A DWI is serious whether it is a misdemeanor or felony. Even though the majority of DWIs in Minnesota are regarded as misdemeanors or gross misdemeanors, there is also a felony classification. Felony DWI laws passed the state legislature in August 2002.

A felony is any crime that carries a period of incarceration for more than one year. A person is guilty of a first-degree DWI If the current offense occurred within ten years of three or more prior impaired driving incidents or if s/he has previously been convicted of a felony DWI. Thus, most felony DWIs are committed by repeat offenders.

As would be expected, felony DWI carries some hefty sanctions to include lengthy jail time, loss of driver’s license, steep fines, and car seizure.

Felony classification

In Minnesota, DWIs are classified based on aggravating factors—factors that contribute to the offense. As mentioned, while most Minnesota DWIs are classified as misdemeanors or gross misdemeanors and are punishable by up to one year in prison and up to $4,000 in fines, the state does have a felony classification that applies when three aggravating factors are present.

Thus, the more aggravating factors, the steeper the penalty with multiple prior DWIs being the primary factor. Interestingly, however, a high BAC and child endangerment do NOT fall into the category of aggravating factors for a felony DWI. While these factors will, in fact, affect misdemeanor or gross misdemeanor DWI charges, the only stipulations an offender must meet to receive a felony DWI are previous, qualified drunk-driving incidents and/or prior felony DWI convictions.

Criminal penalties for felony DWI

Felony DWI is charged as a first-degree DWI, carrying steep penalties including up to seven years in prison, fines as much as $14,000, and parole or probation. Most first-time felony DWI offenders receive a stayed prison sentence of a minimum of 36 months, will likely serve six months in the county jail or under house arrest, and will be ordered to serve up to seven years on probation

Further, once an offender is released from prison, s/he is required to serve five years of parole with whatever conditions the judge decides to impose such as mandatory completion of a repeat DWI offender alcohol program, alcohol monitoring, counseling, or any other condition s/he sees fit. Failure to adhere to the rules of the supervised release will result in the revocation of parole and the offender’s return to prison to serve the rest of his/her sentence.

A defendant who received a prison sentence for DWI is not eligible for early release until the person has successfully completed a chemical dependency treatment program while incarcerated.

The bottom line

All DWIs are serious; however, given the rise in multiple DWI offenders in Minnesota and across the US, states have enacted legislation allowing for repeat offenders to be charged with felony DWI, thus hopefully serving as a stronger deterrent than existing DWI laws

On 10 September 1897, George Smith—a 25-year-old taxi driver from London, England—was the first person in history arrested for drunk driving after a night of drinking that resulted in his driving his cab into a building. Smith pleaded guilty and was fined 25 shillings.

In 1906, New Jersey enacted legislation that criminalized driving while intoxicated and put forth punishment of up to 60 days in jail and/or a fine of up to $500.  Soon thereafter, in 1910, New York enacted the first laws against driving a motor vehicle while under the influence of alcohol. Other states quickly followed suit.

During the 1930s, road safety was an increasing concern, thus leading the American Medical Association (AMA) and the National Safety Council (NSC) to examine how to improve travel on US roads. Task forces created determined that a blood alcohol content (BAC) of .15% was enough to safely assume a driver was, in fact, intoxicated.

In 1941, New York amended its law and set its baseline BAC at .15% or higher within two hours of arrest. This amount remained the baseline for other states for quite some time.

During the 1970s, drunk driving laws started becoming harsher. Among them, raising the drinking age from 18 to 21 and lowering the legal limit from .15% to .10% were most notable.

Today, the legal limit is .08%. Recently, in May, 2013, the National Transportation Safety Board (NTSB) recommended that all states lower the minimum BAC for drunk driving from .08 to .05. Some have.

Modern DUI/DWI legislation

DUI/DWI legislation went into overdrive and became significantly tougher in 1980 when Candy Lightner founded Mothers Against Drunk Driving (MADD). Lightner was a mother whose 13-year-old daughter Cari was killed by a drunk driver who not only had three prior convictions but who was also out on bail for a hit-and-run accident just two days earlier. MADD was instrumental in increasing DUI/DWI penalties, getting the legal limit lowered to .08%, and for getting zero tolerance laws passed that criminalized driving a vehicle with a .02% BAC for drivers under age 21.

