Earlier in June, the Minnesota Bureau of Criminal Apprehension (BCA) issued a significant recall of blood alcohol testing kits provided by manufacturer Becton Dickinson (BD) causing speculation over whether thousands of DWI cases will subsequently be thrown out in court. In fact, BD initially issued the voluntary recall.

The recall centered around potentially faulty vials which did not contain the requisite preservatives inside them to prevent sample clotting and fermentation. Said chemical preservatives are the primary safeguard for accurate blood alcohol testing because should fermentation, and subsequent clotting, occur, then the sample is rendered completely unusable in a court of law.

The science behind the recall

The potential problem has nothing to do with the inorganic salts inside the tube because these compounds perpetually remain stable. With respect to the tubes central to the recall—BD Vaccutainers—the potential problem is tied directly to the vacuum seal on the septa. Thus—as is the case with both tubes with expired warranty dates and faulty tubes such as those under recall—the vacuum pressure is compromised and, ultimately, subjects the sample to degeneration by pressure leakage or the potential for contaminants to enter the tube.

Unless lab clinicians possess the requisite training, education, and credentials, they will not be able to ascertain whether the tubes are faulty or not and, therefore, whether the sample taken is accurate.

BCA response

Even though BD claimed that the recall was directed at only around 300 vials—and that 200 of them had already been recalled—the state BCA is still rightly concerned about the potential impact of this recall on DWI cases.

Granted, quality control is not solely the manufacturer’s responsibility as the BCA should also be spot checking the BAC testing kits as well.

The BCA issued a statement that said that, in fact, BAC test tubes are inspected upon arrival and they hadn’t received any that were obviously coagulated and, therefore, easily identifiable as defective. However, BD—in its recall—stated that once blood was collected in the test tube, it would be virtually impossible to determine if the tube contained the necessary additive and was or was not faulty at the outset. This begs the question of how would BCA be able to visually inspect a tube and identify whether it is defective or not if the manufacturer says that it’s virtually impossible to do so?

The bottom line

The end result could mean that tests taken between August 2018 and June 2019 could, effectively, be inaccurate. The problem is compounded when one takes into consideration defendants who have already pleaded guilty and had their driver’s licenses revoked based on the potentially inaccurate results from the kits given the inability for investigators or clinicians to scientifically determine whether the samples were or were not compromised.

Technology has come a long way in addressing and reducing impaired and distracted driving. However, with all of this advancement, drunk driving continues to be a serious problem across the US.

According to the National Highway Traffic Safety Administration (NHTSA), there are nearly 30 traffic fatalities daily due to drunk driving. In 2017 alone, nearly 11,000 deaths were attributed to drunk driving crashes at a cost of more than $44 billion. The same goes for distracted driving in which individuals who text or check emails while driving are eight times more likely to be involved in an automobile accident.

Several vehicle manufacturers—especially Volvo—have introduced new technologies in their vehicles to help eradicate this ongoing problem.

Volvo—A leader in safety

Volvo has always been among the industry leaders in terms of safe vehicles; however, the company is taking an additional step by installing active technology to combat drunk and distracted drivers. Such technology includes in-car cameras that are able to evaluate and monitor drivers’ actions and identify whether a driver is impaired.

The specifics are not currently known; however, these cameras will be able to identify drivers who close their eyes or direct them away from the road for extended periods of time while also identifying erratic steering, excessively slow reaction times, extreme weaving and lane changes, or other clues that a driver may be impaired and/or otherwise distracted. If impairment or distraction is identified, Volvo says that several warnings and/or automatic responses could take effect such as limiting the vehicle’s speed, making the car stop safely, or notifying Volvo’s On Call service who could dispatch police and or medical personnel.

Volvo reports that this technology could be installed in its new vehicles in the early 2020s in addition to other new technology to limit speeds on its vehicles to 112 mph (180 km/hr).

