Two Beers, Four Blocks, and a PBT of 0.114
At 0138 hours you stop a sedan after it crosses the fog line twice in three blocks and drifts about 6 inches over the center line. The driver, 41, produces a valid license and insurance card but fumbles both, then says he had 'two beers about an hour ago' and is 'just trying to get home, it's four blocks.' You note bloodshot, watery eyes, slurred speech, and a strong odor of alcohol. Horizontal gaze nystagmus: six of six clues. Walk-and-turn: three clues. One-leg stand: two clues. A preliminary breath test reads 0.114. Records show one prior DWI in 2019; his license is valid with no restrictions. He is polite but anxious: 'I can't afford a lawyer. Can I just do the breath test and go home?' It is 8 degrees Fahrenheit. His passenger is his sober adult brother.
1. Do you have probable cause to arrest, and which facts are doing the legal work versus which are noise? Identify the charging implications you should note before you book him.
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Probable cause exists. The heaviest facts are, in order:
- Driving conduct. Two fog-line crossings and a center-line drift gave you a lawful stop and independently corroborate impairment. This is the fact a defense attorney cannot explain away.
- Divided-attention and coordination failures. Fumbling license and insurance, slurred speech, bloodshot/watery eyes.
- Standardized field sobriety tests, administered as validated. 6/6 HGN plus 3 clues on walk-and-turn and 2 on one-leg stand is a strong, articulable combination. The value depends on your documentation of conditions (lighting, surface, footwear, medical questions) and on whether you gave the instructions as designed. Sloppy administration is what gets these suppressed, not the clue counts themselves.
- Admission of drinking plus odor. Corroborative, not dispositive.
Noise: the exact PBT number (a screening tool supporting the arrest and the implied-consent decision, never a substitute for the totality), the 'four blocks from home' (not a defense, and don't argue about it), and his politeness (impairment and cooperation are unrelated). Do not treat the PBT as proof of anything by itself.
Charging note: with one qualified DWI within ten years, this is not a simple misdemeanor; the prior is an aggravating factor that elevates the offense. Confirm the prior's status and lookback through records rather than assuming, and note the adult brother passenger does not create a child-endangerment enhancement.
2. He asks whether he can 'just do the breath test and go home' because he cannot afford a lawyer. What must happen before any test is given, and what do you do if he will not decide?
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Read the implied consent advisory verbatim from the current form before requesting the test, including that refusal to submit to a test is itself a crime and that refusal will also affect his license. Do not paraphrase it, and do not editorialize; a paraphrased advisory is a routine suppression issue.
Right to counsel. Minnesota gives a limited right to consult an attorney before deciding. That means a reasonable opportunity: a phone, a phone book or directory, privacy, and a reasonable amount of time. It does not mean an unlimited wait, and it does not mean he gets to be released because he cannot reach anyone. 'I can't afford a lawyer' is not the same as 'I want a lawyer' and is not a refusal; clarify on the record what he wants to do.
Document precisely: times of the advisory, time counsel was requested, time and number of each call attempt, and his exact words at each step.
If he refuses, or cannot reach counsel and still will not decide after a reasonable time:
- Treat it as a refusal and document it; the refusal itself supports a charge and a license action.
- Apply for a search warrant for a blood sample. A warrantless blood draw after refusal is not an option; a breath test is available as a search incident to a valid arrest, but once he refuses, the warrant is the clean path.
- Do not substitute a urine test as a fallback; that is the classic mistake in this fact pattern.
Do not: tell him the refusal cannot be used against him, promise that cooperation means release, or let the advisory become a negotiation.
3. What do you do with the sober brother, the vehicle, and a driver who is going to jail on an 8-degree night?
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Handle the two people and the property separately, and write down each decision.
The brother. He is sober, but sobriety is not the only question: confirm a valid license and no restrictions or warrants before releasing the vehicle to him. If he is licensed and sober, releasing the car to him is generally the best outcome: it avoids a tow, avoids the cost to the driver, and gets a sober person home. If he is not licensed, the vehicle is towed per policy and you arrange a ride rather than leaving him on the street at 8 degrees. Transporting him a short distance or letting him wait in a warm, monitored spot is a caretaking decision, not a courtesy that needs to be hidden.
The vehicle. If it is released to the brother, document the release, the time, who took the keys, and the vehicle's condition. If it is towed, do a lawful inventory per written policy, not an investigatory search, and list what you find.
The arrestee. Standard booking; note any injuries, medical complaints, or statements about his health at the scene, and note the temperature as part of the reason for every transport and release decision.
The through-line: every one of these choices looks discretionary in the moment and looks like a policy failure in a deposition. The way to be defensible is consistency with written policy plus a written rationale for the deviation, if any.