DWI Aggravating Factor – Children in Car at time of DWI
A DWI can be enhanced to a gross misdemeanor or felony based upon the presence of any combination of aggravating factors. Minn. Stat. 169A.03, subd. 3 defines aggravating factors to include: (1) having a qualified prior within the past 10 years; (2) having an alcohol concentration in excess of 0.16 (come Aug. 1); or (3) having a child under the age of 16 in the vehicle.
The statutory language of the last factor has led some to believe that each child is a separate aggravating factor – after all, the definition says that “a child” is an aggravating factor. So, in the instance in which a person has two kids in the backseat, a first-time offense would be quickly enhanced to a 2nd-Degree DWI. And, if that person has a prior or a high reading, it’s a felony. The consequences of this interpretation are rather significant and severe.
The Minnesota Court of Appeals just analyzed this issue and – thankfully – held that the last factor cannot be stacked via multiple children. Whether it’s one or more children, it’s a single aggravating factor.
The courts interpretation is nuanced, to say the least. It began by breaking down the statutory language to find that “a child” is the primary fact, while the “presence” of ‘a child’ is secondary. And because statutory interpretation dictates that “the singular includes the plural; and the plural, the singular,” the phrase ‘a child’ should not be read to allow the presence of multiple children to result in multiple aggravating factors. The court also points to two statutes – Minn. Stat. 169A.09 and 169A.095, which explain how and when an aggravating factor may be aggregated for enhancement purposes – to support its contention that the omission of similar instruction for this aggregating factor shows that multiple children cannot be used to further enhance the charge.
As you can see from this case, State prosecutors are not shy when seeking to enhance every DWI. It is imperative that you have a seasoned Minnesota DWI attorney to fight for you.