Other manufacturers

Nissan has introduced a drunk-driving prevention concept car as well with new alcohol odor high-sensitivity sensors being built into the transmission shift knob to detect alcohol in a driver’s hand perspiration as s/he starts driving. If the detected alcohol is above a predetermined level, the vehicle locks the transmission so the car cannot be driven. Other sensors are also used throughout the driver’s and passenger seats in order to detect the presence of alcohol in the air inside of the car. If alcohol is detected, the vehicle issues voice and navigation system alerts.

Nissan is also investigating the use of in-vehicle cameras to monitor the driver’s face as well as other systems that can identify distracted or impaired driving behaviors and notify the driver via seatbelt tightening mechanisms or other audio/visual notifications.

Other manufacturer efforts

A consortium of automakers is investigating other potentially life-saving onboard technologies such as special touch pads in push-to-start buttons and steering wheels, on-board ignition interlock devices (IID), and air sensors to identify whether a driver is under the influence. Of course, these devices must be “highly accurate, very fast, and completely passive” and used only when necessary to prevent a drunk driver from taking the road. This program, known as the Driver Alcohol Detection System for Safety (DADSS), seeks to conduct research and develop products for DUI/DWI prevention technology in vehicles.

Such technology is touted as being a step above traditional breathalyzers used by police officers during traffic stops because the new, onboard technology doesn’t require a long, sustained breath and multiple attempts in order to obtain an accurate reading. Further, traditional breathalyzers are notoriously unreliable and require constant calibration to remain in proper working order.

With time, many hope these onboard technologies may become standard equipment.

Even though Canada has legalized recreational cannabis—medical marijuana has been legal since 2001—the US border crossing continues to be a drug-free zone because, under US federal law, cannabis remains illegal despite legalization in some states. Thus, anyone caught with marijuana at the border is subject to arrest and prosecution under federal law, as well as potential seizure, denial of admission, and/or fines. The same potential serious effect applies to driving under the influence of alcohol.

What you need to know

According to US Customs and Border Patrol (CBP) Michigan Director of Field Operations Christopher Perry, the CBP is charged with upholding and enforcing US laws, and simply because Canada has legalized cannabis does not change US law. Even though Michigan recently decriminalized marijuana, federal law continues to supersede state law.

If you are a US citizen who brings marijuana into Canada and are caught at the border, you may be arrested for drug trafficking and be barred from entering Canada for life, even if that marijuana was purchased in a state where it is legal.

Canadians crossing into the US must be cognizant of the fact that marijuana use is a federal crime in the US. Regardless of their final destination—and whether it is in a state where marijuana is legal—CBP is charged with enforcing federal law, and said individuals can be barred from entering the US. The same can be said for bringing marijuana into the US—it is illegal.

DUI/DWI concerns when traveling into Canada

Whereas US police require just cause for administering roadside sobriety tests to drivers suspected of DUI/DWI, in Canada, a new, very strict law passed in 2018 has elevated DUI/DWI for alcohol and drugs to the level of serious offense alongside drug trafficking, homicide, and sexual assault regardless of whether anyone was seriously injured or killed.

First of all, the law has enabled Canadian police to test any driver stopped for any reason. Thus, if law enforcement stops you during a traffic stop in the US, officers must have a reasonable reason to test you for drug use; however, in Canada, officers can test you without reasonable cause. Further, being stopped for being under the influence of marijuana is commensurate to driving drunk, and the same penalties and consequences apply. This new law has also increased drunk driving sentencing from a maximum of five years to a maximum of ten years.

You can also be barred from entering Canada if you have an old DUI/DWI conviction; however, anyone convicted of a DUI/DWI post-December 2018 will receive the brunt of problems as Canada’s Temporary Resident Permits (TRP) will no longer be issued for DUI/DWI convictions because it is now a serious offense. In fact, Canada views DUI/DWI as a serious offense regardless of where the conviction occurred.

Further, anyone who is a Canadian permanent resident—not a citizen—can be deported from the country for having a DUI/DWI conviction.

