Did you know that there are two sides of a DWI in Minnesota (and most other states)? Minnesota law provides that whoever drives on a Minnesota road gives “implied consent” for their blood alcohol level to be tested by the police if they have probable cause to believe that you are over the .08 limit or under the influence of alcohol or a drug. What this means is that the law allows police to request a sample of your blood, urine or breath if they follow a complex set of procedures correctly and have legally arrested you for DWI.
When most people think of DWI, they’re thinking of the criminal case, and the potential for jail, probation and fines. But there is a whole other side to a DWI: the Implied Consent side. Why is this important? Because the Implied Consent case deals with your driving rights and your driving record. Even if you win your DWI criminal case, unless you also fight and win your Implied Consent case, you still get a DWI on your driving record for the rest of your life, and you also still get revoked. I know it’s not fair, but it’s the law.
The kicker is that you only get 30 days (for a breath test on the Intoxilyzer) or 33 days (for blood or urine tests) to file the challenge (in most cases). Some people wait until they get a court date in the mail until they call a lawyer. That’s a big mistake, because for many of those people, they have already missed the deadline and they’re stuck with the revocation and the DWI on their driving record forever. So if you gave a blood, urine or breath sample, or if you refused to give a sample, you should get an experienced DWI lawyer to file your Implied Consent challenge right away. Do not wait until you receive a court date and/or ticket in the mail, because you may be too late, and if you’re too late, not only will you be revoked, but your insurance will skyrocket.
The following is a general summary of Minnesota’s Implied Consent law. It is intended only to be a summary and should not be relied upon for legal advice. If you want specific legal advice, you can contact me for a consultation.
WHAT’S THE DIFFERENCE BETWEEN IMPLIED CONSENT AND A DWI?
A DWI is a crime in Minnesota. If you plead guilty or are convicted of a DWI, you face the possibility of jail and/or prison time, fines, probation, an alcohol assessment, a MADD panel, potential alcohol treatment, and a conviction on your criminal record. The criminal side of the DWI is what most people think about when they think of a DWI.
The other side of a DWI is the civil side, called the Implied Consent. The Implied Consent is not a criminal case. Rather, it deals with your driving rights and your driving record.
The criminal court is not in charge of your driver’s license and driving record. The Commissioner of Public Safety (at the DMV) is. That’s why the police can give you a piece of paper indicating that your driving privileges are revoked if you test at .08 or more, even though you haven’t even had a court date or been found guilty of DWI. How is that fair? It’s not, but it’s the law.
The goal of the Implied Consent law is to revoke your driving privileges and put a DWI on your driving record for the rest of your life. Revocation periods generally last from 90 days to a few years, depending on the severity of your DWI as well as the number of prior DWIs you have had and whether any of those priors were within a 10-year period of your most recent DWI. The more you have had, the worse it gets.
HOW DO I KNOW IF THIS APPLIES TO ME?
If your driving privileges were or are about to be revoked because of a DWI, then you have a right to challenge the Implied Consent revocation. There are two ways you can be revoked: 1) if you took a breath test on the Intoxilyzer 5000 and received a printout showing that you tested .08 or more, then the officer most likely filled out a white piece of paper that says “Notice and Order of Revocation” at the top. That piece of paper also tells you that you have a 7-day temporary driver’s license, and a box will be checked telling you how long you will be revoked for; 2) if you took a blood or urine test and the results come back over .08 or with a drug in your system that you were under the influence of, then you will eventually receive a letter in the mail from the Department of Public Safety indicating that your driving privileges will be revoked about 7 days from the mailing date of the letter.
Make sure that your mailing address matches the address on your driver’s license. Some people have missed the revocation notice because the address on their driver’s license isn’t correct. If you miss the revocation notice, you may miss the statute of limitations to make the Implied Consent challenge. If you miss that deadline, you are almost always out of luck.
It is best to get a DWI lawyer as soon as you can. Why? It takes time to make the Implied Consent challenge. If you go to the lawyer a day or two before your Implied Consent deadline, the lawyer may not have time to file the challenge for you. We can usually take care of it in an emergency, but there is no point in risking it if you have notice of the revocation. The sooner you challenge it, the better.
As an added bonus, Hennepin and Ramsey counties will permit lawyers to request that their client (you) have their driver’s license fully reinstated pending the outcome of their whole case. This means that we can get your full license back for you and you don’t have to be revoked while we’re challenging your case.
HOW LONG DO I HAVE TO CHALLENGE AN IMPLIED CONSENT REVOCATION?
