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How do you get charged with a 4th degree DUI in Minnesota if you refused to test?

Minnesota |

I was driving after a couple of glasses of wine, and my daily anti depression medication when i was pulled over. I knew that I was close to .08 either above or below...I knew that I was on medication so I refused to take the test. I had no idea this was a crime at the time. I also had no idea that it is worse than a 4th degree DUI if you refuse the crime. Why wasn't this explained to me. Once my lawyer met me at the station, we treid submitting to a test but they would not let us...somehow I was charged with both a 4th degree DUI, 5th degree DUI (Which i can't even find a definition for) and test refusal. My ex lawyer wants me to plead guilty to all of them...I think that if i plead guilty to the DUI the refusal to test should be dropped...if no...then what proof for the DUI?

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Attorney answers 3


I don't practice in MN, but generally speaking there are two DUI charges: .08 BAC or above and Driving While Impaired because of alcohol or drugs. The 4th / 5th degree DUI is probably the latter kind of offense.

A test refusal is usually a violation of the implied consent law: you impliedly consent to a blood or breath test when you drive on the roads. The punishment is almost always worse when refusal is involved.

Without a BAC, the prosecution can only bring the Driving while ability Impaired. The state's only evidence will be the offficer's observations of your driving -- what makes your driving impaired. The officer's observation about your being intoxicated will also be used as evidence.

In my opinion you need to discuss this matter more fully with a local DUI lawyer.

Edward J. Blum


In Minnesota refusal to consent to a search of your body, by submitting a sample for chemical testing, is currently defined as a DUI crime. Driving with a alcohol concentration measured as .08 or more within tow hours, is another DUI crime here in Minnesota. Driving Under the Influence, is yet another crime, which does not require a chemical test report as evidence in order to be prosecuted.

Consenting to the search, shorlty after a supposed refusal, can be a winning defense to a refusal charge.

Keep in mind that the administrative drivers license revocation must be challenged in writing, and served and filed within 30 days or it will forever be too late! Otherwise there will be an alcohol realted incident on the drivers license record for life.


The prosecutor charged you with DUI and Test Refusal just to cover their bases. They will not ultimately want to convict you of both charges, although they will generally want you to plead to the more serious one (Test Refusal) in exchange for dropping the other one. It's been awhile since you posted this question, so I hope you eventually found a competent DWI defense attorney to help you in this situation. The advice from your "ex lawyer" is not good advice at all. Especially with the fact situation you describe, I can see many red flags and possible defenses to your charges. It may even be a winnable case (nothing at all on the record), but sadly, I'm guessing your time for that has passed already. I think the internet is a great tool for doing initial legal research about questions like these, but it is no substitute for talking with a few DWI defense attorneys to determine what your options are and what is the right way to proceed in a DWI situation. All cases are unique.

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