Additionally, the BAC limit for commercial drivers is .04% and is overseen by the Federal Motor Carrier Safety Administration (FMCSA).

State laws

All states currently have a per se BAC as the threshold for a DUI/DWI charge. While the federal legal limit is .08%, some states have a lesser charge for lower BACs, such as between .05 and .08%. This measurement serves as a presumption of guilt of driving while intoxicated. Further, each state contains a catch-all provision that covers those situations in which the suspect’s BAC is below .08% but s/he still appears impaired such as is oftentimes the case with driving under the influence of drugs where there is no set BAC level.

All states also have implied consent laws in which all licensed drivers, by virtue of having a license, has given consent for a breath test or other test to determine BAC, and every state criminalizes refusing to submit to a breath test. For more invasive BAC testing—such as via a blood test—police must obtain a search warrant so as not to impinge upon the defendant’s Fourth Amendment protection against unreasonable search and seizure.

Despite increased public awareness and increasingly stiffer penalties, especially for habitual offenders, drunk driving remains a significant problem in the US that has the distinction of being the third worst county in the world for drunk driving behind only South Africa and Canada.

Being charged with a DWI can be highly stressful. If this is your first one, you may not know where to turn or what to do. First and foremost, you need to understand what the charges are as well as possible repercussions if you are convicted. Generally, a DWI conviction—even a first one—can be quite expensive.  An experienced Minnesota DWI attorney not only can provide the information you may need but can also help you fight your charges and obtain the best possible outcome.

What is a DWI in Minnesota?

Pursuant to state law, driving while intoxicated means driving with a blood alcohol concentration BAC of .08 or higher or driving while under the influence of alcohol or a controlled substance.

Generally, a first-time DWI in Minnesota is a fourth-degree misdemeanor; however, any aggravating factors may elevate this charge to a third-degree or even second-degree DWI, both of which are gross misdemeanors. By definition, a fourth-degree DWI is commission of a DWI without any DWI conviction within ten years prior and without any aggravating factors.

Aggravating factors can include:

• BAC of .16 or greater
• A prior DWI conviction within ten years of the current charge
• Having a child under age 16 in the vehicle at the time of the DWI
• Refusing to submit to a breath test

If there are aggravating circumstances, you may be charged with third-degree or even second-degree DWI, and, as would be expected, the potential costs can increase dramatically. A third-degree DWI involves one of the aforementioned aggravating factors, and criminal sanctions include up to one year in jail and/or up to a $3,000 fine. A second-degree DWI contains two of the aforementioned aggravating factors, and is punishable by the same maximum penalties as a third-degree DWI.

Criminal penalties

A fourth-degree DWI conviction is punishable by up to 90 days in jail and/or a fine of $1,000 plus legal expenses. However, for the typical fourth-degree, first-time DWI with no aggravating factors, you may receive a stay of execution of any jail time in exchange for probation and/or community service. Other potential criminal sanctions may include mandatory attendance and completion of a chemical dependency assessment, alcohol or drug treatment, abstinence of alcohol and/or drugs, random alcohol/drug testing, and installation of an ignition interlock device (IID) in your vehicle.

What else could a first DWI cost me?

In addition to criminal fines and legal costs, there are also administrative sanctions ranging from loss of driver’s license all the way up to vehicle confiscation and forfeiture. Generally, a first DWI will also result in a 90-day revocation of your driver’s license.

Other costs can include:

• Loss of wages (if you were incarcerated)
• Potential loss of job or promotion
• Having the DWI on your criminal record
• Higher vehicle insurance premiums
• Difficulty finding housing
• Costs of alcohol treatment programs
• Costs of installing an IID in your vehicle.

Because of the potentially high costs both criminally and administratively, it is critical that you find adequate legal representation. Do not simply find the first and least expensive attorney out there to represent you. Remember, you get what you pay for, so finding a skilled and knowledgeable lawyer can make a world of difference especially when the stakes are so high.

Recently, a 46-year-old North Carolina man who was inexplicably getting drunk without actually drinking alcohol—and was facing a DWI charge—discovered that he suffered from a rare condition: auto-brewery syndrome (ABS).