The best way to prevent falling prey to Canada’s new scrutiny is that if you are planning on crossing the border, don’t drink and drive, and don’t carry cannabis with you. Once in Canada, ensure that you never place yourself in a position to be arrested for DUI/DWI.

Earlier this year, Minnesota joined 17 other states and Washington, D.C. in requiring that any motorist in a moving vehicle must have his/her cellphones in hands-free mode.

Distracted driving continues to be a serious problem on Minnesota—and US—roadways where distracted driving is the cause of one out of five accidents. Further, drivers who talk on the phone while driving are four times more likely to have an accident while those who text are eight times more likely to be involved in a crash. However, according to the AAA Foundation for Traffic Safety, even though the majority of drivers cite distracted driving by others as their number one concern, approximately half of these drivers send text or email messages while driving themselves.

In order to spread the word, the Minnesota Department of Public Safety, law enforcement agencies across the state, and individuals who have lost loved ones to distracted driving are joining forces to educate the public about the new law before it takes effect in August.

Lead up to the law

Law enforcement agencies collaborated on a three-week long statewide crackdown on distracted drivers back in April. By disguising themselves as utility workers, construction workers, and panhandlers—as well as by boarding school buses and waiting at other higher vantage points such as traffic signals and utility poles—officers have had to use such creative tactics to apprehend distracted drivers.

This crackdown was in response to a five-year high in texting while driving citations in 2018 across the state.

Provisions of the law

Texting, email, and browsing the Internet while driving was already illegal under current state law; however, talking on the phone was acceptable provided the driver was not distracted. Under the new law, such calls are only permissible if the phone is in hands-free mode, excepting emergency phone calls.

Previously, officers must observe a driver texting or emailing before initiating a traffic stop; however, after 1 August, police will be able to lawfully stop motorists who are holding a phone while driving, and this includes while at a stoplight or stuck in traffic.

Exceptions

There are a few exceptions to the new law. First, the bill made an allowance for the use of GPS devices that are used solely for navigation purposes; however, scrolling is considered distracted driving and under the purview of the new law.

Second, motorists are still permitted to stream podcasts provided the podcast is selected and play is pressed before the vehicle is in motion.

Sent and received voice text messages are not specifically addressed by the bill; however, there are concerns that the nature of voice texts precludes officers from knowing whether a person was manually using his/her phone, and such concerns may be addressed at a later date.

A note about hijabs or other types of head scarves

Despite an amendment that specifically permitted this practice being added to the bill, law enforcement argued that it wasn’t necessary because if a phone is, indeed, tucked into a hijab or head scarf, the motorist isn’t handling the phone.

Response

These new creative tactics have garnered praise by the general public, especially among parents of children who ride a school bus and individuals who have lost loved ones to distracted driving. There is little argument that distracted driving continues to be a huge public safety issue, and any new tactic that can be used in the fight against distracted driving is a good thing.

If you have been convicted of a DWI, you may be required to have an ignition interlock device (IID) installed in your vehicle. Such a device requires you—as the vehicle’s owner—to provide a breath sample before driving and will prevent the vehicle from starting if it senses any alcohol on your breath.

There are several questions you may want to ask the person who installs your IID to ensure that you follow all requirements and that it works as it should. If you are unaware or unsure about something, your probation officer or the court will not let it slide. Ignorance is no excuse, so in order to make the best of your situation, you should be as informed as you can.

Questions to ask

Of course, the most basic and important question to ask the IID installer is how you should use the device. There is much more to it than simply blowing into the tube. Most devices require a specific blow pattern in order to obtain an adequate result. Make sure you ask the technician exactly how to use the device and be sure you fully understand. Ask him/her to demonstrate if you are still unsure.

The second most important question pertains to the device’s maintenance and calibration upkeep. Electronic devices need to be re-calibrated and maintained according to a specific schedule, so be sure to ask your installer about this schedule. Failure to maintain the device accordingly may render it misaligned with state requirements, and you could end up getting in trouble.

Next, you should ask the installer what you should do if you get locked out since every device has this function to prevent the vehicle from starting after a failed result or too many failed attempts. Be sure you understand the situations that could result in a lockout and the steps you should take should this occur.

