launch its biggest crack down on drunk drivers ever. Authorities say they will have 150 squad cards on the streets in and around Minneapolis searching for drivers who are impaired.

The big push will begin late Friday night and continue well into early morning hours on Saturday. The campaign will focus on the areas in and immediately surrounding St. Paul and Minneapolis. The goal of the operation is to sweep up potentially hundreds of drivers in the Twin Cities in one night, not only keeping them off the road and away from other drivers, but also sending a strong message to others that the police are lurking waiting on intoxicated motorists.

Another component of the latest sweep is a surprising one, the Department of Public Safety says that it will tweet any and all arrests it makes during the one-night sweep, revealing the names of those that are arrested. The department says that it will use its official Twitter account, @MnDPS_DPS, to live report all arrests that take place as well as promote the extensive patrols it intends to conduct throughout the upcoming summer. The department says that it wants to demonstrate how seriously it takes incidents of drunk driving and how far it is willing to go to curb the deadly problem.

The move is surprisingly aggressive and has some people asking whether the goal is to save lives or simply embarrass people. It seems as if the department has decided to publicly humiliate drivers who had a few too many, hoping that this serves as a warning to others in the future. Another question is whether the campaign will mainly target younger drivers who have a presence on Twitter. After all, the demographic for the social media site skews on the young side and many older people may not even be aware that their names appeared in a tweet.

The campaign should raise some eyebrows given the damage that such a public message about drunk driving could do to harm the reputations of drivers mixed up in the sweep. In today’s electronic era a person’s web presence can be extremely important for their career and future opportunities. Bosses frequently scan the internet for articles about a person as do admissions officers in college. A tweet by the Minnesota Department of Public Safety could be incredibly damaging to some individuals, especially in cases that go on to be dropped or dismissed. After all, the initial tweet about the impaired driving arrest will be broadcast for all to see, but what about the subsequent dismissal? Will the Department of Public Safety be issuing public apologies for all those it was wrong about?

Some articles have decried the campaign, saying it amounts to a modern version of putting someone in the stocks to be publicly taunted. The crackdown campaign will be broadcast on Twitter and can be followed by searching for the phrase #May10DWI.

Source: “If You Drink and Drive in Minneapolis or St. Paul Your Name Will End Up on Twitter,” by Glen Tickle, published at Geekosystem.com.

Crawford v. Washington was not merely about the spousal privilege.  Miranda v. Arizona did not solely concern statements from an alleged rapist.  Terry v. Ohio did not just involve suspicious looking people.  And, Missouri v. McNeely is not just about warrantless blood draws.

For some people in the legal community, Missouri v. McNeely simply means that law enforcement may not perform a warrantless blood draw in a DWI case based solely on single factor exigency.  Most experts know, however, that decisions from the United States Supreme Court on constitutional issues, especially the Fourth Amendment, have long lasting impacts on legal issues and are not simply narrowly-focused opinions.  The Court’s decision in McNeely may do just that, regardless, of whether a person arrested on a DWI takes a breath, blood, or urine test, or refuses a test altogether.

The Court recognizes breath, blood, and urine tests as searches.  They all involve intrusions beyond the surface of the human body and infringe on expectations of privacy.  Blood and urine tests are especially intrusive because they can reveal a host of facts about a person’s private medical state.   

Because all evidentiary tests in DWI cases are searches, they are protected by the Fourth Amendment.  Warrants are almost never sought by the police in DWI cases.  Therefore, a warrantless search almost always occurs.  Under the Fourth Amendment, all warrantless searches are per se unreasonable unless an exception applies.  The most common exceptions are consent, search incident to arrest, exigency, plain view, stop and frisk, hot pursuit, and the automobile exception.  Single-factor exigency is dead as a result of the Court’s decision in McNeely.  Plain view, hot pursuit, and the automobile exception should not apply in this context.  This leaves consent, search incident to arrest, and exigency under the totality of the circumstances as the most common exceptions used in arguing DWI cases. 

For consent to be valid, it must be actual, free, and voluntary.  Not simply implied by law.  In Minnesota, consent is a real issue.  Those arrested on DWIs are read the Minnesota Implied Consent Advisory, which includes a threat: “refusal to take a test is a crime” and then as part of the same advisory, they are asked to take a test.  If the police come to your door without a warrant and ask to come in, they do not first tell you that if you refuse to let them in, they will charge you with a crime.  That would simply be coercion, just like Minnesota’s Implied Consent Advisory.  Minnesota is only one of four states that makes refusal to test a crime on a person’s first offense.  Of those four states, Minnesota’s refusal carries the harshest penalty. 

As the Court noted in McNeely, there may very well be circumstances where the exigencies are so great that securing a warrant is not reasonable.  Just like the Court decided in Schmerber.  The vast majority of DWI cases, however, involve no such exigencies.  There is often ample time in between the arrest and transportation to a police station or hospital for testing, which means there is also enough time to secure a warrant in this day and age of technology.       

