When Does the Attorney-Client Privilege Apply?

Find out when the information you tell a Minnesota DUI lawyer is protected by this important right.

And find out which situations the Attorney-Client Privilege does not attach.

Did you know that if something you say can be overheard by anyone other than your lawyer, what you are saying can be used against you? Did you know that email is not automatically confidential – even if you’re sending the email to your lawyer?

The attorney-client privilege is a powerful tool that becomes available to you from the moment you first consult with an attorney about your case; the privilege becomes more protective and comprehensive as soon as you hire your attorney.

The attorney-client privilege basically states that anything you tell your lawyer in the course of your lawyer’s representation of you is confidential and cannot be revealed by our lawyer to anyone without your consent. The attorney-client privilege also applies to all information relating to your representation, whether provided to your attorney by you or by any other source – including the prosecutor. This privilege exists because the law recognizes that trust is a hallmark of the attorney-client relationship and that only through communicating fully and frankly with his or her attorney can an attorney represent his or her client effectively.

When you are communicating with an attorney about your case, if your conversation can be overheard, it is not confidential. That is why Walker Law Office, P.A. recommends that you don’t speak to your friends and family about the facts of your case – because you never know who else could hear your conversation, or where that information could end up. This is also why we prefer to speak with you on the phone or in our office: Telephone conversations and in-person office conversations ARE confidential, privileged communications and CANNOT be used against you.

Know Your Miranda Rights

The Science Behind the Intoxilyzer 500EN

What are Miranda Rights, and why are they called “Miranda?”

How & When Can You Use Your Miranda Rights?

What Can’t Your Miranda Rights Protect?

What are Miranda Rights ad why are they called “Miranda?”

“Miranda Rights” refer to some of the rights that are contained in the 5th amendment to the U.S. Constitution. The Constitution consists of the preamble, seven articles, and then a series of amendments. The preamble is familiar to most people: “We, the people, of the United States of America, in order to form a more perfect union…”

The first ten amendments to the U.S. Constitution were adopted at the same time, and these first ten amendments are known as The Bill of Rights, because they involve rights that the authors of the Constitution felt were important enough to spell out individually and specifically. These rights are guaranteed to every U.S. citizen against the U.S. government – which acts through police, or any other government agent or agency.

The 5th Amendment reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor small be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The fifth amendment right against self-incrimination is often referred to as “pleading the fifth.” The right against self-incrimination applies whether the person is in Federal or State court (Malloy v. Hogan, 1964), and whether the proceeding is criminal or civil (McCarthy v. Arndstein, 1924). This means that if you are charged with a crime by a federal prosecutor or a county attorney’s office, or if you are facing an implie4d consent proceeding, or other civil proceeding, these rights are guaranteed to you.

Miranda v. Arizona (1966) was a landmark U.S. Supreme Court case. Ernesto Miranda had signed a statement confessing to a crime, but he did not know he had an absolute right to remain silent and not talk to the police, as guaranteed to him by the Constitution, and the police did not inform him of his constitutional right before asking him questions and then having him sign a written confession. His conviction was based entirely on the confession he signed, and not on any independent evidence in the state’s possession.

The Supreme Court reversed his conviction and said, “The prosecution may not use statements… stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” The Court went on to define in its opinion, for the first time, some critical terms that now are the cornerstone of how Miranda Rights operate in our judicial system.

The procedural safeguards to which Chief Justice Earl Warren referred in his opinion in Miranda v. Arizona are now standardized into the Miranda Warning and it is the speech that is delivered by the police to an individual upon his or her arrest that begins with, “You have the right to remain silent.”

The rest of the Miranda Warning reads, “Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” So, where does the other right – the right to an attorney – in the Miranda Warning come from?

Like the fifth amendment, the sixth amendment to the U.S. Constitution includes important rights. The sixth amendment reads: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for this defense.

The U.S. Supreme Court stated in Brewer v. Williams (1977), that the right to counsel “[means] at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment.” Additionally, the Court said, once judicial, or adversary, proceeding have begun against you, you have a right to legal representation when the government interrogates you.

Adversary proceedings are considered to have begun when you are arrested, arraigned on an arrest warrant before a judge, or committed by the court to confinement. So, how and when can you assert your Miranda Rights?

When and How Can You Use Your Miranda Rights?

In order for your Miranda Rights to “attach” – that is, to be applicable in your situation, three things must have happened: You must be in custody, police must be interrogating you, and you must have asserted your Miranda Rights. The first two conditions are known as custodial interrogation.

The Court in Miranda v. Arizona defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

In essence, police will have made you feel like you were not free to go – either by arresting you, by holding you in custody, or by significantly depriving you of your freedom of action; they will read your Miranda Rights to you; they will ask you if you wish to talk to them and thereby waive your rights; and you can choose to assert your rights at that time, or to waive your rights and talk to them. Remember, the keys are that you do not feel free to leave and the police are doing the questioning. The last element that you have asserted your Miranda Rights, is the element that is up to you: You must assert your rights clearly and verbally.

