Criminal Law FAQ's

What should I say if I'm stopped by a police officer and he asks me if I've been drinking?

You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply.

Do I have to take field sobriety tests?

A person who is stopped by police and is being investigated as a possible drunk driver does not have to submit to field sobriety tests. However, the officer will normally arrest someone who refuses to take field sobriety tests.

Do I have a right to an attorney before deciding whether to take a breath test?

In Minnesota, there is an absolute right, if the person requests it, to consult with an attorney to decide whether to take or refuse the breath test for alcohol, so long as it does not interfere with or unreasonably delay the testing process. The test must be taken within two hours of apprehension.

Can I elect a blood test instead of a breath test?

In Minnesota, the driver must take the breath test if it is the test offered. However, if blood or urine tests are offered then a choice of tests must be made available. If the driver or other people are injured and taken to a hospital, and is unconscious or incapable of refusing the test, the officer may direct medical personnel to draw a blood sample.

Should I agree to take a test? What happens if I don't?

In Minnesota, there are two possible results:

1. Your driver's license will be revoked for 30 days for a first offense, provided you plead guilty to DUI, and one year for a subsequent offense.
2. If you have a legal defense the result can in some cases be "revocation rescinded."

The penalty for submitting to the test in Minnesota and recording a test result of .08 and less than .20 is 90 days for a first offense and 180 days for a subsequent offense.
On a first offense of .08 or more but less than .20, typically the person gets a work restricted license for 15 days.

The penalty for a test result of .20 or more is 180 days for a first offense and 1 year for a subsequent offense, but the person is eligible for a work permit after 30 days and 90 days, respectively.

Additionally, the test result may constitute persuasive evidence of guilt at the court proceeding.

The officer never read me my rights, what can we do about it?

You probably were advised of your right to take or refuse a test for alcohol and the penalties for failing or refusing the test. You are probably asking about a 5th Amendment "Miranda" warning about the right to remain silent and to have the assistance of a lawyer. Often, in drunk driving cases, they do not give that advice. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Why did I receive more than one ticket charging me with drunk driving?

Minnesota has five different offenses that fall within the generic term drunk driving:

• Driving while under the influence of alcohol
• Driving under the influence of alcohol with a test result of .08 or more
• Driving under the influence of alcohol with a test result of .20 or more
• Driving while under the influence of controlled dangerous substances
• Test refusal

Why is the officer allowed to take my license if I'm presumed innocent?

The law is designed to get your attention by immediately confiscating licenses of alleged drunk drivers. This is not fair, but courts justify this by saying it is not punishment but is for the protection of the public. Unless your license or privilege to drive is already suspended, the officer will usually issue you a 7 day temporary license that allows you to drive prior to a hearing. The administrative license suspension proceeding or implied consent hearing may have some bearing on the disposition of charges in court.

What is the punishment for drunk driving?

Generally speaking, a conviction for a first offense may involve a fine, a license suspension or restriction, attendance at a DUI education course for a period of time, and supervised probation for one to four years. A short jail sentence may or may not be required; for a second or third offense, it often will. Additional punishment may involve community service, chemical dependency treatment, AA meetings, and MADD victim impact meetings.

On a second or subsequent offense, the Department of Public Safety may seek to take the driver's license a second time, after the court proceeding is over, although the courts do not call this punishment. Jail time is imposed generally on a second offense. The range can be from one weekend to 30 days in jail with the possibility of electronic home monitoring.

A third conviction usually carries a 90 day jail sentence, with work release and possibly some electronic home monitoring and with supervised probation upon release.

Why should I take classes before I go to court if I am presumed innocent?

Yes, you are presumed innocent. But if after trial, the judge or jury finds you guilty, the sentencing proceeding follows, usually immediately. If you want the judge to give you a break or not impose a jail sentence if you are a subsequent offender, it is wise to do something before you get to court to convince the judge to impose the sentence you want.

What is a Miranda warning?

A Miranda warning advises people of their constitutional right not to answer questions or to have an attorney present before answering any questions.

If I am not under arrest, do I have to answer a police officer's questions?

No. Unless you are placed under arrest you are free to leave at any time. However, if a police officer stops you while you are walking, and asks you for identification, it is probably in your best interest to provide such information. The courts have allowed police officers to detain people for brief periods of time in an effort to determine the identity of the individual.

Must a police officer always advise a person of their Miranda rights before asking a question?

No. The Miranda warning is only in effect during a custodial interrogation. This means that the person being questioned is in custody or in an environment in which the person does not believe that he is free to leave.

If I am in custody, how do I assert my right to remain silent?

A suspect who has been arrested need only say I want to speak with an attorney or I have nothing to say now. If the police continue to question the suspect, the police have violated the suspect's 5th Amendment rights. Anything that the suspect says after the violation is inadmissible as evidence in court.

Can I waive my Miranda rights?

Yes. If you have been arrested, and you have been given your Miranda warning, then anything that you say can and will be used against you in court. Police officers always say that if you talk they'll help you out, but they have no control over what happens to you after you have been arrested. The determination of what you will be charged with, and how you will be sentenced, is up to the prosecutor and the presiding judge.

Can police officers use force to arrest me?

A police officer may use as much force as necessary for a criminal arrest, as long as it is law abiding. After an arrest is made, a police officer may apply handcuffs to the defendant if the officer deems it necessary to prevent injury or escape. If the defendant claims an unlawful application of force was used by the arresting officer, a judge will hear the defendant's argument, and decide whether or not the force used was reasonable for the circumstances.

What happens if I am arrested for breaking a criminal law?

If you are arrested for breaking the law, the case is taken before a judge who will set bond for appearance in court. If the defendant cannot post bond, he or she may be incarcerated pending appearance in court. If bond is posted, he or she will remain free pending appearance at an arraignment. An arraignment usually occurs within 36 hours of the arrest, or the first date available if on a weekend or holiday. The arraignment is held before a judge who formally tells the defendant the offense in which he or she is being charged, informs the defendant of their constitutional rights, and of the possible penalties involved.

Will I be fingerprinted or have to be in a line-up?

If you are arrested, the police have the right to take your fingerprints and photographs. You may also be required to participate in a line-up, to provide a sample of your handwriting, to speak phrases associated with the offense, and/or to have samples of your hair taken. However, you may insist that an attorney be present during this time.   

What is an Expungement and how does this apply to me?

Minnesota allows all records relating to an arrest, indictment or information, trial, or verdict to be sealed so that they are inaccessible except by a court order. Expungements are available in only a limited number of situations. Under Minnesota Statutes Section 609A, an expungement may be available for certain controlled substance offenses, juveniles prosecuted as adults, or criminal proceedings not resulting in a conviction. Even if an expungement is not available initially, a person convicted of a criminal offense may consider other options including reopening the criminal case or a petition for a pardon extraordinary.