Minnesota’s DWI laws make it a crime:

1) to drive, operate, or be in control of any motor vehicle anywhere in the state while:

• under the influence of alcohol, a controlled substance, or (knowingly) a hazardous substance, or any combination of these;

• having an alcohol concentration (AC) of .08 (.08 means .08 percent alcohol concentration, which is 8/10,000ths by volume) or more at the time, or within two hours, of doing so;

• having any amount of a schedule I or II controlled substance, other than marijuana, in the body; or

• if the vehicle is a commercial motor vehicle, having an alcohol concentration of .04 or more at the time, or within two hours of the time, of doing so; or

2) to refuse to submit to a chemical test of the person’s blood, breath, or urine under Minnesota Statutes, section 169A.52 (implied consent law).

Criminal Penalty Enhancement

Criminal penalty enhancement is based on the number of aggravating factors present when the crime was committed:

• none: 4^th degree DWI, misdemeanor (maximum penalties: $1,000 fine, 90 days jail)

• one: 3^rd degree DWI, gross misdemeanor (maximum penalties: $3,000 fine, one year jail)

• two: 2^nd degree DWI, gross misdemeanor (maximum penalties: $3,000 fine, one year jail)

• three: 1^st degree DWI, felony (maximum penalties: seven years incarceration in prison, and $14,000 fine; See felony DWI section for detailed description)

Aggravating Factors

Include:

• a qualified prior impaired driving incident within the preceding ten years;

• an alcohol concentration of .20 or more upon arrest (measured within two hours); and

• presence of a child under age 16 in the vehicle, if more than 36 months younger than the offender.

Qualified Prior Impaired Driving Incident

Includes both:

• prior impaired driving convictions; and

• prior impaired driving-related losses of license (implied consent revocations) or operating privileges.

For separate driving incidents within the preceding ten years involving any kind of motor vehicle, including passenger motor vehicle, school bus or Head Start bus, commercial motor vehicle, airplane, snowmobile, all terrain vehicle, off-road recreational vehicle, or motorboat in operation.

Chemical Testing

Minnesota’s implied consent law assumes that a person who drives, operates, or is in control of any type of motor vehicle anywhere in the state has consented to a chemical test of breath, blood, or urine for the purpose of determining the presence of alcohol or controlled or hazardous substances in the person’s body. The testing is administered at the direction of a law enforcement officer when there is probable cause that the person has committed a DWI violation and the person:

• has been arrested for a DWI violation;

• has been involved in a motor vehicle crash;

• has refused to take the DWI screening test; or

• has taken the screening test and it shows AC of .08 or more.

To obtain probable cause, the officer generally, though not always, proceeds as follows:

• observes the impaired driving behavior and forms a reasonable suspicion of an impaired driving violation

• stops and questions the driver

• administers a standardized field sobriety test (SFST)

• administers a preliminary breath test (PBT)

        If, based on these screening tests, the officer has probable cause to believe that a DWI crime has occurred, he or she may arrest the person and demand a more rigorous evidentiary test of the person’s breath, blood, or urine. Before administering the evidentiary test, the officer must read the implied consent advisory statement to the person, explaining that testing is mandatory, test refusal is a crime, and the person has the right to consult an attorney before taking the test. If the evidentiary test is requested without the advisory being given, then the person may be criminally charged and prosecuted following test failure or refusal, but the various administrative sanctions cannot be applied.

        If the person is unconscious or unable to understand, consent is deemed not to have been withdrawn, and the chemical test may be administered (thus the term "Implied Consent")

        The officer chooses whether the test will be of the person’s breath, blood, or urine. A person who refuses a blood or urine test must be offered another type of test (breath, blood, or urine). Blood and urine tests are analyzed by the Bureau of Criminal Apprehension (BCA), with results available within about ten days. The BCA may certify chemical test results directly to the Department of Public Safety (DPS).

