A second degree DWI charge is a life changing event. This article was written for folks facing second degree DWI charges. It’s written by Lundgren & Johnson’s highly rated and reviewed DWI attorneys. Our office is located in Minneapolis, Minnesota, and our DWI lawyers practice statewide.
Second degree DWI charges involve a refusal to cooperate with testing and one aggravating factor, or driving while impaired with two aggravating factors. Convictions carry a high likelihood of a lengthy jail sentence. Often, second degree DWI convictions carry mandatory jail sentences.
In addition, a second degree DWI conviction can lead to the cancellation of your license and forfeiture of the motor vehicle you were driving. Probationary periods can be as long as six years. Details about those aspects, and more, are provided below.
What is a Second Degree DWI?
Second degree DWI charges can arise from a variety of different circumstances. All of those circumstances will be explained later in this article. The most common second degree DWI charges involve a person refusing to test when they’ve had a prior DWI within ten years, or when a person has a blood alcohol concentration of .16 or more with a prior DWI within ten years.
Refusal of a Chemical Test and One Aggravating Factor
Minnesota Statute Section 169A.25, subd. 1(b) makes refusing a chemical test when one aggravating factor is present a second degree DWI offense.
Minnesota Statute Section 169A.20, subd. 2 provides further detail about the situations where refusal is a crime. Refusing a chemical test may involve:
- Refusing to provide a breath sample into the DataMaster testing machine after the Minnesota Breath Test Advisory has been read – Section 169A.20, subd. 2(1).
- Refusing to provide a urine sample after a search warrant is obtained by the officer, but only if a blood test was also offered – Section 169A.20, subd. 2(2).
- Refusing to provide a blood sample after a search warrant is obtained by the officer, but only if a urine test was also offered – Section 169A.20, subd. 2(2).
What is an aggravating factor? Minnesota Statute Section 169A.03, subd. 3, provides that definition. Aggravating factors include:
- A prior DWI or other qualifying offense within the ten years immediately preceding the current offense – Section 169A.03, subd. 3(1).
- Having an alcohol concentration of 0.16 or more as measured at the time, or within two hours of the time, of the offense – Section 169A.03, subd. 3(2).
- Having a child under the age of 16 in the motor vehicle at the time of the offense if the child is more than 36 months younger than the driver – Section 169A.03, subd. 3(3).
Driving While Impaired with Two Aggravating Factors
In addition, Minnesota Statute Section 169A.25, subd. 1(a) makes driving while impaired with two aggravating factors present a second degree DWI offense. The most common scenario is a situation where a person blows double the legal limit with a prior DWI within ten years. However, a third DWI within ten years is a fairly common scenario that leads to second degree DWI charges, too.
Next, we’ll cover the potential punishments you may face if convicted of third degree DWI.
How Serious is a Second Degree DWI?
A second degree DWI is the second most serious DWI offense. The only offense that is more severe is a first degree DWI – which is a felony offense.
Minnesota Statute Section 169A.25, subd. 2, categorizes second degree DWI charges as gross misdemeanor criminal offenses. Because it is a gross misdemeanor, a second degree DWI conviction is punishable by up to 365 days in jail and a $3,000.00 fine.
With that being said, an executed sentence of 365 days in jail or fine of $3,000.00 for a second degree DWI conviction is unlikely. But those punishments are often pronounced by the judge for second degree DWI convictions, with portions “stayed” for the person’s length of probation.
A “stayed” sentence means the person will not be required to serve that part as long as they abide by the terms of their probation. A second degree DWI probationary period can range from 0 to 6 years.
What actually happens when a person is convicted of second degree DWI depends on a variety of factors. Those factors include:
- The factual circumstances involved in the offense;
- The quality of their defense lawyer;
- Proactive measures taken towards rehabilitation while the case was pending;
- Defense lawyer and prosecutor’s plea bargaining process; and
- Applicable mandatory minimum sentences.
Mandatory Minimum Sentences for some Second Degree DWI Convictions
There are some circumstances that trigger mandatory minimum sentences for second degree DWI convictions. Minnesota Statute Section 169A.275, subd. 1 establishes a mandatory minimum sentence for second degree DWI convictions that arise when a person had one prior DWI conviction or other qualifying incident within ten years. That statute says the court must require the person to actually serve either of the following:
- A minimum of 30 days of incarceration, at least 48 hours of which must be served in a local correctional facility; or
- Eight hours of community work service for each day less than 30 days that the person is ordered to serve in a local correctional facility.
Minnesota judges can allow a person to serve the remainder of the minimum 30 days of incarceration other than the 48 hours in a local correctional facility on electronic home monitoring (EHM).
Judges can depart from the mandatory minimum sentence for a second conviction within ten years on their own motion or the prosecutor’s motion. There must be substantial mitigating factors that exist in order for the judge to depart from the mandatory minimum.