How do you know if police preserved or violated your Miranda Rights? The Miranda Court defined procedural safeguards as the following measures: “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”

There are two phases during which Miranda issues may arise: Pre-arrest and post-arrest interactions with police.

Pre-arrest Questioning
If you are not under arrest, you will not be red the Miranda Warning, and police can still talk to you!

Until police have begun custodial interrogation, your Miranda Rights have not attached. For example, if the police knock on your door and wish to talk to you about some event or person, you do not have the right to remain silent unless you are in police custody. Or, if you are walking down the street and police stop you to ask you if you know anything about a crime that has just happened, police do not have to read you your Miranda Rights. The test is, if you are free to leave, then you are not in custody and police do not have to read you your Miranda Rights. The exception to this is that if you feel that speaking about a person or event would incriminate YOU, you may politely decline to answer the questions.

Also, if you initiate the conversation with police, they do not have to read you your Miranda Rights – and anything you tell them can still be used against you, because there was no “interrogation,” as the police were not asking you questions, you initiated the contact.

If you have received a request from police to go to the station and answer questions, you have the right to politely decline to go. But, if the police really want to talk to you, they will likely find probable cause to obtain a search warrant, or to arrest you – at which point they will have to read you the Miranda Warning and you may assert your rights. You can request to speak with an attorney before you meet with police, though.

Post-arrest Questioning
In order for your Miranda Rights to attach, there must be an arrest, or other form of police authority exercised over you. Police may arrest a person if they see the person commit a crime, or if they have probable cause to believe the person committed a crime.

The Miranda warning must be read to you once you are in custody and police are talking to you about why you have been arrested if the police intend to use your statement at trial against you. And, as soon as you are in police custody and police wish to speak to you about why they arrested you, you may assert your right to remain silent and consult with an attorney.

The best thing you can do to help your Minnesota DUI lawyer is to assert your right to remain silent as soon as you can – cooperate politely, don’t say anything about what happened, and contact a lawyer as soon as you are allowed to do so.

Many people find that even though they initially thought they could handle talking to police and waiving their rights, part way through interrogation, they feel that they are getting in deeper than they wanted to and they wish they hadn’t waived their rights. YOU CAN ASSERT YOUR RIGHTS AT ANY TIME – even if you have already waived them and started talking, you can clearly assert your right to remain silent and talk to a lawyer, and police MUST stop questioning you IMMEDIATELY, and allow you to contact a lawyer and remain silent.

You should also know that you do not have to wait to be offered your right to consult with a lawyer before you can assert that right. You can ask to be represented by a lawyer before police read you your Miranda Rights! Don’t be shy about asking to consult with a lawyer, just be polite when you ask.

What Can’t Your Miranda Rights Protect?

Miranda Rights are intended to protect you from police questioning against your will, not to prevent police from gathering evidence against you. Therefore, although you have the right to remain silent and the right to an attorney, they are not absolute rights.

For example, there is certain information you MUST give to police, even if you assert your right to remain silent. In 2004, the U.S. Supreme Court ruled that the Fourth, Fifth and Fourteenth Amendments do not give people the right to refuse to give their name when questioned by police (Hilbel v. Sixth Judicial District Court of Nevada.)

Another example is that if you say anything about what happened, or confess to any crime, if you haven’t been read the Miranda Warning and subsequently waived your Miranda Rights, then anything you’ve said cannot usually be used as evidence against you in court, because it was obtained in violation of your Miranda Rights. However, if there is other evidence against you that is sufficient to convict you, even if you give a statement that violated your Miranda Rights, you can still be convicted. That is why it is important to consult with a Minnesota DUI lawyer who will fight vigorously to ensure that if your rights were compromised, you are still protected.

Also, if you confess to a crime without being read your Miranda Rights, thinking that your confession cannot be used against you; think again. Police only need to be able to show that they could have obtained the evidence another way, for example through investigation, and they can use your statement – even though it was taken in violation of your Miranda Rights.

Additionally, an officer may stop you and ask you questions, and the officer only must read you your Miranda Warning if the officer plans to use your statement as evidence at trial. Therefore, an officer may stop you and ask you questions and not read you your Miranda Rights. You may politely refuse to answer, but if you do, the officer has the option of deciding to arrest you for breaking the law in some other way. For example, officers may arrest individuals for “loitering,” which is a vague law that can be broadly interpreted. Police can use loitering as a way to arrest someone they suspect is involved in a criminal activity the police don’t have enough evidence to charge yet. And, again, once you are in policy custody and police begin to ask you questions, you don’t have to wait to be read your Miranda Rights – you may assert your Miranda Rights immediately.

In addition to not being absolute, your Miranda Rights don’t apply in every situation, either. There are situations in which your Miranda Rights can’t protect your interests.

