Yes. It is worth getting a lawyer for a DUI in Minnesota. Of course, you expect that to be an answer from a private law firm practicing criminal defense. But, a DUI lawyer who knows the nuances of DUI laws can add a level of knowledge that you otherwise may not have. Further, being charged in criminal court with a DUI is only one half of the case. Challenging the driver’s license revocation associated with your DUI case is neither something public defenders do routinely, nor is it an easy task to figure out on your own.
Value is measured in the eye of the beholder. What may be valuable to one person, may not be to another. Determining whether to hire a lawyer is comparable to deciding whether to go to a doctor for certain health conditions. If you think you broke your leg, you are probably going to want to get it checked out. Healthcare professionals can do an x-ray and determine whether there is a break. From there, they can recommend the best way to treat it. Surely, you could search on YouTube how to determine whether your leg is broken; and, if so, how to make a homemade cast. Or, you save yourself the hassle and ease your mind by going to see a doctor.
Similarly, lawyers are professionals in their fields. They can assess your case and determine the best course of action. They can review the discovery the prosecution provides and decide whether there are any issues to challenge in your case prior to a trial taking place. These are often called motions to suppress and motions to dismiss. DWI cases are often litigated in the pre-trial stages. Knowing the ins-and-outs of the legalities of traffic stops, field sobriety testing, right to counsel, and testing issues can be crucial. Even if you are not successful in a pre-trial motion, you still have the constitutional right to have a trial by a judge or jury. Having a lawyer with trial experience who knows the rules of evidence and how to try a case will save you the headache from trying to figure it out on your own.
For those not looking to challenge their DUI case, there is still value in having a DUI lawyer on your side. After all, many people will admit they consumed alcohol prior to driving. They are willing to take responsibility for what happened. But, they do not want to be taken advantage of in their case. In these circumstances, there can still be legal issues to challenge in a person’s case. We once had a client with an alcohol concentration of more than three times the legal limit and his car was in the ditch. We discovered an issue in his case with the policies the officers were following at the time and were able to get his DUI charge reduced to careless driving. At first blush, the client definitely did not think there would be anything to challenge. Staying out of jail and minimizing the damage were key priorities for him. But, we still did our due diligence and reviewed his case to identify any legal issues.
In cases with no legal issues present, having a DWI lawyer review your case and tell you that can alleviate concerns in the future. Back to the broken leg scenario, if you go to the doctor and they tell you that you did not break your leg, then you are going to have some peace of mind that you may not otherwise have been able to achieve. Having a DUI lawyer on your side to answer your questions and be there to advocate for your best interests is tremendously valuable to people who find themselves in the criminal justice system.
When evaluating whether you can beat your DWI case in Minnesota, a common first analysis is to look at how you came in contact with the police. Often, DWI cases start with a traffic stop. Others may begin with the vehicle already at a place of rest. In either scenario, you will want to review whether the officer conducted a seizure.
During traffic stops, a seizure is often apparent. The officer puts his lights and siren on and you pull over to the side of the road. To lawfully do that, the officer must have reasonable articulable suspicion of criminal activity. This can range from a minor traffic violation, such as speeding, to weaving all over the road and crossing the lane lines multiple times without signaling. Officers in Minnesota may not stop a vehicle based on a mere whim or idle curiosity. If they do so, you can challenge the basis for the traffic stop / seizure and ask that all the evidence obtained thereafter be suppressed. If the court grants a pre-trial motion such as that one, it often leads to a dismissal of the DWI charges against you.
When law enforcement encounters a person whose vehicle is already stopped, determining whether a seizure occurred is important to analyze. Officers sometimes approach a vehicle already parked in a parking lot. Or, come up to someone’s driveway to a person sitting in their car who reportedly drove their vehicle earlier. If the officers block those people in, so they are not free to leave, or show authority so that a person does not feel like they leave, then you may want to argue a seizure occurred. If so, then the officer has to have reasonable suspicion that a crime occurred and not just approach because they are curious.
Even if the officer came into contact with you ends up being valid in court, there can be other issues to challenge. Such as, the basis to expand the stop into a DWI investigation, the basis to ask you to take a preliminary breath test (PBT), probable cause for your arrest, reading you the proper advisories, right to counsel, right to independent test, and issues with a blood, breath, or urine sample.
