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The Top 10 Mistakes Lawyers Make in Minnesota Drunk Driving Cases...And How To Avoid Them

All DWI cases involve a complex mix of law and science. It is this complexity that has made DWI cases among the most difficult to defend. 

Attorneys who do not regularly defend DWI clients (or regularly defend DWI clients without the proper training and experience) often make big mistakes that can profoundly harm their clients.

These include loss of license, considerable fines, jail, ‘high-risk’ insurance rates, supervised probation, international travel issues and the effect it could have on their current employment or future job prospects.

To protect yourself and to help decide whom to hire and whether or not your DWI case should be settled through a plea negotiation or tried to a jury, it is important to know the top ten most common mistakes made by attorneys in defending DWI cases.

1. Assuming the DWI Case Can’t be Won at Trial.

In many DWI prosecutions there are often errors made by police and prosecutors that can provide valuable opportunities for the experienced DWI defense attorney to win the case.

For example, the results of a breath test can be challenged through a Motion to Suppress, presentation of evidence of the driver’s sobriety, or by an effective cross-examination of the arresting officer or government expert witness.  However, after obtaining the test result and reading the police report, some attorneys will automatically assume that their client’s case cannot be won. These attorneys routinely advise their clients to plead guilty at the earliest opportunity – often without conducting a thorough investigation of the case.

It is only after carefully considering all the relevant facts and evidence in your case, researching the legal issues, and examining all the potential defenses you may have based on the strength (or weakness) of the State’s DWI prosecution against you that any plea negotiation should be entertained by your attorney.

Many lawyers seem to be unwilling to fight for their clients in DWI cases. Any lawyer who recommends that you plead guilty without taking the time and expending the effort necessary to thoroughly research and explain every available option available to you may not be looking out for your best interests.

2. Not Obtaining the Officer’s DWI Training Manuals.

During DWI enforcement training, police officers receive government-issued manuals instructing them on what procedures must be followed to properly evaluate field sobriety (roadside) tests as well as how to administer and evaluate the breath test conducted at the station.

Most lawyers know little about these manuals or the rules that must be followed before the results may be considered in court.

A very few attorneys – myself included – actually take training courses to become qualified to administer and evaluate these tests.

A lawyer who has read the arresting officer’s ‘playbook’ and received the same training will know exactly what questions to ask in court and determine if the manual’s directions have been properly followed.  If an officer deviates from the training specifically required by the training manual, then the validity of the test can be attacked.  Successful challenges result in the test evidence being excluded – significantly weakening the State’s case.

Simply put, a lawyer who has not read and understood the arresting officer’s DWI training manuals will not know whether the tests were administered properly and therefore cannot effectively cross-examine the officer about them in court.

3. Not Challenging the Traffic Stop.

Many lawyers assume that the police officer must have had a legal reason to make the initial traffic stop.  Often, this is not the case.  Police officers routinely look for any reason whatsoever to make a stop in the hopes that they can make a DWI arrest.

Routinely, law enforcement agencies will band together during holiday periods or at other specific times such as big professional athletic events to conduct area-wide, specially-funded ‘saturation patrols’.  This over-policing can result in situations where officers may stop vehicles without the legal justification to do so.

In every case, I evaluate the legality of traffic stop and can file a motion to suppress the evidence if the stop was unlawful.  Even if the motion to suppress is not granted, a pretrial hearing can provide us with an opportunity to examine the arresting officer’s testimony beforehand and explore any weaknesses in the State’s DWI prosecution.

4. Not Challenging the Implied Consent Revocation.

In DWI cases there is a separate civil proceeding called an ‘Implied Consent’ challenge.  Minnesota’s Implied Consent law gives the State the authority to revoke your driving privileges for any test failure (.08 alcohol concentration or higher) or test refusal.  Anyone who receives a revocation under the Implied Consent law is entitled by law to a court hearing where a judge will determine whether the State’s revocation of his or her driving privileges was legal.  Ultimately the judge will decide and whether the revocation should be sustained (upheld) or rescinded (reversed).

