If you are suspected of driving under the influence of alcohol, a police officer will likely ask you to submit to a blood, breath or urine test to determine your blood alcohol concentration. You are well within your rights to refuse this test absent a warrant, but Minnesota is one of the few states where refusing a warrantless BAC test is actually a crime in and of itself. You’ll be charged with DUI test refusal under the implied consent guidelines, which is it’s own crime, and you may still face DUI charges.
So why would anyone refuse the test, especially if you can still face DUI charges even though you didn’t submit to a BAC test? Below, we explain one situation where it may be smarter to refuse to allow for BAC collection during a DUI investigation.
When Not To Blow
We’re going to lay out a scenario below, but know that this general advice should not take precedent over individual advice you receive from a lawyer. You should attempt to contact a lawyer prior to agreeing to a blood or breath test if you are suspected of driving under the influence. With all that said, let’s take a look at a situation where it may be in your best interest to refuse to submit to a breath test and be charged with an implied consent violation.
First, we need to start with the severity of the crimes in question. In most instances, a run-of-the-mill, first offense DUI will be considered a misdemeanor offense in Minnesota. This is punishable by up to 90 days in jail and a fine of up to $1,000, along with some potential license restrictions. A misdemeanor is the lowest level crime for a DUI in Minnesota.
Test refusal is typically pursued as a gross misdemeanor charge, which carries potential penalties of up to a year in jail and fines up to $3,000, along with license restrictions. The law is designed this way to get people to submit to a breath test instead of just refusing and being hit with a misdemeanor. If you are charged with an implied consent violation, even if it’s your first offense, it’ll be pursued as a gross misdemeanor.
Many people think that this means you should always submit to the breath test and take the misdemeanor DUI instead of potentially still facing DUI charges and a gross misdemeanor for an implied consent violation. This makes sense on paper, until we realize that first offense DUIs aren’t always charged as a misdemeanor. If you have aggravating factors, your DUI charge can be upgraded. Factors that can lead to an upgraded charge include having previous DUIs, having passengers under the age of 16 in your car, or having a BAC above 0.16. If these are present, your charge will become a gross misdemeanor or even a felony.
Refusing to submit to a breath test won’t matter if the first two factors are present. Police are still going to be able to run your criminal history and see that there are minors in the vehicle, so you’re not avoiding anything major by refusing in these instances – in fact, you’re likely only adding another charge. However, things become interesting when we examine the final aggravating factor, which is an extremely high BAC.
For first time offenders who have a BAC over 0.16, the penalties tend to be much worse than had they just refused to submit to a breath test. Here’s a breakdown of the penalties for both scenarios:
First time offender with BAC above 0.16:
- License revocation for one year with no opportunity for revocation period reduction.
- Only option to drive during revocation is through Minnesota’s ignition interlock program.
- Whiskey plates required on all vehicles.
First time offender refusing to submit to the official BAC test:
- License revocation for one year, but reduction down to 90 or 30 days possible based on criminal case outcome.
- Can drive with regular limited license to certain places, can have more driving freedom if ignition interlock program pursued.
- Not required to get whiskey plates.
As you can see, the penalties for test refusal are much preferred than submitted and earning an elevated DUI charge. In other words, first time DUI offenders who know or suspect that they would blow above a 0.16 should strongly consider refusing the test, but again, always consult with an attorney before making this decision. If you need to consult with a lawyer, or want help with your criminal case, reach out to Avery and the team at Appelman Law Firm today at (952) 224-2277.
