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© 2008
ALL RIGHTS RESERVED
TO THE MINNESOTA DEPARTMENT OF PUBLIC SAFETY
REPRODUCTION IS PERMITTED FOR THE PURPOSES OF EDUCATION IF ATTRIBUTION IS GIVEN TO THE
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Original Written by Nancy BodeMinnesota Attorney General's Office &
Bill Jeronimus
Minnesota County Attorneys Association 2008 Update by
Bill Lemons
Minnesota County Attorneys Association &
Joel Watne
Minnesota Attorney General’s Office
This publication was provided by
Minnesota Department of Public Safety & Minnesota County Attorneys Association
and funded through
Index
DWI Definitions... 1
DWI and Implied Consent Highlighted Points ... 2
Mandatory Arrest and Hold For Court ... 4
Child Endangerment Offenses ... 4
Tests Less Than 0.08 and Partial Tests ... 5
Underage Consumption ... 5
Underage Drinking and Driving ... 5
Commercial Vehicle and School Bus Drivers ... 6
Aiding and Abetting Violations... 6
License Plate Impoundment... 6
Special Registration Plates Issuance After Impoundment ... 7
Plate Impoundment Violations... 8
Display of License Plate ………8
Vehicle Forfeiture ... 8
Release Of Impounded Vehicles... 9
License Revocation Periods Underage Drivers... 9
License Revocation Periods Drivers 21 and Older... 10
Limited Licenses... 10
GM Violation Of Drivers License Restriction ... 10
GM Driving After Cancellation When "Inimical To Public Safety" 10 Hot List ... 11
“B-Cards” and Admissibility Of Preliminary Breath Tests ... 11
Driver’s License Status... 11
No Surrender Of Driver’s License ... 12
Graduated Driver's License Restrictions ………..12
Fleeing A Peace Officer In A Motor Vehicle ... 12
Fleeing: Other Than Vehicle... 13
Criminal Vehicular Homicide Or Operation ... 13
Hit and Run ... 14
Reporting Accidents To The Department Of Public Safety ... 14
Reckless and Careless Driving ... 14
Speeding ... 15
The "Dimler Amendment" ... 16
“Ted Foss” Move Over Law... 16
Seat Belt Enforcement Guide... 16
Use Of Seat Belts When The Driver Is Under 18 ... 17
Child Restraint Enforcement Guide ... 17
Motorized Foot Scooters ... 18
Neighborhood Electric Vehicles ... 18
Motorcycles, Motor Scooters and Motor Bike ……….19
Cellular Telephone Use Prohibited By Persons Under 18 ………20
Wireless Communication Prohibited ……….20
Disorderly Conduct and Obstructing Legal Process... 20
Firearms and Alcohol ... 20
False Information To A Peace Officer ... 21
Lying To A Peace Officer ... 21
Liquor Purchases and Sales Offenses ... 21
Drugs and Drug Paraphernalia Offenses ... 21
FORward
This publication is not intended to cover law considered to be general knowledge for officers having completed basic training and post board certification. It is our intent that this publication serve to promote and explain the more specific portions of the laws of Minnesota that can aid in making travel safer than it is today.
The Purpose of this Publication . . .
One of the goals of this publication is to help reduce the number of crashes, injuries and deaths in our state. Being impaired by alcohol and/or other drugs and driving contributes greatly to these injuries and deaths. As the United States Supreme Court in Michigan Department of State Police v. Sitz has stated, "[n]o one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion. The anecdotal is confirmed by the statistical. Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage."
Although the percent of alcohol - related fatalities has declined over the years, the Department of Public Safety has released figures indicating that about 37% of traffic fatalities are still alcohol related.1
z A total of 626 people lost their lives in motor vehicle crashes in Minnesota in 1999, 625 in 2000, 568 in 2001, 657 in 2002, 655 in 2003, 567 in 2004, 559 in 2005, 494 in 2006, and 510 in 2007.2
z Also in 1999, another 44,538 people were injured, 44,740 in 2000, 42,223 in 2001, 40,677 in 2002, 2003 numbers are unavailable, 40,073 in 2004, 37,686 in 2005, 35,025 in 2006, and 35,000 in 2007.2
The two other factors that directly influence driver or occupant safety are the use of seat belts, and vehicle speed. For example, studies estimate that using safety belts and safety seats reduce the risk of death and serious injury by 40% - 60%. In addition, traveling at an illegal or unsafe speed kills more Minnesotans than any other contributing factor.
This publication will help to explain the different tools available to law enforcement to help increase traffic safety.
1
For the year 2007.
2
Minnesota Motor Vehicle Crash Facts 2007, Office of Traffic Safety, Minnesota Department of Public Safety (2007).
DWI DEFINITIONS
DWI (§ 169A.20, subd. 1)
It is a crime for any person to drive, operate or be in physical control of a motor vehicle when the person:
• is under the influence of alcohol;
• is under the influence of controlled substance;
• is knowingly under influence of hazardous substance;
• is under influence of combination of 1), 2) or 3);
• has an alcohol concentration of .08or more at time of offense or within two hours;
• is driving a commercial vehicle and has an alcohol concentration of .04 or more at time of offense or within two hours; or
• has any amount of schedule I or II controlled substance, or its metabolite, in their body, other than marijuana or THC.
Refusal (§ 169A.20, subd. 2)
It is a crime to refuse to submit to chemical testing.
Aggravating Factor (§ 169A.03, subd. 3)
Aggravating factors include:
• a qualified prior impaired driving incident within 10 years (a DWI conviction or a prior impaired driving related loss of license);
• having an alcohol concentration of .20 or more as measured at the time of or within two hours of the offense; or
• child endangerment (child in vehicle under the age of 16 and more than 36 months younger than the driver).
4th Degree Misdemeanor DWI(§ 169A.27)
• a DWI crime with no aggravating factor present.
3rd Degree Gross Misdemeanor DWI(§ 169A.26)
• a DWI crime with one aggravating factor present, or
• a Refusal crime with no aggravating factors.
2nd Degree Gross Misdemeanor DWI (§ 169A.25)
• a DWI crime with two or more aggravating factors present, or
• a Refusal crime with one or more aggravating factors present.
1st Degree Felony DWI (§ 169A.24)
A DWI or Refusal crime with:
• three (3) or more qualified prior impaired driving incidents within the previous 10 years;
• the offender has a prior 1st Degree DWI felony conviction; or
• the offender has previously been convicted of a felony violation of the criminal vehicular homicide or operation law (§ 609.21) involving alcohol and/or controlled substance.
Note: Aggravating factors are not considered in determining whether to charge a 1st Degree Felony DWI.
Note: The degrees are important for minimum mandatory sentencing penalties.
