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There are two fundamental ways in which a DWI is challenged. One is a legal challenge which deals with the constitutionality of the progressive intrusion into one’s fundamental Fourth Amendment Rights. This primarily asks a court to suppress evidence in a DWI case before any sort of trial. It could raise a challenge to the basis for stopping the vehicle in a case. If the stop is legally proper, one could challenge the basis for the expansion of the the traffic stop into a DWI investigation, basically determining whether it was proper to ask a person to come out of the vehicle for standardized field sobriety testing. It could raise a challenge to whether there was probable cause to arrest the driver after such investigation.  Finally, a challenge may be raised to the Constitutionality of taking a chemical test without a warrant, which was recently litigated in a number of DWI cases in Minnesota and ultimately the Supreme Court of the United States ruling in |State v. Bernard|. DWI cases are difficult to challenge, but most of the successful litigation and positive case law come from these challenges. There can also be challenges raised to the science of DWI testing. The state is advancing a scientific test as evidence of a crime, namely operating a motor vehicle while the person has an alcohol concentration above .08. The State thereby “must establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability. “Without a foundation guaranteeing the test’s reliability, the test result is not probative as a measurement and hence is irrelevant.” State v. Dille, 258 N.W.2d 565, 567 (Minn.1977).  It is very difficult to do this without involving an independent expert regarding the science of alcohol testing. It is often not successful to challenge the reliability of the chemical test as a matter of law before a judge. However, there can be success in challenging it before a jury, because the fact is that precise testing for alcohol concentration is not very good science, and the police officers themselves know very little about it. However there are also what are known as “affirmative defenses” to DWI.  There are not many, but one in particular which Alex DeMarco recently advanced at trial, and with success, is that of “necessity.” What is a necessity defense? It’s actually a defense that arises from English Common law and may apply to a number of different crimes and circumstances. Essentially this defense is made in a circumstance where the driver did not want to drive the car, but felt they had to in order to escape an immediate danger. Many lawyers when faced with a case of necessity give up afte researching the case law. That is because there are numerous rulings that have significantly limited when the defense is available. Many published cases deal with circumstances where the trial court ruled the jury could not consider a necessity defense, and the court of appeals and other higher… Read more {+}