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Under Minnesota’s Implied Consent law, any person who drives, operates, or controls a motor vehicle is deemed to have consented to a chemical test of their breath following an arrest on suspicion of DWI or DUI. If a person refuses to submit to the test, the test will not be forced upon them, but it is a crime to refuse to submit to the test. Test refusal is generally a gross misdemeanor offense punishable by up to one year in jail and/or up to $3,000 in fines. In addition to the criminal penalties, test refusal carries at least a one-year loss of driving privileges.
Generally, the easiest way for law enforcement to convict you for a drinking and driving offense is by showing exactly what your blood alcohol concentration was near the time that you were driving, operating, or in physical control of a motor vehicle. As a result, there are situations where it would seem to be advantageous to refuse a test. However, you will also have to face the consequences of a refusal charge and license revocation, so it is important to be aware of the particular consequences, both criminally and civilly, before deciding whether to take a test.
As part of the implied consent advisory, law enforcement is required to inform you that you have the right to consult with an attorney before making a decision regarding whether to test. Many people wrongly assume that an attorney will not be available to answer a call after 5:00 PM. The attorneys at the BK Law Group answer their phones 24 hours per day, 365 days per year, including weekends and holidays. If you elect to contact an attorney, law enforcement will provide you with a phone, either yours or a landline, and phone books so that you can search for an attorney. A knowledgeable attorney will be able to learn the information they need to accurately advise you of the potential consequences of testing or refusing and provide you with the information you need to make an informed decision.
If the attorney you select does not answer, you should try a different attorney. Law enforcement is required to provide you with an opportunity to contact an attorney, but they are not required to wait for your chosen attorney to answer. As a result, you should call another attorney if you can’t reach the one you selected. Law enforcement is required to provide you with a reasonable amount of time to contact an attorney. What is a reasonable amount of time is not precisely defined, but generally the officer will allow you more time if they can see that you are continuing to actively seek out an attorney.
There are typically two situations where this can happen. The most common is when someone tries to fool the officer or the machine. This is often done when someone sticks their tongue in the mouthpiece in an effort to keep their breath from actually getting into the machine. Alternatively, some people will attempt to blow air out the sides of their mouth in an effort to keep their breath out of the tube. The other situation this commonly happens in is when someone due to a medical or health condition simply cannot blow enough air into the machine. In order to collect a valid sample, the Datamaster machine needs at least 1.5 liters of a breath sample. If someone does not have the lung capacity to blow 1.5 liters of air into the machine, they will not be able to provide a sufficient sample no matter what they do. If you attempted to take the test, but were charged with refusal anyways, you need to hire an attorney immediately because there may be a defense to the charge.
Unfortunately, the type of test is determined by the officer. You do however have the option to obtain your own independent test at your own expense after you have submitted to the test offered by law enforcement. This means that if you submit to a breath test, you can have a private technician come draw a blood sample or take a urine sample to be tested so that there is a test result independent of that obtained by law enforcement.
If law enforcement wants to obtain a blood or urine sample from you, they must generally first obtain a search warrant unless you consent to giving the sample. Many officers will go through the process of obtaining a warrant even if you consent to giving a sample. In order to obtain a warrant, the officer must convince a judge that there is probable cause that evidence of a crime will be found within your blood or urine. If they do so, the judge will sign a warrant and law enforcement will be able to obtain the sample. If they do not have a warrant you are not obligated to provide them with a sample of anything aside from your breath.
A breath test refusal after you have been arrested on suspicion of a DUI can lead to legal trouble and severe consequences if you do not have an experienced attorney at your side. Call a member of the BK Law Group today to learn more about your options.
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