Administrative Sanctions

        Apart from any criminal penalties that may result from a DWI arrest, the law provides for three administrative sanctions, which can commence immediately upon arrest.

1) Administrative License Revocation (ALR)

        Whenever the implied consent law can be invoked during the arrest process, the person’s driver’s license can be withdrawn immediately following any test failure or test refusal. The person is given a seven-day temporary license to drive before the withdrawal becomes effective. The period of license withdrawal is as follows:

• 90 days for a person with no qualified prior impaired driving incident within the past ten years and no other aggravating factor was present in the current incident (reducible to 30 days upon DWI conviction for a first-time offender)

• six months, if violator is under age 21

• 180 days, if person has had a qualified prior impaired driving incident within ten years

• double the applicable period above, if the person was arrested with an alcohol concentration of .20 or more or while having a child under age 16 in the vehicle

• one year, if the person refused to submit to the chemical test of blood, breath, or urine (reducible to 90 days upon DWI conviction for a first-time violation)

• cancelled and denied indefinitely as inimical to public safety, pending treatment and rehabilitation for a third or more impaired driving violation within a ten-year period

        The person may appeal the administrative license revocation, either administratively to DPS, and/or judicially through the court. THE JUDICIAL APPEAL MUST BE FILED WITHIN 30 DAYS OF THE REVOCATION!

2) Administrative License Plate Impoundment

        A plate impoundment violation is an impaired driving violation involving an aggravating factor, such as any of the following:

• occurs within ten years of a qualified prior impaired driving violation by that person

• involves an alcohol concentration of .20 or more

• having a child under age 16 present in the vehicle

• occurs while the person’s license has been cancelled as inimical to public safety

        Plate impoundment applies to:

• the vehicle used in the plate impoundment violation,

• any vehicle owned, registered, or leased in the name of the violator, whether alone or jointly.

A plate impoundment order is issued by the arresting officer at the time of arrest and is effective immediately. The officer also seizes the plates and issues a temporary vehicle permit valid for seven days (or 45 days if the violator is not the owner).

The minimum term of plate impoundment is one year, during which time the violator may not drive any motor vehicle unless the vehicle displays specially coded plates and the person has been validly re-licensed to drive. Restrictions when selling or buying a vehicle during the impoundment period may occur.

Specially coded license plates—signifying to law enforcement that the regular plates have been impounded for an impaired driving violation—may be issued for the vehicle(s), provided that:

• the violator has a properly licensed substitute driver;

• a member of the violator’s household is validly licensed;

• the violator has been validly re-licensed; or

• the owner is not the violator and is validly licensed.

    It is a crime for a driver whose plates have been impounded to attempt to evade the plate impoundment law in certain specified ways, or for another person to enable such evasion.

3) Administrative Vehicle Forfeiture

    Minnesota’s DWI law provides for vehicle forfeiture for a designated license revocation or designated offense, which is typically the third DWI violation within a ten-year period, though with one or more enhancing factors, a person’s second-time or even first-time violation might qualify as well.

    DWI law defines “designated license revocation” as a license revocation or commercial license disqualification for an implied consent violation within ten years of two or more qualified prior impaired driving incidents.“Designated offense” includes a DWI violation in the first or second degree or involving a person whose license is cancelled as inimical to public safety or subject to B-Card (no alcohol) restrictions.

    The law provides that the arresting officer may seize the vehicle and requires that the prosecuting authority serve notice to the owner(s) of the intent to forfeit. The forfeiture is conducted administratively, unless within 30 days the owner appeals the forfeiture action by filing for a judicial determination of the forfeiture.

    A vehicle is subject to forfeiture under this law only if:

• it was used in the commission of a designated offense and the driver was convicted of that offense or failed to appear at trial on it, or

• it was used in conduct resulting in a designated license revocation and the driver either fails to seek administrative or judicial review of the revocation in a timely manner or the revocation is sustained upon review.