For now, warrants are not sought on routine DWIs in Minnesota.  In light of the United States Supreme Court decision in McNeely that will hopefully eventually change or Minnesota will revise its Implied Consent Law.  Just as Miranda, Terry, and Crawford has its progeny of cases, McNeely will too.  Since the McNeely Court informed Minnesota it was wrongly interpreting Schmerber, hopefully Minnesota will be more careful and take its time to fairly interpret McNeely.      

The author of this article is Robert Ambrose.  Robert is an associate attorney with Kans Law Firm, LLC and he is known for aggressively defending individuals charged with all levels of DWI offenses.  If you are charged with a DWI and would like a free consultation, please contact us.

The legislature in neighboring Wisconsin is currently considering a fairly dramatic change to their drunk driving laws, something that has surprised many in the state given the little public opposition the measure has sparked.

The new legislation, sponsored by two Republican lawmakers, would change the state’s law to require lengthy prison sentences for those individuals with repeated drunk driving arrests. Specifically the measure would mean that people who have been convicted of between seven and nine drunk driving incidents would be required to serve a three-year prison sentence. The measure would also require that judges impose a four-year prison term for anyone who faces a 10th conviction for drunk driving.

The most unusual and seemingly controversial aspect of the new law is the provision that requires the imposition of a 30-day jail sentence for any driver who causes an injury while behind the wheel and has a BAC between 0.04 and 0.08 percent at the time of the accident. Creating a criminal offense out of driving with less than the legal limit of alcohol in your system was expected to result in public outcry, but surprisingly little fuss has been raised at recent public hearings.

Similar measures were proposed in Wisconsin in 2009, but state courts have said they were not written in a way that requires judges to follow the recommendations. The recent iteration was advanced to correct that mistake and force judges to issue sentences according to the legislative mandate.

Though opposition so far has been scant, a few lawmakers have raised concerns about the legislation. For one thing, some are worried that it will lead to unnecessarily large increases in prison populations, something that most counties in the state are not equipped to handle. Another worry is that the new law does nothing to actually solve the underlying problem that leads to such repeat DWIs: chronic alcoholism. One legislator said that if the state really wants to reduce the incidents of repeat drunk driving, then more money should be directed towards providing treatment and rehabilitation to those with drinking problems. Punishment for punishment’s sake does little to solve the recurring problems posed by repeat drunk drivers.

A recent example of this occurred in Chicago when, earlier this week, a man from Lake County was sentenced to 13 years in prison for his eight drunk driving conviction. The man, now 43, received his first DUI at the age of 17 and has struggled with alcohol every day in between. Prosecutors say the man was arrested a total of 10 times for DWI and cited another two times for boating while intoxicated.

The man was arrested last year after an officer spotted him swerving in and out of his lane. He was convicted of driving drunk and prosecutors asked for a 15-year sentence, arguing that the man was a public safety risk. His defense attorney spoke out, saying the drunk driver had been severely abused as a child and has struggled with alcoholism ever since. Moreover, the man has a 12-year-old son that he desperately wanted to see grow up. The judge was unmoved and sentenced him to 13 years behind bars. Whether the lengthy jail term will actually do any good or lead to any rehabilitation remains to be seen.

Source: “Drunken driving bill draws little opposition at public hearing,” by Todd Richmond, published at PostCrescent.com.

Historically, Minnesota courts rely on a concept called “single-factor exigency” in striking down challenges to Minnesota’s DWI laws.  Single-factor exigency refers to the rapid, natural dissipation of alcohol in a person’s bloodstream that creates a sole exigent circumstance sufficient enough for law enforcement to bypass securing a warrant when obtaining a chemical test from an individual.  Recently in Missouri v. McNeely, the United States Supreme Court concluded that single-factor exigency, on its own, is not a sufficient reason for the police to draw blood from someone arrested on suspicion of a DWI.  In upholding the Fourth Amendment’s protection against unreasonable searches and seizures, the Court stated that exigency must be determined “case by case based on the totality of the circumstances”.  That decision directly abrogates Minnesota law, most notably its decisions in Shriner and Netland.    

Factually, Shriner and McNeely are similar in that they both involve nonconsensual warrantless blood draws.  In Shriner, the Minnesota Supreme Court said it was perfectly fine for law enforcement to take someone’s blood without a warrant and without the person’s consent.  The court in Shriner relied heavily on an incorrect interpretation of Schmerber stating that Schmerber allows for single-factor exigency.  But, McNeely instructs that Schmerber calls for a totality-of-the-circumstances test, not single-factor exigency. 