For example, if you have been arrested for DUI, you will be asked if you wish to contact an attorney before deciding whether to take a chemical test. However, you will be given a limited opportunity to use a telephone to contact an attorney, and whether or not you manage to contact an attorney at that time, you will have to decide whether to submit to or refuse a chemical test. That is why it’s important to contact a Minnesota DUI lawyer as quickly as possible, as soon as you have the chance.

Another example is that you cannot “plead the fifth” when asked by an officer to see your driver’s license and proof of insurance. That is because when you signed to receive your driver’s license, you signed a document stating that you gave police permission to ask you for these documents and that you would cooperate when asked.

Furthermore, although you can assert your right to remain silent or your right to contact a lawyer at any time before, during or after questioning, you must clearly verbally state that you want to stop talking to police and talk to a lawyer, or the police can continue to question you. Also, if you have asserted your right either to remain silent or to wait to answer any questions until a lawyer is present, and you initiate conversation with police, anything you say to them – even though you have asserted your rights – can still be used against you because what you say will be considered extemporaneously made statements and not statements made in response to police questioning (interrogation). So once you’ve asserted your rights, STOP TALKING.

A good way to make sure you exercise your Miranda Rights appropriately and that they are honored by police is to go through this list:

  • Is there police custody (am I not free to leave)?
  • Is there interrogation (am I being asked questions, instead of initiating)?
  • Was a Miranda Warning read before questioning began and after custody was established?
  • Was there a waiver of Miranda Rights?
  • Was there an explicit assertion of Miranda Rights – either to remain silent, consult with a Minnesota DUI lawyer or both?
  • If there was a waiver and then an assertion later on, did questioning stop immediately?
  • Were any statements made after Miranda Rights were asserted and police stopped questioning?
  • Did any questioning happen after a lawyer was requested that was outside the presence of the lawyer?

The most important things you can do to protect your rights are:

  • Assert your right to remain silent IMMEDIATELY.
  • Contact a Minnesota DUI lawyer as soon as you can.
  • Do not say anything more once you have asserted your rights.
  • And, be cooperative and polite throughout your encounters with police.

For more information on the Miranda Warning, visit www.mirandawarning.org, or www.usconstitution.net.

DUI Terminology

  • What is a DUI or DWI?
  • What are the different degrees of DUI/DWI?
  • What are the elements of a DUI?
  • What are mitigating and aggravating factors and how can these affect your case?

What is Driving While Impaired, or Driving Under the Influence?
The offense of “DWI” consists of driving, operating or being in physical control of a motor vehicle while you are 1) “under the influence of” alcohol, a controlled substance or a hazardous substance, OR 2) you have an alcohol concentration of over the legal limit, as measured by a breath, urine or blood test within two hours of being stopped by an officer, OR 3) you have any amount of a Schedule I or II controlled substance in your system.

Driving, operating or being in physical control of a motor vehicle means you were not simply a passenger in the vehicle, and/or you had access to the ignition key, EVEN IF THE CAR IS NOT RUNNING! If the vehicle’s keys are near you, and you can reach them and turn the vehicle on, you could still be determined to be in physical control of the vehicle.

What counts as a motor vehicle?
Cars, trucks, a commercial vehicle that you drive for work, motorboats – including any watercraft propelled in any manner by machinery (for example, a canoe is not a motor vehicle, but a fishing boat with a detachable motor is). Off-road recreational vehicles are also considered motor vehicles – such as snowmobiles, ATVs, and off-highway motorcycles.

Alcohol concentration means the number of grams of alcohol in 100 milliliters of blood, 210 milliliters of breath or 67 milliliters of urine. In Minnesota, the legal limit – or, the alcohol concentration over which it is illegal to operate a motor vehicle, is 0.08 grams of alcohol per 100 milliliters of blood. (Prior to the year 2005, the legal limit in Minnesota was 0l.1.) If you’re driving a commercial vehicle, the legal limit is much lower: 0.04; and drivers of school and Head Start buses cannot have ANY alcohol in their system while operating their buses.

The impaired driving law applies everywhere “within this state” – which means it applies even when you’re on a friend’s property or on your own property.

So, what does the phrase “Under the Influence” mean?
Unfortunately there is no “fixed” definition of under the influence. Judges have broad discretion in deciding whether there is an adequate foundation for a finding of intoxication in any given case. For example, if a driver’s alcohol concentration is below the legal limit, a judge may still find that a conviction of DUI is valid, as long as the State can show that the driver’s ability or capacity to drive was impaired to some degree. This applies in cases involving controlled substances, too, because there is no “legal limit” under which driving while under the influence of a controlled substance is lawful.