If you took a breath test on the Intoxilyzer 5000, then the officer most likely handed you a Notice and Order of Revocation before they sent you home. If that is the case, then you have 30 days from the date in the upper right hand corner of that document to file the Implied Consent challenge.
If you took a blood or urine test, and the results came back over .08 or with a drug in your system, then you were (or will be) mailed a Notice and Order of Revocation from the Department of Public Safety. If that is the case, then you have 33 days from the mailing date to file an Implied Consent challenge. The mailing date is located in the upper right hand corner of the document.
Do not wait until the last day to let a lawyer know. The earlier you hire a lawyer, the better off you are.
WHAT IF I GOT MY CHARGE LOWERED TO A CARELESS DRIVING OR GOT THE DWI THROWN OUT?
If you are not convicted of DWI, either because you are found not guilty, because your case is dismissed, or because you plead down to a lower charge such as careless driving, speeding, having a headlight out, etc., then you still need to fight and win your Implied Consent case, otherwise the DWI will go on your driving record even though you were not convicted of DWI. They don’t care if you didn’t get a DWI in the criminal case.
Keep in mind that the Implied Consent law does not care if you were never charged criminally with a DWI, does not care if your DWI was dismissed in the criminal case, does not care if you pled your DWI down to a lower charge such as a careless hearing or a speeding ticket, and does not care if you went all the way to trial and were found not guilty. The Implied Consent law will still keep you revoked and will still keep the DWI on your driving record, unless and until you make a timely challenge to the Implied Consent revocation and actually win at the Implied Consent hearing. That’s the difference: your driving record and driving privileges versus your criminal record and criminal consequences.
Some lawyers will tell you they got you a “deal” because they got your DWI down to a careless. In most cases, that is not as great of a “deal” as you think, because unless they fight and win your Implied Consent, you still have the DWI on your driving record for the rest of your life, and you are still revoked for at least 90 days. The “deal” is better if you get a careless and do not “waive” your Implied Consent hearing, thereby preserving your right to still fight (and potentially win) the Implied Consent hearing. I am not saying that a careless or some lower plea is never a good deal-sometimes it is (like when you have a prior DWI within a 10 year period from your current DWI). But I have seen too many people think they were not getting a DWI by pleading guilty to a careless, only to find out later that their lawyer never advised them that they were still getting a DWI on their driving record.
CAN I CHALLENGE THE IMPLIED CONSENT ON MY OWN?
There are two ways to challenge an Implied Consent revocation. The first way is to make an administrative challenge. You can technically make the administrative challenge any time during the period of your revocation. See Minnesota Statute 169A.53 subd. 1. The problem with the administrative challenge is that it is basically a waste of time and effort. When you make an administrative challenge, you are asking the Commissioner of Public Safety to rescind (undo) the revocation and take the DWI off of your driving record. The problem is that the Commissioner’s goal is to keep you revoked and keep the DWI on your driving record. You are therefore asking the Commissioner to go against his or her own policy. Good luck.
The other way is to file a petition for judicial review and ask a judge to decide whether it was right for the Commissioner to revoke your driving privileges and whether the DWI should stay on your record or whether it should be removed (rescinded). This procedure is more work than the administrative review, and it is also more complex. But it is a more effective way of challenging the revocation, and gives you a better chance of winning than the administrative challenge. Watch out for the time limits referenced above, and make sure you hire an experienced DWI lawyer to file your implied consent challenge. The procedure is too complex to handle without a lawyer, and you have too much to lose by trying to wing it. In addition, at Ryan Pacyga Criminal Defense, we do not charge more for handling the Implied Consent case for you. It is all part of our defense for you.
WHAT HAPPENS IF MY LICENSE IS REVOKED?
If your license is revoked because of a DWI, you will first get a temporary license, usually for 7 days. The purpose of the temporary license is to let you get your affairs in order before you cannot drive.
After your temporary license expires, then you will be revoked for a period of time, usually between 90 days and 1-3 years, depending on how many priors you have and whether there were any other aggravating factors such as testing over .16 or having a child age 16 or younger in the car at the time of the DWI. During that revocation period, there will be a portion of it that you cannot drive at all. After that portion, you can get a “limited license” (often called a work permit) if you qualify.
If your DWI occurred in Ramsey or Hennepin County, then your lawyer can get your driving privileges reinstated so that you do not have to deal with most of the revocation up front. In those two counties, the revocation will be held pending the outcome of your criminal and implied consent cases.
