The defense attorney’s starting point is to gather as much information about the facts of a case as possible. This starts with obtaining copies of all police reports and other documents generated by law enforcement relative to the case. In some cases the police have made audio or video tapes of parts of the arrest, testing or booking procedure. These are also “discoverable” by the defense, meaning that the defense attorney has the right to obtain copies of such tapes. And of course, the attorney will want to discuss the facts of the case with the client in great detail. There are often areas where the client’s description of what happened differs from the account contained in the police reports. It is essential for the attorney to identify the areas where the client agrees with the police reports and those areas where the client disagrees with the content of the reports. The attorney also must go through all the police reports and related documents carefully to look for areas where the documents might show that the police failed to follow all the correct procedures.

By going through all available evidence and discussing it in detail with the client, the attorney is able to evaluate the strengths and weaknesses of the case, both from the defense and the prosecutor’s point of view. This analysis of the case generally involves examining the case on a step by step basis to see if it looks like the prosecutor will be able to prove each required element of the case, or if there are areas where the case has weaknesses (defenses) which could be used to the client’s advantage. Sometimes there are significant defenses which can result in the entire case being dismissed. More often there are smaller defenses which can put the defense in a better bargaining position. And of course, there are some cases where the prosecutor’s side of the case is very good. Then the defense attorney’s job becomes one of “damage control,” trying to make the best of an unfortunate situation by negotiating with the prosecutor and steering the case before a favorable judge.

The step by step search for defenses involves examining each of the following elements of the case:

Physical Control of a Motor Vehicle. Was the defendant driving, operating or in physical control of a motor vehicle? Oftentimes this is a simple question to answer. In some cases, however, it is not so clear. Some cases involve people who are sleeping in a vehicle. Others involve people who are changing a flat tire or trying to get a vehicle out of a snowbank. In these cases the police will generally presume that the person was driving, or is in physical control of the vehicle, and will proceed with the arrest procedure. It is not legally required that the police officer actually witness a person operating the vehicle. If the police officer observes enough to reach a reasonable conclusion that the person operated the vehicle, he has the legal right to proceed with the arrest. The arrested person then has the opportunity to present any evidence available to show that he was not operating the vehicle. In the case of someone sleeping in the vehicle, the arrested person has the right to present evidence to try to show that he was not likely to wake up and drive away while under the influence. Thus, specific issues such as whether or not the person had the car keys in his possession and whether the vehicle was operable become very important to the defense. Defenses based on these issues are difficult because they are affirmative defenses, meaning that the defendant has to prove his version of the facts. But if such a defense can be presented successfully it will result in a finding of not guilty.

Basis for Traffic Stop. Did the police officer have a legally sufficient   basis to stop the defendant’s vehicle? Police cannot stop a moving vehicle without a valid reason. They cannot stop a vehicle just because it is 2:00 A.M., or just because it is in the vicinity of a bar, or just because they feel like it. According to the Minnesota case of Conrady vs. Commissioner of Public Safety, a police officer must have “a particular and objective basis for suspecting criminal activity” before the officer may stop a moving vehicle. This does not require a lot. An equipment violation (tail-light out or loud muffler) is an adequate reason for a traffic stop. A moving violation (speeding, running a stop sign) is also an adequate reason to stop a vehicle. At the present time, an officer is not justified in stopping a vehicle solely because the driver is not wearing a seat belt. The difficult cases are those which involve the officer stopping a vehicle for very minor driving conduct such as “making a wide turn” or “weaving within its traffic lane.” In these cases, the prosecutor has the burden of convincing the judge that there was a legally valid reason for the traffic stop. If the judge is not convinced, the case against the defendant is dismissed. Sometimes a traffic stop is based on information the police officer receives over the radio. Perhaps a citizen with a cellular telephone calls 911 to report a suspected drunk driver, or a store clerk or gas station attendant calls in such a report. In those cases the validity of the traffic stop will depend on the amount and specificity of the information provided by the informant. The more information provided by the caller, the more likely it will be that the traffic stop will be upheld. In such cases it is very important to obtain the tapes of the 911 call and the radio traffic between the dispatcher and the police officer. If the police officer is watching for the vehicle described by the informant, and then personally observes improper driving conduct by the driver of that vehicle, the validity of the traffic stop can be based on both the call and the observed improper driving conduct.