There are four degrees of DUI/DWI offenses. First Degree DUI is a felony level charge and the most serious degree; Fourth Degree (which used to be called Misdemeanor Driving While Impaired) is the lowest degree of DUI charge. First Degree DUI is what an individual is charged with when the individual drove while impaired AND the individual has EITHER three or more “qualified prior driving incidents” in the last ten years, OR the individual has a prior conviction of felony DUI.

Second Degree DUI is a Gross Misdemeanor offense, and is defined as driving while impaired when two or more aggravating factors are present. If the offense is a refusal to take a chemical test (refusing the Implied Consent), then only one aggravating factor is required to charge a Second Degree DUI. Third Degree DUI is also a Gross Misdemeanor but requires only one aggravating factor (or no additional aggravating factor if the offense is a refusal to test).

Fourth Degree DI refers to the basic offense, driving while impaired, with no aggravating factors or qualified prior driving incidents.

What is an aggravating or mitigating factor?
An aggravating factor is a circumstance that makes a charged offense more serious for the individual charged. A mitigating factor is a circumstance that makes a charged offense less serious for the individual. For example, if you are charged with a DUI for the first time, the fact that you do not have any prior DUIs is a mitigating factor for you in your first DUI offense.

The most common aggravating factor is a “qualified prior driving offense,” ten years or less before the current incident. There are two events which count as “qualified prior driving offenses:” Having an impaired driving conviction already on your driving record, or having impaired driving-related loss of your driver’s license on your record. In order to be used in the current charge, the qualified prior driving offense must have occurred in the last ten years. Two other common aggravating factors are having a blood alcohol concentration of over 0.20, or having a child under the age of 16 and at least three years younger than the driver in the vehicle.

How do I know if I need a Minnesota DUI Lawyer, and How do I know which Lawyer to Choose?

How do I figure out if I should hire a lawyer?

When should I contact a lawyer?

What difference does it make to have an attorney who knows the specific issues in my type of case?

How do I find a lawyer who concentrates in my type of case?

Deciding whether to hire an attorney is an important decision – and a decision that only you can make for yourself. Here are some important facts that can help you make your decision.

  • Pleading guilty can cost a lot more than hiring a Minnesota DUI lawyer. There are many long term consequences to pleading guilty to a DUI, or any serious crime, including potentially having to divulge to every potential employer for the rest of your life that you were convicted of a serious crime and having to pay increased insurance premiums. Do you know what all the consequences are that may face you in your future? If you don’t, you should consult with a Minnesota DUI lawyer so you can make an informed decision regarding your case.
  • The sooner you consult with a Minnesota DUI lawyer, the better. The sooner you bring a Minnesota DUI lawyer on board, the sooner he or she can begin to gather the evidence and weigh the facts that are in your favor against the State’s case and prepare your defense.
  • Hiring an experienced Minnesota DUI lawyer is an investment in your future. The prosecutor does this for a living – prosecuting criminal cases. You can rest assured they know the issues in DUI cases, have red the case against you, and are prepared to argue aggressively for a conviction. That’s their job. Shouldn’t you have someone just as prepared – if not more so – ready to argue aggressively on your behalf, too? When you weigh the cost of pleading guilty and all the future costs that come with it, against the cost of hiring a Minnesota DUI lawyer, you will find that hiring an experienced Minnesota DUI attorney is an investment in your future.
  • Not all Minnesota DUI lawyers cost the same. Each attorney charges what he or she has determined is an appropriate fee for the level of his or her services. Don’t hesitate to ask a lawyer what it will cost to represent you. Attorney Walker has over _____ years of experience in DUI defense; he has knowledge and experience to handle all the issues in your case – both complex and standard issues – to ensure that you receive excellent representation.
  • Not all Minnesota DUI lawyers are the same. Your lawyer is the one person in the court room who is on your side, unconditionally. You need to feel comfortable with your lawyer – your relationship with your lawyer can make or break your case. Your lawyer will rely on the information you share with him or her in defending you. If you and your lawyer don’t have a good working relationship, you won’t trust your lawyer with this critical information. The key to a successful attorney-client relationship is the same thing that makes all relationships succeed or fail: Communication. You have to feel like your lawyer listens to you and understands your concerns and goals. And, you have to feel like you can trust the advice and counsel your lawyer provides to you.

Attorney Walker takes the time to develop a good working relationship with each of his clients. But don’t take our word alone for it! Prior clients of Walker Law Office, P.A. have written testimonials that you can read on the main website, ____________, detailing their experiences of being represented by Attorney Walker.

This is one of the reasons Walker Law Office, P.A. encourages you to call us, or schedule an office visit and come in and see us in person, instead of communicating through email. We want you to choose Walker Law Office, P.A. because you feel that we are a good fit with you – from our incredible level of experience and in-depth knowledge of DUI law, to our commitment to always keep you in the loop regarding your case.

Differences Between the Criminal DUI and Civil Implied Consent Cases

Every DUI/DWI event has a potential of two cases stemming from the incident – the criminal case and a civil case arising out of the Implied Consent process.

