Starting on August 1st, 2015 there are some changes in Minnesota DWI laws that will be going into effect. While one of these changes, which is discussed in an earlier blog, lowers the blood alcohol concentration (BAC) required for a gross misdemeanor from .20 to .16, which will lead to harsher penalties for certain offenders, some of the other changes actually benefit individuals arrested for DWI.
There were many other proposed changes to the law that would have benefited DWI defendants, however these changes did not make it through the Minnesota House of Representatives for this year. We feel they are worth mentioning as they may come-up again in a future legislative session.
Some of the following proposed changes that DID NOT make it into law for 2015 are discussed briefly below.
Preliminary Breath Test
One of the major proposed changes for 2015 was with regard to the roadside breath test that police administer before placing an individual under arrest. This test is known as a preliminary breath test (PBT). The PBT is one of the elements that police use to establish probable cause for an arrest. While this test is generally not admissible in court, it can be used as evidence in some circumstances.
As the law stands right now, a police officer is not required to disclose the results of the PBT to the individual being arrested for DWI or the attorney of that person at the time the officer is making the arrest. A proposed change this past legislative session was to require the police officer to disclose the results of the PBT of the arrestee or his attorney requests to know them. Under the proposed change that did not pass, if the officer were to not disclose the results when requested, the admissibility of the PBT results in court would have been further limited.
Defenses to DWI
Another major proposed change in the law were to the affirmative defenses that could be used in a DWI prosecution. An affirmative defense means that the defendant admits to committing certain conduct, but that they had a reason to do it which is allowed under state law. As the Law stands right now there are only two affirmative defenses to DWI that are codified by statute:
- (1) The person became impaired after he or she stopped driving; or
- (2) The person became impaired due to the use of prescription drugs that were being used according to the terms of a prescription.
While these are both great tools to have when defending yourself against a DWI charge, they are difficult to prove and it is a very limited scope of affirmative defenses.
There were two additional affirmative defenses that were proposed and did not make it through the Minnesota House of Representatives and into MN statutes:
- (1) Reasonable grounds for test refusal.
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- In Minnesota, it is a crime to refuse to submit to a blood, breath, or urine test once someone is arrested for DWI. If the proposed changes had made it through the House of Representatives you could have defended yourself against this charge by raising the defense that you refused the test based on reasonable grounds. “Reasonable Grounds” is a very ambiguous term, which means that it is open to a wide interpretation and it is possible that this defense would have been very useful in a variety of circumstances.
- While the affirmative defense of reasonable refusal did not make it into the criminal statute, there is case law supporting its use under certain circumstances. This means that you can still use the defense, but it will not be given as much legal significance as it would have had it been written into the statute.
- (2) Necessity
- Currently, even if you are in an emergency situation and need to drive you can still be charged with a DWI if you have a BAC of .08 or more. Under the proposed changes, the defense of necessity would have been available to individuals charged with DWI. This means that if you were in an emergency situation and you had been drinking, you could have defended yourself by saying that it was necessary for you to drive. An example of a situation that this would have applied to would be if someone had a life threatening injury and you needed to drive them to the hospital as soon as possible.
- While the affirmative defense of necessity did not make it into the criminal statute, it is an affirmative defense when challenging the revocation of your driver’s license. So while you can still be convicted of DWI if you are driving with a BAC of .08 or higher in a situation where it is necessary for you to drive, you can still use the statutory defense of necessity to challenge the revocation of your driver’s license.
License Revocation and License Plate Impoundment
Whenever someone is charged with a DWI their license is revoked, and in certain instances your license plates are impounded, for a certain period of time depending on the degree of DWI that an individual is charged with. That license revocation is challengeable if the individual submits what is called an implied consent petition. In order to make that challenge, the implied consent petition must be submitted within 30 days of the date that you are given notice of your license revocation or license plate impoundment.
Starting on August 1st, the implied consent petition must be filed within 60 days of the notice of license revocation. This will certainly allow attorneys to more time to investigate their case in determining what issues should be added to a license revocation challenge
When you get a DWI and your license plates are impounded, you will receive a temporary vehicle permit that will last 7 days, if you submitted to a breath test. If you submitted to a blood or urine test, your license plates will not be impounded until after the results of the test are processed by the Bureau of Criminal Apprehension (BCA). The new law, effective August 1st, 2015, will give an individual who submits to a breath test a 14 day temporary vehicle permit. It also gives a driver that submitted to a blood or urine test a 45 day temporary vehicle permit rather than allowing them to keep their license plates until the test is processed by the BCA.
After an individual’s license is revoked there are a number of things that they must do following the revocation period in order to get a valid license again. One of those things has been a requirement that they take a test on chapters 7 and 8 of the Minnesota Driver’s Manual. As of August 1st this will no longer be a requirement for reinstatement of a driver’s license.
Vehicle Forfeiture
Certain DWI offenses allow the State to forfeit the offender’s vehicle. This can cause some serious hardship not only on the offender, but also on his or her family and anyone else that might rely on the forfeited vehicle. The way that the statute stands now, everyone that commits an offense which subjects their vehicle to forfeiture must either let their vehicle be forfeited or challenge the forfeiture. There were some interesting ideas proposed this past legislative session with regard to establishing new vehicle forfeiture law that may have been more favorable to the defendant. Unfortunately, these ideas didn’t pass into law this time around, but let’s hope this changes in the future. It is our opinion that current Minnesota motor vehicle forfeiture law is overly punitive in nature and that this needs to be addressed.
In Summary, the DWI laws in Minnesota are very complicated. With all of the changes that are going into effect it will become even more confusing. If you are charged with a DWI it is imperative that you contact a Minnesota DWI Defense attorney to ensure that your rights are protected. Should you find yourself in the unfortunate situation of being charged with a DWI, contact the Kans Law Firm by phone at 952-835-6314 or by email at dtkans@kanslaw.com.