In most cases, states, courts, or probation officers require that you submit proof of IID installation. The installer can provide you with said proof—usually a certificate—that you can provide to ensure that the terms of your probation or other court order are being followed.

The cost of the IID is another frequently asked question. This depends on how long you are required to have it installed in your vehicle. As would be expected, the longer the time, the higher the price. Additionally, the court or probation officer may require the addition of certain features such as GPS, real-time reporting of test results, or a camera that photographs the user. Again, as would be expected, the more features your IID has, the higher the price will be.

Finally, you will want to replace the mouthpieces regularly as this will keep your IID clean and sanitary. Further, if someone else drives your vehicle, extra mouthpieces are definitely nice to have. Many installers sell extra mouthpieces or can provide you with a list of authorized locations near you where you can purchase more.

The bottom line

If any of these questions remain unanswered—or you have additional ones after the installation is complete—you can ask the court, your probation officer, or your attorney. Just remember, failure to abide by the terms of a court order or probation is a sure-fire way to have your probation revoked or otherwise get you into extra trouble.

If you have accepted a plea bargain, have been convicted of a crime, or have been granted a stay of adjudication, then you may receive probation. Probation is a court-imposed sentence in lieu of actual jail time; however, there are certain requirements that a person on probation must follow. Failure to do so will oftentimes result in probation revocation and your being sent to jail to serve your original sentence. Probation is viewed as a lenient option for courts to maintain some control over a person without sending him/her to jail.

Probation terms and conditions are unique to each individual and take into consideration the fact of the case, type of crime, offender’s criminal history, and other pertinent information. These sentences may have requirements such as:

• Abstaining from drugs and/or alcohol
• Attending anger management, substance abuse, or other classes
• Attending mandatory counseling
• Staying away from certain people and/or places
• Obtaining employment
• Performing community service
• Paying restitution and fines
• Maintaining regular meetings with your probation officer

If you break the terms of your probation, you can be charged with a probation violation, face potential probation revocation and, in some cases, additional criminal charges.

Minnesota probation violation law and the Austin factors

Minnesota Statute 609.14—as well as Minnesota Rules of Criminal Procedure 27.04—govern probation revocation proceedings. They state that if a person has violated any condition of his/her probation, then the court may revoke the stay of incarceration and take the person into custody.

However, in order to revoke probation, the court must:

• state explicitly the exact conditions of the probation that were violated;
• determine whether the violation was intentional and/or inexcusable; AND
• determine that the need for incarceration outweighs the policy considerations that favoring probation.

These are referred to as the Austin factors as determined in State v. Austin. Thus, when deciding to revoke probation, the court must find whether the violation in question adheres to Austin.

More recently, in State v. Modtland, the Minnesota Supreme Court held that the district court judge failed to take into consideration the Austin factors and remanded the case back to the lower court for a new probation violation hearing. In this case, the Court emphasized that the purpose of probation is rehabilitation, and revocation should be viewed as only a last resort.

Thus, technical violations should be examined more thoroughly rather than treated with a knee-jerk response. As is the case with many aspects of the criminal justice system, courts must utilize sound judgment while simultaneously balancing the state’s interest in maintaining public safety and insuring the probationer’s rehabilitation with the probationer’s freedom interests. This balance continues to remain relevant today.

Fighting a probation violation in Minnesota

Probation violations are neither black nor white. It’s not simply a matter of failing to uphold the terms and conditions of probation. There may be certain situations in which you had an emergency that prevented you from fulfilling some of the terms and conditions. While this may not excuse the violation, it may not rise to the level of a certain probation violation and subsequent revocation.

Contesting a probation violation in Minnesota can be an uphill battle, but retaining the services of a skilled and experienced defense attorney can help immensely by potentially convincing the judge to give you another chance or reduce your violation sentence.