Unfortunately, it is difficult to convince a judge that there was not a valid reason for the stop because judges sometimes give greater weight to a police officer’s testimony than that of the defendant. For this reason, additional witnesses supporting the defendant’s version of his driving conduct can be very important. In some cases, arguments regarding the legal validity of the initial traffic stop can be used as bargaining leverage to convince the prosecutor to reduce the original charge down to a less serious offense.

Probable Cause to Believe the Defendant is Under the Influence. Before a police officer can arrest someone for driving while under the influence, the officer must have probable cause to believe that the person is under the influence. This is separate from the legal basis for the initial traffic stop of the vehicle. After stopping a vehicle, the officer may notice the odor of alcoholic beverages on the driver’s breath, or that the driver has bloodshot watery eyes or slurred speech. The officer must make enough observations to satisfy the legal requirement of probable cause before he is justified in placing the person under arrest. Once the officer notices any signs of alcohol use, he may conduct further investigation. Usually this will involve the administration of Standardized Field Sobriety Tests. The officer will ask the driver to perform some field sobriety tests and will make notes about how the driver does. The officer will generally then ask the driver to blow into a small portable breath testing device known as a Preliminary Breath Test or “PBT.” The PBT may be of the older type with green, yellow and red lights, or the newer type with a digital readout. Based upon the driver’s performance on the field sobriety tests and/or the PBT, the officer will make a decision whether or not to arrest the driver and proceed with the DWI process. If the driver takes the PBT and receives a “fail” result (either a red light or a reading of 0.08% or more) that automatically gives the officer legal probable cause to place the driver under arrest. If the driver refuses to take the PBT, that also gives the officer legal probable cause to arrest. If the officer does not have a PBT machine available, or if the PBT results are inconclusive, the officer must rely on the results of the field sobriety tests and his other observations to determine whether or not he thinks there is probable cause to arrest. In those circumstances, the defendant can present arguments that there was insufficient probable cause for the officer to arrest him. If successful, such an argument would result in the dismissal of the case. Like the previous defenses, however, this one is also difficult. Judges tend to think police officers are more credible than defendants in describing how well or how poorly the defendant performed on the tests. Once again, if there are witnesses who can back up the defendant on these factual issues, it helps alot.

The Implied Consent Advisory. After placing a person under arrest for driving while under the influence, the next thing the officer wants to do is have that person provide a sample of his breath, blood or urine for testing to determine his alcohol level. The PBT test administered on the roadside is not accurate enough to be admissible in court, and the officer wants to build a stronger case against the driver. Before the officer can ask the person to submit to this more accurate type of testing, he is required by Minnesota law to read the person a form called the Minnesota Implied Consent Advisory, known as the ICA. This advisory tells the arrested person that:

a.) He has been placed under arrest because the officer believes he was driving while under the influence,

b.) The officer is now asking him to submit to scientific testing to determine his alcohol level,

c.) Refusal to submit to this requested testing is a crime, and,

d.) Before he decides whether or not to agree to the testing, he has the legal right to consult with an attorney.

If the officer does not read this ICA to the defendant, the results can be dramatic. Under those circumstances, if the defendant gives a sample for testing, the test results cannot be used against him in criminal court, nor can they be used as a basis for revoking his driver’s license. If, under those circumstances, the defendant refuses to submit to testing, his refusal cannot be used against him in criminal court or as a basis for the revocation of his driver’s license. For the purpose of this defense, it does not matter whether the defendant would have wanted to contact an attorney or not. The point is that the officer must tell the defendant that he has the right to contact an attorney if he wants to.

Interference With the Right to Consult With an Attorney. After the officer has read the ICA to the defendant, the defendant may wish to speak with an attorney. In that case, the officer must give the defendant a reasonable opportunity to do so. The officer must make a telephone available, and telephone books if necessary. The officer must let the defendant make calls to non-lawyers if the defendant needs to call someone else to get the name or phone number of an attorney. The officer must let the defendant make long-distance calls if necessary to speak with an attorney. The officer must give the defendant a “reasonable” amount of time to contact an attorney and to speak with the attorney. If the police officer interferes with the defendant’s right to contact and consult with an attorney at this stage of the proceedings, the results can be the same as if the officer failed to read the Implied Consent Advisory (see above).

