Driving while impaired: what is it?

By: Nicholas Pouladian - Staff Attorney (Community Defense Program)
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Driving While Impaired (DWI), also referred to as Driving Under the Influence (DUI) is a crime in Minnesota. What often comes to mind for DWI/DUI is an incredibly intoxicated driver, swerving all over the road, causing accidents, or even injuring themselves or others. However DWI/DUI laws are much broader than that, and cover a wide variety of driving behavior. Because DWI/DUI law is so broad, and often complex, we will be doing a series of posts about the most common basics of DWI/DUI, from what it is, to what consequences may be, and how best to protect oneself. In this post, we start with the basics:
 
What is DWI/DUI?
Under Minnesota law, there are lots of ways to be charged with DWI/DUI. You can see the whole list here: https://www.revisor.mn.gov/statutes/cite/169A.20. In this blog, the focus will be three of the most common DWI/DUI charges people are faced with:

1. driving, operating, or being in physical control of any motor vehicle with a blood alcohol concentration of 0.08 or greater, as measured within two hours of driving, operating, or being in physical control of the motor vehicle;
2. driving, operating, or being in physical control of any motor vehicle when under the influence of alcohol; and
3. refusing to submit to a chemical breath test, when based upon probable cause to arrest for a DWI/DUI violation.

1. Driving With a BAC of 0.08 or Greater:
This is probably the most common DWI/DUI charge people face – and usually what comes to mind when people think of DWI/DUI. What does it mean? In 2005, the Minnesota Legislature decided that when a person has consumed enough alcohol to make their BAC .08 or greater, it is a per se (automatic) assumption that the person is drunk-driving. That means that even if a person feels fine, and their driving conduct seems fine, if the State can prove beyond a reasonable doubt the BAC is 0.08 or greater, none of that matters.

How does the State establish someone’s BAC is 0.08 or greater? Usually through the official breath test, but it can also be done by analyzing a person’s blood or urine. These testing methods are discussed in another post.
 
2. Driving Under the Influence of Alcohol:
This is another common DWI/DUI charge that people face, and one that causes a lot of confusion. This charge presents the question of: “My BAC was less than 0.08, or I refused to take any test – I thought I could only be charged with DWI/DUI if I was 0.08 or higher? If there’s a low reading, or no reading at all, how can I still be charged with DWI/DUI?”

It’s a good question and the answer is, if someone is stopped by the police and ultimately takes an official breath, blood, or urine test, and the result is less than 0.08 (for example, 0.07, 0.06, etc.) the State cannot prosecute that person with the specific charge of driving 0.08 or greater. Similarly, if a person refuses to take an official breath, blood, or urine test – meaning there is no official BAC – the State cannot prosecute that person with the specific charge of driving 0.08 or greater.
 
However, the State can still charge a person with a separate crime – driver while under the influence of alcohol. Under this specific charge, the State does not have to prove someone’s BAC is 0.08 or greater. What they need to prove is that the person was driving, operating, or in physical control of a vehicle while under the influence of alcohol.

So, what does it mean to be “under the influence of alcohol”? And how can the State prove it? Unlike a “0.08 or greater” charge, where the evidence is focused on the BAC number, the evidence in an “under the influence” case focuses on several things, such as: poor driving conduct (such as speeding, swerving in and across lanes, failing to use a turn signal, etc.); the smell of alcohol on a person or in their car; performance on field sobriety tests; physical signs of intoxication such as slurred speech, bloodshot or water eyes, or vomiting; and, admissions or observations of consuming alcohol. This is not a complete list, but focuses on several of the most common ways the State argues its case.

If all, or some, of the above circumstances are present, the State will argue to the judge or jury that the driver was under the influence of alcohol – even with a BAC less than 0.08, or no BAC at all.
 
3. Refusing to Submit to a Chemical Test:
In Minnesota, if law enforcement has probable cause to suspect someone of violating a DWI/DUI law, they have the authority to administer a chemical breath test. Law enforcement is not required to get a warrant before administering the test. Importantly, it is a crime to refuse to take this test.

Before someone is asked to take the test, law enforcement will have already arrested them based on suspicion of a DWI/DUI offense. They will then be taken to a police station, and read the “implied consent breath test advisory”. This “advisory” will be covered more in depth in another post, but in short it is a form law enforcement is required by law to read to individuals before asking if they will take the breath test. During this time, a person has the right to attempt to contact an attorney, and law enforcement will provide phone books and a telephone.

After the person has spoken with an attorney, or attempted to, law enforcement will ask if the person will take the test. If the person agrees to take the test, the test continues and is recorded. If the person declines to take the test, whether through affirmative refusal (like saying “no, I will not take the test”), failing to answer the question, or taking too long to answer, they will then be charged with test refusal.
 
A common question related to this charge is: “I took the first breath test, how can I be charged with refusing this second test?” And, it’s a great question. Typically, law enforcement conducting a DWI/DUI investigation will ask the person to take a “preliminary breath test” – often referred to as a “PBT” – which is what is usually administered on the side of the road. This PBT test is not the official breath test. The PBT test results may permit law enforcement to arrest the person, but it is an unofficial investigative tool, and the results cannot be used at trial. And, that is exactly why the second “official” breath test is required.

Because the conduct in this charge seems different than what usually comes to mind for DWI/DUI, people are often confused as to why test refusal is treated the same. In short, it is because the Minnesota Legislature wants to severely punish people who do commit “typical” DWI/DUI offenses, and also want to punish people who try to avoid giving a BAC sample. Therefore, it is important to remember, a test refusal is a DWI/DUI offense for purposes of criminal and civil penalties.
 
In conclusion, this was a brief and general introduction and summary of what DWI/DUI is in Minnesota, and what some of the most common charges people face are. In additional blog posts, we will discuss in greater detail:

• DWI/DUI Investigations & My Rights
• I Wasn’t Technically Driving, How Can I Be Charged?
• Criminal DWI/DUI Penalties and Sanctions
• Civil DWI/DUI Penalties and Sanctions

 

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