Back in 2017, we reported on the new state law that permits innocent owners to request a hearing to prevent their vehicles from being confiscated if they lend their vehicle to someone who is ultimately arrested for DWI. However, this law recently came under attack when an innocent owner’s vehicle was seized and impounded for 18 months while her daughter’s DWI criminal trial concluded.

Earlier this month, the Minnesota Supreme Court issued a ruling that aims to further protect innocent vehicle owners from its existing confiscation law. In Olson v. One 1999 Lexus (Minn. Sup. Ct., 3/13/2019) the Court held that police cannot confiscate vehicles from innocent owners anymore without providing them a timely hearing to prove their innocent-owner status.

Background

Olson began on 7 October 2015 when Shakopee Police confiscated a white 1999 Lexus RX300 SUV because its driver—Megan Olson—was stopped for suspicion of DWI. This was her third such incident. However, the vehicle belonged to Olson’s mother, Helen, who had no recourse to address the seizure of her car until her daughter’s criminal trial was complete.

Despite the fact that current law did, in fact, contain an “innocent owner” clause, another section of the law emphasizes that this defense cannot be exercised if the at-fault driver was a family member with three prior DWI convictions which was the case here.

The Olsons moved to have the Minnesota motor vehicle law struck down as violative of due process and argued that the law seized property from owners who were not accused of any criminal activity without providing them the opportunity to challenge the actual taking until the criminal trial had ended. In this case, Megan Olson’s trial ended 13 February 2017—18 months after the initial seizing.

Court decisions and rationale

While the district court agreed with the petitioners that the law was, indeed, unconstitutional, the Court of Appeals reversed, holding that the law was constitutional, albeit not in this particular case. The State Supreme Court adopted the Appellate Court’s reasoning in that due process “requires that an individual receive notice and an opportunity to be heard before the government takes her property” and that “it is possible that the criminal proceedings underlying a [DWI] forfeiture case could be resolved with sufficient speed to satisfy due process.”

The Court had to strike a balance between the cost of holding a prompt hearing after every single vehicle seizure (after all, there were 3,596 vehicles were confiscated in Minnesota in 2017 alone) and avoiding situations like the Olsons’ in which the petitioner was unjustly without her vehicle for 18 months. Thus, the Court determined that said hearings should be limited to special circumstances such as in the Olsons’ case to lessen the burden on both innocent owners and the court system.

Even though the existing statute does contain a process by which a prosecutor can utilize discretion in releasing a vehicle, the Court argued that vague standards and informal processes do not further due process; they only set the stage for abuse. Thus, the majority ultimately held that innocent owners—especially those who would sustain an undue hardship—should be given a prompt hearing with respect to vehicle confiscation.

In this case, the Court released Helen Olson’s Lexus that had been held in an impound lot for three years without any charges and determined that she shouldn’t have to attend a hearing to prove she was, in fact, an innocent owner in this matter.

Being arrested in Minnesota—well, anywhere actually—is not only stressful but can also be scary. Here are some tips about what to do—and what not to do—if you do get stopped and/or arrested in Minnesota for driving while intoxicated.

First and foremost, pursuant to the Minnesota Implied Consent law (Minn. Stat. 169A.51), you have the right—albeit a limited one—to consult with a DWI lawyer prior to submitting any tests. To exercise this right, ask the officer if you can call an attorney.

What to do if you are stopped for DWI

Despite your brain likely wanting you to talk ad nauseum if stopped by police for drunk driving, you should ignore these urges and avoid giving any inculpatory statements. Always insist upon your right to speak to an attorney before answering any questions or making any statements, signing any documents, submitting to any field sobriety or blood alcohol concentration (BAC) testing, consenting to any search, and providing any type of physical evidence.

It is all right to provide the officer basic information about yourself such as name, address, date of birth, driver’s license number, and insurance information for his/her reports, but never discuss any facts concerning your alleged DWI that can be used against you in court later. Additionally, instead of saying something along the lines of “I don’t recall,” it is far better to inform the officer that you will not make any statements without your criminal lawyer present. It is also critical to remember that many officers are equipped with video recording devices, so everything you say or do may be captured on camera and can be used in court against you.

