Felony DWI

Posts Tagged ‘Felony DWI’

Minnesota Court Upholds DWI Conviction of Man Asleep in Vehicle

Wednesday, February 10th, 2010

Being a criminal lawyer in Minnesota for the last 16 years, I’ve learned that one of the hardest concepts for lay people to grasp with regard to DWI law is the notion of “physical control”. In other words, the idea that someone could be charged or convicted of DWI for just sitting or lying in a motor vehicle. It really is one those head-scratching concepts under the law. Over the last several years, Minnesota Courts have given a very broad definition of “physical control” when it comes to DWI law. Therefore, this latest ruling by the Minnesota Supreme Court should come as no surprise.

In a January 21st, 2010 ruling, State of Minnesota vs. Fleck, the Minnesota Supreme Court upheld a felony DWI conviction, after jury trial, of a driver that was found asleep in his motor vehicle in the parking lot of his apartment complex. When the police arrived, they found Mr. Fleck asleep behind the wheel of his vehicle with the driver’s side door open and the ignition keys in the center console of the vehicle between the driver and passenger seats.

Most often in “physical control” cases, there is the assumption that, although the police did not see the actual driving conduct, it’s clear that the individual actually drove to the location based on other circumstantial evidence. However, in Fleck, the officer’s had determined that Mr. Fleck had not recently driven his motor vehicle because the car was “cold to the touch”, the lights were not on, and it did not look as though the vehicle had been running.

Despite these facts, the Minnesota Supreme Court found that Mr. Fleck was in a position to exercise domain over his vehicle. In other words, without too much difficulty, the Court believed Mr. Fleck could have made his motor vehicle a source of danger on the roadways by awakening, in an intoxicated state, and then subsequently taking the keys from the console and starting the vehicle and driving off.

Mmmmm… is it just me or does this remind anyone else of the Spielberg Movie “Minority Report” with Tom Cruise playing Police Chief John Anderton of the Precrime Unit?

Again, as a Minnesota DWI defense lawyer that has had to argue the concept of “physical control” many times throughout my career, this decision comes as little surprise. Nevertheless, this case is remarkeable in the sense that there was actual evidence that the driver did NOT drive the motor vehicle to the location, but the Court still found “physical control”.

Tags: Felony DWI, Minnesota DWI, physical control
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Minnesota DWI Charges: A Brief Summary

Friday, January 15th, 2010

I’ve discussed the various levels or degrees of DWI charges in Minnesota on our website or previous blog postings in the past, but one of the most common questions we receive from prospective clients is to explain the different levels of DUI offenses. So, I figured a quick review would be helpful.

There are four degrees of DWI or DUI offense in Minnesota:

First Degree (Felony) DWI;
Second Degree (Gross Misdemeanor) DWI;
Third Degree (Gross Misdemeanor) DWI: and
Fourth Degree (Misdemeanor) DWI.

The degree or level of DWI offense an individual is charged with depends on the presence of what is called “aggravating factors’. The more aggravating factors that exist at the time of an individuals arrest, then the more serious the level of DWI charge.

The aggravating factors as acknowledged by Minnesota Statute include:

A qualified prior impaired driving incident within 10 years of the current DWI charge or incident;
Having a blood alcohol concentration of .20 or more at the time of driving or as measured within two hours of the time of offense;
Having a child under the age of 16 in the motor vehicle at the time of driving or the offense if the child is more than 36 months younger than the offender.

A driver will be charged with a fourth-degree DWI, if none of the above aggravating factors are present at the time of the offense. A driver will be charged with third-degree DWI, if there is at least one aggravating factor present at the time of the offense. A driver will be charged with a second-degree DWI, if there is at least two aggravating factors present at the time of the offense. With regard to felony first-degree DWI, a driver must have at least three qualified prior impaired driving incidents within ten years immediately preceding the current offense or was previously convicted of a felony DWI in Minnesota. Therefore, other than having a prior felony DWI conviction, the only aggravating factor that is relevant to enhancing a new offense to a felony level DUI is if the individual has a prior DWI conviction or a prior DUI related license revocation within the last ten years.

Lastly, it is important to note that each and every degree or level of DWI offense in Minnesota carries with it certain complexities. Such things as mandatory jail or prison sentences, license plate impoundment, mandatory high bail amounts and motor vehicle forfeitures can exist for various degrees of DWI offenses. Therefore, I strongly advise that an individual charged with any level of DUI offense seek the assistance or advice of a highly-skilled Minnesota DWI Lawyer.

Tags: Felony DUI, Felony DWI, First Degree DUI, First Degree DWI, Fourth Degree DUI, Fourth Degree DWI, Gross Misdemeanor DUI, Gross Misdemeanor DWI, Minnesota DUI, Minnesota DWI, Misdemeanor DUI, Misdemeanor DWI, Second Degree DUI, Second Degree DWI, Third Degree DUI, Third Degree DWI
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Minnesota Felony DWI Conviction On Appeal: MN Court Rules It Can Be Used For Sentencing

Wednesday, April 22nd, 2009

In State v. Johnson, an unpublished decision from April 14th, 2009, the Minnesota Court of Appeals affirmed a Dakota County District Court’s order allowing the use, for sentencing, of a prior felony DWI conviction that was on appeal when the defendant was charged with a new felony DWI offense. Based on the defendant’s prior felony DWI conviction, he was sentenced to 48 months in prison.

