QUESTION
When can I be issued the breathlyzer test?
Asked on May 26th, 2012 on Criminal Law - Minnesota
More details to this question:
I was arrested the other night for DUI. The interesting thing about this is I wasn't driving at the time. I had driven earlier in the night but when the police showed up I had been drinking outside an apartment with some people I had met earlier. We had been drinking strong mixed drinks so I was quite buzzed by the time they should up. Apparently due to an argument between myself and another individual at the apartment this individual called the police on me. From what I could gather from the officer it was my word against this other individuals of the time I last drove. They performed a field sobriety test and a breathalyzer. I failed the breathalyzer and was arrested on suspicion of DUI. I guess my question would be the law states a breathalyzer at the station must be performed within 2 hours of driving. Due to the fact the police were never present while I was driving is it possible for them to prove this? Is someone's word against mine enough to convict on this?
1 ANSWER
3 Awards
There are a number of issues that can help with defending your case. First, you were not driving. The State must prove that you were driving under the influence or were driving with an alcohol content of .08 within two hours of driving. The State may have a problem with its burden of proof with respect to the within 2 hours aspect. Second, it sounds like you have a post driving consumption defense. Meaning the alcohol you consumed after driving put you over the legal limit. Police only need probably cause to arrest on suspicion of DWI. They need even less, reasonable suspicion to request you take a portable breathalyzer. So yes, someone's word can be used against you as far a been charged, but to be convicted, that person would have to testify in Court. Hope this helps.
Answered on Jun 06th, 2012 at 8:58 PM