Lawyers search for ways to get a DWI dismissed in the pre-trial stages through challenging issues like the ones mentioned above. Even if the DWI does not get dismissed based on pre-trial issues, then it can still occur through plea negotiations with a prosecutor. Sometimes, prosecutors are willing to have someone plead guilty to a lesser charge, such as careless driving. If plea negotiations fail, and you were not successful with any pre-trial motions, then you can still try to get your DWI dismissed by having a trial in front of a judge or jury. At trial, you would be presumed innocent and it would be the prosecutor’s burden to prove you guilty beyond a reasonable doubt. Your lawyer could cross-examine the arresting officer and any other witnesses the prosecutor chose to testify. You could testify or invoke your Fifth Amendment right against self-incrimination and not testify. Your lawyer would also present opening statements and closing arguments on behalf of your case. Having thorough discussions with your attorney about proceeding to trial is highly recommended. The reward of winning at trial is great. The risks need to at least be known before taking that step.
After an incident, it might be weeks, months, or even years before prosecutors bring formal charges against a defendant. In State v. Banks, the Minnesota Supreme Court ruled that a complaint can be dismissed under Rule 30.02 of the Minnesota Criminal Rules of Procedure if the prosecutors unnecessarily delayed in bringing those charges.
In order to have a case dismissed for pre-charge delay, a defendant must show that they were prejudiced or harmed by the delay. In Barker v. Wingo, the Supreme Court outlined three factors in determining prejudice:
1. Preventing oppressive pretrial incarceration
An individual may be prejudiced by having to endure time in jail while waiting to be charged. Time spent in jail awaiting trial is often detrimental to an individual, leading to the loss of a job, disrupting family life, and being forced into idleness with little to no recreational activities. Barker at 532.
2. Minimizing the anxiety and concern of the accused
Even if a person is not incarcerated prior to being charged, “he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.” Barker at 533. Criminal charges are serious and stressful allegations that affect peoples’ daily lives. When prosecutors delay in bringing charges, an individual is constantly facing stress and anxiety from the possibility of prison time and the affect criminal proceedings will have on their job and family life.
3. Preventing the possibility that the defense will be impaired
In any criminal case, a person has the right to prepare a defense. Often times, this includes collecting evidence and calling witnesses to testify. By the time prosecutors have formally charged a defendant, a significant amount of time may have passed. Witnesses may have died or forgotten important details about the incident, and critical evidence may not be preserved or accessible. “The inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker at 532.
While prosecutors are not expected to file charges immediately, an unnecessary delay that causes prejudice based on any of the above factors could be grounds for dismissal of your criminal case. If you have any questions, feel free to contact us for a consultation at no cost.
Last week, Attorney Robert Ambrose won an implied consent hearing in Hennepin County District Court. An implied consent hearing is a challenge to a person’s driver’s license being revoked in connection with a DWI case. To keep a person’s driving record from reflecting a revocation for a DWI, you must prevent a DWI conviction in the corresponding criminal record and you must win the implied consent hearing. Not only was Attorney Ambrose successful in keeping a DWI conviction from being entered in the criminal case, he also succeeded at the license hearing.
In this implied consent hearing win, Attorney Ambrose raised the prescription drug defense. One way a person can be charged with a DWI and face a driver’s license revocation is to have a schedule I or II controlled substance in their system. In this case, the presence of a controlled substance appeared in the driver’s blood test. However, that driver neither exhibited impaired driving conduct, nor looked under the influence during field sobriety tests. Shockingly, a person innocently taking their prescription medications can still find themselves in the criminal justice system if that prescription medication contains a schedule I or II controlled substance.
One way to defeat a DWI and license revocation like this is to raise the prescription drug defense. If you can prove that the person was taking the medication in accordance with the prescription. In this case, Attorney Ambrose had a forensic scientist from the Minnesota Bureau of Criminal Apprehension (BCA) come testify at the license hearing about whether the blood test result reflected a concentration level at a therapeutic or toxic level. Therapeutic levels generally reflect those taking medication in accordance with their prescription. Toxic and fatal levels can show someone potentially abusing the medication. Here, the blood test result reflected a therapeutic level and the BCA expert opined that the driver could have been taking her medication as prescribed.
