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Frequently Asked Questions about DUI in Minnesota

When you can be arrested for DUI?

An officer may arrest a driver, if the driver (aged 21 and over) is driving with a BAC of 0.08% or more or with the presence of a controlled/hazardous substance in their system; and, if the driver (under the age of 21) is driving with a BAC of 0.02% or more or with the presence of a controlled/hazardous substance in their system.   If the officer has a reasonable belief that the driver is intoxicated or under the influence of alcohol or some controlled substance, then the officer may stop the vehicle.  Once the officer stops the vehicle then the officer may administer a standard field sobriety test or preliminary breath test to establish probable cause for a DUI/DWI charge.  If the driver fails the preliminary test or refuses to take the test, then the officer may arrest the driver.

What are lawful/unlawful vehicle stops in Minnesota?

A law enforcement officer may lawfully stop a vehicle if the driver is not obeying the traffic rules or there is reasonable suspicion of intoxication.  However, a law enforcement officer may not stop a vehicle, without any probable cause, even if the driver has a special “whiskey” plate or any other identification indicating a history of DWI/DUI’s.  A whiskey plate is a special plate issued when someone in the violator’s household has a valid driver’s license, the violator has been issued a limited license or the owner is not the violator and the owner or someone in the owner’s household has a valid or limited license.

What evidence can be admitted in Minnesota?

Admissible evidence includes any legally obtained analysis of a person’s blood breath or urine for a BAC above the allowed level or any legally obtained analysis of a person’s blood, breath or urine for the presence of controlled or hazardous substances.  A person’s refusal to take a blood, breath or urine test may also be admissible.  Any other competent evidence may be admitted, including tests taken two hours after the alleged violation or results obtained from partial tests on an infrared or other approved breath-testing instrument (as long as there is one adequate breath sample).  However, the law enforcement officer must have probable cause before requesting testing.

Can a DUI be expunged in the Minnesota?

An expungement for serious crimes such as a DUI/DWI is never granted in Minnesota.  An expungement would entail sealing a part of a person’s criminal records so that the conviction does not appear on a background check.

What happens to individuals who have a Commercial License? Do they DUI penalties differ?

There is a lower BAC for a DUI conviction when driving a commercial vehicle (.04), and the implied consent law allows for a chemical test upon probable cause that the commercial vehicle driver has consumed any amount of alcohol.  A person in violation is subject to a period of disqualification from commercial vehicle driving, one year for the first violation and ten years for any subsequent violations.  However, the person would retain their valid driver’s license to operate regular motor vehicles, unless they have violated the regular DWI law by driving with a .08 BAC and above or with any amount of certain controlled substances in the body.  Once a commercial vehicle driver has violated a regular DWI law, they are treated the same as non-commercial drivers.

What is the implied consent law?

Minnesota has an implied consent law that assumes that any person who drives, operates or is in control of any motor vehicle has agreed to a chemical test or breath, blood or urine to determine the BAC or presence of any controlled or hazardous substance in the body.  The nature and purpose of this law is not to dissuade the driver from taking the test, but rather to inform the driver of the serious and grave consequences of refusing to take the test.  There is no requirement that the police officer inform the driver of the statutory basis for the advisory, the advisory alone is sufficient notice to preserve due process.

Can you get a DUI for being on prescription drugs?

A driver may be stopped and arrested if the officer has a reasonable suspicion that they are driving intoxicated by and under the influence of prescription drugs.  However, it is an affirmative defense to a DUI, if proven by a preponderance of the evidence, that the defendant used the controlled substance according to their prescription.  In short, if the driver is using their medication as prescribed, then they cannot be held criminally liable for operating a motor vehicle while under the influence.  For example, a driver whose prescription states that they should not operate a motor vehicle while under the influence of their medication, would most likely not have an affirmative defense for a DUI prescription drug charge, because the driver did not use their medication as prescribed.  If a driver has used the drug in a way not prescribed or if the prescription indicated that the driver should not drive, then the driver is open to criminal prosecution.

Can I be stopped and arrested for DWI even if the vehicle was not moving?

In Minnesota, the DWI statute includes driving, operation or being in physical control of any motor vehicle; therefore, whether the vehicle was moving or not at the time of arrest does not have any affect on whether the law enforcement officer may arrest the driver when the officer has probable cause.  In short, if the driver is still operating or in physical control of the vehicle and is under the influence, then they may be stopped and arrested for a DWI.  However, every situation is different, so it is advised to discuss the particular details of the situation with legal counsel who specializes in this area.

Do I have the right to talk to an attorney before I give a sample?

According to the implied consent law, all drivers must comply with the preliminary tests (usually conducted when pulled over by the officer).  However, you do have the right to talk to attorney before giving a blood, urine or breath sample for the evidentiary test, which is administered once in custody.

Do I have to give a blood or urine sample?

Due to the implied consent laws, the driver must accept one of the tests offered, but they may refuse one type of test in place of another type.  If the driver flatly refuses to take a preliminary or evidentiary test, then there are consequences/penalties.  A driver retains the right to speak with counsel before providing authorities with a blood or urine sample.

Do I have to submit to a field sobriety test?

Due to the implied consent laws, after the driver has been informed of their rights, they need to comply with the preliminary testing, either a field sobriety test or breathalyzer.  There may be consequences and penalties for refusing to take any preliminary test, unless there is some reasonable basis otherwise.  However, the driver has the right to speak with their attorney before submitting to any breath, blood or urine sobriety tests.

What are DUI Whisky Plates?

In certain Minnesota DWI cases, the state will issue special license plates that have letters (WX, WY, XW, etc. printed in blue letters on a silver plate) indicating that the person got a DWI. This typically happens on a second DWI or in a situation where the alcohol test resulted in a body alcohol content of 0.20 or greater.  There are some disadvantages to getting a whisky plate, some of which are that everybody who is familiar with the plates, will know that you got a DWI.  The plate could result in more frequent traffic stops by police officer, during which you will be closely monitored for signs of drinking or impairment; even though in 2003, the Minnesota Supreme Court ruled stopping vehicles solely on the basis of having a “whisky plate” is unconstitutional.

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