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A Minnetonka DWI Attorney Explains the Consequences when Children are Involved

Many drivers who are ultimately arrested under suspicion of driving while impaired (DWI) only get behind the wheel because they are confident they are clear-headed enough to drive safely. For many of these individuals, this can occur when children are in the car.

The unfortunate reality for many of these drivers is that they are over the legal limit. This could result in serious consequences not only because of the DWI offense but also due to the presence of the children.

If you have been arrested for a DWI with a child in the car, it is important that you seek legal help from DWI Attorney right away. The prosecutor will likely prosecute you with the full resources of the state behind them, so it is important that you have legal counsel on your side. Reach out to the attorneys of Gerald Miller as soon as possible to learn more.


What Constitutes a “Child” Under State Law

DWI attorney explains there are additional penalties that can attach to a DWI conviction if you have a child in the car at the time of your arrest. However, the term “child” could be open to interpretation. State law spells out that a child does not include every individual under the age of 18, however. In other words, there are legal minors that are not considered children for the purposes of DWI laws. According to DWI Attorney in Minnetonka, a child is considered to be anyone under the age of 16. That means there are no enhanced penalties for having 16- or 17-year-old passengers in the car with you at the time of your arrest.

There is an important exception to be aware of. Having a child passenger is only an aggravating factor in a DWI case when the driver is at least 36 months older than the child. In other words, a person charged with DWI will not face additional penalties if they are close in age to the child in their vehicle. The reason for this exception is that adults are generally in a position of trust when they have a minor in their vehicle. However, when the driver and passenger are within three years of age of each other, they are effectively peers.


DWI with a Child Passenger is Not a Separate Offense

There is not a separate criminal offense that is specific to driving while impaired with a child passenger. This approach differs from many states that treat the offense as its own separate crime. In Minnetonka, you will face a standard DWI charge if there is a child in the car at the time you are stopped. The important difference is that the penalties for your conviction could be much higher than normal. To understand why that is, it is important to review how DWI penalties work in Minnetonka.


Proving a DWI Case

The state has the same burden of proof in every DWI case regardless of the potential penalties. This offense is governed by Minnesota Statute Section 169A.20. According to the statute, it is unlawful to drive, operate, or be in physical control of a motor vehicle while impaired. This language is intentionally broad in order to apply not only to drivers but also to individuals in a position where they could drive the motor vehicle immediately.

The prosecution must also show a driver was impaired. The law provides prosecutors with seven different ways to establish that a driver was impaired by either alcohol or drugs. These options include:

  1. the person is under the influence of alcohol;
  2. the person is under the influence of a controlled substance;
  3. the person is under the influence of an intoxicating substance and the person knows or has reason to know that the substance has the capacity to cause impairment;
  4. the person is under the influence of a combination of any two or more of the elements named in clauses (1) to (3);
  5. the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.08 or more;
  6. the vehicle is a commercial motor vehicle and the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the commercial motor vehicle is 0.04 or more; or
  7. the person’s body contains any amount of a controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols.

DWI Attorney Explains Aggravating Factors

Every DWI case is bifurcated, which means it has two parts. First, the state must establish a driver is guilty of DWI. Next, they must make the case for the appropriate penalty for the conviction. In Minnesota, the penalties associated with most DWI arrests depend on the number of aggravating factors present.

The presence of aggravating factors are important. When no aggravating factors are present, a DWI arrest is treated as the lowest possible penalty. Each aggravating factor that is present will bump up the severity of the offense.

In Minnesota, the aggravating factors in a DWI case are found at Minnesota Statute Section 169A.03. These factors include:

  1. a qualified prior impaired driving incident within the ten years immediately preceding the current offense;
  2. having an alcohol concentration of 0.16 or more as measured at the time, or within two hours of the time, of the offense; or
  3. having a child under the age of 16 in the motor vehicle at the time of the offense if the child is more than 36 months younger than the offender.

Collateral Consequences from a DWI with a Child in the Car

You could face far more than just criminal charges for having a minor child in the car when you are arrested for DWI. Outside of your criminal case, your rights could be impacted in other legal proceedings as well.

Child Custody Issues

If you are the parent of the child that was in your vehicle at the time of your arrest, you could face consequences during the course of a child custody dispute. This is true whether you are in the midst of an ongoing custody dispute or if your custody issues are not currently ongoing.

Central to your legal rights related to your children is your fitness as a parent. If the court determines that you are unfit, you could lose visitation or even custody rights with to your minor children. An arrest for DWI with a child in the care could have devastating consequences if your divorce case is ongoing.


Immigration Consequences

There are also immigration consequences associated with a DWI arrest with a child in the car. If you are a lawful foreign resident living in the United States, a conviction for DWI could impact your immigration status. In some cases, your criminal record could be enough to result in deportation proceedings.


Employment Challenges

What’s more, a conviction for DWI with children in the car could also impact your ability to find or keep a job. Employers are entitled to discriminate against you due to your criminal record, and many employers will not hire someone convicted of DWI with children in the car. That makes it vital to your future employment prospects that you fight a conviction vigorously.

Your DWI conviction could also impact any professional licenses you might have. Professional DWI attorneys typically have the power to suspend or revoke these licenses based on a criminal conviction. While DWI charges are often not enough to cost a person their professional license, these bodies could take a DWI with a child in the car more seriously.


Talk to DWI Attorney Gerald Miller About Your DWI Arrest

The consequences of being arrested for DWI while you have a minor child in the car can be serious. There are penalties associated with any DWI offense, but these penalties are often heightened when children are involved.

You should never face the prospect of a DWI case on your own. The DWI Attorneys at Gerald Miller are here to advocate for you in your time of need. Contact us right away to discuss your options during a free consultation.


About the author

Gerald Miller

Gerald Miller is a top-notch and experienced DWI/DUI lawyer at Gerald Miller P.A. in Minneapolis, MN. He has more than 35 years of experience in Criminal Defense practice. He has also been a mentor to numerous DUI/DWI defense attorneys.

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