A prosecutor can defeat the prescription drug defense, if they can show that the person was impaired by the substance. Here, no such evidence existed. This further corroborated that the driver was taking her medication according to the prescription.
All too often, police officers are overzealous. Some do not give drivers the benefit of the doubt and immediately suspect wrongdoing of some kind. With millions of drivers across the country taking prescription medications, it puts many innocent people at risk of criminal charges and license penalties in Minnesota. Mounting a strong defense is critical to preserve your rights, criminal background report, and driving record.
Driving Under the Influence of Drugs (DUID) in Minnesota operates under the same DWI laws for alcohol related DWIs in Minnesota. DWI charges can arise from being under the influence of a controlled substance, under the influence of an intoxicating substance, a combination of those two or with alcohol, and if any amount of a Schedule I or II controlled substance other than marijuana. The differences lie in the investigation of those cases, enforcement, and driver’s license revocations.
Investigation & Enforcement of DUID
The reasons for why a person may get pulled over for driving under the influence of drugs are going to be similar to alcohol DWIs. Weaving, speeding, failing to signal a turn, having a headlight all are reasons for people to get stopped by law enforcement regardless of what is in their system. Once that driver gets pulled over, however, is where the differences start to take place.
Most, if not all, drugs besides marijuana have no distinct smell. Therefore, an officer approaching a vehicle will be unlikely to say they smell the odor of narcotics unless it is for marijuana. A favorite reason in alcohol DWIs is the officer stating they smell an odor of an alcoholic beverage on the driver’s breath. In drug cases, the officer is going to start to rely on bloodshot, watery eyes, a person’s speech, reaction time, fumbling with wallet, mannerisms, and the like. The officer will likely even ask the question “are you on any drugs or medications?” Answering that in the affirmative, will almost assuredly instigate field sobriety tests. Even answering that question “no” will still likely lead to testing.
The first test officers often administer is the Horizontal Gaze Nystagmus (HGN) test. In this test, the officer is looking to see if the driver’s eyes lack smooth pursuit, show nystagmus prior to forty-five degrees and at maximum deviation. Officers will also often perform a Vertical Nystagmus test in drug DWI cases. During these eye tests, the officer will also often look for pupil dilation, constricting, and fluttering.
Some other common tests officers perform when investigating for DUID include: modified Romberg test, finger-to-nose test, and finger counting test. The officer may also take a driver’s vital signs, including blood pressure, temperature, and pulse. They may also examine a person’s muscle tone, check for injection sites, and do a dark room examination of a person’s pupils to check their eyes for reaction to light. Sometimes, officers are drug recognition expert (DRE) certified and adhere to the National Highway Traffic Safety Administration (NHTSA) training and protocol.
If an officer believes they have probable cause to arrest someone for driving while under the influence of drugs, then they will proceed to obtain a warrant for a blood or urine test. Refusing to submit to a blood or urine test pursuant to a warrant is a DWI refusal offense.
Driver’s License Revocation
In Minnesota, if a driver’s blood or urine test reveals a schedule I or II controlled substance, then the commissioner of public safety will issue a driver’s license revocation. In other DUID cases, a person’s driver’s license will end up subject to revocation if they are convicted of DWI in their criminal case.
Not every DWI in Minnesota requires the driver to get on the ignition interlock program to obtain their driver’s license. For instance, if someone has no prior DWIs in their past and their alcohol concentration level measures under .16, then they do not need ignition interlock. Instead, they can obtain a limited license (a.k.a. work permit), after fifteen days pass in their license revocation period. Similarly, if a person has no prior DWIs and they refuse to submit to an evidentiary breath, blood, or urine test upon arrest for Driving While Intoxicated, then they can also obtain a limited license, if they wish. Those two options do allow someone to voluntarily get on the ignition interlock program, which is a rare occurrence because of the hassle and cost of ignition interlock. Another option in these two scenarios is to not drive for the duration of the license revocation period and then go through the reinstatement process at a MN DMV to get your driver’s license status back to valid.
