Minnesota’s Post-Driving Consumption DWI Defense
DWI defense work is unique. As we have described in other posts, DWI and DUI cases in Minnesota are not only defendable, but winnable. Challenges to DWI and DUI charges can be made on a number of grounds, as we explain in more detail at our main DWI/DUI page here. In some cases, a person may be charged with a DWI even when they are not observed driving, or even next to a car. In fact, we have defended clients arrested in their homes because the police believed they had driven in recent past. In such cases, it is common for a defendant to raise a “post-driving consumption” defense – a defense that says, “Hey, I drank when I got home. I wasn’t drinking before I drove home or while I was actually driving.” In this posting, we explore this defense to Minnesota’s DWI laws.
Post–driving alcohol consumption is an affirmative defense to a DWI crime. In general terms, a defendat may avail him or herself of this defense if they can show that (1) they were drinking after the time of actual driving, operating, or being in physical control of the vehicle and before the chemical test for alcohol, and (2) that this later drinking caused their alcohol concentration to equal or exceed the legal threshold (.08) at the time of the chemical test. The defense of post-driving consumption is available in two distinct contexts: (1) in a criminal prosecution, and (2) at a hearing where a driver challenges the revocation of their driving privileges. These are different contexts, with different evidentiary parameters and burdens.
Post-Driving Consumption Defense under Minnesota’s License Revocation Laws
When a person is arrested for a DWI and provides a sample of their breath, urine, or blood, and when that sample reveals an alcohol concentration of .08 or more, the Minnesota Department of Public Safety will revoke the driver’s driving privileges for a specified period of time. A person who has had their license revoked on this basis may file a challenge in the district court, and is entitled to a hearing in front of a judge to determine whether the revocation should stand or not. The scope of the hearing is limited by statute, and a person is limited to raising a finite number of issues at the hearing. One of these issues includes the affirmative defense of post-driving alcohol consumption. A person raising this issue at a license revocation hearing has the burden of proving by a preponderance of the evidence (1) that they were drinking after the time of actual driving but before taking an alcohohl concentration test, and (2) that this later drinking caused their alcohol concentration to equal or exceed the legal limit at the time the test was administered.
In the case of Waste v. Commissioner of Public Safety, the driver – Waste – was arrested on suspicion of DWI at his home where officers believed he had recently driven, and crashed, his vehicle. At an Implied Consent Hearing challenging the revocation of his driving privileges, Waste testified that on the evening preceding his arrest, he had driven to a local bar to meet two friends for drinks. Before going to the bar, he had worked a long day, played softball, and eaten dinner. He said that he did not consume any alcohol before going to the bar. According to the testimony of Waste and one of his friends, the three of them shared a pitcher of beer at the bar, and Waste consumed two and a half plastic cups of beer from the pitcher. After an hour, at approximately 1:00 a.m., Waste left the bar, talked with his friends in the parking lot for about twenty minutes, and then drove away. As he was driving, he saw a small animal on the road and swerved to the right to avoid hitting it. His pickup went off the road and down an embankment where it was stuck at about 1:45 a.m.
A passing motorist offered Waste a ride home, which Waste accepted. The motorist testified at the hearing that when Waste stepped out of his vehicle he fell underneath it. The motorist testifed that Waste needed assistance climbing the hill and had trouble with his balance. The motorist testified that he thought Waste was intoxicated, that Waste smelled as though he had been drinking, and that Waste needed some time to remember and describe where he lived. He also stated that Waste had difficulty staying awake on the drive home either because Waste was really tired or drunk.
A Plymouth police officer was dispatched to investigate the one-vehicle accident. Inside the pickup, the officer found personal items that included Waste’s I.D. Following a conversation with the motorist who had returned to the area after dropping Waste at home, the investigating officer requested that back-up officers respond to Waste’s home to check on his condition.
Waste testified that he arrived home roughly forty-five minutes before police knocked at his door. He testified that he drank four double shots of tequila after arriving home because he was worried about the consequences of driving his employer’s pickup off the road when he did not have a valid license. Waste admitted to lying to the officers when he told them that he had not driven the pickup into the ditch, but claimed that he lied only to protect his job and that he later admitted that he was driving. The officers arrested Waste on outstanding warrants and for driving while impaired. Waste consented to a breath test, which showed his alcohol concentration was .12 at the time of testing.
