Minnesota DUI - FREQUENTLY ASKED QUESTIONS
These questions and answers are specific to cases arising in the state of Minnesota. If you were arrested somewhere else, consult with a person who is knowledgeable about the procedures in that state.
My driving was fine; can the officer pull me over?
He did pull you over! The officer needs an articulable reasonable suspicion to believe you committed, were committing, or were about to commit, a crime. If the judge finds the officer did not have a basis to make the stop, that may be a defense in court.
What should I say if I'm stopped by a police officer and he asks me if I've been drinking?
You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply.
Do I have to take field sobriety tests?
A person who is stopped by police and is being investigated as a possible drunk driver does not have to submit to field sobriety tests. However, the officer will normally arrest someone who refuses to take field sobriety tests.
What is the purpose of the follow the penlight with the eyes test?
This is the horizontal gaze nystagmus (HGN) test. The officers are trained to detect the involuntary jerking of the eye, which may, among other causes, by caused by consumption of alcohol. If officers detect three clues in each eye, a lack of smooth pursuit, nystagmus at maximum deviation, and nystagmus prior to 45 degrees, they are trained to testify that it is likely the person was above a .08 body alcohol content (BAC).
I thought I did well on the field tests, why was I arrested?
If you really did do well on the field tests, this may be a defense at trial. In many cases, people misunderstand the directions or do not know what the officer is looking for. The field tests most commonly administered by officers are approved by the National Highway Traffic Safety Administration (NHTSA) for the investigation of drunk driving cases.
On the follow the penlight with the eyes test, the officer is looking for an involuntary jerking of the eyes. You cannot feel this.
On the one leg stand test, the officer is looking for putting the foot down before 30-1000, hopping, swaying, and raising the arms more than six inches.
Should I agree to take a chemical test? What happens if I don't?
In Minnesota, there are two possible results:
(1) Your driver's license will be revoked for 30 days for a first offense, provided you plead guilty to DWI and one year for a subsequent offense.
(2) If you have a legal defense the result can in some cases be "revocation rescinded."
The penalty for submitting to the test in Minnesota and recording a test result of .08 and less than .20 is 90 days for a first offense and 180 days for a subsequent offense.
On a first offense of .08 or more but less than .20, typically the person gets a work restricted license for 15 days.
Additionally, the test result may constitute persuasive evidence of guilt at the court proceeding. The penalty for a test result of .20 or more is 180 days for a first offense and 1 year for a subsequent offense, but the person is eligible for a work permit, after 30 days and 90 days respectively.
Do I have a right to an attorney before deciding whether to take a breath test?
In Minnesota, there is an absolute right, if the person requests it, to consult with an attorney to decide whether to take or refuse the breath test for alcohol, so long as it does not interfere with or unreasonably delay the testing process. The test must be taken within two hours of apprehension.
Can I elect a blood test instead of a breath test?
In Minnesota, the driver must take the breath test if it is the test offered. However, if blood or urine tests are offered then a choice of tests must be made available. If the driver or other people are injured and taken to a hospital, is unconscious or incapable of refusing the test, the officer may direct medical personnel to withdraw a blood sample.
The officer never read me my rights, what can we do about it?
You probably were advised of your right to take or refuse a chemical test for alcohol and the penalties for failing or refusing the breath test. You are probably asking about a 5th Amendment "Miranda" warning about the right to remain silent and to have the assistance of a lawyer. Often, in drunk driving cases, they do not give that advice. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.
Why did I receive more than one ticket charging me with drunk driving?
Minnesota has five different offenses that fall within the generic term - drunk driving: driving while under the influence of alcohol, driving under the influence of alcohol with a test result of .08 or more, driving under the influence of alcohol with a test result of .20 or more, driving while under the influence of controlled dangerous substances and test refusal.
Why is the officer allowed to take my license if I'm presumed innocent?
The law is designed to get your attention by immediately confiscating licenses of alleged drunk drivers. This is not fair, but courts justify this by saying it is not punishment but is for the protection of the public. Unless your license or privilege to drive is already suspended, the officer will usually issue you a 7 day temporary license that allows you to drive prior to a hearing. The administrative license suspension proceeding or Implied Consent hearing may have some bearing on the disposition of charges in court.