Also known as gut fermentation syndrome and endogenous ethanol fermentation, this condition makes the individual drunk without drinking a drop of alcohol. It occurs when one’s body turns starchy and sugary foods—carbohydrates—into alcohol. In other words, people with this syndrome have a gut that actually produces ethanol which manifests in overt signs of drunkenness. These individuals may, in fact, smell like alcohol, be too tired to participate in daily functions, lose their jobs, and skip meals to remain “sober.”     They are, essentially, brewing beer in their gut.

ABS can be very difficult to diagnose since it mimics other conditions. In the aforementioned case, the man’s condition began in response to having been prescribed a round of antibiotics—something far too common. Once he was put on powerful anti-fungal medications to rid his body of the fermenting yeasts, he has remained fungus-free since.

An under-diagnosed condition

Gut fermentation syndrome was first identified in 1912 and was studied in the 1930s and 1940s. In the 1970s, several cases came under investigation in Japan, but it wasn’t until the 1980s that the condition was identified in the US.

It hasn’t really attracted much attention, especially with respect to DWI investigations, until recently. ABS is an under-diagnosed condition that begs that anyone who has denied alcohol ingestion but who has elevated blood alcohol concentration (BAC) levels should be checked for ABS.

The North Carolina man’s battle began with depression and brain fog after eating. He was arrested in 2014 for DWI when his BAC registered 0.2%–much higher than the 0.08% threshold for legal drunkenness. Of course, nobody believed him until he met with researchers who found brewer’s yeast in his stool and watched as his BAC rose after eating carbohydrates. He was diagnosed with ABS and given anti-fungal medication.

The drugs were not enough, and after a drunken fall led to bleeding in his brain did researchers discover there were multiple strains of yeast in his system. He was given stronger intravenous medications including probiotics to maintain healthy gut flora while destroying the yeasts and was put on a no-carb diet. Only then did he become symptom-free.

Symptoms

Symptoms of ABS include:

• Being drunk without having ingested any alcohol
• Getting very intoxicated after drinking a small amount of alcohol.
• Red or flushed skin
• Disorientation
• Dizziness
• Headache
• Dehydration
• Dry mouth
• Nausea and vomiting
• Burping
• Fatigue
• Memory and/or concentration problems
• Mood changes

ABS can also worsen other conditions such as depression, anxiety, irritable bowel syndrome (IBS), Crohn’s disease, and chronic fatigue syndrome.

Risk factors

Both children and adults can have ABS. While one is not usually born with the syndrome, s/he may be predisposed to it due to another condition such as Crohn’s disease inflammatory bowel disease, liver problems, diabetes, environmental toxins, poor nutrition, antibiotics, and a low immune system.

Treatment

ABS is treatable. From reducing carbohydrate ingestion to treating an underlying condition to taking anti-fungal medication to using probiotics, there are several treatment options.

The first step is to not ingest simple carbohydrates. Among the most high-carb foods are:

• White bread, rice, pasta, and flour
• Corn syrup and high fructose corn syrup
• Potato chips
• Crackers
• Juices
• Sugary drinks like soft drinks

Substituting high-fiber complex carbohydrates for simple ones is also recommended. Complex carbs include:

• Vegetables
• Fruit
• Oats
• Whole grains
• Brown rice
• Barley
• Bran
• Quinoa
• Lentils
• Couscous

Thus, people who are facing DWI charges without having consumed any alcohol may want to get checked out for ABS.

A Minnesota DWI can have serious repercussions. From a criminal conviction with jail and fines to administrative sanctions such as loss of driver’s license or vehicle forfeiture to civil consequences from a lawsuit, a DWI can have life-changing consequences.

In an age of increasingly sophisticated technology—particularly smart phone apps—there are numerous tools on the market  that hold themselves out as being able to determine an individual’s blood alcohol level.   The problem is when people rely on such devices to potentially aid or help them avoid driving drunk or being criminally charged with a DWI offense.

It is imperative to note that refusing to drive a motor vehicle after having consumed alcoholic beverages is the most assured way and the best way to prevent a DWI and staying safe, not to mention planning ahead and arranging for a sober driver.  Nevertheless, below is a mention of several apps on the market that purport to be able to determine an individual’s blood alcohol level.  Also, there are apps listed which would allow a person to more easily plan ahead and arrange that sober ride home.

