Winnipeg Jets defenceman Dustin Byfuglien is trying to sink his impaired-boating trial before it goes to a jury next week, the Free Press has learned.
Court documents show Byfuglien has filed a motion seeking to have the case dismissed, arguing his rights were violated the night of his arrest. Police refused to perform a drug test on him after he initially refused, but he changed his mind 72 minutes later following contact with a lawyer.
Arguments on the issue are set to be heard Monday morning in Minneapolis. If successful, Byfuglien would walk out of court a free man. But if a judge rules against him, the week-long trial is expected to proceed with jury selection beginning immediately.
Once 12 members of the public are picked, the prosecution will begin trying to prove Byfuglien was high on drugs when he was arrested last August on Lake Minnetonka and charged with four offences after being spot-checked for not having the proper lights on his craft.
The evidence against Byfuglien at trial is expected to include testimony from the two arresting officers and a drug expert who will testify about Byfuglien's behaviour and appearance, including a brownish stain on his tongue. Prosecutors haven't specifically revealed what substances they think Byfuglien ingested, only referring to them as "a central nervous system stimulant and a central nervous system depressant."
Byfuglien was given a pair of breathalyzer test immediately after his arrest and registered 0.031 and 0.024, well under the Minnesota legal limit of .08.
A drug expert examined him at the police station and demanded a blood or urine test to try to determine the source of the alleged impairment.
Byfuglien declined, but later consented to the test after consulting with his defence lawyer, Mitchell Robinson. Police told him it was too late and proceeded with the charges. That is now the subject of the pretrial motion.
Robinson said Byfuglien changed his mind "within a reasonable time frame" upon exercising his right to contact an attorney. Robinson said Byfuglien then should have been tested, claiming the results would have proven he wasn't high on an illegal substance.
"This wasn't a case of him not taking the test because he was afraid of what would be found. He just wanted to speak to counsel first," Robinson said. "After consulting with his attorney, he made the correct decision. (Byfuglien) was a citizen of average knowledge in the law confronted with a totally new, confusing and uncomfortable situation. He necessitated the advice of counsel to assist in making a testing decision."
Robinson said the brief passage of time between refusing, then consenting, would not have been enough to rid Byfuglien's system of any intoxicants. He noted several drugs such as cocaine can take days to vanish from the bloodstream.
"Permitting (Byfuglien) to take a chemical test after conferring with counsel would not have materially interfered with the evidence-gathering purpose of the implied consent law," the motion states.
Byfuglien admitted he had taken a muscle relaxant that day but couldn't remember the name of it.
He said he also took a "handful" of supplements from 16 or 17 different bottles but didn't know their names either. A drug-recognition expert noted Byfuglien's pulse rate, blood pressure and temperature were above normal.
Byfuglien has offered to plead guilty to not having the proper lighting or enough life-jackets on the boat in exchange for the remaining charges being dropped. The prosecution has declined.
Robinson said he may spend as much as three days calling evidence -- which will likely include testimony from Byfuglien.
Byfuglien's girlfriend and the other two friends on the boat will testify, along with a defence drug expert.
The charge of refusing a blood or urine test carries a maximum one-year jail sentence, while the other charges carry a maximum of 90 days behind bars.
If convicted, Byfuglien would have to apply in writing to the Canadian government for a temporary-resident permit to enter the country. If granted, the order would expire after one year. Byfuglien would have to apply for five consecutive years before he could try to get a lifetime pass.
Manitoba also upholds any driver's licence suspension imposed in the United States. In Manitoba, a conviction for refusing a test draws a two-year licence suspension.
Robinson has questioned whether Byfuglien would even go on trial if he weren't a public figure. He said Byfuglien may have been targeted and prosecuted because of his celebrity status or the colour of his skin.
Byfuglien's case comes on the heels of teammate Ondrej Pavelec's conviction in the Czech Republic for impaired driving.
The Jets' goaltender was arrested in May after crashing his BMW and found to have a blood-alcohol reading of 0.20. He pleaded guilty last month and was given a six-month suspended sentence and 20-month driving ban.
The hockey club only learned of Pavelec's arrest through media reports this week. Pavelec has since released a written apology.