The Walk and Turn Test is a field sobriety test used by officers during an investigation for suspicion of driving while impaired (DWI) or driving under the influence (DUI). The officer should ask the suspect before conducting the test if he or she has any problems affecting their balance. The officer will either instruct the suspect to stand on a line if one is available or imagine a line from the officer’s feet to their feet. The officer will then instruct the suspect to place their left foot on the line followed by placing the right heel against the toe of the left foot. The officer will then continue instructing the suspect while he or she must hold this position. The officer then tells the suspect that he or she is to do 9 heel-to-toe steps on the line while counting the steps out loud. Next, the suspect must turn after nine steps by leaving their front foot on the line while taking small steps with the other foot to turn 180 degrees and then complete 9 more heel-to-toe steps. The officer will then state your arms are to remain down at your sides throughout the entire test. The officer will demonstrate the walk and turn test for the suspect as well.

Officers are trained to look for 8 different “clues” while conducting a Walk and Turn Test. Those clues are: cannot keep balance while listening to instructions, starts the test too soon, stops walking during the test, does not touch heel-to-toe on steps, steps off the line, uses arms to balance, performs incorrect turn, and takes the incorrect number of steps. The officer only needs to witness two clues for the suspect to be considered intoxicated with a blood alcohol concentration at or above the legal limit of 0.08.

This test is considered the second most accurate field sobriety test although multiple factors can affect the result of the test. For the test to be conducted most accurately it should be done on a level, flat, reasonably dry, and non-slippery surface. Another circumstance that can affect the test is the footwear of the suspect. If a person is wearing a heel over two inches or higher, flip-flops, or platform shoes the officer should give the suspect the opportunity to perform the test barefoot rather than in their footwear. The weather and wind can also affect the suspect’s balance while conducting this test. Another factor that can affect the suspect’s ability to perform this task is the person’s age and physical condition.

This field sobriety test is normally used in conjunction with the HGN test and the One Leg Stand test. Although the test is considered accurate it can be challenged as there are many factors that can affect the results considering most of the time this test is conducted roadside. The health of the suspect and the weather are two factors that can play a significant role in the accuracy of the test. Contact our Minneapolis DWI Lawyers today for a legal consultation.

 

The Horizontal Gaze Nystagmus or HGN test is used by officers during an investigation for suspicion of driving while impaired (DWI) or driving under the influence (DUI). The officer will hold a flashlight behind his or her fingertip, pen tip, or penlight while instructing the suspect to follow the tip of their item while he or she moves it horizontally from left to right. An officer conducting the HGN test looks for jerking or bouncing of the eye also known as nystagmus during the horizontal movement. A person impaired by alcohol might not be able to control their horizontal eye movements in a smooth and accurate fashion.

Officers are taught to look for six “clues” which is three per eye as to whether a suspect is intoxicated. The officer is trained to look for smooth pursuit of eyes on the horizontal object, maximum deviation jerking or bouncing of the eye or eyes, and prior to 45 degrees there is jerking or bouncing of the eye or eyes. The officer does not need to witness all six “clues” because the training only requires the officer to witness four “clues”. If four “clues” or cues are witnessed by the officer are supposedly an indication of a driver being under the influence of alcohol with a blood alcohol level of 0.08 or higher.

This test is erroneously rated one of the most accurate in conducting a field sobriety test for impairment. If conducted improperly the test will provide a false reading. The test can be affected by the flashing lights of the squad car or the headlights of the passing cars. The test can also be affected by a person’s nerves. Another factor that can affect the test results is the weather and the wind. Further, a recent study from the National Highway Traffic Safety Administration revealed that HGN test has no predictive correlation to a suspect’s blood alcohol level is under or over the legal limit.