Drink Tracker/Alco Droid

Drink Tracker—for iOS—and Alco Droid—for Android—helps you estimate your blood alcohol concentration (BAC) by factoring in your age, gender, height, weight, number and type of drinks, and food consumption and gives your real time BAC levels. It also provides a ball park estimate as to when you should stop drinking before it is safe for you to drive.

Both of these apps depend on the user to regular input drinks manually which may not be done as the person becomes increasingly intoxicated.

DrinkControl

This Android app lets you log and track your alcohol consumption and also automatically converts said consumption into standard units of alcohol. You can also calculate the amount you’ve spent on drinks during your night out.

ENDUI

ENDUI also provides an estimate of your BAC based on various factors; however, ENDUI also has games to test your reflexes and demonstrate the effects of alcohol on your reaction time. While not the most user-friendly interface, this app also provides DWI facts and videos as well as the ability to report drunk drivers through the app. ENDUI is available for both iOS and Android.

Breathometer

This app uses an external portable breathalyzer that can measure your actual BAC and then lets you know when you need to stop drinking before it is safe to drive.

Alcohoot

This app is a mobile personal breathalyzer that connects to your phone’s audio jack and provides BAC readings. It also enables you to contact ride share companies, find local restaurants in case you need to wait to sober up, and use various learning algorithms to stay safe.

The following apps can help get you home safely.

Uber/Lyft

These popular ride-sharing apps can help you get home safely if you are too intoxicated to drive. Experts recommend saving your address and credit card number on an app ahead of time to give you one less thing to worry about.

Have a Plan

This app lets you create a plan if you are going out drinking by inputting names and numbers of contacts. It also has a “get a ride” feature that enables you to locate and contact local taxicab companies via GPS. This app is also available in both iOS and Android 

SaferRide

This easy-to-use app for both iOS and Android enables you to call friends, contact nearby taxi companies, and let you know where you are via GPS. 

Dryver and StearClear

These unique apps let you hire a professional driver to take you home in your own vehicle. Early driver selection and scheduling ensures that things go smoothly.

DDVIP

Also available for iOS and Android, DDVIP provides discounts, deals, and other offers to designated drivers.

 During the course of any criminal investigation, someone refers to the concept of probable cause with respect to the investigation. What, exactly, is probable cause? The Fourth Amendment states that “no warrants shall issue, but upon probable cause,” but it fails to clarify what, exactly, probable cause is. The US Supreme Court has tried to offer an explanation to this very fluid, inexact, and context-based term.

The word “reasonable” is a key word when attempting to explain the concept of probable cause. Thus, most definitions of probable cause involves a reasonable suspicion that is supported by circumstances strong enough to justify a prudent person’s belief that certain facts are probably true.

The history of probable cause

The concept of probable cause has its roots in English common law wherein people believed that a man’s home is his castle. By the 1600s, this saying expanded to legally protect landowners from casual searches by law enforcement or other government officials. By the 1700s, the English began to use general warrants and writs of assistance in order to lawfully search areas in which government officials believed held evidence of a crime.

In the US, probable cause has its roots in the Fourth Amendment of the US Constitution that protects citizens from unreasonable searches and seizures of their “persons, houses, papers, and effects.” In other words, police officers may not simply search your home or your place of business looking for evidence against you.

Further, law enforcement may not arrest you without probable cause either. Consequently, when police obtain a warrant—whether a search or arrest warrant—they must prove to the judge that there is probable cause for its issuance.

Thus, the court will find probable cause exists—and issue a warrant—when there is a reasonable basis for believing that a crime may have been committed (arrest) and/or evidence of a crime may be present in the area(s) to be searched (search).

Sources of probable cause

In order to prove probable cause, a police officer must have sufficient knowledge of fact that warrants a reasonable belief that a suspect has committed or is committing a crime.

Probable cause is one of the legal standards used during the course of a criminal investigation and trial. Probable cause requires more than simply a suspicion that someone committed a crime but not as much to prove beyond a reasonable doubt that a suspect is, indeed, guilty. Beyond a reasonable doubt is a standard is reserved for the courts.

There are four general categories of evidence police may use to establish probable cause for an arrest and/or perform a search.

