In addition to the numerous criminal and administrative consequences which result from a DWI conviction, a consequence which can be detrimental to a person who travels for business or leisure has recently become a bit easier to overcome.
Until recently, any person with a DWI conviction was barred from entering the country for a period of time after the conviction. The bar has caused thousands of dollars in lost revenue for the country’s tourism industry, as many people were unaware of it until they were forced to cancel their plans after being stopped at the border.
Beginning March 1, those with one minor conviction may apply for a free Temporary Resident Permit. This option has been available for some time, however the process has been made shorter and cheaper. The option is available to those with a DWI conviction, if it is the only conviction on the person’s record.
Some good news!
One of the first questions an attorney will ask when a person meets with them regarding a DWI arrest is: do you have any priors? This is because a DWI is what is called an “enhanceable offense.” This means that certain factors, called “aggravating factors” make a DWI arrest more severe than it would otherwise be.
Aggravating factors include:
- Prior qualified impaired driving incident within 10 years;
- A blood alcohol level (BAC) of 0.20 or more upon arrest;
- A child under 16 in the car at the time of arrest.
Aggravating factors determine which of the four tiers of DWI offenses a person is charged with:
- Fourth-Degree DWI: Misdemeanor offense, with a maximum penalty of 90 days in jail and/or a $1,000 fine. This is charged when a person commits a DWI with no aggravating factors.
- Third-Degree DWI: Gross misdemeanor offense, with a maximum penalty of one year in jail and/or a $3,000 fine. This is charged when a person commits a DWI with one aggravating factor, or when a person refuses to submit to testing. Based solely on prior convictions with no other aggravating factors, this would be a second DWI within a ten year period.
- Second-Degree DWI: Also a gross misdemeanor offense, with the same maximum penalty as a third-degree DWI. While the maximum penalty is the same as a third-degree DWI, there are certain minimum penalties imposed, which are greater than those for a third-degree. This is charged when a person commits a DWI with two aggravating factors, or when a person refuses to submit to chemical testing and there is one aggravating factor present. Based solely on priors with no other aggravating factors, this would be a third DWI within a ten year period.
- First-Degree DWI: Felony level offense, with a maximum penalty of seven years in prison and/or a $14,000 fine. This is charged when a person commits his or her fourth or more qualified impaired driving incident within a ten year period, his or her second or more felony DWI, or has previously been convicted of certain crimes involving injury or death while impaired by a substance. Based solely on priors, this would be a fourth DWI within a ten year period.
If you are arrested for DWI and you know that your record includes a prior DWI, it is important to speak with an attorney regarding your rights and the consequences that you may be facing.
Arguably the most common question asked of criminal defense attorneys handling DWI cases is: should I take the test? When a person is stopped by an officer on suspicion of a DWI, a number of tests are performed.
The most important answer to this question is: refusing to test is a crime. If you are arrested for DWI, brought to the station, and asked to take a blood, breath, or urine test, you cannot refuse all three or you could be charged with a gross misdemeanor. If you are asked to submit to a blood test and you refuse, but you are not offered an alternative, you cannot be charged with refusal until you are offered an alternative which you also refuse.
The three important parts of interaction with the police in a DWI investigation are as follows: the stop, the arrest, and the subsequent test. In order for police to pull over a car, the officer must have reasonable suspicion that a crime has been committed. This may be as innocuous as speeding, or as dangerous as swerving or driving on the wrong side of the road.
Next, before an officer can arrest a person, he or she must have probable cause to arrest. This is a higher standard than reasonable suspicion, and can be obtained in a number of ways. The officer may ask the person to submit to a preliminary breath test (PBT) or may ask him or her to perform field sobriety tests (one leg stand, horizontal gaze nystagmus, walk and turn test, etc), which may provide the officer with probable cause to believe the person was driving, in operation, or in physical control of the vehicle while intoxicated. An odor of alcohol, watery and bloodshot eyes, or other physical signs of intoxication may also contribute to probable cause.
Finally, the officer will take the driver to the station and ask him or her to submit to a blood, breath, or urine test. Refusing to take any of these tests is a gross misdemeanor. No attorney can advise you not to take the test because advising you not to take the test would be advising you to commit a crime, which no attorney can ethically do.
Many individuals facing criminal charges ask this question, either because they believe their charge is not very serious, or they believe they cannot afford private representation. The answer to their question is often “it depends.”
Even if a person is simply charged with speeding, they may be required to appear in court. Even in these simple cases, court hearings can be complicated and an attorney can help navigate these hearings on your behalf, and can use their experience to attempt to have your charges dismissed, or negotiate either a lesser penalty or a plea bargain to keep your record cleaner.
The complexity of the charge may also be a factor. For example, if you did not have current proof of insurance with you when you were pulled over for speeding, often times you will be able to contest this charge yourself. On the other hand, a first time DWI offense includes administrative consequence in addition to criminal penalties, which an attorney can help you navigate.
While these charges above may or may not require the services of an attorney, a gross misdemeanor charge includes more complicated court hearings and the potential for one year in jail and/or a $3,000 fine. A common gross misdemeanor is a DWI charge within 10 years of one prior DWI conviction. A felony charge is greater than a gross misdemeanor, and comes with the potential for more than one year in prison and/or a higher fine. In either of these, consulting with an attorney is essential to help navigate the system as well as negotiate lesser penalties.
Welcome to the SeilerSchindel Criminal Law Blog Series. In this series, we will look at some of the common issues confronted by our clients and discuss other topics related to criminal law. This series is meant for individuals interested in learning more about Minnesota criminal law, and we hope that anyone facing potential criminal charges will benefit as well. We encourage you to post comments and share our blog with your friends, family members and colleagues.
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