Minnesota DWI DUI Lawyer, Minneapolis Criminal Defense Attorney

Posts Tagged ‘reasonable suspicion’

Probable Cause and DWI Arrest Explained

Monday, January 2nd, 2012

Probable cause refers to evidence or facts that would make a reasonable person believe that a crime has been, is being, or will be committed. It is based on factual evidence, not simply on suspicion.

Probable cause to arrest a DWI offender is not the same as arresting a person on reasonable suspicion to detain him/her for the purpose of investigation. When arresting a drunk driver, there are more factors required for the arrest to rise to the level of probable cause. The officer’s initial observation of a driver’s unusual driving behavior is not enough, although it often suffices to establish reasonable suspicion for the traffic stop.

Probable Cause Must Exist To Justify An Arrest

In order for a judge to issue a warrant of arrest or a search warrant, there must be probable cause that a crime took place and that the accused person has committed or was involved in the criminal activity. In case of a warrantless arrest (as is the case with a DWI arrest) the arrest must meet the standard of probable cause so it can be admissible in court.

Sometimes a Minnesota DWI defense Lawyer can establish that the officer that arrested his client for DWI didn’t have probable cause. In such cases, the DWI attorney presents his case to the trial judge, who will weigh the evidence to come up with a decision. The judge requires specific evidence, and not just conclusions from witnesses. A case that lacks specific evidence, more often than not, is dismissed by the trial judge.

How an Arresting Officer Establishes Probable Cause

In general, though not at all times, a police officer establishes probable cause to arrest a driver by:

observing the driver’s impaired driving behavior and establishes a reasonable suspicion of a DWI violation
stopping the vehicle and questioning the driver
administering a standardized field sobriety test (SFST)
administering a preliminary breath test (PBT)

What Happens During a Minnesota DWI Arrest

If reasonable suspicion and probable cause is established by a police officer, a DWI arrest will take place. If you’re arrested for DWI, the arresting officer must advise you of your right for an attorney and read your “implied consent rights” which informs you of your rights to refuse submitting yourself to a chemical test and the consequences resulting from your refusal.

The officer will then request an evidentiary chemical sample from you, whether through breath, urine or blood test to determine your blood alcohol content (BAC). If you refuse a certain type of test, you must be offered another type of test. It’s important to note that refusing a chemical test is a crime in Minnesota.

If you’re unconscious, then the consent is deemed not to have been withdrawn, and the chemical test can be administered. The officer determines whether a sample for the test is taken from your breath, blood or urine.

Minnesota Breath Tests

The two types of breath tests in Minnesota are the Preliminary Breath Test (PBT) and the Evidentiary Breath Test (EBT). The handheld PBT is only used at the scene before a DWI arrest. It’s not as reliable as the EBT and in general its sole results are not admissible in court. The PBT results help officers determine whether they have probable cause to arrest you or not. After the arrest, the EBT is taken at the station where the DataMaster EBT machine is. The results of the EBT are admissible in court. Refusal to submit to an evidentiary breath test is a misdemeanor criminal offense in Minnesota.

Reliability of Breath Tests

The results of the evidentiary breath test are used as evidence to prove your guilt. It’s important to know, however, that the results of the DWI breath test are not always perfect. There are certain human variables which may affect the results of the test such as diseases and the individual’s bodily compositions. The machine itself is also prone to maintenance and operator errors. This means that the machine can make you appear guilty of DWI even when you have not taken alcohol beverage or prohibited drugs. It can even make you appear innocent even if you are truly impaired. As a result of this, sometimes results of the breath tests can be challenged in court.

Challenging a DWI Arrest

To establish probable cause of a DWI arrest, there are many factors to consider from the time the vehicle is spotted (a car weaving without crossing a line can’t be stopped in Minnesota), up to the filing of the DWI case. There are sometimes flaws during the prosecutor’s presentation of the case in court. If the prosecutor is not able to establish a probable cause for a DWI arrest, the DWI charge can be dismissed. There are many flaws and mistakes that an experienced Minnesota DUI Lawyer is able to effectively challenge.

What to Do If You’re Arrested

If you or a loved one happens to be charged with a DUI related offense, you can greatly better your situation with the immediate help of an experienced DWI attorney. Douglas T. Kans has the know-how and ability to provide you with the best strategy in defense of your case. You can contact us at (952) 835-6314 for a free case review.

Tags: dwi arrest standardized field sobriety test, dwi offender, field, preliminary breath test, probable cause, reasonable suspicion
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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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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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