What is the Penalty for DWI?

All DWIs have direct and indirect penalties. The first and second DWI are usually misdemeanors and any subsequent DWI charge is normally a felony. Aggravating circumstances, such as an injury collision, an open container in the vehicle, or a minor under 16 in the vehicle, could enhance the charges from a misdemeanor to a felony or from a regular felony to a much more serious felony. Indirect penalties include drivers’ license suspension and much higher insurance rates. In most cases, that license suspension could last a year or more and auto insurance rates could triple.

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Q: What Happens if I Get a 2nd DWI?

Technically, a second DWI is also a misdemeanor. However, the consequences are much more severe. The possible jail term is longer, which means any period of court-imposed supervision will be longer as well. Drivers’ license suspension length is longer, and impoundment of license plates is a real possibility. Minnesota has a ten-year lookback period. So, if Fred was convicted of DWI in 2010 and again in 2021, his 2021 DWI would be his first, as far as the legal proceedings are concerned.

Q: How Long Does DWI Stay on Your Record?

For employment purposes, most criminal convictions, including DWIs, fall off your record after about seven years. But for criminal law purposes, conviction records are permanent. Additionally, it is very difficult to expunge or seal DWI records. After ten years pass, the conviction is only usable for limited purposes. However, this black stain on your record normally never goes away.

How Can A Minnesota DWI Defense Attorney Help?

Substance abuse, mostly alcohol, marijuana, and prescription drugs, is a factor in almost half of the fatal car accidents in Minnesota. Over the past several decades, lawmakers have used this statistic as an excuse to pass tougher laws and authorize sweeping law enforcement techniques. As a result, in many jurisdictions, almost half the probationers were convicted of DWI.

Over the last half-century, the professional team at Gerald Miller, P.A. has successfully resolved thousands of DWI and other criminal law matters. Because of our experience, we identify important details that other lawyers might have missed. We use this attention to detail to secure

Reasonable Suspicion in a DWI

If the initial stop was illegal, usually due to a procedural defect, the state’s case collapses like a house of cards.

DWI Investigations

Police officers must amass sufficient, admissible evidence during this stage in order for DWI charges to hold up in court.

Refuting Chemical Test Results

You are not automatically guilty of DWI if you provided a chemical sample. The state must still establish guilt beyond a reasonable doubt.

The Way Out

If there is any weak link in this very long chain, our professional team can find it.

Reasonable Suspicion in a DWI

In Minnesota, reasonable suspicion, a standard which measures the amount of evidence officers must have to detain suspects, is essentially an evidence-based hunch that criminal activity is afoot. The Supreme Court has diluted this standard in recent years, most notably in 2014’s Heien v. North Carolina. However, the rule itself, which has existed since the 1960s, is still in place.

Any criminal activity will do. It need not have anything to do with driving under the influence of a substance, at least not initially. Indeed, the vast majority of DWI stops involve minor traffic violations. That could be a non-moving violation, like an expired license tag, or a moving violation, such as speeding. Even an obscure traffic code violation, such as failing the stop prior to exiting a private driveway or a license plate frame which obscures a tiny bit of the script, is sufficient.

Most people cannot travel more than a few blocks without violating at least one traffic law, especially if a police car is already tailing them.
The reasonable suspicion standard is quite low, but not everything qualifies. For example, when police cars follow them, many people move suspiciously. They gaze in the rear view mirror or significantly reduce speed. These movements, while suspicious, are not reasonably suspicious.

This rule also applies to informer’s tips. The informer could be a fellow police officer who radios ahead to report a suspicious motorist or a civilian tipster. Since the detaining officer did not see the defendant commit a traffic violation or other infraction, courts must ascertain the reliability of this information according to factors like:

Source of the Tip: Typically, police officer radio calls are presumptively reasonable, anonymous tips are generally unreliable, but under certain circumstances they can be deemed reliable. Everything else is somewhere in the middle.
Elapsed Time: Informer’s tips need to be acted on quickly. Generally, the officer would need to stop someone on a driving complaint within a short period of time after the complaint.
Specificity of the Information: A dark-colored SUV heading south on Highway 1 could refer to about half the vehicles on that roadway. A tip like a blue SUV headed south on Highway 1 is better. A tip like a blue SUV with a Minnesota license plate beginning with MD is best.

These tips stand or fall on their own. The state cannot work backwards. Prosecutors cannot argue that since the tip was accurate, it must have been reliable.