Prior Impaired Driving Convictions(169A.03, subd. 20)
• DWI convictions or juvenile adjudications violating Minnesota laws;
• DWI convictions from any other states;
bus drivers;
• convictions for operating snowmobiles or all-terrain vehicles while impaired;
• convictions for BWI (boating while impaired);
• convictions for operating aircraft while impaired;
• convictions for alcohol or controlled substance related criminal vehicular operation while impaired;
• convictions for aggravated DWI;
Prior Impaired Driving Related License Revocations (§ 169A.03, subd. 21)
• Prior impaired license revocations count as “priors” for enhancement purposes. Prior impaired license revocations do not include violations of the underage not-a-drop law (§ 169A.33) and violating conditions of a restricted license (§ 171.09)
DWI AND IMPLIED CONSENT Highlighted Points
The following points are highlighted for the purpose of clarifying some issues in DWI enforcement.
z DWI and implied consent laws apply to persons driving, operating, or physically controlling a motor vehicle anywhere (ice and land, public or private).
z An officer must have probable cause to believe the driver violated Minn. Stat. § 169A.20 or § 609.21.
z With probable cause, a DWI arrest may be made even if the offense was not committed in the officer’s presence.
z Officers may seize a blood sample for evidence of intoxication without the consent of the driver. Involuntary seizures of a driver's blood alcohol concentration will violate the implied consent laws with the exception of a test obtained, following a test refusal, upon probable cause the driver committed a violation of Minn. Stat. § 609.21 (Criminal Vehicular Homicide or Operation). State v. Shriner, 751 N.W.2d 538 (Minn. 2008).
z Seizure of blood from unconscious drivers is authorized in Minn. Stat. § 169A.51, subd. 6.
z Refusal to submit to chemical testing is a crime only if:
• the implied consent advisory is read to the person before a refusal; and
• the person was allowed the chance to contact an attorney prior to refusing.
z It is a crime to drive, operate or be in physical control of a motor vehicle with any amount of a schedule I or II controlled substance, or its metabolite, in the body (except marijuana or tetrahydrocannabinols).
Minn. Stat. § 169A.20, subd 1(7).
z Pursuant to the CVO statute, a DWI related accident, resulting in “bodily harm” (any physical pain or injury or illness, or any impairment of physical condition – Minn. Stat. § 609.02, subd 7) to another is guilty of GM operation.
Minn. Stat. § 609.21, subd. 1a(d).
z Miranda warnings are not required prior to police questioning in the following DWI situations:
• field sobriety tests and preliminary screening tests;
• the officer’s request to the driver for an implied consent test;
• the driver’s response to the request for a test; or
CAUTION: A Miranda warning is required before ANY “custodial interrogation.”
z Random stops of automobiles by police are illegal. The Minnesota Supreme Court has found that sobriety checkpoints violate the Minnesota Constitution. Ascher v Commissioner of Public Safety, 519 NW 2d 183 (Minn. 1994).
IMPLIED CONSENT READINGS AND TESTING POINTERS
z If the officer is reading the implied consent advisory to a non-English speaking driver - no interpreter is required and the test is valid if consent is obtained. However, if obtaining an interpreter will not delay the test, the better practice would be to provide an interpreter.
z Officers are encouraged to record the reading of the implied consent advisory and the driver’s response.
REGARDING THE IMPLIED CONSENT TEST
z The officer has the choice about which test (blood, breath or urine) the driver shall take
• if the test requested is either blood or urine and the driver complies, the officer need not offer an alternative test.
• if the test requested is either blood or urine and the driver refuses to take the test, the officer must offer an alternative test (breath, urine or blood) before the driver is considered to have refused testing.
z A driver refuses an implied consent test if
• the driver refuses the breath test when directed by the officer; or
• the driver refuses the blood or urine test AND an alternative test offered by the officer. Minn. Stat. § 169A.51, subd. 3.
z If the driver is physically unable to complete the breath, urine or blood test, an alternative test must be offered. A second reading of the advisory is not required.
z Only the following, acting at the request of an officer, may withdraw blood pursuant to the implied consent law:
• physician;
• medical technician;
• emergency medical technician – paramedic;
• registered nurse;
• medical technologist;
• medical laboratory technician;
• phlebotomist; or
• laboratory assistant.
REGARDING THE RIGHT TO COUNSEL PRIOR TO TESTING
z The driver has right to choose the attorney of their choice.
• Let the driver dial telephone;
• Permit the driver to make long distance calls;
• The driver has right to a call to a non-attorney in order to get the name / number of an attorney.
z Allow the driver a “reasonable time” to reach attorney and to consult with attorney.
z Stay with the driver to document their attempts or lack of attempts to make contact an attorney, but do not record the telephone call.
z Do not interfere with return calls made to the driver.
REGARDING THE RIGHT TO ADDITIONAL TESTING
z A person in custody has the right to independent testing by a person of their own choosing. The officer must allow the suspect to use a phone to seek assistance in obtaining an additional test, but need not provide transportation or furnish supplies. Independent testers must be allowed access to suspects in custody in order to collect blood or urine samples.
CAUTION: Denying a driver's right to contact an attorney, after the implied consent test, for assistance in obtaining an independent second test will result in suppression of the results of the police-administered test.
MANDATORY ARREST AND HOLD FOR COURT
z The offender must be detained until the offender’s first court appearance if the current offense is:
• 1st Degree DWI;
• 2nd Degree DWI;
• 3rd Degree DWI and the offender is younger than 19 years old;
• DWI or Refusal when the offender’s license has been canceled inimical to public safety;
• DWI when the offender’s AC is measured at .20 or more; or
• DWI or Refusal with child endangerment. Minn. Stat. § 169A.40, subd. 3.
z The above offenders are subject to mandatory maximum bail or the mandatory condition of release set forth in Minn. Stat. § 169A.44, subd. 1.
CHILD ENDANGERMENT OFFENSES
z Enhanced penalties are provided for a person who commits a DWI or Refusal crime while a child under the age of 16 is in the vehicle, if the child is more than 36 months younger than the driver. The provisions have the effect of requiring enhanced penalties, plate impoundments, and vehicle forfeitures sooner than would be the case for other offenders.
z It is an aggravating factor for a person who commits a DWI or Refusal crime with a child under the age of 16 (and more than three years younger than the driver) in the vehicle.
Minn. Stat. § 169A.03, subd. 3.
z Plate impoundment if required if a child is in the vehicle. Minn. Stat. § 169A.60, subd. 1(4).
z Vehicle forfeiture where a child is in the vehicle during the offense:
• DWI - if the driver has one or more additional aggravating factors when the offense was committed ; or
• Refusal – if the driver has no other aggravating factors when the offense was committed. Minn. Stat. § 169A.63, subd. 1.
TESTS LESS THAN 0.08 AND PARTIAL TESTS
z Evidence that a driver had an alcohol concentration of 0.04 or more is relevant evidence indicating whether or not a person was under the influence of alcohol. A driver may have an alcohol concentration less than .08 yet still be impaired or “under the influence.”
Minn. Stat. § 169A.45, subd. 2.
z Test results measured more than two hours after the violation, results below 0.04 and partial tests may also be admitted as “other competent evidence” of a DWI violation.
Minn. Stat. § 169A.45, subd. 4.
UNDER .08TEST TIPS
z If there is probable cause to believe that the offender is under the influence of additional substances, the Implied Consent can be re-invoked and an additional test required.
z In a prosecution for DWI, when the test result is under .08, it is extremely important to document the impairment of the subject:
• include detailed SFST’s and other observations;
• document and take statements from citizen witnesses; and
• note any admissions that the ofender may have made.
UNDERAGE CONSUMPTION
z The definition of “consume” for the crime of underage consumption includes the ingestion of an alcoholic beverage and the physical condition of having ingested an alcoholic beverage.
