Minnesota Implied Consent Lawyers

What most people don’t realize when they get charged with a DWI is that there is a separate and equally important legal battle that must be waged on their behalf. Under the Minnesota Implied Consent Law, a driver charged with a DWI will lose their license almost immediately and have a limited time-frame by which they must challenge this loss of license. And if they don’t do so in a timely fashion, the driver will lose their license for a lengthy period of time and have an alcohol-related loss of license that will be used to enhance future DWI charges – and this occurs, regardless of what happens in the criminal matter.


A brief overview of the Implied Consent Law is necessary. Pursuant to Minn. Stat. § 169A.51, any person who drives a car in this state impliedly consents to a chemical test of their breath, urine, or blood for purposes of determining the presence of alcohol or a controlled substance. This test only occurs after a police officer has probable cause to believe a person was driving under the influence of alcohol or drugs.

While the statute uses the term “consent”, it is more appropriate to call it compulsion because failure to submit to a test results in another crime that may be more serious than the underlying DWI crime. Despite the prospect of facing further criminal prosecution for not outright consenting to the test, the Minnesota Supreme Court has upheld this law and it is the law of the State – for now at least.

Implied Consent Law

The implied consent law is invoked – i.e. triggered – when an officer has probable cause to believe the person was driving under the influence and one of the following exists:

  1. The person was lawfully arrested for DWI;
  2. The person was involved in an accident that resulted in personal or property damage;
  3. The person refused the portable breath test (PBT) on the side of the road; or
  4. The breath test on the side of the road revealed an alcohol concentration above 0.08.

When the implied consent law is invoked, the driver will be offered either (1) a breath test, or (2) a urine or blood test. If the officer offers a urine test, he/she must also offer a blood test, and vice versa. No such requirement exists when a breath test is offered.

Prior to administering the test, the officer must read the driver the Breath Test Advisory. In almost all cases, the officer will read from a form and mark that he/she read the paragraph and will note your responses. It is critical that this advisory be read fully and correctly in order to ensure the validity of your alleged “consent.”

At this point, either the driver agrees to take the test or refuses. A refusal occurs when the driver says they will not take the test and through the conduct of the driver – such as by not providing enough air during a breath test. If the driver refuses, no test will be taken and the driver will be charged with both a DWI – based on conduct and not any test result – and a DWI-Refusal. The refusal charge is a gross misdemeanor crime, which carries a maximum penalty of 365 days in jail and a $3,000 fine.

If the driver takes the test and fails it – by having an alcohol concentration above 0.08 – then the driver will be charged with a DWI and facing almost immediately license consequences. The level of the criminal charge will vary depending on the test result, number of priors, and/or the presence of children in the vehicle.

Judicial Review

One of the most immediate consequences of a DWI is the loss of license. Under the Implied Consent Law, seven days after the date of the alleged offenses, the driver’s license will be revoked for a lengthy period of time. The driver has only 30 days to petition a court for judicial review. This is a hard deadline that cannot be extended. A petition for judicial review results in the creation of a civil case that can occur at the same time as the underlying DWI case.

Minn. Stat. § 169A.53 outlines the petition and service requirements. But, what’s important to understand is that the issues for any review hearing is limited to the ten issues listed under the statute:

  1. Did the peace officer have probable cause to believe the person was driving, operating, or in physical control of a motor vehicle or commercial motor vehicle in violation of section Minn. Stat. § 169A.20 (DWI)?
  2. Was the person lawfully placed under arrest for a DWI?
  3. Was the person involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death?
  4. Did the person refuse to take a PBT?
  5. If the screening test was administered, did the test indicate an alcohol concentration of 0.08 or more?
  6. At the time of the request for the test, did the peace officer inform the person of the person's rights and the consequences of taking or refusing the test – i.e. read the implied consent advisory?
  7. Did the person refuse to permit the test?
  8. If a test was taken by a person driving, operating, or in physical control of a motor vehicle, did the test results indicate at the time of testing:
    1. an alcohol concentration of 0.08 or more; or
    2. the presence of a controlled substance listed in Schedule I or II or its metabolite, other than marijuana or tetrahydrocannabinols?
  9. If a test was taken by a person driving, operating, or in physical control of a commercial motor vehicle, did the test results indicate an alcohol concentration of 0.04 or more at the time of testing?
  10. Was the testing method used valid and reliable and were the test results accurately evaluated?
  11. Did the person prove the defense of necessity?
  12. Did the person prove the defense of controlled substance use in accordance with a prescription?

Finally, it is an affirmative defense for the petitioner to prove that their refusal to permit the test was based upon reasonable grounds. Any issues outside of these are not eligible to be heard by the Court. The overarching issue basically boils down to: is the rescission of the license legal?

There is one hearing in which the State will call the arresting officer and any other witnesses to testify and carry its burden of proof. And because this is a civil matter, the State only needs to prove its case by a preponderance of the evidence.

The outcome in the implied consent court has no impact on the underlying criminal matter – and vice versa. This means that if you are successful in getting key evidence suppressed and the case dismissed as a result in the criminal arena, you still have to go to civil court and succeed on the same issue in order to avoid having an alcohol-related loss of license on your record.

Simply put – a DWI has two arenas that need to be fought with equal vigor: DWI court and Implied Consent court. And a victory in one doesn’t mean you will be victorious in the other. Rather ridiculous system, right?