The Midnight DWI Jail Call to a Minnesota Lawyer

The DWI jail call: In Minnesota, a person arrested on suspicion of DWI has the legal right to consult a lawyer prior to a police request to consent to chemical testing.

But these situations happen in the hours when most people – and most lawyers – are asleep.


Most people who find themselves in this unwelcome circumstance never believed they would be. And they may not know a criminal lawyer or DWI defense lawyer to call.

Sometimes they call any Minnesota lawyer they can think of, even though not a criminal lawyer, or DWI defense attorney.  This article is help for that lawyer.

If possible, refer the DWI jail call to a DWI defense attorney.  If that does not work, they should call you back.  Here are some basics for the Minnesota lawyer who does not regularly practice DWI defense.

The phone consultation should help the caller navigate the legal threats presented. But the most lengthy and complex set of criminal laws in Minnesota are the DWI laws, Minnesota Statutes Chapter 169A.

Here is a list:

1.  “Was there a collision or accident?”

If no, go to the next question in a DWI jail call.  If yes, “do you know if anyone was injured?” and “where are you calling from?”  If there was an alcohol-related injury motor vehicle accident; then the caller may be at risk of a felony Criminal Vehicular Operation charge.  If that is the case, they may be better off refusing to consent to provide a sample for chemical testing.

However, a Minnesota statute defines refusal to consent to a search as a crime: “Refusal to Submit to Chemical Testing.”  This statute seems unconstitutional, since it makes a crime out of a refusal to consent to a warrantless search. But so far the Minnesota Appellate Courts have upheld it.

As a result, the lawyer should exercise caution. And the lawyer should avoid directly advising the caller in such a situation (likely felony CVO) to “refuse” to consent.

Rather, a Minnesota lawyer can safely advise the DWI jail call that:

“Since refusal is a crime, I can’t advise you to refuse.  A lawyer can’t advise a person to commit a crime.  However a lawyer also has a duty of loyalty to the client. And a lawyers has a duty to explain the legal consequences of your actions.  If you submit a sample for chemical testing that could help the state convict you of a felony.  If you do not consent to giving a sample; that may make it more difficult for them. But refusing consent could also lead to a charge of gross misdemeanor ‘Refusal.'”

Ask, “where are you now?” to discover whether they are at a police station or a hospital.

2.  If you provide a sample, tell the police that you want an additional test.

In Minnesota, a person who submits a sample for chemical testing after a DWI arrest, has the legal right to an “additional test.”  Do this in every DWI jail call; whenever the breath test machine report is 0.08 or more, or when police collect a blood or urine sample.

Minnesota Statutes Section 169A.51, subd. 7 (b):  The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state. The failure or inability to obtain an additional test or tests by a person does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.

Both a Constitutoinal and a Statutory Right

Though this right is statutory, it is also a way to protect the state’s chemical testing scheme from constitutional challenges. Because the accused has the right to exculpatory evidence. And the state has a duty to preserve it, as in the Trombetta case.

How can a person get an Additional Test (as the statute calls it)?  The time-honored method is to ask someone to come to the jail with a clean jar, and collect a urine sample. And that person should pay the best attention to chain of custody issues, to be refrigerated and tested quickly.

Today, better to call a local company that employs contract nurses to go out to jails, to collect samples. And then they preserve them, and submit them to a lab for chemical testing, with good chain of custody.  If the evidence is exculpatory, they can testify in court as well.

Minnesota courts have held that police must allow the use of a phone (again) to arrange an Additional Test.  And then police must not interfere with that sample collection. I recommend calling Additional Testing, Inc.:  24-hour Dispatcher:  Phone: (612) 333-3226 or Toll Free: (877) 333-3226.

So, the arrested person has the right to two types of DWI jail call:

  1. Attorney consult calls.
  2. Additional Test arrangement calls.

3.  “Is the police officer requesting a breath, blood, or urine sample?”

In Minnesota, the police officer may request any of these. But if they request blood, police cannot label the person a “Refusal” unless they then request a urine sample.  Similarly, if police request urine, the person cannot be deemed a “Refusal” unless the police officer then requests a blood sample which is then also refused.

Minnesota Statutes Section 169A.51, subd. 3:  Type of test.  The peace officer who requires a test pursuant to this section may direct whether the test is of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.

This is the “Alternative Test Right.”  It only applies to blood and urine requests.

4.  “Were you involved in a motor vehicle accident?  Any injuries?”

Most in a DWI jail call will:

  • not have been in a motor vehicle accident,
  • have no priors, and
  • won’t submit samples that will be 0.16 or more alcohol concentration. 

These callers will be better off consenting to the search, after consulting a Minnesota lawyer.  With no-collision, with priors or 0.16 or more BAC, callers will usually be better off providing a sample.  The exceptions to that general statement are unusual and beyond the scope of this Legal First Aid article.

5.  Avoid answering questions about drinking, driving, etc.

After the samples, or the claimed “refusal,” police officers normally will read a Miranda Warning and ask questions from an “Alcohol Influence Report” form; then write down and audio record the answers.  Advise callers in a DWI jail call to remain silent, and decline to answer any questions.  (The questions relate to drinking, feeling impaired, origin and destination, etc.)

Gallagher Criminal Defense logo sm

The author, Thomas Gallagher is a Minneapolis DWI Defense Lawyer.. He has three decades experience helping people facing DWI charges and license revocations, with a strong win rate.

He is a frequent lecturer on DWI defense law to lawyers, police and judges.  Other lawyers seek his insights on their cases often.  Now, you can call him for help or with a question if you like.  Phone: 612 333-1500.