Minn. Stat. § 340A.503, subd 1(c).
z The offense of underage consumption may be prosecuted either at the place where the consumption occurred or at the place where evidence of consumption is observed.
Minn. Stat. § 340A.503, subd. 1(b).
z There is not a violation if the consumption occurred in the household of the parent or guardian with their consent.
UNDERAGE DRINKING AND DRIVING
z It is a misdemeanor for a person under the age of 21 to drive, operate or be in physical control of a motor vehicle after consumption of an alcoholic beverage while there is evidence of consumption present in the person’s body.
z Upon conviction, the underage drinker will have his/her driving privileges suspended for 30 days for a first offense, or for 180 days if the person has previously been convicted of or adjudicated for an underage consumption while driving offense.
z If the underage person’s alcohol concentration is 0.08 or more, or the person drives while under the influence, the regular DWI laws apply instead of the underage drinking and driving offense.
z A license suspension for underage drinking and driving is not a prior impaired driving-related loss of license under Minn. Stat. § 169A.03, subd. 21.
Note: The license suspension under Minn. Stat. § 169A.33 only occurs after a conviction or adjudication for underage drinking and driving. Therefore, the implied consent and DWI procedures result in more immediate and more severe sanctions, and should be used whenever possible.
COMMERCIAL VEHICLE AND SCHOOL BUS DRIVERS
z Driving a commercial motor vehicle with an alcohol concentration of 0.04 or more is a DWI offense in violation of § 169A.20, subd. 1(6). The first offense is a misdemeanor but may be enhanced to a gross misdemeanor if aggravating factors are present.
z Implied consent procedures may be invoked upon probable cause that a commercial motor vehicle driver has any alcohol in the driver’s system. When the offender is driving a commercial vehicle, an arrest is not necessary before testing can occur.
z Driving a commercial vehicle with an alcohol concentration of 0.20 or more is a gross misdemeanor.
z A driver of a commercial motor vehicle can be issued an out of service order effective for 24 hours if test results indicate the presence of any alcohol. A disqualification will be effective for a commercial motor vehicle driver for one year upon a refusal or test result showing an alcohol concentration of 0.04 or more.
z The legislature has adopted a “zero tolerance” standard for drivers of school or Head Start buses. It is a crime to drive a school bus or Head Start bus when there is physical evidence present in the person’s body of the consumption of alcohol.
• The offense is a gross misdemeanor if there is a child present who is more than 36 months younger than the offender or the violation is within 10 years of a prior impaired conviction or revocation is a gross misdemeanor.
Minn. Stat. § 169A.31, subd. 2.
• Otherwise, the offense is a misdemeanor. Minn. Stat. § 169A.31, subd. 3.
• Type III buses are included in the definition of “school bus”. Minn. Stat. § 169A.03, subd. 23.
AIDING AND ABETTING VIOLATIONS
z It is a crime to aid and abet any violation of Chapter 169A.
z “Every person who commits or attempts to commit, conspires to commit, or aids or abets in the commission of any act declared in this chapter [169A] to be an offense, whether individually or in connection with one or more other persons or as principal, agent, or accessory, is guilty of that offense, and every person who falsely, fraudulently, forcibly, or willfully induces, causes, coerces, requires, permits, or directs another to violate any provision of this chapter is likewise guilty of that offense.”
Minn. Stat. § 169A.78.
LICENSE PLATE IMPOUNDMENT
z License plate impoundment is required pursuant to Minn. Stat. § 169A.60, subd. 2 when:
• a DWI or refusal offense within ten years of a qualified prior impaired driving incident (conviction or license revocation);
• commercial vehicle DWI or refusal offense within 10 years of a qualified prior impaired driving incident;
• a DWI or refusal offense with a child under the age of 16 in the vehicle (and the driver is at least 3 years older than the child), or
• a person is driving after their license has been canceled as inimical to public safety (need not have a DWI violation).
z License plate impoundment may NOT be done for other offenses; such as open bottle or minor consumption, or a violation of restricted license if the person has a license at the time of the incident.
z Officers act as agents for the Department of Public Safety and shall seize the plates from any vehicle the violator is using at the time of the offense.
z Officers may NOT seize plates of vehicles registered in other states.
z Officers are required to seize and immediately destroy plates if the vehicle is accessible to the officer. When possible, all plates registered to the driver should be impounded, including those registered jointly or leased in the name of the violator and another.
z Temporary vehicle permits valid for seven days are to be issued for an offender who is the registered owner and for 45 days where the offender is not the registered owner.
z If an officer stops a vehicle and determines through a registration check that the vehicle is being operated while the vehicle’s registration is revoked, Minn. Stat. § 168.36, subd. 4, authorizes the officer to seize the vehicles plates, and destroy them or return them to the Department of Public Safety.
z A vehicle owner may not sell or transfer a vehicle subject to an impoundment order unless:
• The sale is for valid consideration;
• Owner and transferee are not family or household members; and
• The transferee signs a sworn statement attesting to the above. Minn. Stat. § 169A.60, subd. 14.
z Under Minn. Stat. § 169A.37, subd. 1, it is a misdemeanor for a person who has signed a sworn statement to allow the previous owner to drive, operate or be in control of the vehicle during the impoundment period.
SPECIAL REGISTRATION PLATES Issuance After Impoundment
z After plates have been impounded, a vehicle owner or violator can apply for new registration plates, which bear a special series of letters (WX, WY, or WZ). These special plates may be issued by the commissioner if:
• a member of the violator's household has a valid driver's license;
• the violator or owner has a limited license issued under § 171.30;
• the registered owner is not the violator and the owner has a valid or limited license;
• a member of the owner's household has a valid driver's license; or
• the violator has been reissued a valid driver’s license. Minn. Stat. § 169A.60, subd. 13.
z Officers may not stop a vehicle based solely on the vehicle’s display of special series plates. State v. Henning, 661 N.W.2d 379 (Minn. 2003) [holding that Minn. Stat. § 168.0422 allowing these stops is unconstitutional]
z “[I]t is not unconstitutional for an officer to make a brief, investigatory, Terry-type stop of a vehicle if the officer knows that the owner of the vehicle has a revoked license so long as the officer remains unaware of any facts which would render unreasonable an assumption that the owner is driving the vehicle.” State v. Pike, 551 N.W. 2d 919 (Minn. 1996), (reversing State v. Pike, 543 N.W. 2d 96 (Minn. Ct. App. 1996)). See State v. Duesterhoeft, 311 N.W.2d 866 (Minn. 1981) (stop of vehicle constitutional where officer knew registered owner of vehicle had a suspended license one month prior to stop); State v. Harshaw, No. C8-94-2105 (Minn. Ct. App. April 25, 1995) (An officer does not need an articulable suspicion of criminal activity before running a license plate check) (unpublished).
PLATE IMPOUNDMENT VIOLATIONS
z It is a misdemeanor for a person:
• to fail to comply with an impoundment order under Minn. Stat. § 169A.60;
• to file a false statement in order to obtain registration plates under Minn. Stat. § 169A.60;
• to operate a vehicle subject to an impoundment order unless it is equipped with special plates;
• to fail to notify the commissioner of impoundment order when requesting new plates;
• to drive, operate or be in control of any vehicle during the impoundment period unless validly licensed and the vehicle displays special plates; or
• who signed a sworn statement as a transferee of a vehicle to allow the previous owner to drive, operate or be in control of the vehicle during the impoundment period.
