To Blow or Not to Blow – That is the Question.

It is stressful to be pulled over for any reason. The heart beats faster as the reds and blues flicker in the rear view mirror. If you were at a party, a happy hour, or even a friend’s house where alcohol was served, the feelings of regret may flood your mind as the officer approaches your car.  But, it is important to remain calm and, if you can, remember a few basic legal concepts.

Under Minnesota’s Implied Consent Law, any person who operates a motor vehicle is required to consent to the testing of breath, blood, or urine when requested by an officer who believes you may be under the influence of alcohol or drugs. But is there a circumstance where you should refuse?  If so, when? Read on to learn about Minnesota’s DWI charges and the associated repercussions.

Driving While Impaired (DWI) in Minnesota

Minnesota Statutes (MN Stat § 169A.20) state that it is a crime for any individual to be in control of any motor vehicle within this state when:

  • The person is under the influence of alcohol
  • The person is under the influence of a controlled substance
  • The person is under the influence of an intoxicating substance, and the person knows or has reason to know that the substance can cause impairment
  • The person is under the influence of a combination of any two or more of the substances named above
  • 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
  • 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
  • The person’s body contains any amount of controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinol

First-Degree

An individual charged with first-degree driving while impaired is guilty of a felony. A first-degree driving while impaired charge can be issued if this is the fourth impaired driving incident within ten years, there’s a previous felony DWI charge, or a criminal vehicular operation conviction. The individual can face up to seven years in jail, fines up to $14,000, or both. (MN Stat § 169A.24)

Second-Degree

An individual charged with second-degree driving while impaired faces a gross misdemeanor. A second-degree driving while impaired charge can be issued with test refusal and one aggravating factor or with two aggravating factors*. The individual can face up to one year in jail, fines up to $3,000, or both. (MN Stat § 169A.25)

Third-Degree

An individual charged with third-degree driving while impaired is guilty of a gross misdemeanor. A third-degree driving while impaired charge can be issued with test refusal or one aggravating factor*. The individual can face up to one year in jail, fines up to $3,000, or both. (MN Stat § 169A.26)

Fourth-Degree

An individual charged with fourth-degree driving while impaired faces a misdemeanor. A fourth-degree driving while impaired charge does not entail a test refusal or any aggravating factors*. The individual can face up to 90 days in jail, up to $1,000 in fines, or both. (MN Stat § 169A.27)

*Aggravating Factors

Under Minnesota law, aggravating factors include:

  • Qualified impaired driving incident within ten years prior
  • AC of .16 or more upon arrest
  • Presence of a child under 16 in the vehicle, if more than 36 months younger than the offender

Minnesota’s Implied Consent Law

Any individual that drives, operates, or controls any motor vehicle in Minnesota consents to a breath, blood, or urine chemical test to determine the presence of alcohol or other intoxicating substances in the person’s body. The United States and Minnesota Supreme Courts state that an officer does not need a warrant for a breath sample but does need a warrant for a blood or urine sample. However, probable cause must exist before an officer can require a breath test or obtain a warrant for a blood or urine sample.

Probable cause is a legal determination. Initially, that determination is made by the arresting police officer or officers. Then, with experienced representation, the officer’s decision can be challenged during court proceedings.

While you cannot control what the officer does during the stop, you can control your own actions and decisions. Your actions and decisions can greatly affect your case outcome – for better or worse.

Here are a few things officers routinely rely upon to establish probable cause to arrest (and how your decisions/actions/words can influence the officer’s assessment of the situation).

1. Observed impaired driving behavior resulting in reasonable suspicion (do not admit to bad driving, that you were speeding, or weaving) 

Example: “Do you know why I pulled you over.” Answer: No. 

2. Stop and question the driver at the driver’s window 

Example: “It’s 2 a.m., where are you coming from?”  Answer: Here is my driver’s license and registration. 

Do not say: “Gee officer, I’m coming from the Pour House and I was definitely speeding after I had 6 drinks tonight”. 

