Minnesota DWI Procedures

DWI Procedures in Minnesota - Common Answers

In the next few pages, Appelman, Olson & Kans, P.A. has outlined the Minnesota DWI law. This outline should be considered a synopsis of the law and not legal advice. Please take some time to read this information. Understand that your time spent educating yourself is crucial to playing an active role in your DEFENSE.

After you have reviewed this information, contact the criminal trial lawyers at Appelman, Olson & Kans, P.A. Our lawyers have over 40 years of combined criminal law know how. They will take the time necessary to ensure you understand your situation and precisely what defenses are available to.

Appelman, Olson & Kans, P.A.'s skilled criminal trial lawyers have the knowledge and experience to handle your situation. Call now for more information.

Minnesota Legal Limit is .08

On August 1, 2005, Minnesota adopted .08 as its legal limit.

If you are arrested for DWI and test at .08 you will be charged with and subjected to the Minnesota DWI laws.

DWI: Overview

DWI offenses have two separate problems: 1) criminal and 2) civil. Each of these problems have unique consequences that affect different areas of your life.

The criminal problem deals with the question: "What happens to you?" and involves such questions as:

Are you going to serve time in jail?

Are you going to be placed on probation? For how long? And under what conditions?

Do you need to obtain a chemical dependency evaluation?

Do you need to go through an alcohol/drug treatment program and aftercare?

Will you need to abstain completely from the use of alcohol?

Will you have to perform hours of community work service or serve days on the county work-crew?

Will you have to attend weekend DUI education classes?

The civil problem comprises three separate, yet interrelated consequences.

1. What happens to your driver's license (Driver's License Revocation/Cancellation)?

2. What happens to your license plates (License Plate Impoundment)? and

3. What happens to the vehicle you were driving when you were arrested for DWI (Vehicle Forfeiture)?

Appelman, Olson & Kans, P.A.'s skilled criminal trial lawyers have the knowledge and experience to handle your situation. Call now for more information.

DWI: Criminal Overview

The criminal characteristic of Minnesota's DWI offenses deals with such consequences as:

•1. Mandatory jail sentences - measured in days;

•2. Monetary consequences:

•a. Mandatory fines, surcharges (taxes), fees, and

•b. probation supervision fees;

•3. Permanent criminal record;

•4. Probation or parole;

•5. Chemical dependency evaluation and following the recommendations as to alcohol/drug treatment/education/aftercare;

•6. MADD victim impact panel;

•7. Various County based DWI clinics;

•8. Mandatory attendance at Alcoholics Anonymous;

•9. No use or possession of alcohol/Non-prescribed controlled substances;

•10. Random breath/urine testing to verify compliance with no use restrictions;

•11. Community work service hours;

•12. Sentence to Service (work crew) - measured in days;

•13. Electronic Home Monitoring;

Driving While Impaired - Elements

A crime is similar to a recipe. Much like recipes, which require specific ingredients, crimes require specific elements. For instance, if you wanted to make chocolate chip cookies, you would need the proper ingredients; flour, sugar, eggs, chocolate chips, etc. Similarly, if the state wants to prove someone guilty of a crime, the state must prove each and every element of the crime beyond a reasonable doubt.

To be convicted of a DWI in Minnesota, the state must prove the following ELEMENTS:

Defendant drove, operated, or physically controlled a motor vehicle on the roadways or boundary waters of the State of Minnesota;
Was under the influence of alcohol or a controlled substance; or
While driving with a blood alcohol concentration of 0.08 or more as tested within two hours of operating a motor vehicle.

The State of Minnesota has 4 degrees of DWI that relate to the varying seriousness of the DWI charge. The lower the offense the higher the degree (example: 4th Degree DWI is a misdemeanor offense whereas a 1st Degree DWI is a felony offense). The punishment to be imposed depends on the degree of the DWI conviction, prior DWI convictions or prior driver's license revocations as well as the presence of any aggravating factors.

Each degree is determined by the presence of "aggravating factors."If you have been charged with a DWI and one or more aggravating factors are present, then the state may increase, (or "enhance") the degree of offense to which you are charged.

