Burnt Out License Plate Light and DWI

Recently I had a case where the reason the officer stopped my client was a non functioning license plate light. The only problem was that the light in fact was working, and there was a witness to that fact besides my client.

I got excited. I had gotten arrests thrown out for similar reasons in the past. I thought this one would be easy. Naturally, I dug into the case law looking for the case that would say I win. To my surprise, what I found was the opposite. This past January the Minnesota Court of Appeals said, if I was reading it right, that if the officer THOUGHT that the light was out, the stop was valid even if the light was actually working. What kind of deal was that?

It seems the police can stop you for a perceived equipment violation, even if they are mistaken about whatever it is. Once they have you stopped, if they find you have been drinking, you get a DWI ticket; and it makes no difference if you can show later that your equipment was fine. The bottom line is that there is no sure way to not get caught if you are drinking and driving. Being careful isn’t good enough. There’s no way you can possibly control all the factors that might lead to a stop and an arrest. The only answer is to just not do it.

I have suspected for some time that there are officers who stop drivers because they just have a feeling that something is not right. Then later they make up something to legally justify the stop. On one hand I suppose you could say that these are good officers and a value to the community. But I really think that they should be required to stay truthful and not just be making up stories.

Bankruptcy and DWI, Judge Arrested

I have been practicing bankruptcy law and DWI defense for some time now, and it always seems a bit difficult to explain why those two areas of the law seem to mesh for me. So when I saw a story about a bankruptcy judge being arrested for DWI, I woke up and took notice.

Massachusetts bankruptcy judge Robert Somma won’t be returning to his job. Why? He has “agreed” to leave his job to pursue other endeavors. Seems he has been off work since his arrest for DWI in February. When I first read the headline I was surprised, because lots of public officials get DWIs. At least one of the Hennepin County judges currently on the bench has received a DWI while in office. They have to take their punishment, but they are not removed from their jobs.

There were other complications in Judge Somma’s case, however. Seems that when he was arrested, he was wearing a dress. That in itself, while a bit unusual, doesn’t seem to be justification for losing his job either. Apparently he was a good judge and well liked by those who practiced in his courtroom. There’s nothing illegal or unethical about wearing a dress that I know of, although I suppose I have to concede that it could have been inappropriate.

Here’s a link to the Boston Globe story.

"Click It or Ticket" May Mobilization: May 19 to June 1st

This holiday weekend and for the rest of this week, there is once again enhanced law enforcement on our streets and highways in Minnesota. This time the emphasis is “designated nighttime seat belt enforcement periods to prevent unbelted deaths …”

This “Click It or Ticket” mobilization program is one of a series of “Safe and Sober” mobilizations which has been in progress for the last few years. It is specifically aimed at looking for belt non-use and for improper child seat use.

The bottom line, however, is that for the next few days there will be extra law enforcement on the roads. Whenever this happens I know it’s time for me to stay close to my phone. My office phone is forwarded to my cell, and I’ll be answering that all this weekend. I just got back from a nice trip to Hollywood, so I don’t‘ feel bad about staying in town this weekend.

If you hear from someone who has just been stopped or arrested, you might want to do a quick review of the tips I have posted on my First Arrest First Aid page. I wrote up the materials on that page after receiving a call one night from another lawyer who had a client who had just been arrested. This other lawyer did no criminal defense work at all, and wanted to pick my brain about what to tell his client, who he had on the other line. Before that call I had assumed that there was no use writing that topic up on my site, because someone who has just been arrested would not have web access. Since then I have heard from several spouses and parents who have referred to the contents of that page over the phone when they were called by a family member who was in police custody.

With the onset of cell phone web access, I guess a person could access that page directly after being arrested. Nobody has reported to me that they have done that, however, at least not yet.

Out for Blood in Dakota County

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
952-544-6356
http://www.mn-dwi.com

Fraudulent Federal Subpoena Email

This morning I received an email which purported to come from the federal court in San Diego. It appeared to be a subpoena requiring that I appear in federal court May 9th in San Diego before a grand jury.

It also contained a link which I assume would have downloaded a virus onto my computer.

I called the court in San Diego and they confirmed that it’s a hoax. I have also spoken with a lawyer a the law office that is mentioned on the false document. He tells me all they have done there all morning is sit on the phone answering questions about the email. I lost a little time on it, but it’s really messing them up. So in case you get it, now you know.

Lots of court time this week – sorry if I missed your call

I had some unexpected court time this week, especially yesterday. When that happens, my usual discipline of keeping up with returning calls and responding to emails goes to heck. I’ve made an effort to get back to everybody before saying I’m done for the week – which I am – but if I did not get back to you, please call me or email me again.