Minn. Stat. § 169A.37, subd. 1.
DISPLAY OF LICENSE PLATE
z All license plates are required to be displayed horizontally, in an upright position, and with the identifying numbers and letters facing outward from the vehicle.
Minn. Stat. § 169.79, subd. 7.
z License plates issued after July 1, 2008, requiring validation must display the month of expiration in the lower left corner of each license plate and the year of expiration in the lower right corner of the license plate.
Minn. Stat. § 169.79, subd. 8.
VEHICLE FORFEITURE
z Minn. Stat. § 169A.63 provides that an offender’s vehicle is subject to forfeiture upon conviction, revocation or failure to appear if the owner knew or should have known of the unlawful use of the vehicle, and the current offense is:
• 1st Degree DWI or Refusal;
• 2nd Degree DWI or Refusal;
Mastakoski v. 2003 Dodge Durango, 738 N.W.2d 411 (Minn. Ct. App. 2007)
• DWI or Refusal when the person’s license has been canceled as “inimical to public safety”; or
• DWI or Refusal when the person has a “B-card” (Note: the current offense may be a misdemeanor but the vehicle is still subject to forfeiture).
z The procedure for forfeiting vehicles in these circumstances is modeled after the Chapter 609 criminal law judicial forfeitures.
z A vehicle can only be forfeited if the vehicle was used in the commission of the designated offense and the offender is either convicted of the designated offense, fails to appear for a scheduled court appear, or if the offender’s conduct results in a designated license revocation.
z If the offender is not the owner, the vehicle is not subjected to forfeiture if its owner can demonstrate by clear and convincing evidence that the owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the owner took reasonable steps to prevent the unlawful use.
z "Use contrary to law" includes, but is not limited to, violations of the following statutes:
• section 171.24 (violations; driving without valid license);
• section 169.791 (criminal penalty for failure to produce proof of insurance);
• section 171.09 (driving restrictions; authority, violations);
• section 169A.20 (driving while impaired);
• section 169A.33 (underage drinking and driving); and
• section 169A.35 (open bottle law).
Note: It is important to document any evidence, which is uncovered during the investigation of the DWI, that the owner knew or permitted the offender to illegally operate the vehicle. Documentation of such evidence enables the State to beat the “innocent” owner affirmative defense.
z Owner is the person legally entitled to possession, use and control of the vehicle. There is a rebuttable presumption that the registered owner is also the owner for purposes of forfeiture.
Minn. Stat. § 169A.63, subd. 1(h).
RELEASE OF IMPOUNDED VEHICLES
z Minn. Stat. § 169A.42, subd. 2 was passed by the 1992 Legislature in an attempt to ensure that vehicles used by DWI suspects are properly registered and insured. Thus, a vehicle impounded as a result of an arrest for a DWI offense may not be released without:
• proof of a valid Minnesota driving privilege;
• proof of insurance and ownership, and
• proof of rental or lease agreements, if applicable.
LICENSE REVOCATION PERIODS Underage Drivers
z The DWI and implied consent license revocation period for drivers under the age of 21 who submit to testing is six months.
Minn. Stat. § 169A.52, subd 4(a) (2).
z If a driver under the age of 21 refuses to submit to testing, the implied consent license revocation period is for one year.
Minn. Stat. § 169A.52, subd. 3.
z Persons with a .20 or more alcohol concentration are subject to double the revocation period cited above.
LICENSE REVOCATION PERIODS Drivers 21 and Older
z Drivers testing .08 or more lose their license for 90 days or for 180 days if their license has been revoked for DWI or an implied consent violation within the past 10 years.
Minn. Stat. § 169A.52, subd. 4(a) (1) and (3).
z Drivers who refuse testing will lose their license for one year. Minn. Stat. § 169A.52, subd. 3.
z Persons with a .20 or more alcohol concentration are subject to double the revocation period cited above.
Minn. Stat. § 169A.52, subd. 4(a) (4)
LIMITED LICENSES
z For a first-time DWI or implied consent license revocation, a limited license (work permit) will not be issued for 15 days. For a second or subsequent revocation, a limited license will not be issued for 90 days if the person submitted to testing or for 180 days if the person refused to submit to testing. No limited license is available for one year if the revocation is the result of the commission of manslaughter resulting from the operation of a motor vehicle or criminal vehicular homicide or operation pursuant to Minn. Stat. § 609.21.
Minn. Stat. § 171.30, subd. 2a.
z Persons with a .20 or more alcohol concentration are subject to double the waiting periods for limited licenses cited above.
Minn. Stat. § 171.30, subd 2c.
GROSS MISDEMEANOR VIOLATION OF DRIVERS LICENSE RESTRICTION
z Pursuant to Minn. Stat. § 171.09, it is a gross misdemeanor to operate a motor vehicle in violation of a restriction relating to the possession or consumption of alcohol or controlled substances.
z If the restriction relates to a matter other than alcohol or controlled substances, the violation is a misdemeanor.
GROSS MISDEMEANOR
DRIVING AFTER CANCELLATION WHEN "INIMICAL TO PUBLIC SAFETY"
z It is a gross misdemeanor offense when a person operates a motor vehicle, the operation of which requires a driver's license, while the person's driver's license has been cancelled under Minn. Stat. § 171.04, subd. 1(10)
Minn. Stat. § 171.24
z When a driver is arrested for driving after cancellation – inimical to public safety, the offender’s vehicle’s license plates are to be impounded.
HOT LIST
z In 1992, the Legislature mandated that the Department of Public Safety develop a program which would provide a monthly notice to local law enforcement agencies of persons residing within the local agency's jurisdiction whose driving privileges have been canceled under Minn. Stat. § 171.04, subd.1 (10) (cancelled as "inimical to public safety").
z The hot list is accessible through the Driver and Vehicle Services Website with your law enforcement login credentials.
“B-CARDS” AND
ADMISSIBILITY OF PRELIMINARY BREATH TESTS
z Pursuant to Minn. Stat. § 169A.41, preliminary screening test (PBT) results may only be used in court in the following situations:
• to prove that a test was properly required under Minn. Stat. § 169A.51(implied consent);
• in a civil action arising out of the operation or use of a motor vehicle;
• in a prosecution for DWI test refusal;
• in a prosecution or juvenile court proceeding for underage alcohol consumption or underage drinking and driving;
• in a prosecution for alcohol-related school or Head Start bus driving or limited license violation;
• in an action for license reinstatement under Minn. Stat. § 171.19; or
• in a prosecution for violation of the total abstinence restriction (“B card”) under § 171.09 or violating a limited license under § 171.30.
z There are many circumstances where a “B” card will be canceled because of PBT test results, since the “B” card holder does not have to be driving to be in violation of the “no use” restriction.
z Drinking so-called “non-alcoholic” beer containing alcohol DOES violate the total abstinence restriction. Igo v. Commissioner of Public Safety, 615 N.W.2d 358 (Minn. Ct. App. 2000). In every case where a “B-card” violation is suspected, the officer should try to pin down alcohol consumption details and confirm the presence of alcohol with a test.