A quick word here about “whiskey plates.” These license plate numbers usually begin with WR, WS, WT, WX, or WY, and they always end with four numerals.

An enhanced DWI arrest usually triggers administrative license plate impoundment. Some aggravating factors include:

Prior DWI conviction or drivers’ license revocation within the last ten years.
BAC level of .16 or higher,
Minor under 16 in the vehicle, and

In certain situations, an individual must pay a special fee and use whiskey plates. Police officers cannot legally pull people over just because they have whiskey plates. But they can watch them more closely and may stop them for infractions that they might otherwise overlook.

At a traffic stop, or informer’s tip stop, officers look for physical evidence of alcohol consumption. Such evidence includes:

Erratic driving,
Bloodshot eyes,
Slurred speech,
Slow reflexes, and
Statements about alcohol consumption.

You have important Fifth Amendment rights in these situations. Drivers must present certain documents for inspection, like a drivers’ license and proof of insurance. They must also comply with basic commands, like “step out of the car.” Other than that, they need not answer any questions or do any tests the officer wants them to do.

A Minnesota DWI Defense Lawyer Explains DWI Investigations

Reasonable suspicion, the standard of evidence for the stop, is much lower than probable cause, the standard of evidence for the arrest. For example, circumstantial evidence like bloodshot eyes usually only proves consumption, at best. For DWI charges to hold up in court, police officers need additional evidence. In most cases, the field sobriety tests provide the necessary proof.

Most field sobriety tests are based on the scientific principle that a brain under the influence of alcohol is incapable of multitasking. Intoxicated individuals can understand and apply a set of instructions and they can walk a straight line, but they cannot do both at the same time.

Nevertheless, not all FSTs are scientifically approved. One example is Romberg’s balance test. This is the head back, arms extended, and eyes closed test. There are several variations of this test, such as the finger-to-nose add-on.

These tests don’t necessarily prove impairment, and in some situations they can hurt the state’s case. Romberg’s test relies on a number of very complex scientific principles, such as proprioception, ataxia, and vestibular function. Most police officers are unfamiliar with these concepts. If they cannot explain them to jurors, they may conclude that the police officer doesn’t actually understand the test and that they are not reliable.

Most police officers know that the Romberg test and other unapproved tests have little evidentiary value. But they make defendants perform them, so the defendant is mentally and physically fatigued when the officer administers approved tests. There are four such tests in Minnesota.

Horizontal Gaze Nystagmus

The DWI eye test is usually the first test administered, and it’s also usually the most critical one. As mentioned, defendants have a Fifth Amendment right to refuse to perform field tests.

During this test, officers have subjects track moving objects using only their eyes. If the subject’s pupils move involuntarily at certain viewing angles, the subject probably has nystagmus. And, alcohol intoxication causes nystagmus.

However, alcohol is not the only cause of nystagmus, a condition also known as lazy eye. In fact, alcohol is not even the leading cause of nystagmus.
Furthermore, the HGN test is only accurate if it’s conducted under controlled conditions. Roadside HGN tests do not feature controlled conditions. Typically, the sky is dark and flashing squad car lights dance in the distance.

Walk and Turn

The walking-a-straight-line test is perhaps the most recognizable DWI field sobriety test. Defendants must walk a straight line, heel to toe, forward and backward, without using their arms for balance.

Some intoxication clues include beginning the test too early, starting with the wrong foot, failure to walk heel to toe, taking the incorrect number of steps, and ending the test early.

Once again, test conditions play a role in the result. Very few surfaces are perfectly flat and level. Furthermore, it’s much easier to walk an actual line, like a parking lot stripe, as opposed to an imaginary line. Footwear is an issue as well. Unless the subject is wearing athletic shoes, it’s almost impossible to complete this test.

One-Leg Stand

The OLS is much like the WAT. Defendants must elevate one leg for about thirty seconds without swaying. Intoxication clues include holding the leg at the wrong angle, using arms for balance, and putting the leg down too early.

At trial, it’s not enough to show that the defendant “failed” the test. The state must prove, beyond a reasonable doubt, that the defendant failed the test because s/he was intoxicated, and not because s/he was sleepy, nervous, fatigued, or clumsy.

Portable Breathalyzer

Minnesota is one of the only states where officers administer these tests. These gadgets have a number of technical and scientific flaws, as outlined below.

