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Requesting an Additional Test When Arrested for DWI

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When you are arrested for a DWI, you will be asked by the Officer to submit to a breath test, or either provide a urine sample or have blood drawn in order to determine your blood alcohol concentration (“BAC”) level. What the Officer likely will not explain to you – because they don’t have to – is that you have the statutory right to request your own independent test to be performed to determine your BAC.

Minn. Stat. 169A.51, subd. 7(b) expressly permits a person to request their own independent test when said person has already submitted to the above-described test from the Officer, is taken at the location where the person is in custody, and there is no expense to the State. Requesting an additional test may prove helpful if your BAC reading is at or near an important threshold – like .08, .16, or .20.

When a person makes a request for this additional test, the Officer is required to accommodate this request by making available a phone to make the appropriate arrangements. The Officer is not required to advise you about the process, give you contact information for any agencies, or to drive you to a place to have the additional test performed. The Officer also does not need to wait at the booking station for the third-party to perform the additional test – meaning, you will likely still be transported to the local jail after booking, even if you request the additional test. Succinctly stated – the Officer has no duty to assist you in following-through on your request.

But, if the Officer’s action prohibit you from getting this additional testing performed, then the original test is suppressed in both the criminal and implied consent venues. As you can imagine, this is a stiff penalty and could result in a dismissal of the charges.

There is a lot of case law on this nuance of Minnesota’s DWI law. Hiring an experienced Minnesota DWI attorney to investigate the viability of this defense may be critical to your case. Contact us today.



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