First Degree DWI

Posts Tagged ‘First Degree DWI’

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
Posted in Uncategorized | No Comments »

Minnesota Court of Appeals issues Opinion on License Revocations as Aggravating Factor in DUI Cases

Friday, June 19th, 2009

The Minnesota Court of Appeals releases its newly decided opinions each week on Tuesdays at 10 am. This last Tuesday, June 16, 2009, the Appellate Court handed down a decision that could have a huge impact for individuals who have received DUI charges in the last 8 years, as well as for individuals who will receive Minnesota DUI charges until the year 2016.

In its decision in the case of Odegard v. State of Minnesota, the Minnesota Appellate Court concluded that a decision from the Minnesota Supreme Court issued in 2007 that precluded the use in DUI cases of unreviewed license revocations to enhance DUI charges is NOT retroactively applicable. The 2007 Supreme Court case was entitled State v. Wiltgen, and in it, the Minnesota Supreme Court created a new rule of constitutional criminal procedure in Minnesota, holding that any license revocation that had been challenged but not yet decided could not be used in a new Minnesota DUI charge to enhance the new DUI to a higher degree crime.

However, in Odegard, the Appellate Court decided that any convictions for DWI that were final before Wiltgen was decided in 2007 cannot be altered based on the rule pronounced in Wiltgen.

What does this mean for individuals facing DUI charges now? Here’s how the ruling in Odegard works: Lance Odegard had pled guilty in 2003 to first degree DWI. The enhancing factors that made his charge a first degree DWI were two prior DWI convictions, one from 1998 and one from 2001, and a 2002 Implied Consent Driver’s License Revocation. Therefore, with three enhancing factors in the ten year window prior to the 2003 DWI charge, Odegard was charged with first degree DWI. In 2008, after the Minnesota Supreme Court decided Wiltgen, Odegard appealed his first degree DWI, arguing that because one of the enhancing factors used to make his DWI a first degree charge was a license revocation that he had challenged and had not yet received review regarding at the time of his conviction for first degree DWI, like Wiltgen, he was entitled to have the license revocation precluded and the DWI dropped to a second degree.

The Minnesota Court of Appeals disagreed with Odegard’s argument. The Appellate Court said the point of the Supreme Court’s rule in Wiltgen was that the use of an unreviewed license revocation to enhance a subsequent DUI was unconstitutional because it denied the defendant of his due process rights, which were to have the revocation that was challenged reviewed and ruled on before it could be used to enhance another, later charge.

But the Appellate Court decided that Wiltgen should not be applied retroactively, and therefore did not apply to Odegard’s case, because his conviction for first degree DWI was final in 2003, before Wiltgen was decided in 2007.

The Appellate Court’s decision in Odegard means that everyone with a DUI charge that was enhanced due to a license revocation, if that revocation was under review at the time of conviction, cannot appeal his or her conviction on the grounds granted in Wiltgen.

Because there is a ten year window in Minnesota for enhancing DUI charges with prior DUI charges and license revocations, the ruling in Odegard means that individuals who received enhanced charges due to challenged license revocations in the last 8 years cannot take advantage of the due process protections in Wiltgen, because their convictions were final at the time Wiltgen was decided, just like Odegard’s was.

Looking to the future, because it takes 10 years for a DUI charge or license revocation to no longer fall in the window of prior convictions which can be used to enhance new charges, individuals facing Minnesota DUI charges will be feeling the effects of the Odegard decision until the year 2016!

You can check out the Appellate decision at: http://www.courts.state.mn.us/opinions/coa/current/OPa082012-0616.pdf

It is important for the Minnesota Driver to understand the significance of prior DWI convictions. If you are charged with a DUI, 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: First Degree DWI, implied consent, Minneapolis DWI Lawyer, Minnesota DUI, prior license revovation
Posted in Uncategorized | No Comments »

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
Posted in Uncategorized | No Comments »