        Other vehicles owned by the offender are not subject to forfeiture. As a protection for an owner who is not the offender, the law states that a motor vehicle is subject to forfeiture only if its owner knew or should have known of the unlawful or intended use of the vehicle.

        Following completion of forfeiture, the arresting agency may keep the vehicle for its official use. However, the security interest or lease of the financial institution, if any, is protected, and the lienholder may choose to sell the vehicle at its own foreclosure sale or agree to a sale by the arresting agency. A proportionate share of the proceeds, after deduction of certain expenses, goes to the financial institution. The law provides similar protection to any innocent co-owner, as well.

Charging the Crime

        DWI violations may be charged by:

• citation (very rarely done, and only if a misdemeanor);

• tab charge when booking the person into jail; and/or

• complaint prepared by the prosecutor subsequent to arrest.

        In the case of a blood or urine evidentiary test, the officer typically tab charges the violator at the time of arrest for driving under the influence, which is one category of DWI crime. Then, at the person’s first court appearance, the prosecutor requests continuation of the charges, pending return of the test results from the state crime lab. If the test results indicate an alcohol concentration of 0.08 or more, the prosecutor is allowed to add additional charges orally at the person’s next court hearing. Any charging complaint that is subsequently prepared would include all relevant charges.

Mandatory Hold and Conditional Release Pretrial

        When a person is arrested for a first-degree (felony) or second-degree DWI crime, the person must be taken into custody and detained until the person’s first court appearance, at which time the court generally sets bail and specifies conditions of release. Unless maximum bail ($12,000 for gross misdemeanor DWI) is imposed, a person charged with any of the following offenses may be granted pretrial release from detention, but only if the person agrees to abstain from alcohol and to submit to remote electronic alcohol monitoring (REAM) involving at least daily breath-alcohol measurements. The offenses are:

• a third implied consent or DWI violation within ten years;

• a second violation, if under 19 years of age;

• a violation while already cancelled as inimical to public safety for a prior violation; or

• a violation involving an alcohol concentration of .20 or more.

        Further conditions apply to a person charged with four or more violation within ten years, including:

• impoundment of the vehicle registration plates, or impoundment of the off-road recreational vehicle or motorboat itself, if one was being driven;

• a requirement for reporting at least weekly to a probation officer, involving random breath alcohol testing and/or urinalysis; and

• a requirement to reimburse the court for these services upon conviction for the crime.

Chemical Dependency Assessment

        Every person convicted of DWI or a reduced charge must submit to a chemical use assessment administered by the county ($125 fee, plus $5 surcharge) prior to sentencing, or complete a private evaluation that is acceptable to probation and the court. The court must order the person to submit to the level of care recommended by the assessment, if the conviction is for a repeat offense within ten years or the conviction was for DWI with an AC of .20 or more.

Mandatory Minimum Sentences

        Upon conviction for DWI, repeat offenders are subject to mandatory minimum criminal penalties:

• second DWI offense within ten years: 30 days incarceration, at least 48 hours of which must be served in jail, with eight hours of community work service for each day less than 30 served

• third DWI offense within ten years: 90 days incarceration, at least 30 days of which must be served consecutively in a local jail/workhouse

• fourth DWI offense within ten years: 180 days of incarceration, at least 30 days of which must be served consecutively in a local jail/workhouse

• fifth DWI offense within ten years: One year of incarceration, at least 60 days of which must be served consecutively in a local jail/workhouse

For All Repeat Offenders

        The court may order that the person spend the remainder (non-jail portion) of the mandatory minimum sentence under REAM or on home detention.

An Alternative to the Mandatory Minimum Period of Incarceration

        The court may sentence the offender to a program of intensive probation for repeat DWI offenders that requires the person to consecutively serve at least six days in jail/workhouse and may order that the remainder of the minimum sentence be served on home detention.

Long-term Monitoring Required

        Long-term monitoring applies to most third-time DWI offenders and all those under age 19. When the court stays part or all of a jail sentence, the offender submits to REAM for 30 days each year of probation.

