In 2017, Minnesota law enforcement officers made about 25,000 DWI arrests. That number does not include the not-a-drop law violators (persons under 21 who were driving while intoxicated) and disqual cases (commercial drivers who are disqualified from driving).

A significant number of these cases include at least one DWI enhancement. Ramsey County prosecutors are notorious for filing the most aggressive charges which the facts can possibly support. Below are some of the ones that St. Paul criminal defense lawyers deal with most frequently.

Prior Conviction

About one in seven DWI defendants have at least one prior conviction. The most common enhancement is from misdemeanor (maximum 90 days in jail and/or $1,000) fine to gross misdemeanor (1 year in jail and/or $3,000 fine). A third DWI is still a misdemeanor, and a fourth DWI is a felony.

There is often a difference between law enforcement records and official records. Typically, a DWI arrest stays in law enforcement records forever. So, if an officer makes an arrest, the prior incident always comes up, and Ramsey County prosecutors always enhance the charges. But the law has changed several times since the 1990s. At various times, the Legislature ordered these records deleted after five, ten, or fifteen years. At one point, DWI driving records were purged altogether. So, depending on the time of the prior offense, a St. Paul criminal defense lawyer may be able to exclude the prior conviction.

Child Passenger

If there was a passenger under 16 in the vehicle at the time, prosecutors can enhance the DWI charges to a felony, in some cases. If that happens, prosecutors often file separate child endangerment charges. These charges can have a significant effect on an ongoing or future divorce or child custody proceeding.

To handle these enhancements, St. Paul criminal defense lawyers sometimes use the 36-month loophole. If the driver is not more than a year and a half older than the passenger, the enhancement provision does not apply. But if this loophole is applicable, the driver was probably under 21. So, using the 36-month defense sometimes creates more problems than it solves.

An aggressive defense may be a better approach. If a St. Paul criminal defense lawyer defeats the underlying DWI charge, the enhancement goes away, as do any related child endangerment charges. Alternatively, the prosecutor may dismiss child endangerment charges during plea negotiations, especially if the defendant agrees to a slightly stiffer DWI sentence. Many times, that deal is worth taking.

CVO DWIs

CVO means Criminal Vehicle Operation. If the defendant was intoxicated and caused a collision resulting in great bodily harm or substantial bodily harm, prosecutors can enhance the DWI to a felony. These enhancements often have some issues.

First, not every collision causes great bodily harm or substantial bodily harm. Even if the alleged victim went to the hospital in an ambulance, the injuries may not have been severe enough to qualify.

Secondly, these enhancements often have proof problems. In a DWI collision case, by the time emergency responders arrive, the defendant has probably already exited the vehicle. If there is no witness who places the defendant behind the wheel at the time of the crash, it’s impossible to prove a “driving” while intoxicated case.

All bets are probably off if the defendant told a police officer or other emergency responder that s/he was driving the car. That statement is probably admissible even if the officer had not Mirandized the defendant (“you have the right to remain silent” and so on).

BAC Above 0.16

If the defendant has not been convicted of DWI before and has a BAC level above .16, a simple misdemeanor becomes a gross misdemeanor.

Breathalyzer tests are not 100 percent accurate. The technology is based on the 1950s drunk-o-meter, a notoriously unreliable device that relied on color changes to establish BAC level. There are some other Breathalyzer flaws as well. For example, if the defendant belched, vomited, or burped in the half hour before the test, the mouth alcohol skews the Breathalyzer results.

Similarly, blood test results usually come from police laboratories. If a St. Paul criminal defense attorney orders an independent test, which is usually possible, that independent test report may be a lot different from the police lab report.

Refusal to Submit

In 2016’s Birchfield v. North Dakota, the Supreme Court legalized so-called “refusal to submit” laws. These laws make refusing a chemical test a separate criminal offense. Minnesota lawmakers almost immediately passed a refusal to submit law, but it is rather oddly worded.

In addition to direct evidence of refusal, prosecutors can use circumstantial evidence to establish refusal. This evidence includes:

• Belligerence that makes testing impossible,
• Failure to precisely follow instructions,
• Using breath mints, and
• Extended silence after receiving Breathalyzer instructions.

In other words, if the defendant did not comply quickly enough or contritely enough to satisfy the officer, prosecutors could add refusal to submit charges even if the defendant provided a sample. These circumstantial evidence charges may or may not hold up in court.

Reach Out to Experienced Attorneys

Don’t let some common DWI enhancements intimidate you. For a free consultation with an experienced St. Paul criminal defense lawyer, contact Capitol City Law Group, LLC. Go online now, call us at (651) 998-7634, or stop by 287 6th St E, Suite 20, St Paul, MN 55101.