What to Do if You Get Arrested for DWI or DUI in Minnesota (Drunk Driving or Under the Influence)
This guide is not legal advice, but describes generally things you must know right away if arrested for DWI in Minnesota, including what you can do when asked to take a test and what you should do right away after release. This is not a substitute for an attorney! Rule #1: Use your phone call!
When Asked to Take the Test (Breath Test, Blood Test, or Urine Test)Police will normally give you a breathalyzer test where they have stopped your vehicle, but this is not the test that is most important. This test is called a PBT or portable breath test and it is normally not admissible in court. It is used to help the officer decide if you are under the influence and if he or she should arrest you. Then, you will be read an Implied Consent Advisory that tells you Minnesota law requires you to take a test. It will also say refusal to take a test is a crime. Then you will be told you will be given time to contact an attorney. When asked if you want to contact an attorney, you should say yes. This will cost you nothing and will not get you in any trouble. You have a legal right to this time to reach an attorney and they must give it to you. Many of us who practice criminal defense answer our phones 24 hours a day and we will give free advice to you on the phone to help you decide what to do. You must know that the officer is not lying to you or tricking you when he says failure to take this test is a crime. Even if you took the breathalyzer on the side of the road, the law still requires you to take a test at the police station or booking facility. If you do not agree to take the test, you will be charged with Test Refusal, which is a gross misdemeanor crime. An attorney can help you decide if there is any reason you would not want to take this test and help you understand the options.
Which Test Can I Choose? Do I Have a Choice?Minnesota law allows the officer to choose what type of test you will be given for DWI. If the officer says he is giving you a breath test, you cannot choose a different type of test. Asking to take a different type of test is okay, but if the cop says no, then if you don't agree to take the breath test at that point you will be charged with Test Refusal. Even if you say you will take a blood test and keep offering to take a blood test, that will still be the crime of Test Refusal if the officer is saying you must take a breath test. However, if the officer asks you to take a blood test or a urine test, the officer must allow you to choose one or the other. If he asks for a blood test, you can ask for a different test and he must give you a urine or breath test instead (his choice). If he asks for a urine test, you can ask for a different test and he must give you a blood or breath test instead (again, his choice).
Your Right to a Second Test for Your Own Confirmation and Evidence!You have the right in Minnesota to ask for a second chemical test to be taken (at your expense, by a private testing company) in order to preserve your own evidence of your blood alcohol content. This can be especially helpful if you were required to take only a breath test, since there is no way to retest the samples in a breath test. A blood test or urine test can be retested later by an independent lab. If you want to take an additional test, the police must allow you to use a phone to call a testing company to come to where you are and take a sample from you (usually a blood sample). If you don't know which company to call, they may give you a number, but if not you can try companies like www.additionaltesting.com at (612) 333-3226. The second test costs about $400. Keep in mind if the officer already took a blood or urine test, you may not want this second test because the sample they took can be retested later.
What You Should Do Right Away After Being ReleasedYou should contact an attorney right away the next morning to start preparing your defense, because in addition to the criminal charges your license will be revoked. You only have 30 days to prepare and file a civil lawsuit to challenge that license revocation, or you lose the right to challenge it. An attorney may want to review the police reports and any audio or video recordings before helping you decide about this challenge, and it can take weeks to get these from the police, so the attorney needs to start right away. The attorney should also be able to explain to you all your options for getting a limited license to drive during the time your license is revoked. You can see our Avvo guide below to getting Ignition Interlock in Minnesota to drive after a DWI. If the police seized your car to forfeit the vehicle, you will also need to file a civil lawsuit to challenge the forfeiture within 60 days or lose the vehicle. An attorney who starts early can sometimes negotiate a way to get the vehicle returned before those 60 days are up, saving you the costs of the lawsuit. Make sure to get legal advice and representation right away so you can protect all these options.