Late last year, we reported on a Minnesota man who was facing his 28^th DWI and discussed the need for and effectiveness of harsher DWI legislation. Discussion involved mandatory revocation of one’s driver’s license after five DWI convictions. Read More...

We previously reported on the difficulties of securing convictions for motorists arrested for DWI regarding substances not currently on the state law’s intoxicating substances list. To address this, in March 2018, Minnesota senators examined how current state DWI law addresses sniffing inhalants—better known as “huffing.” Read More...

At the present time, Minnesota law (Statute 169.71) says that a motorist may not operate a vehicle with a cracked or discolored windshield “to the extent that it limits or obstructs proper vision.” But how does one ascertain whether the crack does, in fact, limit or obstruct the driver’s vision? Read More...

Here’s how you can protect yourself this holiday season.

Be cognizant of your actions

1. Don’t drink and drive. It is that simple. To stay safe while on the road, if you have been drinking or using drugs, then don’t get behind the wheel. Even if you’ve only had a few drinks and feel fine, it is best to not drive. Not only might you underestimate the impact of any alcohol you may have consumed, but DWI patrols are oftentimes out in force during the holidays, and if you are stopped—even with a BAC of less than the legal limit of .08—you could still be charged with DWI.

2. If you are celebrating with others, choose a designated sober driver before the festivities are underway. A designated driver is responsible for staying sober for the entire day and during any events in order to ensure that everyone gets home safely.

3. Take advantage of public transportation and rideshare programs. If you don’t have a designated driver, there are many options of which to take advantage: taxi, bus, Uber or Lyft, party buses, and others.

4. If you see someone who is intoxicated trying to get into his/her vehicle to drive home, try to get his/her car keys and offer alternatives for him/her to get home safely.

Get the keys

Getting an intoxicated person’s car keys can be difficult, but if s/he ends up being responsible for a traffic accident or fatality, the situation is much worse, and if you were aware of his/her intoxicated state, you could end up living with a lifetime of guilt.

The U.S. Department of Transportation’s (DOT) National Highway Traffic Safety Administration (NHTSA) offers tips for preventing an intoxicated person from driving by collecting his/her keys:
• Use a calm approach. Suggest to him/her that s/he has had too much to drink and, perhaps, it would be better for him/her to get a ride home instead of driving him/herself.
• Make light of or joke about the situation to minimize friction. Avoid embarrassment at all costs.
• Make it sound as though you are doing him/her a favor.
• While s/he is preoccupied, find the keys and take them. In many cases, the intoxicated person will simply think s/he lost the keys and find another way home.
• If you are close to the person—good friend, spouse, family member, significant other, etc.—inform him/her that you will not be riding if s/he insists on driving.
• If you don’t know the person, talk to his/her friends and ask them to try to persuade their friend to give up his/her keys.

How you can keep yourself safe on the road

Above are tips you can take to ensure you don’t drive drunk, but how do you keep yourself safe from drunk drivers?

1. When on the road, drive as if everyone around you is intoxicated. Keeping your distance from the vehicle in front of you, staying alert for oncoming traffic, and being prepared for evasive maneuvers, if necessary, are all steps you can take to keep yourself safe while driving during the holiday season.

2. Avoid highways, if possible.

3. Avoid driving very late at night as this is when many drunk drivers are on the road.

4. Report any driver you believe is driving while under the influence. By being proactive and reporting a motorist who you suspect of driving drunk, you may save a life.

5. Utilize extra caution at intersections. Many alcohol-related accidents occur at intersections. Therefore, don’t simply assume that someone else will stop at a red light.

6. Under no circumstances, let your friend or family member drive drunk. Regardless of how angry s/he might get at you at the moment, s/he will invariably thank you in the morning.

Whether you drive drunk or sober is up to you; however, while you can’t make someone else not drink, you can minimize his/her effect on the road. The holidays should be celebratory, not tragic.

Happy Holidays and stay safe!

Effects of legalization in Washington and Colorado

A 2016 CATO Institute Policy Analysis examined the impact of state marijuana legalizations on several factors. With respect to road safety and DWIs specifically, this report evaluated opposing prior literature that suggested: first, that marijuana impairs driving ability and, thus increases accident incidence; and second, that marijuana legalization improves traffic safety because marijuana is a substitute for alcohol and may even improve the driving of persons who use marijuana to alleviate chronic pain.

