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A DWI Level 2 in Minnesota — more commonly known as 2nd Degree DWI — is a driving while impaired offense under Minnesota law. This offense carries the second-steepest penalties of any DWI charge in the state. While the potential penalties are steep, the good news is that DWI charges are frequently defensible.

With an aggressive defense strategy, you could avoid a DWI conviction at trial. In some cases, your attorney could see your 2nd degree DWI reduced or dismissed. Given what is at stake, it is crucial that you see out legal guidance immediately following a DWI arrest. To learn more about your defense options, contact the attorneys at Gerald Miller right away.

Elements of a DWI Offense in Minnesota

The state must establish the same elements of a DWI charge no matter what degree of DWI offense you might be facing. The burden of proving each of these cases is the same. Ultimately, the degree of a DWI offense only relates to the potential penalty you could face upon conviction.

To prove a 2nd degree DWI, the prosecution must first establish that the defendant was driving, operating, or in actual physical control of a motor vehicle. Actual physical control is a lower standard that involves a person that is capable of driving a vehicle at any moment, even if they are not operating one at the time of their arrest. Many drivers found to be in actual physical control of a vehicle are within the vehicle and in possession of the keys.

Circumstances That Demonstrate Intoxication

It is not enough to operate or be in control of a vehicle. A DWI also requires evidence that the driver was intoxicated at the time. State law provides seven different circumstances that the state can use to demonstrate intoxication. The prosecution only needs to establish one of these seven elements to make their case. The state can prove a driver was intoxicated if they can show that the driver:

  • The driver was under the influence of alcohol
  • The driver was under the influence of a controlled substance
  • The driver was under the influence of some type of intoxicating substance they should have known could cause impairment
  • The driver was under the influence of a combination of alcohol, drugs, or some other impairing substance
  • The driver’s blood alcohol concentration (BAC) was .08 or higher
  • The driver held a commercial license and had a BAC of .04 or higher, or
  • The driver tests positive for any schedule I or II controlled substance or metabolite

Out of the seven options, prosecutors most often rely on evidence of a BAC at or above .08. However, each of these elements is available to the state based on the facts surrounding your arrest.

Understanding Aggravating Factors

In addition to the underlying elements of the offense, the state must also provide evidence that your charge should be treated as a 2nd degree DWI. This evidence is known as an aggravating factor.

Aggravating factors can include driving with a BAC above .16, having a prior DWI conviction in the last 10 years, having a prior DWI-related license suspension in the last 10 years, or having a passenger under the age of 16 at the time of the offense. While not technically an aggravating factor, the refusal to submit to a chemical test can also be used to enhance a DWI charge.

The state will treat an offense as a 2nd  degree DWI if they can show you have two aggravating factors. The most commonly used aggravating factors are prior DWI convictions in the preceding 10 years.

A 2nd degree DWI is a gross misdemeanor under state law. If convicted, you could face up to one year in jail. What’s more, a conviction could also result in a fine of up to $3,000 as well. There is a minimum jail term of 30 days that comes with this offense, although the court can allow you to serve most of that sentence under house arrest.

Reach Out to an Attorney About Your DWI Arrest

If you’re asking what is a DWI Level 2 in Minnesota, you should know that the consequences of a 2nd degree DWI conviction are serious. You could not only face time behind bars but a substantial disruption of your life as well. Don’t face these charges alone. Contact the attorneys at Gerald Miller right away to get started on your defense.





Cody Wright

Cody Wright is a dedicated DWI/DUI lawyer at Gerald Miller P.A. in Minnesota. He ensures your voice is heard in a system that often discourages the accused from speaking up. He has received his law degree from Mitchell College of Law.


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