DRIVER’S LICENSE STATUS
z Drivers must possess a valid driver’s license with the appropriate endorsements (i.e., motorcycle, school bus) to legally operate a motor vehicle. Persons who are not eligible for a driver’s license are:
• persons underage;
• person under suspension, revocation or cancellation;
• persons determined ‘drug-dependent’ as defined in Minn. Stat. § 254A.02, subd. 5;
• persons adjudicated legally incompetent;
• persons who have not passed the licensing examination;
• persons who have not filed proof of auto no-fault insurance;
• persons inimical to public safety;
• persons who suffer from physical or mental disability that would prevent the person from exercising reasonable and ordinary control over a motor vehicle;
• persons who are unable to read and understand official traffic signs; or
• juveniles for whom a court has ordered denial of driving privileges. Minn. Stat. § 171.04, subd.1.
NO SURRENDER OF DRIVER’S LICENSE
z A driver is not required to surrender to the Department of Public Safety all license certificates if the person’s driver’s license is suspended, revoked, or cancelled.
z Officers must not rely upon the possession of a driver’s license as proof of valid driving privileges.
z It is a misdemeanor to display as valid, a cancelled, revoked, or suspended license (except for identification purposes only.)
Minn. Stat. § 171.22, subd. 1(9).
GRADUATED DRIVER’S LICENSE RESTRICTIONS
z Minn. Stat. § 171.055 places “graduated driver licensing” restrictions on provisional license holders. The restrictions prohibit night time driving and limit the number of passengers under the age of 20.
z Provisional license holders are restricted to from driving between 12:00 a.m. and 5:00 a.m. during the first six months of licensure. Exceptions are made if:
• the provisional license holder is accompanied by a licensed driver who is 25 years of age or older;
• if the provisional license holder is driving between their home and place of employment;
• if the provisional license holder is driving between home and a school event that the school does not provide transportation for;
• or if the provisional license holder is driving for employment purposes
z Provisional license holders are limited to 1 passenger under the age of 20 during the first six month of licensure, unless accompanied by a parent or guardian. An exception is made for family members under the age of 20.
z Provisional license holders are limited to 3 passengers under the age of 20 during the second six months of licensure, unless accompanied by a parent or guardian. An exception is made for family members under the age of 20.
FLEEING A PEACE OFFICER IN A MOTOR VEHICLE
z Fleeing a peace officer in a motor vehicle is committed when the suspect intentionally evades an officer who is acting in an official capacity. The elements of the offense include evasive action while using a motor vehicle after the suspect was given a signal by the officer to stop the vehicle.
z Evasive actions include:
• increasing speed;
• extinguishing vehicle lights;
• refusing to stop the vehicle; or
• using other means with intent to attempt to elude a police officer. Minn. Stat. § 609.487.
z Fleeing a peace officer in a motor vehicle is a felony.
z Upon conviction, the person’s driver’s license will be revoked. The length of revocation is at least one year, and may be longer depending upon the extent of bodily harm and the number of prior offenses. Minn. Stat. § 171.174.
FLEEING: OTHER THAN VEHICLE
The offense of “fleeing, other than vehicle” is committed when a person, for the purpose of avoiding
t. § 609.487.
Fleeing, other than vehicle is a misdemeanor.
A person is guilty of criminal vehicular operation if the person causes death or injury to another
z
arrest, detention, investigation, or to conceal or destroy potential evidence, attempts to evade or elude a peace officer by means of running, hiding, or by any other means except fleeing in a motor vehicle. Minn. Sta z CRIMINAL VEHICULAR MICIDE OR OPERATION HO z as a
er the influence of: substance; or
lements;
• re;
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ardous substance;
dule I or II, or its
• 69.09,
• that a peace officer had previously issued a citation or
ote: Legislature added language regarding metabolites to the CVO laws (effective for offenses
z order for a defendant to be convicted of a CVO in the situation involving a hit and run, the state result of operating a motor vehicle:
• in a grossly negligent manner;
• in a negligent manner while und
alcohol;
a controlled
any combination of those e
with an alcohol concentration of .08 or mo
• with an alcohol concentration of .08 or more w
• in a negligent manner while knowingly under influence of haz
• in a negligent manner with any amount of a controlled substance listed in sche
metabolite, other than marijuana or tetrahydrocannabinols, is present in the person's body; where the driver who causes an accident leaves the scene in violation of Minn. Stat. § 1 subd. 1 or 6. (hit and run statute); or
where the driver had actual knowledge
warning that the motor vehicle was defectively maintained, the driver had actual knowledge that remedial action was not taken, the driver had reason to know that the defect created a present danger to others, and the injury or death was caused by the defective maintenance.
N
committed after 8/1/2007). In
must prove beyond a reasonable doubt that the defendant knew he/she was involved in an accident with a person or a vehicle. State v. Al-Naseer, A05-1394 (Minn. 2007) (Decided July 12, 2007). The criminal offense level depends on the extent of injury to the other person:
o another person or an
z
• If the accident results in death, great bodily harm, substantial bodily harm t unborn child, the offense is a felony.
If the accident results in bodily harm t
• o another, the offense is a gross misdemeanor.
Note: The injury necessary to charge a gross misdemeanor CVO is minor. Under Minn. Stat. § 609.01, subd. 7, “bodily harm” means physical pain or injury, illness, or any impairment of physical condition.
HIT AND RUN
z Any driver of any vehicle involved in an accident resulting in injury to a person or damage to a vehicle must stop at the scene, assist, and give the following information:
• name;
• address;
• date of birth;
• driver’s license (upon request);
• insurance information; and
• registration plate number of the vehicle. Minn. Stat. § 169.09, subd 3.
z A driver, regardless of whether the driver caused the accident, who fails to remain at the scene and provide the necessary information is guilty of a:
• felony if the accident results in either death or great bodily harm;
• gross misdemeanor if the accident results in bodily harm; or
• misdemeanor if the accident did not result in personal injury. Minn. Stat. § 169.09, subd 14.
REPORTING ACCIDENTS TO THE DEPARTMENT OF PUBLIC SAFETY
z Some accidents have to be reported to the commissioner of public safety. A reportable motor vehicle accident is one where there is bodily injury to or death of any person or where the apparent extent of the total property damage is $1,000 or more.
Minn. Stat. § 169.09, subd. 7.
z Officers to report accident to commissioner. A law enforcement officer who, in the regular course of duty, investigates a motor vehicle accident that must be reported under this section shall, within ten days after the date of the accident, forward an electronic or written report of the accident to the commissioner of public safety.
Minn. Stat. § 169.09, subd. 8.
z Accident report information is used by the Departments of Public Safety and Transportation for a variety of purposes. Accident data is used to determine where roadway improvements are made and traffic signals are installed. When special funds are available for enforcement of high accident areas, the accident data determines which jurisdictions receive the funds. Accident data is also used to evaluate the success of various enforcement projects.
