I Got Arrested For a DWI, What Can You Do to Help Me?
A DWI is not always an open and shut case. Don't let anyone tell you that just because you blew a .08 or higher that you're "automatically guilty" or that "there's nothing that can be done." This is a simply not true. I'm going to start from the beginning to show you potential areas of your case that need to be analyzed, and what the process going forward will look like for you.
The Initial Stop by Police
Police officers need a reason to pull you over. They need a reasonable and articulable suspicion of criminal activity; they cannot simply operate on mere suspicion or "gut." In Minnesota, this threshold is often very low, but it's still worth looking at. The question must be asked: "why did you pull the driver over to begin with, officer?" Oftentimes, it will either be because you violated some driving code or were driving erratically enough to lead an officer to suspect driving under the influence. However, after viewing the dashcam footage and other evidence, this may not always be the case. But do you know the law well enough to spot potential challenges?
Expansion of the Initial Stop
Even if an officer had a valid reason to pull you over, it isn't always the case that they can jump straight to giving you field sobriety tests. A traffic stop needs to be limited to investigating the cause of the initial stop. Did the officer pull you over for speeding? The stop should be limited to dealing with the potential speed violation.
Generally, the officer will notice signs of alcohol use. This can include bloodshot eyes, slurred speech, difficulty finding a driver's license or proof of insurance, etc. Sometimes a driver ends up volunteering the fact that they've been drinking. But if an officer has no reason to reasonably suspect that you've been drinking and driving? He needs to wrap up the stop based on the initial violation and let you go.
Field Sobriety Tests
There are three field sobriety tests generally given: follow the finger (horizontal nystagmus test or HGN), stand on one leg test, and heel to toe test. These tests ought to be performed according to the standards set forth by the National Highway Traffic Safety Administration. In some circumstances, these tests may not have been done properly.
Preliminary Breath Test
If an officer has a specific and justifiable basis to suspect that you're under the influence, he may administer a preliminary breath test (though an argument could be made that this is a search and you can decline). These tests are investigatory in nature and are not used in court to prove that you drove over the legal limit.
Arrest and Chemical Testing
If an officer has probable cause to believe you were driving under the influence and has arrested you, you'll be brought to the station for chemical testing.
Breath Testing and the Advisory
Breath tests are considered to be searches incident to arrest. No warrant is needed. The police must read you an advisory that advises you that refusal to take the test is a crime and that you have the right to talk to a lawyer. Without this advisory, they cannot immediately take your license away from you.
Furthermore, these tests have a built in uncertainty that may prove useful if you were close enough to the border of the legal limit.
Blood or Urine Testing
These tests generally require a warrant.
Immediate License Revocations
If you refuse a breath test, or refuse both a warranted blood and urine test, you face immediate license revocation and criminal charges. Failing a test by being above the legal limit also brings immediate license revocation. Fighting these revocations are civil proceedings and are separate actions from the criminal case. The duration of revocation depends upon factors such as how many prior DWIs you have and whether your alcohol concentration was above a .16 (twice the legal limit).
License Plate Impoundment/ Whiskey Plates and Vehicle Forfeiture
Certain offenses may lead to your license plates being impounded or the vehicle being seized. These are also civil actions that are separate from the criminal charges.
Criminal Charges
Initial Appearance and Bail
The first step in a criminal case will be your initial appearance. Generally, you'll be advised of your rights, advised of your charges, and be given bail and/or conditions of release. Some DWI offenses face mandatory bail or release conditions.
Omnibus/Pre-Trial
The prosecutor must disclose certain items of evidence to the defense. At this point, challenges may be made on evidentiary and constitutional issues. Often, plea deals are also made.
Trial by Jury or Court
If a case is not resolved by plea deal, you have the right to a trial by jury, or you may waive that right and have a trial in front of a judge. This is where your lawyer argues your side of the story and seeks for an acquittal or lower charges.