The Minnesota legislature was active this session passing a wide variety of new DWI laws. They go into effect statewide this Saturday, July 1st, 2017. Some changes are in response to the new landscape under Birchfield and some are laws that failed to pass last year.
As expected, Minnesota Implied Consent Advisory is changing to simply a “breath test advisory”. The implied consent advisory used to warn those arrested on suspicion of DWI that refusal to take a test is a crime, which did not distinguish between breath, blood or urine testing. Now, the advisory will merely state refusal to take a breath test is a crime. Correcting the once inaccurate advisory in the wake of the United States Supreme Court decision in Birchfield.
Additionally, the criminal DWI Test Refusal law is changing to just make refusing a breath test a crime; and specifically noting that refusing to submit to a blood or urine test pursuant to a search warrant is a crime. Furthermore, the legislature added that refusing a blood or urine test pursuant to a search warrant will trigger a driver’s license revocation. The revocation will only apply if the officer offers an alternative test of blood or urine upon the first request of blood or urine.
Expanding new laws for blood and urine testing even further, now permits officers to test with a warrant when a “person is unconscious or incapacitated to the point that the peace officer providing a breath test advisory, administering a breath test, or serving the search warrant has a good-faith belief that the person is mentally or physically unable to comprehend the breath test advisory or otherwise voluntarily submit to chemical tests.”
Procedurally, the implied consent petition (a.k.a. petition for judicial review) process is getting some changes. Instead of having 30 days to file a petition challenging a driver’s license revocation, drivers will now have 60 Days to file. Extending this period will help those arrested for DWI that often do not take action for their defense within the first 30 days. Attorneys will also get more time to gather discovery and help clients make informed decisions about whether it makes sense to file a challenge.
Piggy backing the addition of the necessity defense to implied consent defenses from last year, lawmakers added the prescription drug defense this session. In controlled substance DWI revocation hearings, if the driver can prove they used the drug according to the prescription, then it can be a defense to the license revocation. It is an affirmative defense in controlled substance schedule one and two cases, “unless the court finds by a preponderance of the evidence that the use of the controlled substance impaired the person’s ability to operate a motor vehicle.”
Additional changes were made impacting DWI cases, such as the innocent owner defense now being available for joint owners in vehicle forfeiture cases; and amendments to Minnesota’s ignition interlock program. As cases continue to mold new issues and technology continues to advance, the legislature will be ever changing DWI laws for the foreseeable future.
Robert H. Ambrose is a DWI lawyer and criminal defense attorney in Minneapolis and St. Paul, Minnesota. Super Lawyers named him a Rising Star for 2016 and 2017; The National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer the past four years; and he is a member of the National College of DUI Defense. DWI lawyer St. Paul; Minnesota DWI attorney; and St. Paul DUI attorney.