There was conflicting testimony at the hearing about whether Waste told the officers that he had been drinking at home. Waste testified that he repeatedly told the officers that he had been drinking at home after the accident. The arresting officer, who did not enter the apartment, testified that Waste did not tell her that he had been drinking at home and that she did not see a tequila bottle or shot glass. A second officer, who spoke with Waste at the public safety building, testified that, in the process of transferring Waste to his control, one of the officers told him that the suspect did make a comment that he’d been sitting at home drinking. In the end, the district court rejected Waste’s post-driving alcohol consumption defense. Waste then appealed to the Minnesota Court of Appeals.
On appeal, the Minnesota Court of Appeals affirmed the district court. In its opinion, the Minnesota Court of Appeals wrote as follows:
The district court noted that Waste had an apparent self-interest in the outcome of the case, that he admittedly lied in his initial contact with the officers by denying his involvement in the accident, and that this lie showed his ‘willingness to be dishonest in order to avoid responsibility.’ The court further observed that Waste’s testimony about drinking four double shots of tequila in forty-five minutes was not credible when compared to his stated rate of consumption earlier in the evening. In evaluating the weight and credibility of the testimony of Waste’s friend, the district court noted that the testimony was not impartial nor conclusive on the issue of postdriving consumption.
The district court attached significant credibility to the testimony of the passing motorist who observed Waste immediately after he was driving and during the ride home. The court concluded that the motorist’s testimony was the most credible because he had no interest in the hearing’s outcome and because he had a substantial opportunity to observe Waste’s condition immediately following his driving and during the twelve-to-fifteen-mile drive to Waste’s home. According to the motorist’s testimony, Waste smelled of alcohol, fell while getting out of his immobilized pickup, needed help climbing the hill, could not immediately remember where he lived, and had trouble staying awake on the drive home. Based on the evidence, the district court determined that Waste was substantially impaired at the time his pickup went down the embankment and that the degree of the impairment supported the accuracy of the reported value of the alcohol-concentration test. The court therefore rejected Waste’s affirmative defense of postdriving consumption.
As can be seen, the totality of the circumstances matter when raising the DWI defense of post-driving alcohol consumption. A district court judge will consider all of the surrounding circumstances to determine whether a driver at a license revocation hearing has met their burden of proving this defense by a preponderence of the evidence. In the Waste case, the primary hurdle for Waste was the damaging testimony of the motorist that drove him home. Because that person provided credible evidence as to Waste’s intoxication around the time of the accident, it was difficult for Waste to prove that his alcohol concentration of .08 or more was a result only of his drinking after he drove. Ultimately, he did not succeed in proving this defense.
Post-Driving Consumption Defense in Criminal Cases
In a criminal case, unlike an Implied Consent Hearing, the prosecution has the burden of proving guilt beyond a reasonable doubt. Under this framework, the prosecutor must prove each element of each crime charged beyond a reasonable doubt. A defendant has no burden to prove their innocence. Nevertheless, a criminal defendant who wishes to raise the post-driving consumption defense has the obligation of providing “some evidence” to show that post-driving alcohol consumption affected the driver’s alcohol concentration at the time a test was taken. The prosecution then has the burden of proving beyond a reasonable doubt that post-alcohol consumption did not affect the driver’s alcohol concentration at the time of testing.
With the exception of this shifting in the burden, the defense of post-driving alcohol consumption is largely the same across the license revocation hearing and criminal prosecution contexts. In both arenas, a driver must come forward with evidence establishing that they consumed alcohol after driving, and that this consumption of alcohol is what caused their alcohol concentration to meet or exceed the legal limit at the time of testing. In other words, a person raising this defense cannot simply say, “I drank after driving,” and leave it at that. The courts will generally require more evidence. Every case is unique. Our team of Minneapolis DWI lawyers are adept at litigating these fact-specific issues and defenses on behalf of our clients.
If You’re Looking for a Strong DWI Defense, Contact Lundgren & Johnson Today
The experienced DWI defense attorneys at Lundgren & Johnson are here to fight for you. Based in Minneapolis, we practice throughout the Twin Cities and greater Minnesota. Recently, attorney David Lundgren was rated among the three best DUI lawyers in Minneapolis by Three Best Rated ®. Give David Lundgren or Adam Johnson a call today with any of your DWI/DUI questions at 612-767-9643.