Topic:
DRUNK DRIVING;
Location:
DRUNK DRIVING;

OLR Research Report


November 3, 2003

 

2003-R-0772

MINNESOTA DRUNK DRIVING LAWS

By: Christopher Reinhart, Associate Attorney

You asked about the penalties and license suspensions for drunk driving in Minnesota.

SUMMARY

Minnesota has four degrees of driving while impaired (DWI) crimes, with the penalties for impaired driving or refusing a chemical test depending on the offender's previous DWI convictions, his blood alcohol content (BAC), and whether a child was in the vehicle at the time. Penalties range from a misdemeanor punishable by up to 90 days in prison for the 4th degree crime to a felony punishable by up to seven years in prison for the 1st degree crime. The 1st degree crime also has a (1) three-year minimum prison term, other mandatory provisions apply if the court stays it and (2) five-year conditional release period after leaving prison, with the person subject to re-incarceration for violating the release conditions.

Different mandatory prison sentences apply based on an offender's previous convictions. Courts can depart from these penalties for second-time offenders and they have options of reducing the prison term with use of home detention, an intensive probation program for repeat DWI offenders, or a staggered sentencing program. When the mandatory provisions do not apply, the court can stay an offender's sentence if the person submits to a level of care as determined by a chemical use assessment.

Under the implied consent law, a person's license is revoked if a police officer had probable cause to believe the person was driving while impaired and the person refused a BAC test or had a test resulting in a BAC of at least .10. The revocation is effective when the public safety commissioner or police officer notifies the person of the intention to revoke and of revocation. A police officer can serve immediate notice on a person who refuses a test or has a BAC of at least .10 and must (1) take the person's driver's license or permit and send it to the commissioner and issue a temporary license that is effective for seven days or (2) invalidate the driver's license or permit. A person can request administrative or judicial review of the revocation.

The public safety commissioner must revoke a person's driver's license for conviction of DWI or test refusal. The revocation period varies, depending on the offender's prior convictions, from 30 days to at least two years, with a requirement of rehabilitation in some cases before issuing a new license and doubling the revocation period for a BAC of .20 or higher.

In certain circumstances, the public safety commissioner must order impoundment of an offender's registration plates and vehicles used in certain DWI offenses are also subject to seizure and forfeiture (Minn. Stat. 169A.01, et seq., as amended by 2003 1st Special Session, chapter 2).

We do not discuss specific provisions for alcohol-related school bus or Head Start bus driving, underage drinking and driving, and commercial driving.

DRIVING WHILE IMPAIRED CRIMES

Under Minnesota law, a person commits driving while impaired (DWI) if he drives, operates, or has physical control of a motor vehicle while:

1. under the influence of alcohol or a controlled substance;

2. knowingly under the influence of a hazardous substance that affects the nervous system, brain, or muscles to substantially impair the person's ability to operate the vehicle;

3. under the influence of any combination of alcohol, controlled substances, or hazardous substances;

4. he has a BAC of at least .10 at the time or within two hours of operating or having physical control of the vehicle; or

5. he has certain controlled substances in his body (Minn. Stat. 169A.20).

It is also a crime to refuse to submit to a blood, breath, or urine test under the implied consent law.

1st Degree—Minn. Stat. 169A.276

A person commits the 1st degree crime if he drives while impaired or refuses a BAC test and:

1. it is within 10 years of at least three prior impaired driving convictions or license losses (this includes DWI related crimes, operating certain other vehicles while impaired, DWI juvenile adjudications, and similar Minnesota ordinances or statutes or ordinances in other states), or

2. he already has a 1st degree DWI conviction.

This is a felony punishable by up to seven years in prison, a fine of up to $14,000, or both (Minn. Stat. 169A.24). There is a three-year mandatory minimum prison term that the court can stay but it must impose a sentence of at least three years (other mandatory provisions then apply and long-term monitoring provisions may apply). A person convicted of this crime is not eligible for release under certain statutes unless he completes a chemical dependency treatment program while in prison.

