Posts Categorized DWI, DUI

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 {+}

DWI For Taking Prescription Medications

In Minnesota, a person can be charged with a DWI/DUI for having more than alcohol in their system; they can also be charged for being under the influence of drugs even if they have a valid prescription for them. Controlled substances can impede a person’s ability to drive a motor vehicle. Even if the drug is prescribed, it can still be illegal to drive while under the influence of it if it is a Schedule I or II controlled substance. Here are some instances of how a person can receive a DWI in Minneapolis while under the influence of controlled substances: An individual sustains an injury in an accident and her doctor prescribes her Vicodin so she can tolerate the pain. She gets in her car to run to the store for milk, but an officer notices that she swerved left of center, so he pulls her over. He suspects her of driving under the influence, so she submits to the requested tests and it is found that she has narcotics in her system. Because Vicodin is a Schedule II drug, it is illegal to drive after taking it, even if it is prescribed. A college student goes to a party and smokes marijuana. He declined alcohol since he didn’t have a designated driver. On his way home, a patrol officer notices he has a broken headlight, so he pulls him over. The officer determines that the student may be under the influence of a substance, so he has the student submit to urine testing. When the marijuana is found in his system, he is charged with DWI. A gentleman decides to get his ATV and go mudding with some of his friends. He has a friend to pick him up because the side effects of the Adderall. He hits the trails with his friends, but he flips the ATV and someone calls the police. Because Adderall is a Schedule II controlled substance, he can be charged with DWI although he has a prescription. Many individuals throughout Minneapolis and St. Paul do not have prescriptions for the prescription drugs that they take. They may steal them off of family members, friends, or they get them illegally on the Internet. Either way, there is a need for a Minneapolis DWI attorney to help defend against the charges. There are times when a prescription drug DWI charge can be successfully challenged. Minnesota statute 169A.46 subd. 2 offers an affirmative defense when a person is charged with a prescription drug charge. There is a clause in subdivision 1 that states a person can prove that they were taking their prescription according to the orders of their doctor. If this fact is presented, then it is possible for the charges to be dismissed. The only downfall to this defense is most defendants will testify in their own defense, which means the burden of proof leaves the shoulders of the prosecution and moves to the defense. Your attorney will provide you with advice on what… Read more {+}

The importance of responding immediately with “I’m invoking my 5th Amendment right to counsel”

Under the Fifth Amendment, a defendant is given the right to not testify. This means that the judge, prosecutor, and even the lawyer of the defendant cannot force them to testify on their own behalf in fear that they may self-incriminate without intending to do so. Any time someone says, “I plead to the Fifth” or “pleading to the Fifth,” they are doing so because it is their right to not answer questions. When in the custody of police or when in court, a person can exercise their Fifth Amendment right to not self-incriminate. The origin of this right is rather interesting in that it originates from the refusal of the Puritans to cooperate with the English interrogators. The Puritans would often be tortured or coerced into confessing their religious affiliation and they would be considered guilty if they were silent. English law granted the right for citizens to not self-incriminate in the mid-1600s when a revolution created the greater parliamentary power. This right then followed the Puritans to America, where it would be included in the Bill of Rights. When you are pulled over for DWI or you are charged with any type of criminal offense, you do not have to answer the questions of law enforcement. You can invoke your Fifth Amendment right to stay silent until you have counsel present. Your Miranda Rights say that you have the “right to remain silent” and that “anything you say or do can be used against you in a court of law.” It also states you have the “right to an attorney.” When you contact your attorney after invoking your Fifth Amendment right, your attorney will advise you on what you should and should not say. You can have your attorney present during questioning so that you do not self-incriminate yourself. Even if you feel your statement is completely innocent, it can be misconstrued by law enforcement to mean something that it doesn’t and this can be used against you in court. By invoking your Fifth Amendment right to counsel, you could be making the difference between freedom and conviction. It is important to note that the Fifth Amendment right to self-incrimination does not extend to blood tests, fingerprinting, or DNA evidence that is being gathered for a criminal case. The Supreme Court has upheld that the privilege only extends to communicative evidence, such as interrogation. DNA and fingerprints, in particular are considered non-communicative or non-testimonial. The importance of responding immediately with “I’m invoking my 5th Amendment right to counsel” was last modified: November 19th, 2014 by Alex DeMarco