Aggravating Factors

•Ø Driving with a blood alcohol concentration over .20;

•Ø Driving under the influence with someone under the age of 16 in the vehicle;

•Ø Driving a vehicle across a railroad stop arm while under the influence;

•Ø Having a prior alcohol related offense on your record within the last 10 years; and

•Ø Any prior alcohol related driver's license revocation.

Degrees of DWI:

1^st Degree (§169.24):

•(1) that the driver committed the [current DWI] violation within ten (10) years of three or more qualified prior impaired driving incidents; or

•(2) That the driver has previously been convicted of a felony DWI under this section.

Explanation: A person may be charged with 1^st Degree DWI if the current DWI is the person's 4^th DWI violation within the last 10 years or if the person has been convicted of a Felony DWI previously.

Corresponding Criminal Penalty

1^st Degree: Felony; if convicted, the defendant may be sentenced to imprisonment for not more than seven (7) years and less than three (3) years or to payment of a fine of not more than $14,000, or both.

If the current DWI offense is the Fourth DWI Offense within the last 10 years the Mandatory Minimum Jail Sentence is:

•o A minimum of 180 days of incarceration, at least 30 days of which must be served consecutively, a program of intensive supervision that requires the person to serve consecutively at least six days, or a program of staggered sentencing involving a minimum of 180 incarceration, at least 30 days of which must be served consecutively.

If the current DWI offense is the Fifth or Greater DWI Offense within the last 10 years the Mandatory Minimum Jail Sentence is:

•o A minimum of one (1) year of incarceration, at least 60 days of which must be served consecutively, a program of intensive supervision that requires the person to serve consecutively at least six days, or a program of staggered sentencing involving a minimum of 180 incarceration, at least 60 days of which must be served consecutively.

2^nd Degree (§169A.25):

•(1) a person is guilty of a second degree DWI if two or more aggravating factors are present; or

•(2) a person is guilty of a second degree DWI if they also violate 169A.20, subd. 2 (test refusal) and one aggravating circumstance was present when the violation was committed.

Explanation: A person may be charged with a 2^nd Degree DWI if: 1) the current offense includes two or more aggravating factors (examples two prior DWI convictions or driver's license revocations within the past 10 years; greater than .20 blood alcohol concentration test coupled with a prior DWI within the past 10 years; driving with a minor in the car while under the influence with a prior DWI within the past 10 years) or 2) the person is charged with Refusal and has a prior DWI within the past 10 years.

Corresponding Criminal Penalty

2^nd Degree: Gross Misdemeanor; if convicted, the defendant may be subject to the mandatory penalties in §169.275 and long-term monitoring in §169A.277.

If the current DWI offense is the Third Offense within the last 10 years the Mandatory Minimum Jail Sentence is:

•o A minimum of 90 days incarceration, at least 30 days of which must be served consecutively or a program of intensive supervision that requires the person to consecutively serve at least six days in a local corrections facility.

•o The court may order that the person serve not more than 60 days of the minimum penalty on electronic home monitoring or in an intensive probation program.

3^rd Degree (§169A.26):

•(1) a person is guilty of a third degree DWI if one aggravating factor is present; or

•(2) a person is guilty of a third degree DWI if they violate § 169A.20, subd. 2 (refusal).

Corresponding Criminal Penalty

3^rd Degree: Gross Misdemeanor; if convicted, the defendant may be subject to the mandatory penalties in §169.275 and long-term monitoring in §169A.277.

Explanation: A person may be charged with 3^rd Degree DWI if: 1) the current offense involves one aggravating factor (example: a prior DWI within the past 10 years; a blood alcohol concentration test in excess of .20; driving while under the influence with a minor in the car) or 2) the person is charged with Refusal.

If the current DWI offense is the Second Offense within the last 10 years the Mandatory Minimum Jail Sentence is:

•o A minimum of 30 days of incarceration, at least 48 hours of which must be served consecutively or eight hours of community work service for each day less than 30 days that the person is ordered to serve in a local correctional facility.

4^th Degree (§169A.27):

•(1) a person who violates § 169A.20, subd. 1, with no aggravating factors and without a violation of § 169A.220, subd. 2 (refusal), is guilty of a fourth degree DWI.

Explanation: A person may be charged with a Fourth Degree DWI if: The current offense involves no aggravating factors. Usually this is the person's first DWI on record, or the person has prior DWI convictions that are 10 years or more old. The person's blood alcohol concentration test must be less than .20.

