It seems like the Minnesota Legislature changes parts of the DWI laws every year that increase penalties on drunk drivers while making the process more easy for officer and courts to convict them.  One major change that took effect for offenses occurring on or after August 1, 2015 is creating harsher penalties than ever for many offenders, most notably first time offenders.

The change concerns the alcohol level needed to create an “aggravating factor” in the DWI offense, which was lowered from .20 to .16.  The change was made to reflect the original concept for this aggravating factor, which was set at .20 back when that was double the previous limit of .10.  The legal limit was lowered to .08 back in 2005, but the aggravating threshold remained at .20 until this year.

So what happens when a person reaches the “aggravating” threshold of .16?  First of all, the person must be held in custody until a judge sets bail and conditions of release, even if it’s a first-time offense.  Once a judge reviews the case, the law requires the person to only be released if they post the maximum allowed bail/bond of $12,000 or if they agree to participate in a daily electronic alcohol monitoring (EAM) program until their case is resolved.  The EAM program has a daily fee of $12-20 depending on the county, and the person is required to blow into a machine three times each day, seven days a week, to verify sobriety.

Second, the aggravating threshold will cause the DWI offense for first-time offenders to be bumped up to a gross misdemeanor level, which is a more serious level of criminal conviction to have on record if convicted.  Gross misdemeanors typically have longer probationary sentences (2-6 years compared to 1-2 years for misdemeanors), higher fines (mandatory minimum of $900 compared to $300 for misdemeanors), and more jail time stayed for probation violations that may occur (one year compared to 90 days for misdemeanors).

Third, the aggravating threshold can be used a second aggravating factor in combination with either a prior DWI within ten years or the presence of a child under 16 to cause the vehicle used for the offense to be forfeited to the state.  Many more cases have fallen into this category and allowed police to forfeit even more vehicles than they already had been.

With all of these increased penalties at a lower alcohol level than before, some may think that refusing the test is a better option.  However, the refusal to test already starts at an aggravated level similar to the way a test of .16 or more does.  There may still be benefits to certain individuals for refusing the test when it comes to the license revocation and license plate impoundment penalties, so it’s wise to consult with an attorney prior to making the decision about testing to determine the best course of action.

The DWI Guys are available for testing advice 24 hours a day, 7 days per week. Call us on 612-223-6595