DWI

Posts Tagged ‘DWI’

Minnesota Court Rules Warrant Not Required to Analyze DWI Blood Test

Tuesday, June 15th, 2010

In a recent published Minnesota Appellate Court Decision, Harrison v. Commissioner of Public Safety, the Court ruled that the government is not required to gather a search warrant prior to testing a driver’s blood sample, which he consented to at an earlier date subsequent to his DWI arrest.

In Harrison, the driver consented to a withdraw of his blood for alcohol testing after his arrest for DWI. The sample was later analyzed by the Bureau of Criminal Apprehension (BCA) Lab to determine Blood Alcohol Concentration (BAC) and it was later found that his Blood Alcohol Concentration was above the legal limit of .08 and his driver’s license was subsequently revoked as a result.

At Harrison’s driver’s license revocation hearing, his attorney agreed that the initial blood test was legally obtained (i.e. consent); however, he argued tht the subsequent testing of the actual blood test sample by the BCA was illegal and in violation of the driver’s constitutional right against unreasonable searches and seizures, because the government did not have a warrant to analyze the blood test.

Furthermore, the driver argued that whatever exigency exited allowing for the initial warrantless blood draw ceased to exist once the blood was actually withdrawn and set aside for testing. Therfore, there is no exigency exception to the warrant requirement once the blood is withdrawn and the court should hold that the blood test is inadmissable.

The Court rejected this argument. First, the Court reasoned that once it is determined that the actual withdrawal of the blood is legal, a seperate constitutional analysis is not required for the actual testing of the blood sample. However, even so, that there is no warrant requirement because the indivual driver has no legitimate expectation of privacy for a blood sample already withdrawn and sitting in a lab to be tested. In other words, once the blood sample is withdrawn legally, the driver loses any expectation of privacy in the alcohol concentration derived from the sample.

Tags: blood test, DWI, Minnesota, unreasonable searches and seizures
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Minnesota Court Issues Ruling in DWI Urine Test Case

Saturday, February 20th, 2010

Within the last several months there has been a string of rulings by the Minnesota Court of Appeals with regard to urine test challenges. I have discussed these rulings in my earlier blog postings. http://www.kanslaw.com/blog/minnesota-court-issues-ruling-on-reliabililty-of-urine-testing-in-dwi-cases.html and http://www.kanslaw.com/blog/minneapolis-dwi-lawyer-mn-court-issues-ruling-on-urine-testing.html. These cases, for the most part, dealt with the issue of ”urine pooling” and whether and expert witness should be allowed to testify with regard to this issue at the hearing or trial.

However, in the present case, Stucco vs. Commissioner of Public Safety, the court focused on this issue of whether a urine test obtained by the police after a DWI arrest is in violation of driver’s Fourth Amendment Constitutional right against unlawful searches and seizures.

In Stocco, the driver was asked to submit to a urine test subsequent to his DWI arrest and after he was read the Minnesota Implied Consent Advisory informing him that a refusal to submit to a test is a crime under the Minnesota Implied Consent Law. The driver submitted to the urine test which ultimately was tested by the Bureau of Criminal Apprehension (BCA ) and revealed an alcohol concentration of .14.

The driver’s attorney first argued that the urine test was not reliable because of the delay between the submission of the urine test and its ultimate testing by the BCA. An expert witness, testifying for the defense at the hearing in the lower court, stated that if the urine sample remained at room temperature or below freezing prior to testing, it may not be reliable. Without proof or evidence that either of these things actually occurred, the court ruled against the driver on this issue.

The second issue raised by the driver was whether the urine test was obtained by the police in violation of his Fourth Amendment Constitutional right against unlawful searches and seizures. The driver’s attorney argued that the ”implied consent” in this case was not voluntary consent as the test was coerced when the police told the driver he would be charged with the crime of refusal if he did not provide the urine sample. Furthermore, it was argued, since the driver did not give consent the police needed a warrant in order obtain his urine sample. Lastly, the driver’s attorney argued since the police did not have a warrant and the exigent exception to the warrant requirement did not exist, the urine test should be thrown out as violation of the driver’s Fourth Amendment Right.