Felony DWI Penalties

        If a person is convicted of felony DWI and given a stayed prison sentence, then that person must be sentenced in accordance with the local sentencing provisions described in this section. (For more, see the Felony DWI section below.)

Intermediate Sanctions and Probation

        When sentencing a DWI offender, the court may impose and execute a sentence to incarcerate, or it may stay imposition or execution of sentence and:

• order intermediate sanctions without probation; or

• place the person on probation with or without supervision and under terms the court prescribes, including intermediate sanctions if prescribed.

        The term “intermediate sanction” includes but is not limited to jail, home detention, electronic monitoring, intensive supervision, sentencing to service, day reporting, chemical dependency and mental health treatment, restitution, fines, day fines, community work service, restorative justice work, and work in lieu of fines or restitution.

        For DWI convictions, the maximum period of the stay of sentence, is:

• two years, for a misdemeanor conviction;

• six years, for a gross misdemeanor conviction; and

• seven years, for a felony DWI conviction.

Felony DWI

        Minnesota criminal law defines the term felony to mean any crime for which incarceration of more than one year may be imposed. Under Minnesota’s new felony DWI law, a person who commits first-degree DWI is guilty of a felony and may be sentenced to:

• imprisonment for not more than seven years (unless the person has other prior criminal history);

• a fine of not more than $14,000;

• or both.

        A person is guilty of first-degree DWI if the person violates DWI law:

• within ten years of three or more qualified prior impaired driving incidents (defined as prior convictions or license revocations for separate impaired driving incidents); or

• has previously been convicted of a felony DWI crime (i.e., once a felon, always a felon).

        Unlike nonfelony DWI crimes, being arrested with a high alcohol concentration (.20 or more) and because of child endangerment are not defined as aggravating factors for felony DWI; instead, only qualified prior impaired driving incidents are considered.

        When sentencing a person for a felony DWI offense, the court:

• must impose a sentence to imprisonment for not less than three years; and

• may stay execution of this mandatory sentence, but may not stay imposition of this sentence or sentence the person to less than three years imprisonment.

        A person sentenced to incarceration in prison for felony DWI is not eligible for early release unless the person has successfully completed a chemical dependency treatment program while in prison.

        The court must also order that after a felony DWI offender is released from prison, the person must be placed on conditional release for five years, under any conditions that the commissioner of corrections opts to impose, including an intensive probation program for repeat DWI offenders. If the person fails to comply with the conditions of release, the commissioner may revoke it and return the person to prison.

        If the court stays execution of the mandatory prison sentence, then it must apply the mandatory penalties for nonfelony DWI offenses (jail and/or intensive probation, as described in a preceding section) and must order as well that the person submit to long-term alcohol monitoring and the level of treatment prescribed in the chemical dependency assessment. If the person violates any condition of probation, the court may order that the stayed prison sentence be executed.

        The Minnesota sentencing guidelines recommend a stayed sentence of 36 months, 42 months, and 48 months for a felony DWI conviction for a person with zero, one, or two criminal history points respectively, and a presumptive commit-to-prison with a criminal history score of three or more.

        To illustrate, a person convicted of felony DWI with seven qualified prior impaired driving incidents within the past ten years, but no other criminal convictions, would likely reach the threshold for a presumptive commit, as follows:

• three of those priors are used to establish the basis for enhancing the current DWI offense to a felony-level crime (but these cannot also be used to determine criminal history score)

• the other four priors—provided they involved DWI convictions—count as one-half criminal history point each, for a total of two points

• one criminal history point—a custody status point—would result from the current impaired driving incident occurring while the person is on probation for a prior impaired driving incident, as would almost certainly be the case in this example

        Thus, this hypothetical offender would have a criminal history score of three when facing sentencing on the current felony-level DWI offense; the person’s presumptive sentence under the guidelines would be to commit to prison for 54 months. With one less qualified prior incident during the preceding ten years, the guidelines would call for a presumptive stayed sentence of 48 months.

