Is It Ever Better to Refuse the Test?
With the caveat that a lawyer cannot counsel a client to refuse testing, the Minnesota legislature has created a perverse incentive for certain first-time offenders to refuse testing because such persons can avoid the imposition of whiskey license plates and ignition interlock device triggered by a test result of 0.16 or more, i.e., double the legal limit or more.
A driver who commits a true first-time DWI offense in his lifetime, i.e., has no prior DWI convictions or DWI license revocations, will need whiskey license plates and an ignition interlock device for one year if his test result is double the legal limit or more (0.16 or more). If the same driver refused the test, he would receive one year of license revocation but would not be subject to whiskey plates or use of an ignition interlock device. He would be entitled to obtain a limited license after completing 15 days of no driving. Furthermore, the one-year license revocation will be reduced to 30 or 90 total days if the driver is subsequently convicted of misdemeanor DWI or gross misdemeanor Test Refusal. Therefore, the legislature created an incentive for drivers to refuse the test if their alcohol concentrations are likely to be 0.16 or more in a first-time offense.
If a driver has a child under the age of 16 in the car during a first-time offense, the driver should not refuse testing because refusal will trigger vehicle forfeiture.
If a driver has one prior DWI conviction or DWI license revocation that is more than 10 years old, the driver will avoid whiskey plates and ignition interlock by refusing the test if his alcohol concentration is 0.16 or more. However, due to the old prior DWI offense, the driver will be subject to one year of license revocation where there are 15 days of no driving and 350 days of driving with a limited license. Thus, a driver with one old prior will not receive an administrative reduction in the license revocation to 30 or 90 days upon conviction of misdemeanor DWI or gross misdemeanor Test Refusal.
If a driver has two (or more) prior DWI convictions or DWI license revocations that are more than 10 years old, the driver who refuses testing can avoid the imposition of whiskey plates but will receive a revocation of at least two years and subject to driving only with an ignition interlock device.
The difficulty in this entire analysis is that a driver rarely knows definitively if his test result will be 0.16 or more. If a driver knows the result of a preliminary breath test administered at the scene, the result often is the best indicator of how high the official test of one's breath, blood, or urine will be. A BAC calculator can be a useful tool as well.
The average alcohol concentration in a DWI case is between 0.15 and 0.16 according to data released by the Minnesota Department of Public Safety.
Opting to refuse the test can trigger being held in jail significantly longer following an arrest because test refusal is a gross misdemeanor offense. If a first-time offender submits to the test and the result is 0.16 to 0.19, he will be charged with a misdemeanor DWI and will either be released from jail promptly or will not be booked into jail at all.
Should a Driver with a Prior DWI Conviction or DWI License Revocation within the Previous 10 Years Ever Refuse Testing?
No, the driver should submit to testing unless there is a DWI accident causing bodily injury as discussed below. Refusal will trigger vehicle forfeiture and the harshest license revocation period.
Under Minnesota law, DWI offenses are enhanced to more serious crimes if a driver has a prior DWI conviction or DWI license revocation within the previous 10 years.
For drivers with a prior DWI conviction or DWI license revocation within 10 years, test refusal will trigger vehicle forfeiture and an automatic two-year license revocation period, subject to whiskey plates and use of an ignition interlock device. In addition, test refusal charges likely will be easier for the state to prove at trial.
DWI Accident Causing Bodily Injury to Another Person
If a driver is involved in a DWI incident causing bodily injury to another person, including a passenger in the car, the legislature has created a significant incentive to refuse testing because test refusal is not an element of the offense of Criminal Vehicular Operation. Generally, in any DWI accident causing significant injuries to another person, the police will require the driver to submit to a blood test without obtaining the driver's consent. In that case, a driver does not have a choice to refuse the test, but a blood draw obtained without the driver's consent and without a warrant may be challenged in court.
A DWI accident causing death, great bodily harm, or substantial bodily harm is a felony level offense. A DWI accident causing mere bodily harm is a gross misdemeanor offense. These offenses fall under the Criminal Vehicular Operation (CVO) statute. In a CVO case, the State has to prove that a driver is under the influence of alcohol or has an alcohol concentration of 0.08 or more. A CVO case also can be based on the presence of a controlled substance revealed in a blood or urine test. Thus, the legislature has created an incentive to refuse chemical testing in a CVO case because refusal will make it more difficult for the State to prove that a driver was under the influence of alcohol or a controlled substance.
See Part 3 for more information