DWI Test Refusal in Minnesota Defense Attorney
Although field sobriety testing on the roadside is voluntary, test refusal at the station is a crime. In fact, test refusal at the station is an automatic gross misdemeanor carrying a possible punishment of one year in jail and a $3,000 fine, even if this is your first DWI ever in your life!
But how can this be? How can something that is voluntary turn into a crime if you don’t volunteer?
The reason is because you have given your “implied consent” to such testing when you obtain a driver’s license. The moment you renew your license, you give law enforcement in Minnesota permission to conduct a test to see if you are under the influence of drugs, assuming they have probable cause to ask you for a test. Giving your consent, although implied, and then retracting that consent when placed in a testing situation is considered a crime and will result in your license being revoked for a year. It can then transform into a misdemeanor fourth-degree DWI charge of misdemeanor (test failure of below .20), and then a gross misdemeanor third-degree DWI charge. The lack of a warrant for these tests as well as the fact that people are coerced to “consent” by being threat of test refusal, is now under challenge in the U.S. Supreme Court in a case called McNeely v. Missouri. Experienced DWI criminal defense lawyers like Max A. Keller of Keller Law Offices are challenging the legality of Minnesota DWI test failure crimes (testing .08 or more) and test refusal charges, both based on McNeely.
Test Refusal Defense
The law states that, within reason, you can contact an attorney prior to the conducting of any test. An experienced test refusal defense attorney can advise you on what you need to do and what the consequences may be. Even if you refuse to take the required tests, you may be arrested for suspected drunk driving and made to submit to a blood, urine or breath test later. Even if blood and urine tests show that you are not intoxicated, you will still have your license revoked for at least one year because of the test refusal.
If it is shown that you are intoxicated, then you will not only have the test refusal to worry about, but also a DWI charge to contend with. The test refusal can actually result in worse charges, so this is something you need to know before you refuse the test. Test refusal is not a way to get out of a drunk driving arrest.
Nevertheless, your criminal attorney will be able to advise and educate you so that you can make the right decisions in your case. An attorney provides you with information and guidance; make sure you are attentive and ask any questions that you may have. There is no such thing as an unnecessary question. An experienced criminal defense attorney, if consulted before the testing procedures at the police station are over, will also advise you that you have a right to get your own second test, or additional test, of your alcohol concentration to see if the police’s test is actually accurate or not.
It is important that you do not wait another minute. Contact Max A. Keller before or after test refusal — you will need an attorney with a proven track record by your side. And if you are charged with DWI, you will need assistance in your DWI or DUI case as well. Remember that you do not have to face a judge on your own. You do have rights, so use them.
Urine Test Refusal Defense
If you have been charged with a DWI in Minnesota, chances are that, after your arrest, you were asked to take one of three types of testing methods: a breath test, a urine test or a blood test. Due to challenges to the reliability of the Intoxilyzer 5000 machine on which breath samples were taken until 2011-2012, many local police departments were offering a urine test or a blood test instead of a breath test. Police departments offer urine and blood tests because they believe the method of analyzing the samples is more valid than that of samples provided via the Intoxilyzer machine used to take breath tests. Unfortunately for the police departments — but fortunately for you — urine testing is no more reliable than a breath sample.
Minnesota is one of very few states to use what is commonly referred to as “first void” urine testing in its DWI cases. First void urine testing uses the first urine sample provided by a driver suspected of DWI — that is, as soon as you are arrested, the police will ask you to urinate into a cup, and they will analyze this sample in an attempt to determine your blood alcohol content (BAC). Most states explicitly reject this first void urine test results as unreliable. These states require suspected DWI drivers to “void their bladder” before giving a sample of their urine. Voiding of the bladder usually involves having a driver urinate into a cup, discarding this sample of urine and then having the driver provide a second sample of his or her urine. This is commonly referred to as “second void” urine testing. It is presumed to more accurately reflect the BAC of the driver because the “second void” sample is taken at a time when the urine has not been subject to “urine pooling” or “spoliation.”
Legal Issues with Urine Tests
The issues with urine pooling and spoliation are best explained by the following example: A driver suspected of DWI is stopped by the police at 11 A.M. The driver consents to taking a urine test. This driver has not consumed a drop of alcohol since midnight, 11 hours before. However, prior to midnight this driver drank six beers. This driver has also not urinated since he drank his last beer at midnight. Because the driver has not urinated, the alcohol concentration of his urine will still reflect the alcohol concentration he had following his last beer — that is, the alcohol concentration of his urine will reflect that he consumed six beers, and will likely be over the legal limit of .08. However, he will not be impaired at the time the sample is provided to the police — 11 hours have passed since he had his last drink, and his body has processed all of the alcohol in his system. Thus, his BAC is zero. But, because his urine has been sitting in his body for 11 hours, his alcohol concentration as measured by the “first void” urine sample will be over .08. He will then be charged with DWI, even though his actual BAC at the time the test was given is either zero or well below the legal limit of .08.
Minnesota’s use of first void urine testing is rejected by a number of groups involved in forensic testing — most notably, the Society of Forensic Toxicologists. Ideally, the Supreme Court of Minnesota will realize that Minnesota’s isolation in using first void urine testing is unacceptable, and reject any use of first void urine testing in the future.
Arrested? We’re Available 24/7
If you have been charged with a DWI based on your submission to a urine test, you are not out of options. Some criminal defense attorneys may tell you that challenging the results of your urine test is futile. This is not true. You just need a criminal defense attorney who actually knows the ins and outs of urine testing, and why Minnesota’s methods of urine testing are unreliable. Hire a criminal defense attorney who not only knows all the pratfalls of the state’s methods of urine testing, but also has successfully litigated these issues before the trial courts. Contact us today for a free consultation on your Minnesota DWI.
Only a professional and highly skilled DWI defense lawyer can make sure your case is properly addressed and handled efficiently. Our DWI attorneys will thoroughly investigate the circumstances of your arrest and the arresting officer, interview any important eyewitnesses, handle all court appearances and documents, and guide you through the criminal justice system to your freedom and peace of mind. If you have questions regarding your DWI charges, potential penalties and risks or strategies for defending your rights, call our law office at (952) 913-1421 or use our online contact form. You have rights – we protect them.