DWI-drug cases often have a different dimension. Since there is no Breathalyzer test for drug use, at least not yet, prosecutors often use Drug Recognition Experts to bolster the evidence of intoxication.

DREs are not really “experts.” They are police officers who completed an additional certification course at a police-sponsored seminar. DREs usually testify that, based on the FST results and some physical symptoms, such as glassy eyes, the defendant was under the influence of drugs. These conclusions are dubious, at best.

Refuting Chemical Test Results

Minnesota lawmakers have enacted a per se DWI measure. Defendants whose BAC is above the legal limit are intoxicated as a matter of law. This provision makes it much easier for the state to establish guilt in chemical test cases. However, just because the readout was unfavorable, that does not mean the defendant is guilty. No scientific test is 100 percent accurate, and that includes chemical DWI tests.

Despite all its bells and whistles, the modern Breathalyzer is basically an updated version of the 1920s Drunk-O-Meter. Both these devices measure breath alcohol level to estimate blood alcohol content. Since it uses such ancient technology, the Breathalyzer has a number of scientific and technical flaws, such as:

Mouth Alcohol: If officers do not watch defendants closely in the fifteen minutes prior to the test, and they usually do not, the defendants could burp or vomit. If that happens, alcohol particles from the stomach gush into the mouth and skew the test results.
Calibration Failure: The more sophisticated the device is, the more technical maintenance it requires. Temperature is a good example. In Minnesota, the air temperature often changes rapidly. If the Breathalyzer is not calibrated along with the current air temperature, the test results are often wrong.
Unabsorbed Alcohol: Most alcohol flows from the stomach to the liver to the blood. So, if the defendant has been drinking within the last hour, much of that alcohol has not yet reached the bloodstream. So, the Breathalyzer’s BAC estimate could be artificially high.

Blood tests are much more accurate than breath tests. However, they are not 100 percent accurate either. Minnesota DWI lawyers can have a chemist perform a separate analysis. If these results are different from what the police technician found, the state could have a problem proving their case.

Furthermore, blood test results often involve procedural defenses. Police officers must normally have a valid search warrant to extract a blood sample. Additionally, if there is any gap in the sample’s chain of custody, a Minnesota DWI lawyer could question its validity in court.

Sometimes, chemical test results are irrelevant, whether they were accurate or not. That’s because a non-intoxication defense applies.

Not driving the vehicle is probably the most common such defense. Granted, in Minnesota, “driving” is basically synonymous with “operating.” If the defendant had the keys to a drivable car, even if the defendant was unconscious behind the wheel, DWI charges could hold up in court.

DWI collision cases are a special situation. By the time police officers arrive, the defendant has usually left the vehicle. So, officers cannot testify that the defendant was driving the vehicle, because they did not see the defendant behind the wheel. They can only testify that the defendant was intoxicated.

Furthermore, DWI is only illegal if the defendant was in a public place. Even if they have street names and traffic control devices, apartment complex and shopping mall parking lots are not public places.

The Way Out

Based on these three areas, there are three ways to successfully resolve a felony or misdemeanor DWI case in Hennepin County.

If the stop was illegal, the fruit of the poisonous tree doctrine applies. Anything that occurred subsequently, including failed FSTs or a failed chemical test, is inadmissible in court. It’s like these things never happened. As a result, the state’s case cannot go forward, because there is no evidence of guilt.

A similar analysis applies to probable cause matters. Typically, the judge determines whether or not the state’s evidence is sufficient in this area. If the evidence is insufficient, once again, the case cannot move forward. That’s why it is so important to assertively challenge the FST results.
The state could have sufficient reasonable suspicion and probable cause but the defendant might still be not guilty, because the evidence is insufficient to establish guilt beyond a reasonable doubt.

Essentially, this standard means there is no possible explanation other than guilty. The aforementioned DWI collision case is a good example.
It is possible that green men from Mars were driving the car and they flew away to their home planet before emergency responders arrived. However, that explanation is not reasonable.

An alternate driver theory is much more plausible, especially if there was another person in the car. That’s assuming the defendant did not voluntarily admit to driving the car, either to a police officer or another person involved in the crash.

If any one of these three defenses applies, a Minnesota DWI lawyer can usually successfully resolve DWI charges. That successful resolution could be a complete dismissal of charges, a not-guilty verdict at trial, or a plea to a lesser-included offense.

