Minnesota’s Implied Consent Laws: The Consequences of Refusing to Submit to DWI Chemical Testing

If you get pulled over for a DWI in Minnesota, are you required to comply with an officer’s request that you take a breath, urine, or blood test? What happens if you refuse?

Minnesota, like all other states, has “implied consent” laws. “Implied consent” refers to the implicit agreement that drivers make—by driving on Minnesota roads—to consent to take a chemical test to determine the presence of drugs or alcohol.

A driver is required to submit to testing if an officer has probable cause to believe the driver is intoxicated and one of the following conditions must exist:

  • the officer lawfully arrests the driver for DWI
  • the driver was involved in a collision involving property damage, injury, or death
  • the driver refused to take a preliminary breath test (PBT), or
  • a PBT indicates the driver has a blood alcohol concentration (BAC) of .08% or more.

Before administering the test, the officer must advise the driver of the consequences for refusal. The officer must also inform the driver of the right to contact an attorney and give the driver a reasonable amount of time to do so. However, the driver can’t use this right to unreasonably delay the chemical test. (There’s no predetermined amount of time an officer must give a driver to contact an attorney. But case law suggests 20 to 30 minutes is reasonable.)

(Minn. Stat. Ann. §§ 169A.20, 169A.51 (2016); Nelson v. Comm’r of Pub. Safety, 779 N.W.2d 571 (2010).)

Refusing to Take the Test

Minnesota statutes provide criminal and civil/administrative penalties for test refusal. However, recent court decisions have found certain criminal penalties for test refusal to be unconstitutional. As a result, refusal to take a blood or urine test can no longer be criminally prosecuted. Criminal penalties may be imposed only for refusing a breath test.

Criminal penalties. Typically, a first-time DWI offender is guilty of a misdemeanor (a fourth-degree DWI). But a first DWI that involves a breath test refusal is a gross misdemeanor (a third-degree DWI)—a more serious offense. The increased criminal penalty serves as a statutory incentive to take the breath test.

The maximum penalty for a gross misdemeanor is one year in jail and a $3,000 fine. A second DWI that involves a test refusal is also a gross misdemeanor but is considered second-degree DWI. Second-degree DWI can result in vehicle forfeiture (a civil penalty).

Civil/administrative penalties. The civil/administrative penalty for refusing to take a chemical test is loss of your driver’s license for one to six years. The length of the revocation or cancelation period depends on your DWI history.

Test refusal can result in a longer revocation period than test failure. For instance, a first-time DWI test failure (with a BAC under .16%) results in a 90-day revocation, whereas a first refusal leads to a one-year revocation. For a second DWI, a test failure (with a BAC under .16%) results in a one-year revocation; while a refusal involves a revocation of two-years.

(Birchfield v. North Dakota, 136 S. Ct. 2160 (2016); State v. Thompson, 886 N.W.2d 224 (2016); Johnson v. Comm'r of Pub. Safety, 887 N.W.2d 281 (2016).)

Deciding Whether to Take the Test

The implied consent law is designed to encourage persons to take the chemical test. The law does this by making test refusal a crime (for breath test refusal) and imposing longer license revocation periods for motorists who refuse testing. So declining an officer’s request to take a chemical test can result in harsher sanctions than you’d otherwise be facing. But there might also be circumstances where refusal is in your best interest. Because every situation is different, it’s best to consult an attorney if faced with this decision.

Getting Legal Help

Minnesota DWI law is complex, and facts of every case are different. If you’ve been arrested for driving under the influence, talk to an experienced DWI attorney in your area. A qualified DWI lawyer can tell you how the law applies to the facts of your case and help you decide on the best course of action.

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