This roadside test is often used with other field sobriety tests since most of the time the environment is not perfect to get an accurate result. Most of the field sobriety tests are done on the side of the road where cars are continuing to pass by or there is a possibility of wind or weather conditions affecting the result. Even though the test has been found to be inaccurate it is still used during most DWI or DUI investigations. Your defense lawyer can challenge aspects of the HGN test in pre-trial litigation, implied consent revocation hearings, and trial. The charade of field sobriety testing is just a means to get to the preliminary breath test (PBT) and arrest for a DWI. You can refuse field sobriety testing, including the PBT. If you do that, however, be prepared for the officer to arrest you on suspicion of DWI. Taking the evidentiary breath, blood, or urine test is more important than the roadside field sobriety tests. The evidentiary breath, blood, or urine test is what the cops and prosecutors will use to charge someone with a DWI. Refusing the evidentiary test will result in a Refusal DWI in Minnesota.

DWIs in Minnesota trigger driver’s license revocation periods. Depending on the circumstances of the DWI, prior DWIs or license revocations stemming fromDWI Attorney in Minnesota DWIs, the amount of time a person loses their driver’s license for can vary. However, Minnesota’s ignition interlock device program often allows drivers to get a restricted driver’s license during their revocation period. Recently, Minnesota enacted legislation that changed when ignition interlock is mandatory for someone to get their driver’s license fully reinstated with no restrictions at the end of the revocation time.

For a first-time DWI in Minnesota, ignition interlock is optional. A person can choose to wait out their revocation period and then go through license reinstatement at the DMV. A first-time DWI where the driver had an alcohol concentration under .16 will allow a person to get a limited license (a.k.a. work permit) after fifteen days of their ninety-day revocation period. A person who has a first-time DWI that is a DWI Refusal can get a limited license after fifteen days of their one-year revocation period. A driver who gets their first DWI and had an alcohol concentration of .16 or more can decide to sit out their one-year license revocation or they can get on the ignition interlock device program. In all three of the above scenarios, a reinstatement fee will need to be paid to the Minnesota Department of Public Safety (DPS) and an application will need to be made for a new driver’s license.

A second DWI in ten years in Minnesota makes ignition interlock mandatory if a person wants to drive during their revocation period; and if they want to eventually get a regular driver’s license back after their revocation period is over. This also applies for a person who has a third DWI in their lifetime. For a second DWI in ten years where the driver tested under .16, their ignition interlock time will be for one year. For a person who tests at least .16 or more or refuses the evidentiary breath test on their second offense, they will need to be on ignition interlock for two years.

For a third DWI in ten years in Minnesota, or fourth DWI in a lifetime, the period on ignition interlock is three years and it is mandatory for that person to get their regular driver’s license back. A fourth DWI offense in ten years triggers four years on ignition interlock, which is mandatory. Also mandatory is a fifth or more DWI offense that initiates six years on ignition interlock.

Importantly, if a person wants to lessen the time, they must be on ignition interlock, it is important to challenge the driver’s license revocation within sixty days of receiving notice of the revocation. This is called the implied consent process in which your DWI lawyer can file a petition for judicial review and try to get your revocation period reduced or eliminated. Besides winning your implied consent case, you must also obtain a dismissal or reduced offense in your DWI criminal case to obtain a lesser revocation period.

In some cases, the prosecution will file a motion asking the court for an aggravated (upward) sentencing departure. This means the prosecutor is asking the court to sentence you to a more severe prison sentence than what your offense calls for in the Minnesota Sentencing Guidelines. Any departure, mitigated or aggravated, is asking the court to sentence someone outside of what the sentencing guidelines provide.

In aggravated departures, the prosecution must provide reasonable notice to the defendant and court of the factors it intends to rely upon to support an aggravated departure. These factors include, but are not limited to, the alleged victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity, which should have been known by the defendant. Other factors include if the alleged victim was treated with particular cruelty for which the defendant should be held responsible if the current offense is a criminal sexual conduct case and the alleged victim was injured.

Other aggravating factors include major economic offenses, identified as an illegal act or series of acts by using means of concealment or guile to obtain money or property, to avoid payment or loss of money or property. Two or more of these circumstances present: offense involved multiple victims or multiple incidents per victim; the offense involved an attempted or actual monetary loss substantially greater than the usual offense or substantially greater than the minimum loss; the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time; the defendant used their position or status to facilitate the commission of the offense; the defendant had been involved in other similar conduct as evidenced by civil or administrative law proceedings.

