State v. D.M.C.
In another alleged test refusal case this week we convinced the state to dismiss the breath test refusal on other grounds. In this case our client refused to blow into the instrument during the 3-minute window within which a driver must provide a breath sample or be deemed to have refused the test. However, Minnesota recognizes exceptions to this general rule.
One such exception recognized by Minnesota appellate courts is “immediate change of mind.” Although we had no audio or video recordings of the interaction between our client and the officer, we were able to refresh the officer’s memory with a short annotation he made in his notes. In the end the officer told the prosecutor that our client had immediately changed his mind and “begged” to take a breath test after the time had expired. Upon hearing this the state agreed to dismiss the criminal refusal charge and the matter was favorably resolved short of trial.