The court must order that the person be placed on conditional release for five years after his release from prison and the corrections commissioner can impose any appropriate conditions, including completing an intensive probation program for repeat DWI offenders. (Some counties have these programs providing for stages of supervision, starting with incarceration and then decreasing involvement. They require the person to seek employment and to undergo alcohol and drug testing.) If the person fails to comply with any conditions, the commissioner can order the person to serve all or part of the remaining conditional release term in prison. The commissioner must require the person to pay as much of the supervision costs as possible.

2nd Degree—Minn. Stat. 169A.25

A person commits the 2nd degree crime if he drives while impaired and at least two of the following apply to the offender or he refuses a BAC test and one of the following applies:

1. he has a prior impaired driving conviction or loss of license in the last 10 years,

2. he had a BAC of .20, or

3. he had a child under age 16 and more than 36 months younger than the offender in the vehicle at the time of the offense (Minn. Stat. 169A.03).

This crime is a gross misdemeanor punishable by up to one year in prison, a fine of up to $3,000, or both. Mandatory penalties apply and long-term monitoring may apply (both are described below).

3rd Degree—Minn. Stat. 169A.26

A person commits the 3rd degree crime if he drives while impaired and one of the following applies to the offender:

1. he has a prior impaired driving conviction or loss of license in the last 10 years,

2. he had a BAC of .20, or

3. he had a child under age 16 and more than 36 months younger than the offender in the vehicle at the time of the offense (Minn. Stat. 169A.03).

A person also commits the 3rd degree crime if he refuses a BAC test.

This crime is a gross misdemeanor punishable by up to one year in prison, a fine of up to $3,000, or both. Mandatory penalties apply and long-term monitoring may apply (both are described below).

4th Degree—Minn. Stat. 169A.27

A person commits the 4th degree crime if he drives while impaired. This crime is a misdemeanor punishable by up to 90 days in prison, a fine of up to $1,000, or both.

MANDATORY PENALTIES—MINN. STAT. 169A.275

Minnesota law imposes mandatory penalties when a person has committed certain DWI-related offenses in the past.

Second Offense

If a person is convicted of impaired driving or test refusal within 10 years of a prior impaired driving conviction or license loss, the law imposes a mandatory (1) 30 days in prison, with at least 48 hours consecutively or (2) eight hours of community service for each day less than 30 days in prison.

The court can depart from these requirements, on motion of the prosecutor or the court, if substantial mitigating factors exist. The court can also disregard the requirements if the defendant accepts probation and participation in an intensive probation pilot program for repeat DWI offenders.

Third Offense

If a person is convicted of impaired driving or test refusal within 10 years of two impaired driving convictions or license losses, the law imposes a mandatory:

1. 90 days incarceration, with 30 days served consecutively (with an option of up to 60 days on home detention or in an intensive probation pilot program for repeat DWI offenders), or

2. participation in an intensive probation pilot program requiring at least six days in prison.

Fourth Offense

Unless sentenced for 1st degree DWI, if a person is convicted of impaired driving or test refusal within 10 years of three impaired driving convictions or license losses, the law imposes a mandatory:

1. 180 days in prison with at least 30 consecutively (with the option of up to 150 days of the sentence on home detention or in an intensive probation pilot program);

2. participation in an intensive probation pilot program requiring at least six days in prison; or

3. staggered sentencing program (see description below) with at least 180 days in prison and at least 30 days consecutively.

Fifth Offense or More

Unless sentenced for 1st degree DWI, if a person is convicted of impaired driving or test refusal within 10 years of four or more impaired driving convictions or license losses, the law imposes a mandatory:

1. at least one year in prison with at least 60 days consecutively (with an option of intensive probation using an electronic monitoring system or, if unavailable, home detention);

2. participation in an intensive probation pilot program requiring at least six days consecutively in prison; or

3. staggered sentencing program (see description below) with at least one year in prison and at least 60 days consecutively.