Interference With Right to Independent Testing. If the defendant submits to the testing requested by the police officer, then the defendant has the legal right to request his own independent test be performed. The police do not need to inform the defendant about this, nor do they need to actively assist the defendant. What is important is that if the defendant, after submitting to the test requested by the officer, tells the officer he wants to have his own test done, the officer must not interfere with the defendant’s right to do so. If the officer releases the defendant from custody immediately, that is enough, because the defendant could then go and have his own test done. If the officer does not release the defendant immediately, he must make a telephone available to the defendant for the purpose of arranging independent testing. Usually this means calling a technician to come to the jail to collect a blood or urine sample. The police must not interfere with the efforts of an outside person who comes to collect a sample from the defendant for independent testing. If the police interfere with the defendant’s right to arrange for independent testing, the effect is that the results of the testing done by the police cannot be used against the defendant, either in criminal court or for driver’s license revocation purposes.

Accuracy of Test Results. In Minnesota the defendant no longer gets to choose between breath, blood or urine testing. The law enforcement officer chooses which type of test, then asks the defendant to provide a sample. The great majority of the time, the officer will choose breath testing. Breath testing is fast and convenient for the police, and because it yields immediate results, it can be used to revoke the defendant’s driver’s license on the spot if the results are over 0.08%. When a blood or urine test is used the sample is sent to a laboratory for analysis, which usually takes two to three weeks. When the analysis is complete, the results are sent to the police officer, the prosecutor and the Department of Public Safety (the driver’s license bureau). If the results are 0.08% or more, the Department of Public Safety will mail a notice to the defendant informing him that his driver’s license is being revoked. Most police officers will request a blood or urine sample only if their breath test machine is out of service at the time, or if they suspect the defendant may be under the influence of a controlled substance other than (or in addition to) alcohol.

The breath test conducted at the police station, after the arrest, is done on a testing machine called the Intoxilyzer 5000, Model 68. Minnesota began using this machine in June of 1997 and it is now in use throughout the state. It is considered to be one of the newest “state of the art” breath test machines available, and while it is a good machine, it is not infallible. The test must be administered by a law enforcement officer, and that officer must be trained and certified to operate the Intoxilyzer machine. If the test is administered by a non-police officer, or by an officer who is not properly trained and certified to run the Intoxilyzer, the test results cannot be used against the defendant. The officer’s certification must be kept current, and if it has lapsed, the test results cannot be used.

Several factors may cause the Intoxilyzer to give an incorrect result. For example, a person’s metabolism can effect the accuracy of the test because he may have a higher or lower than average “breath to blood partition ratio.” The intoxilyzer can only measure the amount of alcohol it finds in a person’s breath sample. It then uses a standard ratio to estimate how much alcohol is in that person’s blood. Not everyone has the same blood to breath partition ratio, and the machine has no way of determining an individual’s actual ratio. The machine just applies an average or “standard” ratio, which results in some tests being too high and some being too low.

Similarly, a person’s body temperature or breathing technique can also effect the accuracy of the test. If the person’s breath sample is 1 degree above 34C, then the person’s test result will be about 7% higher than his true reading. And a person who, in an effort to co-operate with the test operator, blows as long and hard as possible into the machine will receive a higher test result than if he had blown more normally.

The Intoxilyzer results can also be effected by contaminants and outside influences. While the machine is designed to detect molecules of ethyl alcohol, there are other substances which the machine may mistakenly identify as alcohol. Certain chemicals contained in paint products have a similar molecular structure to alcohol, and can produce false test results. Even car exhaust, in large enough amounts, can cause an artificially high test reading. The Intoxilyzer is also sensitive to radio frequency interference, meaning that the use of radios near the machine can cause false readings. The presence of alcohol in the person’s mouth (as opposed to his lungs) can also result in false readings. This sometimes happens when a person burps or hiccups, bringing some alcohol up from his stomach just before blowing into the machine.