Driving While Intoxicated

If you or someone close to you is facing a drinking and driving charge it is important that you have at least a basic understanding of the DWI laws in the State of Minnesota.  This page has been designed to give you a basic overview of the common drinking and driving laws in the State of Minnesota.  In addition, you should find a qualified attorney that knows and understands these laws and how they will affect you.  At Ascheman Law, we we will make sure you understand the charges you face, and ensure that your rights are protected and that you receive the best possible resolution for your case.  If you have any questions and are in need of professional and effective legal representation, contact Ascheman Law now.  Remember, your first consultation is free. 


One portion of the laws relating to drinking and driving that you will want to understand are those that pertain to the different levels of DWI charges. While this website is designed to provide you with basic and essential information about DWI laws nothing can take the place of obtaining the legal assistance, advice and representation that you must have if you are facing criminal charges.

Some people who are charged with a DWI for the first time make the decision not to obtain the services of a Minnesota DWI attorney.  The penalties associated with a first time driving while intoxicated case are not minor.  Having an attorney by your side to ensure your rights are protected and that you receive the best possible outcome will help protect you now, and in the future.  If you end up getting charged with a future DWI, you can find yourself facing very stiff, and extremely serious penalties. 

There can be many potential costs when being charged with a DWI/DUI:
  • The cost of jail/ work release/ electronic home monitoring
  • Cost of getting your license reinstated
  • Potential forfeiture of your vehicle
  • Inpatient and outpatient treatment (at your cost)
  • Increased cost of health insurance
  • Being prevented from entering foreign countries
  • Difficulties changing or obtaining life/disability insurance

Drunk Driving Laws in Minnesota: How Drunk is To Drunk, and How Do They Know?

  • In Minnesota, any blood alcohol level of .08 or higher will subject you to conviction. However, your driving skills are affected from the first drink of alcohol. Your ability to pay attention, react, see clearly, maintain coordination, and make good choices are impaired with each drink.  If your driving is affected you can still be charged with a DUI even though you may have a blood alcohol level below .08.

How many drinks can I have before being over .08?

  • It is not the number of drinks alone that determines how high your blood alcohol levels are. Wine, beer, mixed drinks and hard liquor have different percentages of alcohol so it’s more important to focus on how much total alcohol you have consumed over a certain period of time. Additionally, your impairment and your blood alcohol levels are influenced by gender, age, weight, amount and type of food you have eaten, medications, and other factors.
  • The Minnesota Institute of Public Health publishes tables to help you estimate your blood alcohol content based upon several variables.

Do I have to take a blood, breath, or urine test if asked to do so by the police?

  • The answer is almost always “yes” because refusing to do so is considered a Gross Misdemeanor in Minnesota. If you refuse to take a test when you are stopped, your license may be revoked for at least a year.

I tested under the legal limit and I’m still charged with DWI, is that legal?

  • The answer is “yes”. A person can be charged and convicted even if their blood alcohol concentration is below the legal limit if the alleged improper driving conduct establishes that the driver is “under the influence” of alcohol.

How can the police find out whether a driver is under the influence?

  • Police typically use three methods of determining whether a driver is impaired:
    • Observation. A police officer will pull you over if you are swerving, speeding, driving too slowly, or failing to stop.
    • Sobriety tests. If you have been pulled over and the police officer suspects you have been drinking, you will probably be asked to get out of the car and stand on one leg, walk a straight line or recite the alphabet. If you do not do well on the tests, the officer may arrest you or ask you to take chemical tests to determine your blood-alcohol level.
    • Blood-alcohol level. The measurement of alcohol in your blood can be taken directly by drawing a blood sample or it can be calculated by applying a mathematical formula to the amount of alcohol in your breath or urine.

Important facts about when you can be charged:

  • You can be charged with a DUI even when your blood alcohol concentration (BAC) is below .08.
  • You can be charged for refusing to take the blood, breath, or urine test, even if you willingly submitted to the Preliminary Breath Test.  In most cases, refusing can be a higher charge than simply taking the test.
  • Driving operating or being in physical control of a motor vehicle means you were not simply a passenger in the vehicle, and/or you had access to the ignition key. If the vehicle’s keys are near you, and you can reach them and turn the vehicle on, you still could be determined to be in physical control of the vehicle.
  • A motor vehicle can include cars, trucks, commercial vehicles, motorboats, snowmobiles, ATVs, and motorcycles.  If it has a motor, they can charge you.
  • You can be be charged with a DWI/DUI even when your on a friend's property or your own property

Drunk Driving Laws in Minnesota: Criminal Charges: How does this happen?