Staggered Sentencing

This procedure allows the court to sentence someone convicted of 1st, 2nd, or 3rd degree DWI to a prison term to be served in equal segments in three or more consecutive years. Before subsequent prison segments, the offender is regularly involved in a structured sobriety group (like Alcoholics Anonymous). The offender can request a stay of the next segment before the sentencing judge if he has spent 30 days in a remote electronic alcohol monitoring program supervised by his probation agent. The court can stay subsequent segments of monitoring or incarceration but it must consider monitoring results, the probation agent's recommendations, and any other relevant factors. If the court stays a segment, that portion is added to the total days the offender is subject to serving in custody if he later violates the conditions of the stay.

ASSESSMENT REPORT AND LEVEL OF CARE

In all cases except for 1st degree DWI convictions, the court must order the person to submit to the level of care recommended in the chemical use assessment if the person had a BAC of .20 or if the incident occurred within 10 years of a prior impaired driving conviction or license loss. County or regional alcohol safety programs make chemical use assessments and report to the court and public safety department. They

evaluate the person's traffic record, characteristics and history of alcohol and chemical use problems, and amenability to rehabilitation through the program. They recommend a level of care, appropriate remedial action, or care such as education, counseling, or treatment for mental health concerns (Minn. Stat. 169A.70).

Except as required by the mandatory provisions above, the court can stay a sentence if the person submits to the level of care recommended in the chemical use assessment report. If the court does not follow the recommendation, it must state its reasons for not doing so on the record (Minn. Stat. 169A.283).

LONG-TERM MONITORING—MINN. STAT. 169A.277

In certain circumstances, the court must require a person to have electronic alcohol monitoring, if available, in addition to other probation conditions or incarceration when it stays a sentence. The monitoring must be for at least 30 consecutive days for each year of probation and the person must pay some or all of the monitoring costs according to his ability.

Among others, this applies to someone convicted of driving while impaired or test refusal within 10 years of at least two prior impaired driving convictions.

OTHER PROVISIONS

The court can impose an additional penalty assessment of up to $1,000 for a conviction when a person had a BAC of .20 or higher (Minn. Stat. 169A.285). A chemical dependency assessment charge also applies in some cases (Minn. Stat. 169A.284).

The law also sets conditions for pre-trial release from detention (Minn. Stat. 169A.44).

LICENSE REVOCATIONS

Administrative Revocation for BAC Test Refusal or BAC .10 or Higher— Minn. Stat. 169A.51 et seq.

Under the implied consent law, if a police officer certifies that he had probable cause that a person was driving while impaired and:

1. the person refused a chemical test, the public safety commissioner must revoke the person's license, permit, or non-resident operating privilege for one year, even if a test was obtained after the refusal or

2. the person's test resulted in a BAC of at least .10 or showed the presence of certain controlled substances, the commissioner must revoke the person's license for (a) 90 days (six months if the person is under age 21), (b) 180 days if the person has a prior impaired driving incident in the last 10 years, or (c) twice the applicable time period if the person had a BAC of .20 or more.

Different provisions apply to commercial drivers.

Revocation is effective when the commissioner or police officer acting on his behalf notifies the person of the intention to revoke and of revocation. The notice must advise the person of the right to administrative and judicial review. If mailed, the notice and order is deemed received three days after mailing to the person's last known address. A police officer serves immediate notice of intention to revoke and of revocation on a person who refuses a test or whose test shows a BAC of .10 or higher. The officer must (1) take the person's driver's license or permit and send it to the commissioner and issue a temporary license that is effective for seven days or (2) invalidate the driver's license or permit.

At any time, a person can make a written request for review and the commissioner or his designee must review the order, the evidence that formed its basis, and any other material to determine if there is sufficient cause for the order. The commissioner must report the results of the review in writing within 15 days of receiving the request.

Within 30 days of receiving the notice and order of revocation, a person can petition for review in court. The petition does not stay the revocation but the court can order a stay on proper conditions if the hearing is not held within 60 days of filing the petition. The hearing is limited by statute to specific issues.

