We all know that drinking and driving is a serious and dangerous offense. But it may surprise you that drivers are being charged with DWI for taking prescription drugs while riding bicycles, horses, and yes Segways. In this episode of Lawyer 2 Lawyer, host Bob Ambrogi interviews Douglas Kans and Robert Ambrose from the Kans...
|Lawyer 2 Lawyer|
Douglas Kans is the founder of the Kans Law Firm, a Minnesota-based criminal defense firm and has over 18...
Robert Ambrose is an associate attorney with the Kans Law Firm in Bloomington, Minnesota. Among other criminal areas, he...
Bob Ambrogi is the only person to have held top editorial positions at both National Law Journal and Lawyers Weekly...
We all know that drinking and driving is a serious and dangerous offense. But it may surprise you that drivers are being charged with DWI for taking prescription drugs while riding bicycles, horses, and yes Segways. In this episode of Lawyer 2 Lawyer, host Bob Ambrogi interviews Douglas Kans and Robert Ambrose from the Kans Law Firm. Together they discuss the disparate treatment of controlled substances, your rights while being charged with an offense, and modes of transportation to stay away from while intoxicated.
Douglas Kans is the founder of the Kans Law Firm, a Minnesota-based criminal defense firm and has over 18 years of experience defending individuals charged with DUI/DWI offenses. He has been selected as a “Top 100 Lawyer” in Minnesota by the National Trial Lawyers and a “Top 100 DWI Attorney” by the National Advocacy for DUI Defense, LLC. He is routinely asked for his analysis on ABC and NBC news affiliates.
Robert Ambrose is an associate attorney with the Kans Law Firm in Bloomington, Minnesota. Among other criminal areas, he practices with Mr. Kans in DWI/DUI defense as well the expungement of criminal records.
Special thanks to our sponsor, Clio.
Lawyer 2 Lawyer: Driving While Intoxicated: Prescription Drugs, Recliners, Wheels, and Hooves – 3/24/2015
Advertiser: I am seeing more and more in our practice of what we call drug driving, which includes drugs like cocaine, methamphetamine, amphetamines, heroin, LSD. But then there are less obvious drugs that we’re seeing more and more of as being charged with criminal offenses. Quite often we turn on the TV and we see prescription drugs being advertised but very few people realize the trouble prescription drugs can get them in with the law.
Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
Bob Ambrogi: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from just outside of Boston, Massachusetts, where I practice law and I also write a blog called Lawsites. My co host, J. Craig Williams, is not able to be with us today. In a few minutes we’re going to be talking about driving while intoxicated laws, but before we introduce today’s topic, I’d like to take a moment to thank our sponsor Clio. Clio is an online practice management platform for lawyers. You can find out more about Clio at www.GoClio.com. And also I want to just take a moment to encourage our listeners to check out the Legal Talk Network website where they’ve been producing and publishing a series of special reports. In particular, you’re going to find 32 different interviews with leaders from the American Bar Association discussing their various divisions, committees and programs. These interviews were recorded live at the 2015 ABA Midyear Meeting recently down in Houston, Texas; and are loaded with all sorts of useful information. So be sure to check those out at the LegalTalkNetwork.com. Driving while intoxicated is a serious and dangerous offense. There are many substances that the law considers illegal to be under the influence of while driving, but they are not all necessarily treated equally. When we hear the terms DUI or DWI, we probably usually think about alcohol, maybe also marijuana; but it might surprise you to learn that there are a number of legal prescription drugs that can be used to enhance a tension or focus can also lead to convictions. Even more surprising, you may not even need to be behind the wheel of an automobile to be brought up on charges. So today we’re going to talk about some of the parts of DUI law that you may not be aware of, some of the things you may not know about it and some of the things that may surprise you about it. Joining us today to discuss this topic, we have two guests. Let me first introduce Mr. Douglas Kans. Douglas is the founder of the Kans Law Firm, a Minnesota-based criminal defense firm. He has over 18 years of experience defending individuals charged with DUI DWI offenses. He’s been selected as a top 100 lawyer in Minnesota by the National Trial Lawyers and a top 100 DWI attorney by the National Advocacy for DUI Defense. He is routinely asked for his analysis on ABC and NBC News affiliates. Welcome to Lawyer 2 Lawyer, Douglas Kans.