The criminal case, the DUI, arises out of a stop, an arrest, and evidence being gathered, and whether your rights were preserved at all stages in the process.  Having a defense attorney at your side can help ensure that the all of your rights are protected.  The prosecution has the burden of proof in criminal cases.  It is your right to be presumed innocent, and it is up to the prosecution to prove otherwise.  

Initially:
  • In the criminal case, an officer has to have a "reasonably articulable suspicion" that a driver is doing something unlawful in order to stop the driver.
  • Next, an officer has to have probable cause to believe that the driver is in control of the motor vehicle and is under the influence while operating the motor vehicle in order to arrest the driver for DUI.
  • Finally, an officer has to collect evidence that proves beyond a reasonable doubt that the driver was driving under the influence in order for a driver to later be convicted of DWI.

Reasonably articulable suspicion is a lower burden to meet – simply weaving or crossing the traffic lines on the roadway could be sufficient. Probable cause requires a little more to meet: An officer will usually ask drivers to step out of their cars and walk a straight line, or touch their noses – these field sobriety tests are a means for an officer to determine whether there is probable cause to believe a driver is driving while impaired, and therefore whether the officer can arrest the driver.

Conviction:

  • At the trial, the State must prove beyond a reasonable doubt – the highest standard in the criminal justice system – that a driver is either under the influence of alcohol while driving or had a blood alcohol concentration of 0.08 or more while driving or as measured within two hours of driving.  The requirements to be convicted of the different degrees of DWI are listed below.

Drunk Driving Laws in Minnesota: Criminal Charges: Degrees

There are four degrees of DWI charges in the State of Minnesota.  Below is a brief description of each degree.

        Fourth Degree DWI

  • A Fourth Degree DWI is classified as a misdemeanor. A person operating a motor vehicle while intoxicated can be charged and convicted of a Fourth Degree DWI in situations in which such an individual has no other driving while impaired violations within ten years before the current case. In addition, there must have been no aggravating factors present and the driver cannot have refused to submit to the chemical test of the person’s blood, breath or urine. This is the lowest level of DWI charge that a person can face in the State of Minnesota.
  • If you are convicted of Fourth Degree DWI can face up to 90 days in jail and up to a $1,000 fine, the court may order you to attend an alcohol treatment program or class on how alcohol affects your body and your ability to drive.  In addition, civil penalties may cause you to lose your license to drive for at least 90 days. 

Third Degree DWI

  •  A Third Degree DWI is a gross misdemeanor. A person can be charged and convicted of a Third Degree DWI when that individual has had one prior driving while impaired violation or alcohol related driver’s license revocation within ten years of the present offense.  Even if an individual has no priors, he or she could still be charged with a Third Degree DWI if one aggravating factor, as defined by Minnesota law, was present at the time of the offense.  Aggravating factors can include having a young child in the car, or having a blood alcohol concentration above .20.
  • A person also can be charged with a Third Degree offense, if he or she elects to refuse to submit to the chemical test of the person’s blood, breath or urine.
  • If you are convicted of Third Degree DWI or Refusal to submit to chemical testing can face up to one year in jail and up to a $3,000 fine. At a minimum, you will have to spend 30 days in jail or eight hours community work service for each day less than 30 days that you are ordered to serve in jail. The police will probably take your plates and perhaps even your car.

Second Degree DWI

  • A Second Degree DWI is also a gross misdemeanor. A person can face being charged and convicted of a Second Degree DWI in the event that the individual has had two prior driving while impaired violations or alcohol related driver’s license revocations within ten years of the present offense. Even if an individual has no priors, he or she could still be charged with a Second Degree DWI if two aggravating factors, as defined by Minnesota law, were present at the time of the offense.  Aggravating factors can include having a young child in the car, or having a blood alcohol concentration above .20.
  • Alternatively, a person can also be charged with Second Degree offense, if he or she refuses to submit to the chemical test of the person’s blood, breath, or urine and one aggravating factor, as established by Minnesota law, was present at the time of arrest.
  • If you are convicted of Second Degree DWI or Refusal to submit to chemical testing can face up to one year in jail and up to a $3,000 fine.  Most likely you will either have: 1) a minimum of 90 days in jail, at least 30 days of which must be served consecutively in a local correctional facility or 2) a program of intensive probation which will include serving at least six days consecutively in a local jail. The police will likely take your car.