Major controlled substance offenses can also be an aggravating factor. If two or more of these factors are present in the controlled substance crime: offense involved at least three separate transactions; attempted sale or transfer of controlled substances was in quantities substantially larger than for personal use; offense involved the manufacture of controlled substances for use by others; offender possessed a firearm; offender had a high position in a drug distribution hierarchy; offense involved a high degree of sophistication or occurred over a lengthy period of time; offender used their position of trust.

Other aggravating factors can include: defendant hired another person to commit the crime; the defendant is a dangerous offender (third violent crime); offender is a career offender; defendant part of a group of three or more people who all actively participated in the offense; offense committed in the presence of a child; offense committed in a location where the alleged victim had an expectation of privacy; among other factors.

If the prosecution is allowed to move forward with an aggravated departure, then the defense has a right to present evidence at a unitary or bifurcated trial on the issue. This part of the trial can also be in front of a judge or jury. Generally, the defense prefers a bifurcated trial, so that if they win, they do not have to go through that endeavor. And, if they lose, then it can be a separate trial focusing solely on aggravating factors.

In Minnesota, furnishing tobacco to a minor (person under 21 years old) is a petty misdemeanor for a first offense. A second offense or more within five years is a misdemeanor offense. Misdemeanors have a maximum punishment of up to ninety days in jail and a $1,000 fine. Importantly, Tobacco 21 is a law that went into effect on August 1, 2020. This made 21 the threshold age to sell or furnish tobacco to someone, raising the age from 18. Studies show that raising the age should reduce smoking and vaping in young people, since most adults started smoking before they turned 21.

Notably, there is not a Minnesota statute that prohibits possession of tobacco for a person under 21. The thought is that giving those a criminal record for such an act is not worth it. Importantly, this is just according to Minnesota statutes and does not affect local city ordinances. Such ordinances may prohibit possession. Check your locality to see if that is the case. Statewide, the decision was to go after those who provide tobacco to people under 21 instead.

The most common tobacco product is cigarettes. But it also includes cigars, chewing tobacco, snuff, tobacco-related products, such as rolling papers, pipes, bongs, electronic delivery devices, such as electronic cigarettes, vape pens, and modes. It is common to see pipes, bowls, and the like sold at smoke shops. Similar to selling tobacco to a person under 21, it is also punishable to sell these products to someone under 21.

There is an affirmative defense to furnishing tobacco or tobacco-related products to someone under 21. If the person charged with furnishing tobacco to a minor reasonably and in good faith relied on proof of age from the person they gave it to. This burden of this defense is a preponderance of the evidence. Therefore, if you sold tobacco to someone who gave you a fake ID, but you reasonably thought the ID was legit, then you can likely use that as a defense to being charged with furnishing tobacco to someone under 21.

There are also administrative (civil) penalties for those that furnish or sell tobacco or tobacco-related products to a person under 21. These apply to the person who furnished it and the employer. For employers, the first violation is an administrative penalty of $300. A second violation within thirty-six months of the first is a $600 fine. A third or more violation within thirty-six months of the first violation is a $1,000 fine and the employer’s authority to sell tobacco or tobacco-related products is suspended for at least seven days. The person who sold or furnished the tobacco or tobacco-related product will face a $50 administrative penalty in addition to any criminal charges.

Furnishing tobacco to someone under 21 can have a significant impact on criminal background checks, current and future employment opportunities, and general well-being. For a consultation at no charge, please contact Ambrose Law Firm by calling or texting 612-547-3199 or by email at ambroselegal@icloud.com. We help good people in unfortunate situations.

In Minnesota, furnishing alcohol to a minor (person under 21 years old) is a gross misdemeanor offense. Gross misdemeanors have a maximum punishment of up to one year in jail and a $3,000 fine. It is very uncommon, however, for anyone to actually serve the maximum punishment on this type of offense. The person furnishing the alcohol can also face civil penalties if the minor sustains injuries or injures another person or causes property damage. In situations, where the furnishing of alcohol to a minor occurs at a liquor store, restaurant, or bar, the establishment may face civil penalties and fines.