• Observation: Anything an officer directly sees, hears, smells, or feels is considered observation and may be used to establish probable cause.
• Circumstantial evidence: This is indirect evidence that implies—but does not prove—an incident occurred but provides probable cause for an officer to conduct a search.
• Information: Information obtained from a reliable source such as a witness, victim, informant, or the like can be used to establish probable cause.
• Expertise: Police officers may rely on their training, expertise, and professional knowledge to identify criminal activity and establish probable cause.

When a warrant isn’t necessary

A warrant is not always necessary. A warrant isn’t necessary if a person consents to the search of their person and/or property. In such cases, probable cause is automatically created; however, the search area is limited to only the area where the consent was given. If a roommate or other resident consents to a search of the property, this search area is also limited to areas and places that the person who provided the consent has access to.

Probable cause can also serve as the justification for a warrantless search and seizure when exigent circumstances—circumstances that would cause a reasonable person to believe that entry was necessary to prevent destruction of evidence, physical harm to another, the suspect’s escape, or other similar situation—exists.

Without a warrant—and without probable cause—any evidence seized from a warrantless search can be excluded from court via the exclusionary rule of the Fourth Amendment. Oftentimes, such evidence is known as “fruit of the poisonous tree.”

Gun laws have been a salient topic in this day and age. While similarities may ensue, each state has its own set of laws with respect to possession, concealed carry, and types of weapons permitted.

Therefore, it is critical for Minnesota gun owners to familiarize themselves with the state’s firearm laws. Even though the laws are quite lenient when compared to other states, failure to adhere to any of them could result in serious criminal charges, potential fines, and even jail time.

Terminology

There are different rules regarding “long” guns—such as rifles and shotguns—and “short” guns—primarily pistols.

Minnesota, like many other states, has an “open carry” law. “Open carry” involves an individual visibly carrying a firearm on his/her person.

“Concealed carry” means carrying a firearm on one’s person that is not visible—hence the term concealed. Concealed firearms are typically worn in a holster under the clothing or are kept in purses or other bags designed for concealed carry.

A “duty to retreat” resides in Minnesota law. This means that if someone feels threatened, s/he may only use deadly force as a last resort. This is in direct opposition to “stand your ground” laws common in other states. However, this duty to retreat is inapplicable in someone’s home if said individual reasonably believes s/he or anyone else in the home may be subject to great bodily harm or death by another or that the intruder is committing another felony. This is called the “castle doctrine.”

Permits

There are no licensing or registration requirements in Minnesota. Further, even though Minnesota does have an open carry provision, it is not aligned with traditional open carry laws. In Minnesota, a special permit is required to open carry any firearm. Permits are issued by the sheriff’s department in the county where the applicant lives.

There is no stipulation in the law as to whether the weapon must be concealed. Thus, anyone with a Minnesota Permit to Carry a Pistol (PCP) may carry concealed. Also, permits are not required for transporting a firearm or keeping it at home or at one’s place of work.

Prior to 2003, Minnesota was a “may issue” state which means permits were provided on a discretionary basis. However, now, Minnesota is a “shall issue” state which means any carry permits are granted provided the applicant meets the basic requirements.

In order to obtain a carry permit, an individual must:

• Be over 21
• Be a permanent United States resident
• Fill out an application
• Be a resident in the country in which s/he is applying
• Pass a mental health and criminal background check
• Not be a person of interest in an ongoing criminal investigation
• Provide evidence of completion of a firearm safety course within one year of the application

With respect to reciprocity, Minnesota honors all permits from states with similar requirements.

Self-defense

In order to claim self-defense in a shooting incident, the following conditions must be met. First, there was no aggression by the defendant. Next, the defendant believed s/he or others were in imminent danger of great bodily harm or death. Third, the defendant’s belief must be reasonable. Finally, the defendant had no reasonable possibility to retreat.

Private sales

The state does not require background checks for private firearm sales unless the seller is a federally licensed firearm dealer. However, if a private transfer is made to a prohibited individual who uses the gun during the commission of a violent felony within one year of the transfer, then the private seller can face gross misdemeanor charges.

Assault weapons

Whereas some states have restrictions on “military” style or “assault” weapons and high-capacity magazines, Minnesota has no restriction. Instead, the law states that anyone 18 years of age and older may purchase an assault weapon with a permit to purchase, while anyone 21 and over may purchase one with a permit to carry.