RECKLESS AND CARELESS DRIVING
z Reckless Driving includes driving any “vehicle” that in “willful or a wanton disregard for the safety of persons or property” or “Racing.”
z Racing included drivers who “willfully compares or contests relative speeds by operating one or more vehicles “ The speeds involved do not need to exceed the speed limit to constitute racing.
z Careless Driving is driving conduct or halting a “vehicle” “carelessly or heedlessly in disregard of the rights of others, or in a manner that endangers or is likely to endanger any property or any person, including the driver or passengers of the vehicle.”
z Reckless Driving, Racing, and Careless Driving can be prosecuted for violations occurring on anywhere in the state including the ice of lakes and river, and parking lots.
Minn. Stat. § 169.02 and § 169.13 Subd. 3.
z "Vehicle" means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.
Minn. Stat. § 169.01 Subd. 2.
ALCOHOL AND MARIJUANA IN A MOTOR VEHICLE
z An owner, or driver if the owner is not present, may be cited for allowing an open bottle anywhere in the passenger compartment of the vehicle. An owner may be cited for allowing an open bottle if the owner is present at the time of the offense.
Minn. Stat. § 169A.35.
z The open bottle law requires actual possession or an exercise of dominion and control over the open bottle before a passenger can be cited for a violation.
z A driver and sole occupant of vehicle has a duty to check for open containers of alcohol prior to driving. In this case, an officer may cite the driver for open bottle even though the officer can not show the driver knew of the open bottle.
State v. Loge, 608 N.W.2d 152 (Minn. 2000).
Note: The open bottle law does not apply to possession or consumption of alcoholic beverages by passengers on a charter bus or in a limousine.
z An owner, or driver if the owner is not present, may be cited for allowing more than 1.4 grams of marijuana in a motor vehicle when the substance is kept anywhere in the passenger compartment of the vehicle. The offense is committed only when the driver or owner knowingly keeps or allows the contraband in the vehicle.
Minn. Stat, § 152.027, subd. 3.
z Passengers in possession of marijuana in a motor vehicle should be cited only for petty misdemeanor possession of marijuana.
Minn. Stat. § 152.0271.
SPEEDING
z No person shall drive a vehicle at a speed greater than that which is reasonable and prudent under the conditions. Weather and highway conditions may require speeds below the posted limits for safe driving. Speed readings from radar and other speed measuring devices are admissible at trial when:
• the officer is sufficiently trained to properly operate the equipment;
• the officer testifies to the manner of setting up and operating the equipment;
• the equipment was operated with minimal distortion or interference; and
• the equipment was tested by an accurate and reliable external mechanism at the time it was set up.
z “Radar jammers” may not be sold, offered for sale, used or possessed in this state.
THE "DIMLER AMENDMENT"
z Pursuant to Minn. Stat. § 171.12, subd. 6, a conviction for a violation of a speed limit of 55 MPH or 60 MPH shall not be recorded on the violator’s driving license unless the violation consisted of a speed greater than 10 MPH in excess of a 55 MPH speed limit or more than 5 MPH in excess of a 60 MPH speed limit.
z Care must be taken to only use this amendment where it applies. For example, a violation for driving 74 m.p.h. in a 65 m.p.h. speed limit zone of I-35 should go on a driver's record.
“TED FOSS” MOVE OVER LAW
z A driver before passing an authorized emergency vehicle with its emergency lights activated, freeway service patrol, road maintenance or construction vehicles that are stopped on or next to a street or highway shall:
• safely move the vehicle to the lane farthest away from the emergency vehicle (if there are two lanes in the same direction), if it is possible to do so; or
• shall safely move the vehicle so as to leave a full lane vacant between the driver and any lane in which the emergency vehicle is completely or partially parked or otherwise stopped (if there are more than two lanes in the same direction), if it is possible to do so.
Minn. Stat. § 169.18, subd. 11.
z The driver does not need to be immediately stopped when the violation occurs. A citation may be issued to a driver, if the officer has probable cause to believe that the driver has violated Minn. Stat. § 169.18, subd. 11 within the four-hour period following the termination of the incident.
Minn. Stat. § 169.18, subd. 11(c).
z The violation requires that the driver move over if it is possible to do so. In court, the driver may argue that it was not possible to move over because of other vehicles. Documenting the traffic conditions at the time of the violation can ensure that such arguments do not succeed.
SEAT BELT ENFORCEMENT GUIDE [Minn. Stat. § 169.686]
z Applies to all front-seat occupants, as well as occupants under the age of 11 seated anywhere in the vehicle.
z Driver may be ticketed for any child that is not wearing a seat belt, under the age of eleven, and for his or her own child who is from 11 to 15 years old and is riding in the front seat.
z Applies to both residents and non-residents of Minnesota.
z Belts must be used properly (lap belt over hip bones, not high on abdomen; strap over shoulder, not under the arm or behind the back.)
z Belts must be present as produced by manufacturer, not removed or disconnected.
z Driver and passenger 15 years or older is subject to $25 fine.
Note: Subdivision 1 of this statute states that a peace officer may not issue a citation for a violation of this section unless the officer lawfully stopped or detained the driver of the vehicle for a moving violation other than a violation involving motor vehicle equipment.
Thus, suspected non-use is not a basis to stop a vehicle. See State v. Fiebke, 554 N.W.2d 755 (Minn.Ct. App. 1996).
z Exceptions to seat belt requirement:
• Person driving a vehicle in reverse;
• Person riding in a vehicle in which all seating positions equipped with safety belts are occupied by other people;
• Person who has in their possession a written certificate from a licensed physician stating that for medical reasons, wearing a safety belt in inadvisable;
• Person engaged in work that requires frequent alighting and reentering the vehicle, and who, while engaged in that work, travels in the vehicle at speeds of no more than 25 miles per hour;
• Person driving or riding in a vehicle made before 1/1/65;
• A rural carrier of the U.S. Postal Service while in the performance of duties; or
• Person riding in a pickup truck (carrying capacity 3/4 ton or less) engaged in normal farming work or activity.
USE OF SEAT BELTS WHEN THE DRIVER IS UNDER 18
z When a vehicle is being operated by a driver under the age of 18, who is driving the vehicle pursuant to an instruction permit, every occupant under the age of 18 must be wearing a seat belt. The driver of the vehicle is the party responsible for this violation.
Minn. Stat. § 171.05 subd. 2b(c).
z When a vehicle is being operated by a driver under the age of 18, who is driving the vehicle pursuant to a provisional license, every occupant under the age of 18 must be wearing a seat belt. The driver of the vehicle is the party responsible for this violation.
Minn. Stat. § 171.055 subd. 2(a).
CHILD RESTRAINT ENFORCEMENT GUIDE [Minn. Stat. § 169.685]
z Children under 4 must be in a federally approved safety seat.
z Safety seats must be installed and used according to the manufacturer's instructions.
z Infants (under 20 pounds) must be in rear-facing safety seat; child must be secured by harness to safety seat; seat must be secured to the vehicle with a seat belt.
z Applies to all motor vehicles originally equipped with factory-installed seat-belts.
z Applies to all seating positions.
z Driver is responsible for violations.
z Petty misdemeanor fine is $50.
z Suspected non-use is a basis to stop a vehicle. State v. Lucas, 589 N.W.2d 91 (Minn. 1999).
z Exceptions to child safety sear requirement:
• Children riding in emergency medical vehicles, when medical needs make use of a restraint unreasonable;
• Children riding in a motor vehicle for hire, including taxi, airport limousine, and bus, but excluding a rented, leased, or borrowed motor vehicle;
• Children riding with a peace officer on official duty, when a restraint is not available (a seat belt must be substituted);
• Children certified by a licensed physician as having medical, physical, or mental disabilities that make restraint use inadvisable (must have type-written certification in possession); and
• Passengers in school buses.