Limited Driver’s License – Work Permit

    A person whose driver’s license has been revoked for an implied consent violation or DWI conviction may apply for a limited license to drive:

• to and from a job, or for a job;

• to chemical dependency treatment;

• to provide for the educational, medical, or nutritional needs of the family; and/or

• for attendance at a postsecondary educational institution.

        However, the law requires a waiting period (i.e., hard revocation) before a suspended or revoked driver may apply for a limited license. The waiting period is:

• 15 days for a first-time implied consent or DWI violator;

• 90 days for a second-time or subsequent violator who complied with the AC test;

• 180 days for a second or subsequent-time violator who refused the test;

• one year for a person revoked for manslaughter or criminal vehicular homicide;

• if under the age of 18, for twice the applicable period above, with a minimum of 90 days;

• for twice the applicable period, if person’s AC was .20 or more at the time of violation; and

• an additional 60 days, if the license withdrawal involved use of the vehicle in commission of a felony crime or an injury accident involving failure to stop and disclose identity.

        Under a seldom-used program, a person whose driver’s license has been cancelled and denied for a third or more impaired driving incident (as inimical to public safety), may apply for a limited license, if:

• at least one-half the person’s required abstinence period has expired;

• the person has completed chemical dependency treatment and is regularly participating in a recognized abstinence-based support group; and

• the person agrees to drive a motor vehicle equipped with a certified ignition interlock device.

        Apart from this program, a limited driver’s license may not be issued at any time to a driver whose license is cancelled and denied for a third or more DWI violation (as "inimical to public safety").

Restricted Driver’s License – The B-Card

        Driver’s licensing law empowers the DPS to impose restrictions on a person’s license to “assure safe operation.” Under DPS rules, a person whose driver’s license has been cancelled and denied for a third or subsequent impaired driving violation, and who has successfully completed treatment and rehabilitation, may apply for a restricted driver’s license, a B-Card, provided that the person signs a sworn statement to never again consume any alcohol whatsoever (not even in a religious service, in medication, in any other manner or amount, irrespective of whether the act involves driving).

        Any violation of this “no alcohol” restriction results in immediate cancellation of the driver’s license.

        Under DPS rules, the minimum period of time for establishing rehabilitation for which the person must prove total alcohol abstinence, is:

• one year for the first rehabilitation,

• three years for the second rehabilitation, and

• six years for the third or subsequent rehabilitation.

        It is only following such rehabilitation that the offender may apply for a B-Card license.

        The “no alcohol” restriction of a person’s B-Card remains in effect and on the person’s driving record permanently. However, the “no alcohol” verbiage on the back of the driver’s license card may be removed upon request after ten years if there has been no repeat violation during that time.

Record Keeping

        Records of implied consent license actions and DWI convictions must be kept on the official driving record for at least 15 years, and in fact are being kept for a driver’s lifetime. However, a driver may request that a first-time violation involving an AC of .08 or .09 be purged from the driving record after ten years if there has been no repeat violation.

Driver’s License Reinstatement Fees

        Before becoming re-licensed to drive after the period of license withdrawal stemming from an implied consent violation or DWI conviction, a person must pass the license examination and re-apply for a driver’s license, and pay the $680.00 license reinstatement fee.

First-Time DWI Violator Using an Off-road Recreational Vehicle or Motorboat

        A violator who has no qualified prior impaired driving incident is subject only to the criminal penalty (a misdemeanor) and the loss of operating privileges for that type of vehicle.

The person is not subject to driver’s license revocation, mandatory chemical dependency assessment and treatment, mandatory conditions of release, long-term monitoring, the penalty assessment fee, or license plate impoundment.

        Any person arrested for a DWI violation involving an off-road recreational vehicle or motorboat and who has a qualified prior impaired driving incident on record is subject to the same administrative sanctions and criminal penalties as the person would be if arrested while driving a regular motor vehicle.