Corresponding Criminal Penalty

4^th Degree: Misdemeanor; No mandatory penalties exist for a fourth degree DWI.

Test Refusal

Refusal to submit to a chemical test following an arrest for DWI is a separate criminal offense.

Refusal to submit to a chemical test has the following elements:

•1. Law Enforcement has probable cause to believe that someone drove, operated or was in physical control of a motor vehicle while under the influence of alcohol or controlled substance;

•2. Law Enforcement read the Minnesota Implied Consent Advisory to the suspected DWI offender; and

•3. The suspected DWI offender refuses to submit to a chemical test.

Law enforcement officials are required to read to any individual suspected of driving under the influence the Minnesota Implied Consent Advisory. The Implied Consent Advisory contains the following information:

•1. The officer suspects that you have driven, operated or been in physical control of a motor vehicle while under the influence (in violation of Minn. Stat. § 169A.20),

•2. The state requires you to take a test to determine your BAC,

•3. Refusal to take a test is a crime;

•4. Before submitting to a test you have a limited right to consult with an attorney.

•5. The right to consult with an attorney is limited to a "reasonable period of time."

•6. If you fail to contact an attorney, or refuse to make a decision about testing or if the test is unreasonably delayed, then you could be charged with the refusal to submit to a chemical test.

If you refuse to submit to a chemical test, after a lawful arrest for a DWI, the Department of Public Safety will revoke your driver's license for one (1) year.

Driving While Impaired: Civil Consequences

The second characteristic of Minnesota's DWI laws revolved around the civil "collateral" consequences to a DWI offense. The civil consequences of a DWI concern:

Driver's License Record and potentially increased automobile insurance rates (i.e. Risk Insurance).

Driver's license revocation or Cancellation,

License Plate Impoundment, and

Vehicle Forfeiture

If you submit to a chemical test and your blood alcohol concentration is above the legal limit of 0.08 or if you have refused to take a chemical test after being lawfully arrested for a DWI then you will have your driver's license revoked (or cancelled) for a legally defined period.

Loss of Driver's License:

Two notations are entered into a driver's license record:

•(1) The first notation states the date and blood alcohol concentration, or the first notation will state that the driver refused to submit to a lawfully requested chemical test; AND

•(2) The second notation, entered seven (7) days after the incident documenting that the person's driver's license is revoked or cancelled for a period of time.

Automobile insurance companies use these notations to cancel your current insurance and charge you RISK RATES (potentially an increase of $2,000.00 or more/year)!!!

Should your automobile insurance companies learn of their existence, (or specifically learn that your driver's license has been revoked or cancelled due to an alcohol related traffic offense) they will immediately cancel any current insurance and require any driver with these alcohol related notations to be placed on risk insurance, which will cost $2,500.00 to $5,000.00 more a year than what the driver is currently paying. In Minnesota, risk insurance rates can last up to five (5) years from the date of the incident.

Driver's License Revocation Information:

Revocation means that the Minnesota Department of Public Safety does not completely deny driving privileges to the DWI offender. Driver's can obtain a work permit under certain circumstances;

The following is a list of revocation periods relating to DWI arrest. Please contact our office for more information. Also visit www.mndriveinfo.org.

Periods of Revocation:

•o If the driver has no prior DUI convictions and no prior Alcohol Related Driver's License Revocations and the driver submitted to a blood alcohol concentration test:

•§ Provided the test was between .08 and .19 the period of revocation is 90 days;

•§ Provided the test result was over .20, the period of revocation is 180 days;

•o If the driver has one (1) prior DUI conviction or Alcohol Related Driver's License Revocation within the last 10 years and submitted to testing:

•§ Provided the test was between .08 and .19, the period of revocation is 180 days;

•§ Provided the test result was over .20, the period of revocation is one (1) year.

Periods of Revocation due to Refusal to submit to a Chemical Test:

•o If the driver has no prior DUI convictions and no prior Alcohol Related Driver's License Revocations and the driver refused to submit to a blood alcohol concentration test, the period of revocation is one (1) year.

•o If the driver has one (1) prior DUI conviction or Alcohol Related Driver's License Revocation within the last 10 years and Refused to submit to testing, then the driver's license is revoked for one (1) year.