One of the most common ways a person faces charges for furnishing alcohol to a minor is when law enforcement sets up a sting operation. The cops will have someone who is under the age of 21, but generally looks older, go into a liquor store, restaurant, or bar and attempt to purchase alcohol. If the person selling the alcohol does not ask for a picture ID of the buyer, then you can virtually guarantee they will be charged with furnishing alcohol to a minor. In that scenario, the buyer usually finishes the purchase of the alcohol, leaves the establishment, and then the police officer comes in to talk to the seller of the alcohol. Law enforcement usually does not handcuff the seller and take them to jail. They often will give the seller information about what happened and that they can expect charges to come in the mail. A police report then gets drafted and forwarded to the prosecutor’s office. The prosecutor then reviews the case and decides whether to file charges with the court. If that happens, then the court will mail the seller the notice of the charges with a court date to appear for an Arraignment.

Another common way a person faces charges for furnishing alcohol to a minor is when someone at least 21 years old buys alcohol for someone under 21. Typically, some additional event occurs for law enforcement to get notified this has happened. Such as the police respond to a disturbance at a party where underage consumption of alcohol is occurring. The officers then further investigate and gain evidence of who provided the alcohol to the minors.

There is an affirmative defense to furnishing alcohol to a minor. If the person charged with furnishing alcohol to a minor is the parent or guardian of the minor and the person charged gave the alcoholic beverage to the minor solely to be consumed in the defendant’s household. This burden of this defense is a preponderance of the evidence. Therefore, if you give your kid a drink with alcohol at dinner while at your house, you can likely use this defense if you end up charged with furnishing alcohol to a minor for doing so.

Furnishing alcohol to minors can have a significant impact on a person’s criminal background check, current and future employment opportunities, and general well-being. For a consultation at no charge, please contact Ambrose Law Firm by calling 612-547-3199 or by email at ambroselegal@icloud.com. We help good people in unfortunate situations.

In Minnesota, what constitutes underage age drinking and driving? Seems simple enough. If you are under the age of 21, you drink alcohol, and you drive. Then, that is illegal, correct? The short answer is yes. Do not drink any alcohol and then drive a motor vehicle if you are under the age of 21. It is generally never a good idea to drink and drive, even if you are 21 or older and are under the legal limit. But if you are under the age of 21, then your margin for error is literally zero.

The law states that underage drinking and driving is a crime when “there is physical evidence of the consumption present in the person’s body.” To gather evidence for this, law enforcement officer will generally ask the person under the age of 21 to blow into a preliminary breath test (PBT). This is a handheld device that police officers use often at the side of the road to gauge a person’s blood alcohol concentration. You see it often requested in DWI investigations to aid an officer in determining whether to arrest someone on suspicion of DWI. If the PBT is above .08, then the driver is almost assuredly arrested for a DWI and taken to the local police department where they are read the Minnesota Breath Test Advisory. At that point, the driver can consult with an attorney before deciding to take the evidentiary breath test through the DataMaster device.

In underage drinking and driving cases in Minnesota, the investigation often ends right after the PBT. If it is above zero and below .08, then the officer will generally issue a citation to the driver and see if someone can pick them up. The driver’s vehicle is then impounded or, if you are lucky, left at the location of the incident to be picked up later. The citation will then be entered by the court administrator, and you will be notified of a court date. The collateral consequence of being convicted of underage drinking and driving in Minnesota is that it triggers a thirty-day driver’s license suspension. If it is the violators second conviction for underage drinking and driving, then the person will face a one-hundred-and-eighty-day license revocation. Preventing a conviction for underage drinking and driving through a stay of adjudication, continuance for dismissal, diversion, or dismissal based on pre-trial motions are some ways to keep a person’s driver’s license absent winning at trial.

If the driver was underage and they test .08 or more on the DataMaster device, then they will be subjected to the DWI penalties and not simply underage drinking and driving. There are various other ways a person can get a DWI, such as simply driving while impaired, refusing the evidentiary test, or being under the influence of a controlled substance. The civil penalties are more severe in the DWI context and the criminal penalties can also be more severe in some circumstances. For a consultation at no charge, please contact Ambrose Law Firm by calling 612-547-3199 or by email at ambroselegal@icloud.com.