Read about the important differences in the burden of proof the State has in each case and what the different timelines are for the criminal and civil processes.

The criminal case, the DUI, arises out of a stop, an arrest, and evidence being gathered, and whether your rights were presented at all stages in the process. The civil case, the Implied consent Proceeding, arises out of the Minnesota Implied Consent Law, and whether your rights were preserved at all stages of the Implied Consent portion of the DUI event.

The State has the burden of proof in both criminal and civil cases, but that burden is different in the criminal and civil cases; and you have rights in both the criminal and civil procedures, but those rights are a little different in the criminal and civil proceedings.

In the criminal case, an officer has to have a reasonably articulate suspicion that a driver is doing something unlawful in order to stop the driver. Next, an officer has to have probable cause to believe that the driver is in control of the motor vehicle and is under the influence in order to arrest the driver for DUI. Finally, an officer has to collect evidence that proves beyond a reasonable doubt that the driver was driving under the influence in order for a driver to be later convicted of DUI. Reasonably articulable suspicion is a lower burden to meet – simply weaving or crossing the traffic lines on the roadway could be sufficient. Probably cause requires a little more to meet: An officer will usually ask drivers to step out of their cars and walk a straight line, or touch their noses – these field sobriety tests are a means for an officer to determine whether there is a probably cause to believe a driver is driving while impaired and, therefore, whether the officer can arrest the driver.

Although the standard of “probable cause” for the actual arrest and detention is a lower burden for the officer to meet, when it comes to actually being convicted of the crime of DUI/DWI, the State must prove beyond a reasonable doubt – the highest standard in the criminal justice system – that a driver is either under the influence of alcohol while driving or had a blood alcohol concentration of 0.08 or more while driving or as measured within two hours of driving.

Last, an officer will ask a driver – usually at the police station – to take a chemical test. This is the implied consent portion of the process, and the moment when the civil proceeding begins. The criminal procedure is still occurring while the civil procedure occurs.

Why do drivers have to take a chemical test? Isn’t taking a chemical test forcing drivers to give up their right against self-incrimination? This is perhaps the most confusing part of DUI. It’s important to know that there is no absolute civil right to operate a motor vehicle, and that the State of Minnesota can use its police powers to regulate, limit and control the use of Minnesota’s highways and streets. Because courts recognize how important driving is to most people – to get to work, to get to school, to visit family and friends. Because courts recognize how important driving is to most people, the privilege of driving cannot be capriciously or discriminately denied or withdrawn. However, it is also in everyone’s best interest to keep our roads safe for everyone to use, too. So, in 1961, the Legislature enacted the Minnesota Implied Consent Statute, which everyone signs when he or she receives their driver’s license, and which basically says that you agree that in exchange for the privilege of driving, you will consent to give evidence against yourself (in the form of a chemical test) if you are arrested for driving under the influence.

The burden of proof the State has in the Implied Consent proceeding is much lower than in the criminal case. The State must only prove by a preponderance of the evidence – which means simply that “it’s more likely true than not true” – that the driver violated the Implied Consent Law by not taking a chemical test.

What are your rights in the criminal and the civil cases? Only a lawyer can explain to you, after analyzing your case, whether your rights were preserved or not in all stages of the criminal and civil proceedings.

You have a number of very important rights in the criminal proceeding. If you’ve ever watched an episode of Law & Order, you’ve heard the speech that begins with, “You have the right to remain silent; anything you say can and will be used against you in a court of law. You have the right to an attorney; if you cannot afford one, one will be appointed to you…” This is known as the Miranda Warning, and it comes from a case, entitled Arizona v. Miranda, and from the 4th, 5th and 6th Amendments to the United States Constitution. You have a right to not talk to police officers, investigators, insurance agents and other individuals about your case. You have a right to have a lawyer with you every time one of these individuals does talk to you, and you have a right to know the charges against you and to challenge the State’s case against you. Again, only a lawyer can protect your rights throughout your case. The sooner you contact an attorney, the better your attorney will be able to protect your rights and ensure you get the best result possible in your case.

In the civil case, your rights are more limited. You still have a constitutional right to talk to a lawyer during the implied consent encounter; however, because the implied consent portion of the proceedings is considered an evidence-gathering process. Again, only an attorney can tell you if your rights were preserved and only an attorney can ensure that your rights are protected during the implied consent proceeding by filling an implied consent petition on your behalf.

Mandatory Penalties and Sentences

Some offenses have mandatory minimum sentences – find out which do and what they are.

A first time (or fourth degree) DUI carries the same statutory potential penalty as any other misdemeanor: a maximum $1,000 fine and/or 90 days in jail. This is the maximum – this does not mean that if you are charged with a fourth degree DUI, you will have to spend three months in jail! For a fourth degree DUI, one certain mandatory penalty is usually successfully completing a chemical assessment, however.

