DWI Defense Attorney
It is critical to get a DWI defense attorney that knows the ins-and-outs of aggressively asserting legal DWI defenses on your behalf. While many may think DWI’s are slam-dunk cases for the State, that’s only true insofar as the defense attorney is willing to allow that. At worst, knowing the available defenses and when to be assertive with them can be great leverage to negotiate a resolution that is much more favorable to you and limits the consequences you would otherwise face.
Were you driving or operating the vehicle?
This may seem like a ridiculous question to ask. But, you’d be surprised at how often the question of whether the defendant was actually the driver or in control of the vehicle comes up in DWI litigation. Minnesota courts have developed a very loose interpretation of the phrase “in control of” in order to find those not actually driving their vehicle at the time of the arrest to still be arrested and charged with DWI. Circumstantial evidence then becomes huge and your defense necessitates an aggressive approach to fighting DWI charges.
Was the stop legal?
Before an officer may stop you, he or she must have “reasonable suspicion” that you committed a crime – including traffic offenses – or that criminal activity is afoot. Officers are known to work backwards by creating a basis for the stop after the DWI arrest has occurred in order to legally justify the arrest. Police reports, and any and all video or audio, must be scrutinized. Challenging the stop – and proving successful – can lead to the charges being dismissed.
Was there “Probable Cause” for the arrest?
The officer must have probable cause in order to effectuate the arrest and request the defendant to submit to further testing in order to determine the alcohol concentration level. Probable cause is determined based upon a review of all of the noted indicia of intoxication. This means that in almost all police reports, the officer will note some combination of the following indicia of intoxication: slurred speech, bloodshot and watery eyes, an odor of alcohol emanating from the driver or the vehicle, coordination issues – such as fumbling with identification, loss of balance when walking, and any admissions. In addition, the officer will likely request the driver to perform field sobriety tests: HGN test (an eye test), walk-and-turn, and one-legged stand. Finally, the officer will likely seek the driver to provide a breath sample on the side of the road, called a preliminary breath test. After gathering all of this information through these requests – which the driver can rightfully not comply with – the officer will likely believe he or she has developed enough facts to support a probable cause finding and arrest the driver. This is not automatic, though, and there are ways to challenge the probable cause finding – such as examining whether the officer conducted the field sobriety tests properly.
Invoke the Implied Consent Law properly?
Upon arrest for probably cause DWI, Minnesota law requires the officer to read the “Implied Consent Advisory” at the time he or she requests the driver to submit to a chemical test. The Advisory explains – in theory – to the driver that refusing to submit to a chemical test is a separate crime (DWI – Refusal) and that they have the right to consult with an attorney prior to deciding whether to take the test or not.
If the driver requests to speak with an attorney, the officer must give the driver a reasonable amount of time and the ability to contact an attorney. The officer may or may not leave the room to allow the driver to speak freely with the attorney. And, regardless, these conversations are likely audio and/or video-taped. So, if you are in this position and talk to an attorney, understand that this is not a confidential communication.
Affirmative Defenses by Statute
The DWI law – Minn. Stat. § 169A – also outlines two affirmative defenses that the defendant may prove by a preponderance of the evidence: post-driving consumption of alcohol and impairment caused by prescription drugs. See Minn. Stat. § 169A.46.
For post-driving consumption, the defendant must prove that the impairment resulted from his or her consumption of alcohol after driving. Typically, this requires expert testimony that the impairment – i.e. having an alcohol concentration level in excess of 0.08 – resulted only from the amount of alcohol consumed after driving and that the alcohol concentration level at the time of driving was below the legal standard. Any defendant raising this defense must give proper notice of doing so to the State.
In order to argue that the impairment was caused by the consumption of prescription drugs, the driver must demonstrate that they used the prescription drugs pursuant to a prescription and that said use caused the impairment. Yet, this affirmative defense does not apply to an “under the influence” charge or in the implied consent setting.
Additional Defenses from a DWI Defense Attorney
Finally, any legal analysis should also include: (1) whether or not the chemical test performed was conducted properly and that the test results were reliable and valid, and (2) was the request for additional testing honored properly by the officer.
If you are charged with a DWI, it is imperative that you get an experienced and aggressive Minnesota DWI defense attorney to explore the viability of these defenses for your case.