If You Are Charged With Test Refusal, FIGHT IT!

Posted On August 12, 2010 by Daniel Koewler

The common perception among the public is that "you can't beat a DWI.| We've proved that bit of conventional wisdom as dead wrong, time and time again. However, it's just as frustrating to hear someone claim that they were charged with |test refusal| and that it's all but impossible to win a test refusal case. The average attorney might not be able to win a test refusal case, but we're not average attorneys.

Minnesota is one of only a few states that actually make test refusal a crime. So how do you win a test refusal case? We win by knowing the law, knowing your rights and through experience. We recently convinced an Aitkin county judge to dismiss the test refusal charges against our client, and we did it by following these three simple steps.

Know the Law: Minnesota's Implied Consent Law and criminal test refusal law are confusing and counterintuitive to all but the most experienced attorneys. The average person would be surprised at how many defenses are available to a person who just said |no| when the State attempted to coerce them into submitting to a chemical test.

For example, an officer needs probable cause to arrest you before they can even properly demand that you submit to testing - you can't |refuse| a test that the police had no right to request. And while the police won't tell you this, you actually have the RIGHT to refuse a urine or blood test - without consequences. If you refuse to submit to a blood test, the officer MUST offer you a urine test before you can be charged with refusal. In other words, unless you refuse both a urine and a blood test, you're not guilty of test refusal.

Know your Rights: Everyone in Minnesota has the right to consult with an attorney before deciding whether or not to submit to a test. If your right to counsel is denied by the police, you can't be found guilty of test refusal. You also have the right to |change your mind.| We've successfully defended clients in situations where the officer was too quick to claim that our client |refused,| when in reality our client was ready and willing to submit to testing, and was just nervous.

Rely on Experience: Experience and imagination can get test refusal cases thrown out of court as well. There are powerful arguments to be made that the refusal law violates the basic Constitutional right against self-incrimination, and that the statute itself is so vague and ambiguous (there is no actual, clear cut definition of |refusal| in the criminal context, and civil refusal is also loosely defined) so as to offend the Constitution. Likewise, the Implied Consent advisory that every Minnesota officer reads to every alleged drunk driver actually mis-informs those drivers about the consequences of refusal!

All of these legal strategies can and do result in the dismissal of criminal charges that resulted from an alleged |refusal to test.| If you've been charged with test refusal, don't assume your case is hopeless. There are many defenses available to attorneys who know the law, know your rights, and have the experience to put that knowledge into practice.