Many lawyers make the mistake of not filing an implied consent challenge, often because they don’t realize that these hearings can be won.  Importantly, there is absolutely no risk of an increased license revocation period even if a driver ‘loses’ the challenge and the revocation is sustained.  In other words, once the revocation has taken place, the worst has already happened – the Implied Consent challenge is a driver’s only opportunity to ‘undo’ the license revocation.

The civil Implied Consent case often presents an opportunity to get a ‘sneak preview’ of the criminal DWI prosecution and hear the arresting officer’s testimony prior to a jury trial.  

There are several reasons for a judge to rescind an Implied Consent license revocation including:

  • The arresting officer did not properly advised the driver of his or her rights under the Implied Consent law (where the officer’s explanation was defective, misleading or confusing in some way);
  • The officer failed to show up at for the Implied Consent hearing;
  • The traffic stop was illegal;
  • The officer did not have probable cause to make a DWI arrest;
  • The officer prevented or denied the driver’s right to an independent test;
  • The officer prevented contact with an attorney prior to testing (or failed to inform the driver of this right);
  • A temporary license wasn’t provided with the license revocation as required by the Implied Consent law;
  • (In test refusal cases) There was no refusal because of a driver’s medical condition, the breath test machine malfunctioned, or the officer gave confusing or legally incorrect information about the driver’s rights.

Officers are often less prepared at Implied Consent hearings than for jury trials.  It is often the best time for defense attorney to ask the officer about every aspect of the arrest, including the roadside field sobriety tests and how the breath test was administered.  In some cases, a transcript of the Implied Consent hearing can later be used to limit or impeach the officer’s testimony in the criminal case.  

Where an officer’s testimony at the Implied Consent hearing shows weaknesses in the State’s case, or if the testimony is inconsistent with the police report, it can also be used by the defense in a successful plea negotiation.  

5. Not Filing Pretrial Motions to Suppress Evidence.

In criminal DWI prosecutions, a good defense attorney will file pretrial motions to challenging the stop and the arrest of their client.  Like Implied Consent hearings, these motions can be won after being argued at a pretrial evidentiary hearing.  Even if the motions are denied, an evidentiary hearing can nevertheless provide a valuable opportunity for a defense attorney to question the arresting officer under oath and provide a preview of the State’s case.  

Also, if a police officer provides testimony at trial that differs from that given at the pre-trial hearing this may not sit well with a jury and can provide reasonable doubt juries may use to acquit.

6. Making the Cop Out to be a Liar.

Some lawyers think that in order to win a DWI jury trial, they must show that the officer is a liar.  While considering the testimony of each witness at trial is critical to a good defense, in nearly all cases, few jurors will automatically assume that all police officers are liars.  Attorneys who routinely ‘attack’ the truthfulness of the police officer witness at trial often unwittingly sabotage their chances with the jury - ultimately to the detriment of their clients.

This is not to say that no officer is ever deceptive (and sometimes downright untruthful) in giving courtroom testimony.  However, juries are much more likely to accept that an officer was ‘mistaken’ in a particular case rather than willfully dishonest in character.

7. Representing DWI Clients Outside the Attorney’s Usual Area of Practice.

Just as you probably wouldn’t hire a criminal attorney to provide advice in business law or divorce matters, hopefully you wouldn’t hire a business or divorce lawyer to represent you in a DWI case.  The reason for this is simple: Minnesota DWI law is very complex – So complex that I wrote two books on the subject!

In addition to routine criminal law and procedure, DWI cases almost always trigger Minnesota’s hyper-technical Implied Consent law, involve forensic science issues relating to chemical testing, present issues concerning human physiology relating to field sobriety tests, and require mathematical calculations to explain the chemical test numbers.

