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Refusing the Breath Test in Minnesota

Advice Your Attorney Can’t Give You

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Nearly every driver arrested for DWI in Minnesota is read the standardized Breath Test Advisory pursuant the implied consent law. The advisory informs the driver: “Minnesota law requires you to take a test to determine if you are under the influence of alcohol” and “Refusal to take a breath test is a crime.” The implied consent law states that if a driver refuses a breath test, then none shall be taken.

In Minnesota, the crime of a first-time test refusal is always charged as a gross misdemeanor (maximum penalties of a year in jail and/or a $3000.00 fine). A first-time DWI charged with having an alcohol test result of .08 to .15 faces a misdemeanor charge (up to 90 days in jail and/or a $1000.00 fine).

So why would a driver arrested for a first-time DWI ever refuse a breath test when the criminal penalties are so much stiffer than taking the test?

There is one circumstance where it may be beneficial for a driver to commit the crime of test refusal – if the test result comes back at .16 or more. This is because the administrative and criminal consequences for a test of double the legal limit of .08 are substantially greater than those for test refusal. Here is a partial list of consequences faced for a first DWI offense who tests at or above .16 and the first-time DWI suspect who refuses testing:

Test Result of .16 or Greater                                               Test Refusal

Gross misdemeanor charge                                               Gross misdemeanor charge

1 year license revocation                                                    1 year license revocation

No limited license (work permit)                                      Limited license available after 15 days

Mandatory Ignition Interlock                                             No mandatory ignition interlock

No driver’s license revocation                                            Driver’s license revocation period
reduction upon conviction                                                 reduced upon conviction

Mandatory post-arrest hold for court                              No mandatory post-arrest hold for court

Mandatory pre-trial release conditions                           No mandatory pre-trial release conditions
of either daily electronic alcohol monitoring
or post maximum $12,000 bail

Mandatory license plate impoundment                         No mandatory license plate impoundment

Whiskey license plate requirement                                  No whiskey license plate requirement

$1000.00 penalty assessment if convicted                    No penalty assessment upon conviction

Before making the decision to submit to an officer’s breath test request, a driver arrest for DWI has the right to contact an attorney for advice. But that advice cannot be to refuse the test under any circumstance. Because test refusal is a crime, attorneys are both ethically and legally prohibited from advising their clients to break the law. This is true even if it would be in the driver’s best interests to refuse testing rather than face the consequences of a test result of .16 or higher.

So, while a driver can expect their attorney to give information about the consequences of taking or refusing a test, the only advice an attorney is allowed to give under the law is to take the breath test.

Accordingly, while the ultimate decision to test is one made by the driver, a decision to refuse cannot be expected to come upon advice of the attorney.

If you find yourself facing charges of DWI, Test Refusal or OWI and need to explore your options for getting your driving privileges restored, our seasoned lawyers can help. Attorneys are available 24-7 — Call us at 612-334-3342.

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