Every situation is different, so you cannot count on the above timelines. They are just general guidelines. For the specific revocation periods on your case, you should talk to an experienced DWI lawyer and/or call the DMV at 651-296-2025. I also have a link on my website to the DMV where you can check the status of your driver’s license. To access the link, go to www.arrestedmn.com and click on the “resources” page, then scroll down to “driving and transportation” click that and then find the link that permits you to check your driver’s license status.
WHAT HAPPENS AT THE IMPLIED CONSENT HEARING?
After we file the Implied Consent challenge asking for a judge to hear the case (a petition for judicial review), then we will get a hearing where the judge will decide your case. Think of it as you versus the Commissioner of Public Safety. In your corner is you, your lawyer, and any witnesses you decide to call to support your case. In the other corner is the Commissioner of Public Safety (represented by the Minnesota Attorney General’s office), any of the police officers that will testify against you, and any other witnesses that the Attorney General decides to have testify against you, like lab scientists.
There is no right to a jury for the Implied Consent case. You only have a right to have the judge decide the case. The Commissioner of Public Safety has the burden of proof. They must prove that revoking your driving privileges and putting a DWI on your driving record was lawful, and they must prove this by a “preponderance of the evidence” (think of it as more likely than not, or 51% to 49%).
The hearing is usually all or nothing. In other words, unlike the criminal case where there is a chance that you can get an offer for a lower charge, there usually is no “offer” in an Implied Consent case. You either win the whole thing or you lose the whole thing. For this reason, there is usually no reason to “waive” the hearing. It is usually worth challenging any issues in your case, to the extent that the issues have merit.
Procedurally, the judge will ask your lawyer what issues are at stake in the hearing. After your lawyer tells the judge, then the Commissioner will call their first witness (usually the officer that arrested you). After the officer testifies, your lawyer gets to cross examine the officer. This process continues until the Commissioner is done calling all of their witnesses. After they are done, your lawyer gets to decide if any witnesses should be called to testify on your behalf. Sometimes we call witnesses. Sometimes we don’t because there aren’t any available witnesses for you, or because it may hurt your case if we call you as a witness. We will discuss this with you prior to the hearing, and will make that decision with you.
After the witnesses are done testifying, the judge will either tell the lawyers to make oral argument right then and there, or to file written arguments (called “briefs”) by a certain deadline. The judge then has 14 days to make a decision after the last brief is filed. The judge will either decide that the revocation was proper and that the DWI stays on your driving record (called “sustained”) or that the revocation and DWI on your record were improper and order that they must be taken off of your record (called “rescinded”).
WHAT IF I WIN THE IMPLIED CONSENT CASE?
If we win, that decision will usually, but not always, have a positive effect on your criminal case. In other words, if the prosecutor and criminal judge learn that we won your implied consent challenge, they may dismiss the criminal DWI against you. They are not required to do so under the law, but they usually give respect to the Implied Consent decision.
If they do not dismiss the criminal case, then you still have to fight the DWI on the criminal side and try to get it pled down to a lower charge or win at trial. If you plead guilty to the DWI, or if you go to trial and lose, then the DWI will still go on your driving record (even if you won your Implied Consent case) and you will still be revoked.
If we win your Implied Consent case and you are not found guilty of DWI on the criminal case, then the approximately $800 you paid to get your license back must be refunded to you.
WHAT IF I LOSE THE IMPLIED CONSENT CASE?
If you lose the Implied Consent hearing (meaning the revocation was “sustained”), then the DWI stays on your driving record, and you must serve out the remainder of your revocation.
CAN A PUBLIC DEFENDER DO MY IMPLIED CONSENT CASE?
A public defender cannot file an Implied Consent challenge for you and cannot fight your Implied Consent case. It is not because they do not care, quite the contrary. Rather, it is because their budgets do not allow them to fight a civil case for you, and you have no constitutional right to a lawyer in a civil case. So even if you qualify for a public defender in your criminal DWI case, be aware that no matter what happens in that criminal case, if you do not also fight and win your Implied Consent case, the DWI and revocation will stay on your record.
Remember, the information above is just a basic summary of the Implied Consent process in Minnesota. There are too many fact-specific variables to cover every situation in one document. Therefore, this information should not be relied upon for legal advice. The best thing you can do to protect yourself is to hire an experienced DWI lawyer. If you have further questions, feel free to call Ryan Pacyga Criminal Defense at 612-339-5844 or visit our website at www.arrestedmn.com You can also follow Ryan Pacyga on Twitter @arrestedmn