Legal Question in DUI Law in Minnesota

Re: 4th degree DWI charge

Thank you for your post.

Certainly, an argument of post driving consumption is legitimate and can provide a solid defense if you have credible witnesses and your blood alcohol content was not too far above the legal limit of .08.

As you If you had a Blood Alcohol Content over .08 but under .20, and if you do not have a prior DWI within 10 years of the current offense, you were charged with a fourth degree offense. This is a misdemeanor and carries with it maximum criminal penalties of 90 days in jail and a $1000 fine. Different Judges give different sentences. As a result, understanding your Judge and knowing how to change Judge's can be an important part of the process.

There is also a civil case that results in the revocation of your driver's license. On a first offense, you may be revoked for up to 90 days. This is a separate case even though the challenges are largely the same. In order to challenge you license revocation, you must seek a judicial review by filing a petition within 30 days of the offense.

There are many challenges to a DWI in addition to your potential post driving consumption claim. Officers must follow very specific steps as part of the arrest. If any one step is missing, the case may be dismissed.

� Reasonable Suspicion. The officer must have reasonable suspicion to believe a specific crime has been committed in order to stop a person. If that reasonable suspicion is lacking the stop and the ticket may be invalid;

� Probable Cause to arrest and charge. the officer must make sufficient observations to form a basis for probable cause to believe that you were operating a vehicle while intoxicated. Oftentimes, officers perform field sobriety tests incorrectly making the arrest invalid;

� Procedures at the Station. The officer must follow very specific procedures at the station including reading and recording an Implied Consent Advisory that informs you that you have a right to a lawyer. If any of the steps are omitted, the charges may be dismissed;

� Test Procedures. Testing methods to determine blood alcohol concentrations are imperfect at best. Like any scientific method, any test result has a margin of error. If the machinery is not properly maintained and even if it is properly maintained, the test results may vary from true Blood Alcohol Concentration. A sufficient variation may result in a reduce charge or no charge.

For a Consultation call us at 612.240.8005.

Re: 4th degree DWI charge

Without a witness or other independent proof, such as a credit card record of when you ordered the drinks, your defense would be a difficult one.

I'd sure like to hear your story, however, should you choose to call me.

Re: 4th degree DWI charge

You have a potential defense of "post-driving consumption" based on your side of the story. However, you hit the nail on the head when it comes to the main problem - it's your word against everyone else's. This defense could still work, but it will depend largely on what you said to the officer at the time of your arrest. If you didn't say anything about this drinking after the accident when you were arrested, a judge is less likely to believe you. Even if they choose to believe you, the prosecutor could still argue that you remained near or inside the RV after the accident, which means you exercised "physical control" for DWI. As always, there might be other defenses available in your case, so it would be wise to consult with a few DWI attorneys in more detail.

Re: 4th degree DWI charge

According to the facts stated in your question, you had not been drinking prior to the accident, but did afterwards. That is what lawyers call "innocence in fact," and is a defense called "post-driving consumption." Over my 20 years of defense work, this defense has helped me win most cases where it was available, based upon the facts. When it has not worked for my client, the problem was a problem of proof -- a problem of proving the truth.

Sometimes these cases are won at the pre-trial evidentiary hearing phase, for reasons I do not have space to get into here, but related to police coming after an accident, without observing driving, with a post-driving consumption defense.

These are the most complex criminal cases today, and cannot be quickly solved in this or any oher format. Therefore, the most important thing you can do is to retain a good DWI defense lawyer (like me) as soon as possible, to investigate and research defense strategies fully.

For example, you have only 30 days to challenge the "implied consent" drivers license revocation which will forever remain on your record unless you file a challenge to it in court withing 30 days -- even if you later win the criminal-DWI case!