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Emergency personnel work to free the victim of a fatal car accident Jan. 21 east of Park Rapids, caused by an alleged drunken driver. (Sarah Smith / Enterprise)

Bill would presume innocence in drunk driving cases

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Many states suspend constitutional presumptions of innocence when it comes to drunken driving arrests.

Minnesota is no different.

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If you are arrested for DWI in Minnesota, your license can be suspended or revoked within days of your arrest, even before you go to court on the actual criminal charges. This civil proceeding, the license revocation, is a separate matter, resulting in a maximum suspension of 90 days if your blood-alcohol content exceeds .08 percent.

The intent is to crack down on drunken drivers immediately and get them off the state's highways.

A bill currently working its way through the Minnesota House of Representatives seeks to restore due process and a presumption of innocence to drivers arrested on suspicion of drunk driving. It would mandate a conviction on the criminal charges before the driver could lose his or her license. Currently, that process typically begins within seven days of the initial arrest.

The House bill, with a companion Senate bill, stands little chance of passing, opponents and political observers say. County attorneys throughout the state have organized a letter-writing campaign to their legislators. Hubbard County Attorney Don Dearstyne sent out several communications, imploring legislators not to take what he calls a drastic step backward in DWI prosecution.

Civil libertarians maintain the state's implied consent law, making it mandatory for motorists pulled over to provide a breath test or blood sample or lose their license for one year for refusing, penalizes drivers before they've had their day in court. They're innocent until proven guilty.

"Drunken driving is the single biggest public safety issue we face," said Hubbard County District Judges Robert Tiffany and Paul Rasmussen in a jointly worded statement. "The damage to society as measured by loss of life, personal injury and financial loss is greater than any other type of crime. "

A consortium of private defense attorneys has posted Web support of the bill, maintaining "an arrest for DWI in Minnesota can be initiated by an officer based on the presence of alcohol and an assumption of impairment."

The defense bar maintains Breathalyzer equipment has repeatedly been found to give false or inaccurate readings, and those are the types of issues drivers should be able to challenge in a court trial. Meanwhile, they're already lost their privilege to drive.

The conundrum of deterring repeat DWI offenders was illustrated in January, when a former Akeley man already convicted of multiple DWIs swerved over a centerline on Highway 34 East and killed an approaching motorist in the opposing lane of traffic.

Robert Louis McGrath, 49, is currently jailed in Hubbard County on criminal vehicular homicide charges in connection with the accident. He's had at least four prior alcohol-related incidents, court records show.

Hubbard County court records are full of repeat offenders such as McGrath. In recent court cases, four area women and two area men all appeared on repeat DWI charges, which have been posted online.

"In Minnesota the judiciary is attacking this issue on several fronts," the district judges wrote. "We are setting up drug courts to deal with chemically dependent offenders. Initial studies show good results with lower recidivism rates and significant cost savings...

"Research demonstrates that the traditional approach to handling criminal offenders with fines and jail terms does not work well with the chemically dependent population," the judges wrote. "The drug court model focuses on getting offenders into treatment with close monitoring and intensive probation supervision."

"Our courts are doing reviews, bringing some people back in to ensure they've complied with their Rule 25 (chemical dependency) assessments," Dearstyne said.

Tiffany and Rasmussen, in essence, impose a staggered sentence with periodic reviews in the interim. If the defendant complies with court-imposed sanctions, which amount to a probationary period, sentences will remain stayed. If they don't, the suspended sentence is revoked and a jail tem and fine are imposed.

No system is perfect, but defense attorneys worry defendants under this review status often aren't represented during the interim appearances, and could incriminate themselves saying something to a judge their lawyers would advise them against.

Meanwhile, the bills pending in the Legislature are the wrong approach, Dearstyne says, even though they would carry a two-year sunset clause after the state saved the necessary money.

"Unfortunately public safety is not a money-making operation," he said. "It's not designed to increase revenue. It's designed to protect the public."

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