Contrary to popular myth, a plea bargain is not a surrender. DWI has significant collateral consequences. A lesser-included offense, like careless driving, does not have these same effects.

Only a knowledgeable and experienced MInnesota DWI defense Lawyer will be able to help you with effective defenses in a DWI-related case. Working with a disorderly conduct lawyer in Minnesota or a drug crimes lawyer in Minnesota may not bring you the desired results.

Minnesota DWI FAQs

DUI (driving under the influence) and DWI (driving while intoxicated) is the same offense. Both can be a misdemeanor or a felony which have severe direct and collateral consequences. The difference is largely a matter of perception. When someone says “under the influence,” many people think “one too many drinks.” If someone says “intoxicated,” many people think “drunk.” There is a significant difference between these two conditions.

A second DWI in a ten year period is a gross misdemeanor. However, the consequences are much more severe. The possible jail term is longer, which means any period of court-imposed supervision will be longer as well. Drivers’ license suspension length is longer, and impoundment of license plates is a real possibility. Minnesota has a ten-year lookback period. So, if Fred was convicted of DWI in 2010 and again in 2021, his 2021 DWI would be his first, as far as the legal proceedings are concerned.

Criminal records are permanent. Additionally, it is very difficult to expunge or seal DWI records. After ten years pass, the conviction is only usable for limited purposes. However, this black stain on your record normally never goes away.

Most jurisdictions have mandatory arrest policies. Once you are pulled over for DWI, officers will almost certainly arrest you, even if the evidence is quite weak. So, bonding out of jail is usually the first step. Once the case goes to court, there is usually a pretrial hearing to determine if the state has sufficient evidence to move forward. If that’s not the case, the judge throws the matter out of court. If the state has sufficient evidence, the prosecutor and your Minnesota DWI attorney normally negotiate an out-of-court settlement. If the parties are too far apart on the settlement terms, the case will go to a jury or bench trial. There, the state must establish guilt beyond any reasonable doubt.

All DWIs have direct and indirect penalties. The first and second DWI are usually misdemeanors or gross misdemeanors. Aggravating circumstances, such as a prior DWI conviction in the last ten years, a blood, breath or urine test result of .16 or higher, or a minor under 16 in the vehicle, could enhance the charges. Indirect penalties include drivers’ license suspension and much higher insurance rates. In most cases, that license suspension could last a year or more and auto insurance rates could triple.

Initially, the bond amount almost always depends exclusively on the severity of the offense. Typically, a misdemeanor DWI does not require a bond. Certain types of DWI’s have a mandatory $12,000 bail. The court has no discretion but to set bail in those situations. Felony DWI’s could be anywhere from $20,000 to $100,000 or more depending on other circumstances.

There are four degrees of DWI in Minnesota. 4th Degree DWI is a misdemeanor, both 3rd Degree DWI and 2nd Degree DWI are gross misdemeanors, and a 1st Degree DWI is a felony. The maximum punishment for 4th Degree DWI is 90 days in jail and/or a $1,000 fine. 2nd and 3rd Degree DWI’s are punishable by up to one year in jail and a $3,000 fine. 1st Degree DWI is punishable with prison time.

Most DWIs are misdemeanors or gross misdemeanors in Minnesota. Although the possible jail term is only one year, misdemeanor DWI has a number of very serious indirect consequences, such as drivers’ license suspension and much higher car insurance rates. Four DWI’s in a ten year period is a felony.

A prior DWI does not prevent people from obtaining a commercial drivers’ license. Using that CDL, however, is a different matter. Many companies will not hire people with any DWI within the last three years. Additionally, for independent contractors and owner-operators, many insurance companies significantly increase rates for people with any prior DWI, especially in the last three years. These higher insurance rates could mean it is impossible to make money as an independent truck driver.

Prosecutors normally file aggravated DWI charges if the defendant has a prior conviction or there are certain additional facts. Minnesota has a ten-year conviction lookback period. So, if the prior DWI conviction is more than ten years old, it is inadmissible for aggravated DWI purposes. Additional facts include a BAC level above .08, and a child passenger under 16.

DWI laws can be complex to understand. It is crucial that you consult a Minnesota DWI defense lawyer who has experience in handling cases similar to yours. Working with a motor vehicle & auto theft lawyer in Minnesota or a criminal vehicular operation attorney in Minnesota may not prove to be helpful in a DWI matter.

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