A police report, expected to be released in the next 48 hours will state Winnipeg Jets defenceman Dustin Byfuglien passed a breathalyzer test administered by Hennepin County Sheriff’s department police officers.

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A police report, expected to be released in the next 48 hours will state Winnipeg Jets defenceman Dustin Byfuglien passed a breathalyzer test administered by Hennepin County Sheriff’s department police officers.

Byfuglien submitted to a breathalyzer test but refused to provide a urine sample when asked, according his lawyer Mitch Robinson.

Jets forward Dustin Byfuglien


Jets forward Dustin Byfuglien

Byfuglien was arrested on suspicion of boating while impaired and refusing a test.

"The sheriff’s patrol officer, based on observations of Dustin, asked Dustin to take a preliminary breath test. The results of the preliminary breath test are not admissible in court and can only be used to substantiate further investigation. Dustin was cooperative and provided a sample of his breath and it came back at .03. That’s about a beer and a half in his system," said Robinson. "The legal limit in Minnesota is .08. So he’s well under the legal limit."

Robinson said Byfuglien was then placed under arrest and taken downtown.

"For whatever reason the officer felt he needed further chemical tests from Dustin. So he took Dustin into custody, placed him under arrest and transported him to the sheriff’s department and then asked him to take a urine test," said Robinson. "In Minnesota, it’s a crime to refuse to take a test when lawfully requested by a police officer to do so. Dustin had received bad advice and the advice he had previously received was to never take a test. That’s bad advice. He refused to take the test. If he would have taken a blood or urine test he could have definitely proved he was not under the influence of alcohol or a controlled substance. Once he refuses, that’s it, the officer fills out the paper work. You’ve refused and that’s in itself a crime. They don’t have to prove Dustin was intoxicated, they don’t have to prove he even had anything to drink. All they have to show is he was lawfully requested to take a test and he refused. So that’s what we’re dealing with now."

Byfuglien was originally stopped for operating his boat without navigational lights according to Robinson.

"It was around 8:15 which is when the sun sets around here at that time of year," said Robinson. "Was he technically operating his boat without lights after dark? I don’t know that yet."

Minneapolis criminal defence attorney Jeffrey Schiek told the Free Press on Tuesday there is limited grey area in refusal cases.

"If he refuses to give blood or urine, that’s the refusal part of the charge and it’s very difficult to defend a refusal because you have to establish extreme circumstances for a person to refuse. I’ll offer an extreme case but if somebody had a heart attack or something that would qualify as a reason to refuse," said Schiek, a partner at Bloomington based Villaume and Schiek

Steve Tallen, a Lake Minnetonka Conservation district attorney, gave his legal blessing Monday for the case to proceed. A spokesman in his office told the Free Press the file has now been put back in the hands of the Hennepin County sheriff’s office to formally lay the charge. That will likely be completed within the next month.

Byfuglien, 26, was first arrested Aug. 31 for "probable cause" and spent three hours in custody before he was released. Tallen received the file after the Labour Day long weekend and has been reviewing the evidence compiled by police to determine if there were sufficient grounds to bring the case to court. He had the option of dismissing the case or recommending it go forward, which he has now done.

"I’ve seen some of the different reports, but we really haven’t heard anything," said Jets’ GM Kevin Cheveldayoff at the Young Stars tournament in Penticton. "It’s a legal matter and those things take care of themselves."

The Jets are expecting Byfuglien to be at the opening of main training camp on Saturday at MTS Centre. In fact, Byfuglien was in Winnipeg on Monday looking for a place to live.

"We’ve had dialogue with himself and his agent but, again, all our dialogue has been essentially about the season and the on-ice stuff," Cheveldayoff said. "The off-ice stuff I really can’t comment on."

Byfuglien is an all-star who led all NHL defencemen last year in goals and helped guide the Chicago Blackhawks to the 2010 Stanley Cup before being traded to the Atlanta Thrashers in late June 2010.

-- with files from Ed Tait and Mike McIntyre