Carey Law Firm, llc - DWI and Criminal Defense

Offenses Not Requiring Ignition Interlock Device
 
Certain "first-time" offenders with BACs less than 0.16 and "first-time" offenders charged with test refusal will not be subject to the ignition interlock and whiskey plate mandates. "First-time" is in quotes because it is broader than simply a first-time offense within one's lifetime. These true first-time offenders (in a lifetime) will be entitled to an administrative reduction in the license revocation period upon conviction of Fourth Degree DWI or Third Degree Test Refusal. "First-time" offenders charged with Third Degree DWI (Child in Car) or Second Degree Test Refusal (Child in Car) will be required to drive with whiskey plates and will not be entitled to any administrative reduction in the license revocation period upon conviction. Below is a list of the exempted offenses and their license consequences.
 
1.  Fourth Degree DWI with BAC less than 0.16
 
A driver charged with Fourth Degree DWI will not be required to obtain an ignition interlock device and whiskey plates if the driver:
  
     (i) has an alcohol concentration less than 0.16 as reported by the official chemical test of his breath, blood, or urine;
 
     (ii) does not have a prior DWI conviction or DWI license revocation within 10 years of the current offense; and
 
     (iii) does not have two (or more) prior DWI convictions or DWI license revocations in his lifetime.
 
This driver will face 90 days of revocation and be entitled to obtain a limited (work) license after a 15-day waiting period (hard revocation). If the incident is the driver’s first DWI incident in his lifetime and he is age 21 or older, he will be entitled to the administrative reduction in the license revocation period upon conviction for DWI, i.e., 90 days reduced to 30 days. Drivers aged 18-20 will face 180 days of revocation and a 15-day waiting period for a limited license.  Underage drivers are not entitled to the administrative reduction.
 
2.  Third Degree Test Refusal
 
Similar to the previous section, the ignition interlock and whiskey plate mandates will not apply to certain "first-time" offenders charged with Third Degree Test Refusal if the driver:
 
     (i) does not have a prior DWI conviction or DWI license revocation within 10 years of the current offense; and
 
     (ii) does not have two (or more) prior DWI convictions or DWI license revocations in his lifetime.
 
This driver will face one year of revocation and be entitled to obtain a limited (work) license after a 15-day waiting period (hard revocation). If the incident is the driver’s first DWI incident in his lifetime, he will be entitled to the administrative reduction in the license revocation period upon conviction for Third Degree Test Refusal (reduced to 90 days) or Fourth Degree DWI (reduced to 30 days). Drivers with one prior DWI incident in their lifetime and underage drivers will not be entitled to any administrative reduction in the license revocation period.
 
3.  Third Degree DWI (Child in Car) with BAC less than 0.16
 
The ignition interlock mandate will not apply to certain "first-time" offenders charged with DWI while having a child in the car if the driver:
 
     (i) has an alcohol concentration less than 0.16 as reported by the official chemical test of his breath, blood, or urine;
 
     (ii) does not have a prior DWI conviction or DWI license revocation within 10 years of the current offense; and
 
     (iii) does not have two (or more) prior DWI convictions or DWI license revocations in his lifetime.
 
This driver, however, is subject to whiskey plates for one year due to the child in the car. Also, this driver will face 90 days of revocation and be entitled to obtain a limited (work) license after a 15-day waiting period (hard revocation). This driver will not be entitled to any administrative reduction in the license revocation period. Drivers aged 18-20 will face 180 days of revocation and have a 15-day waiting period for a limited license.
 
4.  Second Degree Test Refusal (Child in Car)
 
Albeit the rare incident, a "first-time" offender charged with test refusal while having a child in the car will not be subject to the ignition interlock mandate if the driver:
 
     (i) does not have a prior DWI conviction or DWI license revocation within 10 years of the current offense; and
 
     (ii) does not have two (or more) prior DWI convictions or DWI license revocations in his lifetime.
 
This driver, however, is subject to whiskey plates for one year due to the child in the car. Also, this driver will face one year of revocation and be entitled to obtain a limited (work) license after a 15-day waiting period (hard revocation). This driver will not be entitled to any administrative reduction in the license revocation period. Drivers aged 18-20 will face the same license consequences.
 
Common Questions
 
If the driver is charged with Test Refusal, does it matter if the result of the preliminary breath test is 0.16 or more?
 
The short answer is no. The result of a preliminary breath test is not used to require an ignition interlock device or whiskey plates. There are three official chemical tests that are used to revoke one's license and impound license plates. They are the Intoxilyzer/DataMaster breath test, blood test, and urine test. The preliminary breath test is simply a preliminary screening test used by law enforcement to decide whether to arrest a driver and require him to submit to the official test, i.e., an Intoxilyzer/DataMaster, blood, or urine test. A preliminary breath test is notoriously inaccurate. As such, it is not admissible evidence in a criminal DWI trial, except in rare circumstances.
 
Is it better for a first-time offender to refuse chemical testing?
 
While a lawyer cannot counsel a driver to refuse chemical testing, Minnesota's license laws create an incentive for a first-time offender (in a lifetime) to refuse testing if he believes his BAC is over 0.16. According to the DPS, the average BAC in a Minnesota DWI is between 0.15 and 0.16. Thus, many first-time offenders will test over 0.15 and face the one-year ignition interlock and whiskey plate mandates. Had the same driver refused testing, he would not be required to get an ignition interlock device or whiskey plates. In fact, for refusal, he would have been subject to one year of license revocation with the ability to obtain a limited license after 15 days of revocation. If he goes to court and is convicted of Test Refusal or DWI, his license revocation will be reduced administratively to 90 or 30 days respectively. Thus, the true first-time offender who refuses testing avoids the ignition interlock device and whiskey plates and can restore his full driving privileges within 30 to 90 days.  

One caveat is that a first-time offender with a child in the car (under age 16) should not refuse testing because it will trigger vehicle forfeiture, and the driver will not be entitled to administrative reduction in the one-year license period.