Additionally, make sure that you:

• Use your turn signal when pulling over
• Remain calm
• Be courteous, cooperative, and polite at all times
• Think before you speak or act
• Have your driver’s license, registration, and poof of current and valid insurance readily available
• Obey the officer’s commands provided they are reasonable, such as frisking you for weapons and other contraband and the like.

Finally, do tell the police if you have a weapon in the vehicle and if you have a valid concealed carry permit. Let the officer know where your firearm is located, keep you hands in plain view, and don’t make any sudden movements. You don’t want to spook an armed officer. Just let him/her give you instructions.

What not to do

If stopped and/or arrested by police for DWI, never:

• Provide false information
• Fidget or make sudden movements especially with your hands
• Physically resist or run from the police
• Talk too much (e.g. trying to talk yourself out of a ticket or arrest) especially if you are intoxicated
• Touch the officers in any way
• Think that it’s too soon to speak to an attorney

What to do if you are arrested for DWI in Minnesota

If you are subsequently arrested, be polite and cooperate with officers at the station/jail. Things will go much easier if you do. Additionally, if you haven’t already, do invoke your Fifth Amendment rights against self-incrimination and ask to consult with an attorney.

Of course, however, the best recommendation is to simply not drink and drive, but if you do—and are caught—retaining the services of an experienced and knowledgeable DWI attorney is the next best thing.

Late last year, we reported on a Minnesota man who was facing his 28^th DWI and discussed the need for and effectiveness of harsher DWI legislation. Discussion involved mandatory revocation of one’s driver’s license after five DWI convictions.

More recently, however, some states have increased criminal sanctions for habitual DWI offenders—including life prison sentences—and this begs the question of whether some penalties are too harsh.

Texas faces numerous habitual DWI offenders

In Texas, a judge sentenced a habitual drunk driver to life in prison for his ninth conviction. The defendant—a 54-year-old man—struck another vehicle while weaving through several lanes of traffic and injured the driver. At the time of the accident, the intoxicated motorist had a blood alcohol concentration (BAC) of .32—four times Texas’ legal limit.

The judge justified his sentence by asserting that the defendant deliberately refused to change his life and continued to drive drunk. By taking him off the streets permanently, the defendant will not have the opportunity to injure—or subsequently kill—someone else. He will be eligible for parole in five years depending on his behavior in prison.

As would be expected, there was outrage that the sentence was too harsh, and many suggested that the court should have considered the defendant’s struggle with alcoholism. Whereas alcoholism is increasingly seen as a medical issue, the judge argued that the defendant should have been more proactive in attempting to seek help. According to the district attorney on the case, by the ninth conviction, a reasonable person would have found some way to not get behind the wheel while drunk.

Also in Texas, a 63-year-old man was given a life sentence for his 12^th DWI conviction when he crashed into a stop sign near a local elementary school while driving with a BAC of .27 and on parole for a previous 20-year sentence. Another 62-year-old man with 11 prior DWIs was also sentenced to life in prison after driving with a BAC over four times the legal limit and having removed his electronic ankle monitor while out on bail.

In Texas, repeat DWI offenders comprise nearly five percent of all state prison inmates, with 22 percent of repeat offenders receiving sentences longer than ten years. Hundreds more face more than 40 years or even life sentences.

DWI fatality in Louisiana

Down south, a woman was sentenced to 20 years in prison after pleading guilty to a fatal drunk driving accident that killed a Mississippi father of seven. In this case, it was the 28-year-old defendant’s third DWI in a mere nine months.

The defendant rear-ended the victim’s truck back in March 2017 on Louisiana’s Lake Pontchartrain Causeway, causing an aluminum guardrail to smash through the truck’s rear window, impaling the 37-year-old victim. A passenger in the truck was also injured; however, the defendant was not.

At the time of the accident, the defendant’s BAC was .216—nearly three times higher than the state’s legal limit. The defendant pleaded guilty to vehicular homicide and related charges, and she was sentenced to 20 years.