I usually am pretty good about actually looking at what my spam filter catches before I delete that mailbox, but on a week like this one I may have been more likely to miss a real message that got caught there. If I did not respond to your email, please send me another one.

Happy St. Patrick’s Day

I’ve been asked if my office would be open today. The answer to that is yes. I’ve been invited to a corn beef and cabbage lunch, but I have not been able to make it. My office phone, which I had forwarded to my cell phone, started ringing at about 7 am this morning. One caller after another described various scenarios involving being arrested for DWI over this past weekend. I wrote earlier about how a reporter from New Brighton had tipped me off that the police would be out in force this past weekend and today. I guess she got that right. This morning I had so much trouble getting off the phone that I almost missed my first appointment at the office.

So I’m wearing a bright green tie today, but that might be about as far as I take the St. Patrick’s Day thing; except to warn you all that tonight is not the time to take any chances with drinking and driving. No night is, but lots of extra officers will be on duty this evening. What I believe I have learned over the years about nights like this is that some of those officers would rather be partying themselves, or they may be missing an event that they were invited to. A bit of resentment about that can lead them to want to be harsher than they might ordinarily be on an ordinary night. Definitely think in terms of a cab or designated driver.

Based upon how my own phone calls seem to indicate that the party has already started, and considering the snowy weather forecast for the Twin Cities, I fear that by tomorrow morning I will be looking at a local news report of at least one fatal, alcohol-related accident. Let’s pray that no such event takes place.

The Cost of a DWI

About Thursday of last week I received a call from a reporter for a weekly newspaper out of New Brighton, MN. I didn’t make a note of the name of the newspaper; and now when I run a Google to find it, I find that there seem to be two of them. The reporter said she was working on an article that they were going to publish in their St. Patrick’s Day edition on the subject of the cost of having a DWI. The topic was coming up because the local police in that area were letting it be known that they would be out in full force over St. Patrick’s Day (Monday, March 17th) and the weekend leading up to it.

The reporter wanted me to run through with her a list of the expenses that a drunk driver can expect to pay as a result of being arrested. What that would come to depends on quite a variety of factors. I said the easiest place to start would be with the case of a first time offender who we presume has a relatively low breath test reading. The reporter indicated that she thought she would limit her article to the first offense, and not even get into what might happen on subsequent offenses.

I indicated that the arrested party could expect, among other things, expenses for the following:

  • getting the car out of impound,
  • reinstating the driver’s license,
  • an alcohol assessment interview,
  • a class,
  • a meeting of Mother’s Against Drunk Driving,
  • a fine with surcharge,
  • perhaps a probation fee,
  • and of course an attorney’s fee.

When added up, using about the lowest and most optimistic numbers possible, the total came to about $3,000. That number does not include all sorts of additional items one might run in to, such as increased automobile insurance cost. I told the reporter that in my experience, a surprisingly large number of my first time offender clients report to me that their insurance did not go up. The reason for that is apparently that the insurance company never noticed it; or by the time they noticed it, the DWI was really old news.

I usually recommend that my client try to go at least three years without doing a thing that might attract the attention of his or her automobile insurance company. That can be difficult or impossible for many people. I say don’t sell or buy a car, don’t be late on paying the premiums, don’t have an accident or any claims, and don’t change insurance companies. Besides that, it would be good to not move and not add or subtract any drivers.

The most obvious problem with just putting a number, any number, on the cost of a DWI is that this is an item that will be on the person’s record for the rest of their life. How does one put a value on that? So looking back on that phone conversation I wish I had been more careful and said something like: The benefit of not having this on your record is really priceless, and the exact cost is impossible to calculate.

DWI and Canada Border Update

Since my first entry on this subject, I have noticed that the Star Tribune did an item about this on New Years Eve. Most of the article was not news to me, except for one thing: there was mention of a person who had a DWI reduced to careless who had trouble getting across the border. This surprised me because my earlier research on the subject seemed to indicate that as long as the driving offense was not a DWI, there would be no problem.

So I spent some additional time reading Canadian government web sites about this, but I will confess to still not knowing for sure exactly what they would be up to concerning someone who got the charge reduced to careless. What I saw was a statement indicating that a person who had a conviction of “dangerous driving” would have trouble crossing the border. How that translates into Minnesotan seems to me to be a bit questionable.

For now I would continue to suggest that having a careless would still be much better than having a straight DWI; but I would now caution anyone with either a careless or a DWI to consult with Border Crossing Services, that Winnipeg-based outfit, well in advance of any planned trip to Canada.

In Elk River Most of Today

I have court early this afternoon in Elk River. Given all this snow this morning, I’ll be leaving the office in a few minutes. I may be hard to get a hold of for most of the rest of this day.