Many governments—at federal, state, and local levels—warned that legalization marijuana would increase traffic accidents significantly. However, the data vary. According to the AAA Foundation, when Washington state legalized recreational marijuana, the number of fatal automobile accidents increased. Among the key findings included that between 2010 and 2014, 303 drivers (10% of all drivers involved in fatal accidents) had detectable levels of THC in their blood at the time of the accident with or without alcohol and/or other drugs. Additionally, after recreational marijuana was legalized, the proportion of DWI drivers who tested positive for THC increased significantly nine months after the new law went into effect.

However, data from Colorado demonstrate that highway fatalities were at historic lows following legalization. Further, marijuana legalization in Oregon and Alaska also showed no discernible increase—and even slight decreases—in traffic fatalities.

Marijuana legalization and changing laws

Most of the states which have legalized marijuana have not changed their DWI laws. Generally, these laws are of two types: per se and impairment. Per se DWI laws require the prosecutor to prove the driver had a BAC of .08 or greater at the time s/he was stopped. Impairment need not be proven as the presence of the substance in question in his/her system is usually enough to secure a conviction. However, most of these laws apply only to alcohol consumption as marijuana is not measured in BAC. Thus, a motorist who is driving while under the influence of marijuana cannot typically be convicted of a per se DWI.

On the other hand, impairment DWI charges do, in fact, apply to marijuana use in that these laws focus on the effect of the drugs on the driver, not on the actual amount of the drug in the driver’s system. Further, impairment DWI laws do not limit whether the drug in question was illegal or legal. Thus, even if a motorist has legally ingested marijuana, if s/he is impaired and drives, s/he can be convicted of DWI.

Determining impairment

Proving whether impairment exists and its degree is the difficult part. Complicating matters is that each state has its own degree of impairment requirements. Currently, Minnesota’s laws are zero-tolerance with respect to Schedule I and Schedule II controlled substances (including marijuana.) Thus, if you are driving while impaired—from any substance—you could be charged with a DWI.

According to one 

San Diego criminal defense attorney Read More...

Sensitive jobs

A simple DWI arrest generally won’t affect your job search because most states permit employers to ask only about convictions. However, some states permit employers to ask applicants about certain arrests.

Some employers may be more concerned about DWI arrests and convictions than others. Positions requiring driving—particularly a company vehicle such as delivery, bus, and truck drivers—could be problematic. In California, for example, employers require applicants to disclose any DWI- or drug-related arrests if they are applying for certain jobs with access to medications. Similarly, if you are looking to work with children, seeking a government job, or applying for a job that involves handling sensitive and confidential information, a DWI conviction may prove problematic.

Other potential problems

In addition to having a criminal record, getting a DWI can also raise concerns in other areas related to employment. For example, if you get your driver’s license revoked or suspended, you may be left without reliable transportation in order to get to work. This may be particularly troublesome if you live in an area without adequate public transportation or don’t have anyone to rely on for a ride.

The law may protect you

There are two federal laws that provide somewhat limited protection to job applications who may have criminal records: Title VII and The Fair Credit Reporting Act (FCRA).

Title VII—Criminal record-based discrimination

Part of the Civil Rights Act of 1964, Title VII protects job applicants and existing employees from employment discrimination which include hiring and screening practices. Because arrest and incarceration rates are significantly higher for certain minorities in the US, if an employer has a policy that categorically excludes any applicant with a criminal record, s/he may be guilty of racial discrimination.

To address this, the Equal Employment Opportunity Commission (EEOC) provides guidance for employers to weed out risky applicants without discriminating against them. Among the factors for consideration include the nature and seriousness of the offense, the time since the offense or sentence, and the nature of the job being applied for. The EEOC also urges employers to afford candidates the ability to explain the circumstances of their case.

Fair Credit Reporting Act

The FCRA handles accuracy concerns because some background checks may include errors. Such errors can include:

Read More...

Prevalence of marijuana use in the US

While marijuana—also known as pot, weed, grass, and other slang terms—can be smoked, vaporized, eaten, brewed, and “ingested” topically, the majority of people smoke it. According to a 2010 National Survey on Drug Use and Health (NSDUH), as many as 17.4 million Americans admitted to using marijuana within the past month. A 2016 Gallup Poll found that one out of eight people smoke marijuana while 43 percent of adults have admitted trying it. Today, this number is presumed even higher as many states and Washington, D.C. have legalized marijuana in some fashion, whether medicinally, recreationally, or both.

Over the years, the average THC content has increased from less than one percent in 1972 to nearly four percent in 1990 to as much as 13 percent in 2010. These amounts continue to rise. Today, some marijuana contains 30 percent or more THC. Increased potency complicates determining accurate long- and short-term effects of the drug.