Revocations for Convictions—Minn. Stat. 169A.54

The commissioner must revoke a person's driver's license for convictions as follows:

1. DWI, at least 30 days;

2. refusal to submit to a chemical test, at least 90 days (with some variation based on specific circumstances);

3. DWI within 10 years of a prior impaired driving conviction or license loss, at least 180 days and until the court certifies that treatment or rehabilitation was successfully completed according to the chemical use assessment law;

4. test refusal within 10 years of a prior impaired driving conviction or license loss, at least one year and until the court certifies that treatment or rehabilitation was successfully completed;

5. DWI or test refusal within 10 years of two prior impaired driving convictions or license losses, at least one year and denial until rehabilitation is established under standards set by the commissioner;

6. DWI or test refusal within 10 years of three or more prior impaired driving convictions or license losses, at least two years and denial until rehabilitation is established under standards set by the commissioner; and

7. DWI with a BAC of .20 or higher, twice the period otherwise required.

The court cannot stay the driver's license revocation for conviction of 1st degree DWI.

Different rules apply to drivers under age 21, commercial drivers, and school bus drivers, and incidents involving personal injury.

The court serves notice of revocation unless the commissioner has already revoked the person's driving privilege administratively or served notice of revocation for failing a BAC test or refusing the test.

When a person has two or more tests within two years showing a BAC of .07 or higher, the commissioner can require the driver to have a chemical use assessment at the driver's expense. The commissioner can deny a license for up to 90 days to a person who refuses an assessment or refuses treatment recommended in an assessment.

Early Termination of Revocation—Minn. Stat. 169A.55

The commissioner can terminate a person's license revocation 30 days early if he receives notice of the driver's attendance at a driver improvement clinic, counseling sessions, or alcohol treatment program. But he cannot use this authority if the person had his license revoked under the DWI and implied consent provisions for another incident within the last three years.

Reinstatement—Minn. Stat. 169A.55

When the license revocation period expires, the commissioner must notify the person of how to have his driving privileges reinstated, which includes successful completion of an exam and proof of compliance with alcohol treatment or counseling.

LICENSE PLATE IMPOUNDMENT—MINN. STAT. 169A.60

The commissioner must issue a registration plate impoundment order for certain violations, including when a person's driver's license is revoked for:

1. DWI, license revocation for test failure or refusal, or similar Minnesota ordinances or ordinances or statutes in other states, within 10 years of a qualified prior impaired driving incident;

2. DWI or test failure with a BAC of .20 or higher; or

3. DWI or test failure or refusal when having a child under age 16 in the vehicle and the driver was more than 36 months older than the child.

The order requires impounding the registration plates of the vehicle involved in the violation and all vehicles owned, registered, or leased in the violator's name, including those jointly registered or leased (but not rental vehicles or vehicles registered in other states).

The order takes effect when the commissioner or police officer notifies the violator or vehicle owner of intent to impound. Notice must advise (1) the violator of his right to administrative and judicial review and (2) a non-violator owner of the procedure to obtain new plates. If mailed, notice is deemed received three days after mailing to the violator's or owner's last known address.

If the officer has access to the vehicle involved in the violation at the time the impoundment order is issued, he must seize the registration plates. He must send the commissioner copies of the notice and order and notice that the plates have been destroyed. If the vehicle is registered to the violator, the officer must issue a temporary vehicle permit for seven days. If the vehicle is registered to another, the officer must issue a temporary vehicle permit for 45 days. Within seven days of the impoundment notice, a person must surrender the registration plates if they were not already seized.

The commissioner must rescind an impoundment order against a non-offender if (1) the person is the vehicle's registered owner, was not a passenger at the time of the violation, knows that the violator may not use a vehicle without a valid driver's license, and the violator had a valid license at the time of the violation or (2) the violator did not have a valid license at the time of the violation and the non-offender reported to the police before the violation that the vehicle had been taken from his possession or was used without his permission (If he did not make a report, he may receive one-year special registration plates and be eligible for regular plates after that).

Review of the Order

A person can make a written request for review of the impoundment order at any time and the commissioner must review the order, evidence, and any other material to determine if there is sufficient cause to sustain the order. He must make a written report within 15 days. The commissioner can authorize new plates for the registered owner if his license was not revoked for the violation. If possible, the review must occur at the same time as administrative review of the license revocation.