Douglas Kans: Thanks Bob, good to be here.
Bob Ambrogi: Thanks for joining us, and also joining us today is Robert Ambrose. Robert Ambrose Robert is an associate attorney with the Kans Law Firm in Bloomington, Minnesota. Among other criminal areas he practices with Douglas Kans in DWI and DUI defense, as well as the expungement of criminal records. Welcome to Lawyer 2 Lawyer, Robert Ambrose.
Robert Ambrose: Thanks, Bob, glad to be here.
Bob Ambrogi: Glad to have you. Douglas Kans, I wanted to start with you and one of the things that intrigued us about the topic is the various substances that can get someone into DWI trouble. I think most people think of this primarily as an alcohol offense, but in fact, that’s not the case. Can you give me an idea of some of the kinds of substances that can get somebody into trouble under a DWI law?
Douglas Kans: Certainly. You’re right, it was originally – and most people think of it as just alcohol-based – but I’m seeing more and more more in our practice of more of what we call drug driving, which includes driving a motor vehicle having consumed some kind of narcotic or drug. The most common drugs we all think of that we will categorize as a controlled substance or illegal substances are drugs like cocaine, methamphetamine – methamphetamine is a large one because we see quite a bit of that. Amphetamines, heroin, LSD; these are the common drugs I think most of the average person would conclude that if you consume one of these drugs, that’s going to be illegal. But then there are less obvious drugs that we’re seeing more and more of, especially in our state, being charged with criminal offenses. Quite often we turn on the TV and we see prescription drugs being advertised but very few people realize the trouble such prescription drugs can get them in with the law. One of the drugs – I’ll just give you an example – sleep aids. I know I’ve had personal experience defending people that have been charged with DWI offenses after taking a sleeping aid. And some of the more common ones we think of, brand names like Ambien, Lunesta; these are substances that taken have on sometimes unpredictable consequences, or reactions after taking them; especially a drug like Ambien. And I know in my practice, I’ve encountered people who have taken a sleep aid and then not realizing what occurs after that and then they find themselves behind the wheel – say they’re pulled over for some driving conduct; they’re given some a blood or urine test and there’s an indication of one of these sleep aids in their system. Well, they can be charged with a crime, especially here in Minnesota, driving under the influence of a prescription drug. And in cases like that, the prosecutor must prove that – say a drug like ambien or lunesta another sleep aid – that one, the substance was in their system, and that can be done by blood or urine test as evidenced. But also, the second prong would be that they were under the influence at the time of driving. So we’re seeing more and more of that, but there are other drugs too that are common that people have or take as part of a prescription. Let’s talk about codeine; quite often you might get a prescription for cough syrup that has codeine in it. In Minnesota – in a lot of states – that’s a controlled substance, codeine. And if it’s in your system, specifically in Minnesota, any drug like codeine – which is a controlled two substance in Minnesota – but any substance like codeine, which is a controlled one or two, the prosecutor doesn’t need to prove that you’re under the influence to get a conviction for a DWI. If the drug’s a controlled one or two substance is even in your system while driving, the prosecutor need only show that the individual driving a motor vehicle and have the substance in their system while driving. They don’t even need to prove that they’re under the influence. So that kind of gives you an indication or difference between the drugs. But when I start talking about the more common ones like cocaine and amphetamine, methamphetamine, that’s also obviously controlled one or two substances and they’re in your system as well. Most states, specifically Minnesota, the prosecutor doesn’t need to show that you’re under the influence at the time just if that substance was in your system. So people have to be really careful when they get a prescription drug from their physician that they look at what’s in it and if something that looks to be controlled substance they should do a little research and just make sure they’re careful and if they’re going to take this prescription drug, maybe not drive. That would probably be the best advice.
Bob Ambrogi: That’s really interesting, and I supposed we should take this opportunity to remind our listeners that DUI laws do vary from state to state and so what is the law in Minnesota might not necessarily be the law and in another state. But I’m no expert in this area but I know that there’s certainly are a lot more similarities than there are differences among these laws from state to state; is that fair to say?