Driver's License Cancellations:

•o Cancellation means that the Minnesota Department of Public Safety completely denies any driving privilege to the driver. The driver is not entitled to a work permit.

•o If the driver has two (2) prior DUI convictions or two (2) prior Alcohol Related Driver's License Revocations within the last 10 years, and the driver refused to submit to a blood alcohol concentration test, the period of Cancellation will be one (1) year.

•o If the driver has two (2) prior DUI convictions or two (2) prior Alcohol Related Driver's License Revocations within the last 10 years, and submitted to a blood alcohol concentration test

•§ Provided the test is between .08 and .19 the period of cancellation will be one (1) year;

•§ Provided the test is .20 or greater the period of cancellation will be cancellation will be two (2) years.

Petition for Judicial Review:

•o No later than 30 days from the date of the incident or date of revocation, a Petition for Judicial Review of the driver's license revocation must be filed. Failure to file a timely petition will prevent the matter from being heard before a judge.

•o Filing this petition ensures that the driver exercises their right to have a judge evaluate the legal basis for the state's revocation of the driver's license. The actual hearing before the court is called the "Implied Consent Hearing."

•o If the judge determines that the revocation is unlawful, then the two (2) notations entered into the driver's license record will be removed and the driver's license will be reinstated.

Vehicle Forfeitures

The Minnesota legislature has authorized the State to initiate forfeiture proceedings against vehicles that have been used in connection with certain 2^nd degree and 1^st degree DWI offenses, provided specific criteria are met. Although a driver views these forfeitures as additional punishment (recognizing the financial ramifications), the United States Supreme Court as well as the Minnesota Supreme Court has found these laws constitutional. The forfeiture of a vehicle is deemed a "civil collateral" consequence of certain DWI violations.

A vehicle may be forfeited if:

•¨ A driver is convicted of a First Degree or Second Degree DWI; or

•¨ A driver violates Minn.Stat. § 169A.20 (DWI statute) or an ordinance in conformity with it, and

•o The driver's license or driving privileges have been cancelled as inimical to public safety under section 171.04, subdivision 1, clause (10), and not reinstated; or

•o The driver's license is subject to restriction under section 171.09 (commissioner's license restrictions), which provides that the person may not use orconsume any amount of alcohol or a controlled substance.

•¨ A driver whose vehicle is being forfeited does have some options. You may be able to have the vehicle released from custody through surrendering the vehicle's title or posting a bond. Minnesota law allows for a driver to file a Petition for Judicial Determination (or review) of the forfeiture. However, in order to be heard by a District Court judge, you must file the petition within 30 days of service of a notice of seizure and forfeiture. If you do not file within 30 days, you will be deemed to have waived (given up) your right to petition for judicial review.

Potential Defenses to DUI Offenses:

Minnesota law provides for many defenses to the DWI offenses. Besides defenses such as challenging the validity of the stop and probable cause to arrest, the criminal trial lawyers at Appelman, Olson & Kans, P.A. are successful at litigating issues regarding the accuracy and legitimacy of the breath, blood or urine test or issues challenging the use of prior DWI convictions to enhance the current DWI charge.

Commonly litigated issues include:

Was the blood alcohol concentration test accurate? The breath test utilized in Minnesota is based on the principle of inferred absorption and is highly susceptible to contamination that will increase the reported result of any blood alcohol concentration test. Common causes of breath test contamination stem from:
1. Acid Reflux Disease or Gastro Esophageal Reflux Disease;
2. Inhalation and absorption of chemical fumes, i.e. paint, kerosene, any form of fuel, cigarette smoke, solvents or volatile chemicals;
3. Substances in the mouth at the time of testing, i.e. chewing tobacco, alcohol regurgitation, cigarette smoke.

Whether the police had the requisite reasonable suspicion to believe that criminal activity was afoot when the police stopped the vehicle;
Whether the police had the requisite probable cause to believe that the driver was under the influence when the police arrested the driver;
Did the police officer vindicate the driver's right to pre-testing advice from an attorney of the driver's own choosing;
Did the police officer satisfactorily inform the driver of his rights and obligations when making a decision about testing;
Did the police unlawfully coerce the driver into making a decision about testing;
Was the person actually driving, operating or in physical control of a motor vehicle at the time; and
Did the police prevent or deny the driver's ability to obtain an independent chemical test