1st Degree Felony DUI in Andover (Anoka County)
Charges: 1st Degree Felony DUI, 1st Degree Over .08, Gross Misdemeanor Driving after Cancellation of Driver License Inimical to Public Safety
In 2018, Client was charged with a 1st Degree Felony DUI in Coon Rapids, Minnesota. He was arrested after he slid off the road after several inches of snow had fallen. Police appeared on the scene to offer assistance. Officer’s determined that Client had been driving without a valid driver’s license. Officer’s observed bloodshot, watery eyes and detected the odor of alcohol. Client admitted to drinking and failed a portable breath test. He was arrested and transported to jail where he was read the Implied Consent Advisory before testing a .13 on the Data Master alcohol test. He was charged with a 1st Degree DUI and Over .08 due to having three prior offenses in ten years. He was also charged with Driving after Cancellation Inimical to Public Safety which is a Gross Misdemeanor. The vehicle he was driving was towed from the scene. He spent three days in jail before he was released after posting bail ensuring his attendance at future court dates.
DUI Charges Explained – ENHANCEMENT SEVERITY
To be charged with a 4th Degree DUI (Over .08 Offense):
This must be your first incident and you must test over .08, but under.16. You could also be charged with a Driving Under the Influence offense which is based solely on the officer’s observation but not your alcohol test. These are misdemeanor offenses. A misdemeanor is punishable by a maximum of 90 days in jail and a $1,000.00 dollar fine, or both.
To be charged with a 3rd Degree DUI or Over .08 you must have either:
Have a current charge of DUI or tested over .08 and had a prior DUI conviction or alcohol related driver’s license revocation within the past 10 years or
Be charged with a first time DUI offense and either tested .16 or more, refused to test, had a child in the car, been stopped going through railroad track stop arms or been in an accident with alcohol involved where there was substantial bodily injury.
A gross misdemeanor is punishable by a maximum of 1 year in jail and a $3,000.00 dollar fine, or both. 3rd Degree DUI related offenses have a mandatory minimum of 30 days in jail if convicted and the defendant has two DUI related offenses within ten years.
To be charged with a 2nd Degree DUI or Over .08 you must have either:
Have a current charge of DUI or tested over .08 and had two prior DUI convictions or alcohol related driver’s license revocations within the past 10 years or
Be charged with a second time DUI offense and either tested .16 or more, refused to test, had a child in the car, been stopped going through railroad track arms or been in an accident with alcohol involved where there was substantial bodily injury.
A gross misdemeanor is punishable by a maximum of 1 year in jail and a $3,000.00 dollar fine, or both. 2nd Degree DUI related offenses have a mandatory minimum of 90 days in jail, if convicted, and the defendant has three DUI related offenses within ten years.
To be charged with a 1st Degree DUI or Over .08 you must:
Have a current charge of DUI or tested over .08 and had three prior DUI convictions or alcohol related driver’s license revocations within the past 10 years or
Be charged with a criminal vehicular operation resulting in death or
Be previously convicted of a felony DUI and have a current DUI
A Felony DUI related offense is punishable by a maximum of 7 years in jail and/or a $14,000.00 dollar fine, or both. 1st Degree DUI related offenses have a mandatory minimum of 180 days in jail, if convicted, and the defendant has four DUI related offenses within ten years or a prior felony DUI conviction. There are also ancillary penalties such as vehicle forfeiture, license cancellation, etc.
Client slid off the road and police responded to assist. Being in the ditch gave the officer’s cause to approach and observe. Client admitted drinking, had the odor of alcohol, and failed a PBT (portable breath test). The officers placed him under arrest and read him the implied consent advisory. He declined to talk with an attorney and consented to take a breath test.
He tested .13 and had three prior DUI convictions within ten years of this incident. That is significant because four DUI’s within ten years enhances the charge to a 1st Degree Felony DUI/Over .08 charge. He was currently on probation for his 3rd offense.
Client’s maximum exposure for this felony DUI related offense was a maximum punishment of 7 years in jail and/or a $14,000.00 dollar fine, or both. 1st Degree DUI related offenses have a mandatory minimum of 180 days in jail, if convicted, and the defendant has four DUI related offenses within ten years or a prior felony DUI conviction. There are also ancillary penalties such as vehicle forfeiture, license cancellation, probation violations, etc.
Case Review – 60 days to Challenge License Revocation
After reviewing the report (Narrative, Photos, Video, Etc.) it was determined that Client was driving when he slid off the road which summoned officers to the scene where he showed signs of impairment. After a diligent review of the police report, research on pertinent issues and talking again with my Client it was clear there were no meaningful defenses available. It was obvious that the officers had a good reason to approach the vehicle since it was in the ditch and talk to the driver about the incident. The officer observed Client and concluded Client was drinking. Client in fact admitted to drinking. He was asked to perform a portable breath test in which he failed. The officer read Client the Minnesota Implied Consent Advisory and Client agreed to take a breath test in which he tested .13.