3. Standardized field sobriety test (SFST)

DO NOT TAKE FIELD SOBRIETY TESTS. They are voluntary. There is no legal repercussion for respectfully refusing the field sobriety tests. The field sobriety tests give the officer more information to arrest you.  You can, and should, 

4. Preliminary breath test (PBT) a/k/a Portable Breath Test

If the individual refuses the roadside tests and the PBT, there is no legal consequence. Except that the officer will then have less information upon which to decide whether to arrest the driver or not. If the officer decides to arrest, the officer will demand the official breath test at the station. Before requesting the official breath test via the Datamaster machine at the station, the officer must read the implied consent advisory statement to the individual. (MN Stat § 169A.51)

Examples of Breathalyzer Refusal

As a Minnesota driver, you are legally required to take the test or you can be charged with the crime of test refusal, a gross misdemeanor. However, you can still refuse the official breath test.  There are limited circumstances when a refusal charge is a preferred option to a higher level offense if you take the test.

A test refusal charge can result if you engage in any conduct that prevents or hinders the collection of a blood alcohol concentration sample, Minnesota law allows you to be charged with test refusal. (MN Stat § 169A.52) Below are examples of scenarios that can constitute refusal:

  • Failing to follow the officer’s instructions
  • Belligerent and unwarranted actions that detract from testing
  • Openly refusing to submit
  • Failing to provide two separate valid tests
  • Putting breath mints in your mouth before the test
  • Blowing around the mouthpiece instead of into it
  • Prolonged silence after the officer’s instructions

Minnesota officers are also not required to let you take a test after you’ve previously refused unless refusal happened immediately and didn’t delay initial administration. The arresting officer can let you take a test after a previous refusal, but it’s not legally required.

Understanding the Consequences

You have the right to refuse to submit a breathalyzer test if the arresting officer suspects you are under the influence. However, that doesn’t mean you’ll be released from the scene. Under Minnesota’s Implied Consent Law, individuals who refuse to submit warrantless breath evidence may endure harsher punishments. Below, Frank has been placed in two scenarios, one where he submits to a breathalyzer test and one where he refuses a breathalyzer test. Read on to learn what Frank’s consequences are in each scenario.

  • Submit to Testing: Frank willingly submits to a breathalyzer test, revealing he is over the legal driving limit with a BAC of 0.09. Frank is arrested and charged with a 4th degree DWI, which is a misdemeanor in Minnesota. Frank faces the consequences of up to 90 days in jail, fines up to $1,000, and losing his driver’s license for 90 days.
  • Refuse to Submit to Testing: Frank is pulled over under the suspicion of driving over the legal limit but refuses to submit to a breathalyzer test. The arresting officer has noticed Frank smells of alcohol, has bloodshot eyes, and slurred speech. Frank is placed under arrest for drunk driving and is charged with a 3rd degree DWI, which is a gross misdemeanor in Minnesota. Frank faces the consequences of up to one year in prison, fines up to $3,000, and losing his driver’s license for a minimum of one year if he’s found guilty.

But, is there ever a circumstance one should refuse the official test? YES! There are certain (although rare) circumstances where a refusal charge may be legally preferable to a higher level DWI charge with aggravating factors.

Contact a Powerful Minneapolis DWI Defense Lawyer Today

Have you been arrested and charged for driving while intoxicated? Mistakes happen, and a DWI charge shouldn’t change your life forever – especially if it’s your first offense. Without proper representation in court, a DWI charge can impact everyday life substantially. Criminal defense attorney Lauren Campoli is aware of the necessity of an experienced lawyer is for your DWI charge. She’s here to help you navigate your case’s legal complexities and assist you in reaching the best possible outcome while maintaining your driver’s license (yes, this is possible in many cases). To see how Lauren Campoli can help you, call the Law Office of Lauren Campoli at (612)-810-0060 or complete our online form now  or book an appointment to get the help you need and deserve.