Other restrictions

There are certain places where an individual may not carry a firearm, even with a permit. Such places include:

• Schools and school buses
• Childcare centers if children are present
• State hospitals
• State detention or correctional facilities
• Courthouses (without special permission) including any courtroom or office therein
• Any federal facility
• Private establishments if posted or asked to leave by the owner or agent
• Places of employment, both public and private, if the employer restricts firearm possession by employees

U.S. Senators Rick Scott (R-FL) and Tom Udall (D-NM) are planning to propose new legislation mandating that automakers install hardware designed to stop drunk drivers from operating their vehicles and preventing thousands of drunk-driving-related accidents, injuries, and deaths. They plan to have this accomplished by the mid-2020’s. This bill is similar to one introduced by Representative Debbie Dingell (D-MI) that seeks to accomplish the same goals by 2024.

While their goal is to curb intoxicated people from driving—something that we all want—privacy concerns arise.

In the beginning

Initially, ignition interlock devices (IID) were the epitome of technology in fighting drunk drivers. With these devices, the driver must blow into a tube that identifies whether s/he has consumed any alcohol and would be unfit to drive. If s/he doesn’t pass, then the vehicle won’t start. However, these systems are rather antiquated and can be bypassed quite easily simply by having a sober person blow into the tube.

Privacy concerns

With new technology comes new opportunities to invade people’s privacy. There is and there will always be a trade-off between effectiveness and invasiveness. Increasingly sophisticated technology enables monitoring blood alcohol concentration (BAC) simply by drivers touching the steering wheel or the engine start button. Additionally, on-board sensors and cameras are now able to passively monitor a motorist’s breath, posture, eye movements, and erratic driving behavior.

Volvo has already implemented some of these devices, but other automobile manufacturers may soon be legally required to do the same.

Privacy advocates say this has gone too far and also shifts the US court system’s “innocent until proven guilty” into “guilty until proven innocent.” Further, collected data will go to motorists’ insurance companies, thus likely raising premiums and rates.

Privacy advocates say the potential benefit of saving thousands of lives just isn’t worth trampling the privacy rights of the millions of sober people on the road.

Promising results

Since 2008, the National Highway Traffic Safety Administration (NHTSA) has invested nearly $50 million in a joint project with Automotive Coalition for Traffic Safety to create the Driver Alcohol Detection System for Safety—a device in vehicles that can detect alcohol without the driver having to do anything. At the present time, developers have managed to create a better, more streamlined breathalyzer that attaches to the driver’s door. They are also working to develop devices that don’t simply detect the presence of alcohol but the actual BAC.

Those states that have mandated inclusion of ignition interlock or other anti-DWI technology have reported steep decreases—as much as 77% in places like West Virginia—in drunk driving recidivism after requiring that first-time DWI offenders install IIDs in their vehicles. And in Michigan, a university study estimated that IIDs installed in every new vehicle in the US could cut drunk driving fatalities by a whopping 85% over 15 years.

Proponents of mandating anti-DWI systems and devices in all cars also stress that these devices could also play a big role in identifying and preventing drugged driving as well. Yet the bottom line remains, and that is how much of a compelling government interest justifies infringing on people’s rights.

Earlier this year, the Minnesota legislature amended the existing definition of hemp, thus altering the legal status of hemp-derived CBD products. CBD products include oils, topicals, and edibles and are highly available not only in Minnesota but across the US.

Prior to the amendment, THC was legal in any concentration and amount provided the source was a hemp plant. Hemp plants are cousins of marijuana plants, and pure CBD does not create the “high” that marijuana does. This “high” is courtesy of tetrahydrocannabinol (THC).

What is CBD?

CBD, or Cannabidiol, in an active ingredient in cannabis that is derived from the hemp plant. CBD oil is used to alleviate several conditions including:

• Insomnia
• Chronic pain
• Cancer-related symptoms
• Anxiety and depression
• Diabetes
• Inflammation
• Drug withdrawal
• Epilepsy
• Acne
• Autoimmune disorders

Cannabis with high CBD is specially grown to treat these and other conditions as well as being used a source of wellness. Because hemp has no psychoactive effect, it is both legal and unregulated.