Can't I just represent myself? Why do I need a lawyer?
Abraham Lincoln once observed that a person who represents himself has a fool for a client. Although you can represent yourself, it is usually not a very good idea. The drunk driving area of the law is very complex and you need someone who knows all of the procedures and personnel involved in order to be able to get you the best possible result under your particular circumstances. Imagine playing a game of chess against a grandmaster without knowing the rules. You are not likely to do well.
How do I know if the lawyer I am considering hiring is really a good lawyer?
Unless you already know who you are going to hire, you should meet with a couple of lawyers, and should receive satisfactory answers to at least the following questions:
(1) Are you going to take my case to trial, or do you intend to plead me guilty?
(2) Does the fee include Implied Consent hearing, or is that a separate fee?
(3) What kind of result can I expect and can you guarantee it?
(4) What is the total fee? Are you willing to put me on a payment plan so I can afford your services? Are there any hidden costs? What are they?
A lawyer should present you with a written retainer agreement and should never guarantee you a result. Check the credentials of the lawyer you are considering. Is he experienced in drunk driving matters or is he just doing it because you are an old client of his firm? Does the lawyer have experience trying drunk driving cases or is he or she "a pleader"? Did he attend the continuing legal education seminar on drunk driving or did he teach it? If the lawyer says he or she does not handle Implied Consent hearing because it will not affect the result there, you should seek a different lawyer.
When you finish meeting with the lawyer, you should feel confident in his or her ability to obtain the best possible result for you.
What will it cost to get a lawyer?
This often depends on the reputation and experience of the lawyer and by the geographic location. Some lawyers tend to charge low fees and handle a high volume of cases. Although the cost is low, many of them do not invest much time in the defense of those cases. Other lawyers charge more, often depending on the skill level, and are willing to appear in court and at administrative hearings as many times as is necessary to obtain the best possible result.
There is a large range in fees. Fees in drunk driving cases can range from $300 to as much as $10,000 or more. The fee may also vary by such other factors as the complexity of the case, whether expert witnesses will be needed, whether the client is a first or subsequent offender, and whether the lawyer will have to travel extensively to appear at the hearings. An experienced lawyer with a good reputation may charge as much as $2500 for a first offense. Often the lawyer will request a minimum payment of $1500 as an engagement fee, and ask the client to agree, in writing, to pay the balance in monthly installments. A flat fee such as this covers the Implied Consent hearing and all court appearances, including taking the case to trial in front of a judge or jury. If a lawyer tells you he will try to get you the best possible result for $300 you should get a second opinion.
What is the punishment for drunk driving?
Generally speaking, a conviction for a first offense may involve a fine, a license suspension or restriction, attendance at a DUI education course for a period of time, and supervised probation for one to four years. A short jail sentence may or may not be required; for a second or third offense, it often will. Additional punishment may involve community service, chemical dependency treatment, AA meetings, and MADD victim impact meetings. On a second or subsequent offense, the Department of Public Safety may seek to take the driver's license a second time, after the court proceeding is over, although the courts do not call this punishment. Jail time is imposed generally on a second offense. The range can be from one weekend to 30 days in jail with the possibility of electronic home monitoring. A third conviction usually carries a 90 day jail sentence, with work release and possibly some electronic home monitoring and with supervised probation upon release.
Why should I take classes before I go to court if I am presumed innocent?
Yes, you are presumed innocent. But if after trial, the judge or jury finds you guilty, the sentencing proceeding follows, usually immediately. If you want the judge to give you a break or not impose a jail sentence if you are a subsequent offender, it is wise to do something before you get to court to convince the judge to impose the sentence you want.
Are there any defenses to drunk driving?
Yes depending upon the factual circumstances of your case.
Where can I find information about drunk driving?
The best course of action is to consult an experienced drunk driving lawyer. There is plenty of information on the internet, but much of it relates to other states. You can also go to a law library (at courthouses and law schools) and research DUI law.