Second and third degree DUIs are gross misdemeanors, and carry maximum sentences of a $3,000 fine and/or one year in jail. A first degree, or felony, DUI carries a maximum sentence of a $14,000 fine and/or up to 7 years in prison. Again, a Minnesota DUI lawyer can argue on your behalf for options to jail such as staggered sentencing, sentence-to-service work/community service work, and electronic home monitoring.

The actual sentence an individual charged with a DUI will face depends on the number of aggravating factors, the level of DUI charged and how well the individual’s attorney knew the issues in the case and was able to negotiate on the individual’s behalf.

There are mandatory minimum sentences that apply to individuals who have been convicted of a DUI at least once before. If an individual is charged with a second DUI within 10 years of the first, a 30 day jail sentence is mandatory. For a third DUI within 10 years of the first, the mandatory minimum is 90 days of incarceration. Finally, fir a fifth DUI within 10 years of the first, one year of incarceration is the mandatory minimum. Once more, a Minnesota DUI lawyer can argue on your behalf for available options, though.

Long term monitoring is also part of the mandatory sentence for third time DUI offenses and for individuals charged with a DUI who are under the age of 19.

All penalties as well as sentencing guidelines are found in Minnesota statutes. A good resource for more information is the Minnesota statutes website: https://www.revisor.leg.state.mn.us/pubs/

The Intoxilyzer 5000EN and You

The Science Behind the Intoxilyzer 5000EN

In order to understand the science that enables a machine that collects breath to measure the alcohol concentration in a person’s body, it’s necessary to first understand some scientific terminology.

Spectroscopy is a science – like biology, which is the science of living organisms, or chemistry, which is the science of chemical compounds and reactions – that covers a very specific topic, namely the infrared region of the electromagnetic spectrum of light. Spectroscopy is the study of the spectra, which is the visible range of light waves – from violet colored waves with the shortest wave length, to red waves with the longest wave length.

Infrared refers to the invisible rays that are just beyond the red end of the visible spectrum of light. Infrared waves are longer than red light waves, but shorter than radio waves; so, they’re invisible to the eye, even though they’re still light waves. A unique property of infrared waves is that they have a heating effect – they’re even used in some cooking appliances.

By passing a beam of infrared light over a sample of matter – in the case of the Intoxilyzer, the matter is a breath of air from your lungs – and then measuring how much light comes back compared to how much was sent out, the Intoxilyzer analyzes how much energy was absorbed at each wavelength, and thus what the concentration of alcohol in your body was.

This is because alcohol’s molecules absorb light consistently at the same certain rate. The other molecules found in the breath we exhale, like water and carbon dioxide, don’t do this.

How does the Intoxilyzer know how much light is coming back and how much was absorbed? When the Intoxilyzer produces a beam of infrared light, it splits that beam into two beams and passes one through the sample containing your breath, and the other through a “control” – usually a pure form of solution containing no alcohol. The difference between the reports sent back to the detector from the two beams is how the machine calculates your alcohol concentration.

But how can differences between the amounts of light coming back to the detector be translated into a body’s alcohol concentration? This is where source code comes in. You may have read about the litigation going on in different state courts regarding the source codes of models of the Intoxilyzer machine like the model 5000EN used in Minnesota. A Minnesota DUI lawyer can explain to you if any of the current source code litigation may apply in your case; and you can read more about the main cases in Minnesota challenging Intoxilyzer results and source code disclosures on the Walker Law Offices, P.A. website, by clicking on the Netland, Shringer and Underdahl article.

Briefly, source code is computer programming language, written by software engineers. It’s a series of commands – millions of combinations of commands, which are very rigid, and which tell the machine how to interpret the physical data the machine registers when you blow into it. It seems like a great way to match science with functionality: Infrared spectroscopy measures physical data and a machine then translates that into an alcohol concentration that can be printed out on a piece of paper. There is one big problem, though: the Intoxilyzer, unlike a scientist sitting at a table and looking into a spectroscope to measure the infrared results, doesn’t know what it’s doing – it just follows computer orders! So, if there is a flaw in the commands somewhere, and that flaw affected your Intoxilyzer results, we have no way of checking the “scientist’s” work. Because we can’t check the Intoxilyzer’s work, it’s important to have a Minnesota DUI lawyer evaluate your case to see if your Intoxilyzer results were affected by a potential flaw in the machine and should be challenged.

Intoxilyzer Science And You

Even in the Intoxilyzer machine is working perfectly when you blow into it, your Intoxilyzer test results STILL might not be accurate! Characteristics like being female or diabetic can artificially raise Intoxilyzer results.

Lung capacity has a lot to do with the “result” reported by the Intoxilyzer – because remember, it’s measuring how much light comes back through a sample of air from your lungs. But alcohol enters the lungs through tiny sacs, which are located in the lower end of the lungs. So, the air that comes from the top of your lungs has a lower alcohol concentration than the air at the bottom of your lungs. The bigger your lungs are, the bigger portion of the 1.1 liters of air required to fill the Intoxilyzer is coming from the “top” of your lungs. The smaller your lungs are, the more you have to dip into the bottom of your lungs to give a breath sample of 1.1 liters.