The defendant, in Johnson, committed a new felony DWI charge in 2007, after he was previously convicted of a felony DWI charge in 2006. However, his 2006 conviction was still on appeal when he was charged for the new felony DWI in 2007.

It is important to note that a subsequent felony DWI conviction carries a much greater mandatory sentence for the defendant, if he or she has already been previously convicted of a felony DWI.

The defendant’s attorney argued that the prior DWI conviction should not be considered by the Court when sentencing his client on the new felony DWI, because the prior DWI was still on appeal when he was charged with the new DWI.

The Minnesota Court of Appeals rejected the defendant’s argument and found that the Dakota County District Court properly considered defendant’s 2006 felony DWI conviction at sentencing.

In its opinion, the Court ruled, since the defendant was already convicted of his 2006 felony DWI at the time he was found guilty of his 2007 felony DWI, the conviction could be used by the court at sentencing , even if it was on appeal.

It is important for the Minnesota Driver to understand the significance of prior DWI convictions. If you are charged with a Minnesota DWI, you should contact a skilled Minnesota/Minneapolis DWI Lawyer. Prior convictions for a DWI can be used against you at sentencing for potentially lengthy jail sentences. If you’ve been arrested or charged with a Minnesota DUI or DWI, call Kans Law Firm, LLC at (952) 835-6314 for a Free Consultation.

Tags: Felony DWI, Minneapolis DWI Lawyer, prior conviction
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Minnesota DWI Laws: The Four Degrees

Saturday, April 11th, 2009

As an experienced Minnesota Criminal Lawyer that has represented driver’s charged with Minnesota DUI related charges for over the last 15 years, I have been asked hundreds of questions over the years relating to MN DWI Laws or MN DUI Laws by clients, prospective clients, other lawyers, and simply curious people from many other professions. With the invention of our new blog, I thought it would be useful to answer, in a several part series, the most common questions I’ve been asked about Minnesota DWI Laws.

Two of the most common questions I receive are:

1. What are the different degrees of Minnesota DWI offenses; and

2. What are the differences between the various degrees of DWI offenses.

First, in Minnesota, we have four different degrees of DWI offenses:

1. First Degree DWI (Felony)

2. Second Degree DWI (Gross Misdemeanor)

3. Third Degree DWI (Gross Misdemeanor)

4. Fourth Degree DWI (Misdemeanor)

There are many differences with regard to each of these offenses, including, but not limited to, mandatory minimum jail sentences, mandatory bail and conditions of release, and the greater potential civil consequences with certain degrees (i.e. vehicle forfeitures, license plate impoundment ). I’ll will address these other issues in the later parts to our Minnesota DWI Law series, but for now, I want to focus on how a driver can go from a Fourth Degree DWI (misdemeanor) to a First Degree DWI (felony). The key is the presence of what is defined by Minnesota DWI Law as “aggravating factors”.

These “aggravating factors” include:

1. a qualified prior impaired driving incident within the ten years immediately preceding the current offense;

2. having an alcohol concentration of 0.20 or more as measured at the time, or within two hours of the time of the offense; or

3. having a child under the age of 16 in the motor vehicle at the time of the offense if the child is more than 36 months younger than the offender.

It’s the presence of any of the above factors that would cause a Minnesota Driver to go from a Misdemeanor Fourth Degree DWI, to a more serious DWI offense. The more “aggravating factors” that are present, the more serious is the Minnesota DUI offense.

It should be noted that Refusal to submit to chemical testing of the person’s blood, breath, or urine, although not defined as an “aggravating factor”, functions in the same manner. For example, a first time Minnesota DWI, in which the driver refused chemical testing , would be charged as a Third Degree Refusal/DWI (Gross Misdemeanor). If this same driver had a prior DWI within ten years, or a child under the age of 16 in the motor vehicle at the time, he or she could be charged as a Second Degree Refusal/DWI (Gross Misdemeanor).

Lastly, unless a person has a prior Felony DWI conviction or Felony Criminal vehicular homicide and injury conviction, for a Minnesota driver to be charged with Felony First Degree DWI in Minnesota, he or she must either have three prior convictions for DWI, or three prior DWI related alcohol license revocations within the ten years of the new DWI charge.

Tags: Felony DWI, First Degree DWI, Fourth Degree DWI, Gross Misdemeanor DWI, Minnesota Criminal Lawyer, Minnesota DWI, Minnesota DWI Laws, Misdemeanor DWI, MN DUI, MN DWI, Second Degree DWI, Second Degree Refusal, Third Degree DWI, Third Degree Refusal
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