In Shriner, the Minnesota Supreme Court also stated that requiring law enforcement to get a warrant would be an unreasonable burden in DWI cases, despite the availability of telephonic warrants and the accessibility of warrants in the digital age.  McNeely, again, disagreed with Minnesota’s overgeneralization and stated that a per se rule against obtaining a warrant is an incorrect analysis of Schmerber, which calls for a fact specific inquiry in each case.  The Court in McNeely went on to state that Schmerber was decided 47 years ago, and that the advances in technology allow for a more streamlined warrant process, which the majority of states allow.  

In State v. Netland, the Minnesota Supreme Court held that a warrant was not required to obtain a chemical test for blood alcohol and the refusal statute is not unconstitutional.  Netland was arrested on suspicion of a DWI and she requested a blood test.  The officer, however, would only offer Netland a breath test.  After repeated efforts to take the breath test, the officer charged Netland with refusal based on deficient samples given by Netland.  In its decision, Minnesota again relied heavily on single-factor exigency and stated that a warrant is not required to secure a blood-alcohol test when there is probable cause to believe someone was under the influence of a chemical while driving.        

In light of McNeely, Shriner and Netland are no longer good law.  If you decide to Shepardize, Keycite, or ask your local reference librarian for guidance, they all will tell you to not rely on Shriner and Netland anymore.  As a result, Minnesota’s entire Implied Consent laws may fail.  Minnesota can no longer solely rely on single-factor exigency.  If Minnesota continues to hold that a warrant is not necessary to obtain a chemical test from someone arrested on suspicion of a DWI, then it will have develop another reason to do so.  Until the United States Supreme Court overturns Minnesota, again.       

By Robert H. Ambrose, Associate Attorney at Kans Law Firm, LLC

Kait8 reports a 29-year-old woman from Jonesboro Arkansas was arrested for DWI after attempting to leave an accident scene in a child’s Power Wheels truck.

A witness reported that at approximately 5:30 p.m. on a Sunday, a woman was driving a 2001 Pontiac Grand Am at a fast speed, rounded a corner, and then hit his mobile home’s under panel.

Another witness reported that the woman began yelling at the trailer’s owner, grabbed the man’s daughter, and then got into his son’s battery-operated truck. The woman was dressed in a white sweatshirt, and was not wearing any pants or shoes.

Apart from DWI, the woman was also charged with disorderly conduct, refusal to submit, public intoxication, leaving the accident scene with property damage, and driving with a suspended, cancelled, or revoked license.

The man then gathered his children and took them to their grandparent’s house. According to the man, the woman was still in trying to drive the toy truck by the time he came back out.

After the man and his father made the woman get out of the Power Wheels truck, the women reportedly began yelling and stormed off to her mother’s house. It was here the police found her, seemingly infuriated and intoxicated.

The arresting officer administered a portable breath test to the driver. He stated that he had to hold the woman’s shoulders because she could barely stand. Her breath test results showed a BAC reading of .217, almost thrice the legal limit.

The officer also recounted that the woman began to scream and shout during the investigation. She began to kick the door of the police car and continued to act disorderly and uncooperatively, even after being placed in custody and arriving at the Craighead County Detention Center.

The woman was left in jail in lieu of a surety bond amounting to $2,067.

Reports state that the man was definitely impaired, although was not necessarily under the influence of drugs. The man’s argument was that he suffered from bipolar disorder and paranoid schizophrenia. He also stated that he was dehydrated and hungry at the time an officer pulled him over for making an illegal right turn.

According to the chief judge of the Court of Appeals, the evidence was enough to prove that the man was impaired, although was not enough to prove that he was under the influence of intoxicating substances or drugs.

The Office of the Attorney General, however, is not giving up. The Associated Press reports that prosecutors filed a petition requesting that the appeals court opinion be reviewed.

The Idaho Deputy Attorney General stated that the Supreme Court should consider the situation, particularly since there aren’t many set laws on how to prove an individual is driving under the influence of drugs.

DUID in Minnesota

In the state of Minnesota, driving under the influence of drugs or DUID is considered a crime. The law prohibits operating a vehicle while being impaired by a controlled substance. Drivers who are suspected of DUID are subject to a urine and/or blood test to check for the presence of controlled substances. The refusal to take these tests is considered a crime.

Criminally speaking, DUID carries the same penalties as individuals who drive under the influence of alcohol. A fourth degree or first time DUID is considered a misdemeanor, and may result in a maximum of 90 days behind bars and/or a $1,000 fine.

A second degree DUID and a third degree DUID are both considered gross misdemeanors, and will carry maximum sentences of a year in jail and/or a fine in the amount of $3,000. A first-degree DUID in MN is considered a felony, and carries a maximum sentence of up to 7 years in prison and/or a $14,000 fine.

Charged with a DUID in the State of Minnesota? Call the Kans Law Firm, LLC at (952) 835-6314.