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Post-Driving Consumption – DWI Defense

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If you are charged with a Minnesota DWI, there are a few affirmative defenses prescribed by law. One of them is post-driving consumption. Under Minn. Stat. 169A.46, post-driving consumption is a complete defense to a charge of DWI with an alcohol concentration greater than .08 or .16. It’s important to understand that this is not a complete defense – at least not under the statute – to the driving while impaired count, which doesn’t necessarily need the test result in order to be found guilty.

To raise this defense, a Defendant must provide notice to the State. And then the Defendant carries the burden of proving by preponderance of the evidence that he/she consumed “a sufficient quantity of alcohol after the time of the violation and before the administration of the evidentiary test to cause the defendant’s alcohol concentration to exceed the level specified.” Case law has broken this down to require the Defendant satisfy two elements: (1) the Defendant drank after driving, but before submitting to the evidentiary test; and (2) the amount drank during this time frame caused his or her alcohol concentration to exceed the applicable limit. In essence, this is a ‘but-for’ test; but for the alcohol consumed after driving, the Defendant would not have tested above the applicable limit.

Putting this legalese aside, how does this actually work? It requires the Defendant to gather as much evidence as possible – preferably as soon as possible after the incident – about the circumstances surrounding the post-driving consumption. This can be in the form of receipts from bars/restaurants the Defendant drank at – showing not only what was consumed and how much was consumed, but also when it was consumed. Having witnesses to verify the Defendant’s version of events is helpful, too.

And, depending on the circumstances, it may be necessary for an expert to testify that, even though the Defendant had a drink or two prior to driving, it was the later consumed alcohol that actually put the Defendant over the legal limit. For instance, an expert can determine the likely blood alcohol concentration level by learning how much the Defendant drank before driving. Verifiable evidence that the Defendant had a drink or two at the bar/restaurant can lead to the expert deducing that the Defendant would have only been at a .05. It was the additional drink or two after driving that then led to the reading being above .08.

If you believe you have a legitimate post-driving consumption affirmative defense to your DWI charges, it is absolutely critical to get a knowledgeable and aggressive Minnesota DWI attorney to fight for you.



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