2nd Degree Gross Misdemeanor DUI in Andover (Anoka County)
Charge: 2nd Degree DUI, Over .16
In May of 2019 my client was charged with a 2nd Degree Gross Misdemeanor DUI in Andover, Minnesota. He was arrested for failing to engage his headlights drawing attention to police. He ultimately tested a .16 on the DataMaster alcohol test. This aggravated his charge from a 4th Degree Over .08 to a 3rd Degree Over .16, but he had a prior offense within ten years which aggravated his charge to a 2nd Degree Gross Misdemeanor Over .08. His vehicle was towed from the scene. He spent four days in jail before he was released after posting bail ensuring his attendance at future court dates. He had one prior DUI within 10 years and another DUI over 10 years ago.
DUI Charges Explained - 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 was observed by police after he failed to engage his headlights. The police performed a traffic stop. Driving without headlights gave the police a reasonable suspicion to pull over his vehicle. He admitted drinking, performed poorly on the field sobriety tests and failed a PBT (portable breath test). The officers placed him under arrest and read him the implied consent advisory. He was given time to consult with an attorney but declined. He consented to take a breath test.
He tested .16 which unfortunately is the threshold level of aggravating the charge to a Gross Misdemeanor even on a first offense. Additionally, he had a prior conviction date within ten years of this incident. That is significant because an offense within ten years is another aggravating factor which enhanced his charge to a 2nd Degree Gross Misdemeanor Over .08 charge. Client also had another prior offense outside the ten-year window that can’t be used for aggravating the charges but can be used at sentencing as a contributing factor.
When 3rd Degree Gross Misdemeanor Over .08 offenses are based on two offenses within ten years there is a mandatory minimum of 30 days in jail. 2nd Degree offenses have a mandatory minimum of 90 days in jail if there are three offenses within ten years. The maximum penalty for my client was a year in jail and/or a $3000 fine. Fortunately, his vehicle was towed but returned to Client and not subjected to forfeiture.
Case Review - 60 days to Challenge License Revocation
After reviewing the report (Narrative, Photos, Video, Etc.) it was determined that Client was driving without his headlights on and showed signs of impairment during the field sobriety testing. 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. Based on the driving conduct it was obvious that the officer had a reasonable suspicion to stop the vehicle and approach the driver. The officer talked and observed Client and concluded Client was drinking. Client in fact admitted to drinking. He was asked to perform field sobriety tests to assess the possible impairment. The officer concluded after the field test that my Client was impaired and would require further alcohol testing. The officer read Client the Minnesota Implied Consent Advisory and Client agreed to take a breath test in which he tested .16.
Client did not contact an attorney before his driver’s license revocation hearing time had lapsed. 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. Since the time had run to challenge the license revocation the revocation would remain on his record with the Department of Public Safety.
Since my Client’s right to challenge the driver’s license revocation had lapsed, I explained to my Client in detail the steps he needed to perform to get enrolled in the interlock program. 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 my 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 my 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 start following the recommendations of his chemical dependency assessment, since he had a history of alcohol related offenses, and was involved in a heated custody dispute. After reviewing the assessment, it was apparent that the pressure of the marital and custody dispute led him to relapse from sobriety and self-medicate with alcohol. 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 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 my 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.
This case had some unusual nuances. Client had two factors for being convicted of 3rd Degree DUI charges. First, he tested .16 which is an aggravating factor. Second, he had two DUI related offenses within ten years. Ultimately, Client met the elements for a 2nd Degree Over .08 offense since he tested over .16 and had two offenses within ten years. The nuance was his most recent offense was based on when he was convicted, not when he was charged. Though this was not a defense it was an argument for mitigation and assisted in resolution. Based on my negotiations with the prosecutor the resolution was to amend to a reduced charge of 3rd Degree Over .08 with a cap of 25 days and four days credit for time served. This was critical to my client since he could have been facing 90 days in jail. My client did not want me to argue for Electronic Home Monitoring because he would not be entitled to good time in Anoka County. He requested I argue for work release (Huber) with maximum hours of work allowed so he could start digging out of the financial hole he was in as fast as possible. If Client does not re-offend and follows the sentencing of the court the client does not have to serve any of the remaining jail time.
This was a successful outcome because my Client had two factors for a 2nd Degree DUI offense with a potential sentence of 90 days or more of incarceration. He was also assessed a low fine plus surcharges and law library fees and given deferred time to pay. He was ordered to follow the recommendations of his chemical dependency assessment (which he had already started) which addressed his past alcohol issues and have no same or similar conduct in the next three years.
By being proactive with interlock, getting a chemical assessment and treatment plan and having my client prepared for his court date I was able to persuade the judge that the mandatory minimum should not be imposed and his initiative should be taken into account with sentencing. I argued that his high reading was brought on by a relapse which was supported by his alcohol assessment and his recent struggles with his marriage. Judges and prosecutors are more receptive to creative resolutions when your client has taken positive steps to proactively and voluntarily address issues so he/she is more unlikely to re-offend.
Impact - You can’t change what you’ve done, but you certainly can change your future
My client was extremely pleased with the outcome and resolution. This result was positive since it is not unusual to serve 90 days when your alcohol test result is well over .16. and you have two prior offenses. No matter how bad the facts of the case appear there is nearly always a way to take things seriously prior to your court appearance. It is always smart to get your house in order or put your best foot forward in successfully managing the consequences of the case.
You can’t change what you’ve done, but you certainly can change your future by grabbing the bull by the horns and making positive changes in your life. Barring 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. The outcome is not guaranteed but the outcome is certainly enhanced. 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.