In 2014, the Farm Bill was signed into law increasing research into the benefits of hemp. Then, in 2016, the US Department of Justice (DOJ) and US Drug Enforcement Agency (DEA) approved a commercial hemp licensing program in Minnesota. Thus, registered farmers were legally able to cultivate industrial hemp, thus resulting in more than 2,000 acres of hemp being planted in Minnesota.

The problem

CBD derived from hemp is currently legal; however, CBD cultivated from illegal marijuana plants is illegal. Thus, it is the source of the CBD that determines legality. However, hemp contains little CBD while marijuana creates the best CBD and, consequently, higher levels of THC.

Because hemp produces a relatively small amount of CBD, hemp growers must cultivate large amounts in order to produce an adequate amount of CBD when compared to the more efficient and higher quality marijuana-sourced CBD.

The legal status of CBD products depends upon the amount of THC in the source plant and not the end product. The legislature created a .3% maximum THC threshold for CBD products. One problem is that CBD products with no more than .3% THC by dry weight would still be illegal if sourced from a marijuana plant. In other words, even if a CBD product had zero THC, if it were sourced from a marijuana plant—and not a hemp plant—it would be illegal.

Changes in the law

Effective 1 July 2019, hemp-derived CBD is no longer considered legal hemp unless it has .3% THC or less. The legislature amended the law to include this .3% limit on all of the plants seeds, derivatives, and extracts. Thus, whereas before the new law, any CBD was legal provided it came from a hemp plant, this is no longer the case.

The manufacturing process for CBD involves growers cultivating cannabis plants with not more than .3% THC, processing the hemp to extract the CBD oil, and diluting the concentrate to ensure the end product complies with this .3% limit. The problem is that it is impossible to make CBD oil from hemp by staying within this threshold. Thus, even though the end product may be compliant with the law, because the second step does not adhere to the new legal requirements, this creates a trap for the Minnesota hemp-growing community.

Minnesota, like much of the rest of the country, has set its maximum blood alcohol concentration (BAC) at .08 for a DWI. Because it is illegal to operate a motor vehicle if any amount of alcohol has impaired the driver’s abilities regardless of said driver’s BAC, in some cases, drivers may still be charged with drunk driving even if their BAC is under the legal limit.

There are several situations where this may occur.

Drivers under age 21

Minnesota has a zero tolerance for drunk drivers under the age of 21 who have any level of alcohol above .00 in their systems. This applies to both underage drivers who are stopped for drinking and driving as well as those who have any presence of alcohol in their systems. Individuals caught risk not only getting a DWI charge but may also receive lesser penalties, driver’s license revocations, or other type of misdemeanor charges. Additionally, this can affect future eligibility for another driver’s license, a learner’s permit, or a provisional license.

Open bottle

In Minnesota, it is against the law to have an open bottle or can of alcohol in any vehicle that is being driven on any of Minnesota’s roadways even if the drink is not being consumed at the time. However, if the open bottle is in an area where there are no passengers—such as the trunk—then there is no violation. Of course, some exceptions—such as limousines, buses, motorboats, and pedal pubs are exempt from this regulation. 

Commercial vehicles

The minimum BAC level for those driving commercial vehicles is .04. Drivers who are caught with a higher BAC may have their driver’s licenses revoked. However, if their BAC is below .08, they may still drive their personal vehicles. Commercial drivers who have been caught for a second time with a BAC over .04 may face revocation of commercial driving privileges for a year. 

Operating an aircraft

As is the case with commercial vehicles, the threshold BAC level for pilots is also .04. Violation of this will result in a gross misdemeanor charge. Further, it is illegal to operate an aircraft within eight hours of the consumption of alcohol. Even if the pilot’s BAC is less than .04, this can still result in DWI charges.

School buses

School bus drivers are also included under the aforementioned zero-tolerance policy. A school bus driver operating a bus with any amount of alcohol in his/her system can be charged with DWI and face cancellation of his/her school bus driving endorsement. However, if the person didn’t register a BAC above .08, s/he can still drive his/her personal vehicle.

A note on drugged driving

Driving under the influence of drugs is a growing national health and safety problem. Because of the wide varieties of drugs and the lack of any standardized testing as is available for drunk drivers, if a driver is found to be under the influence of controlled or otherwise hazardous substances, authorities need not show a BAC above .08. The growing incidence of drugged driving has resulted in increased awareness by law enforcement as to how to properly identify drugged drivers through additional training and awareness.