However, the court, citing its earlier rulings, held that exigent circumstances did, in fact, exist in this case allowing for an exception to the warrant requirement. The court, citing an earlier Minnesota Supreme Court ruling, found that the natural dissipation of alcohol creates this exigency allowing for the exception.

Tags: DWI, fourth amendment, implied consent, Minnesota, reliabilty, unreasonable searches and seizures, urine pooling, urine test
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MN Click-it-or-Ticket Law Has Hidden Implications for Individuals Charged with DUI in Minnesota

Thursday, July 16th, 2009

Minnesota’s recent seat belt law and last year’s text messaging ban expanded law enforcement officers’ authority to pull drivers over, because both laws are “primary enforcement,” laws, or laws that allow officers to pull drivers over for violating them, without requiring that there be another reason for the officer to stop the driver. The new “Click it or Ticket” law went into effect on June 9, 2009. It replaces the secondary enforcement seatbelt law that was in effect for over 20 years in Minnesota.

So, what exactly changed on Tuesday? Well, two main things: First, now an officer can be pull you over if your seatbelt isn’t fastened, unlike under the old law where an officer had to have a primary reason to stop you, and could only give you an additional ticket if you belt wasn’t fastened. And second, now everyone in the car must be buckled in – not just the driver, the person in the front seat and kids, which is all the old law required.

What does that mean in Minnesota DUI law? One of the main defenses against a DWI charge in Minnesota is the officer’s probable cause for stopping a driver. If a Minnesota DWI lawyer argues, and the court finds, that there wasn’t sufficient cause for a stop that resulted in DUI charges, the charges are dismissed. Now, under the new seat belt law, not wearing one’s seat belt is sufficient cause for an officer to stop a vehicle, and the argument of an illegal or insufficient basis for the stop becomes much more difficult to argue.

An officer still needs to observe behavior from a stopped driver that warrants a reasonable, articulable suspicion that a driver is under the influence of alcohol in order for an officer to be able to administer a Preliminary Breath Test and Field Sobriety Tests. However, it’s much easier for an officer to detect the odor of alcohol or hear slurred speech when an officer is talking to a driver he stopped because of a seat belt violation, than when an officer is watching a car just drive by, minding its own business!

To be fair, there are a couple really compelling reasons why the Minnesota Legislature passed the seat belt law that have nothing to do with DUI charges or law enforcement’s authority: Lives and dollars. Turns out, by passing a primary seat belt law, Minnesota qualifies for some federal funding that it couldn’t otherwise, and statistically, wearing seat belts saves lives in car crashes which in turn saves resources like ambulance travel and paramedics’ time and therefore state tax dollars. State Senator Steve Murphy wrote an article talking about these factors, with the numbers to back them up. Click here to learn more.

Related Topic: Minnesota’s Text Messaging Ban

Last August, in 2008, Minnesota’s Text Messaging Ban went into effect. The law states that text messaging, emailing or accessing the internet on a wireless device, while driving in Minnesota – even if stopped in traffic – is a primary offense which can result in a fine of $300, regardless of the driver’s age. The law does not include the use of navigation devices or wireless devices that are permanently affixed to the vehicle. This means that no matter how old – or young – you are, if you’re texting or emailing on your cell phone while driving, an officer can pull you over, period. As for talking on your cell phone, well, that’s not as clear cut. Novice drivers (individuals with learners’ permits) and school bus drivers are not allowed any cell phone use while driving. Everyone else may use a cell phone to talk while driving.

The Governor’s Highway Safety Association website has a great chart that compares cell phone driving laws by state, and was just updated this month. The link to that chart is here.

Tags: DWI, Minnesota DUI law, reasonable suspicion, seatbelt law, texting, traffic stop, under the influence of alcohol
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Minnesota’s DWI/BWI Breath Tests

Friday, July 10th, 2009

Anyone who has either experienced DUI or BWI charges, or who has had a friend or colleague experience DUI or BWI charges, probably wondered why were there two types of breath tests?

