Today a Hennepin County Judge threw out a DWI case because our client’s constitutional rights had been violated. Our client was charged with DWI after an officer in a dark unmarked SUV pulled up next to our client at an intersection with controlled traffic signals. The officer did not believe our client’s vehicle was up far enough to trigger the sensor of the traffic control light so he pulled up along side our client’s vehicle and asked her to roll down the window. The officer testified that our client had not violated any traffic laws. He told the judge that our client was “slow” to roll down her passenger window despite the fact it was the middle of the night and he was in a dark unmarked SUV. The officer told our client to move up and trigger the traffic control light. Our client said “okay.” The officer testified that our client slurred this two syllable word despite the fact the he was seated in his dark unmarked SUV and our client was in the driver’s seat of the car she was driving- in between both of them was a passenger in our client’s car. The officer then ordered our client to pull over to the side of the road and was ultimately arrested for DWI. The judge did not buy the officer’s basis for the stop and threw the case out. Just another day at the office for the DWI GUYS. Congratulations to our client!
Minnesota Court of Appeals: Warrant Needed for DWI Blood Test, Refusal to Test Without Warrant Not a CrimePublished On: October 17th, 2015
After years of challenges from defense attorneys in Minnesota, the Minnesota Court of Appeals has finally acknowledged that a search warrant was needed for a DWI blood test request, and the driver’s refusal to submit to that test in the absence of a warrant cannot be a criminal offense. This decision is extremely important, but is limited in its scope. First of all, the decision applies ONLY to blood tests directly. The Minnesota Supreme Court held last year that a warrant was not needed for DWI breath test requests, which means the refusal to take a breath test can still be a crime. (That decision is awaiting possible review by the U.S. Supreme Court.) As for urine tests, that is an unanswered question at this point.
More than ever, it is critical that anyone who has been arrested for DWI seek legal advice prior to making the decision about taking the test for the officer. The DWI Guys are available 24 hours, 7 days a week for free testing advice at 1-800-DWI-GUYS. The law is drastically different depending on the type of test being asked for by the officer. We suspect that officers will be instructed to offer breath tests only whenever possible, which they already do in the vast majority of cases.
This new decision also calls into question whether the current Implied Consent Advisory form violates due process by advising all drivers that “refusal to take a test is a crime.” This Advisory must be read to a DWI offender before the officer requests an official alcohol concentration test at the police station/jail. An argument can now be made that the Advisory gives bad advice to individuals who are eventually asked to take a blood test without the officer obtaining a search warrant first. Again, this applies to a small percentage of DWI offenses because most officers request breath tests, but it is a step in the right direction when it comes to preserving individual rights.
It seems like the Minnesota Legislature changes parts of the DWI laws every year that increase penalties on drunk drivers while making the process more easy for officer and courts to convict them. One major change that took effect for offenses occurring on or after August 1, 2015 is creating harsher penalties than ever for many offenders, most notably first time offenders.
The change concerns the alcohol level needed to create an “aggravating factor” in the DWI offense, which was lowered from .20 to .16. The change was made to reflect the original concept for this aggravating factor, which was set at .20 back when that was double the previous limit of .10. The legal limit was lowered to .08 back in 2005, but the aggravating threshold remained at .20 until this year.
So what happens when a person reaches the “aggravating” threshold of .16? First of all, the person must be held in custody until a judge sets bail and conditions of release, even if it’s a first-time offense. Once a judge reviews the case, the law requires the person to only be released if they post the maximum allowed bail/bond of $12,000 or if they agree to participate in a daily electronic alcohol monitoring (EAM) program until their case is resolved. The EAM program has a daily fee of $12-20 depending on the county, and the person is required to blow into a machine three times each day, seven days a week, to verify sobriety.
Second, the aggravating threshold will cause the DWI offense for first-time offenders to be bumped up to a gross misdemeanor level, which is a more serious level of criminal conviction to have on record if convicted. Gross misdemeanors typically have longer probationary sentences (2-6 years compared to 1-2 years for misdemeanors), higher fines (mandatory minimum of $900 compared to $300 for misdemeanors), and more jail time stayed for probation violations that may occur (one year compared to 90 days for misdemeanors).
Third, the aggravating threshold can be used a second aggravating factor in combination with either a prior DWI within ten years or the presence of a child under 16 to cause the vehicle used for the offense to be forfeited to the state. Many more cases have fallen into this category and allowed police to forfeit even more vehicles than they already had been.
With all of these increased penalties at a lower alcohol level than before, some may think that refusing the test is a better option. However, the refusal to test already starts at an aggravated level similar to the way a test of .16 or more does. There may still be benefits to certain individuals for refusing the test when it comes to the license revocation and license plate impoundment penalties, so it’s wise to consult with an attorney prior to making the decision about testing to determine the best course of action. The DWI Guys are available for testing advice 24 hours a day, 7 days per week at 1-800-DWI-GUYS.