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FAQ: Minnesota DWI

Minnesota DWI law is complicated — and some facts about the law might surprise you. Learn what you need to know about what counts as a DWI and what can happen to you if you are charged. More questions? Contact the Balmer Law Office today for a free, confidential consultation.

I was arrested for DWI. Why am I being charged with two crimes?

There are a couple of reasons you might see multiple charges on your ticket or complaint after an arrest for DWI. Minnesota, like most states, has two forms of Driving While Impaired. Impaired driving can be proven by blood alcohol content (BAC) — any BAC over .08 is automatically deemed impaired. The second way DWI can be proven is by the officer’s testimony or other evidence of your impairment — regardless of your BAC. This means that you can be convicted of DWI even though your BAC was less than .08. While you can be charged with the two forms of DWI, you can only be convicted and sentenced for one offense.

The second reason you might see multiple DWI charges is that you refused testing. Refusing Minnesota’s Implied Consent testing (the testing at the police station or hospital — not the roadside portable breath test) is a crime in and of itself. So you can be charged with test refusal and DWI. Remember, the State does not need to have BAC evidence to prove that your driving was impaired.

Learn more about Minnesota DWI laws and how the Balmer Law Office helps clients facing DWI charges.

Can I be arrested for DWI if I was only sleeping in my car?

The surprising answer is “yes”: you can be arrested for DWI even if you are only sleeping in your car. Under Minnesota DWI law a person can be convicted for DWI for merely being in “physical control” of a motor vehicle. It is not necessary to actually drive the vehicle. According to the Minnesota Supreme Court, “a person is in physical control of a vehicle if he has the means to initiate any movement of that vehicle, and he is in close proximity to the operating controls of the vehicle.” State v. Fleck, 777 N.W.2d 233 (Minn. 2010).

Can I refuse to take field sobriety tests in Minnesota?

Under Minnesota law you are NOT required to perform roadside or field sobriety tests. This includes the roadside preliminary breath test. Politely decline to perform the roadside tests. The purpose of these tests is to support the officer’s decision to arrest you. You should not assist the officer in building a case against you.

Do not confuse field sobriety tests with the implied consent chemical testing that takes place at a police station or hospital. Minnesota law requires that you submit a breath test. If a breath test is not offered then you have the choice to submit to either a blood OR urine test. Failure to submit to the implied consent chemical testing is a gross misdemeanor crime and will result in an automatic revocation of your driving privileges for one year.

How can a DWI/DUI attorney defend my case?

A DWI arrest gives way to at least two separate court proceedings — a criminal proceeding and a civil proceeding. Everyone knows about the criminal proceeding, but the civil proceeding can come as a surprise to many people. The civil proceeding relates to the status of your driver's license; it is commonly called an Implied Consent hearing. In some circumstances an additional civil proceeding may be initiated if the State seeks to seize and forfeit your vehicle. The Balmer Law Office defends and represents clients in all forms of DWI proceedings.

For both criminal and civil proceedings there are many issues that can result in a case being dismissed. A sample of these issues are as follows:

  • was the defendant either driving, operating, or in physical control of a motor vehicle?
  • was the officer’s stop supported by a reasonable articulable suspicion?
  • was the stop lawfully expanded? (e.g. if you were originally pulled over for speeding, did the officer have a separate, reasonable articulable suspicion that you were impaired?)
  • was the arrest supported by probable cause based on a totality of the circumstances?
  • was the implied consent advisory properly administered?
  • was the defendant’s right to counsel violated (i.e. was the defendant given adequate time to consult with a lawyer prior to implied consent testing)?
  • were testing procedures and protocol properly followed?
  • if implied consent testing was refused, was it reasonable? or was it an actual refusal?
  • was the defendant in custody at the time of his or her unwarned (pre-Miranda) statements?

A competent Minnesota DWI attorney can challenge these issues in a pretrial hearing. A favorable ruling often results in a dismissal of the charges. If the facts of your case are not sufficient to win a favorable issue in a pre-trial hearing, often a borderline issue can be used as a bargaining chip with prosecutors — either for a reduced charge or reduced sentence / fine.

Do I have a right to consult with an attorney before taking field sobriety tests?

Unfortunately there is no right to speak with an attorney before deciding whether to take roadside field sobriety tests. Under Minnesota law, you are under no obligation to take these tests. Simply politely decline to perform the roadside tests. The purpose of these tests is to support the officer’s decision to arrest you. You should not assist the officer in building a case against you.