Douglas Kans: Yeah, that’s correct. If you have a substance like codeine in your system that states may differ as to what the prosecutor burdens to show up in your system or have to actually show you’re under the influence. But with drugs controlled one or two I think most states are conforming to they can’t have those in the system because they’re that dangerous of drugs that they’re per se dangerous or you’re per se under the influence within your system which has been always accurate, but I think that’s where we’re heading with the law.
Bob Ambrogi: Bob Ambrose, let me ask you: there was a news story recently with television actress Amanda Bynes being arrested for DUI over having adderall in her system, and adderall, of course, is a drug that we think of as something that makes you more alert and more aware. Is adderall among these drugs that Douglas was just talking about and what’s the status of that?
Robert Ambrose: Yeah, Bob, adderall is an amphetamine and most amphetamines included in the list of substances leading to DUIs in part because there’s a potential for abuse for those types of drugs; people not taking adderall in accordance to their prescription. Additionally, the type of effects adderall can have in somebody. In low doses, adderall’s taken for such things as ADHD, and that may have few effects on a person’s cognitive functions and a person’s ability to drive a car when they take it in a low dose, maybe in a prescription. But if they start to abuse that prescription and they take it in a higher dose, that’s more likely to produce aggressive-style driving; similar to people that may be driving under the influence of cocaine or meth. Those drivers may be restless and more aggressive or fidgety or irritable, and that could be pretty dangerous from behind the wheel. In the case you talk about with Amanda Bynes, the actress, who was arrested in the Fall of 2014 for a DWI while she was actually on probation, she admitted to taking adderall at the time for ADHD. I think there may have been some other evidence that she was under the influence of some other drugs at the time as well. But the prosecution in that case could only find a small amount of adderall in her system, so they didn’t continue with any kind of prosecution with her from that. But I think that as you get into more abuse and misuse of prescription drugs, that’s the potential problems that they may have to encounter, whether somebody’s actually under the influence of ir or is it more of a per se law of just having it in the system is illegal. And from our experience, more times often than not, they have to actually prove under the influence without if somebody has a prescription to adderall; that may be a defense for the per se but they have to actually proof that somebody’s under the influence of it.
Bob Ambrogi: I think a common misperception among a lot of lay people, perhaps, is that under the influence means that you’re drunk or incapacitated, but legally we actually define under the influence really not by how you’re functioning physically or mentally but by in terms of alcohol, how much alcohol you have in your system. The designer standard across all 50 states is is that you have to have a. 08 blood alcohol content in order to be considered drunk for purposes of the law. So what does that mean in terms of a layman’s understanding of this? Douglas, could you give us a sense of how a layman would even have a sense of when they might be in the danger zone here?
Douglas Kans: People have to be careful because there is a perception that and you’re seeing these sprouts up of these portable breath tests that people see that are marketed and people buy to try and judge what their alcohol level would be, which I think is dangerous because they’re not accurate tests. But the problem is in most states, .08 is per se under the influence. In other words, if you test a .08, the prosecutor doesn’t have to go out and show that someone’s under the influence. It’s enough to have the test admitted or offered as evidence and admitted as an 08 without having to show that the person’s also under the influence because it’s assumed, per se, under the 08, that you are under the influence of alcohol. But what we see quite a bit are people who that aren’t testing at 08, even at 07 and 06. In my law firm we’ve had cases at 05 and 06 where people didn’t test the legal limit but they’re still charged under the influence of alcohol. Again, in those cases, the prosecutor has to go out there and prove that at that level, they were under the influence.
Bob Ambrogi: Well that’s a problem, then, isn’t it? If you don’t have the blood level or the blood alcohol content, you’re relying on what, wobbly walking?
Douglas Kans: Exactly. You’re relying on what we call these field sobriety tests and clearly, when prosecutors charge that out, they realize it’s an uphill battle. But a lot of cases go to trial based on that evidence. Field sobriety tests, the most common that we hear about: stand on one leg for 30 seconds, walk heel to toe…
Bob Ambrogi: Which I can’t do sober.