Minnesota Statute Section 169A.275, subd. 2 establishes the mandatory minimum sentence for second degree DWI convictions that arise when a person has two prior DWI convictions or other qualifying incidents within ten years. The statute requires the following minimum sentence when a person is convicted of a second degree DWI in that circumstance:
- A minimum of 90 days of incarceration, at least 30 days of which must be served consecutively in a local correctional facility. The judge can allow the person to serve the remaining 60 days on EHM; or
- Alternatively, the judge can require that the person only serve 6 days in a local correctional facility. Those 6 days must be served consecutively. Additionally, if the judge sentences a person in this manner, they must require that the person serve their probation in an intensive probation program.
What is an Intensive Probation Program for a Second Degree DWI Conviction?
An intensive probation programs requires strict compliance and accountability from those convicted of second degree DWI. It has many conditions and steps that must be completed. Those requirements are detailed in Minnesota Statute Section 169A.74, subdivision 3 and are summarized below:
- An initial assessment of the person’s chemical dependency with recommended treatment and aftercare.
- A requirement that the offender follow the recommended treatment and aftercare.
- Several stages of probation supervision, including: (i) a period of incarceration; (ii) a period during which an offender is, at all times, either working, on EHM, being supervised at a program facility, or traveling between two of these locations; (iii) a period of EHM; and (iv) gradually decreasing involvement with the program.
- Decreasing levels of intensity and contact with probation based on the person’s successful participation in the program and compliance with its rules.
- Increasing the severity of the program’s requirements if a person commits a DWI again or violates the rules of the program.
- The person must continue or seek employment during their period of intensive probation.
- The person must abstain from alcohol and controlled substances during the probation period and be tested routinely.
- The person must pay all or a substantial part of the costs of the program.
The program is a significant commitment and requires strict compliance. The consequences for a second degree DWI conviction don’t stop there.
Driver’s License Revocations and Cancellations
A person’s license will also be revoked or cancelled and denied as inimical to public safety if convicted of second degree DWI. A person’s DWI related driving history dictates whether the adverse license action is a revocation or cancellation.
Minnesota Statute Section 169A.54, subd. 1 provides that the revocation or cancellation period can range from 1 year to 6 years for a second degree DWI conviction if a driver does not hold a commercial driver’s license. The disqualification period for a commercial driver’s license can be as long as the person’s lifetime.
The person’s license plates will also be impounded under Minnesota Statute Section 169A.60.
Second degree DWI charges can also involve mandatory conditions of release while the case is pending, those circumstances are described below.
Mandatory Maximum Bail or Release Conditions for Certain Second Degree DWI Offenses
Minnesota Statute Section 169A.44 requires a person to either post the maximum bail amount of $12,000.00 or follow strict release conditions while their second degree case is pending in certain circumstances. Those release conditions require abstaining from the use of alcohol and submitting to a continuous program of electronic alcohol monitoring.
The following second degree cases fall into that category:
- Any second degree offense when the driver is under the age of 19.
- When the driver’s blood alcohol concentration is .16 or more.
- If there is a child under the age of 16 in the vehicle and the driver is more than 36 months older than the child.
- A second degree offense that is committed when the driver’s license has been cancelled and denied as inimical to public safety.
Both options are expensive because the person is required by law to pay to use the electronic alcohol monitor to the extent that they are able.
Additionally, Minnesota Statute Section 169.40, subdivision 3 requires a law enforcement officer to arrest and detain a person in those circumstances, and the detention must last at least until the person’s first court appearance. For more information about the timing requirements for that hearing, read our article, “In Jail for the Weekend (or More) – Minnesota’s 36-Hour Rule.”
Another added expense for second degree DWI cases is the forfeiture of the motor vehicle that was being driven by the person at the time of their arrest.
Can the Police Take my Car?
A common question by those facing second degree DWI charges, and the answer is yes – under certain circumstances. Motor vehicle forfeiture for DWI offenses is governed by Minnesota Statute Section 169A.63, and it includes second degree offenses.
DWI forfeiture matters are complex and the issues involved are so many that a separate article will be dedicated to the topic. It is important to know that there are many defenses and exceptions to DWI forfeitures, and a lawyer experienced in handling second degree DWI cases will be able to assist you in trying to recover your vehicle from the police.
There are strict timelines for contesting motor vehicle forfeitures, so it is important to contact a DWI lawyer immediately after the incident.
An Experienced Second Degree DWI Lawyer is Essential
People wonder whether they need a lawyer for a second degree DWI charge. Second degree DWI charges can have devastating consequences. It is essential to have a lawyer on your side that is experienced in defending second degree DWI cases.
The experienced DWI lawyers at Lundgren & Johnson can help. They’ve received recognition as Top 40 Lawyers under 40, Lead Counsel Rated, Super Lawyers Rising Stars, and Three Best Rated for DUI representation for lawyers located in Minneapolis. You can reach our lawyers at (612) 767-9643.