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DUI/DWI What to do if pulled over.

Saint Paul, MN |

If you are pulled over for a DWI/DUI is it better to refuse the Breathalyzer test and field sobriety testing and just let them take you to jail. This way they will be less evidence against you when you go to court and will help a attorney to get it dismissed easier?

Also they will charge you with test refusal right?

Attorney Answers 4


  1. Hello. An attorney cannot advise persons to violate the law, namely, to refuse to test. That said, refusal to test itself is a gross misdemeanor. Significant administrative penalties are imposed as well. There are certain highly limited circumstances in which some of the potential penalties may be lessened by a refusal to test. One obvious issue is that the person who is in a position to have to make the decision, "Should I test or refuse" is likely be in a state of intoxication such that his/her judgments and decision-making processes are impaired. If you are in need of attorney assistance, some attorneys, myself included, will confer for free, at no charge. Then, if legal work is performed, some attorneys, myself included, will provide a reduced fee for need. All the best.

    Tricia Dwyer, Esq., Criminal Law, Rule 14 Qualified Neutral, Minnesota Supreme Court Roster Mediator, Tricia Dwyer, Esq. & Associates PLLC, Phone: 612.296-9666 EVERY DAY OF THE YEAR until 8 p.m. daily. See www.dwyerlawfirm.net


  2. After being stopped by police, if they begin a DWI investigation, they will normally attempt to get the driver to perform field exercises (so called "field sobriety tests") as well as blow into a "Preliminary Breath Test" or PBT. In Minnesota, my view is that the driver is better off declining to perform any field exercises (so called "field sobriety tests"). Why? They are not scientific, and the police officer will almost always claim that the driver "failed" (according the police officer). This is like the proverbial fox guarding the hen house. When it comes to the "Preliminary Breath Test" or PBT, the matter is more complex. Theses days, PBTs have digital readouts, but they can still be off by as much as 50% when working "properly." If a driver refuses the PBT, that normally gives the police officer statutory authority for probable cause to arrest on suspicion of DWI. If the driver submits to the PBT at the machine claims a 0.08 or higher reading, that can be considered probable cause for arrest also, plus they then a have a digital report on an alcohol level. Refusing a PBT is not a crime. After the arrest, at the police station, there is another, "evidentiary" breath machine that is much larger. Refusing a chemical test for alcohol in Minnesota is still claimed to be a crime by prosecutors, but a recent U.S. Supreme Court case has probably made the refusal crime unconstitutional, though this is not yet settled in the courts. Even if not a crime, however, refusal can result in a much longer license revocation.


  3. As a defense lawyer I would rather defend someone who had performed the field sobriety tests than someone who refused them. When you indicated "Breathalyzer", I assume you ment the preliminary breath test done on the road side and not the breath test done at the police station. A refusal of the field sobriety tests will result in your immediate arrest and can be used as part of the officer's decision to arrest you. The officer will undoubtedly also refer to driving conduct, time of day, speech, odor of alcohol, blood shot and watery eyes, balance, etc. as indicia of intoxication. If you refuse the tests on the roadside, you will be missing out on opportuties to challenge at trial. You have the right to refuse road side testing. However, unless you are so intoxicated that you have a hard time even standing up - in which case you may want to skip the video performance - I would take the field sobriety tests.


  4. In most cases, the answer is "yes." If the officer has sufficient observations to conclude there is probable cause to believe you operated a motor vehicle while intoxicated, you will be arrested. By declining the field sobriety tests, you reduce the number of observations the officer has on which to base his decision.

    For a FREE consultation call 612-240-8005.

    CALL 612-240-8005 for a Consultation. Disclaimer: Nothing in this email message creates an attorney client relationship absent a retainer agreement with this office. Any response to email inquiries should be considered general in nature and should not be relied upon as legal advice. You should always consult a lawyer in your state regarding your specific legal matter. Visit online at http://www.minnesotaLawyers.com

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