Douglas Kans: Well yeah, if you think about these tests, if you’ve ever done them – and I’ve been part of groups that have done them without drinking – they’re very difficult. For instance, the stand on one leg. Usually in those cases, the officer will have you put your arms to your side. Well, if you’re going to try to maintain balance on one leg, naturally you’d have your arms out. Having your arms to your side doesn’t help you balance. So a lot of these tests are actually designed for failure, but that’s what going back to your question if they have a test that’s less than a .08, they’re going to have the officer take the stand and they’re going to have the prosecutor ask to the officer, how did they perform on this test, what clues did you see; and that will be their evidence.They could still argue that the person tested was an 06 or an 05 or anything under an 08, but it really comes down to the field sobriety tests – which as a defense lawyer is helpful to me because I can poke holes in that for cross examination because there’s a lot of problems with these tests. But nevertheless, a lot of people have said under this conception, hey, If I’m not an 08, I can’t be charged or convicted and it’s not true; so people have to be real careful. To how you get to an 08, people are different – weight, size, eyes represent a lot of people. I would think after 2 or 3 glasses of wine, they wouldn’t be at that level, but they are. So it’s really a lot of physiology and a lot of the way people’s chemical makeup is, how their alcohol level is going to be. And you also hear from some experts that a 6 ounce glass of wine will get you to a .06. There’s no exact science to it, but I think people have to be conscience that if they’re going to go out and drink socially just to be very careful and needless to say, arrange for a sober ride.
Bob Ambrogi: We need to take a very short break, we’re going to be back in just a few moments to talk more about DUI laws.
Kate Kenny: Hi. My name is Kate Kenny from Lawyer to Lawyer, and I’m joined by Jack Newton, President of Clio. Jack takes a look at the process of moving to the cloud. Now how long does it take to move to the cloud, and is it a difficult process.
Jack Newton: No. With most cloud computing providers, moving your data into the cloud is something that takes just minutes, not hours or days to do. You can get signed up and running with most services in just a few minutes. Even if you have an existing legacy set of data that you want to migrate to a web-based practice management system like Clio, there’s migration tools and migration services that we’re able to offer to each that process. Most firms can be up and running in the cloud in less than five minutes, and can have their data imported in a matter of hours or days.
Kate Kenny: We’ve been talking to Jack Newton, President of Clio. Thank you so much, Jack.
Jack Newton: Thank you, and if you’d like to get more information on Clio, feel free to visit www.goclio.com. That’s G-O-C-L-I-O.com.
Bob Ambrogi: Welcome back to Lawyer 2 Lawyer, this is Bob Ambrogi. My co host J. Craig Williams is away today. We’re talking with Douglas Kans and Robert Ambrose from the Kans Law Firm in Minnesota about DUI laws. We were just talking about the measurement for rough intoxication for alcohol, and Robert Ambrose I wanted to ask you about other substances. We were talking here about prescription drugs, even marijuana and other illegal substances. How do police officers or law enforcement officers measure the level of intoxication with those kinds of substances?
Robert Ambrose: Well I think the main thing is, here in Minnesota, any amount of controlled substance schedule 1 or 2, which is the cocaine, the meth, the heroine; any amount of that in somebody’s blood – and we actually have urine testing too in Minnesota – if that shows up at all, that’s just a DWI or DUI.
Bob Ambrogi: How do they get there? They don’t have the breathalyzers – and I think a lot of police have easy access to breathalyzers for alcohol – but they don’t as easily have equipment available to test for these other things, do they?
Robert Ambrose: No they don’t and for Minnesota’s purposes, they’ll either do a blood or a urine sample, and most commonly a blood test. We have heard that there are some companies, one in Vancouver, that’s trying to get a breathalyzer for marijuana and get that approved and working on that. But right now it’s mainly blood and urine testing; especially here in Minnesota. Now marijuana, for example, just the presence of marijuana or THC in somebody’s system is not necessarily under the influence. What they’ll do in Minnesota is test for three different things when they’re looking to see if somebody had marijuana in their system when they were driving. The first one is commonly known as just THC, and scientifically they call it Delta 9; and that’s just a primary substance that causes impairment that indicates usually recent use within a couple of hours that somebody ingested or smoked marijuana prior to driving. What happens chemically as that THC will quickly convert to what’s called Hydroxy THC, and that’s a metabolite of THC that doesn’t exist in somebody’s bloodstream for very long. So that rarely actually shows up on any kind of toxicology report because it quickly converted to what’s called Hydroxy THC. And that’s kind of the most common one that can stay in somebody’s system for up to 28 to 30 days. It’s an inactive THC metabolite that does not cause impairment and experts will testify to that. But interestingly enough, a state like Colorado – I believe its past the law – where there is a threshold for THC and I think they have it as 5 nanograms are more of THC per milliliter is illegal in Colorado. And that is, I think, what states are legalizing marijuana may be going towards is that they can have some set level of THC as a concentration level be equivalent to the 0.08 for alcohol.
