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Defenses in a DWI/DUI Case

If you've been charged with a DWI/DUI, one of the things you may be thinking right away is this: How can I keep this off my criminal record?

There are many defenses to DWI charges. Some may be obvious. Others may not. What follows is a list of some, but not all, of the defenses people raise to fight and beat a DWI case.

The Police Officer Lacked a Legal Basis to Stop My Vehicle

This is probably the most common challenge people raise to fight DWI charges. This is also a topic I've written before. Briefly stated, in Minnesota, law enforcement officers must have a legal basis to stop your vehicle. The standard that is applied by a court is whether the law enforcement officer had reasonable, articulable suspicion that criminal activity was present. Courts have routinely held that any violation of the traffic law constitutes reasonable, articulable suspicion. So, if you have a tail light out, or if you have something hanging from your rear view mirror, or if you are speeding, your vehicle may be lawfully stopped.

The Scope of the Traffic Stop was Unlawfully Expanded

As stated, an officer can stop your vehicle only if he or she has reasonable, articulable suspicion that criminal activity is present. However, once you are stopped, the scope of the stop is limited to the basis for the stop UNLESS the officer has reasonable, articulable suspicion that further criminal activity is present. So, if you are stopped for an object hanging from your rear view mirror, the officer cannot start asking you about drugs or alcohol unless something justifies that line of questioning. In DWI cases, officers routinely expand the scope of a stop based upon the odor of alcohol, bloodshot/watery eyes, and/or slurred speech.

Post-Driving Consumption

In Minnesota, it is a defense to a DWI charge to prove that you consumed alcohol after driving and you can demonstrate that the test result would have been below the legal limit but for the post-driving consumption. To preserve this defense, you actually have to consent to a blood, breath, or urine test at the police station--if you refuse, this defense is not available.

Residual Mouth Alcohol

The Minnesota Bureau of Criminal Apprehension recommends that an individual be placed under observation for 15 to 20 minutes before submitting to a breath test at the law enforcement center. The purpose of this observation period is to ensure the person taking the test does not trap mouth alcohol, which can produce an artificially high reading. Mouth alcohol can be trapped in a variety of ways, such as belching, burping, hiccupping, or regurgitating. If the officer does not watch for these issues, the validity of the test result can be proven unreliable.


This blog presented just a few of the defenses that are raised in DWI cases. To properly analyze whether you can beat your DWI charges, your best bet is to contact a lawyer right away.

Grant Borgen of Bird, Jacobsen & Stevens, P.C. handles DWI cases and is always available for a free consultation.

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