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I am being charged with a 2nd degree DWI - refusal to test and a 2nd degree DWI - under the influence what can i do ?

Cloquet, MN |

i was sitting in a parking lot of a gas station with my truck running the cops pulled up i told them i was waiting for a ride because i was intoxicated . they had me do the field tests then asked me to blow in the Breathalyzer i again said i wasn't driving that i was waiting for a ride he told me to blow anyway . i did and blew a . 211 . they then asked where my keys were after searching me i told them i did not have them . they cuffed me and brought me to jail . they told me to blow again and i said no because i was not driving so why would i have to , then read me my rights and booked me . they are charging me with a 2nd degree DWI - refusal to test and a 2nd degree DWI - under the influence they never found my keys and how can i be charged with both a refusal and a DWI . What can i do ?

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Attorney answers 7


Right now you are probably facing three different cases: criminal 2d degree DWI/refusal; implied consent (license case); and forfeiture of your car.

You can win all three cases with one argument: the police never had probable cause to believe you were in 'physical control' of the car. But you should not try to make this argument for yourself. There are procedural hurdles and deadlines for filings. And there is no guarantee you can convince a judge of this argument on your own. You need legal counsel. There may even be other arguments you can make but wouldn't even notice without the help of a lawyer.

Interview a few lawyers and hire the one you like best. Do it as soon as you can to avoid missing deadlines. Good luck to you.


This is a classic example of being charged for being in "actual physical control" of the vehicle. You can be charged if you were in the vehicle and it was running. This does not mean you can't fight the case, because you can. It is important to know that there will be two separate cases.

First, if the administrative case which oversees the driver's license suspension. If you want to fight the suspension, you will have to follow certain procedures (or hire an attorney who will fight the case for you).

Second, is the criminal case, which will cover the DWI and Refusal. There are ways to fight this case as well, but much will depend on the evidence. I would advise that you do not post anymore specific facts about the case online, as these posts are not protected and could be used against you later. If you think you financially qualify, then you can apply for a public defender at your first court appearance. Otherwise, it would be in your best interest to speak with an attorney about this case. Also, if you do go with a public defender, remember that he/she can represent you on the criminal case, but not the administrative DL suspension case.

I hope you find this information helpful and feel free to contact me if you have any other questions about your case. I wish you the best of luck.


The real issue here is the refusal to test, which is a crime. If an officer has probable cause to believe you were operating a motor vehicle intoxicated- he may request a test at the station. It is a gross misdemeanor to refuse such a test. A running vehicle is problematic since the law prohibits any operation of the vehicle - not just driving per we.

There is also a civil license revocation. This is a separate matter with similar defenses. You have 30 days after notice of the revocation to file a challenge to it. On a refusal, the revocation period is one year.

I would be happy to review your case at no charge. I will provide you with an honest assessment based on 21 years of experience. 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


As stated, you should hire an attorney. There are arguments you can make. Talk to at least three attorneys before you decide to hire anyone; be your own advocate in this regard. Also as stated, refrain from posting further details of the incident on public forums such as this.

Adam W. Klotz
FREE CONSULTATIONS- 612.223.6767 ext. 3

The materials appearing on this website are provided for informational use only, and are in no way intended to constitute legal advice or the opinions of this attorney or affiliated law firm. Links that may appear on this site are intended solely for your convenience in identifying and accessing other sources of information.


We appreciate you seeking legal advice on this legal forum. But please be aware that you can incriminate yourself on the Internet. Savvy police and prosecutors can research you online and locate statements to use against you in court. The best thing you can do is hire a qualified criminal defense lawyer in this jurisdiction to assist you in developing a defense. The lawyer will understand the facts and law better than we can ever understand them. Good luck.


I assume that because it is being charged as a second degree you must have a prior conviction or alcohol revocation within 10 years. Although, you don't have to be actually driving to be convicted of a DWI, you do have to be in "physical control". This can be complicated concept for some to understand. This may be an issue in your case. You should contact an experienced DWI lawyer to discuss this issue further in more detail.


"Possession and Control" of a motor vehicle is viewed very broadly by the statute. Technically, it could be said you were in possession and control of a vehicle. The reality is, however, that juries can be pretty loath to convict people of such violations, because, frankly, they may view the fact you're waiting for a ride to be a very responsible thing to do. It's a shame the law doesn't recognize when people are trying to do the right thing. Prosecutors will sometimes ditch these if a lawyer is fully prepared to try it. I have tried cases like this before. I'm happy to offer a free consultation. 651-300-2529

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