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Jay E. Carey: Posted on Tuesday, January 08, 2013 12:30 AM
This is probably the most common question asked of a DWI/DUI defense lawyer.
The short answer is: You should take the test with a few important caveats.
In most situations, test refusal is a more serious crime that is easier for prosecutors to prove at trial. Because test refusal is a crime, a lawyer cannot counsel a client to refuse the test and commit a crime. However, a lawyer can counsel a client regarding the consequences of taking or refusing the test and recommend that a driver obtains an independent, additional test at the driver's own expense. |
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Jay E. Carey: Posted on Saturday, October 06, 2012 9:42 AM
On September 26, 2012, the Minnesota Supreme Court released an important decision in the DWI vehicle forfeiture of Patino v. One 2007 Chevrolet. The Court applied the plain language of the DWI forfeiture statute and held that an owner is entitled to return of the vehicle if the alleged offender attends court and is not convicted of the "designated offense" triggering the initial forfeiture. Under the forfeiture statute, a "designated offense" is defined as First or Second Degree DWI/Test Refusal or any DWI/Test Refusal offense where the driver has a B-card restriction or is canceled inimical to public safety (IPS). |
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Jay E. Carey: Posted on Wednesday, July 04, 2012 11:40 AM
On June 27, 2012, the Minnesota Supreme Court released its long-awaited decision regarding the validity of the Intoxilyzer 5000EN breath machine, used in thousands of pending Minnesota DWI cases. By a 4-3 margin, the Supreme Court upheld the validity and reliability of the Intoxilyzer 5000EN machine. A copy of the decision is available here.
The decision ends an approximately six-year battle regarding access to, and analysis of, the Intoxilyzer's source code, which governs the machine's operation.
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Jay E. Carey: Posted on Saturday, April 07, 2012 12:15 AM
In State v. Hawkinson, decided March 26, 2012, the Minnesota Court of Appeals ruled that the State of Minnesota violated defendant's due process rights by destroying defendant's blood sample before the DWI trial and after defendant's specific demand to preserve the blood sample for trial. The court of appeals relied on the seminal U.S. Supreme Court case of Brady v. Maryland, which established that the “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. |
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Jay E. Carey: Posted on Thursday, March 15, 2012 7:03 AM
 Twincities.com reports that an internal review of the Rosemount Police Department found no impropriety in its recent DWI enforcement, despite several complaints by owners of downtown drinking establishments alleging that the police were overzealously targeting its patrons. The owners complained that police officers were stopping drivers for no reason and consequently, scaring away business. One restaurant manager reported that she was stopped five times by the Rosemount Police. WCCO News even conducted |
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Jay E. Carey: Posted on Wednesday, March 07, 2012 2:57 PM
 The Star Tribune reports that Canada has eased its strict policy denying Americans entry into Canada if they have a single DWI conviction. In the past, Americans with a single DWI conviction often were deemed inadmissible because DWI is considered an "indictable offence" in Canada. An "indictable offence" is similar to a felony in the American system. Canada's new policy is in response to lost tourism revenue. The new Canadian policy effective March 1, 2012, allows certain first-time offenders a one-time exemption. |
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Jay E. Carey: Posted on Wednesday, March 07, 2012 12:00 AM
 USA Today reports that the Insurance Institute for Highway Safety (IIHS) supports national legislation requiring all first-time DWI offenders to install an ignition interlock device in their vehicles. An ignition interlock device is a hand-held unit, which requires a driver to blow into the device before starting the vehicle and at random intervals while driving the vehicle. If the driver's alcohol concentration is 0.02 or more, the vehicle will not start. In Minnesota, drivers who install an ignition interlock device have to pay approximately $100 per month for the device, plus a $100 installation fee and a $50 removal fee. |
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Jay E. Carey: Posted on Monday, February 27, 2012 3:22 PM
 Non-citizens arrested for DWI in Minnesota face potential, life-altering immigration consequences. Non-citizens should consult with a knowledgeable DWI lawyer and an immigration lawyer before resolving any DWI case, leaving the U.S., or filing any immigration documents. DWI charges certainly can affect a non-citizen's ability to remain in or re-enter the U.S., obtain a visa or green card, or become a naturalized citizen.