First Degree DWI

  • A First Degree DWI is classified as a felony in the State of Minnesota. A person will be charged with a First Degree DWI, if he or she has had three prior driving while impaired violations or alcohol related driver’s license revocations within ten years of the present offense. A person will also be charged with First Degree DWI, if he or she has been convicted of a prior Felony DWI at any time in the past. In addition, a person will be charged with First Degree DWI, if that individual has a prior conviction for a felony charge of criminal vehicular operation or criminal vehicular homicide. Aggravating factors are not taken into consideration.
  • If you are convicted of a first Felony DWI can face up to seven years in prison and up to a $14,000 fine.  Current laws require that you are sentenced to prison for at least three years and given a fine of not less than $14,000. If the judge decides to reduce the three-year term, there is still a mandatory minimum sentence of 180 days of incarceration, at least 30 days of which must be served consecutively.

Drunk Driving Laws in Minnesota: Implied Consent Hearings

Differences Between the Criminal DUI and Civil Implied Consent Cases

Every DUI/DWI event has a potential of two cases stemming from the incident – the criminal case, and a civil case arising out of the Implied Consent process.  There are important differences in the burden of proof the State has in each case and what the different time lines are for the criminal and civil processes.
  • The criminal case, the DUI, arises out of a stop, an arrest, and evidence being gathered, and whether your rights were preserved at all stages in the process. The civil case, the Implied Consent Proceeding, arises out of the Minnesota Implied Consent Law, and whether your rights were preserved at all stages of the Implied Consent portion of the DUI event. 
  • In the civil case, the burden of proof the State has is much lower than in the criminal case. The State must only prove by a preponderance of the evidence, which means simply that “it’s more likely true than not true,” that the driver violated the Implied Consent Law by not taking a chemical test.
As opposed to your rights in criminal court, in the civil Implied Consent case your rights are more limited. To find out if your rights have been preserved, it is important that you have a defense attorney review your case early.

Drunk Driving Laws in Minnesota: Driver's License

How long will I lose my driver’s License?

  • The length of revocation or cancellation of your driver’s license depends on many factors including your blood alcohol concentration, whether or not you took the test, the number of prior offenses, the length of time between offenses, and your age.  Generally, If it is your first offense and your blood alcohol concentration was under .16, your license will be revoked for 90 days.  
  • It is possible to appeal the license revocation through an Implied Consent Hearing, although there can be a lengthy delay in waiting for the court hearing.  It can also be difficult for a person to apply for a Implied Consent Hearing without the assistance of an attorney.  

When can I get a work permit (limited license)?

  • Whether you are eligibility for a work permit (limited license) depends upon numerous factors including, but not limited to, blood alcohol concentration, number of prior offenses, and whether or not you took the test. Typically, if it is your first offense and your blood alcohol concentration is under .16 then you can apply for a work permit 15 days after the expiration of your temporary license. For more information concerning your case, call Ascheman Law for your free consultation.

How do I get my license reinstated or get a work permit?

  • Generally, in order to have your license reinstated, or to get a limited license, you must follow the requirements established by the Department of Public Safety.  If this is your first offense, you will be required to pay the reinstatement fee of $680, make an application for a new license, and take a written test.

Drunk Driving Laws in Minnesota: What About My Vehicle?

Pursuant to the Minnesota motor vehicle forfeiture law, a law enforcement officer actually has the legal authority to seize the motor vehicle of a driver suspected of DWI at the time of the arrest.  Only the vehicle that was driven by the person suspected of driving while intoxicated is subject to forfeiture.  Following the seizure itself, the prosecuting attorney or its agent will serve notice of intent to seek a forfeiture of the motor vehicle.

You can face vehicle forfeiture under the following circumstances:

  • If you are convicted of a DWI while having sufficient aggravating factors present constituting a second or first degree DWI.
  • If you are convicted of a DWI and your Minnesota driving privileges were previously canceled as inimical to public safety.
  • If you are convicted of a DWI and at the time of the offense your Minnesota driver’s license had a B card restriction, which restricts the use or consumption of any amount of alcohol or controlled substance.

For more information, or to consult an attorney on your case - Feel free to contact our office for an initial consultation at no cost.  612-217-0077 or Landon@AschemanLaw.com