A person can petition for court review within 30 days of receiving notice and order of the impoundment. The petition does not stay the impoundment order but the court can order a stay on proper terms if the hearing is not held within 60 days of filing the petition. The court must issue its order within 14 days of the hearing. The hearing is limited to specific issues.

New plates must be issued if (1) the license revocation that is the basis for impoundment is rescinded, (2) the charges for the violation are dismissed with prejudice, or (3) the violator is acquitted.

Special and New Plates

The commissioner can authorize use of special plates with a series of letters or numbers readily identifiable by traffic law enforcement officers if (1) the violator has an identified driver, (2) the violator or owner has a limited license, (3) the owner is not the violator and has a valid or limited license, (4) a member of the owner's household has a valid license, or (5) the violator has been reissued a valid license.

The commissioner cannot issue new plates for at least one year from the date of the impoundment order, and not until the owner has a valid license if he was the violator. The commissioner cannot issue plates to a violator for any vehicle during the impoundment period unless the violator qualifies for special plates.

The commissioner must issue new plates for a vehicle when the order is rescinded or the vehicle is validly transferred (the law places certain restrictions on sales of vehicles with impounded plates or special plates).

VEHICLE FORFEITURE—MINN. STAT. 169A.63

A vehicle used in certain offenses or in conduct that resulted in a designated license revocation is subject to administrative forfeiture.

A motor vehicle is subject to forfeiture if the driver:

1. is convicted of 1st or 2nd degree DWI;

2. is convicted of DWI and he previously had his license (a) canceled as inimical to public safety or (b) restricted with a condition that he not use or consume alcohol or a controlled substance;

3. fails to appear at a hearing on the designated offense charge; or

4. the driver's conduct results in a license revocation for test failure or refusal, it is within 10 years of two or more prior impaired driving incidents, and the revocation is sustained on review or the driver does not seek review in a timely manner.

A vehicle is only subject to forfeiture if its owner knew or should have known of its unlawful use or intended use.

Seizure

A law enforcement agency can seize a vehicle (1) when a court issues process or (2) without process if (a) the seizure is incident to a lawful arrest or search, (b) the vehicle is already subject to a judgment in a criminal or forfeiture proceeding, or (c) there is probable cause to believe that the vehicle would be removed or destroyed before process could be obtained. If property is seized without process, forfeiture proceedings must begin as soon as reasonably possible.

Right, title, and interest in the vehicle vests in the law enforcement agency on commission of the offense or license revocation and the vehicle remains in the agency's custody subject to court orders.

Forfeiture Proceedings

If the vehicle owner seeks possession before the forfeiture action is decided, the agency may allow the owner to post a bond or give security in an amount equal to the vehicle's retail value and return the vehicle to the owner with a disabling device attached.

The law enforcement agency seizing a vehicle must serve the driver with notice of the seizure and intent to forfeit and must, at the time of seizure or within a reasonable time, notify all people known to have ownership, possessory, or security interests in the vehicle. The notice must include notice of the right to judicial review.

Someone can file for judicial determination of the forfeiture within 30 days of service of the notice. Most of the procedures are the same as for license revocations and the hearing can take place at the same time as the hearing on the license revocation. The complaint must state why the vehicle was improperly seized and the person's interest in the vehicle.

If the court orders the vehicle returned, it must order that the person's filing fees be reimbursed and it may order sanctions.

The court must order the vehicle returned to the person legally entitled to it if the forfeiture (1) is based on committing a designated offense, the person appears in court, and is not convicted or (2) is based on a designated license revocation and the revocation is rescinded. If the owner was not privy to the conduct, the vehicle must be returned immediately.

If the vehicle is forfeited, the agency must sell it or keep it for official use. If it is sold, proceeds after expenses are given to the agency for DWI-related purposes and the prosecuting authority.

The law contains provisions on the interests of secured parties and lessors. This includes a provision allowing a financial institution with a security interest or lease for the vehicle to conduct the sale.

CR:ts