- What is a DUI or DWI?
- What are the different degrees of DUI/DWI?
- What are the elements of a DUI?
- What are mitigating and aggravating factors and how can these affect your case?
What is Driving While Impaired, or Driving Under the Influence?
The offense of “DWI” consists of driving, operating or being in physical control of a motor vehicle while you are 1) “under the influence of” alcohol, a controlled substance or a hazardous substance, OR 2) you have an alcohol concentration of over the legal limit, as measured by a breath, urine or blood test within two hours of being stopped by an officer, OR 3) you have any amount of a Schedule I or II controlled substance in your system.
Driving, operating or being in physical control of a motor vehicle means you were not simply a passenger in the vehicle, and/or you had access to the ignition key, EVEN IF THE CAR IS NOT RUNNING! If the vehicle’s keys are near you, and you can reach them and turn the vehicle on, you could still be determined to be in physical control of the vehicle.
What counts as a motor vehicle?
Cars, trucks, a commercial vehicle that you drive for work, motorboats – including any watercraft propelled in any manner by machinery (for example, a canoe is not a motor vehicle, but a fishing boat with a detachable motor is). Off-road recreational vehicles are also considered motor vehicles – such as snowmobiles, ATVs, and off-highway motorcycles.
Alcohol concentration means the number of grams of alcohol in 100 milliliters of blood, 210 milliliters of breath or 67 milliliters of urine. In Minnesota, the legal limit – or, the alcohol concentration over which it is illegal to operate a motor vehicle, is 0.08 grams of alcohol per 100 milliliters of blood. (Prior to the year 2005, the legal limit in Minnesota was 0l.1.) If you’re driving a commercial vehicle, the legal limit is much lower: 0.04; and drivers of school and Head Start buses cannot have ANY alcohol in their system while operating their buses.
The impaired driving law applies everywhere “within this state” – which means it applies even when you’re on a friend’s property or on your own property.
So, what does the phrase “Under the Influence” mean?
Unfortunately there is no “fixed” definition of under the influence. Judges have broad discretion in deciding whether there is an adequate foundation for a finding of intoxication in any given case. For example, if a driver’s alcohol concentration is below the legal limit, a judge may still find that a conviction of DUI is valid, as long as the State can show that the driver’s ability or capacity to drive was impaired to some degree. This applies in cases involving controlled substances, too, because there is no “legal limit” under which driving while under the influence of a controlled substance is lawful.
There are four degrees of DUI/DWI offenses. First Degree DUI is a felony level charge and the most serious degree; Fourth Degree (which used to be called Misdemeanor Driving While Impaired) is the lowest degree of DUI charge. First Degree DUI is what an individual is charged with when the individual drove while impaired AND the individual has EITHER three or more “qualified prior driving incidents” in the last ten years, OR the individual has a prior conviction of felony DUI.
Second Degree DUI is a Gross Misdemeanor offense, and is defined as driving while impaired when two or more aggravating factors are present. If the offense is a refusal to take a chemical test (refusing the Implied Consent), then only one aggravating factor is required to charge a Second Degree DUI. Third Degree DUI is also a Gross Misdemeanor but requires only one aggravating factor (or no additional aggravating factor if the offense is a refusal to test).
Fourth Degree DI refers to the basic offense, driving while impaired, with no aggravating factors or qualified prior driving incidents.
What is an aggravating or mitigating factor?
An aggravating factor is a circumstance that makes a charged offense more serious for the individual charged. A mitigating factor is a circumstance that makes a charged offense less serious for the individual. For example, if you are charged with a DUI for the first time, the fact that you do not have any prior DUIs is a mitigating factor for you in your first DUI offense.
The most common aggravating factor is a “qualified prior driving offense,” ten years or less before the current incident. There are two events which count as “qualified prior driving offenses:” Having an impaired driving conviction already on your driving record, or having impaired driving-related loss of your driver’s license on your record. In order to be used in the current charge, the qualified prior driving offense must have occurred in the last ten years. Two other common aggravating factors are having a blood alcohol concentration of over 0.20, or having a child under the age of 16 and at least three years younger than the driver in the vehicle.