Bob Ambrogi: There’s a study that came out just this last week for the National Highway Traffic Safety Administration that concluded that drivers – that marijuana effectively doesn’t really impair drivers. The drivers that used marijuana were effectively no more likely to crash than those who have not used any drugs or alcohol at all. Given some of the liberalization of laws in states such as Colorado and elsewhere and I believe even in Minnesota around marijuana, do you think this issue will be revisited by legislatures or should be revisited as to whether or not marijuana does impair driving?
Robert Ambrose: Yeah, I think so. One state in particular, Arizona, had a case go up to their Supreme Court challenging a law that said any amount of THC – specifically that carboxy THC, the inactive metabolite – does not cause impairment. And they said you can’t just charge somebody with a DWI there in Arizona just for having the mere presence of that metabolite in their system. But I think also law enforcement officials are starting to be trained as drug recognition experts, or they referred to as they DREs, and they have certain tests they have that people can perform to see if you are under the influence of a drugged at that time. And I think as more states start to legalize marijuana, that will be something that they have to adjust to.
Bob Ambrogi: Douglas Kans, I understand that you were featured recently on a news story where a man was fighting a DWI charge that he received while driving a Segway. Again, I think another common misconception of these laws is that you need to be behind the wheel of an automobile. What in fact is the case? What can you be driving? What are the the scope of types of vehicles somebody could be driving and be charged under a DUI law?
Douglas Kans: An interesting story here: The Segway, most laws- well not every state, states really do differ how they categorize the motor vehicle; here in Minnesota we categorize a motor vehicle as something that is self propelled. That generally would rely on some sort of engine. The Segway, although self propelled, the uniqueness of that case is I think our court of appeals in that decision ultimately decided that the Segway is not something naturally designed to be on a highway or a roadway which – with the definition of a DWI generally has to be on a public roadway or highway. But since these vehicles are not actually designed for that, then it wasn’t a motor vehicle for the purpose of a DWI. But in Minnesota, when it’s self propelled – obviously a bicycle is not self propelled – but I had a case once where basically it was a bicycle and the defendant had put a little engine on the bicycle to make it like a moped and that was a motor vehicle. We had an interesting case here in Minnesota not too long ago that involved a person charged with DUI in a sofa chair.
Bob Ambrogi: I remember reading about that.
Douglas Kans: You remember that?
Bob Ambrogi: Oh yeah, I remember that.
Douglas Kans: I think that my understanding of the story was there were – maybe this loss of license, maybe it was some prior offenses – but he put a motor on a sofa chair and I think the officer had seen him going down the road on a sofa chair. Well guess what? Sofa chairs are innocent but you put an engine on it, it’s self propelled, all of a sudden it becomes a motor vehicle. And then you have some states like Kentucky where recently he was charged with a DWI on a horse. Now that would never happen in Minnesota because again, it has to be a self propelled motor vehicle and that wouldn’t be included. However, like I said, it just illustrates every state is different. I guess, generally, a horse weighs about a thousand pounds so I guess that there’s some danger in that. But I think most states, if it’s certainly self propelled, it is a motor vehicle, and some states are more liberal than that when they define a motor vehicle.
Bob Ambrogi: And what must the driver be doing? Again, I don’t practice in this area, but I seem to recall reading about some cases in which people have been charged with DUI even though they were sitting in their car with the engine turned off but they were in the drivers seat behind the steering wheel, maybe taking a nap by the side of the road or something like that. Can you be charged with DUI when you’re not actually operating the vehicle?
