Dwi
I got a DWI in MN on 3/17. I was speeding 67/55. He ran record and seened that I had a prior so asked me to get out and do some tests for him which i did. The PBT didn't register the first time so he made me repeat it. He took me to the hospital and asked for urine I refused not knowing that this was for an alcohol measurement. He took me to the PD and read the implied consent to me. I did not contact a lawyer at this time. He told me that they were taking my car and my license for one year. i asked why. He said because i refused the test. I said that I would have taken it had I known. The next day the DA dropped the refussal and forfeiture and now are not letting me get my vehicle unless I win the implied consent hearing and my license is still revoked for 1 year. I hired a lawyer but am worried of his ability. I think this is winnable. Can an officer make me do FST based on a prior and doesn't he have to tell me of the consequences if I don't take a urine test? Also can PBT results be used in a implied consent hearing? What are my chances of beating this?
2 Answers from Attorneys
Re: Dwi
Anbofficer must have a reasonable suspicion based on the circumstances present at the time of the stop to believe that you were driving while intoxicated. A prior offense does not create a reasonable suspicion. Instead, the officer must make bservations about your behavior, demeanor and appearance that warrants a request for field sobriety tests.
Prior to seeking a breath, blood or urine test to determine a person's blood alcohol level, an officer must read an implied consent advisory which advises the driver of their right to counsel and teh fact that a refusal to test is a crime. This is usually recorded. If proper procedures were not followed, it is possible that the driver could prevail because their rights were not vindicated.
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Re: Dwi
First of all, you indicated you currently have an attorney representing you. Therefore, out of professional courtesy, I will restrict my answer. It is important that you speak to your lawyer and inform him/her of your concerns. If you are still unhappy, then you can decide to hire another lawyer.
As mentioned in the previous answer, an officer needs a reasonable, articulable, suspicion of criminal activity to make a traffic stop. You indicated you were stopped for speeding. That would be a valid stop. Next, you indicated the officer ran you record and discovered a prior DWI. This on its own is not enough to even PBT you. The officer needs an objective indicia of intoxication to further investigate you for a DWI infraction.
You indicated he put you through a series of field sobriety tests. Assuming you did not pass, he arrested you and wanted you to take a test. He needs to read you the MN implied consent advisory prior to testing you. It appears from what you said that he may not have done this properly. Was is recorded? Many time the IC advisory is recorded. Speak to your lawyer.
PBT results can be used in IC hearing in connection with other field sobriety results to prove the inditia of intoxication.
As for your chances of success -- its hard to say on just what you have written. You really should speak to your lawyer some more.
If you are unhappy, then seek another lawyer's help with your case.
Best wishes.
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