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 {+}
Posts Categorized DWI, DUI
BREAKING: United States Supreme Court holds stabbing you with a needle is the only thing protected by the fourth amendment
BREAKING NOW, Bernard’s second failure (click for full opinion). In the second blow to the Fourth Amendment in a week, the Supreme Court of the United States ruled today that, short of stabbing you to get to you blood, the Police can pretty much search you for nearly any evidence they want, post arrest. BREAKING: United States Supreme Court holds stabbing you with a needle is the only thing protected by the fourth amendment was last modified: April 17th, 2020 by Alex DeMarco
Bernard v. State of Minnesota, killing the DWI mill and restoring basic rights
We recently discussed a victory some weeks ago in which a person was able to avoid Minnesota DWI charges by following Alex DeMarco’s instructions to the letter at the police station. The basic key: Never submit, never refuse, ask for a warrant, every time. That approach is based on recent rulings in Minnesota DWI law throwing out convictions for defendants whose fourth amendment rights were violated. Had it been any other case, murder, burglary, drugs…the law would be clear. It’s really simple. Warrantless searches are unreasonable. Only very precise exceptions can justify a search without a warrant, exceptions which are basically not even remotely applicable in a DWI case, despite decades of presumption to the contrary. Today the very heart of DWI law in Minnesota, the criminal charge of DWI test refusal, THE ONLY mechanism by which test are obtained in Minnesota, was heard before the Supreme Court of the United States. We wanted to update you so you can read the entire Transcript from Bernard‘s oral argument. If you or anyone you know is facing a DWI, whether it’s in Faribault, or St. Paul, or Woodbury, or Minneapolis, All of Dakota County including Lakeville, Burnsville, Hastings, Apple Valley, or anywhere in Minnesota, contact us today to set up a free consultation. Bernard v. State of Minnesota, killing the DWI mill and restoring basic rights was last modified: July 13th, 2016 by Alex DeMarco
Just say everything but “no” to implied consent.
“Finally, Petitioner argues Mr. Jones was subjected to an unreasonable warrantless search. Contained within this argument the court finds Petitioner’s more persuasive assertion: Mr. Jones did not refuse to take a blood or urine test because he stated he would take a test once a warrant was obtained.” Recent order in Rice County DWI Implied Consent case (Names changed). So we haven’t blogged DWI in awhile and we’re gonna blow through this like Terry Tate enforcing an office. First of all, for total newbs, we just dropped “implied consent” on you. What’s that? The law that says “hey by virtue of driving in Minnesota, you consent anytime to have yourself tested for booze or drugs whenever we want.” You’d probably remember this from your driver’s license application, if it was on there, which it’s not, but ignorance isn’t a defense, so on we go. Bottom line, besides the criminal charges, “State vs. you”, there’s the civil case, “You vs. Commissioner of Public Safety”, which you need to file within 30 days of receiving your notice of revocation. If you don’t do that, your license is gone. Period. Hard and fast deadline. That’s the two sides of DWI law, the criminal, the civil. So this comes from that challenge to the license revocation. How about the criminal? It was so good, the test refusal charges, the serious DWI Charge, was dismissed by the prosecutor upon our motion before we even got to a hearing. The state has now has to prosecute the matter with no field sobriety tests, no alcohol concentration, no evidence. How did it get so good? Because this guy called an attorney who understood what he needed to know right there, right then. We’ve written previously regarding the bombshell that opened up DWI litigation three years ago in Missouri v. McNeely. If you’re facing a DWI and you haven’t heard of this court case, the one liner states: “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” That’s the Supreme Court of the United States; the highest Court in the land. Blood, breath, and urine tests are all searches for fourth amendment purposes. (Skinner v. Railway Labor Executives Association). Some people thought it didn’t apply to Minnesota because we don’t force a test like Missouri. Call it Minnesota nice, or laziness, whatever you want, but the bottom line is that a person is given a supposed “choice” on whether to take the test or not. In other words, we say “we don’t wanna touch you or force you to do anything, but if you don’t subject yourself to this warrantless search, we’re gonna charge you with an even worse crime.” So initially,some folks thought this didn’t apply to Minnesota. Oops. Two urine test cases from Minnesota get reversed by SCOTUS a few weeks later. It suffices to say a lot of case law has… Read more {+}
DWI, the Current State of the Law, and where we go from here.
There are many attorneys that handle many DWIs for a wide range of fees. DWI is the most common crime in Minnesota, and at any time in a criminal defense lawyer’s career, 20%-40% of their case files are likely DWIs. Getting DWI cases is not hard. If they’re in the phone book, if they’re answering their phone a night, a criminal defense lawyer is going to get plenty of DWI calls, especially around the holidays. While this results in good business for the attorney, the fact is, it also remains a thorn in their side. Secretly, most of us hate DWI cases, because the case law is overwhelmingly in favor of the state, and raising all possible challenges to a DWI is as much work as any felony case but pays a lot less. However, by attacking a DWI from every angle, a good lawyer can either set up to beat a DWI, or obtain VERY good results for someone who is in a whole lot more trouble. VERY recently, new developments in DWI law have developed which make your decision of who you hire for current, pending DWI matters absolutely critical. Long ago we talked about Missouri v. McNeely and its potential impact on DWI moving forward. Despite a very well reasoned and clearly stated opinion that directly addresses even Minnesota’s implied consent law and covers all manner of exceptions to the warrant requirement, candidly, Minnesota has chosen to completely ignore the Supreme Court of the United States and engage in incredibly complex acrobatics to get around what was clearly stated, and that ” In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. ” The Supreme Court ruled long ago that blood, breath, and urine tests are all searches for purposes of the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-17, (1989). Often we attorneys dazzle our prospective clients by explaining to them the holding in McNeely and it’s offspring, and by talking about the analogies between home searches and the search of their person in the context of a DWI. It’s easy to do so because, frankly, it’s not complicated, and any person of intelligence can understand exactly what the opinion says. But again, the Courts in Minnesota have chosen specifically to wield unruly complex arguments to steer clear of the obvious. And so eventually the newly charged DWI defendant asks “So will this beat my DWI? Has it worked?” The candid answer should be given: On the whole…No. As the Attorney General is fond of quoting in memo after memo, over 80 cases have gone to the Minnesota Court of Appeals, and each one has failed, because, essentially, in each case the Court of Appeals has found that the individual, particular driver, under the “totality of the circumstances” analysis required by Brooks, has ruled that the the driver… Read more {+}