Repeat DWIs in a 10-Year Period or .16 or Higher Test
For those who get their second DWI, or driver’s license revocation related to a DWI, within a ten-year period, ignition interlock is the only option to drive legally during their driver’s license revocation period. This also applies for those who have an alcohol concentration of at least double the limit, .16 or more, even if it is their first DWI. In these scenarios, the license revocation period is for one year. In these scenarios, the drivers do not have to get on ignition interlock for the one-year period. Similar to the situations above, the person can sit out the one-year period and not drive, and then go through the reinstatement process. If the driver chooses to go through the ignition interlock program, then they should follow this checklist provided by Driver & Vehicle Services. In a one- or two-year revocation period, getting on the ignition interlock program allows the person to drive wherever they want and whenever they want. This benefits those that need to drive for more than just their job under the limited license scenario.
For those facing a two-year license revocation period, because they tested .16 or more or refused the evidentiary test, plus they have a prior DWI within the past ten years, then ignition interlock is also an option for them. Similar to the scenarios above, it is not mandated.
For those who end up in a cancellation driver’s license status in Minnesota, ignition interlock is mandatory if they ever want to obtain a driver’s license with no restrictions. A person who gets at least three DWIs in a ten-year period will end up in canceled status. Also, if a person has at least five DWIs, or license revocations due to a DWI, then they often end up in canceled status regardless of how old the DWIs are on a person’s record. Basically, if you are facing a felony DWI, then you are almost assuredly in canceled status. In these scenarios, at least the first year will be a limited license with ignition interlock. Here is the checklist of items for someone looking to get on ignition interlock after having their license canceled. One of the main differences is that someone who has been canceled has to obtain a chemical use assessment and start following its recommendations before ignition interlock will be approved.
Be sure to stay up to date on all legislative changes. Often, bills are proposed that make ignition interlock mandatory for anyone who obtains a DWI, regardless of prior history or alcohol concentration levels. If you are ever in doubt, feel free to contact us for a consultation at no charge.
Being arrested for a DWI in Minnesota may also lead to another offense, even if unbeknownst to the driver at the time of the DWI. For those who carry a firearm, either on their person, or in their vehicle within arm’s reach, they could face charges of Carrying While Under the Influence of Alcohol or Controlled Substance.
This is not an intentional crime. It can happen without a person even realizing it. They can even get this charge if they are not driving a vehicle at all. A person could go to a bar while having a valid conceal and carry permit and a firearm. All legal things to do depending on the establishment. They could even have an alcoholic beverage, unless they become under the influence of alcohol or have an alcohol concentration of .04 or more. That is the point where someone violates this law. There are a total of six ways someone could violate this statute:
- Being under the influence of a controlled substance;
- Being under the influence of a combination of a controlled substance, alcohol or intoxicating substance;
- Being under the influence of an intoxicating substance;
- Being under the influence of alcohol;
- Having an alcohol concentration of .10 or more; or
- Having an alcohol concentration of more than .04 but less than .10.
Commonly, you see a charge for Carrying a Firearm While Under the Influence in conjunction with a DWI arrest. The firearm does not even have to be physically on the driver. The statute prohibits carrying “on or about the person’s clothes or person in a public place.” In State v. Prigge, the Minnesota Supreme Court determined that a gun in the center console was within arm’s reach and qualified for being “about a person’s clothes.” Prigge involved a person being arrested on suspicion of DWI. What was not challenged in that case was whether driving on a road in Maple Grove was a “public place.” Recently, the Minnesota Supreme Court addressed that issue in State v. Serbus.
In Serbus, the court answered the question whether a driver of a motor vehicle on a public highway is in a “public place” for the purpose of this law. The driver argued that being inside their vehicle while driving was not technically a public place, because it is not regularly open to the public. The court agreed that the statute was ambiguous as to the definition of public place for this law only. But, it then determined that applying this law to impaired drivers on public roads protects the public while imposing only a minimal burden on lawful permit holders. Therefore, the court decided that driving a motor vehicle on a public highway is a public place for the purpose of this law.
The first time someone is charged with this offense it is a misdemeanor. A subsequent violation is a gross misdemeanor. Additionally, a person can lose their authority to carry a pistol in a public place for 180 days to 1 year.