Douglas Kans: In Minnesota you can and it drives us crazy because we have so many cases. It’s one of the things people have a hard time grasping. I understand because as a defense lawyer, I have a hard time grasping it sometimes. We have something called physical control, where let’s say you’re parked in your car and you’re a smoker and you decide to have a cigarette. Like Minnesota, it’s very cold here in the winter and you have the heater on, you want to stay warm so you have the car running. In Minnesota, if you have been drinking alcohol or under the influence of drugs or a controlled substance in your system, even though you weren’t driving,you’re just sitting in the vehicle and it could be in the driveway of your house, that is considered your physical control of your motor vehicle and that is against the law and it’s charged as a DUI. So in Minnesota, you don’t have to actually be driving, you just have to be in physical control or driving. And people will sometimes think, does the key have to be in the ignition; not necessarily. There’s a substantial number of cases where if you have the keys in your hand in your pocket and you’re sitting in the car, you could be charged with a DUI. If you brought up sleeping, many cases like that, if you’re asleep in your car, whether it’s running or your keys are in your pocket, you could be charged with DWI in physical control. The idea in rationale – although I don’t understand that – with the law is well, someone could wake up, put the keys in the car, and easily propel the vehicle forward. I think the idea behind the law was hey, if we can’t catch them driving, just because we didn’t see it doesn’t mean we weren’t. I think inherent in the law is that, so if an officer comes upon someone but they weren’t driving but they were parked on the side of the road, let’s not let them get away with a DWI because more than likely that’s how they got here; and so let’s come up with the idea of physical control. But as lawyers here, we sometimes beat our heads against the wall in regards to physical control issues.
Bob Ambrogi: So Bob, if I had been a drinking guy and I’m on my way home and I get pulled over by a police officer, what should or shouldn’t I do?
Robert Ambrose: Well, you shouldn’t make any kind of statements or admissions in our experience, but you also want to be cooperative at the same time. I believe there’s some states that have road blocks – I think that maybe Florida is one of them – I remember reading that an attorney would prepare a statement for cops and put their license and insurance and put that in a ziplock bag and hang it out their window at the roadblock; basically telling them that they’re not going to agree to do any of their tests or anything so they don’t have to roll down their window to talk to the officer. Because a lot of times the officer wants to say that you smell like the odor of an alcoholic beverage. So one thing is it’s always good to be cooperative here in Minnesota that you do have a limited right to counsel before taking a breath, blood, or urine test so you can call an attorney and get advice on what to do. Obviously as an attorney, we’re going to say call an attorney, but definitely if somebody’s never been involved in that situation before, it’s definitely a good idea to reach out to a lawyer.
Douglas Kans: If I could elaborate on that just real quick, please. Yeah, it’s good to be cooperative because if you’re not cooperative, things can go sour really quick if you’re in a situation where you’re in contact with the police. But being cooperative doesn’t mean you have to provide them evidence, and what I mean by that is you have a right against self-incrimination. And people have to understand that anything you say will be held against you, could be offered in court at trial against you to prove your guilt. So same things if you’re pulled over like how much you had to drink, how you feel. Those are all incriminating statements you don’t have to make, you do have the right to remain silent. In a field sobriety test, field sobriety tests are all basically sort of like statements offered against you at trial to prove that DWI case that you’re under the influence. You don’t have to agree to do field sobriety tests, and if you don’t, it can’t be offered against you to prove you’re under the influence. Now understanding that if you don’t agree to take field sobriety tests, that generally will give the officer probable cause or basis to arrest you or take you in maybe for further testing. But nevertheless, it’s not providing evidence to the state. So it’s always a good idea to be cooperative, not talk back to the police, certainly not get physical in any manner. But at the same time, you do have to understand that you have a right against self-incrimination; you don’t have to do these things that will be used against you later in time.
Bob Ambrogi: I may be misstating Massachusetts law, my understanding of Massachusetts is that if somebody declines to take a blood alcohol test, they can do that. But there’s an automatic suspension of their driver’s license associated with that.