MOTORIZED FOOT SCOOTERS
z A motorized foot scooter is defined pursuant to Minn. Stat. § 169.01 as a device with handlebars designed to be stood or sat upon by the operator, and powered by an internal combustion engine or electric motor that is capable of propelling the device with or without human propulsion, and that has (1) no more than two twelve-inch or smaller diameter wheels and (2) an engine or motor that is capable of a maximum speed of 15 miles per hour on a flat surface with not more than ten percent grade in any direction when the motor is engaged.
z Maximum speed 15 mph.
z Operator has all rights and duties applicable to those of an operator of a bicycle.
z Motorized foot scooter cannot be operated on a sidewalk, except where necessary to enter/leave adjacent property.
z Operation with a passenger is prohibited.
z Twelve (12) is the minimum age to operate the foot scooter.
z Head gear required.
z Must have head and tail lights.
z Operator must ride as close as practicable to the right hand or edge of the roadway, except in a few situations.
NEIGHBORHOOD ELECTRIC VEHICLES
z “Neighborhood Electric Vehicle” is defined by Minn. Stat. § 169.01 subd. 91 as an electrically powered motor vehicle that has four wheels, and has a speed attainable in one mile of at least 20 miles per hour but not more than 25 miles per hour on a paved level surface.
z Minn. Stat. § 169.224 subd. 2 requires that a “neighborhood electric vehicle” meet all of the safety equipment and guidelines of Code of Federal Regulations, title 49, section 571.500. The CFR
requires that the vehicles have: headlights, turn signals, taillights, brake lights, mirrors, parking brake, seatbelts, windshield and a VIN. In Minnesota these vehicles are registered with a standard vehicle license plate.
z These vehicles are allowed on streets and highways with a speed limit no greater than 35 MPH, however, the vehicles may directly cross faster roadways.
Minn. Stat. § 169.224.
MOTORCYCLES,
MOTOR SCOOTERS AND MOTOR BIKES
[Minn. Stat. § 169.974]
z Driver’s License Requirements:
• No person shall operate a motorcycle on any street or highway without having a valid standard driver's license with a two-wheeled vehicle endorsement as provided by law;
• No two-wheeled vehicle endorsement shall be issued unless the person applying for it possesses a valid two-wheeled vehicle instruction permit, has passed a written examination and road test administered by the department of public safety, and, in the case of applicants under 18, presents a certificate of successful completion of an approved two-wheeled vehicle driver's safety course;
• The commissioner of public safety may waive the road test for any applicant if the applicant possesses a valid license to operate a two-wheeled vehicle issued by a jurisdiction that requires a comparable road test for license issuance;
• A two-wheeled vehicle instruction permit shall be issued to any person over 16 years of age, who possesses a valid driver's license, is enrolled in an approved two-wheeled vehicle driver's safety course, and has passed a written examination for permit; and
• A two-wheeled vehicle instruction permit shall be effective for one year and may be renewed under rules to be prescribed by the commissioner of public safety.
Note: The commissioner of public safety may issue a special restricted motorcycle permit, to any person demonstrating a need therefore and unable to qualify for a standard driver's license.
z No person with a two-wheeled vehicle instruction permit shall:
• Carry any passengers on the motorcycle;
• Drive the motorcycle at night;
• Drive the motorcycle on any interstate highway; or
• Drive the motorcycle without wearing protective headgear.
z Equipment for Operators and Passengers:
• People under the age of 18 must wear helmets; and
• All operators must wear eye protection.
z Driving Rules:
• Motorcycle passengers MUST be able to reach the foot rests when sitting astride the motorcycle seat;
• No person shall operate a motorcycle while carrying animals, packages, bundles, or other cargo which prevent the person from keeping both hands on the handlebars;
• No person shall operate a motorcycle between lanes of moving or stationary vehicles headed in the same direction, nor shall any person drive a motorcycle abreast of or overtake or pass another vehicle within the same traffic lane, except that motorcycles may, with the consent of both drivers, be operated not more than two abreast in a single traffic lane; and
• No person shall operate a motorcycle on a street or highway unless the headlight or headlights are lighted at all times.
CELLULAR TELEPHONE USE PROHIBITED BY PERSONS UNDER 18
z Driver’s under the age of 18 who are driving a vehicle pursuant to an instruction permit, may not operate a cellular or wireless telephone, handheld or hands free, while when the vehicle is in motion. Minn. Stat. § 171.05 subd. 2b(d).
z Driver’s who are driving on a “provisional license” (under the age of 18) may not operate a cellular or wireless telephone, handheld or hands free, while when the vehicle is in motion. Minn. Stat. § 171.055 subd. 2(b)
WIRELESS COMMUNICATION PROHIBITED
z Electronic message is defined as a digital communication such as text or data that is intended for wireless transmission.
Minn. Stat. § 169.475, subd. 1.
z Drivers are prohibited from using a wireless communication device to compose, read, or send electronic messages while the vehicle is moving or part of the flow of traffic.
Minn. Stat. § 169.475, subd. 2
z Exceptions are provided for operation of the device in the hands free mode, to make a phone call, to obtain emergency assistance, to identify a traffic hazard, to report a crime, or by certain emergency vehicles in the official course of duty. Minn. Stat. § 169.475, subd. 3
z Type III school bus drivers (passenger cars, station wagons, vans, and buses having a maximum manufacturer’s rating seating capacity of ten or fewer people and driven by employees or agents of school districts) are prohibited from operating a school bus while communicating over, or otherwise operating, a cellular telephone for personal reasons. Minn. Stat. § 169.443, subd. 9.
DISORDERLY CONDUCT AND OBSTRUCTING LEGAL PROCESS
z Disorderly conduct may be committed in either a public or private place. Such conduct as fighting or brawling, or using language in a type and manner that will arouse anger and resentment in a reasonable person is prohibited.
Minn. Stat. § 609.72.
z Interference by a person with a police officer or other public official who is acting in an official capacity may be a misdemeanor, gross misdemeanor, or felony depending on the injury or property damage. Minn. Stat. § 609.50.
FIREARMS AND ALCOHOL
z It is a misdemeanor to carry a pistol on or about the person in a public place while under the influence of alcohol, controlled substance, hazardous substance, or with an alcohol concentration of 0.04 or more. An officer may require a person the officer has reason to believe has violated this provision to submit to a preliminary screening test as well as further breath, blood or urine testing.
FALSE INFORMATION TO A PEACE OFFICER
z It is a misdemeanor to give a peace officer a fictitious name or date of birth. The offense includes giving false or altered identification cards with the intent to obstruct justice. It is a gross misdemeanor if the person gives the officer the name and birth date of another person.
Minn. Stat. § 609.506 and § 171.22.