After review of the facts and reports and after consultation Client determined it was not probable that he would prevail at a driver’s license revocation hearing and decided to let the issue lapse. A defendant has sixty days from the date of the Notice of Revocation to challenge the driver’s license revocation. Once that time has lapsed the consequences of his driver’s license revocation cannot be challenged and the defendant is barred from bringing forth a Petition for Judicial Reviews to challenge the driver’s license revocation. To truly win a DUI case you must get the criminal charges dismissed or reduced and prevail on the license revocation hearing. Client made the decision to not challenge the license revocation knowing the revocation would remain on his record with the Department of Public Safety.
After Client made the decision not to challenge his driver’s license revocation, I explained in detail the steps he needed to perform to get enrolled in the interlock program so he could drive.
Interlock is a program where a device is installed in the vehicle to test whether a person has consumed any alcohol. It is a zero tolerance test. A vehicle will not start unless the person on interlock tests 000’s. While it is an inconvenience to be on interlock and there are costs that are incurred, it does grant the person the ability to drive his/her vehicle and drive to work, school, children’s activities, church, treatment. etc.
In this case I encouraged Client to get enrolled in interlock. It is important to get your Client’s life back to normal as quickly as possible for many reasons. Client’s need to be able to get to and from work, school, children’s activities and education or treatment to start managing their lives and to be proactive in assessing any issues they may have with alcohol, drugs or other addictions.
In this particular case I advised Client to get enrolled in the Interlock program as soon as possible and get an alcohol assessment done so we can get ahead of any potential recommendations from probation or the court.
It was my advice to immediately have a chemical dependency assessment. He concurred and immediately got assessed. After reviewing the assessment, it was apparent that he had relapsed due to work pressures. Client agreed and accepted that he needed to get back to sobriety. One benefit of interlock: it shows that a client is not drinking and driving which is impactful to judges and prosecutors who are rightfully concerned with public safety.
Client was very open to this idea and wanted to return to sobriety. It is always a positive when your client willingly takes proactive steps towards his recovery without convincing. When I am convinced of a client’s commitment to sobriety, judges and prosecutors that are familiar with my experience, morals, and ethics, are met with my sincere and convincing advocacy that my client is making amends and working hard on sobriety.
Like most cases, this case had some unusual nuances. First, client had a long period of sobriety that could be verified. Client was only a month away from being off probation when this offense occurred. Second, Client was very proactive by getting an updated chemical dependency evaluation. He also enrolled in and completing treatment and aftercare. He also enrolled in the interlock program. Third, this was his first felony offense and he admitted the probation violation and met the consequences. Fourth, the weather played a part in sliding off the road. It did not, however, amount to a defense. Fifth, he was very remorseful and has taken responsibility from the date of the incident.
These factors made it possible to motion for a downward durational departure on his sentence despite not having a legal defense. A motion and memorandum was drafted that requested a downward durational departure. After argument at sentencing, the Court granted the downward durational departure and sentenced to 90 days in local confinement with work release and maximum hours to work. He was fined $50.00 dollars and ordered to a surcharge of $75.00 dollars. He was ordered to follow the recommendations of his chemical dependency assessment (which he had already completed) which addressed his past alcohol issues and have no same or similar conduct during his probationary period. Additionally, the Felony DUI charge was dismissed as well as the Gross Misdemeanor Driving after Cancellation.
This was an extraordinary outcome. Client had met the elements for a 1st Degree Felony DUI Over .08 charge which carries a mandatory minimum of 180 days of incarceration but was not ordered to serve the mandatory minimum due to the granting of the downward durational departure.
By being remorseful, proactive with interlock, getting a chemical assessment and relapse treatment plan and having Client prepared for his court date, the judge was persuaded that the mandatory minimum should not be imposed. Client’s initiative and remorse were taken into account with a downward durational departure at sentencing. Judges and prosecutors are more receptive to a creative resolution when positive steps have been taken to proactively and voluntarily address issues and lessen the chance of re-offending.
Impact - You can’t change what you’ve done, but you certainly can change your future
Client was extremely pleased and grateful with the outcome and resolution. He could have put his head in the sand but he listened to advice and was proactive with his recovery. The caveat is: No matter how bad the facts of the case appear there is nearly always a way to craft a positive resolution that mitigates the damage. By taking things seriously prior to your court appearance(s) your chances of success are greatly enhanced.
The bottom line is you can’t change what you’ve done, but you certainly can change your future making positive changes in your life. Barring factual or legal defenses, by being proactive in addressing your alcohol, drug, or mental health issues and proving to the court that you have maintained sobriety prior to court your chances of a favorable outcome are greatly increased. In criminal law, the outcome is never guaranteed but the outcome is certainly enhanced when corrective change is implemented.
When I am convinced of my client’s commitment to sobriety and change I am quite motivated to zealously argue on my client’s behalf to judges and prosecutors. People familiar with my experience, tenacity, morals, and ethics know that I am being sincere in my assertive advocacy when I argue that my client is making amends and working hard on sobriety which justifies a reduced sentence or departure.
It is imperative to have an experienced criminal defense/DUI attorney in your corner to prepare you for your court dates and fight to get the best possible result in your case.