The first breath test an individual facing DUI or BWI charges experiences is called the PBT — or preliminary breath test. Sometimes this is also referred to as the “portable breath test”, because it’s a hand-held unit that officers carry in their squad cars or boats and it’s administered on the road side or in the boat, before an officer places an individual under arrest for DUI or BWI, but after an officer has stopped a car or boat.

The PBT is rarely used as evidence against an individual for the purpose of charging him or her with DUI or BWI. Instead, the PBT is used by the officer to determine whether he has probable cause to arrest an individual with DUI or BWI in order to bring the individual into a police station and administer the evidentiary blood alcohol concentration test.

It is NOT a crime to refuse the PBT. However, an officer may use an individual’s refusal of a PBT as probabe cause to arrest the individual for DUI or BWI. The statute that governs how and when a PBT can be used is located at Minn. Stat. 169A.42, and can be found here: https://www.revisor.leg.state.mn.us/statutes/?id=169A.41

The “evidentiary blood alcohol concentration test” is a breath, urine or blood test. When it is a breath test, the Intoxilyzer 5000EN machine is used. Lately, there has been a lot of coverage of the challenges in district court in Minnesota to the Intoxilyzer machine. You may have heard some of the buzz regarding “Source Code Motions”. For more on what the source code is and why it was challenged, check out the in-depth article here on our website: http://www.kanslaw.com/intoxilyzer-500en.html

The statute that governs how and when the evidentiary chemical tests can be used is Minn. Stat. 160A.51, and is located here: https://www.revisor.leg.state.mn.us/statutes/?id=169A.51

The evidentiary chemical test is the breath test that individuals are required to submit two breath samples. This can be confusing, given the way Statutes 169A.41 and 169A.51 are written. The PBT does not have to be administered twice — and in fact, rarely is. However, the PBT is the less reliable test and the test that is not used as evidence to charge an individual with DUI or BWI. The evidentiary test, if a breath test, requires two breath samples, and this is to the individual’s advantage because the way the law is written, the police officers have to take the lower of the two readings and they have to round off the third decimal place, which can result in a lower score. For example, if an individual blows a 0.099 on the first try, and a 0.121 on the second, the reading that is officially recorded is 0.09, because that is the lowest reading, rounded off.

It is important to remember that the evidentiary chemical test is the breath or urine or blood test to which an individual cannot refuse to submit without facing additional charges. This is also known as Minnesota’s Implied Consent Law. To read the statute that discusses the consequences of refusing the evidentiary test, click here: https://www.revisor.leg.state.mn.us/statutes/?id=169A.52

One of the unintended side-effects of the success of Minnesota DUI lawerys’ challenges to the Intoxilyzer Source Code is that some police stations are now administering only urine and/or blood tests when individuals are arrested for DUI or BWI. Because urine and blood tests have to be sent into the Minnesota Bureau of Criminal Apprehension’s lab to be analyzed, the dramatic increase in the number of these tests being sent to the lab have created a back log. Individuals who have been arrested for DUI or BWI and given urine tests can be told they have to wait 3-6 weeks for the results of their chemical test.

During this holding period, though, an individual can still be charged with driving or boating under the influence of alcohol and still be given a court date for arraignment. Therefore, it is a good idea to contact a Minnesota DUI lawyer as soon as an individual has been arrested for DUI or BWI, even if charges haven’t been finalized yet, because the wait time for the urine or blood test results does not stop the clock from ticking on the criminal process that is set into motion by an arrest.

Tags: blood test, Boating under the influence of alcohol, BWI, driving under the influence of alcohol, DWI, Minnesota breath test, Minnesota DUI Lawyer, PBT test, urine test
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What is Boating While Intoxicated (BWI) and is it different from DUI?

Friday, July 3rd, 2009

As the Minnesota state motto accurately states, we are a land of 10,000 lakes. As the Minnesota Department of Natural Resources website states, “With nearly 900,000 registered boats, Minnesota is number one in boats per capita in the US. In fact, there is about one boat for every six people in the state.” And, with that many lakes and boats around, we Minnesotans sometimes like to be out in our boats on those lakes — especially when the forecast predicts a beautiful, sunny, 80-degree Fourth of July weekend.