You DO, however, have a right to speak with an attorney prior to taking the Implied Consent test at the police station or hospital. You must make a clear request to speak with an attorney. Police are required to provide you with a phone, but are not required to give you a private space or room to call an attorney. Additionally, you do have a right to call a non-attorney friend or relative for the purpose of obtaining an attorney’s phone number. Lastly, because alcohol metabolizes and dissipates in the body over time, the right to speak with an attorney is limited to a “reasonable” time.

What makes a DWI a felony?

A felony DWI carries a sentence of at least one year and a day. You can be charged with a felony DWI in Minnesota under two separate circumstances:

  1. The current offense is your fourth DWI (or other impaired driving offenses) within a rolling 10 year period of three prior offenses, or
  2. You have previously been convicted of a felony DWI (at any time in your life).

The maximum sentence for a felony DWI is seven years in prison and a $14,000 fine. Anyone charged with a felony DWI offense absolutely needs to the assistance of an experienced Minnesota DWI attorney.

What is a B-Card?

Simply put, a B-card is a restricted driver's license requiring the license holder completely abstain from alcohol or drugs. A B-card license is issued to a rehabilitated driver who previously had their license cancelled (not revoked) as inimical to (that is, a danger to) public safety. A violation of the no-use conditions results in an immediate cancellation of the driver's license as well as criminal penalties.

Why was my car seized / forfeited? How can I get it back?

Minnesota DWI forfeiture penalties are harsh and broad. Just a second DWI in a ten year period can result in the forfeiture of a vehicle. Worse, you don't have to be the driver to have your own car forfeited — you can simply have loaned your car to someone who committed a forfeitable DWI offense.

Under Minnesota law vehicles can be forfeited under the following circumstances:

  • A first or second-degree DWI offense
  • A DWI offense committed by someone whose driver’s license has been cancelled as inimical to public safety and not reinstated
  • A DWI offense committed by a B-card holder

There are defenses to DWI forfeitures. The laws are relating to forfeiture are complicated. If your vehicle has been seized by the police following a DWI offense, contact the Balmer Law Office for a free consultation.

What if I am under 21? Are there different penalties for underage DWI?

Those under the legal drinking age of 21 are still subject to Minnesota DWI laws. In addition, a “not-a-drop” drinking and driving law applies to those under 21. This law punishes underage drivers who had any amount of alcohol in their system while driving a motor vehicle. A conviction for a not-a-drop underage drinking and driving offense results in a 30 day license suspension for a first-time offense.

Extra administrative penalties apply for 16 and 17 year old drivers convicted of DWI. This is known as Vanessa’s law. A 16 or 17 year-old convicted of DWI will not be eligible for a driver's license until they turn 18. They will be required to repeat driver’s education and to drive with an instructor’s permit for three months after having their license reinstated.

Can I get a work permit if I have a DWI?

Maybe. A first-time DWI offender, with a low test reading (.15 or less), is eligible for a work permit after 15 days of revocation. A work permit allows a driver to drive between home and work/school during specific times of day.

If you’re not eligible for a work-permit you still have options for driving after a DWI license revocation. Drivers not eligible for a work permit may drive under a limited license with an ignition interlock device.

Are there mandatory minimum sentences for Minnesota DWI offenses?

Yes! A second DWI offense within a ten year period is subject to a 30 day minimum sentence. Under the DWI sentencing law at least 48 hours of the 30 day sentence must be served in custody (i.e. jail).  The remaining 28 days of the mandatory minimum sentence may be served under an electronic home monitoring program.

A third DWI offense within a ten year period is subject to a 90 day minimum sentence. At least 30 days of the 90 day sentence must be served in custody; the remaining 60 days may be served under an electronic home monitoring program.

A fourth DWI offense within a ten year period is a felony-level offense. A felony sentence of three years in prison must be imposed, but execution of the full sentence may be stayed (i.e. not served) at a judge’s discretion. If a prison sentence is stayed, a judge must order the offender to serve at least 180 days. At least 30 of the 180 days must be served in custody; the remaining 150 days may be served under an electronic home monitoring program.

Can I travel to Canada or other countries if I have a DWI on my record?

Maybe, but not without a lot of extra legal and administrative paperwork. Obviously, Canadian law governs admission and entry into Canada. If you have questions regarding your admissibility into Canada, contact the Balmer Law Office for a referral to a Canadian immigration attorney.

Have more questions about Minnesota DWI law? Contact the Balmer Law Office today for a free, confidential consultation about your case.

David Balmer

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David Balmer established the Balmer Law Office with one overriding goal: provide aggressive, high-caliber criminal and DWI defense for good people facing serious charges throughout the state of Minnesota. Read More

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