The debate rages on

While alcoholism is, indeed, a serious addiction, many lawmakers assert that lengthy periods of incarceration may not be the best allocation of resources for these types of offenders. Those with this orientation argue that rehabilitation is the best course of action—and most effective use of scarce resources—in such cases.

On the other hand, others assert that there comes a time when these dangerous people must be removed from society, especially those whose driver’s licenses have been suspended or revoked, yet they still get behind the wheel. Whereas rehabilitation may be helpful and warranted for a second or third DWI conviction, when defendants are getting their 10^th or 20^th, a different discussion is, indeed, warranted.

We previously reported on the difficulties of securing convictions for motorists arrested for DWI regarding substances not currently on the state law’s intoxicating substances list. To address this, in March 2018, Minnesota senators examined how current state DWI law addresses sniffing inhalants—better known as “huffing.”

The debate stemmed from the Minnesota Supreme Court’s reversal of a woman’s 2017 conviction for a DWI after she had been found slumped in her vehicle on multiple occasions after having inhaled difluoroethane (DFE). DFE is most commonly contained inside of propellant cans and is used to clean electronics equipment. DFE is marketed under the name Dust-Off.

Additionally, other states have experienced traffic accidents and tragic fatalities caused by drivers who were under the influence of DFE or other huffing chemical compounds. Because their laws failed to account for dangerous chemicals that are not considered to be Controlled Substances or other known street drugs, the at-fault drivers couldn’t be charged under current law.

Background

In the aforementioned case, the female defendant appealed her conviction on the grounds that DFE is not currently considered to be a hazardous substance under Minnesota’s impaired driving statute (Minn. Stat. 169A). The Minnesota Supreme Court held that a driver who is intoxicated by DFE “is not criminally liable under the plain language of the current DWI statutes.”

However, the state argued that even though the statute does not specifically refer to the chemical substance, the fact that DFE shares general characteristics of other included hazardous substances and, therefore, should be included. The state further argued that it isn’t feasible to be always up-to-date with new and emerging dangerously intoxicating substances.

Regardless of the state’s argument and a dissenting opinion, the court overturned the defendant’s conviction.

State law

Under original state law, someone is guilty of DWI if caught driving, operating, or being in physical control of a motor vehicle while under the influence of alcohol and/or a known intoxicating or controlled substance. Additionally, a person with a blood alcohol concentration (BAC) over the legal limit or who has any metabolites of a Schedule I or II controlled substance is also presumed to be under the influence of a controlled substance in Minnesota.

Because DFE is not illegal, it is, in fact, considered to be an intoxicating substance, and this oversight—or legal loophole—led to recent lawmakers’ discussions.

The rationale was that simply because a particular substance is not alcohol or a known “street drug” does not mean that it can’t still cause someone to become impaired and, subsequently, too intoxicated to drive safely. Even though some substances cannot be specifically tested, law enforcement officers who reasonably believe that a motorist is driving while under the influence should be able to charge said person with DWI.

losing the legal loophole

Some lawmakers such as Senator Greg Clausen (DFL-Apple Valley) saw a loophole in current state law in which DFE is not considered to be hazardous substance. Simply, the loophole excluded certain dangerous and intoxicating chemicals found in ordinary household substances—including DFE.

In response, Clausen proposed Senate File 2479 to affect OSHA standards with result to hazardous substances under the Minnesota Department of Labor and Industry. The Senate File also seeks to promote uniformity among all DWI offenses by requiring that prosecutors prove a suspect was, in fact, under the influence of alcohol and/or drugs. This Senate File has received considerable support from the State Patrol DWI Task Force, Minnesota County Attorneys Association, Minnesotans for Safe Driving, Mothers Against Drunk Driving (MADD), other law enforcement groups, and additional senators.

As a result, the Senate File was overwhelmingly supported in both congressional houses and Governor Mark Dayton signed it into law in May of 2018. As of 1 August 2018, the bill officially went into law.