Douglas Kans: Right, and just to be clear, I was talking about field sobriety tests. There are states like Minnesota – once you’re under arrest and transported to a police department where they want to extract some sort of chemical evidence – whether it be blood, breath or urine – as evidence in your case at a .08. Well, in Minnesota, yes. If you refuse that, the blood, breath or urine, they will charge you with the crime of refusal. There are a few states that still criminalize refusal. I think most states will take a stronger action against your driving license in a longer period of revocation or cancellation. But in Minnesota, we criminalize it. So if you do refuse to submit to a blood, breath, or urine, assuming the cops are at a probable cause to arrest you, they will charge you with the crime of refusal. And to add more to that in Minnesota, they’ll charge you the more serious crimes. So generally, if you’re a first time DWI offender without any prior history of alcohol-related revocations or DWIs, first offenders are charged with a misdemeanor, which is a lower-leveled offense carrying a max impaling of 90 days of jail, a thousand dollar fine, normally we’re not looking at jail. But if you refuse a test, you’re charged with a more serious offense called a gross misdemeanor, where the max impaling is all of a sudden a $3,000 fine or one year in jail. So we’re unique in that sense and we just had a case go before our Supreme Court here Minnesota, which is how they contested to whether they can criminalize refusal in this state. An argument was made that you need a warrant to take blood, breath or urine, and how can you criminalize refusing something the state couldn’t have done without a warrant. And that case was called State V. Bernard, and unfortunately the Supreme Court disagreed with the defense position. And surprisingly enough, they found that the tests, blood, breath or urine, is basically – I think in that case and correct me if I’m wrong – is the search incident for unlawful arrest, therefore it’s okay for them not to need a warrant to begin with.
Bob Ambrogi: That’s really interesting. We are near the end of our time for the show. Before we close out, I want to give each of you an opportunity to give your closing thoughts on the topic and also to let our listeners know how we could follow up with you if they’d like to continue the discussion offline. Bob Ambrose, let’s start with you.
Robert Ambrose: Thanks Bob, again, thanks for having me on this show. With drug driving or driving under the influence of drugs, I think the one change I would like to say is move away from the per se laws or anything that says that just having a certain substance in your system means you’re under the influence. And I’d like to see more of just making prosecutors prove that somebody’s actually under the influence of that substance. But yeah, if anybody wants to reach out to me you can contact me by email. It’s [email protected], and our phone number is (952) 335-6314. Thanks again.
Bob Ambrogi: Thank you very much. And Douglas Kans, your final thoughts today?
Douglas Kans: I think one of the biggest things I want to underscore with people I’m seeing is be careful. There’s many substances that people consume, either part of prescription that they just have to be aware what they’re taking and just be aware of what the laws in their states say about having that drug and then getting behind the wheel of a motor vehicle. There are drugs people don’t even think of that seem like innocent drugs that you don’t have a prescription for. Even a drug like testosterone in this state is a steroid. If you don’t have a prescription for it and you’re in position of it, it could even be a felony. So I just want to underscore that people have to be very careful and diligent as to what they’re putting into their bodies. And again if people want to reach out to me or learn more about Bob and I and our firm, our website is www.DWIMinneapolisLawyer.com; we also have a blog there which we blog routinely about different issues regarding alcohol-related driving defenses throughout the country.
Bob Ambrogi: Well thanks again to both of you, really appreciate you taking the time to be with us today and to share your thoughts on this topic. We’ve been talking with Douglas Kans and Robert Ambrose of the Kans Law Firm and that about brings us to the end of our show today. This is Bob Ambrogi, we thank all of you for listening to the program today. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.
Advertiser: Thanks for listening to Lawyer to Lawyer, produced by the broadcast professionals at Legal Talk Network. Join J. Craig Williams and Robert Ambrogi for their next podcast covering the latest legal topic. Subscribe to the RSS feed on legaltalknetwork.com or in iTunes. The views expressed by the participants of this program are their own, and do not represent the views of, nor are they endorsed by, Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the contents should be considered legal advice. As always, consult a lawyer.
Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.iTunes Google Play
David J. Shestokas and Carolyn Shapiro discuss the Supreme Court’s end of term, including landmark cases, Gorsuch, and what's in the future.
Steven Wise and Richard Cupp discuss the recent legal ruling involving captive chimpanzees and the debate over animals as "legal persons.”
Letitia Quinones and Barbara Lynn Ashcroft discuss the Cosby case, the allegations, the prosecution and defense strategies, and what lead to the mistrial.
Jeffrey Gracer and Nicolas Loris discuss the Paris Agreement, President Trump’s withdrawal from the accord, and the long-term implications.
This legal podcast covers the dismissal of FBI Director James Comey, the legalities triggered by dismissals, and the Russia connection.
This legal podcast discusses how the U.K. is eliminating the requirement of attending law school in favor of a skills exam and whether or...