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16 or more


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Minnesota’s New DWI Law – .16 or More BAC is Now an Aggravating Factor: Resulting in a Gross Misdemeanor for First-Time Offenders

Many new laws take effect tomorrow (August 1, 2015) in Minnesota. The most significant new DWI law deals with alcohol concentration levels. Most everyone knows the legal limit to drink and drive is .08 or more. Not as widely known is the law making a DWI more severe for having a much higher alcohol concentration. Prior to August 1, 2015, it is a more serious DWI for someone with an alcohol concentration of .20 or more within two hours of driving. Now, the new law reduces that level to .16 or more. In legal speak, .16 or more is now an aggravating factor[1] for DWIs.

Why is the .16 level such a big deal? One reason is it will affect thousands more drunk drivers each year. The Minnesota Department of Public Safety reports over the past ten years, between 6,000 and 10,000 drunk drivers each year had an alcohol concentration level between .15 and .19. Another reason is Minnesota lags behind other states in recidivism levels and punishment for being twice the legal limit. For example, Arizona has “Extreme” DWIs for anyone with a BAC of .15 or more and “Super Extreme” DWIs for someone with a BAC of .20 or more. Arizona is well known for its strict DWI penalties in hopes for prevention and driving down recidivism rates. Minnesota has one of the worst recidivism rates for DWI, according to the NHTSA, and is trying to play catch up.

Additionally, reaching an alcohol concentration level of .16 or more does not take a tremendous amount of alcohol for some people. Many prior clients of mine, most of whom are small in size, swear up and down they only had a couple of drinks and reached .16. Depending on the type of alcohol consumed, a person’s weight, and other factors in play, it is not a terribly uncommon occurrence to reach .16 without drinking heavily.

More bail situations will also occur because of this law change. For a first-time DWI offender with a BAC of .16 or more, maximum bail or an alcohol monitor will be imposed as a condition of release while the case is ongoing. This means $12,000 bail for a first-time DWI with a BAC of .16 or more. If the person cannot make bail or a bond, an alcohol monitoring system will be put in place, which costs money too. Further, reducing the aggravating factor level to .16 also matches the threshold for requiring ignition interlock and DWI license plates (also known as “Whiskey plates”) for first-time offenders.

Robert H. Ambrose is a DWI / DWI attorney in Minneapolis, Minnesota. He has achieved a Lead Counsel Rating in Drunk Driving Defense. And, was named a “Ten Best” DWI Attorney in Minnesota for Client Satisfaction by the American Institute of DUI / DWI Attorneys.

[1] In Minnesota, aggravating factors include: (1) a prior DWI conviction, or DWI-related loss of driver’s license, within the previous ten years; (2) having an alcohol concentration of .16 or more within two hours of driving, operating, or being in physical control of a motor vehicle; and (3) having a child under 16 years old in the vehicle, if the child is more than 36 months younger than the driver. For a first-time DWI offender, having one aggravating factor present will result in the prosecutor charging Third Degree DWI (a Gross Misdemeanor) instead of a Fourth Degree DWI (a Misdemeanor). If two aggravating factors are present, then the Misdemeanor Fourth Degree DWI now becomes a Second Degree DWI and is a more serious Gross Misdemeanor.