First Degree DWI is a felony level offense in Minnesota. It does not get higher than that for a DWI in Minnesota. For a first-time felony DWI in Minnesota, the maximum punishment is up to seven years in prison and a $14,000 fine. A first-time felony DWI in Minnesota does not mean a person will go to prison, however. If you do not have any criminal history points, then worst case, you will often face a stayed prison sentence with the potential for local county jail time. If it is your second felony DWI in your lifetime, then you are very likely facing a presumptive commit to prison under the Minnesota sentencing guidelines.

One way a person can be charged with Felony First Degree DWI is if this new DWI is their fourth one in a ten-year period. Be mindful that you do not need all the prior DWIs in the past ten years to be DWI convictions. Merely, implied consent license revocations stemming from a DWI arrest can be enough to count as a prior designated offense for enhancement purposes. A first-time felony DWI can trigger a mandatory minimum sentence. This minimum sentence is thirty consecutive days in jail and one hundred and fifty days of house arrest. You may be able to avoid that mandatory minimum sentence in certain situations. Through the work of your defense attorney and discussions with the prosecutor and judge. Importantly, if you receive a stayed sentence, then you will have prison time hanging over your head. If you comply with probation and successfully complete your probationary term, then you are unlikely to ever serve that prison time. If you violate your probation, then it is possible for a judge to sentence you to prison time. It is not automatic, but rather you would go through the probation violation hearing process and arguments can be made to keep you out of prison.

If you have a prior felony DWI conviction, then you will likely be facing a presumptive commit to prison according to the Minnesota sentencing guidelines. The minimum sentence would be no less than thirty-six months in prison, but often a bit higher based on a likely criminal history score for a second time felony. Because of the potential liability at stake, these cases often end up being challenged in pre-trial motions and ultimately trial. Having your defense lawyer review your case for potential legal issues is paramount. Aside from litigating your case in court, your attorney may be able to work out a plea negotiation with the prosecutor to keep you out of prison. Absent those things, you can motion the court for a departure to keep you out of prison. This can be achieved if you can prove substantial and compelling circumstances that show you are amenable to probation or treatment. Getting a chemical dependency evaluation completed and following its recommendations early on in your case can often prove to be beneficial.

Another way to face a felony DWI is if you have a prior felony Criminal Vehicular Operation conviction according to the felony first degree DWI statute. Thus, even if you do not have a prior felony DWI conviction or this is your fourth DWI in ten years, you can still face a felony first degree DWI.

First Degree DWIs will also trigger lengthy driver’s license revocations and often involve a loss / seizure of your motor vehicle that was used during the incident. Minnesota’s laws are routinely changing over recent years on vehicle forfeitures. You have sixty days to challenge your vehicle being taken away by filing a complaint and demand for judicial determination. But, there are also other ways to get your vehicle back through the prosecutor’s office and law enforcement agency that seized your vehicle.

Second Degree DWI is a gross misdemeanor level offense in Minnesota. This level of offense carries a maximum punishment of up to one year in jail and a $3,000 fine. Second Degree DWI is the second most severe level of DWI in Minnesota. First Degree DWI is the only more serious DWI and is a felony level offense.

There are different ways a person can face a Second Degree DWI. Your first DWI can even be a Second Degree DWI in limited circumstances. More commonly, it results as your second or third DWI offense in a ten-year period. Minnesota has aggravating factors to determine what level of degree of DWI you would be charged with under the circumstances. One aggravating factor is if your evidentiary breath, blood, or urine test resulted in an alcohol concentration of .16 or more. Another aggravating factor is if you had a child under the age of sixteen in your vehicle at the of the offense. A third aggravating factor is if you have a prior DWI conviction or license revocation stemming from a DWI within the past ten years. If you have two or more of these aggravating factors present, then your DWI will rise to second degree. Another way to get to that level is if you refuse the evidentiary test in your current DWI and you have a prior DWI conviction or license revocation within the past ten years.

