I just got off the phone with a gentleman who was arrested for DWI in Hastings, which of course is in Dakota County, Minnesota. The police had asked him to take either a blood test or urine test, but he refused. He asked for a breath test, but the police would not give him that.
I explained that I have heard that the judges in Dakota County for the most part have stopped accepting breath test results, at least when asked to throw out the evidence in a proper motion. So now the police in that county have stopped offering breath testing, at least that is what I am hearing from my contacts.
The Dakota County judges – or many of them at least – have lost faith in the reliability of the breath test, because the manufacturer of the machine has refused to produce the computer programming source code. In my opinion they are right to do this. Without that code, nobody really knows how the machine works. The law seems to be way up in the air over this, which is why there is so much variation from judge to judge and county to county.
Here in Hennepin County, where I do most of my work, however, about 90% of the judges still put their faith in that breath machine. As a result, I find myself very reluctant to jump into the fray – since there is a high probability that after laughing at me, the next emotion the judge will express will be anger. I have been telling my clients that we can try doing that if they want to, but here in this county it is probably not that good of a gamble. My fee would be high, and the odds are better at Mystic Lake.
The gentleman I just spoke with is now charged with refusing the test. This is a gross misdemeanor – more serious than the usual first offense DWI – and with this comes a one year revocation of his driver’s license.
I’m just putting this out here as a warning. If arrested for DWI in Dakota County, and perhaps elsewhere now in Minnesota too, you are more likely than ever to be offered a blood test but not a breath test. My understanding is that refusing the test under those circumstances is the same as refusing a breath test when that is offered. If it happens to you, take the test. You would also be well advised to have an additional test taken at your own expense.
I am watching the development of this issue as closely as I can . Right now the State of Minnesota is suing the manufacturer, and the manufacturer has counter-sued the State. The State in this case is also the customer. My Dad used to say that the customer is always right, but I guess that manufacturer doesn’t fee that way.
David J. Kelly
Kelly Law Office