This means that women, whose lungs are typically smaller than men’s lungs, can end up with higher Intoxilyzer test results.

Also, body temperature can affect Intoxilyzer results. This means that women, whose body temperature can fluctuate during menstruation as much as 7.2 degrees Fahrenheit, can raise their breath test results by up to 25%! This is the difference between blowing 0.07 – below the legal limit – and blowing a 0.087!

Diabetics can have in their breath a substance known as ketone bodies, which is known as the condition ketosis. Ketone bodies are naturally occurring molecules in all human bodies, but sometimes diabetics have excess quantities of these molecules in their bodies, as do individuals with eating disorders or high fat diets. Ketone bodies absorb light the same way alcohol molecules do. This makes sense because one common ketone is acetone – like the ingredient in nail polish. It is flammable, colorless liquid solvent and acts chemically like beverage alcohol. Therefore, diabetics can have Intoxilyzer test results that red higher than their breath alcohol concentration.

A Minnesota DUI lawyer can tell you if your Intoxilyzer test results were affected by any of these characteristics.

Why the State of Minnesota Uses the Intoxilyzer in DUI Cases

According to the Bureau of Criminal Apprehension (BCA), there were 35,000 breath tests done in the year 2006. There were only 5,000 blood and urine tests done to determine alcohol concentration in the same year. The turn-around time to get results from blood and urine tests back from the BCA would increase dramatically – to over one month – if suddenly the BCA were faced with 40,000 blood and urine alcohol tests. The time, energy and money involved in a change like that would radically change how DUI cases are managed in Minnesota, which could mean longer wait times and higher fines for you.

The science behind the Intoxilyzer is sound – infrared spectroscopy is a very accurate way to measure the absorption of light of molecules in a sample. It’s the application of this science by computer code inside a machine that creates some discrepancies.

Although the computer code may work against you, the state enacted a couple of statutes that work in your favor when you’re submitting to a breath test.

For example, did you know that statute requires that your Intoxilyzer results be rounded off – not rounded up or down, but off? This means that if you blow a 0.089, your result is a 0.08, not a 0.09.

Furthermore, did you notice that when you were giving a breath sample, you were asked to do it twice? The state is required by statute to acquire two samples from you, and this is to your benefit because the state is also required by statute to report as your Intoxilyzer test result the LOWER of the two results. So, although it can feel like adding insult to injury to be asked to blow again, remember: the state must report the lower result and this is to protect you.

Protecting Your Rights When Faced with the Decision to Take the Test

Although in Minnesota it is a crime to refuse to take a chemical test if you are under arrest for DUI, you have the right to speak to a Minnesota DUI lawyer BEFORE you are required to take a chemical test.

You also have a constitutional right to have your test results – breath, blood or urine – verified by an independent testing agency. This doesn’t mean you have the right to a second type of test at the time of your arrest, but it does mean that you can have the sample you gave during your test tested again! In some situations, this is an important protection of your constitutional rights. A Minnesota DUI lawyer can tell you if your case would benefit from independent testing.

The Intoxilyzer Source Code: Why is it a Big Deal?

The source code is the magic link between your breath, the science used by the Intoxilyzer and the State’s evidence against you. Remember, source code is how the Intoxilyzer turns infrared light particles into a number that the prosecution uses as evidence. If there is an inherent flaw in the machine’s computer program, then the way the machine applies the science to your breath to generate that number may not be reliable evidence and the state is still using it against you! But, without having a copy of the source code for computer scientists to look at and analyze, there’s no real way to know if the code is unflawed, and the results reliable.

That’s why source code is a big deal to Minnesota DUI lawyers, and to you. Why does CMI, the company that wrote the source code for the Intoxilyzer 5000EN, not want anyone to see it? They claim their competitors would be able to copy it and that would violate their intellectual property rights. Criminal defense attorneys in Washington, Arizona, Florida, Texas, Kentucky, Georgia, Louisiana, Massachusetts and Minnesota have argued that not disclosing the source code violates a defendant’s rights.

DUI law is one of the most complex and quickly changing areas of criminal law. The prosecution relies heavily on the results of the Intoxilyzer tests for evidence against individuals charged with DUI. Being able to challenge your Intoxilyzer results can take the wind out of the sails of the State’s case against you. In order to challenge your Intoxilyzer results, you need a Minnesota DUI lawyer who is smarter than the machine. You need an attorney who will tirelessly search Minnesota and other states for new and emerging case law and court rulings, scientific discoveries, government publications, police training techniques, medical studies and changes in equipment that reveal the unreliability of Intoxilyzer results like yours.