Importantly, the alcohol concentration level to focus on is from the evidentiary test an officer asks you to take. This is different than the PBT – preliminary breath test that law enforcement may ask you to take near the location of your arrest. Similarly, officers cannot charge you with a refusal DWI for refusing to take a PBT. Evidentiary tests are needed for that.

Second Degree DWIs also trigger mandatory minimum sentences if it is your second or third DWI in a ten-year period. Your second DWI in ten years triggers a more severe mandatory minimum sentence than your third DWI in ten years. But, you may be able to avoid the mandatory minimum sentence depending on the circumstances of your case, which also includes the prosecutor, judge, and defense attorney.

Second Degree DWI arrests also often lead to someone being held in custody until bail is set and paid, they see a judge, or are released on conditions such as an alcohol monitor. If the person is held in custody, they are likely going to be subjected to the mandatory maximum bail of $12,000. Judges will also give an alternative of lower bail or no bail plus the condition of someone being tested for alcohol consumption through an electronic device.

Second Degree DWIs will also trigger license revocations and license plate impoundment. Second Degree DWIs also often come with seizure of a motor vehicle. Minnesota’s laws are ever changing on vehicle forfeiture. Currently, there are ways to get your vehicle back without having to challenge the matter in court. Otherwise, you do have the right to challenge your vehicle being taken away in court and have sixty days to do so.

Third Degree DWI in Minnesota is a gross misdemeanor level offense. Gross misdemeanors have a maximum punishment of up to one year in jail and a $3,000 fine. Third Degree DWI is neither the most severe, nor least severe DWI. First Degree DWI is the most serious in Minnesota, which is a felony level offense. While Fourth Degree DWI is the least severe DWI as a misdemeanor offense.

There are a few different ways a person can be charged with a Third Degree DWI. Even if it is your first DWI offense, you can be charged with a Third Degree DWI in Minnesota. If it is your first offense and your alcohol level is .16 or more, then you can be charged with Third Degree DWI. If you have a child under the age of 16 in your vehicle at the time of the offense, then you can be charged with Third Degree DWI. If you refuse to submit to an evidentiary test, then you can be charged with Third Degree DWI Refusal on your first offense. Notably, when we are discussing what your test level is or refusing the test, we are talking about the evidentiary test a law enforcement officer may ask you to take. The preliminary breath test (PBT) that an officer may ask you to take at the side of the road or location of your arrest is not an evidentiary test. They cannot charge you with a refusal DWI for refusing a PBT. Similarly, you cannot be charged with a DWI for testing .08 or .16 or more based on the result of your PBT. An evidentiary test is needed for those things. That test is generally requested at a police department or jail. In Minnesota, when an officer requests an evidentiary breath test, they are supposed to read you the Minnesota Breath Test Advisory. This advisory includes your rights to speak with an attorney before deciding to take the evidentiary test.

Another way a person can be charged with Third Degree DWI is if they have a prior DWI or designated license revocation within the past ten years. This is an aggravating factor that also triggers a mandatory minimum sentence. Depending on the prosecutor, judge, and work of your defense attorney, you may be able to avoid the mandatory minimum sentence. Third Degree DWI arrests can also lead to being held in custody until either bail is set and paid, you see a judge, or are released after the thirty-six- or forty-eight-hour rule applies.

Third Degree DWIs will also come with longer license revocation and potential license plate impoundment. Currently, a Third Degree DWI will trigger a one-year driver’s license revocation. For Third Degree DWI Refusal cases, a limited license or work permit is currently an option during the license revocation period. For Third Degree DWIs based on a prior DWI within the past ten years or a test of .16 or more on a first offense, the ignition interlock program is an option during the revocation period. In either event, or in any license revocation stemming from a DWI, you have sixty days from the date the notice is served to challenge it with a petition for judicial review in court. Depending on the county, you may be able to get a driver’s license reinstatement on a temporary basis while your case is ongoing.  Contact our Minnesota DWI Attorneys today to discuss your case.

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