The Fourth of July holds many different traditions for Minnesotans. If boating and drinking some beer or wine or cocktails with friends and family are part of your weekend plans, here are a few things you maybe don’t know — and should — about Minnesota BWI law, before you head off onto “the lake”.

The BoatU.S. Foundation maintains a really user-friendly website, with a page entitled “Minnesota Boating Law Basics”, on which they have information on licensing requirements, noise laws, PFD (personal flotation devices) laws, careless/reckless operation, speed limits, accident reporting, and BWI, as well as links to the Minnesota Department of Natural resources (DNR) website.

The short answer to the question, is BWI a crime in Minnesota, is YES. The law is almost identical to Minnesota’s Driving While Intoxicated law. The alcohol concentration limit is still 0.08, refusing a chemical test when requested by an on-water enforcement officer still results in a severe penalty, and aggravating factors, such as an alcohol concentration of over 0.2, having a child under 16 in the boat, or having a prior DWI conviction in the last 10 years, can enhance a current BWI charge.

BWI laws differ from DUI laws in a number of ways. One of the important ways in which they differ is that with a DUI, an officer needs to have a reasonably articulable suspicion to order to stop your car or truck while you’re driving. But with BWI, a law enforcement officer is sometimes allowed to board your boat simply for safety or security reasons. If an officer notices the smell of alcohol, or sees evidence of alcohol consumption by your or your party while aboard, the officer can investigate you for BWI.

Another important factor that makes BWI different from DUI is the effect the sun has on a person’s body, especially when alcohol is involved. When you’ve been drinking alcohol at a bar, and you go out to your car, your body is processing that alcohol in a way to which you are probably accustomed. However, alcohol dehydrates your body, and spending a day in the intense Minnesota summer sun also dehydrates your body. Being on the water makes the sun feel less intense than it is, and drinking a cold alcoholic beverage makes you feel like you’re rehydrating your body, even though you’re not. Thus, is it easy to underestimate the effects the alcohol is having on your body while you’re out on the boat. This means you can end up being surprised by how high your alcohol concentration is after a day of drinking out in the sun on the boat.

But there are a LOT of different types of water crafts out on the lakes. Are all of them subject to BWI laws? The answer is no. The Minnesota DNR states: “The BWI laws apply to operators of motorboats that are not anchored, beached, moored, docked, or being rowed or propelled by non-mechanical means at the time of the offense.”

Want more information? Here’s the link to the BoatingU.S. Foundation webpage: http://www.boatus.org/onlinecourse/statelaws/Minnesota.html. Also, the Minnesota DNR publishes an on-line booklet, called the Boating Guide, every year. The 2009 version can be found as a PDF at: http://files.dnr.state.mn.us/rlp/regulations/boatwater/boatingguide.pdf. Finally, here is a link to an article that discusses the mixed effects of alcohol and sun exposure: http://www.spiked-online.com/Articles/00000006DEC1.htm.

Have a great Fourth of July!

Tags: boating under the influence, BWI, DWI, reasonable suspicion
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State of Minnesota petitions MN Supreme Court to reconsider Intoxilyzer source code ruling

Saturday, May 9th, 2009

In a petition signed May 5th, 2009, the State of Minnesota has requested the Minnesota Supreme Court to reconsider its ruling in State vs. Underdahl. Specifically, the state has requested that the Court reverse its earlier finding that the State of Minnesota has possession of the source code.

In its petition, the state argues that they are not currently in possession of the source code and are unable to produce it, but are still currently involved in federal litigation with CMI of Kentucky, Inc. (CMI), the company owning the source code, in an effort to obtain the source code for defendants or petitioners, if ordered to do so by a district court.

One proposal put forth by the State of Minnesota,in its petition, s that the Minnesota Supreme Court delay its decision on this issue until the federal litigation involving CMI has been resolved. Stay tuned…

Tags: DWI, Intoxilyzer, source code
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