Marijuana ingestion

When marijuana is smoked, THC is absorbed through the lungs and into the bloodstream. Marijuana can be smoked in cigarette form (a joint) or through bongs, glass pipes, bubblers, blunts, and other paraphernalia. More recently, vaporization—or vaping—has emerged as a smokeless delivery system. Because the marijuana is heated at a lower temperature, studies suggest that this method is healthier than regular smoking because the user inhales fewer toxic compounds and carbon monoxide. Either way, smoking marijuana is the quickest way to achieve the desired result—a euphoric high. Generally, your high will peak in about 30 minutes and then taper off between one and four hours.

Marijuana can also be ingested orally. The effects are slower because the THC must first pass through the digestive system to reach the bloodstream. Thus, effects may take up to two hours; however, they will generally last longer—as many as eight hours—than smoking. Cannabis can also be added into baked goods, candies, and even brewed in a tea.

Marijuana and your body

Despite being a Schedule I controlled substance, marijuana does have some medical benefits such relieving chronic pain, reducing the effects of glaucoma, alleviating nausea, and inducing appetite. However, marijuana can also cause damage to your body.

Contrary to popular belief among those who regularly use marijuana, marijuana smoke can, in fact, cause many of the same respiratory problems from which tobacco smokers suffer such as cough, increased phlegm production, more frequent illnesses like bronchitis and pneumonia, and greater instance of lung infections

However, according to a

2013 study Read More...

Myths

There are many myths surrounding drinking and driving. Here are the most common.

It’s illegal to drink and drive

Actually, it is perfectly legal to have a beer or a glass of wine—or even a shot—and drive as long as you are not legally intoxicated. Most people are not affected enough by one drink over dinner, for example, to render them intoxicated under the law.

Drinking coffee, eating, and/or taking a cold shower will sober me up

In reality, the only way to sober up after drinking is by letting your body naturally metabolize the alcohol. This usually occurs at the rate of two hours per drink. Coffee doesn’t alleviate alcohol effects. All coffee will do is make a drunk person wide-eyed, awake, and nervous—and still in no condition to drive.

As for eating, first of all, you should never drink on an empty stomach; however, eating while drinking is not a sure-fire defense against impairment.

Finally, with respect to a cold shower, while this may momentarily wake you up, it does nothing to speed up your body’s ability to metabolize alcohol.

I shouldn’t submit to a breathalyzer if stopped

Most states—including Minnesota—have an Implied Consent law in which everyone with a driver’s license implicitly agrees to submit to a breath test if suspected of drunk driving. Failure to do so can result in additional charges or penalties.

However, only with respect to blood and urine tests, in Minnesota, refusal is not a crime

unless law enforcement gets a search warrant Read More...

Previous law

Per the Sixth Amendment, every individual is provided the right to counsel in criminal prosecutions. In 1963, Gideon v. Wainwright extended this right to the states. Then, in 1991, the Minnesota Supreme Court decided, in Friedman, when the “critical stage” occurs prompting the right to counsel in DWI cases.

In prior cases, the Minnesota Supreme Court held that when a driver is asked to take a chemical test, this represents a “critical stage” in the process. As such, the right to counsel attaches.

Pursuant to Minnesota Statutes §171.177, a blood or urine test refusal in the face of a warrant is a crime subject to immediate driver’s license revocation. The warrant request should represent a “critical stage” in a DWI proceeding and should, therefore, mean that the subject is entitled to consult with an attorney prior to testing. Not allowing the person under arrest to consult with attorney before asking them to submit to the warrant is, clearly, unconstitutional.

Facts of the case

In Hunn, police officers arrested the defendant on suspicion of driving under the influence of a controlled substance. The officer failed to read Hunn the implied consent advisory that contains the limited right to counsel and then asked Hunn to take a urine test. Hunn agreed, and his sample showed the presence of methamphetamine.

At trial, Hunn sought to suppress the sample and the district court granted his pretrial motion. The appellate court reversed this decision on the grounds that the district court erroneously relied on

Friedman v. Commissioner of Public Safety Read More...

Of course, a critical component is ensuring that the officer is trustworthy and believable. Even amidst the best evidence, if jurors doubt the credibility and veracity of the officer, then the investigation may well be for naught.

One highly useful task in ensuring an effective DWI investigation and obtaining useful evidence is the art of conversational interrogation. This technique combines the art of conversation with the skill of interrogation to elicit the most information possible. By their very nature, conversations are two-way: one person says something, the other responds, the first person responds back, and so forth. Interrogations, however, are comprised of asking another person specific questions.

Whereas conversations can help individuals connect with each other, interrogations generally do not. Read More...