Legal Question in DUI Law in Minnesota

Re: How many breath tests do you have to give?

An officer will often conduct field sobriety tests after a stop which may include a Preliminary Breath Test to determine if there is probable cause to arrest.

Later, at the staion, an intoxilyzer 5000 test is generally requested. It requires two breath samples.

If you had a Blood Alcohol Content over .10 but below .20 and it is your first DWI offense within 10 years, you were charged with a fourth degree offense. This is very serious 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. 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 fro true Blood Alcohol Concentration. A sufficient variation may result in a reduce charge or no charge.

For a Consultation call us at 952.746.2153 or visit http://www.dwicounsel.com

Re: How many breath tests do you have to give?

Police officers are authorized by statute to request breath samples for two types of breath-alcohol machines under certain conditions. One type is used typically at the side of the road, at the scene of the traffic stop; and is commonly called a "PBT" or "Preliminary Breath Test" (sic). These are even less accurate and less reliable than the larger breath-alcohol machines they have at the police station. The "PBT" can be used to justify an arrest for DWI, if the driver blows and gets a machine report of 0.11 or more (it will be lower after July 2005); or, if the driver refuses to blow into the PBT. After the police officer arrests the driver and takes them to the police station, the police officer may request the driver submit to another breath-alcohol machine process (or, perhaps to provide a blood or urine sample, instead). This larger, breath-alcohol machine at the police station, currently the "Intoxilyzer 5000" in Minnesota, attempts to quantify alcohol in breath by measuring how much infra-red light gets through a sample of the driver's breath. (Alcohol is one of thousands of chemicals that block infra-red light.) The Minnesota version of the "Intoxilyzer 5000" is programmed to require two breath samples, approximately 3-5 minutes apart. The machine is programmed to calculate the alcohol level of the driver, based upon numerous assumptions about general population averages; then, to report the lowest of the various measurements as the person's breath-alcohol level.

There are conditions required by statute before a police officer can request either a PBT breath sample, or an Intoxilyzer 5000 breath sample.

Breath-alcohol machines are prone to error; tend not to be well understood by the police officers using them; and, are not known to be accurate or reliable in measuring alcohol levels, compared to a properly performed blood-alcohol test.