Eight years ago, the Supreme Court of the United States decided a prominent DWI case that had repercussions on DWI laws across the country, including Minnesota. That case was Missouri v. McNeely. That case determined that a nonconsensual warrantless blood test violates a person’s Fourth Amendment right to be free from unreasonable searches. In its wake, the McNeely decision prompted furious litigation across the country challenging all manner of testing in DWI cases whether breath, blood, or urine.
In Minnesota, one such legal challenge was whether refusing to submit to a warrantless blood or urine test violated a person’s constitutional rights. In Johnson v. Minnesota, the defense took the fight one step further and argued that it should apply retroactively to a case that initiated in 2009. The Minnesota Court of Appeals agreed that it should apply retroactively, but the Minnesota Supreme Court reversed and stated it is only procedural and does not apply retroactively to test-refusal convictions on collateral review.
There was no shortage of attacks on DWI cases in the wake of Missouri v. McNeely. In 2016, the Minnesota Supreme Court decided State v. Trahan. The driver was charged with DWI refusal for refusing to submit to a blood test. The Minnesota Supreme Court decided that a driver cannot be prosecuted for refusing to submit to an unconstitutional warrantless blood test.
In 2016, the Minnesota Supreme Court decided State v. Thompson. This case is almost identical to Trahan except it involved a driver charged with DWI refusal for refusing to submit to a urine test. Similar to Trahan, the Minnesota Supreme Court determined that without a warrant, charging a driver with test refusal of a urine test violates a fundamental right and is unconstitutional as applied to the driver.
In the wake of these cases, Minnesota DWI refusal laws changed. The legislature kept in place refusing to submit to a breath test as a crime. But, added a refusal to submit to a blood or urine test as required by a search warrant as a DWI refusal crime. This requires officers to obtain a warrant for a blood or urine test, if that is the method of testing they wish to administer, in a DWI case. If the driver objects to the blood or urine test, then the officer needs to offer an alternative or have an exception to the warrant requirement.
Johnson v. Minnesota addressed the attempt to go back in time to overturn prior DWI refusal convictions that involved a blood or urine test and did not include a warrant. The Minnesota Supreme Court’s decision determined that McNeely was procedural and does not apply retroactively to convictions. Unfortunately, this puts a damper on what drivers can do who were convicted prior to McNeely, Trahan, Thompson, Birchfield, et. al. But, it does not stop the potential plethora of available legal challenges of blood and urine testing in DWIs.
Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota. Super Lawyers named him a Rising Star for the past six years; and the National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer the past seven years. He is also an adjunct professor at the University of Minnesota Law School. DWI Attorney Woodbury MN; Criminal Defense Attorney Woodbury MN; and DUI Lawyer Minnesota.
A proffer is technically a written agreement. It is an agreement between a Prosecutor and a Defendant, or witness, in which information about a crime is exchanged for the promise that their information and words will not be used against them in a later Court Hearing. After entering into a Proffer (the Agreement) a meeting with the Prosecutor and often the investigator is conducted. This is an exploration of what the Defendant or witness can provide the Prosecutor and investigator about their investigation. If the Prosecutor believes the statements and information truthful and helpful, then the Prosecutor often will enter into an immunity or plea agreement. This information and statements are what is protected under the Proffer and typically cannot be used at a trial or hearing against the Defendant or witness. This is why a Proffer is sometimes called “Queen/King for a Day Immunity” because it protects the Defendant or witness from having their words or information provided at the Proffer meeting from being used against them at a future hearing. Often, a formal written proffer agreement will not contain any express promises, rather your attorney and Prosecutor will have informally worked out an agreement outlining what the Defendant or witness is likely to provide and what the Prosecutor will likely exchange for that information. Rarely does a Proffer letter fully exonerate somebody from Prosecution. Therefore, it is very important to have a Defense Attorney review the Proffer so that the Defendant or Potential Witness will know exactly how it will affect their case.
Why do Proffers exist?