In addition to the arcane driver’s license rules, regulations and statutes involved in DWI cases, there are a host of other hidden ‘collateral’ consequences that can and do affect a driver long after the DWI court case is finished.  Knowing how to defend a DWI case in Minnesota involves considerable education, preparation, familiarity with the applicable law and science, and a solid understanding of what needs to happen in court in order to protect your rights.

In order to spot potential defenses and possible weaknesses in the State’s case, a defense attorney must not only be well-versed in DWI law and procedures, but should also have substantial practical experience in litigating DWI cases, including Implied Consent hearings and jury trials.

If your attorney merely has a ‘passing knowledge’ of criminal law generally – and not DWI law specifically – you may not be getting the experienced representation needed to win these cases.

8. Not Being Familiar With the Scene of the Traffic Stop and Arrest.

In over 20 years of defending my clients’ DWI cases, I have always been able to learn something beneficial simply by going to the scene of the traffic stop and further familiarizing myself with the area through photographs, videos, and satellite maps.  Unfortunately, many lawyers fail to do this.  In my view, it is crucial to know the area where my client was stopped.

Perhaps the officer observed ‘erratic’ driving where the road was under construction or unusually bumpy or windy.  Or maybe the officer’s evaluation of the roadside sobriety tests were compromised because the shoulder of the road was sloped or had loose gravel, making it difficult to perform these tests properly.

An attorney familiar with the physical landscape and environment of the area where his or her client was stopped and arrested is better equipped to ask probing questions at trial about the traffic stop as well as the roadside sobriety tests.  These questions can expose inconsistencies between the officer’s account as reported in the police report and what is testified to at trial leading to reasonable doubt, which the jury can then use to acquit.

9. Encouraging DWI Clients to Testify at Trial.

Unless absolutely necessary to contradict an important piece of the State’s evidence, I am of the opinion that it is seldom a good idea for an attorney to encourage a client in a DWI case to testify before a jury.  The Constitutions of both the United States and the State of Minnesota provide that a citizen accused has the absolute right to remain silent and cannot be compelled by the State to testify in any proceeding.  It is also the right of every citizen accused to testify to their innocence before a jury if they so choose.

It is important to understand that in all criminal prosecutions it is the State’s burden to prove its case in court beyond a reasonable doubt before an accused person can be convicted of any crime.  A DWI defendant who chooses to testify in his or her own defense runs the risk of shifting the jury’s focus away from reasonable doubt to the credibility of the defendant.

In most criminal trials, the defense’s main objective is to show that the State has not presented evidence strong enough to meet its burden of proving guilt beyond a reasonable doubt.  A defendant who waives their constitutional right to remain silent and chooses to testify at trial automatically places their credibility and honesty at issue and becomes ‘fair game’ for the prosecutor to attack.

In all DWI cases where the defendant testifies, the jury is forced to choose between the testimony of the (presumably) sober police officer and the defendant who in most cases has consumed at least some alcohol prior to driving and may not be as relaxed and polished on the stand as police officers often are.

Occasionally there is that rare case where a DWI defendant must testify before a jury to have any hope of acquittal.  However, in the vast majority of cases, an experienced DWI defense attorney will focus on presenting reasonable doubt to the jury and not risk strengthening the state’s case by having the client testify.  A careful analysis must be made to make this determination. 

10. Ignoring Collateral Consequences.

Another mistake attorneys often make is in failing to discuss with their clients the effects a conviction might have in addition to a fine or jail time.  These can include special probationary conditions, treatment obligations, license revocation, higher insurance rates, loss of a job, inability to rent a car and international travel, just to name a few. 

All the consequences of a DWI conviction that might affect a particular client based on their unique circumstances should be explained and taken into account before deciding whether to accept a settlement negotiation or proceed to trial.

For the above reasons, it is important that you only entrust your DWI case with an experienced DWI attorney.  If you have a pending DWI case, give me and my team at call today!