Commercial Vehicle Driving

        DWI law sets a lower per se alcohol concentration limit for driving commercial motor vehicles, 0.04 instead of 0.08, and implied consent law allows for a chemical test upon probable cause that the commercial vehicle driver has consumed any amount of alcohol whatsoever, also a stricter standard.

        A person who violates the 0.04 standard while driving a commercial motor vehicle is subject to a period of disqualification (one year for the first violation, and ten years for any subsequent violation) from commercial motor vehicle driving. The person would remain validly licensed to drive regular motor vehicles unless he or she also has violated regular DWI law by exceeding the 0.08 per se standard or by driving while impaired or with any amount of certain controlled substances in the body, in which case the person would be subject to the full range of applicable penalties and sanctions of regular DWI law.

        In addition, a commercial motor vehicle driver who incurs license revocation or cancellation for an impaired driving violation in a personal passenger vehicle receives no special dispensations from the sanctions and penalties that apply to other drivers—the person is prohibited from driving any type of vehicle until becoming validly relicensed to drive.

School Bus Driving

        DWI law provides an even stricter standard of zero tolerance for school bus driving, making it unlawful to drive a school bus when there is physical evidence in the person’s body of any amount of alcohol. In addition to criminal penalties, this also triggers cancellation of the person’s school bus driving endorsement and, upon conviction, disqualification of the person’s commercial driving privileges. However, as with other non-bus commercial vehicle DWI violations, the person remains validly licensed to drive regular motor vehicles unless he or she also has violated the higher standards of regular DWI law.

Flying Airplanes

        A special DWI law establishes a 0.04 per se standard for alcohol concentration while flying and also criminalizes test refusal. Violation is always a gross misdemeanor.

        It also is unlawful to fly within eight hours of any alcohol consumption—a zero-tolerance standard, but time limited. Violation is a misdemeanor.

Special Laws for Youth

        DWI laws apply equally to drivers of all ages. DWI violations require either evidence of impaired driving or an alcohol concentration of 0.08 or higher, or the presence of certain illegal substances in the person’s body, during or within two hours of the time of driving, operating, or being in control of a motor vehicle, broadly defined. However, two additional alcohol-related laws apply to youth under age 21.

        Drivers aged 16 and 17 years old who violate the DWI laws are under the jurisdiction of the adult court, not the juvenile court. They are subject to the full range of adult penalties and consequences.

        The drinking age law prohibits a person who is under the age of 21 from:

• consuming alcohol without parental permission and supervision;

• purchasing or attempting to purchase alcohol;

• possessing alcohol with intent to consume;

• entering a liquor store or bar for the purpose of purchasing or consuming alcohol; or

• misrepresenting one’s age for the purpose of purchasing alcohol.

        A violation of this statute is a misdemeanor and carries a mandatory minimum fine of $100. It does not result in suspension of the driver’s license unless the person has used a driver’s license, Minnesota ID card, or any type of false identification to purchase or attempt to purchase alcohol (90 days suspension).

Underage Drinking Driving – Zero Tolerance

        Minnesota’s DWI law provides misdemeanor penalties and driver’s license suspension for any driver under age 21 who is convicted of driving a motor vehicle anywhere in the state while consuming alcohol or while there is physical evidence of such consumption present in the person’s body. (This law applies only to the driver and not to any passengers.)

        A violation of the zero-tolerance—underage drinking and driving—does not in itself constitute a DWI/impaired driving violation nor can it be used as an enhancing factor for any subsequent DWI violation.

Criminal Vehicular Homicide and Injury

        Criminal law defines six levels of criminal vehicular operation (CVO)—all but one constituting felony offenses—depending on the level of injury inflicted:

• criminal vehicular homicide (causing death, but not constituting murder or manslaughter)

• great bodily harm (serious permanent injury)