They occur because in white collar crimes there are often multiple actors. Generally, there is a leader or leaders running the fraud and a lower ring of people facilitating the crime. Often one person does not complete all the elements of a crime as different people work in tandem to make up all of the elements of the crime. At other times, the leader or leaders in charge are managing the lower-level players often in a manner that keeps the leaders free from committing any crimes. Therefore, investigators often catch and put together cases around these lower-level players but can have trouble connecting the dots surrounding the whole picture. For example, in Medicaid fraud cases it is common that the owner of the company will direct his employees to engage in fraudulent activity. Sometimes this activity is known to be fraudulent to the employees and sometimes they are oblivious. In this scenario the employee carrying out their employer’s orders was the one actually carrying out the crime, while the owner’s hands remain clean. Prosecutors need to establish intent and knowledge on behalf of the owner who is financially benefitting from the fraud. As a result, Prosecutors enter into these Proffers with the employees to put together a case against the owner.
Are there any risks with participating in a Proffer?
The Proffer Agreement only prevents the Prosecutor from using your own statements against you in their Case-in-Chief. It does not prevent them from using your information to conduct further investigations and gather independent evidence against you. Additionally, statements made during a proffer can be used for impeachment or to show that you are being untruthful at future Court appearances. Proffers can carry a high risk without much benefit which is why it is important to consult with an experienced attorney who not only understands these agreements but one that can help protect you throughout this process and ensure you receive the best outcome possible.
The Hennepin County Attorney recently announced a list of nineteen non-violent felony crimes that prosecutors will no longer request bail for after an arrest. Bail is a financial obligation that works by releasing a defendant in exchange for money. The court then holds that money until all of the proceedings surrounding the suspect are completed. Once the case is resolved, the suspect receives the money back if they paid it on their own. Now, if a suspect is charged with any of the following crimes, they will remain free until the next court hearing. Instead of bail, suspects will make a promise to the court to appear at all court hearings and follow any release conditions that may be set by the judge. These conditions may include not consuming alcohol or using firearms.
Starting January 1, 2021, Hennepin County stated it will no longer request bail for the following offenses:
• Counterfeiting currency;
• Damage to property;
• Dishonored check;
• Fifth-degree sale or possession of narcotics;
• Fourth-degree sale or possession of narcotics;
• Fraudulent identification or driver’s license
• Identity theft;
• Insurance fraud;
• Lottery fraud;
• Mail theft;
• Possession of burglary/theft tools;
• Possession of shoplifting gear;
• Possession of counterfeit check;
• Sales of simulated controlled substances;
• Theft of a motor vehicle;
• Theft under $35,000;
• Wrongfully obtaining public assistance; and
• Wrongfully obtaining unemployment benefits.
The goal of the reform is to protect public safety and ensure court appearances. The goal is not to simply punish people. Often times people lose their jobs when they cannot meet bail and are required to wait in jail until their court hearings. In turn, this makes their financial situation even worse. This essentially led to a situation where those who could afford cash bail were able to buy their freedom, while those who could not afford cash bail were forced to sit in jail.
With the reform, prosecutors will not be requesting bail on cases where the law calls for judges to release the suspect anyway. This will also reduce the prison population which will improve prison conditions. One of the goals of the reform is to help with reduce racial disparities in jail. According to the Hennepin County Attorney, African American suspects make up 57% of those charged with the nineteen offenses last year. Instead of sending the suspects to jail, Hennepin County will now be able to employ other options such as GPS tracking, mental health support, chemical dependency, etc., to ensure that suspects will appear at their court hearings.
Bail may still be required for “exceptional cases.” Those cases may include a suspect who has outstanding charges or a history of not showing up to court. Although we are not sure if this new reform is one that is here to stay, it is a small step in the right direction for dismantling cash bail in Minnesota. For more information contact the Minneapolis Criminal Defense Lawyers at Ambrose Law Firm.
Erin Powers is a Law Clerk at Ambrose Law Firm, PLLC in Minneapolis, MN. Erin is a second-year law student at the University of St. Thomas School of Law. Before law school, she graduated magna cum laude from the University of Minnesota. Erin also volunteered for the Center for Integrity in Forensic Science. Criminal Defense Lawyers Minneapolis MN; Criminal Attorneys Minnesota; and Drug Crimes Attorney MN.