Most everyone arrested for DWI is fingerprinted. These fingerprints are entered into a national database accessible to the U. |
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Jay Carey: Posted on Friday, February 10, 2012 6:39 PM
In State v. Tanksley decided February 8, 2012, the Minnesota Supreme Court rejected defendant Tanksley's challenge to the reliability of DWI urine testing. The court held that it was proper for the trial court to reject Tanksley's request for aFrye-Mack hearing because Tanksley's proffered basis for the hearing was not relevant to the charged DWI offense. Tanksley was charged with misdemeanor Fourth Degree DWI based upon a urine test with a reported alcohol concentration of 0. |
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Jay Carey: Posted on Thursday, February 02, 2012 10:54 PM
According to a recently published study by the Vera Institute of Justice, the average annual cost per inmate in Minnesota's prison system was $41,364 for fiscal year 2010. The average daily population of Minnesota's prisons in 2010 was 9,557 inmates. Notably, these costs do not reflect the substantial costs of operating the county jail system, which holds thousands of inmates each year - most for short periods of time.
Interestingly, in 2010 Minnesota's per capita income was $42,847, according to the |
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Jay Carey: Posted on Tuesday, January 31, 2012 6:08 PM
Kare 11 News reports today that an unidentified employee at Hayes Park Arena in Apple Valley was arrested for alleged impaired operation of a Zamboni. The story indicates that the Zamboni operator allegedly was swerving and hit the boards multiple times while clearing the ice. The employee submitted to a blood test and is awaiting the results. Ordinarily, it takes scientists at the Minnesota Bureau of Criminal Apprehension 3 to 5 weeks to analyze and report the alcohol concentration of a blood sample. |
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Jay Carey: Posted on Sunday, January 29, 2012 10:53 PM
The Minnesota State Patrolannounced on Fridaythat there will be increased DWI enforcement through September 2012 in 13 counties statewide, including the metro area counties of Hennepin, Ramsey, Anoka, Dakota, Wright, Washington, Sherburne, Scott, and Carver. This announcement is part of a federally-funded program in place from October 2011 to September 2012. Notably, the press release contains a"13 Targeted Counties" Fact Sheet, indicating the number of DWI arrests and serious alcohol-related accidents in these counties from 2008 to 2010. |
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Jay Carey: Posted on Wednesday, January 25, 2012 6:17 PM
In the unpublished decision of Rechtzigel v. Commissioner of Public Safety filed January 23, 2012, the Minnesota Court of Appeals reiterated that (i) drivers have no defense premised on a Miranda Rights violation in the civil DWI license revocation hearing (Implied Consent) and (ii) the Commissioner does not have to prove that the driver submitted to the alcohol test within two hours of driving as is the case in a criminal DWI trial. |
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Jay Carey: Posted on Friday, January 20, 2012 11:38 PM
Twincities.com reports that a Minneapolis man was convicted of felony DWI in Beltrami County after being involved in a near-fatal accident with a train. The man's vehicle came to rest on train tracks and apparently was struck by a train while the man was in the vehicle. Deputies found the man lying half outside the badly damaged vehicle. This was the man's fourth DWI incident in 10 years. The court adjudicated him guilty of felony DWI and sentenced him to serve 180 days in jail, with 36 months of prison time hanging over his head for seven years of probation, and the potential for an additional five years of conditional release if his probation is revoked and he is committed to prison for 36 months. |
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Jay Carey: Posted on Friday, January 20, 2012 9:58 PM
The Minnesota Department of Public Safety recently released the results of its December "enhanced DWI enforcement campaign" in Minnesota. Law enforcement agencies from around the state reported a total of 2,573 DWI arrests. The State Patrol, which reportedly has 591 uniformed troopers, accounted for 606 arrests. In the Twin Cities, the Minneapolis P.D. arrested the most drivers - 62 arrests. The Bloomington P.D. and St. Paul P. |
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Jay Carey: Posted on Friday, January 20, 2012 12:37 PM
In the published opinion of State v. Coleman filed on January 3, 2012, the Court of Appeals ruled that the defendant's 2010 DWI incident was enhanceable to felony DWI based solely on defendant's 1990 conviction for criminal vehicular operation ("CVO" - DWI involving great bodily harm), which by operation of law became a misdemeanor on defendant's record in 1995. In 1990, the defendant was convicted of the felony-level offense of CVO, and the court imposed a "stay of imposition," which meant that upon successful discharge from probation in 1995, the offense level decreased from a felony to a misdemeanor on defendant's record. |
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Jay Carey: Posted on Friday, January 20, 2012 1:15 AM
In October 2011, the Minnesota Court of Appeals ruled that the court must order the return of the seized vehicle if the alleged offender appears in court and is not convicted of the alleged DWI offense triggering the initial forfeiture (usually First or Second Degree DWI/Test Refusal). |
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