LYING TO A PEACE OFFICER
z A person is guilty of lying to peace officer if they provide false information to an on duty peace officer, knowing that the person is a peace officer, regarding the conduct of others. The crime applies if the person knew the information was false and intended the officer to act in reliance upon it.
Minn. Stat. § 609.505.
z It is a misdemeanor if the reported act is not criminal in nature. It is a gross misdemeanor if the reported act is criminal in nature.
LIQUOR PURCHASES AND SALES OFFENSES
z It is a gross misdemeanor to sell, barter or give alcoholic beverages to a person under 21, except that person's parent or guardian who furnishes alcoholic beverages for consumption in the household. Minn. Stat. § 340A.702.
z It is a felony if the underage person becomes intoxicated and suffers or causes death or great bodily harm as a result. Liquor store owners and their employees are exempt from felony charges.
Minn. Stat. § 340A.701.
z The common misdemeanor offenses are underage consumption and possession of an alcoholic beverage in a public place. It is lawful for a person under 21 years of age to consume an alcoholic beverage in the household of a parent with the parent's consent. The offense of underage consumption may be prosecuted either at the place where the consumption occurred or at the place where evidence of consumption is observed.
Minn. Stat. § 340A.503, subd. 1(b).
z Preliminary breath test results are admissible in underage consumption cases.
DRUGS AND DRUG PARAPHERNALIA OFFENSES
z Possession or distribution (for no remuneration) of a small amount of marijuana (42.5 grams or less) is a petty misdemeanor. All subsequent violations of possessing a small amount of marijuana remain a petty misdemeanor; where as a second offense of distribution within two years is a misdemeanor. Drug paraphernalia are objects used to consume, manufacture, test, or enhance the controlled substance, and possession of such objects is a petty misdemeanor violation.
z Please also see the section relating to alcohol and marijuana in a motor vehicle. Minn. Stat. § 152.092 and § 152.027.
JOEL WATNE’S TIPS FOR PEACE OFFICERS
TABLE OF CONTENTS
Page
I. TIPS AND SUGGESTIONS... 25
1. Introduction... 25 2. Investigatory Stops ... 25 A. Citizen complaints ... 25 B. Special series registration plates ("whiskey plates")... 26 C. Duration of stops ... 27
D. Askerooth... 29
3. Advice... 30 4. The Limited Right To Counsel ... 31 Choice of attorney... 31 Long-distance calls ... 32 Dialing... 32 Privacy ... 32 Good-faith effort... 33 Reasonable time ... 33 Ending the call ... 35 5. The Right To Additional Testing ... 36 6. Paperwork And Documentation ... 40 Reports in general ... 40 Preliminary screening tests... 40 Observation periods before Intoxilyzer Tests... 41 Video and Audiotapes... 41 Paperwork Errors ... 41
II. TOTAL ABSTINENCE RESTRICTION VIOLATORS
I. TIPS AND SUGGESTIONS. 1. Introduction.
Most Minnesota officers have a reasonable understanding of the need to articulate objective facts to demonstrate a reasonable suspicion needed to justify and investigatory stop and probable cause for arrest. In addition, testing officers generally have a good understanding of the requirements for a valid, reliable and accurate test. While defense attorneys continue to assert challenges in those areas, there are several areas which have been increasingly the subject of litigation: (1) giving advice other than through reading the Implied Consent Advisory; (2) the right to counsel; (3) the right to additional tests; and (4) errors in paperwork.
2. Investigatory Stops.
A. Citizen complaints.
With the increasing use of cellular telephone technology, police receive many citizen complaints about bad driving. A significant number of DWI arrests arise from those calls. However, these cases present special problems for police officers and prosecutors.
First, there is the communications problem. What the cellular telephone caller says to the dispatcher is not necessarily what the dispatcher tells the officer on the road, and what the dispatcher tells the officer often is not what the officer writes in the report.
In State v. Rose, 637 N.W.2d 326 (Minn. Ct. App. 2001), review denied (Minn. March
21, 2002), the Court held that a citizen tipster who reported to police only that there was
a “possible intoxicated driver” on the road did not provide an articulable basis for a
police officer to stop the vehicle identified by the tipster because the officer had no information as to why the tipster believed the driver to be intoxicated.
There are several things that can be done to minimize the risk that a case may be lost because of such problems.
1. Have the dispatcher get the name, address and phone number of the caller. Identified callers are presumed to be reliable. Even though the Supreme Court said in Marben v. State, Dep’t of Public Safety, 294 N.W.2d 697 (Minn. 1980), that citizen complainants are presumed to be reliable even though anonymous, the Court of Appeals scrutinizes the information much more closely if the caller is anonymous. 2. Get some facts from the caller to support the opinion of “possible” intoxication. Get descriptions of bad driving conduct, observations of the person
drinking at a bar, staggering to the car and taking two minutes to get the key in the door, hitting other cars or objects in the parking lot, etc.
3. Train dispatchers to stop translating a report that a car is “all over the road” and the driver “must be drunk” into a report of a “possible drunk driver.” The use of the word “possible” is a red flag for the courts. The dispatcher should relay to the officer the facts that lead to the conclusion that the driver is impaired so that the officer has that information available before the stop. AVOID THE USE OF THE WORD
“POSSIBLE.” If a citizen reports that shots have been fired at the bank, the citizen and
dispatcher would not say “possible shots fired.” When a citizen reports a “drunk driver,” dispatchers should not be saying “possible drunk driver.” Where the dispatcher reports a “possible drunk driver,” the case law indicates that is not enough to justify a stop. But where the dispatcher reports a “drunk driver,” numerous decisions hold that to be
sufficient to justify the stop.
4. Once the officer spots the vehicle, the officer should try to develop an independent basis for stopping the vehicle. Look for bad driving, equipment violations or other violations that provide an independent basis for stopping the vehicle. An independent basis will strengthen the case, and avoid any possible problems with an anonymous driver who reports a “possible” drunk driver, or a dispatcher who translates “all over the road” to “possible” drunk driver.
5. In writing the report, the officer should avoid stating that the dispatcher reported a “possible drunk driver” unless that is actually what the dispatcher said. Instead, be careful to record the factual basis for the dispatch. AVOID THE USE OF
THE WORD “POSSIBLE.” There is no need to create unnecessary red flags. Use of
the word “possible” has been creating problems ever since the Supreme Court decision
in Olson v. Commissioner of Public Safety, 371 N.W.2d 552 (Minn. 1985). Include the
identification of the citizen caller, when available, and details as to the factual basis for the citizen complaint.
6. If the officer does not develop an independent basis for the stop, be sure
to keep a copy of the 911 call and dispatcher’s calls to the officer to show what the
caller actually said, and what the dispatcher actually relayed. Tapes often reveal that the anonymous caller is not really anonymous after all, and that they provided a lot more specific information than is suggested by the officer’s report. These tapes can be of critical importance.
7. If possible, meet with the citizen caller and get a written statement. This shows that the person is very willing to identify himself or herself to police, and helps persuade courts that their complaints were more likely to be well founded.
If these seven tips are followed, very few cases should ever be lost on the basis that the stop is “bad.”
B. Special series registration plates (“whiskey plates”).
Once plates have been impounded following the necessary alcohol-related offenses, “special series” registration plates can be obtained so that licensed drivers in