Only a Minnesota DUI lawyer can tell you if your Intoxilyzer results should be challenged. Walker Law Offices, P.A. have successfully challenged Intoxilyzer results for many of their clients. Call today and find out of they can do the same for you.

The Hidden Cost of a DUI in Minnesota

We all know that consuming alcohol can impair your ability to safely operate your motor vehicle. Beyond the dangers of operating your vehicle under the influence and the fact that you can go to jail, there are other hidden costs of a DUI conviction in Minnesota that you may have never thought of.

Of course, being charge with a DUI offense will be extremely upsetting to your family and loved ones. Putting then through the fear and anguish of your DUI trial can cause irreparable rifts in any family, no matter how strong.

In addition to hurting loved ones, you could put your employment in jeopardy if you are charged or convicted of a DUI offense. As your Minnesota DUI lawyer may advise you, some employers do have clauses in their condition of employment that state that you must not be convicted of a DUI offense. This is particularly true if driving a vehicle is one factor of your ongoing employment.

It isn’t just your current employment that is in jeopardy. Any potential employer can obtain your DUI record and many will seriously consider this report when deciding whether to hire you. Your DUI conviction can haunt your employment efforts for years to come.

Another concern is your ability to obtain auto insurance after a conviction. It is a common complaint that after a DUI offense, the rates insurance companies charge skyrocket. In fact, these insurance rates can stay high for many years after your conviction, even if it was your first offense.

Your Minneapolis DUI lawyer may advise you that yet another hidden cost of a DUI conviction can be the difficulty in getting your license reinstated. Oftentimes after a lengthy suspension period (sometimes up to three years), you can have your license reinstated, but the fees are often cost prohibitive for some individuals.

There are even more potential hidden costs to a DUI conviction such as:

  • The cost of jail/work release/electronic home monitoring.
  • Impatient and outpatient treatment (at your cost).
  • Increased cost of health insurance.
  • Being prevented from entering foreign countries.
  • Difficulties changing or obtaining life/disability insurance.

The severity of these hidden costs highlights how important it is to find a DUI lawyer in Minneapolis with the experience, knowledge and dedication to help you with your DUI charge. William L. Walker, from Walker Law Office, has many years of experience that he will put to work for you. As your Minneapolis DUI lawyer, he will bring his education, experience and compassion to your case working to obtain the best possible outcome. Call his office today and book your appointment.

Brain Injury Symptoms

Brain injuries are extremely dangerous and even have the potential to claim lives if they are not treated right away. They can be sustained through a number of everyday activities gone awry, such as driving a car or riding a bicycle and crashing or even slipping and falling. It is important that you make yourself aware of the symptoms of serious brain injuries so you will be able to properly recognize then a blow to the head poses a serious threat.

If you or someone close to you has sustained a brain injury, you may have the right to claim damages from the responsible party. Contact the Minneapolis personal injury attorneys of Walker Law Office, P.A. today at _______________ to begin the process of seeking justice.

Familiarize Yourself with the Symptoms
Depending on the extent of the damage, the symptoms of brain injuries can vary. These signs to not necessarily involve acute pain in the injury region; they typically include symptoms involving behavior changes or other effects on areas of the body. If the injured person experiences symptoms such as the following, then he or she most likely has suffered some sort of brain injury:

Possible Physical Symptoms

  • Headache
  • Dizziness
  • Balance problems
  • Tinnitus (ringing or other sounds in ears)
  • Hearing loss
  • Vision changes
  • Decreased smell or taste
  • Photophobia (light sensitivity)
  • Hyperacusis (noise sensitivity)
  • Insomnia
  • Problems remaining asleep
  • Problems waking up
  • Fatigue
  • Seizures

Possible Cognitive Impairments

  • Attention and concentration
  • Divided attention (paying attention to more than one thing at a time)
  • Mental speed or rate of information processing
  • Mental fatigue
  • Short-term memory problems
  • Reasoning and problem solving
  • Difficulty with organizational tasks
  • Difficulty with word finding or expressing thoughts verbally
  • No “get up and go;” the failure to begin a task

Possible Emotional Impairments

  • Personality changes
  • Irritability, anger and/or frustration
  • Self-centered behavior
  • Mood swings
  • Anxiety
  • Depression
  • Inflexibility
  • Impatience

Social Impairment

  • Impulsiveness or inappropriate behavior (inhibition)
  • Decreased self control
  • Reduced judgment
  • Daydreaming and blank stares
  • Drug or alcohol abuse
  • Difficulty establishing or maintaining relationships
  • Difficulty following through with responsibilities at work or home
  • Sexual dysfunction

Contact Us
If you, or someone you love, have suffered from a traumatic brain injury, the Minneapolis brain injury attorneys of Walker Law Office, P.A. can help you fight for your right to claim compensation. Please contact our law offices today at _________________ to schedule an appointment or discuss brain injury symptoms.